Quebec calls on Supreme Court justice to recuse himself from secularism law case

Justice Mahmud Jamal was nominated to the Supreme Court of Canada in 2021. (Adrian Wyld/The Canadian Press - image credit)
Justice Mahmud Jamal was nominated to the Supreme Court of Canada in 2021. (Adrian Wyld/The Canadian Press - image credit)

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.

In letters sent to the registrar of the Supreme Court of Canada, the attorney general of Quebec, the Mouvement laïque québécois, as well as Pour les droits des femmes du Québec — a women's group that has lobbied for anti-trans policies — argue Jamal's partiality in the case.

From 2006 to 2019, Jamal was on the board of directors for the Canadian Civil Liberties Association (CCLA), which along with the National Council of Canadian Muslims (NCCM), filed a legal challenge on June 17, 2019, in Quebec Superior Court to stay the application of the secularism law and declare it invalid.

Quebec's secularism law — commonly known as Bill 21 — prevents public school teachers, police officers, judges and government lawyers, among other civil servants in positions of authority, from wearing religious symbols, such as hijabs, crucifixes or turbans, while at work.

Jamal resigned from the CCLA board on June 24, 2019, when he was appointed to the Court of Appeal for Ontario. He was nominated to the Supreme Court of Canada in 2021. Before he was appointed as a judge, Jamal was a lawyer with Osler, Hoskin & Harcourt.

The attorney general's office argues that as president of the CCLA, Jamal was "necessarily involved in some way in the preparation" of the case, "whether through its writing, its revision or simply to approve its content."

"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 reads.

Luc Alarie, who represents the Mouvement laïque québécois, a non-profit that promotes secularism, noted that the CCLA's opposition to the law was established while Jamal was still part of the board, and when the CCLA had already decided to join as a plaintiff.

The letters from the attorney general and the two groups asking Jamal to recuse himself came after the NCCM filed a certificate with the Supreme Court highlighting the judge's previous role with the CCLA.

In a written response, the Supreme Court of Canada's registrar wrote that Jamal believes "there is no actual or reasonably perceived conflict of interest" that would lead him to recuse himself.

Jamal says he was "at no point counsel of record in the proceeding giving rise to this application for leave to appeal" and "has no recollection" of providing legal advice in the proceeding, wrote registrar Chantal Carbonneau.

In her letter, Carbonneau also urged any of the parties involved to make their case if they believe Jamal should recuse himself.

A spokesperson for Quebec Justice Minister Simon Jolin-Barrette declined to comment while the challenge to Bill 21 is before the court.

Public perception of impartiality

Patrick Taillon, a law professor at Université Laval in Quebec City, says it would be better for the justice to recuse himself out of caution.

"Admitting that it is wiser to recuse oneself is not admitting a fault, a lack of ethics, a lack of integrity," he said. "It's just accepting the idea that the normal person looking at this says, 'it doesn't work.'"

Human rights lawyer Pearl Eliadis says allegations of Jamal's lack of personal integrity are "not well founded" given his reputation for being a "straight shooter," and he disclosed his previous affiliation to the CCLA in his application before the court.

Eliadis noted that the number of human rights organizations that are active before the courts is relatively small, meaning lawyers who make their name working pro bono cases are " inevitably going to end up in a judicial situation where they will in the past have supported human rights."

She said calling into doubt Jamal's impartiality — whether perceived or real — makes her question whether the government is trying to "discredit the court's decision [on the secularism law] before it even gets heard by the Supreme Court of Canada."

"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.