Justice Act amendments come up short on judiciary selection

By Tony Poland, LegalMatters Staff • The provincial government’s proposed Accelerating Access to Justice Act, 2021 has much to offer but falls short when it comes to judiciary appointments, says Brett Harrison, president of the Toronto Lawyers Association (TLA).

“By and large most people in the profession will appreciate these amendments. There are plenty of meaningful revisions,” Harrison tells LegalMattersCanada.ca. “This bill is moving in the right direction, making positive, incremental changes to augment other incremental changes. But the work needs to continue and hopefully will.”

Last month, the Ontario government introduced legislation designed to improve access to the justice system. The plan includes: 

• Giving the Attorney Generally more influence in the appointment of judges;
• Permanently allowing the virtual witnessing of wills and powers of attorney;
• Promoting the interests of children by giving them a greater voice in the court process, and better focusing resources of the Office of the Children’s Lawyer; and
•  Increasing access to justice in French by expanding and guaranteeing the ability of Francophones to file documents in French at all Ontario courthouses and for all matters, including civil and family law.

‘Faster access’

“Justice accelerated is justice delivered. No matter where you live in our province, the growth and well-being of our communities demands easier and faster access to a justice system that works for people,” says Attorney General Doug Downey. “The advancements we are proposing to adopt in this bill will benefit people across Ontario by saving them money and reducing the time they spend waiting for their day in court.”

However, Harrison says while the proposed bill offers improvements intended to streamline the judicial system, the Ministry of the Attorney General (MAG) should not expect a ringing endorsement of its proposed process to appoint the judiciary.

“I would prefer to give more power to an independent committee to make these selections,” he says. “We have moved away from having politics involved in the appointment of judges for some very good reasons. If nothing else, for the appearance of propriety. People also feel that it’s more merit-based if politics is not involved in the selection. “

Harrison says the challenge with the system being proposed “is that there is more discretion in the hands of the attorney general than there was before.”

Important for democracy

“A strong independent committee that makes recommendations and limits political discretion is preferable,” he says. “There is a significant academic literature to support the contention that is a better way to get a strong, independent judiciary, which is important for any democracy.”

Harrison says MAG presented its plan for the bill last year and sought input from the bar.

“The bar’s response on many of the proposals was positive except in regard to the appointment of the judiciary. To his credit, the attorney general took that constructive feedback and made amendments to that particular aspect of the bill, which I think are certainly less intrusive,” he says. “However, many people at the bar still believe it would be better if the selection was left more in the hands of an independent committee than a member of the government.”

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Harrison says the majority favour the old process “because the attorney general had quite limited input into the selection process.” In that system, MAG was given a choice of two possible appointments chosen by the bar. In the proposed process, the attorney general gets to pick from six candidates, and can send the list back if he does not like any of the candidates.

The problem, he explains, is a longer list of candidates to choose from, and which can be sent back, could increase the likelihood of political views entering into the decision-making process.

‘Some concern’

“I’m not impugning any individual. The problem is, even if this particular AG and this particular government doesn’t use their discretion in a political way this new system allows for more political influence,” he says. “There is some concern because people don’t want politics involved in the appointment of judges.

“We have an excellent judiciary in Ontario and in Canada. The reason for that is because we’ve had a merit-based system for a number of years,” Harrison adds.  “We don’t want to lose all that ground that we’ve gained.”

He says there is reason for optimism for other changes in the proposed bill, including improvements to allow bilingual access to the courts and amending the rules “so that we can finally serve documents electronically instead of relying on a fax machine.”

Harrison also praised reforms to estate law, which allows for remote witnessing of wills and powers of attorney.

He says the TLA welcomes the technological advances forced on the judicial system by the coronavirus pandemic.

“Obviously we would like to continue the rollout of online services, such as the ability to file materials electronically and to interact with the court system,” Harrison says. “Frankly the justice system in Ontario was ripe for reform. We’re moving in the right direction by incorporating technology and the AG has been beating that drum pretty heavily. His position is that we need the courts to come into the 21st century.”

He says technological advancement comes with a price tag that past governments had been avoiding. 

Added funding

“Historically there hasn’t been an interest in adding more funding to the system, which is necessary to adopt technology,” Harrison says.  “The position of the bar is you’ll recover it in the long term.”

However, he says as the legal system moves forward with technological advances, it is essential to “keep in mind that we have processes that are there for a reason and that we should not streamline checks and balances out of existence.”

Harrison says the proposed act “by and large will do exactly what it is intended to do, which is accelerate access to justice.” 

“There have been a number of pieces of legislation passed and amendments to the Rules of Civil Procedure, which provide for electronic service,” he says. “Incremental change is the right way to do it. We don’t want to wait for perfection, and we don’t want to have to do everything all at once. It makes more sense to consistently look for ways to make improvements.”

More from the Toronto Lawyers Association:

• A new type of paralegal will not improve access to justice: TLA