Ontario Premier Doug Ford speaks during a news conference in Mississauga, on April 30.Chris Young/The Canadian Press
Doug Ford doesn’t like to be challenged. That’s the most benign explanation one could draw from his self-described rant recently against judges.
But the more alarming scenario is that he really believes justice is done only when he approves of the ruling.
In a diatribe about judges he believes issue ideological rulings, the Ontario Premier both undermined the integrity of the judiciary and floated the terrible idea of electing judges.
All that said, there is one part in which Mr. Ford was correct. He’s right that elected officials are supreme. But parliamentary supremacy does not mean a majority government simply passes laws and people can then like it or lump it.
Legislative decisions can be challenged in court and laws can be overturned. But judges should proceed with caution, and, barring a risk of immediate harm, give governments time to adapt the law in question.
Governments can then choose to comply with an adverse ruling or appeal it. They also have the nuclear option of invoking the notwithstanding clause, which exists to preserve parliamentary supremacy.
There are other problems with his rant.
He labels judicial independence “a joke” because judges are appointed by one party or another. That tars judges by presuming they will dance with the one that brung them.
Such criticism effectively taints rulings with a partisan odour, without any evidence. And it ignores the reality that many judges are named to the bench by one government and then elevated by another, one high-profile example being Supreme Court of Canada Chief Justice Richard Wagner.
The Premier also brought up repeatedly a judge recently issuing an injunction to prevent the province removing bicycle lanes in Toronto. Mr. Ford blamed this decision on ideology and judicial meddling when, in fact, the injunction takes the cautious step of merely freezing the situation until a Charter challenge is decided.
Mr. Ford floats as a solution judges being elected, as in the United States. Anyone looking at the state of U.S. justice and thinking it seems good should perhaps look more closely. Money can flood into these elections, perverting the cause of justice. Also, elected judges could feel less need to defer to politicians.
Worth examining more closely is the Premier’s insistence that the bail system is broken. Relying on anecdote, he claims that police tell him that they are taunted by people they arrest, who say they’ll be out on bail by the time the officer’s next shift starts.
It would indeed be bad if people are routinely arrested, get bail and are then charged in a violent crime. However, the frequency of this is unclear.
The provincial Ministry of the Attorney-General did not respond to inquiries about what statistics it has on people who are charged while out on bail. Lawyers say the AG does not monitor this. The government would be wise to track this, to help clarify the extent of the problem.
What is known is that the number of people in custody who have not yet been tried has spiked in the last decade. According to a report last year from the Canadian Civil Liberties Association, these people made up 71 per cent of those in jail in 2021-22, compared with 55 per cent in 2014. In Ontario, 79 per cent of people in jail have not been tried.
Remember: people awaiting trial are legally innocent. And those ultimately acquitted – or even just facing undue delays getting bail – can lose jobs or homes while incarcerated.
A government serious about bail reform would fund the courts system properly to clear the backlogs. For the law-and-order minded, this would have the additional benefit of a longer period off the streets for those found guilty, since they would receive less credit for their time in pre-trial custody.
Of course, there are people who must be kept in prison before trial. As it happens, Mr. Ford’s government has influence over the bail system he argues is out of control. The Crown Prosecution Manual allows the attorney-general, working within the law, to provide broad direction to prosecutors.
Conversely, performative measures such as making people on bail pay for their own GPS ankle bracelets do nothing to keep society safe. Instead they risk keeping in custody people who should be released but lack sufficient funds.
Overall, Mr. Ford needs to remember that the judicial system underpins the country’s rule of law. And rule of law means respecting not just judgments with which he agrees, but also the ones he dislikes.
Editor’s note: A previous version of this article incorrectly stated that the injunction recently issued to prevent the province's removal of bicycle lanes in Toronto freezes the situation until a Charter challenge can be heard. The challenge has already been heard, but a ruling has not yet been issued. This version has been updated.