Justice Jamal: A Step in the Right Direction for the Supreme Court
“Perhaps most importantly, I have learned that it is often more important to listen than to speak.” (Parliamentary Questioning)
On October 28th, 2021 the Supreme Court held a Welcoming Ceremony in Honour of the Honourable Mahmud Jamal, who was sworn into office on July 1, 2021. One does not have to meet Justice Jamal to understand why the Supreme Court of Canada’s (“SCC” or “Supreme Court”) latest appointee has had a successful legal career. Aside from his track record of pro bono work and extensive honours and awards, it is clear when listening to Justice Jamal speak that he is a pensive and humble individual. The newest Supreme Court justice was appointed after the retirement of Justice Rosalie Abella, who had served the highest court for seventeen years. The selection process for the next puisne justice involved recommendation by a non-partisan advisory board, chaired by the Right Honourable Kim Campbell. Justice Jamal’s appointment was the fourth under this new process implemented by the federal government in 2016, which replaced the former closed door nomination process (House of Commons Report of the Standing Committee on Human Rights).
Justice Jamal’s humility is palpable. In responding to a remark made by Senator Mobina Jaffer, who applauded Justice Jamal for taking this next “natural step” in his career, Justice Jamal pointed out the statistical improbability of becoming a SCC justice (Parliamentary Questioning). To him, this next step is anything but natural. Whether he believes it is natural or not, it is apparent that he will add a wealth of knowledge and a fresh perspective to the bench.
Experience as an Opportunity for Empathy
Justice Jamal was born in Kenya to Ismali Muslims from British India who migrated to East Africa during the construction of the Kenya Uganda railway in the late 19th century. In 1969, Justice Jamal’s parents immigrated to the United Kingdom to pursue a better future for their children. There, Justice Jamal grew up in a small village north of London. In November 1981, his parents immigrated to Edmonton, Alberta where they had existing family. This was where Justice Jamal not only felt at home, but fell in love with Canadian pluralist society.
As an immigrant, Justice Jamal explained that when he first came to Canada, he saw people of all different backgrounds getting along and immediately realized what an extraordinary place Canada was. Looking backwards at his life, Justice Jamal notes that “the unifying principle over [his] last 54 years of life has been pluralism: an appreciation for nationalities, ethnicities, religions, legal systems, and perspectives that exemplify what it means to be Canadian” (Welcome Ceremony).
Similar to Justice Abella, Justice Jamal is well-positioned to empathize with the experience of immigrants and refugees. Further, as someone who grew up in many different countries and cities, Justice Jamal has observed different socio-economic realities, and does not have an insular understanding of Canadian norms and values. In a multicultural and diverse country, it is important that judges are cognizant of the mosaic of lived experiences within Canada, and Justice Jamal brings this experience to the table.
As a litigator, Justice Jamal says he saw his family’s plight in the experience of his clients. In his questionnaire, he reflected on a case where he represented a foreign-trained doctor who had come to Canada and passed their licensing exams but was not allowed to practise in Canada due to not having the proper qualifications. Justice Jamal notes,
“I expect that I saw in these and other clients something of my own family’s experiences: the challenges of contributing to and integrating into a new land, the hope of pursuing one’s calling, and the dream of a better life for one’s children” (Questionnaire for Judicial Appointment).
As each SCC justice has their own lived experience, it is encouraging to see that Justice Jamal brings with him an experience that is aligned with the landscape of Canadian society.
Having clerked for Justice Melvin Rothman of the Quebec Court of Appeal and for Justice Charles Gonthier of the Supreme Court, Justice Jamal is no stranger to the bench. Soon after clerking at the Supreme Court, he joined the prestigious Toronto law firm Osler, Hoskin & Harcourt LLP (“Osler”) in 1996 and became a partner just five years later (Questionnaire for Judicial Appointment). During his time at Osler, Justice Jamal frequently argued in front of the Tax Court of Canada, the Federal Court, and the SCC. As a lawyer, he represented clients in both the private and public sectors ranging from corporations to non-profit organizations. Twenty-four years after he started at Osler, he was appointed as a justice to the Ontario Court of Appeal where he heard cases on civil, criminal, constitutional and family law matters (Questionnaire for Judicial Appointment).
Given his breadth of experience as a litigator, Justice Jamal understands that the parties “must be persuaded, to the extent reasonably possible, that they have been heard and their arguments understood” (Parliamentary Questioning). Particularly, he notes that it is most important to be able to persuade the losing party of the reasons for judgement.
