The Hamilton Spectator

Ontario’s system of naming judges is well-respected


I was startled, not long after I returned to Toronto in 1988 from several years of living in New York, to receive a call from attorney general Ian Scott inviting me to discuss a new system of appointing judges. As a known lefty feminist, married to a former leader of the Ontario NDP, I was unaccustom­ed to a Liberal siren song. But Scott was so highly regarded as an exceptiona­l attorney general that I was eager to hear him out.

“We’re going to change the entire system,” he told me exuberantl­y when we met. In my columns in the Toronto Star, I had been harshly critical of those judges I saw as sexist, homophobic and racist, men (always men) who openly expressed their biases, even as their decisions reinforced every kind of inequality and injustice prevalent in our complacent province.

Scott proposed that we, the first Ontario Judicial Appointmen­ts Advisory Committee (JAAC), would freely create a new system of recruiting and selecting judges. Furthermor­e, he swore that he would faithfully choose one name from each short list of three. “I want you to open up the bench to a wide representa­tion of Ontarians. Even people … like me,” he said, with a mischievou­s grin. It was well known in political and legal circles that Scott was gay, though closeted.

At first, the JAAC was seen as so radical that we were nearly deafened by howls of outrage from lawyers and wannabe judges. “But it’s my turn to be appointed!” whined one lawyer from a small city. “I was promised this position by my MPP!” fumed another.

And these were minor complaints compared to the storm unleashed when we appointed a francophon­e judge, for the first time, to a heavily Frenchspea­king area.

We were accused of everything from ignorance to outright communism. As we discovered the depth of cronyism and patronage in the Ontario court system, we felt strongly affirmed in our work — unexpected­ly onerous work, with oppressive hours and not a penny of recompense — but work we were sure was way past due.

We advertised judicial vacancies in the Star, and, despite the outrage from lawyers about this process (“so demeaning”), we were soon inundated with hundreds of applicatio­ns. Within a month we were lugging giant briefcases on wheels to every meeting.

We were looking for judges rooted in their communitie­s, with broad life experience and impeccable law practices. Personal interviews turned out to be a test of lurking arrogance: Some applicants were so furious at having to be interviewe­d by a bunch of “amateurs” that they sounded off to the committee’s secretary in the anteroom, and then entered the room with sullen suppressed fury.

Our committee was lively and diverse, and we loved working together, exhilarate­d by hammering out our difference­s while keeping our focus on the public good. Peter Russell, professor and renowned constituti­onal expert, was our chair. He led with a light hand, but he establishe­d a guiding framework of firm nonpartisa­nship, transparen­cy and legal scrupulous­ness.

Our JAAC became a model for jurisdicti­ons around the world, admired by judges and legal experts. Among our appointmen­ts, nearly half were women, many were from diverse communitie­s, and we chose the first openly gay judge.

The JAAC faced its first big threat in 1999, when then-premier Mike Harris (Doug Ford’s mentor) tried to seize control. He refused to appoint a judge for a vacancy in his home riding of North Bay because the short list did not include a close Conservati­ve friend of his. The delay dragged on for months, until, confrontin­g a growing uproar, Harris backed down. Now his follower, Ford, is attempting to impose conservati­ve (“likeminded”) judges on the bench, an effort clothed in populist jargon about keeping “bad guys” in jail.

Unless the public speaks out forcibly again to safeguard this little-known linchpin of our democracy, we stand to lose something that we will bitterly regret in hindsight.

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