NP View: Canadian Bar Association's progressive agenda undermines the rule of law |
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NP View: Canadian Bar Association's progressive agenda undermines the rule of law
They have far too much power over who sits on the bench
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According to a Canadian Bar Association statement last week, media criticism of a judge who threw evidence out of two different trials due to his belief that police were racist is apparently a “crude effort at undermining public confidence in the judiciary.” The lawyers’ organization didn’t defend particular judicial decisions, or point to any flaws in reporting. Instead it implied that such criticism should never be published in the first place.
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If writing accurately about what the courts are doing risks undermining confidence in the judiciary, the problem is not the people who are reporting what the judges are doing. There is nothing mystical about the judiciary that puts it above criticism. The public deserves to know how institutions are operating, especially when they are not operating in the public interest.
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The April 2 statement from CBA President Bianca Kratt “warns media on dangers of delegitimizing judges.” Kratt refers to “Recent media commentary” that characterizes a “sitting judge of the Ontario Superior Court of Justice as biased.” She concedes that “sentencing principles” are “properly the subject of public debate” but that examining a judge’s bias somehow “falls outside the bounds of constructive discourse.”
The CBA is not a disinterested party here. In addition to serving as a professional organization, it also has a representative on the federal judicial selection committee, as well as on many provincial counterparts. That is, it has a role in selecting the vast majority of judges in the country at every level, including the Supreme Court.
Although the statement does not name the judge or the specific media criticism in question, it is clear from context that Kratt’s target is a column written by the National Post’s Jamie Sarkonak about Ontario Superior Court Justice Faisal Mirza. Mirza was appointed to the bench in 2022, the year after he successfully argued at the Nova Scotia Court of Appeal that racial factors must be considered in sentencing, a position the federal government has since adopted.
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Throughout his pre-judicial appointment career, Mirza was a leading advocate of race-based sentencing and of otherwise embedding racial factors throughout the justice system. As Sarkonak outlined, in addition to the 2021 Nova Scotia case, Mirza was an intervener at the Supreme Court in 2014 arguing mandatory minimum sentences were inherently racist. In 2019, he again intervened at the high court to have race be a factor when considering the legality of police searches. He also launched a non-profit in 2020 that wrote pre-sentencing reports for Black and other non-white offenders.
As a judge, Mirza has been enthusiastic about giving softer sentences to non-white criminals. One particularly disturbing case that Mirza ruled on, involved, as Sarkonkak put it, “a middle-aged Indigenous man who sexually abused his girlfriend’s daughter between the ages of 11 and 13 by forcibly kissing her, fondling her breasts and genitals, and sexually assaulting her with his mouth.” Although the Crown wanted an already far-too lenient sentence of between 4.5 and 5.5 years, Mirza sentenced the man to only three, in part because he was Indigenous.
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On at least two occasions, Mirza has allowed men caught with loaded handguns to walk free by diagnosing their arrests with racism. In both cases, the men obstructed police; Mirza excused the criminal behaviour while holding police to an impossibly perfect standard and finding that their conduct constituted racism, leading him to exclude gun evidence from each trial.
Mirza’s past advocacy is obviously relevant to his current sentencing and courtroom practices, but the CBA believes the media should not be “Singling out a judge for work recognized and valued by the legal community before appointment.” To protect “judicial independence” the CBA implores media to report on the legal issues with “responsibility.”
However, judicial independence does not mean judges or their decisions cannot be criticized, and responsible reporting and commentary of the courts includes details on who judges are.
Our reporters and columnists have written numerous stories about the practical effects of race based sentencing, and other political agendas that have crept into the courts in recent years.
These include the case of a B.C. man who received lower parole eligibility in part because he is Black, after stabbing his girlfriend to death 15 times. This happened even though the judge found the killer, Everton Javaun Downey, faced no “overt” racism when growing up. There is the case where the Ontario Court of Appeal overturned a murder conviction and replaced it with manslaughter, after reviewing the man’s Gladue report, which considers the background of Indigenous defendants. And there was the case of a Black Nova Scotia man who impregnated his adult daughter, but was given merely house arrest, despite the crime of incest carrying a maximum penalty of 14 years.
