Judicial Recusal at the Supreme Court: More Transparency Needed

Justice Jamal and the Supreme Court deserve passing marks for their transparency in addressing the request by the Quebec Government that the judge recuse himself in Quebec Secularism Law (Bill 21) case. This is in sharp contrast to the “F” that almost every commentator would give the high court for its dealings with the complaint against Justice Russell Brown in 2023 (see for example this scathing critique from Professor Geoff Sigalet).

Just to remind readers, the Supreme Court’s strategy in that instance was to say nothing and hope no one noticed that Justice Brown did not sit on any cases in February 2023. Of course, that was no strategy at all and Cristin Schmitz of Law 360 Canada eventually broke the story. It wasn’t quite Watergate sleuthing, just solid reporting of the like we have grown accustomed to by Schmitz and of which is all too rare these days at the Supreme Court.

In the Brown fiasco, the Chief Justice’s explanations for Justice Brown’s leave were inconsistent. Did the Chief Justice place Justice Brown on leave or did Justice Brown request a leave? In any event, the Chief Justice never made clear what the standards are for a judge taking a leave of absence in the face of a complaint to the Canadian Judicial Council (CJC). Such complaints are commonplace and often high-profile and have been levied against Chief Justices in the past, including against Chief Justice McLachlin and Chief Justice Lamer.

The next time a complaint is made against a Supreme Court of Canada judge to the CJC, the Chief Justice will either have to place (or ask?) that judge to step aside or explain why the case is different from Brown’s. In short, the Court is desperately in need of an actual policy to replace its ad hoc subjective decision making.

That brings us back to the request made by the Quebec Government to Justice Jamal that he recuse himself in the Bill 21 Quebec secularism case.

Justice Jamal and the Supreme Court deserve a passing grade for releasing his reasons to the media. In previous cases, judges have decided to recuse themselves from cases for various reasons and the public had no clue. For example, in 2000, Justice Michel Bastarache recused himself from the high-profile Latimer case. This did not come to light until Justice Bastarache published his memoirs in 2019.

The better policy is the one in place at the Supreme Court of the United States. In that Court, judges file a notice of recusal if they elect not to sit in a case. Admittedly, the situation is different than in Canada, because all nine judges hear every appeal on the U.S. Supreme Court unless they are unable to sit. In Canada, the Chief Justice sets the panel to hear a case, usually with 5, 7 or 9 justices. But the case for transparency remains the same.

The reason that the Supreme Court of Canada deserves only a “B” grade for transparency is because they did not post Justice Jamal’s reasons or a statement on their website for the public to access and assess. This is a curious and unacceptable oversight for a court that prides itself on outreach and information (see 2023 Year in Review). From media reports, it appears that Registrar Chantal Carbonneau responded to the allegations on behalf of Justice Jamal.

Consequently, we are all hampered in debating the merits of both the allegations against Justice Jamal and of his decision to recuse himself.

Instead of deciding matters by letter or press release, when a judge’s impartiality is called into question by a party, it should be done by way of motion to which the judge should respond by issuing a decision with reasons.

This is hardly an original suggestion. It is precisely how the Supreme Court of Canada has dealt with such issues in the past. Most notably, in the 1999 Arsenault-Cameron case where Justice Bastarache’s impartiality was called into question because of his language rights advocacy prior to his appointment to the bench. Justice Bastarache dismissed the motion with reasons.

The Court should clarify its rules in this and other issues and deal with matters formally in accordance with pre-established guidelines rather than resorting to ad hoc decision making where both the process as well as the result remain shrouded in mystery.