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Mark Harding: There’s nothing controversial about a conservative premier appointing conservative judges

Commentary

Premier Doug Ford has been criticized by members of the legal community for adding two former political staffers to the committee that helps select Ontario judges and justices of the peace. Ford defended the move, saying he wanted “tough” and “like-minded” individuals in those judicial offices considering the rise of violent crime in the province. In particular, Ford’s claim that he was not going to appoint “some NDP or some Liberal” to serve on the committee drew the most media ire. Ford’s political opponents and members of the legal community criticized his government for politicalizing the courts, undermining meritocratic standards, and threatening the independence of the judiciary in a fashion more associated with American judicial politics. 

The reaction to Ford’s comments was reminiscent of past controversies regarding political involvement in judicial selection. The media coverage of this story struck me as part of a familiar pattern: conservative governments are criticized, especially by members of professional legal associations, for trying to appoint judges who share their perspectives, particularly in the context of criminal justice matters. My research on the Harper government showed similar media trends to those involving Ford over the last few days. 

In the 2006 election, the Harper government campaigned to do more to address violent crime in Canada. Part of the government’s approach was to find ways to appoint judges who would impose stiffer sentences on those convicted of serious crimes and who would be more deferential to Parliament in driving policy decisions around criminal justice matters. The Conservative government made changes to the process for selecting superior court judges (apart from the Supreme Court of Canada) by appointing a representative of law enforcement to the committee to vet judges, having candidates ranked on a binary “recommend” or “unable to recommend” scale rather than as highly qualified, qualified, or not qualified, and shifting the balance on the appointment committee in favour of representatives selected by the government, instead of the members of the legal community. 

When these changes were announced, members of the legal community (most prominently the Canadian Judicial Council) denounced the changes for not consulting the legal profession, diluting the quality of judicial candidates, and undermining judicial independence. During the Harper era, various legal scholars criticized the government’s changes to the selection process as ideologically motivated and lamented that the government would curb the influence of members of the legal community from having an outsized role in recommending names for judicial appointments.

The reaction to Ford’s comments last week, along with his government’s 2021 reforms that enhanced the attorney general’s discretion over to make selections by increasing the shortlist from two to six candidates and a greater discretion over which laypersons would serve on the advisory committee, faced similar criticisms as Harper faced early in his mandate. Critics have once again trotted out the argument that Ford’s changes are ideological, partisan, and will affect the quality of the judges selected.

Ford’s (and Harper’s) critics miss several salient points when considering the politics of judicial selection. First, courts are political institutions. It should be stressed that politics and partisanship are not the same thing. The courts are political in the sense that, like other political institutions, they make decisions that reflect the community’s values and differing views of justice. As Emmett Macfarlane has written, “judicial decision-making, while necessarily distinct and independent from explicit politics, carries political weight”; he argues that judicial appointment processes should be transparent “not in a way that attempts to falsely depoliticize it but in a way that makes us aware of the nuanced ways that politics matter.”

This is particularly salient given the controversy over Ford’s comments. Several outlets criticized a 2019 TVO interview where Attorney General Doug Downey articulated that as the minister responsible, the appointment process should allow him to select qualified individuals who share his government’s values, such as victim’s issues. Downey’s comments and Premier Ford’s desire for individuals to vet judicial appointees for shared perspectives are different from partisanship (despite Ford’s somewhat crass framing as not wanting Liberal or NDP supporters involved). 

Second, given our system of ministerial responsibility, the process for appointments will always be subject to some form of indirect political and democratic control. Notably, critics of both the Harper and Ford governments’ changes explicitly articulated their concerns that the changes have diluted the influence that members of the legal establishment have over vetting who ought to be considered for appointment to judicial office. For instance, when the Harper government made its judicial appointment changes, University of Ottawa Law Dean Adam Dodek, criticized the changes to the committee structure, saying that the government “reduced the role of legal elites not in the name of democratic participation but for greater government control instead.” 

The Ontario Courthouse at 361 University Avenue in Toronto is photographed on Monday, May 2, 2022. Christopher Katsarov/The Canadian Press.

Similarly, when the Ford government made some analogous reforms in 2021, John Struthers, president of the Criminal Lawyers Association characterized the changes as “a perversion and a corruption of the appointment process, that everyone in the system opposes.” In particular, Struthers was critical of the changes that allowed the attorney general to select lawyers to serve on the committee from various professional associations (namely the Law Society of Ontario, the Ontario Bar Association, and the Federation of Ontario Law Associations) rather than being able to select their own members. Struthers’ vice president at the CLA lamented that “rather than those organizations having independent choice over their representatives, it’s now subject to the AG’s approval.” 

Even less restrained was, Douglas Judson, chair of the Federation of Ontario Law Associations, who said, “We would expect [Ford’s] commentary from a MAGA Republican, not the premier of Ontario.” The heated rhetoric used to characterize these changes reflects not just a disagreement over the institutional design of the committee structure but also a recognition of the loss of the legal profession’s control over a process that had gone unchallenged since the committee process was formalized in 1994. 

