The Agenda with Steve Paikin (Audio) - Does Ontario Actually Need Tougher Judges?

Episode Date: May 15, 2025

Premier Doug Ford recently declared that he thought it was time for Ontario to start electing judges, ranting against "bleeding heart" jurists and suggesting that all appointments are political. Could tougher judges indeed help fix our system? What's the best way to ensure judicial independence, and who gets to define it? To discuss, we're joined by Donna Kellway President of the Ontario Crown Attorneys' Association Boris Bytensky President of the Criminal Lawyers' Association of Ontario Peter Copeland Deputy director of domestic policy at the Macdonald-Laurier Institute and former director of policy to the solicitor general of Ontario and Shakir Rahim Director of the criminal justice program at the Canadian Civil Liberties AssociationSee omnystudio.com/listener for privacy information.

He was like a father figure to me. Unfortunately, found myself in a very vulnerable position. This is a story about a psychiatrist in Toronto accused of abusing two of his patients, which he denies. It's also a story about a system that is supposed to protect patients. From TVO Podcasts, I'm Krisha Collier, and this is The Oath. Subscribe today wherever you listen. Premier Doug Ford recently declared that he thought it was time for Ontario to start electing judges,

excoriating bleeding-heart jurists and suggesting that all appointments are political. Could tougher judges indeed help fix our system? What's the best way to ensure judicial independence? And who gets to define it? Let's get into this. To discuss, we are joined in Kelowna, British Columbia, by Donna Kellway. She is president of the Ontario Crown Attorneys Association.

And with us here in studio, Boris Patensky, president of the Criminal Lawyers Association. Peter Copeland, deputy Director of Domestic Policy at the MacDonald-Laurier Institute. He's a former Director of Policy to the Solicitor General of Ontario. And Shakir Rahim, Director of the Criminal Justice Program

at the CCLA, the Canadian Civil Liberties Association. Great to have you three with us here in our studio. And Donna Kellway, it's a pleasure to welcome you to our program from the left coast, and I'll put you to work right away. What do you think about the Premier of Ontario's suggestion that we should elect our judges? Well, you know, judicial independence and impartiality is a cornerstone of our justice system.

And the way we achieve that is by having a merit-based appointment system. You don't do that through an election system. Elections don't result in that same type of impartiality and independence, and that would be a real blow to have a system that tried to mirror anything that's happening in our neighbors down south. Okay, gonna put the folks to work here now in the studio. Boris, what say you on the issue of electing judges? Well, I think if you don't want to have worse outcomes in terms of true justice,

that's a great way to go. I mean, we actually can't do it because our Constitution doesn't allow us to elect judges, but quite apart from that, the experience of electing judges in the United States shows us that campaigns focus on putting more people in jail producing I think overall worse outcomes for what we'd like to see as an enlightened justice system that is based on data merit in terms of our judicial appointments and the cornerstones of the rule of law. Some people watching this would say not a bad idea to put more people in jail therefore maybe electing judges is not such a bad idea either. Except the very same United States experience shows us

that we put more people in jail give them longer sentences doesn't produce safer streets doesn't produce better outcomes and if this is all rooted in public safety and the desire to live in a safer community then frankly putting everybody in jail and putting them in jail for longer is going to produce worse outcomes for that goal and not better ones. You basically work for the guy who is responsible for public safety in Ontario. What do you think about the idea of electing judges? Yeah I would agree with with Boris and Donna on this respect. I think you know we have as they stated judicial appointments

are merit-based here and really they are in many of the courts in the United States as well. Supreme Court's and in many gubernatorial appointments as well. You think the Supreme Court is a merit-based appointment system in the United States? Yeah. So this is where we should get into a bit of discussion on this, because it's certainly merit-based and judicial appointments are also inherently political.

