At an April 28 news conference, Attorney General Doug Downey and associate attorney general Michael Tibollo said some of the proposed changes will be contained in legislation to be introduced later this week and will include measures to “streamline” the judicial selection process, appoint additional judges to the Ontario Court of Justice, and create dedicated prosecution teams for serious crimes.
Changes to the judicial appointments process would include a new pool-based recommendation system for judicial positions that the government said would speed up appointments to the Ontario Court of Justice, according to an April 28 news release.
The government said the changes would also require the Judicial Appointments Advisory Committee to consider criteria set out by the attorney general when reviewing and evaluating judicial candidates.
It added that 17 more judges will be appointed to the Ontario Court of Justice in an effort to keep pace with a growing number of complex cases and address the existing backlog of criminal cases.
The government also promised to strengthen its ability to prosecute serious crimes by creating a new cybercrime and cryptocurrency prosecution team to support police investigations and prosecute major cybercrime cases. It is also planning to expand dedicated guns and gangs units in some regions of the province in a bid to increase border security and slow the flow of illegal firearms coming into Canada.
The Provincial Gun and Gang Support Unit, which provides early advice to police investigations, has also been made permanent, said the government release.
Boris Bytensky, a partner with Toronto-based Bytensky Shikhman Criminal Lawyers and president of the Criminal Lawyers’ Association, welcomed news that the government plans to appoint additional judges and improve its specialty prosecution teams.
But Bytensky said that spending by the government in recent years to expand the number of police, Crown attorneys and judges should be balanced on the defence side by investing in legal aid and facilities like courthouses.
“We need to ensure that the legal aid plan is adequately funded so that lawyers’ rate of pay and the number of hours that are allocated to their files are appropriate given the complexities of litigation nowadays and the fact that everybody else’s budget is growing to ensure that the cases are being prosecuted vigorously and investigated in great depth,” he said in an interview with Law360 Canada.
Inadequate funding for defence counsel will fuel the exodus of lawyers leaving criminal justice work and increase the already high number of self-represented litigants, which will only add to court delays, he explained.
“We’ve quadrupled the number of self-represented individuals in the last six years or so, and that’s put an enormous strain on our criminal justice system,” said Bytensky. “The system itself will continue to have problems unless you fix all the aspects of it, not just one.”
He said the government’s proposed changes to the judicial appointment process may be driven more by tough-on-crime rhetoric designed to appeal to its voter base than practical considerations.
In hopes of creating a tough-on-crime judiciary, Bytensky said the government has significantly increased its selection of judges from among senior Crowns, which has left more cases in the hands of less experienced prosecutors.
“You now have a smaller number of capable prosecutors and a larger pool of inexperienced and less capable prosecutors who are there to prosecute more and more cases, which it cannot,” he noted.
“It must result in fewer successful prosecutions, if you’re looking at it from a law-and-order perspective,” he added. “And it must result in more cases being prosecuted less efficiently. It can’t be good for those who would advocate for a tougher-on-crime agenda.”
Bytensky said it is also difficult to predict how newly appointed justices will decide on cases once they have their judicial independence.
Amanda Ross, chair of the Ontario Bar Association’s Criminal Justice Section and a partner with Toronto-based Goldbloom Ross Cunningham LLP, also expressed concern that the government is putting politics ahead of sound justice policy.
“The fundamental failure of ‘tough on crime’ policies is that they are in reality geared towards accruing political capital with voters as opposed to actually preventing crime or keeping communities safe,” she said in an email to Law360 Canada.
While welcoming more judges, she said the government also risks undermining Ontario’s respected, merit-based judicial appointment process by allowing the process to be steered by political factors.
“The premier rightly faced criticism last year for saying that his government intended to appoint ‘like-minded’ and ‘tough’ judges,” she said. “Losing an independent judiciary, particularly when democracy is under attack around the world, is too high of a price to pay for satisfying a political catchphrase.”
Ross added that a genuine effort to reduce crime can never be a quick fix for political points.
“If the government’s actual priority is reducing crime and community safety, this would be far more effectively accomplished by addressing root causes of crime, including housing and mental health supports,” she said. “However, that takes real money, time and investment.”
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