A condensed version of this article was published in the Hamilton Spectator on March 9, 2024.
Help! There’s a bull in the china shop.
Doug Ford, whose government appoints our provincial judges, is thrashing around dangerously in the halls of justice and the damage could be catastrophic. He now has his political minions picking our judges and he is boasting that: “I am not going to appoint some NDP or some Liberal” and “so every single appointment I can, to find tough judges, tough JPs, to keep guys in jail – I’m going to do it.”
Ford is not known for his intellectual heft. He probably never read what Socrates wrote over 2400 hundred years ago about what a good judge is expected to do: “To hear courteously, to answer wisely, to consider soberly, and to decide impartially.” Socrates wouldn’t have worried about the NDP or the Liberals.
An overtly partisan judicial appointment process that expressly excludes anyone from a different political party or anyone who believes that there is any more to the complex process of judging than “keeping guys in jail” is an insult to democracy. Our bovine Premier claims his party was elected to get “like-minded” people appointed. His comments betray a juvenile grasp of the essence of democracy. The fact is that the electorate does not rule in a democracy; the law does. It is the Rule of Law that protects us all from mob rule, oppression, and the collapse of civil society.
We don’t need “tough” judges committed to keeping guys in jail. We need brave, fair, firm judges who treat people as human beings – not as “bad” guys or “good” guys – who listen carefully, consider deeply and apply even-handed justice with wisdom and compassion. The only question of “toughness” should be whether or not a judge will bring to that process the toughness required to fiercely resist any political, partisan or ideological pressure and perform the function of judging with absolute impartiality and independence.
One need only look to the U.S. to recognize the difference between our system and one where the appointed Supreme Court has been grotesquely politicised and elected judges are forced to pander to public opinion and tailor their judgments to the biases of the day to ensure their re-election and job security. That is anathema to the whole reason we have judges – the neutral, non-partisan, unideological and unbiased deciders whom we rely on to turn the wheels of justice with firm and steady hands.
In 2021 Ford seized control of the Ontario Judicial Appointments Advisory Committee by increasing the number of members appointed by his government from 7 to 10. Now his former Deputy Chief of Staff has been appointed Chair of the Committee. The new Chair has no legal background but he is a registered corporate lobbyist and a proud senior fellow of a public policy think tank which is affiliated with a U.S. based organization that provides training for libertarian and conservative groups around the world.
When politicians begin to tamper with the judiciary, real democracy begins to crumble. Ford’s judicial meddling is straight out of Israeli Prime Minister Benjamin Netanyahu’s playbook. Like Ford, Netanyahu attempted to seize control of Israel’s Judicial Selection Committee by ensuring that the majority of its members were political appointees of his far-right ruling coalition. His supporters made the same specious arguments that Ford is bandying around in Ontario.
Netanyahu’s maneuvering triggered months of furious protests by hundreds of thousands of Israelis that forced him to back down. Ford’s sustained attack on the independence of our provincial judiciary deserves the same fate. His recklessness threatens to rupture the very genius that makes our judicial system work, namely the absolute independence and impartiality of its linchpins – our judges. And, as any good mechanic will tell you, if you mess with the linchpin, there’s a pretty good chance the wheels will come off.
Dermot Nolan is a Hamilton Lawyer and retired Deputy Judge