EDITOR’S NOTE: This article originally appeared on The Trillium, a Village Media website devoted exclusively to covering provincial politics at Queen’s Park.
The Province of Ontario will begin collecting statistics on bail set up by judges and justices of the peace, and the premier is promising they will "be held accountable for the decisions they make."
The Canadian Civil Liberties Association (CCLA) and prominent lawyers immediately raised concern about the premier's remarks.
"The prospect of any politician suggesting that judicial officials will be subject to discipline or sanction if they interpret or apply the Charter in a way a politician dislikes is an unacceptable and dangerous attack on judicial independence, the constitution, and the rule of law," said Shakir Rahim, director of the CCLA's Criminal Justice Program, in an emailed statement.
Ford made the comments at a press conference in Mississauga on Monday, where he touted the $134-million purchase of five new police helicopters for use in the Greater Toronto and Ottawa areas. The helicopters are part of the government's efforts to crack down on auto thefts and Ford has frequently blamed the justice system for rising auto crime, arguing a catch-and-release bail system allows offenders to repeat their crimes.
He said the same on Monday.
"We have some of the greatest (justices of the peace) and judges in the country, and I love the justice system, the court system, but there's some that continuously give people bail — not once, twice, three times, four times, five times," he said and added he'd directed the attorney general to collect statistics on bail granted by judges and JPs, including for repeat offenders, earlier that morning.
"Because what I'm hearing on the streets — they arrest someone and they're out on bail, vast majority of the time, just to repeat the heinous crimes," he added.
Asked about concerns for the independence of the courts, Ford replied: "They're always independent, but who holds them accountable?"
"How do you like someone banging in your door, putting a gun to your head and finding out later that they're out on bail four or five times?" he continued. "And they're mocking the police in the back of the cruiser saying, 'By the way, I'll be out on bail by the time you start your next shift.' There has to be accountability at all levels starting from the ... Prime Minister, the premier, and police chiefs and the courts. Courts aren't exempt. They have to be held accountable for the decisions they make."
Asked if was intending to remove justices of the peace (JPs) or judges from the bench based on their bail statistics, Ford did not rule it out, or endorse the idea.
"Well, let's first measure," he replied. "There's no measurement going on right now."
Two lawyers who spoke with The Trillium were alarmed by Ford's comments about holding judges and JPs accountable but agreed that the province should do a better job at collecting data on the justice system.
Douglas Judson, chair of the Federation of Ontario Law Associations (FOLA), said it would be "good news" for the province to invest in systems to appropriately capture data about the progression of cases through the criminal justice system to address some of its failings, such as when serious charges are dropped due to court delays.
But the good news in the premier's remarks stops there, he added.
While the premier wasn't clear about what he meant by "accountability," Judson said the idea that a politically driven system could be used to sanction a judge or JP or remove them from the bench is "clearly disturbing."
"It really attacks a foundational principle in how our system operates that every person who goes to court is entitled to have their matter for by an impartial and independent decision maker, not someone who's concerned about what the government of the day thinks of their decision," said Judson.
There are processes through two provincial councils to remove judges and JPs from the bench over issues with their conduct, but they are non-political, he added.
Michael Spratt, a prominent criminal lawyer who has accused the Ford government of interfering in the justice system before, also said the province should collect better data and he criticized the premier for drawing conclusions about the bail system before he has it.
"We shouldn't be basing decisions or policy positions on anecdotal evidence, or apocryphal tales told by your police buddy," he said.
The premier's comment about holding JPs and judges accountable is "chilling," said Spratt.
"It completely flies in the face of the independence of our judiciary — it is a scary statement from an uninformed man with power," he said.
There is already accountability in the justice system — an incorrect decision on bail can be appealed by the prosecutors who work for the provincial government, he said.
"I can't imagine what Ford would mean beyond that unless we turn our minds to, you know, truly dark and deeply undemocratic measures," he said.
The premier sparked controversy earlier this year when he was asked about two apparent patronage appointments his government made to the committee that recommends lawyers for the attorney general to appoint to the Ontario Court of Justice. Ford responded by saying he'd done it to get "tough" judges and JPs on the bench.
"I'm putting in like-minded people that believe in what we believe in, keeping the bad guys in jail, and I'm proud of the job that they're doing. I'm gonna continue doing it," he said. He has since "doubled," "tripled," "quadrupled" and "quintupled" down on the statements, which his attorney general, Doug Downey, has defended as well.
Those comments were met with widespread concern in the legal community, including from a retiring judge, over the independence and neutrality of the court.
The Trillium has previously reported that there are more Conservative-connected appointments than the two that ignited the controversy and include most of the lay members the government has appointed to the Judicial Appointments Advisory Committee and Justices of the Peace Appointments Advisory Committee, which assist in the appointments of judges and JPs, respectively.
The Globe and Mail has reported that former prosecutors make up most of Ford government’s judicial picks and The Trillium has reported that the government has appointed an increasing number of former police officers as JPs.
Spratt said he's seen a pattern in the premier making comments that "lack intellectual rigour" and accused him of "playing politics" with the justice system.
"When these institutions are broken, they're very, very hard to fix and repair," he said. "If he cares about democracy, and if he cares about the criminal justice system, he needs to be more careful in his comments."