Pro Bono Advocacy and Judicial-Decision Making on the Charter
Justice Jamal has written many notable decisions relating to the Canadian Charter of Rights and Freedoms (“Charter”) both inside and outside of the criminal context. These decisions are interesting, specifically in light of the fact that as a litigator, Justice Jamal frequently did pro bono work on behalf of the Canadian Civil Liberties Association (“CCLA”). For example, Justice Jamal represented the CCLA in R v MacKenzie, 2013 SCC 50 and R v Chehil, 2013 SCC 49 [Chehil], companion cases that consider the constitutionality of sniffer-dog searches. In these cases, the CCLA highlighted the dangers of authorities profiling suspects, given the “unanticipated impacts on bystanders, disproportionate harm to visible minorities, and stereotyping” (Chehil, para 38). While judges do not bring an agenda to the bench, it will be revealing to see how Justice Jamal’s familiarity with the case law leads him to interpret the Charter, something he did frequently as a judge on the Court of Appeal.
In adjudicating R v Thompson, 2020 ONCA 264 [Thompson] Justice Jamal was apt to point out the systemic problem with Peel Regional Police’s practises in delaying the right to counsel, contrary to the Charter. In Thompson, the police were given an anonymous tip that the appellant was in possession of marijuana in a local parking lot. The police proceeded to “box” the appellant in the parking lot so he could not drive away. Subsequently, the appellant and the other occupant were arrested for possession of marijuana, and the car was searched. Upon searching the car, the police found cash and other drugs, and charged the appellant with trafficking. At trial the appellant submitted that the evidence found in the car be excluded pursuant to s. 24(2) of the Charter because the police had arbitrarily detained him (s. 9), illegally searched his car (s. 8), and failed to inform him of his right to Counsel (s. 10). Justice Jamal allowed the appeal, finding that the appellant was arbitrarily detained contrary to s. 9 of the Charter. Justice Jamal notes that the moment the first police cruiser parked directly behind the appellant’s car and the appellant could no longer drive away he was arbitrarily detained, triggering the appellant’s right to counsel in accordance with s. 10(b). This broader interpretation of arbitrary detention is a positive step in addressing the ways in which police investigations unfold that unfairly prejudice defendants.
In another Charter case, R. v. McNeill, 2020 ONCA 313 [McNeill], Justice Jamal broadly interpreted the scope of a search warrant and found that the police were not in violation of s. 8 of the Charter when they examined the phone of an individual who was not listed on the search warrant. In McNeill, Justice Jamal found that Lawrence McNeill, who happened to be in the garage where a search warrant was ordered, did not need to be a target of the investigation to have her phone seized and searched. Justice Jamal found that given McNeill herself was in the garage, there were reasonable and probable grounds to believe that “any electronic devices found in the garage – including what turned out to be McNeill’s phone – would contain evidence of the drug trafficking offences under investigation” such that a second search warrant for McNeill was not necessary (McNeill, para 6). The contrast between Justice Jamal’s decisions in the aforementioned cases exemplifies his flexible approach to both broadly and narrowly interpreting Charter rights based on the merits of the case.
A Symbolic Step in the Right Direction
At his nominee questioning, Member of Parliament Arif Virani told Justice Jamal “Your appointment comes as a source of pride for South Asian lawyers, for racialized people to see for the first time ever among those other 88 appointees in the over 140-year history a racialized person being appointed to the highest appellate court.” His response: “What it is emphatically not about, is me as an individual” (Parliamentary Questioning). Instead, he posited he is mindful of the tremendous responsibility he has. For him, his appointment is about public institutions reflecting society and engendering trust in public institutions. His response echoes a famous quote by Marian Wright Edelman, an American children’s rights activist “You can’t be what you can’t see.” With Justice Jamal’s appointment, more Canadians who had not seen themselves reflected in the judiciary before might be able to now.
With the excitement of Justice Jamal’s appointment, it would be overly optimistic to assume that access to justice will significantly increase. However, what judges decide at the SCC affects how litigants and broader society conceptualize the role of the justice system. Having a justice that prioritizes brief, effective, and comprehensibly written reasons is another step towards making the justice system more accessible.
In future appointments, we will see whether the Supreme Court diversifies further by adding Indigenous voices to the bench, a critical step towards reconciliation and having the judiciary better reflect our society. When asked about his approach to reconciliation, Justice Jamal answered that “Reconciliation is all about respect” quoting Justice Lamer’s call to reconciliation in Delgamuukw v British Columbia,  3 SCR 1010. A lover of comparative law, Justice Jamal says he is excited about learning about Indigenous law through experts in the field and affirmed his commitment to implementing the Truth and Reconciliation Commission of Canada: Calls to Action.
Justice Jamal brings with him reverence to the bench and “conscious objectivity”, a term discussed by Chief Justice Beverley McLaughlin (as she then was) that entails “having empathy for the parties and putting one’s position in their shoes” (Parliamentary Questioning). Justice Jamal strives to increase access to justice, and create clear, accessible, and brief written reasons. In the closing moments of his welcome ceremony, Justice Jamal “confessed” that “the legal profession in Canada has given me more than I can imagine; it has taken me to every province, provided the closest friendships, and given me the opportunity to make a modest contribution to the work of this modest institution” (Welcome Ceremony). There is no doubt that he will bring humility and hard work to the bench, and that his decisions will be reflective of the breadth and variety of experience that he has had.