Doug Ford’s ignorant comments about judges imperil justice system

Brandon Trask*

On April 30, Premier Doug Ford went on a surreal and revealing “rant” about judges, saying that he’d pay “bleeding heart” judges to “retire earlier.” He criticized court decisions and proceeded to say, “[Y]ou can’t have judges constantly overruling the government,” arguing that because elected officials pass laws, unelected judges should have no authority to review those laws.

Ford’s statement offering to pay judges he disagrees with to resign, so as to create judicial vacancies his government could then fill with presumably more “like-minded” individuals, is dangerously close to constituting a criminal offence. In fact, there are multiple Criminal Code provisions to consider: s 124 (which prohibits the purchase of a resignation from office, including a judicial appointment), s 120 (which prohibits giving any money to interfere with the administration of justice), s 119 (which includes prohibiting giving any money to a judge to have them omit to do anything in their official capacity), and s 423.1 (which prohibits any conduct intended to provoke a state of fear in a justice system participant).

His comments also risk undermining the right to a fair hearing by an independent and impartial tribunal, should judges and justices of the peace in Government of Ontario-appointed positions feel pressured to decide cases in a particular manner for fear of somehow losing their positions.

Aside from these considerations, Ford’s comments demonstrate the lack of even the most basic understanding of how our legal system operates. Canada has a rule-of-law system, which includes respect for rights and liberties, as well as a recognition that no one is above the law.

As Justice Frank Iacobucci wrote in Vriend v Alberta, [1998] 1 SCR 493, “our Charter’s introduction and the consequential remedial role of the courts were choices of the Canadian people through their elected representatives as part of a redefinition of our democracy.” The Canadian brand of democracy is more than simply majority rule.

What Ford seems to take issue with is the existence of constitutional guardrails, within which his government and others across the country must operate (unless, of course, they invoke the notwithstanding clause contained within the Charter).

In a famous (or infamous) scene from Anchorman: The Legend of Ron Burgundy, Will Ferrell’s character set out the ground rules for a street fight involving several television reporters and anchors: “No touching of the hair or face.” Everyone agreed. The ensuing fight demonstrated the wide latitude of strategies remaining available to the combatants.

Like the characters in Anchorman, provincial governments, as well as parliament, have a great deal of autonomy and discretion in how they approach their roles. However, they need to respect the ground rules outlined by the constitution, including the Charter—unless they decide to expressly invoke the notwithstanding clause to advertise that they are passing a law that they know could violate important rights and freedoms of individuals.

Unfortunately, rather than use his opportunity at the podium after Ford’s comments to “encourage public respect for […] the administration of justice,” as is required under the Law Society of Ontario’s Rules of Professional Conduct, Attorney General Doug Downey jested that Ford’s remarks were in fact restrained, saying, “You should see what he says in private.”

While the Attorney General of Ontario is unique in the country in being granted immunity from Law Society discipline in relation to “anything done by him or her while exercising the functions of such office,” it could certainly be argued that attending a press conference at which the Premier of Ontario derided judges and imperiled the justice system, while making an unfunny joke about the situation, would not fall within the (apolitical) “functions” of the office of Attorney General.

The great irony here is that individuals like Premier Ford and his Attorney General claim to be on the side of law and order—they just don’t seem to want those laws to apply to them.

*Brandon Trask is an associate professor at the University of Manitoba Faculty of Law and a former Crown prosecutor.

A judge makes a point