That's something undoubtedly worth stating. And our judicial system is ultimately responsible and responsive to the will of the people. Now it needs to be separate and independent from it. OK, we're going to come back to that issue of judicial independence as it relates to political appointments and how that works. But are you going to make it unanimous here

on the issue of electing judges, or do you think there's some room for that? I think it is unanimous opinion here in the studio today. The other point I would emphasize is that judges have to make decisions that are unpopular, whether unpopular with a powerful politician or the public at large. Their fidelity is to the Constitution, the Charter of Rights and Freedoms and the rule of law. And so when you open that door to elected judges, I think it imperils the fair adjudication and protection

of all of our rights and freedoms. OK, let's come back now on this issue that Peter said. Because, well, Doug Ford said it at his press conference. He said, there's no judge appointed anywhere in the world that is not a political appointment. And by that, I mean it's obvious on the face of it, Peter, that if a politician appoints a judge, it is, on the face of it, Peter, that if a politician appoints a judge, it is on the face of it a political appointment.

But I think he means a more nefarious interpretation on that. Should we take it that way? I don't think so. I think you need to look at the type of politician making the statement and whether you're making a technically precise point or, as he described it himself, a rant. And so when we're talking about appointments,

look, we need to ensure that merit is a guiding principle. But ultimately, both the judicial advisory committee's members that are appointed to serve as representatives, say, as the Law Society of Ontario Ontario different entities at the federal level are appointed some of them politically and so it's it's completely understandable to expect that they would take into account you know that the political will of the government as well as the qualifications of the judges in in putting forward recommendations to the Attorney General. government as well as the qualifications of the judges in putting forward recommendations

to the attorney general. Let me go to Donna on this because I think what the premier was getting at was that liberal governments appoint liberal minded judges, conservative governments appoint conservative minded judges. He therefore calls those quote unquote political appointments and thinks we should be grown ups and recognize that. Is he right? Well, on a merit-based system, we're taking into account so many different aspects

of an individual's past career. We're taking into account not only their legal experience, but we're taking into account whether or not their personalities are suited for the job. And so I might be conservative, fiscally conservative, but that doesn't say how I am going to decide cases. We hope on a merit-based system that people are going to decide cases

based on the evidence before them. They're going to look at the legislation, they're going to look at the case law, and they're going to make sure that all the decisions that they make are constitutionally sound. But it's the personalities that come into play are also very, very important because we want to make sure, and the judicial appointments Committees take into account a number of different personality factors. And do you have an ability to listen? Are you a compassionate person?

Are you a tyrant? Are you an authoritarian? If you are, this job is not going to be the right job for you. So in addition to the rigorous application process, there are also a number of discrete inquiries that go into that. Boris, let me follow up with you on this issue of advisory committees. I think there was a time when, for example, organizations such as yours, or maybe the Bar Association or whatever, would put a list forward of

potential judges to be appointed. or whatever, would put a list forward of potential judges to be appointed. And prime ministers, premiers, ministers of justice would pick names from that vetted list as to who was going to become a judge. And that way, everybody was sort of on the same page about the thing. I think the current government of Ontario

wants to go off that list and find some of its own people. What does that say about the politicization of judicial appointments today? Well, frankly, the federal appointment system has always been more opaque than the provincial one. Historically, at least for the last at least 20 years in Ontario, we've had what's been described as the gold standard of judicial appointments.

We've had a committee that is appointed in part by the provincial government and in part from various associations, including the judges and Bar Association, Law Society, and so on. And that committee screens the various candidates to produce up to now a ranked list of judges for the attorney general to consider and then choose from. There's always going to be and there always

has been a political aspect of it and the attorney generals of the past have always picked their preferred candidates from that list. But from that list, that's the point. Correct and that's still going to be the case by the way. There's going to be a larger list and it's not going to be ranked apparently. It's going to be categorized into and to recommend and highly recommended. That's the current government proposal. But I think one of the things we're skipping over and frankly I think we're begging an important question and that is that we

can assume that somebody's background in terms of their job is going to tell us a lot about what kind of judge they're going to become. Are they going to be a tough on crime judge? And there's this presumption that just because you work for the Crown Attorney's Office, it seems nowadays, that's going to make you a tough on crime individual. You're going to give longer sentences, deny bail for those rare occasions where you sit in bail court, and generally make decisions that are favorable to the tough on crime community.

