Attorney General Doug Downey is taking a more direct hand in selecting Ontario’s next chief justice, but he isn’t explaining why.
Downey, who is also the MPP for Barrie-Springwater-Oro-
The attorney general (AG) has always had the responsibility of recommending a chief justice to the Ontario cabinet. In the past, however, the outgoing chief justice expressed his/her views of candidates to the AG, and judges of the court wishing to share their views did so through the chief justice.
Under this new process, Downey has said he’s inviting candidates from the court to send their resumes and short letters, explaining why they should be chosen chief justice, directly to him. He has stressed that the process is open, and no preliminary consideration of potential candidates has been done.
Downey, a longtime lawyer based in Orillia, was not available for interview this week to explain why this change was necessary.
Ontario Bar Association president Karen Perron explained her group’s position on the changes.
“In general, public confidence in the administration of justice depends on the public knowing judges are making decisions based only on the case before them – not on a desire to curry favour with anyone – whether elected or unelected, or even on a desire for public popularity,” she said. “In this context, ensuring that the chief justice is chosen in a way that does not compromise independence now or going forward will depend on transparency with respect to the process and selection criteria. Qualifications are always an important hallmark of choices that respect independence.
“The criteria for choosing the new chief justice should be made clear and, as the chief justice’s principal role is to administer the courts, the criteria should include an ability to ensure an efficient court and timely justice, experience that demonstrates broad perspectives on the diverse lives of Ontarians, an understanding of fair processes that guarantee independence and, given that the way we deliver justice is evolving, openness to, and comfort with, innovative tools,” Peron added.
Justice Julie Bourgeois, president of the Association of Ontario Judges, declined comment through her staff when contacted by BarrieToday.
But Bourgeois did comment in a recent Globe and Mail story, calling the changes “alarming” and an “aberration,” while also questioning the propriety of judges providing feedback directly to the AG. Bourgeois is also reported to be concerned that the new process will erode the public’s confidence in the justice system.
The process for appointing a chief justice is not specified in law, but does say that it's done by cabinet on the recommendation of the attorney general.
Andrew Kennedy, Downey’s senior issues manager and press secretary, said that as has been the case with previous appointments of new chief justices, the attorney general relies on the same direction provided for in the Courts of Justice Act, that his predecessors have to make a recommendation for approval.
“To be transparent, and engage all Ontario Court of Justice judges, the attorney general (Downey) wrote to all full-time (Ontario Court of Justice) judges to identify the upcoming vacancy and set out the process,” Kennedy said in a statement provided to OrilliaMatters.
He said in determining this process, the AG consulted with ministry officials, reviewed the Courts of Justice Act, the memorandum of understanding between the ministry and the Ontario Court of Justice and the Ethical Principles for Judges developed by the Canadian Judicial Council, to ensure that members of the judiciary could participate in all aspects without compromising in any way their impartiality or undermining the integrity of the appointment process.
Kennedy also said Chief Justice Maisonneuve has been consulted directly on this process and will continue to be consulted when and as appropriate.
