Is Supreme Court Justice Jamal's recusal from the Bill 21 case appropriate?

Supreme Court Justice Mahmud Jamal has recused himself from the legal challenge against Quebec’s Bill 21 - the rights-infringing “secularism” law - after complaints by the province and two interest groups.

The recusal comes despite Justice Jamal’s insistence that there’s no legal requirement for him to do so, and his belief that the partiality claims against him are without merit. The CBC story reports that he decided to recuse himself only to avoid having the issue become a major distraction.

There are very real reasons to worry that a Supreme Court justice has been pushed off a very important case on somewhat tenuous grounds, a case involving a law that grossly infringes the religious freedom of minorities in Quebec, that employs the notwithstanding clause to shield key elements of it from judicial review, and raises issues concerning the scope of other Charter rights provisions, like s28’s protection of sex equality.

The basis for the claimed conflict of interest is that Jamal served on the board of directors for the Canadian Civil Liberties Association (CCLA) from 2006 to 2019, and the CCLA was involved in an initial legal challenge to stay Bill 21 and have it declared invalid.

There are probably two ways of seeing this. On the one hand, it’s comforting to see that Canadian Supreme Court judges take ethics and propriety very seriously. One only needs to look south to the US Supreme Court and utterly corrupt judges like Thomas and Alito, who are mired in, and unrepentant in the face of, serious scandal and much more blatant conflict of interest, to see where a lax standard gets us - that is, a court vacuous of any legitimacy in the eyes of much of the public.

Moreover, conflict of interest shouldn’t just be limited to things like direct material gain. Perception matters.

However, it is possible to push this logic too far.

There are clear occasions where it would be appropriate for judges to recuse themselves from a case, including if the case was one they had heard when serving on a lower court or if they had been a lawyer directly involved in the case.

Far less clear is whether serving on an institutional board or having other connections to a legal advocacy group like CCLA should require recusal. Should Jamal be expected to recuse whenever the CCLA appears as an intervener, on any cases that the CCLA took an interest in from 2006 to 2019?

The specific challenge here is that it is not clear that Jamal had any direct involvement in the case at hand. In fact, it is mostly likely that he didn’t, as boards of directors typically an advisory role in the broad mission of an organization, not a legal role in specific cases the institution might play a role in.

An approach to conflict of interest applied this broadly might inhibit the activities of lawyers who have aspirations to the bench.

Much more significantly than that, where should perceptions of partiality end? If one of our Supreme Court justices was a Muslim woman who wore a headscarf on the bench, would she be expected to recuse from this case? This hypothetical judge would have a much more personal stake in Bill 21 than Justice Jamal does by virtue of his having served on the CCLA board.

I think my problem with the pressure applied on Jamal to recuse is that it really isn’t about some type of meaningful conflict of interest so much as a belief that he is politically predisposed to disfavour Bill 21, with the tenuous fact of his prior board membership as evidence.

But we all know that all judges carry with them their personal beliefs. These aren’t robots. And while we want to set up institutional rules and structure legal decision-making to mitigate the effects of those beliefs and ensure that courts decide on the ‘objective’ basis of what the law requires, at the end of the day judging - particularly at the Supreme Court which deals with ‘hard cases’ and especially in the context of morally-laden rights issues - is to a degree an inescapably political exercise. It is a creative task, laden with fairly broad discretion.

In that light, Justice Jamal’s recusal doesn’t seem so much a victory for legal ethics or propriety as it does a political victory for Bill 21’s defenders. And we should be deeply concerned if the SCC ends up splitting 4-3 in this upcoming case, such that Justice Jamal’s absence has an impact on the outcome.