The Mouvement laïque québécois (MLQ) is asking the Supreme Court of Canada to have one of its nine judges recuse himself from the case surrounding Bill 21 because he previously sat on the board of directors of one of the plaintiffs.
The lawyer for the secularism organization, Luc Alarie, sent a letter to the country’s highest court last week asking that Justice Mahmud Jamal withdraw from the ongoing application for leave to appeal. The crux of the problem, according to the MLQ: his involvement until 2019 as a member of the board of directors of the Canadian Civil Liberties Association (CCLA), one of the parties that asked the Supreme Court to review the case at the end of April.
“The proceedings giving rise to the application for leave to appeal were filed on June 17, 2019, the day after the State Secularism Act came into force. […]while Judge Jamal was still in his position as administrator and the decision of [l’ACLC] to join as plaintiff in the original proceedings had already been taken by the board of directors,” Mr.e Alarie in the letter sent last Wednesday.
In the eyes of the MLQ, Mahmud Jamal “had already agreed to actively participate in the challenge to the law” by swearing in a declaration a few days before his departure – on June 24, 2019 – in which the ACLC expressed its “deep concerns” regarding the Quebec State’s Secularism Act.
“The Mouvement laïque québécois has a serious and reasonable fear of bias due to the fact that Judge Jamal cannot shake off the manifest and unfavourable prejudice that he has maintained against Quebec’s laws regarding the religious neutrality of the State,” wrote Mr.e Alarie, before formally requesting that the magistrate “recuse himself from this case”.
No recusal in sight
Judge Jamal has no intention of retiring. In a communication also dated last week, the court’s registrar informed the parties involved that the judge had “considered the opinion and believes that there is no real or reasonably perceived conflict of interest that would cause him to recuse himself.”
“He was at no time a prosecutor of record in the proceedings giving rise to this application for leave to appeal and he has no recollection of having provided any legal advice in the context of these proceedings,” the letter states.
Appointed to the Supreme Court in 2021, Mahmud Jamal served as a director of the CCLA while he was a lawyer at Osler, Hoskin & Harcourt, practicing “in the area of appellate advocacy, constitutional and public law, class actions and commercial litigation,” the Supreme Court’s website states. He then served as a judge of the Court of Appeal for Ontario from 2019 to 2021.
Despite the judge’s refusal to recuse himself, the parties to the case still have the opportunity to detail their position. Quebec Attorney General Simon Jolin-Barrette has already notified the court of his intentions to “respond to the Court’s letter shortly.”
Joined by The dutythe ACLC, which had previously told the court about Judge Jamal’s past involvement, preferred not to comment further. The organization is among several groups that have asked the country’s highest court to review a Quebec Court of Appeal ruling that upholds the religious neutrality law in its entirety.