Prime Minister Justin Trudeau has chosen Mahmud Jamal, a member of Ontario’s highest court and frequently cited author on the Charter of Rights and Freedoms, as the new judge on the Supreme Court of Canada.
Mr. Trudeau was under pressure from minority and Indigenous organizations to make the Supreme Court more diverse. In Justice Jamal, currently a member of the Ontario Court of Appeal, he found a candidate widely regarded as extremely qualified – bilingual, versatile, a constitutional expert and a litigator who represented everyone, from big business ( including large tobacco companies) to Canadian civil liberties. Association. He appeared before the courts of seven provinces and 35 times before the Supreme Court. (If anything else was needed, he also trained his appeals court colleagues in technology during pandemic lockdowns.)
Judge Jamal was born in Nairobi in 1967 to an Ismaili Muslim family (originally from India) and converted to the Bahá’í Faith after marrying a Bahá’í woman, Goleta Samari, who left Iran in as a refugee after the 1979 Islamic revolution.
By expanding the diversity of the tribunal, the appointment echoes that of the judge he replaces: Judge Rosalie Abella was the tribunal’s first Jewish woman, the first refugee and the first child of Holocaust survivors. She retires at age 75 on July 1.
” It’s fantastic. It’s a no-brainer, ”said retired Supreme Court Justice Marshall Rothstein, who remembers Justice Jamal as a“ regular ”at the Supreme Court, and got to know him when Mr. Rothstein was on the move. returned to private practice. “I can’t imagine anyone with qualifications that could match theirs. “
There was a lot of other applause.
“This is an incredibly important moment in Canadian history,” Aarondeep Bains, Toronto chapter president of the South Asian Bar Association, said in an interview. “I couldn’t be more proud to be a Canadian and a lawyer today. “
Joel Bakan, professor at the Allard School of Law at the University of British Columbia, also praised. “Justice Jamal is brilliant, scholar and deeply principled, highly respected and admired by jurists and academics alike, equally at home in both of Canada’s legal systems and official languages, and in a wide range of laws. . This is an exceptional appointment and, most importantly, the first person of color to be appointed to the tribunal. “
But the indigenous community expressed concern that an indigenous candidate was not selected.
“The Indigenous Bar Association is disappointed that in the 145 years of the Supreme Court, the institution has yet to see its first Indigenous judge,” said Drew Lafond, president of the association, representing 333 lawyers , academics and law students enrolled and active. in an interview.
The group has asked Ottawa to reserve a seat in court for an Indigenous judge, and they want to end the bilingualism requirement, which they see as a barrier for some Indigenous candidates.
Judge Jamal does not reach compulsory retirement age until 2042 and could influence law and social policy for years to come. The 1982 Charter of Rights and Freedoms gives the court the power to strike down laws, and it has done so many times, on physician-assisted dying, abortion, prostitution, supervised injection clinics , the ban on voting for federal detainees and the fight against the strike. legislation in the public sector.
Judge Jamal joins a juvenile court, with six of its nine members (including him) appointed since 2014, and the two oldest members sitting since 2011. The court has often expressed a strong liberal point of view, but in recent years , a vocal challenge for who has emerged from up to three (and sometimes four) judges, on topics such as equal rights and what constitutes discrimination against women, or on the application of the law international human rights law in Canada. Justice Abella was a tremendous liberal voice.
In his candidacy for the post, released on Thursday, Judge Jamal endorses “judicial modesty,” a sober approach to the role of judges which he says is necessitated by the separation of powers between the courts, the legislature and the legislature. executive.
“Judges should not have agendas, political or otherwise,” he wrote.
“Judges should also be aware of their relatively small role in the law reform process. They often have limited information about the social and political consequences of their decisions, he said. “They should therefore develop the law cautiously and gradually, leaving as much as possible major revisions to the legislator. “
Yet he said the role of judges is in part in defending minorities, even when it is unpopular. Citing one of the outstanding Liberals of the Charter era, Judge Peter Cory, he said that when citizens challenge laws, the courts have an obligation to rule on those challenges.
His candidacy indicates that his volunteer work includes the volunteer national presidency of his former law firm, Osler, Hoskin & Harcourt LLP. “I came to see pro bono cases as a way to help people and maybe to shape the law. Over time, I have worked on cases that have advanced Indigenous peoples’ equality rights, civil liberties, access to justice, and children’s rights.
His publication credits include co-publishing a loose-leaf book, updated twice a year, analyzing Charter decisions of the Supreme Court between 2001 and 2019.
Judge Jamal, married with two teenage children, was the first in his family to go to college, he said. In 1969 his family moved to England from Kenya, then in 1981 to Edmonton (he went to the same high school as Wayne Gretzky), where they ran a restaurant, but went bankrupt. The family stressed the importance of education and he studied law at McGill University and obtained a graduate degree in law from Yale.
Its ease in Canada’s two official languages is not in question. Mr. Trudeau made bilingualism a requirement for new appointees; at a minimum, candidates must read the documents and understand the oral arguments without translation or interpretation into French and English. Justice Jamal served as Justice Charles Gonthier’s law clerk at the Supreme Court and was certified bilingual paralegal, his request said. He was also legal assistant to Justice Melvin Rothman at the Quebec Court of Appeal.
The choice of Judge Jamal by Mr. Trudeau is considered at this stage as an appointment; Judge Jamal will have to answer questions before a public meeting of deputies and senators moderated by the dean of civil law of the University of Ottawa, Marie-Ève Sylvestre. The purpose of the meeting is to bring transparency and accountability and to introduce the candidate to Canadians. Any objection from parliamentarians would not bind the Prime Minister. At some point after the meeting, the Prime Minister would declare that he is appointed. Mr. Trudeau did not announce a date for the hearing.
“I know that Justice Jamal, with his exceptional legal and academic experience and his dedication to serving others, will be a valuable asset to our country’s highest court,” Trudeau said in a statement.
Supreme Court candidates are asked their opinion on Canadian diversity. In his response, Judge Jamal recounts the story he told during his swearing-in before the Court of Appeal: Going to school in England, he recited the Our Father and learned the values of the ‘Church of England; then he would come home and study the Koran. At that time, he comments: “Like many others, I experienced discrimination as a fact of everyday life. As a child and teenager, I was taunted and harassed because of my name, my religion or the color of my skin.
It was in Edmonton, he said when the court of appeal was sworn in, that his family finally felt at home. He converted to the Bahá’í Faith because he was “drawn to the message of faith on the spiritual unity of mankind,” he said in his petition to the Supreme Court.
His most cited decision of the appeals court, he said, concerned child protection; in his decision, he gave a birth mother a second chance in a lower court to obtain access to her child. In R v Thompson last year, he wrote the appeals court ruling that dismissed a drug trafficking conviction against a black man, saying police had arbitrarily detained him. “I hope the reasons show sensitivity to the role of race in assessing an individual’s detention” under the Charter of Rights, he said.
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