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The politics of judging our judges – Toronto Star

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“Representation matters” is the refrain I have heard repeatedly since the appointment of Mahmud Jamal, a person of colour, to the Supreme Court of Canada. His appointment has been almost universally celebrated for this reason, by lawyers, politicians and the media.

My mom (a nonlawyer) even texted me the day of the announcement to express her excitement. She, similar to Justice Jamal, is an Ismaili Muslim born in Uganda, who came to Canada as a refugee (Jamal, born in Kenya and raised an Ismaili Muslim, later became a Baha’i).

But I can’t say I share my mom’s excitement. After all, “Brown faces in high places” doesn’t mean better outcomes for most Brown people, or for that matter, most Black and Indigenous peoples, or other groups who are disempowered and marginalized through the legal system. If anything, “Brown faces in high places” is a testament to the durability of colonialism and white supremacy, insulating existing power relations from critique by diversifying their hue.

A good example is Clarence Thomas, the only current Black Supreme Court judge in the United States and notorious for his right-wing judgments. Just two summers ago, the United States Supreme Court overturned the conviction of a Black man tried six times by juries that were all or almost entirely white, because the prosecutor was deliberately removing Black jurors. Justice Thomas dissented and would have upheld the illegitimate conviction.

While our legal system is no doubt different than the United States, judging remains an inherently political exercise. Judges don’t just “call balls and strikes” in applying the law. Judges are human. They decide cases based on their own view of what “justice” entails.

That’s hardly a secret; one of the most influential appellate judges in Canada, the now-retired John Laskin, put it this way: “we are powerfully influenced by the equities of the case, by the needs of real people. If we have to, we will bend the law to reach a fair result.”

But if judges decide cases based largely on what they perceive to be a fair and just result, that asks the question, how does a judge define fairness and justice? That principle becomes even more pronounced at the Supreme Court, where judges are not constrained by precedent and better able to shape the law in their own vision.

As Justice Thomas demonstrates, racial identity does not determine world view. For this reason, I care very little that Jamal is a person of colour — I’m more interested in what he thinks about the law. In my view, the greatest insight comes from his 23-year career in corporate law.

Because our legal system is adversarial, it often requires lawyers to decide which group of “adversaries” they wish to represent, which is a choice driven primarily if not exclusively by a lawyer’s politics.

For example, some lawyers decide to work for unions rather than management, tenants rather than landlords, criminal defendants rather than the prosecution, and non-citizens rather than immigration enforcement. Some lawyers don’t care who they represent and work for “all sides.” Relatedly, lawyers often differentiate clients through ability to pay — some prioritize working for low-income people on legal aid, rather than the wealthy who can afford exorbitant hourly rates.

As a corporate lawyer, Jamal worked predominantly for the powerful. Reported cases show that he represented banks, mining companies, accounting firms, and the energy industry, i.e. entities responsible for the exploitation and oppression of the vast majority.

If Justice Jamal’s chosen legal career — i.e. his decades-long commitment to furthering the interests of Canadian capital — gives some insight into his views about the law, what does that mean for people of colour, especially Indigenous peoples residing within and outside of Canada? It is they who are often on the other side of the courtroom, and on occasion, were facing off against corporations represented by Justice Jamal.

All of this is to say, it’s difficult to celebrate mere representation, when a diverse Supreme Court is not necessarily any more just. Perhaps the more pertinent question is whether reforming a colonial institution can ever be an anti-racist victory, or we should instead focus our efforts on supporting social movements in their fight for a more just world.

Riaz Sayani is a criminal defence lawyer practising in Toronto.

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Political parties cool to idea of new federal regulations for nomination contests

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OTTAWA – Several federal political parties are expressing reservations about the prospect of fresh regulations to prevent foreign meddlers from tainting their candidate nomination processes.

Elections Canada has suggested possible changes to safeguard nominations, including barring non-citizens from helping choose candidates, requiring parties to publish contest rules and explicitly outlawing behaviour such as voting more than once.

However, representatives of the Bloc Québécois, Green Party and NDP have told a federal commission of inquiry into foreign interference that such changes may be unwelcome, difficult to implement or counterproductive.

The Canada Elections Act currently provides for limited regulation of federal nomination races and contestants.

For instance, only contestants who accept $1,000 in contributions or incur $1,000 in expenses have to file a financial return. In addition, the act does not include specific obligations concerning candidacy, voting, counting or results reporting other than the identity of the successful nominee.