The Trudeau Liberals’ 2015 platform explicitly stated that it would improve the government’s relationship with the judiciary, thus ending the contentious Harper era. The Trudeau government largely undid all the Harper government’s reforms to judicial selection and was lauded by some in the legal profession. In the ensuing years, the federal Liberals have been in hot water over evidence of patronage and cronyism. Reporting from 2019 revealed that the PMO was screening candidates for judicial appointment through the party’s funding database (“Liberalist”). A subsequent and even more thorough investigative study found that donations from judicial appointees flowed disproportionally to the Liberal Party. These controversies have not generated the same calls for reform from the legal associations as these scandals pertain more to graft than to an attempt to change how judges are selected. It is sufficient to say that choosing sympathetic judges is a bipartisan practice at this point.  

Zachary Patterson: University ‘decolonization’ is a threat to academic freedom

Commentary

Across the country, the “decolonization” of curricula, and indeed universities themselves, is being advocated as necessary and adopted with seemingly little resistance. The most recent high-profile example of this is Concordia University, which released a five-year strategic decolonization implementation plan. Its priorities, among others, are to “critically evaluate and decentre Eurocentric knowledge systems across all academic programs university-wide.” Moreover, this is to be achieved by “cultivating a ‘collective critical consciousness.’”

Universities receive large amounts of public money. Unlike private sector companies, political parties, or non-governmental organizations, they are funded to provide society with a neutral and disinterested perspective on the world and how it functions.

Academic freedom enables universities to fulfill this role and their missions as truth-seeking institutions. It does so by protecting professors from universities interfering in their scholarly activities. It’s necessary because it frees professors to openly pursue, teach, analyze, and debate important questions, even those that might challenge the status quo. 

This allows for the rejection of wrong ideas while strengthening our understanding of truthful ideas. It has been an important ingredient to the secret sauce that has contributed to the incredible advances in knowledge since at least the Enlightenment.

Academic freedom is most commonly associated with the right of professors to express themselves without suffering repercussions from their universities on topics considered to be controversial. In this respect, it is epitomized by the well-known “Chicago Principles.”

Equally important for academic freedom is the political neutrality of universities. This is essential not only because universities are publicly funded, but because non-neutrality itself impinges on academic freedom. In fact, the University of Chicago also articulated this important principle in its Kalven Report.

When universities take political positions or support political causes, they implicitly and, often explicitly, interfere in the teaching, research, and commentary functions of those who work there. If you were a professor and your university took a public position on a topic, would you feel more or less free to teach, comment on, or pursue research that comes to different conclusions than those of your university?

Some argue that universities have a right and even an obligation to influence teaching and research through training on the use of new equipment and technologies, or perhaps best practices. This may be true if done neutrally. But what if the university insists on promoting political ideologies in teaching and research?

This question is central to discussions around “decolonization.” While many things could be said about the notion of decolonization and the Concordia implementation plan, it’s difficult to argue they are politically neutral.

The first sign giving the game away is the word “critical.” This is not “critical” as in critical thinking that we expect to be at the centre of a university education. No, critical here refers to “Critical Social Justice.” It’s a mix of neo-Marxist “critical theory” and postmodern theory. Its aims are variously to disrupt and subvert society with no less a goal than overthrowing Western Civilization.

If that doesn’t seem political enough, the term “critical consciousness” comes directly from the influential neo-Marxist educational theorist Paulo Freire. Freire believed that education was an inherently political act and that it should be undertaken to cultivate the critical (i.e. neo-Marxist) consciousness of students with the aim of turning them into revolutionaries.

People take part in a protest next to the James McGill statue in Montreal, Saturday, August 1, 2020, where they called on the university to take down the statue. Graham Hughes/The Canadian Press.

The term “decolonization” draws on the same “critical” roots as Freire through well-known post-colonial theorists like Edward Said and, most relevant here, Frantz Fanon. Fanon was a Marxist decolonial theorist. Among other things, he is known for having justified and defended the use of violence and terrorism in conflict against “colonizers.” If he was not the intellectual inspiration for Hamas on October 7th, he is for many sympathizers of Hamas on university campuses across Canada.

As such, Concordia’s decolonization plan (as well as other decolonization initiatives at universities across the country), with its reach “across all academic programs university-wide,” seeks to advocate for, and directly impose, a radical political ideology onto university teaching and curriculum. It also implicitly imposes the ideology on research and public commentary. But these activities are exactly what academic freedom is intended to protect—even from universities themselves.

Such interference is antithetical to the entire mission of the university as a dispassionate, rational, truth-seeking institution. And besides violating academic freedom, these initiatives betray the public’s trust. Moreover, the vast majority of the Canadian public appears to disagree with the ideology inherent in these initiatives.

Since universities function and are funded at the pleasure of the public, they should refrain from undermining their core functions through the imposition of radical ideologies on faculty and students—unless, that is, they seek to be defunded.