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OTTAWA –
Justice Mahmud Jamal sat down with CTV National News’ Omar Sachedina for an exclusive interview ahead of the one-year anniversary of his appointment to the Supreme Court of Canada. Jamal is the first person of colour to sit on the highest court in the country, bringing it closer to reflecting the diversity of Canada.
The judge was born to an Ismaili Muslim family in Kenya in 1967, and spent his childhood years in England after his family immigrated there when he was two years old. Life was uprooted again for Jamal when his family made the move to Canada in his teenage years, but from there he attended the University of Toronto and went on to become a lawyer, educator and an Ontario Appeals Court Judge. He converted to the Bahai faith after he got married.
Now a visible sign of inspiration for many young Canadians, Jamal discussed the importance and honour of his new role as a Supreme Court justice, as well as the journey it took to get to this position.
Here’s a full transcript of that conversation. It has been edited for clarity.
Omar Sachedina: It is quite remarkable that nearly 150 years after this court was established we’re now seeing a person of colour who occupies one of the nine seats behind you. If the law is about interpreting the facts, why does race even matter?
Justice Mahmud Jamal: Well, I think it’s important for the population to see public institutions are open to them — that they can aspire to positions of high public office, whether that’s in government or in the judiciaries. I think perspectives also matter. The first woman was appointed to the Supreme Court of Canada in 1982, and I don’t think anybody would doubt that women bring a different perspective to judging, particularly on issues such as family law, sexual assault, and so on. People’s experiences inform their perspectives, and I think the experience of being an immigrant certainly informs the way you approach the law and how you look at legal questions. So I think part of it is the institutional legitimacy of the court, part of it is inspiring young people, and part of it is the quality of decision making.
Sachedina: Are you surprised it took this long?
Jamal: The first Jewish judge was appointed to the Supreme Court, Bora Laskin, [in] 1970. The first woman in 1982, Bertha Wilson. The first Jewish female judge, Justice Abella in 2004. So these things takes take time. Was I surprised? I think there have been a number of different milestones along the way and I think now, we’re seeing in courts across Canada, more and more minorities being appointed to the bench.
Sachedina: But anytime you’re the first of anything, it carries a certain amount of burden as well. Have you felt that pressure?
Jamal: When I was appointed, it was certainly brought home to me in the young people and lawyers that contacted me and told me what the appointment meant to them. I think every judge has a responsibility in the office, but certainly I felt a responsibility to the people who are looking up to me in terms of the role in the office and what it means to them.
Sachedina: Has there been any negative reaction?
Jamal: I focus on the positive.
Sachedina: What do you think it is specifically about your background that has prepared you for the position that you’re in now?
Jamal: To be perfectly frank, I don’t think anybody’s background really prepares them for the position of being a judge of the Supreme Court. You try to bring the best experience you can, but it is such a totally different role from anything you’ve done in your past, and there is a giant leap from being a lawyer, or being a judge on any court, to then being a judge on the Supreme Court. It’s a different role with different responsibility. I was fortunate in my practice and in my role as an appellate judge though to deal with many, many different areas of law, which I think helps in making the transition.
Sachedina: What was the biggest change or adjustment?
Jamal: I think the intensity of the role and the intensity of the work. By definition, cases on which leave is granted are questions of public importance, so they affect the country as a whole, or are of such significance [that] the Supreme Court should hear them. So, the nature of the questions, the nature of the work, the nature of the deliberative collegial decision-making with so many other people, [was a big adjustment.]
JUGGLING THE DIFFICULT QUESTIONS
Sachedina: The cases that come before you and this court are a glimpse into the soul of this country. There seems to be a certain clash between individual freedoms and collective ones, which we saw manifest itself just a few months ago in Ottawa, through the trucker convoy protests.
Do you see the divide as dangerous?
Jamal: I think it’s intrinsic in any society that there are going to be situations where individual or collective interests come into tension. That is the nature of living in a community, in a society. I don’t think it’s getting better or worse, necessarily. I think it’s just the nature of human beings with differences, trying to live together in a community in a tolerant, respectful way.
Sachedina: It seems though that in some ways it’s getting sharper and more pointed.
Jamal: Everybody’s a publisher at this point with social media, and so I think there are more outlets for people to express themselves. There are more outlets for people to receive that information. I think that does have an amplifying effect on communication, and that’s just the nature of the evolution of society and technology.
Sachedina: Does it concern you?
Jamal: Obviously online hate concerns me. Cyber bullying concerns me. Those sorts of things concern every informed citizen, but we have to maintain the balance between freedom of expression and protection of people’s rights and their interests.
Sachedina: You talked a little bit about how representation and diversity matters. Do you think that somebody with your background has a better perspective to hear a case such as Quebec’s Bill 21, the ban on religious symbols, than your colleagues?
Jamal: I think every one of the nine judges on the Supreme Court of Canada brings their own perspective to the role, and nine people from different regions of the country, different linguistic backgrounds, genders, bring different experiences and perspectives. Nobody’s experience or perspective is better than anybody else’s.
Sachedina: In your questionnaire, as part of the appointment process, you were asked a very specific question. Who is the audience for Supreme Court of Canada decisions? As part of your answer, you wrote the Canadian public. Certain cases spark stronger reactions than others, such as the recent decision to allow extreme intoxication as a defense for violent crime.
When you’re thinking of a decision, how conscious are you and how conscious is the court of public sentiment before the decision is released?