I don't think that there's any merit to that presumption. I think lots of defense lawyers are extremely conservative, make very tough judges. Judges and defense lawyers don't prefer to appear in front of. And by way of contrast, there's some outstanding judges that we would seem to be, that we would characterize as defense leaning judges that come from the ranks of the Crown attorneys. Because people at the end of the day, if they're bright, if they are faithful to the oath that they take to sit as judges, to uphold the rule of law, to follow precedent, to follow the legislation,

they're going to make the right decisions if they're meritorious appointments, if they're smart individuals, they're capable of managing their courtrooms. Those are so much more fundamentally important than just simply ticking off a box about where you used to work. I just don't think it plays out that way in real life. Okay, Shakir, your view on how political, capital P political, the current judicial appointment system is. Well one thing I would add to what's been said is it's actually difficult in Canada to label a judge as liberal or conservative in the same way that you sometimes see down south.

There are judges appointed by political parties of all stripes who have ruled against the governments in power in terms of the political party that appointed them. Similarly, we have judges who are appointed by a government that had one party and then elevated by a government that was in control of another party. And so I think it's harder in this country to sort of break down our judiciary in the same way that occurs in more politicized systems. And we should be proud of that. And we should be trying to maintain and uphold that.

It's less overtly partisan than in the United States, I guess, is what I hear you saying. Certainly. And part of the reason is those judicial advisory committees that we just spoke about. Doug Ford did draw a connection when he had this press conference. And he, as you said, he went off on a rant.

And that's what he called it. He talked about a direct connection between electing judges and judicial accountability and he basically said I'm a politician I have to get elected and therefore I'm accountable these judges are not accountable to anybody and can do whatever the heck they want including overruling my government's decisions which he didn't love. So let's get into that Donna Kellway how accountable are judges nowadays and to whom? Well, there is accountability because if they improperly apply the law, then they can be

appealed. If they have acted inappropriately, then complaints to the judicial council can be made. So there's a, it's accountability through elections doesn't, doesn't answer that. Appeals or complaints to the judicial council can, and we have no reason to, what we need to make sure that we have our proper resources to ensure that cases are properly put before the courts and that we can have the resources to appeal them if that's what's warranted in the circumstances. Peter, your view on judicial accountability? Yeah and I'd like to say a few points about politicization as well. I'd say with respect to accountability, no, I certainly agree. Look, it's even stated as a result of the Valenti decision in Ontario that, in Canada, I should say that judges must have security of tenure, financial independence, and administrative independence.

So there's no question. And Donna's referred to, if they improperly apply the law, they could be held accountable. But this question of whether the judiciary is politicized in Canada versus not, I would certainly disagree with that. I think we just have a less robust, ideologically diverse judicial culture here. So you would disagree with what? The idea that our judicial system here is less overtly politicized.

I think it's just more ideologically captured by a certain strand of judicial interpretation. Which strand? Living Tree style of interpretation wherein the meaning of concepts and words can change over time that isn't as deferential to the will of the legislature, these sorts of things. Whereas in the US, through the efforts of the Federalist Society and other entities, they have, through a very long time, just like what's really occurred in, I think, you know, academic fields in general since the 1960s onwards, there's been a long march through the institution and they're not ideologically diverse. They're quite strongly liberal and left-leaning.

That's what I was going to get to. Are you essentially saying that the justice system in Canada has been captured by left-leaning. That's what I was going to get to. Are you essentially saying that the justice system in Canada has been captured by left-wingers at the expense of more conservative-minded people? Yeah, I think it's fair to say, and you can certainly see that in the opinions that have come down, that, look, the balance of decisions skew heavily liberal.

And it's even reflected in the design of the Charter. The Charter is kind of like a Pandora's box. Terms are very imprecisely defined, concepts are quite vague and that was you know even deliberately so. So that the judiciary could very creatively construe novel interpretations and expand the law whereas I think and a lot of people think that should be left to the legislature. Okay it's on. What do you think? Well there's certainly I think there's a fair argument that some cases, some judges

have taken the law further than the legislation would have permitted and our Supreme Court of Canada has endorsed that approach in certain cases especially defining various rights that individuals have they've read in rights that the legislation has not read in themselves or written in initially so some would argue that that goes beyond what the powers of a judge could be we have a charter which is definitely necessary to ensure that the government doesn't overreach and doesn't do things that they can't do. But that's different than saying the government hasn't done this and we're going to actually expand the breadth of the law.

