After Quebec complains, Supreme Court justice recuses himself from Bill 21 challenge

After concerns of bias raised by the Quebec government and others, a Supreme Court of Canada justice will not participate in deliberations about whether the high court will hear an appeal to the province’s secularism law, known as Bill 21.

A letter issued Tuesday by the court registrar says that while Justice Mahmud Jamal believes there is no legal basis for him to recuse himself, he has decided to withdraw to avoid “being a distraction.”

Recently, the Quebec government and other groups called on Jamal to step away from the case because he served as chairman of the Canadian Civil Liberties Association’s board of directors when the group challenged Bill 21 in Superior Court in 2019.

Quebec Attorney General Simon Jolin-Barrette argued it would be inappropriate for Jamal to deliberate on a case “in which he was a party.”

A secularism lobby group called Mouvement laïque québécois, and feminist organization Pour les droits des femmes du Québec had also requested that Jamal recuse himself for reasons similar to those cited by Jolin-Barrette.

In Tuesday’s letter, court registrar Chantal Carbonneau says, “The allegations made by certain parties of actual bias are completely without merit. Nor is there a reasonable apprehension of bias. A reasonable and right-minded person … would not conclude that it is more likely than not that he would not decide fairly.”

“Despite this, to avoid his participation being a distraction, Justice Jamal has decided that he will not take part in these proceedings.”

Jamal initially said he had no intention of sidelining himself from the case, when the issue was first raised on June 25.

He was appointed to the Supreme Court on July 1, 2021, and previously served as a judge on the Court of Appeal for Ontario from 2019 to 2021. Before his appointment as a judge he practised law with Osler, Hoskin & Harcourt LLP for more than 23 years.

Jamal said he served for more than 13 years on the CCLA’s board of directors, including a stint as chairman. He also represented the group as an intervener in several appeals before the Supreme Court, including two freedom of religion cases.

A spokeswoman for Jolin-Barrette said in an emailed statement the attorney general’s office was satisfied with the result. For its part, Mouvement laïque québécois declared victory and suggested the justice’s response lacked credibility.

In February, Quebec’s Court of Appeal upheld the province’s secularism law, which prohibits some public sector workers from wearing religious symbols on the job. Public servants, including teachers, police officers and judges, are forbidden from wearing religious items such as a hijab, turban or kippah. The Quebec government has long argued the law is reasonable.

The CCLA and other groups have sought leave to appeal that decision to the Supreme Court, which has not yet said whether it will hear the case.

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