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Proposed increase of judicial appointment list to six candidates informed by consultation, AG says

Wednesday, March 11, 2020 @ 9:29 AM | By Amanda Jerome

After further consultation with justice stakeholders, Ontario Attorney General Doug Downey has released his proposed changes to fill judicial vacancies. These revisions have not been introduced in the legislature yet, and legal organizations are continuing to voice their opinions on what they think will work and what needs to change.

“The consultations were really helpful in helping us get to where we are now,” Downey told The Lawyer’s Daily.

Downey noted that he put forward “a lot of really broad ideas” for discussion and that consultation with justice stakeholders helped him to “understand how they were being received or how they could be received.”

Ontario Attorney General Doug Downey

According to a government release dated Feb. 27, the proposed changes include: requiring the Judicial Appointments Advisory Committee [JAAC] to “consider candidates already vetted for the same vacancy within the past year, rather than having to redo the entire application process;” increasing the minimum number of candidates the committee presents to the Attorney General from two to six to “allow for a larger, more diverse list of candidates to be considered for appointment;” and improve transparency around “candidate diversity by requiring the committees to publish more detailed diversity statistics in their annual reports.”

The proposals also suggest “greater flexibility for the committee to consider additional selection criteria if it chooses to do so, such as technology literacy and awareness in victims’ rights.” As well, they would alter the “composition of the justices of the peace committee to make the committee leaner and more efficient while continuing to ensure local voices are present and that committees represent the diversity of the communities they serve.”

The changes also suggest “expanding the role of the committees from solely providing recommendations to the Attorney General on appointments” to “leveraging the committee’s collective expertise to provide advice on the appointments process.”

Finally, the revisions would allow the committees to “hold meetings and interviews online” and introducing an online application system to “eliminate the need for candidates to submit approximately 200 paper pages by mail, as they are required to do now.”

The legal community first heard of the proposed reforms after Downey alluded to them in a speech to the Federation of Ontario Law Associations (FOLA) on Nov. 14, 2019. His comments drew backlash from organizations troubled by possible changes to Ontario’s process for appointing judges.

The two independent committees responsible for reviewing judge and justice of the peace applications in Ontario are the JAAC and Justices of the Peace Appointments Advisory Committee (JPAAC), which provide a list of candidates to the attorney general, who makes appointments from this list.

A release from the government stressed that there would be “no changes to the current mandatory qualifications set out in legislation and no changes to the existing rule that the Attorney General is not able to ask the committee to reconsider judicial or justice of the peace candidates who were not recommended.”

Downey told The Lawyer’s Daily that the proposal to expand the list of candidates from two to six was decided on after consultation with “several organizations.”

“I met with over 20 organizations, and a bunch of individuals as well, and the judiciary to arrive at a number that people were comfortable with,” he said.

Downey stressed that the JAAC and the JPAAC are “independent committees” that ultimately decide what the criteria are for the candidates they recommend.

“I think it’s critical that we maintain the integrity of the system throughout and we’ve gone beyond what other provinces and the federal government have done to uphold the integrity of the process. We’ve done it [in] a couple of ways: we’ve enshrined the process in statute, making sure the committee’s independent and letting them decide the criteria,” he said, noting that the committees conduct interviews with candidates, “which the federal government doesn’t do.”

“I think that’s an important part of the process,” he added.

In a press release, the Ontario Trial Lawyers Association (OTLA) thanked Downey for his “continued commitment to consult with interested legal organizations regarding issues of common concern with the justice system.”

OTLA president Allen Wynperle

“We agree with the minister that the list of judicial candidates he can consider for appointment should be expanded to a minimum of six, and we also agree that candidates who are classified ‘recommended’ or ‘highly recommended’ by the Judicial Appointments Advisory Committee for a particular vacancy should automatically form part of a pool of eligible candidates for appointment for a minimum of one year, without having to reapply,” said OTLA president Allen Wynperle, in a statement.

In an interview with The Lawyer’s Daily, Wynperle said Downey has been “open to consultation” not just on this issue, but “on a number of other issues of interest to our organizations.”

“I have to applaud the government on that willingness to consult,” he added.

Regarding the JAAC and its process, Wynperle noted that all parties have various goals, some “related to diversity, some are related to obviously protecting the system from any undue influence, and the minister had a challenging role in trying to balance those things.”

Wynperle believes the Ministry of the Attorney General “came up with a reasonable system, at least for the expanding of the list.” He noted that the OTLA was focused on expanding the list to six candidates “where that number of potential applicants is available.”

“In rural areas in the North, we recognize that there may not be six candidates, necessarily, that are qualified, that are recommended or highly recommended. So, in those situations there’ll be less and that’s acknowledged by the minister. But in jurisdictions like Toronto, and other cities, to come from two to six is not an unreasonable expansion of the list, in our view,” added Wynperle.

In an open letter to Downey dated March 9, The Advocates’ Society noted that it “strenuously” objects to the “requirement that the JAAC provide the Attorney General with a ranked long list of all candidates the JAAC has determined to be ‘highly recommended’ or ‘recommended.’ ”

“The Attorney General’s power to see every candidate on the long list, coupled with the Attorney General’s unlimited power to repeatedly request fresh short lists from the JAAC, effectively gives the Attorney General the power to appoint any candidate on the long list of ‘highly recommended’ or ‘recommended’ candidates. The Attorney General could simply identify a specific candidate on the long list and request repeated short lists until the candidate was included in the short list. The requirement that the Attorney General select candidates from the ‘short list,’ which is intended to be a constraint upon political patronage, is thereby rendered illusory,” the society’s president, Scott Maidment, wrote.

“There appears to us to be no sound reason to take this approach in reforming the appointment process,” he added, noting that the society objects because this approach “deprives Ontario of an established appointment process that has improved public confidence in the judiciary” and “requiring the JAAC to categorize all applicants, and rank all those in the ‘recommended’ or ‘highly recommended’ categories, would be tremendously resource-intensive and time-consuming.”

The Advocates’ Society called on Downey to “remove the requirement that the JAAC rank the entire list of ‘highly recommended’ and ‘recommended’ candidates; remove the Attorney General’s power to review the entire list of ‘highly recommended’ and ‘recommended’ candidates; require the JAAC to provide the Attorney General with a ranked short list of a minimum of six candidates, which the Attorney General could reject; and require the JAAC or the Attorney General to report annually, in a meaningful way, on the number of times the Attorney General rejected the JAAC’s short list and requested an additional list.”

The Ontario Crown Attorneys' Association president, Tony Loparco, said in a statement that the association supports “the movement towards increased transparency in the selection process.”

Ontario Paralegal Association (OPA) vice-president Colleen Wansborough said the OPA “anticipates these changes will fill vacancies faster, produce qualified candidates and provide more transparency for candidates and the general public.”

“The OPA is happy to continue to work on these changes and future changes with the Attorney General to advance access to justice for all Ontarians,” she added.

Ted Mann, president of the County of Carleton Law Association (CCLA) said the association “appreciates the extensive consultations undertaken by the Attorney General towards improving the provincial judicial appointment process.”

“We particularly value the candour and openness shown by the Attorney General and his staff in the collective effort to improve the efficiency and transparency of the process, while ensuring that the independence of the Ontario judiciary is maintained. The CCLA notes that some aspects of our feedback have been incorporated into the Attorney General's proposals and we hope that the dialogue can continue,” he added in a statement.

Although the proposed changes have not been introduced in the legislature yet, Downey said he will be proposing them at the “first available opportunity.”

“We’re tackling the fact that the appointment system for judges and justices of the peace is outdated and slow and we’re going to fix that,” he added.

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