The Quebec government has asked Superior Court Justice Mahmoud Jamal to recuse himself from a hearing challenging the province’s secularism law because he was chair of the plaintiffs’ board.
In a letter to the Clerk of the Supreme Court of Canada and the Attorney General of Quebec, Quebec National Movementas well For women’s rights in Quebec — A group of women Has promoted anti-trans policies — alleging Jamal’s bias in the case.
Jamal served as director of the Canadian Civil Liberties Association (CCLA) from 2006 to 2019, which, together with the National Council of Canadian Muslims (NCCM), filed a lawsuit in Quebec Superior Court on June 17, 2019 to halt the application of the secularism law and declare it invalid.
Quebec’s secularism law, known as Bill 21, bans public servants in positions of authority, including public school teachers, police officers, judges and government lawyers, from wearing religious symbols such as hijabs, crosses or turbans while at work.
Mr. Jamal retired from the CCLA Board on June 24, 2019, when he was appointed a Justice of the Ontario Court of Appeal. He was appointed a Justice of the Supreme Court of Canada in 2021. Prior to his appointment as a Justice, Mr. Jamal was a lawyer with the law firm of Osler, Hoskin & Harcourt LLP.
The attorney general’s office argues that as chairman of the CCLA, Jamal was “necessarily involved in some way” in the preparation of the lawsuit “through its writing, revision or simply approving its contents.”
“In a situation like this, [Procureur général du Québec] “PGQ believes that a reasonable and informed person would be concerned that Judge Jamal does not possess the necessary impartiality to hear this case,” the letter read.
Luc Alarie is Quebec National MovementThe nonprofit, which promotes secularism, noted that CCLA’s opposition to the law was established when Jamal was still a board member and CCLA had already decided to join as a plaintiff.
The letter from the Attorney General and two organisations calling on Justice Jamal to resign came after the NCCM submitted a certificate to the Supreme Court highlighting Justice Jamal’s previous role at the CCLA.
In a written response, the clerk of the Supreme Court of Canada wrote that he believed Jamal had “no actual or reasonable conflict of interest that would require him to recuse himself.”
Jamal “was not represented at any time in the proceedings which gave rise to the application for leave to appeal” and “has no recollection of providing legal advice in those proceedings,” wrote clerk Chantal Carbonneau.
In his letter, Carbonneau urged all involved to make their case if they believe Jamal should resign.
A spokesman for Quebec’s Justice Minister Simon Jolin-Barrette declined to comment while the challenge to Bill 21 is before the courts.
Public perception of fairness
Patrick Taillon, a law professor at Laval University in Quebec City, said it would be better for the judge to err on the side of caution and step aside.
“Acknowledging that it would be wise to decline is not an admission of negligence, lack of ethics or lack of integrity,” he said. “It’s just an admission of acceptance of the idea that the average person who sees this would say, ‘This isn’t going to work.'”
Human rights lawyer Pearl Eliadis said claims of Jamal’s lack of personal integrity were “frivolous” given that he is known to be an “honest person”, and noted in his court filing that he was previously affiliated with the CCLA.
Eliadys noted that the number of human rights groups active in the courts is relatively small, and lawyers who make a name for themselves through pro bono litigation “inevitably end up in judicial venues that have upheld human rights in the past.”
She said she wondered whether doubting Jamal’s impartiality was an attempt by the government to “discredit the court’s decision.” [on the secularism law] before being heard by the Supreme Court of Canada.”
“Issues regarding conflicts of interest need to be carefully considered and there is no reason to believe that this was not done appropriately in this case,” she said.
