Ontario lawyers’ group calls for meeting over Ford government’s judicial appointments

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A group of lawyers’ associations has asked for a meeting with Ontario Premier Doug Ford and Attorney-General Doug Downey after a Globe and Mail analysis revealed that more than two-thirds of the judges appointed since 2018 are former prosecutors.

Douglas Judson, the chair of the Federation of Ontario Law Associations (FOLA), said he sent an invitation on behalf of his umbrella organization and more than a dozen other lawyers’ groups to open a dialogue with the government in the wake of The Globe’s story, which has raised concerns among defence lawyers.

The Globe’s analysis showed that of 107 judges the current Progressive Conservative government has appointed, 76 were either Crown attorneys or had worked as prosecutors – a proportion that works out to 71 per cent. Under previous Liberal premier Kathleen Wynne, only 48 per cent of judicial appointments went to former prosecutors, The Globe’s analysis showed.

The issue became a political battlefield after Mr. Ford repeatedly defended the installation of two former political aides on the provincial committee that recommends judicial candidates, saying it is his right to appoint “like-minded” judges who will be “tough” on crime. Some on the defence bar warn the prevalence of former prosecutors is unfair to defence lawyers and threatens to imbalance the province’s courts.

“We intend to reach out to the Attorney-General and the Premier and offer an opportunity to have some productive dialogue with members of the legal community on the appointments process,” Mr. Judson said in an interview before sending an e-mail Tuesday evening inviting Mr. Ford and Mr. Downey to a roundtable on the issue. “I think many members of the bar would have concern about the Premier’s comments and about the statistics that are reflected in your article.”

The Ford government made widely criticized changes to the judicial appointment process in 2021, giving politicians more say over who sits on the committee that screens and recommends judges for the lower Ontario Court of Justice. FOLA is one of three legal organizations with a seat on the 13-member Judicial Appointments Advisory Committee (JAAC), along with the Law Society of Ontario and the Ontario Bar Association. But their representatives are now chosen from lists of three candidates each group provides to the Attorney-General.

The 2021 changes also require the committee to provide the Attorney-General with a short list of least six candidates for each judicial vacancy, instead of two, from which to choose. Critics said the changes tainted a process that had been praised for minimizing political interference.

Mr. Judson said he hoped a meeting with the government would also be able to address other issues related to the judicial appointments process, including how to attract a larger and more diverse pool of candidates to apply. (In its most recent annual report, the JAAC said it was having difficulty attracting a sufficient number of qualified candidates for judicial vacancies.)

Mr. Judson said several organizations dedicated to diversity in the legal profession and female lawyers had expressed interest in taking part. He said some defence counsel may have been discouraged from applying to become judges after the Premier suggested those on the province’s bench needed to be tougher on crime.

“I think that the Premier’s comments certainly don’t encourage people to apply who are from a certain persuasion,” Mr. Judson said. “… Generally, we have had a positive relationship with the Attorney-General’s office, and I am optimistic that we can find some way to have a bit of a dialogue on these issues.”

A spokesperson for Mr. Downey, Andrew Kennedy, said earlier Tuesday his office had not yet received an invitation to meet with the lawyers’ groups.

Last week, Ontario’s Attorney-General dismissed concerns about the number of prosecutors he had appointed as judges, pointing to numbers from the appointments committee showing that over all since 1989, Ontario had elevated more than double the number of lawyers in private practice as it had Crown attorneys to the bench. (These numbers do not account for lawyers in private practice who act as prosecutors.)

“I just don’t think it’s relevant,” Mr. Downey told reporters. “We’re looking for excellent lawyers who are qualified to do the job.”