One thing Canadians can hold dear when comparing ourselves to the rest of the world is the way in which we trust in the independence and integrity of our judicial system. Historically, Canadian judges have been appointed, not elected. This is typically done by committees of non-partisan representatives, who look at the merits of the potential judge’s work and determine whether they are capable of ruling fairly, equally, and impartially.
But recent actions by premiers across Canada have struck at the very core of the integrity of this system. They have threatened the foundational hallmarks of the judicial institution.
I am deeply concerned by recent remarks made by the Premier of Ontario, Doug Ford. His comments indicate that it is his intention to flood judicial appointments with politically-aligned individuals. The crux of these comment suggest that he is doing so to take a “tough on crime” stance.
This appears to be political posturing to appease conservative voters who have bought into a lie that crime cannot be controlled by existing methods in the judicial system. However, that could not be farther from the truth.
Premier Ford’s comments strike at the very heart of our justice system’s integrity. It is imperative that Canadians understand the gravity of this situation and stand against any attempt to manipulate the judiciary for political gain.
Despite this, not only has Premier Ford doubled, tripled, and quadrupled down on this ill-conceived scheme, but he has already set this process in motion. It’s one thing for politicians to make promises they don’t intend to keep; it’s another to make promises and then keep them, when those promises devalue our justice system.
Ford has appointed two ex-staffers, Matthew Bondy and Brock Vandrick to his Judicial Appointments Advisor Committee. The committee that is supposed to be a non-partisan method of determining the best judicial candidates. Both these individuals are registered lobbyists, including for gun manufacturers.
To be clear: I am not suggesting that this half-cocked plan will work. At the end of the day, I have faith in the independence of the judiciary and the rule of law. But I am concerned that the plan itself, and the publicization of it and politicization of it, will undermine the public’s confidence in the administration of justice in Canada.
The independence of the judiciary is a cornerstone of living in a free and democratic society. While imperfect, the goal is to ensure that every individual is treated fairly and impartially under the law. The judiciary must remain free from political influence to uphold the rule of law and safeguard against abuses of power. We need not look too far across our border to the south to see how political appointments have stripped away fundamental rights and freedoms to achieve electoral aims.
However, Premier Ford’s remarks raise serious doubts about his commitment to these fundamental principles.
By seeking to stack the courts with politically aligned judges, Premier Ford undermines the impartiality and integrity of our judicial system. This blatant attempt to exert control over the judiciary erodes public trust in the fairness of our legal institutions. It is a dangerous precedent that cannot be ignored. People who are not optically aligned with Doug Ford may feel they do not get a fair day in court. That cannot be; the perception that court is fair, most particularly in criminal trials, is fundamental to the proper functioning of the justice system.
Judges must be appointed based on their qualifications, experience, and commitment to upholding the rule of law, not their political affiliations. While judges are also human beings with their own beliefs, we trust and indeed require that they check those beliefs at the door to judge those before them only on the facts as proven at trial, the law, and the constitutional guarantees demanded by the Charter. Anything else would be an affront.
Remember that the courts themselves are the means by which the public challenges unjust laws, seeks redress against unlawful state action, and obtains remedies for state interference with individual liberties. The courts – and the judges that preside over them – are a line of defence against state overreach.
Doug Ford is not alone in these thinly-veiled attacks on our most important democratic institution. And this isn’t just a Conservative problem.
Out west, in British Columbia, both Premier David Eby and Attorney General Nikki Sharma have landed in hot water with legal organizations and the Law Society of British Columbia over attacks on the judiciary and the fairness of trials.
Like Ford, Eby and Sharma have been faced with the hue and cry over the so-called rise in violent offences. They have faced political pressure for stricter bail, longer sentences, and more monitoring and restrictions on “repeat violent offenders.” And they have responded in a way that politicians would; not lawyers.