Jamal: I think particularly Chief Justice Wagner has been very concerned about communicating decisions clearly and intelligibly. He’s to be commended for that. Do we decide on the basis of public sentiment? No. We decide on the basis of the law. Do we think about the reaction to a decision? Of course we do. But it isn’t something that drives the decision. At the end of the day, we decided according to our best view of what the law is and what the evidence shows.
Sachedina: Do you think that justices should be at least given the opportunity to defend their decisions, if there is strong public reaction?
Jamal: The traditional role of a judge is to speak through their decisions. It’s not to engage in debate outside the realm of the decision. We try to be faithful to our oaths, to decide as best we can.
Sachedina: In the U.S., we are seeing a massive backlash as a result of a leaked draft decision that will reverse a woman’s right to choose.
The impact on abortion rights is one issue. The fact that there was a leak in the first place is another issue. Your thoughts on both?
Jamal: I can’t really comment on what happened in the United States, but we certainly have very robust protocols on confidentiality to ensure deliberative secrecy so that we can have that open exchange — because it is in that robust discussion that the ideas get clarified and refined. The reaction obviously reflects the division that exists. I think our legal and political culture is much less divided than it is in the U.S. and I think it makes for a more harmonious exchange of ideas than it would if it were much more acerbic.
REFLECTING ON THE ROAD HERE
Sachedina: What do you think it is specifically about your background that has prepared you for the position that you’re in now?
Jamal: To be perfectly frank, I don’t think anybody’s background really prepares them for the position of being a judge of the Supreme Court. You try to bring the best experience you can, but it is a, it is such a totally different role from anything you’ve done in your past and there is a giant leap from being a lawyer or being a judge on any court to then being a judge on the Supreme Court. It’s a different role with different responsibility. I was fortunate in my practice and in my role as an appellate judge though to deal with many, many different areas of law, which I think helps in making the transition.
Sachedina: What was the biggest change or adjustment?
Jamal: I think the… intensity of the role and the intensity of the work. By definition cases on which leave is granted are questions of public importance, so they affect the country as a whole and or of such significance to the Supreme Court should hear them. So, the nature of the questions the nature of the work, the nature of the deliberative collegial decision making with so many other people,
Sachedina: There was a powerful moment at the confirmation hearing of the first Black U.S. Supreme Court Judge Ketanji Brown Jackson where Senator Cory Booker said to her, ‘I know what it’s taken for you to sit in that seat.’
She was overcome with emotion, and I’m wondering if you’ve had a chance to reflect on your own moment, and what it means not only for you but for the country?
Jamal: I think any person in this role, if they think too much about the institution and the scope of the decision-making, the impact of the decision-making, it can become overwhelming, so I try to focus on the task at hand and not be too much in the clouds. My background informs the way I look at the world and perhaps how I approach issues to some extent, but it isn’t a determinative consideration, it’s a consideration. My parents certainly taught me the value of hard work, so that aspect of the job is something that I always embraced.
Sachedina: How did they react when they found out about the position?
Jamal: They were obviously extremely happy and proud and delighted, and I think it was an affirmation of the sacrifices they’ve made for myself and my siblings, so that was very touching.
Sachedina: People will look at you now, look at the fact that you’ve had a prolific career you are now at the pinnacle of, [in the] highest court in the country. What has it taken to get to that point?
Jamal: It’s not me. It’s my parents. They’re the ones who sacrificed by moving twice, first from Kenya to the U.K., and then from U.K. to Canada, being immigrants twice and starting all over again twice, and that’s a sacrifice. I feel very humbled and very grateful that they they did what they did. Had I grown up in the U.K., for example, I don’t think I would have become a lawyer. I certainly wouldn’t have become a judge, and there is zero chance, I think, I would have become a judge on the highest court in the land.
Sachedina: Explain that difference to me in culture.
Jamal:Canada when we arrived was a much more open, tolerant, progressive country, and one where there was greater opportunity for young Canadians. I think there was more opportunity for me here than there would have been had I grown up in the U.K.
Sachedina: Were there examples where you didn’t feel welcome?
Jamal: I’ve pretty much always felt welcome here. I’ve always felt this is a country where everything is in place. We have issues, of course, but I certainly felt very welcome here.
Sachedina: You are, of course, a husband and father of two boys. As in any household, there is sibling rivalry from time to time, and I’m just wondering, as a father, how did you adjudicate those conflicts? Was it fairly and in a manner that was impartial?
Jamal: I think you should ask my children that question, but I hope as respectfully and as sensitively as possible. Two young boys were a challenge at times, trying to navigate their differences. They’re not the same. You think your children are going to be like you, like your wife, but of course they’re all individuals and they grew up with their own personality.
Sachedina: You are 55 now. The mandatory retirement age is 75. Twenty years from now, what do you hope your impact will be?
Jamal: I don’t think too much about the sweep of impact in that sense. I try to do the best job I can in each individual case before me, and at a later point, somebody else will be able to connect the dots. But for me, [the focus] is to really try and decide one case at a time. I hope people would say that I came to court with an open mind and that I decided according to the law and according to the evidence, even if they disagreed with the decision. That I did the best that I could. I think that’s what any judge wants at the end of the day, because you’re not going to please everybody, by definition. There’s going to be one side that wins and another side that loses, so you try to have the respect and consideration of even the losing party when they read your decision.
Sachedina: You had told me earlier that you did not want this interview to be about you, but there are so many children and so many young children who see in you the promise of possibility. I’m wondering, what do you tell them? What is your message for them?
Jamal: I tell them to work hard to stay in school as long as they can. To not believe anybody that tells them something isn’t possible. And to remember that this is a great country where anything is possible, and if they work hard and stay in school, strive, hopefully things will happen for them.
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