Ontario judge Mahmud Jamal to fill the vacancy on the top court created by the retiring Rosalie Abella. THE ADVOCATES’ SOCIETY/HANDOUT

Prime Minister Justin Trudeau has chosen Mahmud Jamal, a member of Ontario’s highest court and a frequently cited author on the Charter of Rights and Freedoms, as the newest justice 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 seen as supremely qualified – bilingual, versatile, a constitutional expert and a litigator who represented everyone from big business (including big tobacco) to the Canadian Civil Liberties Association. He has appeared in courts in seven provinces and 35 times at the Supreme Court. (If anything else was necessary, he also trained his appeal-court colleagues in technology during pandemic lockdowns.)

Justice Jamal was born in Nairobi in 1967 into an Ismaili Muslim family (originally from India), and converted to the Baha’i faith after marrying a Baha’i woman, Goleta Samari, who left Iran as a refugee after the 1979 Islamic Revolution.

In broadening the court’s diversity, the appointment echoes that of the judge he replaces: Justice Rosalie Abella was the court’s first Jewish woman, first refugee and first child of Holocaust survivors. She retires at 75 on July 1.

“It’s fantastic. It’s a no-brainer,” said retired Supreme Court judge Marshall Rothstein, who recalls Justice Jamal as a “regular” at the Supreme Court, and got to know him when Mr. Rothstein returned to private practice. “I cannot imagine anyone with qualifications that could possibly match his.”

There were many other plaudits.

“It’s an incredibly important moment in Canadian history,” Aarondeep Bains, president of the South Asian Bar Association’s Toronto chapter, said in an interview. “I couldn’t be more proud to be a Canadian and a lawyer today.”

Praise also came from Joel Bakan, a professor at the University of British Columbia’s Allard School of Law. “Justice Jamal is brilliant, scholarly and deeply principled, highly respected and admired among jurists and scholars alike, equally at ease in Canada’s two official legal systems and languages, and across a broad range of law. He is an outstanding appointment, and, importantly, the first person of colour to be appointed to the court.”

But the Indigenous community expressed concern that an Indigenous candidate was not chosen.

“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,” Drew Lafond, president of the association, representing 333 registered and active lawyers, academics and law students, said in an interview.

The group has called on Ottawa to reserve a spot on the court for an Indigenous judge, and it wants an end to the bilingualism requirement, which it views as a barrier to some Indigenous candidates.

Justice Jamal does not reach mandatory 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 authority to strike down legislation, and it has done so many times, on medically assisted dying, abortion, prostitution, supervised-injection clinics, a voting ban on federal prisoners, and anti-strike legislation in the public sector.

Justice Jamal joins a youthful court, with six of its nine members (including him) appointed since 2014, and the most senior two members sitting since 2011. The court has often expressed a strong liberal viewpoint, but in recent years, a vocal challenge to that has emerged from as many as three (and sometimes four) judges, on subjects such as equal rights and what constitutes discrimination against women, or on the application of international human-rights law in Canada. Justice Abella has been a formidable liberal voice.

In his application for the job, made public on Thursday, Justice Jamal endorses “judicial modesty,” a restrained approach to the role of judges that he says is made necessary by the separation of powers between the courts, the legislature and the executive branch.

“Judges must not have agendas, political or otherwise,” he wrote.

“Judges should also be mindful of their relatively modest role in the process of law reform.” They often have limited information about the social and policy consequences of their decisions, he said. “They should therefore develop the law cautiously and incrementally, properly leaving major revisions to the legislature whenever possible.”

Still, he said judges’ role is in part to defend minorities, even when it is unpopular to do so. Quoting one of the outstanding liberals of the Charter era, justice Peter Cory, he said that when citizens challenge laws, courts have an obligation to rule on those challenges.

His application says his pro bono work includes being national pro bono chair at his former law firm, Osler, Hoskin & Harcourt LLP. “I came to view pro bono cases as a way to help people and perhaps to shape the law. Over time I worked on cases that advanced the equality rights of Indigenous peoples, civil liberties, access to justice, and the rights of children.”

His publication credits include co-authoring a loose-leaf book, updated twice annually, analyzing the Supreme Court’s Charter decisions between 2001 and 2019.

Justice Jamal, a married father of two teenagers, was the first in his family to go to university, he said. In 1969, his family moved to England from Kenya, and 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 received a graduate degree in law from Yale.

His facility in both of Canada’s official languages is not in question. Mr. Trudeau made bilingualism a requirement for new appointees; candidates are expected at a minimum to read materials and understand oral arguments without translation or interpretation in French and English. Justice Jamal clerked for justice Charles Gonthier at the Supreme Court, and was certified a bilingual law clerk, his application says. He also clerked for justice Melvin Rothman at the Quebec Court of Appeal.

Mr. Trudeau’s choice of Justice Jamal is considered at this stage a nomination; Justice Jamal will have to answer questions before a public meeting of MPs and senators moderated by University of Ottawa civil law dean Marie-Ève Sylvestre. The meeting’s purpose is to bring transparency and accountability and introduce the nominee to Canadians. Any objection from the parliamentarians would not be binding on 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 dedication to serving others, will be a valuable asset to our country’s highest court,” Mr. Trudeau said in a statement.

Candidates for the Supreme Court are asked their views on Canadian diversity. In his answer, Justice Jamal tells the story he told at his appeal-court swearing-in: Going to school in England, he recited the Lord’s Prayer and was taught the values of the Church of England; then he would come home and study the Quran. Of that time, he comments, “Like many others, I experienced discrimination as a fact of daily life. As a child and youth, I was taunted and harassed because of my name, religion, or the colour of my skin.”

It was in Edmonton, he told the appeal-court swearing-in, that his family felt finally at home. He converted to the Baha’i faith because he was “attracted by the faith’s message of the spiritual unity of humankind,” he said in his Supreme Court application.

His most cited ruling from the appeal court, he said, involved child protection; in his ruling he gave a birth mother a second chance at a lower court to obtain access to her child. In R v Thompson last year, he wrote the appeal court’s ruling that threw out a conviction on drug charges of a Black man, saying police had detained him arbitrarily. “I hope the reasons show sensitivity to the role of race in evaluating whether an individual is detained” under the Charter of Rights, he said.

The Globe and Mail, June 17, 2021