So I mean that argument is out there and I appreciate it exists. But I think what people need to understand is that the vast majority of the work the judges do isn't interpreting laws and it isn't crafting national policy. That may happen in less than, I would say, 1% of all cases and perhaps less than one-tenth of 1% of cases. Those are the ones that make the papers though. Well, perhaps, but 99% of what needs to be done to keep the system afloat is to run the system fairly, compassionately,

and efficiently, and to apply the law fairly and evenly. So if we have a bunch of intellectualization and politicization of our judiciary, we're never going to get through cases. And when we talk about giving victims their day in court, getting defendants their day in in court we're not even going to be able to do that if we spend a bunch of time arguing about what social policy should be so we take very small examples maybe less than ten cases in the history of Canada and we use that to support a finding that judges are overly involved they're they're getting into the mix too much. They're legislating.

And that's happened so infrequently. And it's had such a disproportionate impact on public discourse about it that we actually forget what the role of judges is. But I think Peter's going beyond that. And Shakir, I want to put it to you. I don't think I'm putting words in his mouth when he says, probably organizations like yours he's got in mind,

that have made the justice system in Canada overly progressive, too beholden to the left side of the political spectrum at the expense of more conservative minded thinking people. Guilty or not? Well, you know, I think there is a few points to tease out of that. The first is that there's a difference between whether

judges are political in the sense that we can predict the outcome of a decision based on the party that appointed them or their perceived political affiliation and what kind of judicial philosophies are in place in terms of how judges make decisions. So something like the living tree doctrine has been settled law in Canada for over 100 years. Now, some people might feel that according

to their perception of how society should look or what is the right decision to make, that isn't the correct approach to judicial interpretation. But that's not a liberal issue. That's not a conservative issue. That's not a left or right issue. That's a perspective about how law should be interpreted. And the fact that our system takes a certain approach,

whereas other systems might take another, is not in and of itself an indictment of partisanship or a system that's too political. The other point I would make is that you know if our system was so ideologically captured per se we wouldn't see multiple dissenting judges on the Supreme Court of Canada in many decisions. There are close cases often, there are courts of appeal that are overturned, there's a lot of disagreement in our judicial system. And so I think the idea that every judge is sitting there lockstep making the same decision is

belied by the fact that we have a diversity of opinions reflected in the judgments that come from our courts. Donna, can I get you on that? Well, ultimately, there is a fundamental commitment to our Charter of Rights and Freedoms. And if that is considered more left-leaning, it's the constitution of our country and our judges are bound to uphold it. And I wanted to actually get back to something else that Boris had said earlier. If I can get a word in on our crowns and crowns, the appointment of crowns, but

crowns, it's very important that the public understand when we have defense counsel on one side representing the rights of their clients. Crowns aren't a counsel for the complainant. They're not counsel for the alleged victim in the case. They represent the public interest and they're doing a job in which the focus is actually not on winning or losing, but in ensuring that the trial process is fair and that it's fair for all the parties involved, including the accused. So when we're looking at a merit-based system and we're looking at one aspect of qualifications.

That's a really important aspect to look at. And again, I 100% agree with what Boris said. That certainly doesn't make it that you would be any more likely to be a convicting judge or a law and order judge. You would be a judge who is properly applying the law and being an impartial one at that. OK, I take your point.

Peter, I want to come back at you one more time and see whether or not, based on anything you've heard here, you want to bevel the edges of your last answer, or also taking into account the fact that the Charter does have a notwithstanding clause that if governments don't like decisions judges have made for, in your view, because they're too liberal, they can opt out of them for five years. Yeah, well, we hope to see, you know, there's some pending cases with whether the notwithstanding clause is involved,

whether or not the courts will, you know, respect that or deny it. I would say, you know, just returning to this question of politicization, I mean, the political fact, I would say just returning to this question of politicization, I mean, the political fact, I would say, it's a fact that judicial appointments are inherently political and different philosophies fall on different sides of the political spectrum. But it's not incompatible with merit. I think the issue is that it's further back.

