Outside his residence in Florida, several weeks ago, a former United States president made sure the cameras were running, raised his fist in the air and then verbally slammed Judge Arthur Engoron. The justice of the Supreme Court of New York had just handed down his ruling in the civil business-fraud trial against Donald Trump. The former president reacted.
“A crooked New York State judge has just ruled that I have to pay a fine of $355 million for having built a perfect company,” Trump said, and he went on to call New York Attorney General Letitia James, who initiated the case, “totally corrupt.”
If any politician, no, make that if any individual had said that in Canada, she or he would have been charged with contempt. Contempt in this country is when a person fails to appear in court, fails to comply with a court ruling, refuses to testify in court, or interferes with the process of the courts. It’s also ruled contempt if anyone criticizes the administration of justice, or, as in the case of Donald Trump, when one criticizes the conduct of a judge or suggests the judge had improper motives. In Canada anyone found guilty of contempt faces a fine and imprisonment. Period.
I am not a lawyer. But 25 years ago, when Centennial College’s school of communications approached me to teach entry courses in print and broadcast journalism, including two semesters on law and ethics, I spent the summer (before the teaching) reading law and media books by the score.
I learned that the primary rationale for journalists understanding laws of contempt had little to do with whether a person despised a judge or the justice system. I had to teach journalists covering the courts that above all courts and journalists had to ensure a person’s right to a fair trial.
But as I prepared my course outline, I also learned that had anyone in this country spoken as contemptuously as Donald Trump did about a judge or a decision in Canada, he’d be in jail by now.
My summer study of law and ethics and several years of teaching students in the Centennial journalism program (not to mention reading my own ethical compass) have been riled by Premier Doug Ford’s announcements in the past few months about choosing judges.
Two weeks ago, the Toronto Star reported that the premier had appointed two former members of his senior staff – Matthew Bondy and Brock Vandrick – to join a committee recommending candidates as Ontario judges. When challenged by reporters, Ford commented repeatedly:
“We got elected to get like-minded people in appointments. I’m not going to appoint some NDP or some Liberal,” he said. “I’m putting like-minded people that believe in what we believe in, keeping the bad guys in jail.”
As Andrew Phillips pointed out in a recent Star editorial, the premier’s office tried back-peddling his comments. More of Ford’s senior staffers suggested that it’s quite appropriate for governments to get more judges and justices of the peace with similar attitudes. They further claimed Ford was just talking about the selection committee members.
But then Premier Ford made it crystal clear, no, “I’m going to make sure we have like-minded judges!” he said.
Well, just a minute, Mr. Premier. In 1988, during the premiership of David Peterson, a pilot project recommended a non-partisan model to evaluate and recommend the appointment of provincial judges. The Judicial Appointments Advisory Committee (JAAC) was thus established in 1995, during Bob Rae’s time as premier. And that selection committee grew to incorporate legal associations and the general public, all of which both Liberal and Conservative governments have since accepted.
Not so for the Ford administration which has pushed for “like-minded” judges since 2021. And that has not only riled this former journalism law and ethics prof, but much more competent legal minds than mine.
The Federation of Ontario Law Associations told the Star, “JAAC’s independence and the public’s confidence is eroded when influence appears to be driving the process by which judges are selected.”
University of Waterloo professor of political science, Emmett Macfarlane went further when he said, “I’m not sure I’ve seen such blatant examples of patronage.” And he alluded to current public opinion in the United States, where citizens’ perception of the legitimacy of its Supreme Court has fallen to its lowest level ever “largely as a result of the extreme partisanship around its appointments.”
I for one do not want Ontario’s justice system to become a carbon copy of the American one – with partisan hardline judges throwing more people in jail at the behest of politicians, or politicians throwing contemptuous epithets at judges.
