Dear Mr. Downey,
On behalf of the undersigned four groups, we are writing in response to your office’s proposed approach to select the new Chief Justice of the Ontario Court of Justice.
Choosing a Chief Justice for one of the busiest courts in Canada is an incredibly important task that will have deep, meaningful and long term effects on the justice system. In a recent Toronto Star article, we learnt that your office will invite Chief Justice candidates to apply to you directly and allow judges to provide feedback to you directly as well. This article is the first time our groups have heard about these changes.
This proposed approach is a sharp deviation from past practice. Conventionally, the outgoing Chief Justice is the liaison who collects judges’ insights about replacement candidates and then presents anonymized feedback and recommendations to the Attorney-General. This convention has ensured a separation between the executive and judicial branches of government. This process also ensures that feedback is provided without concern of reprimand or reputational harm.
It is imperative that any process proposed to appoint a new Chief Justice go through rigorous review to ensure a fair and merit-based appointment. Any new process must respect the independence of the judiciary. For example, encouraging judges to directly approach the Attorney-General related to matters of the court is, in our opinions, a clear step in the wrong direction. It leaves room for political motivations to impact appointments and, more importantly, risks harming the public confidence in the judiciary. These principles are central to the separation of power doctrine.
As you know, this is not the first time that our organizations have raised concerns about proposed changes to the current judicial appointment methods. In 2019 we identified concerns related to the Bill 245 amendments which (amongst other things) amended the composition and operations of the Judicial Appointment Advisory Committee (JAAC). These amendments allocated greater discretion to the AttorneyGeneral in selecting judges while diluting the authority of the other independent JAAC members. As a result, we explained that these amendments would undermine diversity, inclusion and transparency in the judicial appointment process.
We urge your office to select the Chief Justice in accordance with the conventional process and engage with relevant stakeholders to discuss the implications of any potential changes. We are happy to set up a meeting to discuss the proposed changes with you and your Chief of Staff at your convenience.
We look forward to hearing from you.
Sincerely,
Canadian Muslim Lawyers Association
Federation of Asian Canadian Lawyers
South Asian Bar Association Canadian
Association of Black Lawyers
c. Joseph Hillier, Chief of Staff Nicko Vavassis, Director of Policy
Tyler Jensen, Director of Litigation, Senior Policy and Legal Affairs Advisor