The Quebec government has called for Supreme Court Justice Mahmud Jamal to recuse himself from the case challenging the province’s secularism law, citing his past role as board president of the Canadian Civil Liberties Association (CCLA), one of the plaintiffs in the case.
In letters addressed to the Supreme Court of Canada, the attorney-general of Quebec, along with the Mouvement laïque québécois and the women’s group Pour les droits des femmes du Québec, raised concerns about Justice Jamal’s impartiality. They argue that his involvement with the CCLA from 2006 to 2019 suggests potential bias in the case.
The CCLA, alongside the National Council of Canadian Muslims, initiated a legal challenge on June 17, 2019, seeking to invalidate Quebec’s secularism law, known as Bill 21. This law prohibits public school teachers, police officers, judges, and other civil servants from wearing religious symbols, such as hijabs, crucifixes, and turbans, while performing their duties.
Justice Jamal resigned from the CCLA board on June 24, 2019, upon his appointment to the Court of Appeal for Ontario. He was later nominated to the Supreme Court of Canada in 2021. Prior to his judicial appointments, Jamal practiced law with Osler, Hoskin & Harcourt.
Bill 21 has been a contentious issue in Quebec, aiming to maintain secularism by restricting the display of religious symbols by public employees in positions of authority. Critics argue that the law infringes on individual freedoms and disproportionately targets religious minorities.
The attorney-general’s office contends that Justice Jamal, as the former president of the CCLA, was likely involved in preparing the legal challenge against Bill 21. The office claims that this connection raises reasonable doubts about his ability to remain impartial.
“In such a context, the [Procureur général du Québec] PGQ considers that a reasonable and well-informed person would fear that Justice Jamal would not have the impartiality required to hear this case,” the letter states.
Luc Alarie, representing the Mouvement laïque québécois, emphasized that the CCLA’s opposition to the law was established while Jamal was on the board and involved in the decision to join the legal challenge as a plaintiff.
The Supreme Court of Canada’s registrar responded that Justice Jamal sees no conflict of interest that would necessitate his recusal. Jamal stated that he had no direct involvement in the legal proceedings related to the challenge against Bill 21 and has no recollection of providing legal advice on the matter.
Despite the request for recusal, Justice Jamal maintains his position, asserting that his prior association with the CCLA does not compromise his impartiality. “There is no actual or reasonably perceived conflict of interest,” he stated.
The issue has sparked debate about the public’s perception of judicial impartiality. Patrick Taillon, a law professor at Université Laval, suggested that the Supreme Court’s response might undermine public trust, especially within Quebec’s nationalist circles. He argued that recusal would have been a prudent move to maintain confidence in the court’s neutrality.
Human rights lawyer Pearl Eliadis defended Justice Jamal’s integrity, noting his reputation as a “straight shooter” and his transparent disclosure of past affiliations. Eliadis questioned whether the Quebec government’s allegations are an attempt to undermine the court’s decision on Bill 21 before the case is heard.
Eliadis pointed out the small number of human rights organizations active in court cases, suggesting that lawyers involved in pro bono work inevitably face situations where their past affiliations could be scrutinized. “The issues around conflicts of interest need to be examined carefully, and I have no reason to believe that hasn’t happened properly in this case,” she said.
The controversy surrounding Justice Mahmud Jamal’s involvement in the Bill 21 case highlights the delicate balance between maintaining judicial impartiality and recognizing the prior professional engagements of judges. As the Supreme Court prepares to hear the challenge, the decision on whether Justice Jamal will recuse himself remains a focal point in the ongoing debate over Quebec’s secularism law.