Independence Enough Day

Ontario’s Small Claims Court relies on the work of 400 “deputy judges” – practising lawyers who take up part-time judging gigs, for an average of 19 sitting days a year. Subs. 32(1) of the the Courts of Justice Act provides that they are appointed by “[a] regional senior judge of the Superior Court of Justice … with the approval of the Attorney General,” for a three-year term if the deputy judge is younger than 65, or a one-year terms if he or she is older (subss. 32(2) and 32(3)). Subs. 32(4) provides that the appointments are renewable “by a regional senior judge of the Superior Court.” The Ontario Deputy Judges’ Association challenged the constitutionality of the reappointment provision, arguing that it compromised the court’s independence. Last week, Ontario’s Court of Appeal issued reasons for its rejection of the challenge, in Ontario Deputy Judges’ Association v. Ontario (Attorney General), 2012 ONCA 437.

The deputy judges’ sole argument was that the process of reappointment at the discretion of a regional senior judges did not appear to be sufficiently independent. Although it is not clear whether the argument was exactly the same on appeal, at trial, they had argued that the problem with this arrangement was that it did not grant deputy judges  “input from an independent body, the right to participate in some form of hearing or inquiry and the provision of reasons” (Ontario Deputy Judges Association v. The Attorney General of Ontario, 2011 ONSC 6956, par. 23).

As the court of first instance had done, the Court of Appeal rejected this argument. It held that, as the Supreme Court suggested in Valente v. The Queen, [1985] 2 S.C.R. 673, reappointment of a judge at the discretion of a member of the judiciary, unlike reappointment at the discretion of a member of the executive (such as the Attorney General), raises no concerns over independence sufficient to make it unconstitutional. It may or may not make the judge perfectly independent, but it makes him or her independent enough.

That sounds right to me as a matter of constitutional law. The constitution sets only a minimal standard, in judicial independence as in other matters. Whether a system that relies consistently on ad hoc deputy judges – who, presumably, are much cheaper than full-time ones – is the sort of civil justice system we want to have is another question, which should be addressed to legislatures, not courts.

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