It's the pipeline. it's the law schools, that's where there's a lack of ideological diversity that I would say is not representative of the society at large. And so I think efforts should be made here in Canada to do what the Federalist Society has done in the states and I hope hope to have more news on that front in the months and years to come. We shall stay tuned. We've got about five minutes to go here, and I want to see if I can get one more issue on the table. And that is, again, we hear the Premier of Ontario from time to time, and Boris, why

don't you take this one on first. He rails against judges whom he says, you know, we arrest somebody, we get them before a court, they're out on bail, and they're back out there committing crimes right away. How accurate is that? It's completely inaccurate. We have an extremely conservative system of bail. In fact, I'll go further. I'll say I think our system of bail is quite broken. It's just not broken in the way that most people talking about the issue publicly think it's broken. We do a very poor job of

giving people timely bail hearings. There's no doubt that some people need to be detained but we need to get to that decision quickly. Right now our population of inmates in detention centers in Ontario has basically tripled since the early days of the pandemic. We're eleven and a half thousand people in provincial facilities, 86% of which, of whom have not been convicted of a crime, of the crime that they're in custody for. And they may be waiting in prison how long? A waiting trial?

Months. Months. And it's not just waiting trial, they're waiting bail hearings. And so what happens is if it takes you two weeks to release somebody that should have been released on the first day, they may have lost jobs, they may have lost shelter, they may have lost treatment beds, they may have lost all sorts of things. I mean the criminal law as I said 99% of cases are not glamorous, they're routine and people end up in the criminal justice system often because of poverty, mental illness and things we

don't like to talk about. And if you take away somebody shelter, treatment bed, community supports, broadly worded, we're creating bad outcomes. We're gonna make our society more dangerous, not less dangerous. And so I think we just really need to refocus. Sure, let's detain the people that need to be detained, but this suggestion that we just let people out on bail all the time just because it's a revolving door

is simply fiction. It's not true. These are political sound bites. They're not based in reality. And I think the public needs to be more aware of that. Donna, let me get your view on whether we have a broken bail system, and if we do, which way? What we need to ensure is that we're properly resourced.

I want to ensure that my crowns are properly prepared to run their bail hearings, that they have the resources they need to ensure that they can run bail hearings, that they can pursue charges when individuals have breached their bail, that in the proper circumstances that they are able to bring bail review applications, it's all a matter of resources. And so if there are, when there are special bail teams created, they're wonderful, but I want to make sure that they don't take resources away from where they're needed elsewhere. I want to make sure that when one part of the system is properly funded, that it's not

robbing Peter to pay Paul. I want to make sure that my crowns aren't taken away from the front lines in terms of preparing for trial because we need to have bails in a timely manner and then we also obviously have to have trials in a timely manner as well. Do we have a bail problem in this province? Yeah a lot to agree with from my comments colleagues and I would say that Ontario has started doing its part to increase resourcing and you know they've just put forward in the Safer Streets Act intensive and specialized bail teams.

I would say that there was justified reason to lobby the federal government to make changes, to create reverse onuses for bail, which they did in Bill C-48, because there'd been many egregious examples. They may not be every case, but there have been some egregious examples. There may not be every case, but there have been some egregious examples of people who've received bail and shouldn't have, and many officer deaths that led to this.

I think, unfortunately, the provincial governments should also focus on sentencing, not just tougher penalties, but consistency, which is also a matter of judicial philosophy and whether there's a lot of leeway in judicial interpretation that I think a more you know text-based approach judicial interpretation would fix but that requires you know judicial appointments over time and a change in judicial philosophy through the law schools as well. Last word to you Shakir.

Steve did you know that no jurisdiction in this country actually collects standardized data about the bail system? Nobody can tell you, here's a number of people out on bail who have allegedly re-offended. Here's how many of those alleged offenses actually resulted in a conviction. We simply do not collect the information. So what happens instead?

A few stories are taken, relentlessly highlighted by some, and they become our perception of what is reality. When in fact there are tens of thousands of people who are released on bail in this country who never commit an offense. Judges who make the right call, the right decision, but we never hear about those cases in the same way. So do we have to address certain high-profile incidents that do raise

public safety concerns? Of course but we can't do so at the expense of an accurate understanding of our system and that's the risk when we take this rhetoric about judges are letting everybody off free and clear. We need to collect the data to make sound evidence-based policy. I hope but now that the public has had a chance to hear what the four of you have had to say that they have, as you put it, a more accurate indication of what's going on in our justice system. Thank you, Mr. Director. That's what I was going to ask you for, a nice shot where we can see all of our guests

so I can thank them all for appearing on TVO tonight. Many thanks, everybody. Thanks for having me.