The Return of KCs in Ontario: Turning Lemonade Into Lemons

By reviving the long-defunct “King’s Counsel” designation in his province, Ontario Attorney General Doug Downey has succeeded in taking what should have been a good news story and turning it into a scandal.  

The first hint of a possible issue was the making of the announcement by press release on Friday, June 30th just prior to the Canada Day long weekend. This is a time to bury news, not to make news. In the parlance of the much-beloved political classic The West Wing, this practice is referred to as “take out the trash day”.

In the age of social media, it is much harder to “take out the trash” and hope no one will notice. And the Ontario Attorney General’s attempt not only failed, but it has embroiled the PC government of Doug Ford in scandal that is likely to continue for some time.

First things first. The return of KCs in Ontario could have and should have been a good news story. In 2016, I wrote a post entitled “In Praise of Queen’s Counsel” in which I commended the former Harper government’s decision to revive the practice federal QCs, awarding them only to government lawyers, the true “Queen’s (or King’s) Counsel”.

Many lawyers love KCs (or QCs). In most provinces, there are transparent and relatively non-partisan processes in place to award the designation.

For example, BC has a public call for nominations and a committee makes recommendations to the Attorney General. The committee consists of the Chief Justice of BC, the chief justice of the Supreme Court of BC; the chief judge of the Provincial Court of BC; the President of the Law Society of British Columbia; the president of the CBA’s BC Branch, an LSBC member appointed by the benchers; and BC’s deputy attorney general. Similar processes exist in other provinces.

But not Ontario. Liberal Attorney General Ian Scott (himself a QC) abandoned the process of giving out QCs in the late 1980s, asserting that the practice had become a farce after four decades of Tory patronage appointments. But Scott did not repeal the legislation that authorized the appointment of QCs; he simply stopped giving them out. Successive NDP, Tory and Liberal governments followed Scott’s practice (or non-practice) for the next 30 years. Until last month.

On Friday, June 30th, the office of Attorney General Doug Downey, KC released the terse statement:

In celebration of the coronation of His Majesty King Charles III, the Ontario government is returning to the tradition of recognizing Ontario lawyers with the honorary title of King’s Counsel. The King’s Counsel designation is given to lawyers who have demonstrated a commitment to the pursuit of legal excellence in service to the Crown, the public and their communities. Ontario rejoins many of its provincial counterparts and other Commonwealth jurisdictions in observing this practise.

This was followed by a list of 91 Ontario lawyers awarded the KC designation. Contrary to the practice for awarding KCs in other provinces and contrary to the standard practice for most government appointments, no biographical information was provided on any of the KC recipients.

The last line of the press release promised that ““Information regarding future nominations for the designation of King’s Counsel will be announced at a later date.”

The opaque press release provided fodder for the media and the twitterverse.

In the span of just two weeks, Toronto Star justice reporter Jacques Gallant has written no less than five articles about the KC announcement. The first article appeared on Canada Day itself (so much for burying the news) and focussed on the return of patronage.

On July 4th, Gallant followed up with an article entitled: ‘Her Fake Honour’: Caroline Mulroney was called to the bar three days before getting ‘King’s Counsel’ title”. The title pretty much says it all. Caroline Mulroney served as Attorney General from June 2018 when the first Ford government was elected until June 2019. She received her JD from NYU Law School but was never called to the bar in Canada. When she became Attorney General, she automatically qualified to become a member of the Law Society of Ontario under the same legislation that authorizes the creation of QCs (or KCs). She was exempted from any and all statutory requirements or regulations, including the payment of fees. Notwithstanding this, Ms. Mulroney chose not to join the bar in Ontario until the end of June 2023, a few days before her successor Doug Downey conferred a KC on her.

Political columnist Martin Regg Cohn also chimed in with a column entitled “Doug Ford’s patronage controversy builds on a pattern of poor decision-making”.

Gallant’s other stories have exposed the unsurprising fact that Downey’s KC list is full of Tory donors; the disappointing [fact] that former Liberal and NDP AG’s were not offered the KC designation; and the assertion by Premier Ford that he didn’t see or approve the list of KCs.

It’s that last claim that really caught my eye and has left me puzzled. When I worked for former Attorney General Michael Bryant, it was common practice for the Premier’s Director of Appointments to brief Premier Dalton McGuinty on all appointments. I suspect that practice is quite standard, certainly for all appointments that require cabinet approval.

It is not clear whether the KC appointments were approved by Cabinet. Under the relevant legislation, KC appointments are made by the Lieutenant Governor. Generally, the Lieutenant Governor acts only on “advice”, usually from the Lieutenant Governor-in-Council, i.e. the Cabinet. Sometimes the Lieutenant Governor acts on advice from the Premier only, but Premier Doug Ford said he had nothing to do with these appointments to that would seem to be ruled out.

It is also possible that the Lieutenant Governor could act on the advice of the Attorney General, but that would be very problematic here because Attorney General Doug Downey was in a conflict of interest: his name was amongst those who received the KC honour. He should have recused himself from decision making on this matter. The government’s very opaque press release shines no light on this matter.

Ontario’s Members’ Integrity Act provides that: “A member of the Assembly shall not make a decision or participate in making a decision in the execution of his or her office if the member knows or reasonably should know that in the making of the decision there is an opportunity to further the member’s private interest or improperly to further another person’s private interest.

When a member of cabinet has reasonable grounds to believe that they are in a conflict of interest in a matter that is before cabinet, they are required to disclose the nature of the conflict and withdraw from participating in consideration or voting on the matter (s. 9 of the Members’ Integrity Act).

The problem is not only that Attorney General Doug Downey received a KC, but so did other members of the Cabinet, including Minister of Transportation Caroline Mulroney and Associate Minister of Mental Health and Addictions Michael Tibollo.

These questions and others are likely to surface over the coming months in Ontario. At a time when many are sipping lemonade and trying to keep cool, Ontario Attorney General Doug Downey is likely to have the heat turned up on him over the coming months and find that his KC announcement has become a lemon that is bringing some sting into the eyes of many in the Ford government.

The post The Return of KCs in Ontario: Turning Lemonade Into Lemons appeared first on Slaw.

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