Retiring judge warns of 'significant damage to the justice system' from Ford's comments on judicial appointments

EDITOR’S NOTE: This article originally appeared on The Trillium, a Village Media website devoted exclusively to covering provincial politics at Queen’s Park. 

A judge retiring from Ontario's Court of Appeal last week concluded his farewell speech by warning that the premier's statements on appointing judges who share his political views could significantly damage the justice system.

Justice David H. Doherty, who served on the Ontario Court of Appeal for 33 years, was honoured at a "swearing-out ceremony" at a special sitting of the court on Friday, attended by numerous current and former justices of Ontario's courts and the Supreme Court of Canada.

Most of the event was dedicated to tributes lauding Doherty's long career, but Doherty also spoke and he reserved his final words for admonishing Premier Doug Ford and Attorney General Doug Downey. 

He mentioned neither by name, but by referring to "like-minded judges" he made it clear he was speaking about the comments they have made about appointing "like-minded" and "tough-on-crime" judges to the Ontario court of justice.

Doherty described this part of his speech as a prepared statement that he wanted to get right. He began by explaining that judges strive for justice in each individual case in their courts.

"Every litigant is entitled to know the case will be tried and settled in accordance with the law and every litigant is entitled to the fairness and civility that we expect," he said. "As judges, we must do our very best to meet the expectations that exist. In this sense, we should all be like-minded judges."

"It does a disservice to suggest that the qualification for appointment to the judiciary should include some manifestation of allegiance to, or even sympathy with, the agenda of those who are fixed with the responsibility of appointing judges," he continued.

"Those who yield that power must appreciate the need to protect the independence and neutrality of the court. A public perception, born of misguided statements made by people who should know better, that judges are or should be selected, in part, because of some inclination to administer justice as those currently in government would have it administered, will, in the long run, do great harm to our justice system."

Doherty quoted a saying that "courts have no army," meaning that justice depends on "the moral force and suasion of judicial decisions in the community."

"The moral force suffers greatly if those charges are viewed, because of statements made — again by people who should know better — to the effect that the perceived affinity for the political views of a particular party should be a consideration on appointment," Doherty said. "If that view is said enough, it will come to be accepted wisdom in the community. And with that wisdom will come significant damage to the justice system.

"I ask everyone who is in a position to do so to think long and hard about promoting that view."

Doherty concluded by saying that the justice system has real problems, but the quality of the judges appointed to the Ontario court of justice over the past 30 years — those appointed by the provincial government — is not one of them.

"We are blessed with an energetic and very capable provincial court bench. Believe me, I've read hundreds of the judgments. However the appointment process has functioned, it has worked," he said. "Perhaps we should move on to a real problem."

The controversy Doherty was referring to began when the premier was asked about two apparent patronage appointments his government made to the committee that recommends lawyers for the attorney general to appoint to the Ontario court of justice. Ford responded by saying he'd done it to get "tough" judges and justices of the peace (JPs) on the bench.

"I'm putting in like-minded people that believe in what we believe in, keeping the bad guys in jail, and I'm proud of the job that they're doing. I'm gonna continue doing it," he said last month. He has since "doubled," "tripled," "quadrupled" and "quintupled" down on the statements, which his attorney general, Doug Downey, has defended as well.

The Trillium has reported that there are more Conservative-connected appointments than two that ignited the controversy and include most of the lay members the government has appointed to the Judicial Appointments Advisory Committee and Justices of the Peace Appointments Advisory Committee, which assist in the appointments of judges and JPs, respectively. 

The Globe and Mail has reported that former prosecutors make up most of Ford government’s judicial picks and The Trillium has reported that the government has appointed an increasing number of former police officers as JPs.

This story was corrected after publication to remove the attribution of a historical quote that was mistaken in the speech.