There is some shockingly racist news out of Québec: “The Quebec government is requesting that Supreme Court Justice Mahmud Jamal recuse himself from hearing the challenge to the province’s secularism law because he was board president for one of the plaintiffs.”
Let’s start with some info about recusal. It is absolutely appropriate for the presiding judge to recuse themself when there could be even an appearance of conflict of interest, so that justice is seen to be done. But asking for recusal is a big deal and the conflict of interest alleged better be legitimate.
This is not.
Justice Jamal was indeed briefly the Chair of the Board of Directors of the Canadian Civil Liberties Association, which was indeed one of many, many entities involved in the case à la cour d’appel and is also expected to be one of the many, many entities involved in the case if the Supreme Court of Canada grants leave.
It seems to me an incredible leap from “was Chair of the Board” to “has insider legal knowledge of the case that could result in unfairness to one of the parties.” The org’s paid, permanent and full-time Executive Director and General Counsel? Maybe. Counsel of record, obviously. The guy who was Chair of the Board for nine months while working on his own cases as a litigation partner at Osler, Hoskin & Harcourt? Doubtful. I have never known a Chair of the Board to be that involved in the day-to-day business of the organisation. This fear does not seem based in reality.
It should also be noted that recusal makes a lot more sense when you’re talking about one single presiding judge. If you have NINE Supreme Court judges hearing a case, and one of them at one point was Chair of the Board for one of the many, many intervenors, what actual risk of bias do you face? Basically none. I do not think this is legally a good faith request.
If, however, you are motivated by paranoia about defending your law that you have admitted through the use of the notwithstanding clause is racist, then yeah, it absolutely makes sense to try to find some way to discredit the first racialized person ever appointed to the Supreme Court of Canada. He’s even studied the Quran, and this law is known to have a particularly discriminatory effect on Muslim women! It’s not hard to hear the naked political fear-mongering behind the recusal request, as weakly as they’ve tried to clothe it in a fig-leaf of concern about Impartial Justice.
It is certainly possible that, with his personal experience and his professional expertise, Justice Jamal could have a different point of view about Québec’s admittedly racist law than would the 146 years of predominantly Christian white dude judges who were appointed before him. That is progress.
Diversity of experience on the Court can only be a threat to our system of government if the actual goal of government is to exclude people. I would hope the other either eight Justices would understand that that’s not a goal worth supporting, even without Justice Jamal’s perspective.
Racism against a Supreme Court Justice
There is some shockingly racist news out of Québec: “The Quebec government is requesting that Supreme Court Justice Mahmud Jamal recuse himself from hearing the challenge to the province’s secularism law because he was board president for one of the plaintiffs.”
Let’s start with some info about recusal. It is absolutely appropriate for the presiding judge to recuse themself when there could be even an appearance of conflict of interest, so that justice is seen to be done. But asking for recusal is a big deal and the conflict of interest alleged better be legitimate.
This is not.
Justice Jamal was indeed briefly the Chair of the Board of Directors of the Canadian Civil Liberties Association, which was indeed one of many, many entities involved in the case à la cour d’appel and is also expected to be one of the many, many entities involved in the case if the Supreme Court of Canada grants leave.
It seems to me an incredible leap from “was Chair of the Board” to “has insider legal knowledge of the case that could result in unfairness to one of the parties.” The org’s paid, permanent and full-time Executive Director and General Counsel? Maybe. Counsel of record, obviously. The guy who was Chair of the Board for nine months while working on his own cases as a litigation partner at Osler, Hoskin & Harcourt? Doubtful. I have never known a Chair of the Board to be that involved in the day-to-day business of the organisation. This fear does not seem based in reality.
It should also be noted that recusal makes a lot more sense when you’re talking about one single presiding judge. If you have NINE Supreme Court judges hearing a case, and one of them at one point was Chair of the Board for one of the many, many intervenors, what actual risk of bias do you face? Basically none. I do not think this is legally a good faith request.
If, however, you are motivated by paranoia about defending your law that you have admitted through the use of the notwithstanding clause is racist, then yeah, it absolutely makes sense to try to find some way to discredit the first racialized person ever appointed to the Supreme Court of Canada. He’s even studied the Quran, and this law is known to have a particularly discriminatory effect on Muslim women! It’s not hard to hear the naked political fear-mongering behind the recusal request, as weakly as they’ve tried to clothe it in a fig-leaf of concern about Impartial Justice.
It is certainly possible that, with his personal experience and his professional expertise, Justice Jamal could have a different point of view about Québec’s admittedly racist law than would the 146 years of predominantly Christian white dude judges who were appointed before him. That is progress.
Diversity of experience on the Court can only be a threat to our system of government if the actual goal of government is to exclude people. I would hope the other either eight Justices would understand that that’s not a goal worth supporting, even without Justice Jamal’s perspective.