In a recent high-profile murder trial, certain comments by Premier Eby and Attorney General Sharma about the conduct of defence counsel suggested that the legal regulator could deal with defence counsel raising uncomfortable arguments by way of disciplinary action. Notwithstanding that this trial was presided over by an experienced judge, and experienced senior Crown Counsel did not object to the defence’s theory of the case, the Attorney General and Premier saw fit to effectively threaten the work of defence lawyers.
It sends a chill down the spine, especially when considering that British Columbia is eyeing a move to a government-controlled single legal regulator.
These comments came on the heels of public ciritcism by both the AGBC and the Premier over a sentencing decision by an experienced and well-respected judge in a voyeurism case. Such comments are deeply concerning and represent a dangerous encroachment on the independence of the legal profession and the judiciary.
Frankly, the suggestion that regulating lawyers would prevent them from advancing arguments that governments disagree with is a direct assault on the Charter-protected right to make full answer and defence. Trial judges are equipped to address lawyer misconduct in the courtroom. If it were wrong, we can trust a judge to step in. Lawyers have a duty to vigorously advocate for their clients’ interests within the bounds of the law, regardless of whether those arguments align with the government’s preferences or whether those arguments are factually distasteful. The ability of defence lawyers to zealously represent their clients is essential to ensuring a fair and just legal system.
Imposing regulations that restrict lawyers’ ability to advocate effectively would undermine the very foundation of our legal system and threaten the rights of individuals to a fair trial. It would create a chilling effect on legal advocacy and could deter lawyers from taking on controversial cases or advancing unpopular arguments, ultimately depriving individuals of their right to competent representation. This would send a hush over development of Charter jurisprudence.
Furthermore, the criticism of a judge for imposing a sentence that the political elite do not like is just plain wrong, Judges are entrusted with the solemn responsibility of applying the law impartially and without bias, based on the facts and evidence presented before them.
To criticize a judge for fulfilling their duty and exercising judicial discretion according to the law undermines the integrity of the judiciary and erodes public confidence in the legal system. There was no suggestion the sentence was an illegal sentence. There was no suggestion it was outside the range for a similarly situated offender. And if it were, the government’s proper recourse is to an appellate court. There are checks and balances built into the system, so politically-motivated interference is simply not necessary.
It is imperative that judges be allowed to fulfill their duties without interference or intimidation from government officials or other actors.
Premier Eby and Attorney General Sharma’s remarks demonstrate a concerning lack of respect for the independence of the legal profession and the judiciary. Their attempts to control and influence legal advocacy and judicial decision-making undermine the principles of democracy, the rule of law, and the rights of individuals to a fair trial.
Meanwhile, in Manitoba, NDP Premier Wab Kinew is proving extra funding to police to “track” individuals who violate their bail conditions and hiring dedicated officers for this reason. It should come as little surprise that the targets of these measures are people who are facing poverty, are unhoused, and struggle with mental health and addictions issues.
While officers are being given $3 Million for this, another $1.14 Million is being put into programs to collect data and intensively supervise these accused individuals. But the root causes that lead people to breach conditions, such as lack of housing and social supports, are going unaddressed.
These tough-on-crime actions are great at getting votes, but the real victims of them are marginalized communities who already have a greater hurdle obtaining access to bail on reasonable conditions that can be fulfilled.
In response to actions like those in BC and Manitoba, the Canadian Bar Association passed a resolution affirming the right to reasonable bail in Canada at its most recent Annual General Meeting.
As Canadians, we must vehemently oppose any efforts to undermine the independence of the legal profession and the judiciary. We must demand that government officials respect the separation of powers and refrain from interfering in the administration of justice. Only by upholding the principles of judicial independence and the rule of law can we ensure that justice is served and the rights of all individuals are protected.
We simply cannot afford to tolerate blatant attempts to interfere with the judicial process. We must remain vigilant in safeguarding the independence of our judiciary and holding our elected officials accountable for upholding the principles of democracy and the rule of law.
It is incumbent upon all Canadians to speak out against any efforts to politicize the judiciary and to demand that governments leave the judiciary to do its job. Because if we do not, we risk losing everything we have built in over 40 years of the application of constitutional rights in criminal cases.
