Making Supreme Court reflect today’s Canada

“It’s fantastic. It’s a no-brainer,” was how Mahmud Jamal’s nomination to the Supreme Court of Canada was greeted after its announcement last week.

The enthusiastic words came from someone who knows what he’s talking about — none other than retired Supreme Court judge Marshall Rothstein. And to look at everything Jamal promises to bring to this powerful and immensely important position is to conclude Rothstein got it right.

Talent, education, experience and past performance must always play a crucial role in filling vacancies in our highest court, and the resumé of Justice Jamal, currently a member of the Ontario Court of Appeal, is packed with all these key prerequisites.

But in the diverse nation that is Canada today, diversity must also be a major consideration. More than ever, there is an urgent need to ensure representation from qualified Canadians of all backgrounds on our vital public institutions. And in the interests of meeting this need, the choice of Justice Jamal, who would be the first person of colour on our high court, is inspired.

He is an immigrant, born in Kenya in 1967 into an Ismaili Muslim family who originally came from India. Two years later, his family settled in England and then, in 1981, moved to Canada. After marrying a Baha’i woman, Goleta Samari who was a refugee from Iran, Jamal converted to her faith.

None of this is mere window dressing. As a Supreme Court jurist, Justice Jamal could and likely will be called on to interpret Canada’s Charter of Rights and Freedoms when the rights of minority groups are in question.

His life history as a South Asian who has personally experienced discrimination because of his skin colour should provide him with an important perspective on our highest court, a perspective racialized minorities desire more than ever. The fact that, in his application for the job, Justice Jamal wrote that the high court judges’ role is, in part, to defend minorities even when it is unpopular to do so suggests he will uphold the rights and freedoms of all. Such a commitment could be crucial in winning that vital commodity, public trust.

It would be a grave error, however, to conclude that in choosing Justice Jamal for the Supreme Court, Prime Minister Justin Trudeau was engaged solely in ticking a limited number of boxes for the job. A graduate of the McGill and Yale university law schools, Justice Jamal is comfortable working in Canada’s two official languages and legal systems and is recognized as an authority on the Constitution.

Regrettably and perhaps understandably, despite all that Justice Jamal could bring to the job, his appointment has disappointed many in the Indigenous community. The Indigenous Bar Association has called on Trudeau to reserve a place on the high court for an Indigenous judge. Clearly, Justice Jamal is not the appointment the association sought.

At a time when reconciliation with Indigenous peoples is of the utmost importance, many Canadians will agree wholeheartedly that it is beyond time to have an Indigenous member of the Supreme Court. That goal should not go unmet for long. To recognize this, however, in no way invalidates the choice of Justice Jamal. As he explained in his application, he has performed pro bono work “on cases that advanced the equality rights of Indigenous peoples, civil liberties, access to justice and the rights of children.”

To be sure, Justice Jamal must still pass through a vetting process before his appointment is confirmed. At this stage, however, a country seeking to provide justice to all people from every background has much to cheer about this nomination.