Justice Mahmud Jamal’s appointment and the significance of diversity on the Court
Justice Mahmud Jamal’s appointment to the Supreme Court of Canada (SCC) marked a momentous achievement for representation. He is the Court’s first member of a visible minority group and also its first adherent of the Baháʼí Faith. The move was largely celebrated, and for good reason—the colour of a person’s skin and the faith they hold invariably influence their sense of judgement. Thus, embracement of diversity can imbue an institution with perspectives, experiences, and considerations that it might not otherwise have had. The nation’s highest court is surely not immune to this type of enrichment, and so the legal community—and particularly the contingents of that community belonging to a racial and/or religious minority—is undoubtedly curious to see what Justice Jamal will contribute to the Supreme Court Stone Soup.
The appointment is also expected to increase “confidence in the justice system,” as some have said; by now, that phrase is branded in every law student’s head, but is perhaps too mechanical to accurately capture the stakes. Justice is a result, not a process, and so perhaps what we’re really asking is, “Can we trust the Canadian legal system to give us justice?” Surely a semantic difference, but a significant one. Consider ability and image, two components integral to building confidence.
Courts are not infallible, and indeed, we can assume every legal system will have its share of poorly-reasoned judgements, overly insensitive or prejudicial ones, and rulings that contort the law to lend credence to idiosyncrasies and personal bias. Though we tolerate this to some degree, in recognition that even poor judgements may serve a purpose, a steady stream of unacceptable or offensive decisions will chip away at the confidence people have in their courts.
Degradation of trust in the judiciary may also be achieved wherever a population, either whole or in part, believes the system is not built, willing, or able to do right by them. Image informs perception, and so the makeup of the SCC sends a message before it ever pens a word. What is the message, precisely? To a coloured person, a queer person, a person with unconventional faith, it may be that they will not in fact be judged by their peers, in the truest sense. Consider this. In the 145 years between its conception and July 1, 2021, the SCC had an all-white bench. Not one of its 90 justices have been queer, at least openly, and it took until 1970, the year of Justice Bora Laskin’s appointment, for a non-Christian to sit on the bench. How could an outsider not be intimidated?
There are certainly those who, despite belonging to one or more minority groups, rarely feel as though they’ve been marginalized and have no problem with the legal system as it is. I suspect the opposite holds true for many more. The level of confidence inspired in those people seems to depend on their answer to the following question: can we be sure the legal system will take us seriously enough for us to take it seriously? As a visible minority, I can tell you I anticipate courts will treat me with less fairness. I expect the judge to be an adversary, equivalent to opposing counsel. Is this what the kids call paranoia? Am I being too presumptuous? Perhaps it may seem that way, but the sentiment is not unfounded.
How can you be sure a court will do justice by the experiences, circumstances, and all else that shape your unique identity and membership within a given community, when that court has never had the benefit of seeing through the eyes of someone like you? At what point does impartiality act as a disguise for ignorance? Unless we contend that judges are remarkable modern-day Übermensch, capable of removing their humanity from their ideals and reason entirely, we must accept that they express, in some way, their personal preferences, importing the totality of their life lessons to inform their judgement. When an institution is dominated by people cut from the same cloth, holes can be found everywhere. And though there have been instances where judges ruled contrary to their instincts and personal philosophies, that does little to placate perception. For example, a teacher who, in their spare time, donates to a movement organized by white supremacists may very well treat everyone in their classroom with respect, but it would be unrealistic to believe perception of the former action will or should not seep into and colour the latter. An assurance of impartiality, on its own, is not enough to establish a sense of security in society’s marginalized factions. In extreme instances, as in my unfortunate teacher hypothetical, it may have the exact opposite effect.
That is precisely why Justice Jamal’s appointment is important. Not only is it a chink in the status quo, it’s a significant marking point in the barometer of our nation’s commitment to diversity at the highest level. It’s a step in the right direction, but make no mistake—it does not abracadabra away embedded fears and deep-rooted distrust. It will take time, continuous reflection, and considerable effort for the SCC to engender confidence in those it has historically overlooked and mistreated. And of course, there is still much room for improvement. Is it an oversight, for example, that despite having history in the country spanning nearly four centuries, no Black-Canadian has been appointed to the SCC? Or that, somehow, for all the talk of reconciliation and recognition of alternative legal systems, no Indigenous person has ever been appointed? Let’s call a spade a spade. These are embarrassing, grievous omissions.
The appointment of Justice Jamal is a type of vindication, a significant foothold in a looming cliff. But there are many perspectives, stories, and ideologies that have not yet reached the other side of the bench. We’ve advanced just a little closer to the peak, but there’s a lot left to do to continue the upwards climb.
