There have not been very many feel-good moments in Ottawa of late. There was one last week, although it was thoroughly overshadowed by the horror that gripped the capital, like the rest of the country, at the discovery of hundreds of unmarked graves at former residential schools in British Columbia and Saskatchewan, and by the stampede to close Parliament for the summer – a summer most MPs expect will end in a fall election.
Last week’s feel-good moment came with the virtual appearance at the Commons justice committee of Justice Mahmud Jamal, the choice of Justice Minister David Lametti and Prime Minister Justin Trudeau to fill the Supreme Court of Canada vacancy created by the retirement of Justice Rosalie Abella. There were two reasons to feel good – the quality of the appointee, who will be the first person of colour on the highest court, and the careful process that led to his selection.
To start with the process, it is night-and-day different from the desperately partisan, ideologically riven, high-stakes poker game that characterizes the nomination and confirmation (or not) of judges to the U.S. Supreme Court. Think Clarence Thomas (1991), Merrick Garland (2016), Neil Gorsuch (2017), Brett Kavanaugh (2018) and Amy Coney Barrett (2020).
My favourite example is one of Richard Nixon’s failed nominations – in 1970, of G. Harrold Carswell, a self-proclaimed white supremacist with a mediocre legal resume, which prompted a supportive Republican senator to offer this classic endorsement: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren't they?”
The only time in memory when a Canadian appointment might have stirred a U.S.-style controversy was in 1963 when a group of dissident Conservative cabinet ministers hatched a plot to get rid of Prime Minister John Diefenbaker by making him chief justice of the Supreme Court and replacing him with George Nowlan of Nova Scotia. The scheme foundered when Diefenbaker refused to consider exiling himself to the bench; his government collapsed shortly thereafter.
This year, a search committee headed by former Conservative prime minister Kim Campbell winnowed a list of 18 candidates down to a short list for the Liberal prime minister and justice minister. Despite pressure to choose an Indigenous jurist or another woman to succeed Rosie Abella, they picked Mahmud Jamal on the basis of his background, legal experience and impressive credentials.
The two-hour justice committee hearing was Jamal’s opportunity to introduce himself to parliamentarians and to the public. He was born in 1967 in Nairobi into an Ismaili Muslim family originally from India; after marriage, he converted to the Baha’i faith of his wife, who had fled Iran as a refugee following the 1979 Islamic revolution.
Fluently bilingual, he is an expert in business and constitutional law. As a litigator, he argued cases before the Supreme Court 35 times; his clients ranged from large corporations to the Canadian Civil Liberties Association.
The hearing was moderated by the University of Ottawa’s dean of civil law, Marie-Eve Sylvestre, who enforced the ground rules: no questions about cases he handled on the Ontario Court of Appeal or about issues that may come before him at the Supreme Court.
Even with those – I think reasonable – limits, it was possible to get a sense of the kind of Supreme that Jamal will be from some of his comments:
“I spent my career on Bay Street, but I wasn’t of it. It wasn’t where I came from.”
“Judges must not have agendas, political or otherwise.”
“You have to have a willingness to change your mind. I’m astounded by the number of times I read the briefs, think I know what I’m going to do on a case, and then listen to the arguments, listen to my colleagues and change my view.”
This “conscious objectivity” and his determination to act “fearlessly” when the Constitution is violated might not fly in hyper-charged Washington, but they will serve our court well.
Abella’s departure and Jamal’s appointment leaves the nine-member court down to three female judges. The next opening comes in December next year when Justice Michael Moldaver, also from Ontario, retires. The guessing game begins. Who will get the nod in 2022? Will it be a woman or an Indigenous jurist? Or might there be an Indigenous judge of the female gender who would enable the government to tick off two boxes with one appointment? In the normal course, it won’t get another chance to tick off boxes until 2028 when Justice Malcolm Rowe, from Newfoundland and Labrador, is due to retire. That vacancy will call for a new Supreme from one of the Atlantic provinces.
Cambridge resident Geoffrey Stevens, an author and former Ottawa columnist and managing editor of the Globe and Mail, retired recently from teaching political science at the University of Guelph. His column appears Mondays. He welcomes comments at [email protected].