This is a story from the Toronto Star.
Tracey Tyler – Legal Affairs Reporter
Prime Minister Stephen Harper’s power to transform the judiciary doesn’t stop at the Supreme Court of Canada.
While the retirements of justices Ian Binnie and Louise Charron are generating predictable speculation about who will replace them when they leave the high court bench this summer, there’s another story brewing in Ontario.
Eighteen of the Ontario Court of Appeal’s 24 full-time judges will be eligible for semi-retirement or required for age reasons to retire during the next four years, the minimum shelf life of the government now that Harper has a majority.
Every time a federally appointed judge elects to become “supernumerary” and work halftime in partial retirement, it creates an opening for the Harper government to appoint a new full-time judge.
While there’s no indication any of the appeal court judges who qualify for supernumerary status will go that route, people living in Ontario could be more deeply affected by the stamp the federal government puts on that court than by its Supreme Court appointments.
The Ontario Court of Appeal rules on about 2,000 motions and appeals each year. It’s the chief law-making court for the province, not to mention the final legal frontier in the vast majority of cases.
Less than 3 per cent of cases go on to the Supreme Court, which has recently been hearing between 60 and 70 appeals a year.
The Court of Appeal “is a de facto final court of appeal for people in Ontario,” said Kent Roach, a law professor at the University of Toronto. “The appointments to that court will be very important.”
Nine judges on the appeal court could now elect to become supernumerary and work part-time if they chose, according to information provided by the office of Chief Justice Warren Winkler.
They include Justices Jean MacFarland, Robert Sharpe, Stephen Goudge, David Doherty, Robert Blair and John Laskin.
Over the next four years, seven more will become eligible, including justices Marc Rosenberg, Russell Juriansz and Associate Chief Justice Dennis O’Connor.
Harper is expected to select at least one judge from the appeal court to replace Charron or Binnie, further depleting the pool.
Meanwhile, Winkler, 72, and Justice Robert Armstrong, 73, will be required to retire in 2013, when they turn 75.
While appointments to the Ontario Court of Appeal are technically made by the federal justice minister, the names of potential candidates are discussed in cabinet and the views of Harper’s provincial political chiefs, such as Finance Minister Jim Flaherty from Ontario, are thought to be influential.
“Most of the provinces have successfully eliminated patronage in the judicial appointments process,” said Frank Addario, a Toronto defence lawyer.
“But it remains a part of the federal process,” said Addario. “And it’s an open secret in the legal community that both qualified and unqualified candidates need a political connection in order to get an appointment.”
Another potential consideration is the record demonstrated by judicial candidates on law and order issues, particularly if they are trial judges applying for a seat on the Court of Appeal, said Roach.
Advisory committees set up in each province to screen judicial candidates now include one police representative.
“There is a danger that a judge’s record on law and order issues might become some sort of a litmus test or at least a decisive factor in judicial elevations,” said Roach.
So how has this played out so far?
Harper’s Conservatives have appointed nearly 400 judges since taking office in 2006, nearly half the 867 working full-time on superior trial courts or courts of appeal.
The Lawyers Weekly reported in March that 37 per cent of judges appointed in 2010 had worked at one time as federal or provincial Crown counsel, compared with 14 per cent of judges appointed in 2005, the last year the federal Liberals were in office.
The most recent round of appointments might suggest some patterns. On March 4, three weeks before the election was called, the federal government appointed 11 new judges in Ontario, Alberta, Saskatchewan and Quebec.
Nine were men, two were women. Six had worked as Crown lawyers and six had been civil litigators. One, Justice David Gates, a former federal prosecutor in Calgary, had served as executive director of the National Crime Prevention Centre.
Only one, Justice Thomas Carey, had spent his career as a criminal lawyer. A former Mississauga defence lawyer, he presides in Windsor.
Federally-appointed trial and appeal court judges in Ontario can opt for semi-retirement – known as going supernumerary – if they meet the following conditions:
– 15 years as a judge AND their age and years in office add up to at least 80.
– 10 years as a judge and at least 70 years old
Judges contend it’s a good deal for the federal government, because it gets the half-time services of an experienced judge and only has to pay one-third of the judge’s salary. The other two-thirds come from the judge’s pension.
But it’s also a good deal for judges, who work half-time and earn the equivalent of a full-time salary, currently $232,000.