Increasingly, judges are exercising their discretion to give lighter sentences to criminals because of their skin colour, principles that fit within the CBA’s progressive worldview, meaning last week’s statement can’t be taken in a vacuum. The group’s role in Canada’s legal system is also far more wide ranging and influential than Canadians might realize.
The CBA is the biggest voluntary professional organization for lawyers in the country and has an outsized impact on how the law works. It intervenes in court proceedings, takes policy stances, offers professional development courses (a mandatory requirement for maintaining one’s law licence), speaks at Supreme Court events, and, most critically, as already noted, plays a role in selecting judges.
For federally appointed courts in each province — that is, superior courts (also called King’s Bench) and courts of appeal — the task of vetting candidates who have applied to become a judge belongs to their regional judicial advisory committee. Each committee has seven seats, one of which is reserved for a CBA nominee. Three seats, meanwhile, are guaranteed to the federal government. The CBA’s vote can therefore be the difference between the government getting its preferred candidates through.
Some provinces extend a similar kind of privilege to the CBA when it comes to provincial court appointments. This is written directly into the laws of B.C., Manitoba, Ontario and Prince Edward Island.
In Alberta, the CBA has a hand in selecting provincial judges by convention; it has a seat on the 11-member judicial nomination committee. Candidates must secure the recommendation of this committee to be eligible for appointment.
Some provinces include the CBA in other matters: in Manitoba, it has two guaranteed seats on the advisory committee to the management council of Legal Aid, as well as a seat on the council that determines which lawyers should receive the designation of King’s Counsel (a badge of prestige that conveys status and a few perks). In B.C., it has four seats on the board of the province’s law society, which regulates and disciplines lawyers.
And that’s just a tally of where the organization has real hard power. Through its professional development offerings, it contributes to the progressive leanings of Canadian legal culture. In recent years it’s held dozens of symposia and seminars that relate to social justice, with some examples covering the role of diversity in staffing and decision-making of tribunals, how to protect diversity, equity and inclusion initiatives during corporate mergers and the use of Indigenous ways of knowing and “two-eyed seeing.”
It’s a similar story with policy and advocacy. From time to time, the CBA also takes positions on contentious political issues. It is emphatically opposed to mandatory minimum sentences and from time to time appears before the Supreme Court and the House of Commons on that point. It has gone as far as arguing that race should be a consideration for judges in assessing whether a person’s right to be free from cruel and unusual punishment has been violated. It has supported medically assisted suicide for the mentally ill and for minors if they are considered capable of giving consent.
It has taken a number of stances relating to trans issues: law societies should treat the deadnaming and misgendering of trans people as professional misconduct; law schools should fund trans recruitment and incorporate trans issues into their curriculums; all courts should adopt pronoun policies; that reparations should be paid to any trans person who was required to prove they had genital surgery before updating their gender in government systems; and that governments should cease recording the sex of babies when they are born.
To those in the legal world, the CBA’s open politicking signals what views are normal and acceptable, and hints at what is not. It would be logical for any lawyer hoping for a judicial appointment to refrain from openly taking opposite political stances because that could harm their prospects. In this way, the organization is isolated from criticism within the walls of the profession.
And so, with the appearance of consensus, the CBA is an important part of the legal culture of Canada. It uses that hand to push progressive talking points as though they are the objective products of expertise. And now, it’s going beyond its home turf to tell entirely different sectors how to operate.
In a September address about her priorities for the next year, Kratt said that one of her goals for 2026 was to “build bridges to reinforce public trust” by countering “disinformation” and building an understanding for how the system worked: “The CBA cannot assume that everyone cherishes the rule of law as we do. We must continually demonstrate its relevance to Canadians.”
But what this latest episode has taught us is that the CBA struggles with the fact it doesn’t know where its own territory ends — and that perhaps its territory is too big to begin with. An organization with so many of its own internal biases should be careful when it lectures the media on how it covers the courts.
Governments may want to more carefully consider who they listen to when choosing the judges who increasingly reign over us in the post-Charter era.
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