A report released in June by the National Security and Intelligence Committee of Parliamentarians expressed concern about how easily foreign actors can take advantage of loopholes and vulnerabilities to support preferred candidates.

Lucy Watson, national director of the NDP, told the inquiry Thursday she had concerns about the way in which new legislation would interact with the internal decision-making of the party.

“We are very proud of the fact that our members play such a significant role in shaping the internal policies and procedures and infrastructure of the party, and I would not want to see that lost,” she said.

“There are guidelines, there are best practices that we would welcome, but if we were to talk about legal requirements and legislation, that’s something I would have to take away and put further thought into, and have discussions with folks who are integral to the party’s governance.”

In an August interview with the commission of inquiry, Bloc Québécois executive director Mathieu Desquilbet said the party would be opposed to any external body monitoring nomination and leadership contest rules.

A summary tabled Thursday says Desquilbet expressed doubts about the appropriateness of requiring nomination candidates to file a full financial report with Elections Canada, saying the agency’s existing regulatory framework and the Bloc’s internal rules on the matter are sufficient.

Green Party representatives Jon Irwin and Robin Marty told the inquiry in an August interview it would not be realistic for an external body, like Elections Canada, to administer nomination or leadership contests as the resources required would exceed the federal agency’s capacity.

A summary of the interview says Irwin and Marty “also did not believe that rules violations could effectively be investigated by an external body like the Office of the Commissioner of Canada Elections.”

“The types of complaints that get raised during nomination contests can be highly personal, politically driven, and could overwhelm an external body.”

Marty, national campaign director for the party, told the inquiry Thursday that more reporting requirements would also place an administrative burden on volunteers and riding workers.

In addition, he said that disclosing the vote tally of a nomination contest could actually help foreign meddlers by flagging the precise number of ballots needed for a candidate to be chosen.

Irwin, interim executive director of the Greens, said the ideal tactic for a foreign country would be working to get someone in a “position of power” within a Canadian political party.

He said “the bad guys are always a step ahead” when it comes to meddling in the Canadian political process.

In May, David Vigneault, director of the Canadian Security Intelligence Service at the time, said it was very clear from the design of popular social media app TikTok that data gleaned from its users is available to the Chinese government.

A December 2022 CSIS memo tabled at the inquiry Thursday said TikTok “has the potential to be exploited” by Beijing to “bolster its influence and power overseas, including in Canada.”

Asked about the app, Marty told the inquiry the Greens would benefit from more “direction and guidance,” given the party’s lack of resources to address such things.

Representatives of the Liberal and Conservative parties are slated to appear at the inquiry Friday, while chief electoral officer Stéphane Perrault is to testify at a later date.

After her party representatives appeared Thursday, Green Leader Elizabeth May told reporters it was important for all party leaders to work together to come up with acceptable rules.

This report by The Canadian Press was first published Sept. 19, 2024.

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New Brunswick election candidate profile: Green Party Leader David Coon

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FREDERICTON – A look at David Coon, leader of the Green Party of New Brunswick:

Born: Oct. 28, 1956.

Early years: Born in Toronto and raised in Montreal, he spent about three decades as an environmental advocate.

Education: A trained biologist, he graduated with a bachelor of science from McGill University in Montreal in 1978.

Family: He and his wife Janice Harvey have two daughters, Caroline and Laura.

Before politics: Worked as an environmental educator, organizer, activist and manager for 33 years, mainly with the Conservation Council of New Brunswick.

Politics: Joined the Green Party of Canada in May 2006 and was elected leader of the New Brunswick Green Party in September 2012. Won a seat in the legislature in 2014 — a first for the province’s Greens.

Quote: “It was despicable. He’s clearly decided to take the low road in this campaign, to adopt some Trump-lite fearmongering.” — David Coon on Sept. 12, 2024, reacting to Blaine Higgs’s claim that the federal government had decided to send 4,600 asylum seekers to New Brunswick.

This report by The Canadian Press was first published Sept. 19, 2024.

The Canadian Press. All rights reserved.

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New Brunswick election profile: Progressive Conservative Leader Blaine Higgs

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FREDERICTON – A look at Blaine Higgs, leader of the Progressive Conservative Party of New Brunswick.

Born: March 1, 1954.

Early years: The son of a customs officer, he grew up in Forest City, N.B., near the Canada-U.S. border.

Education: Graduated from the University of New Brunswick with a degree in mechanical engineering in 1977.

Family: Married his high-school sweetheart, Marcia, and settled in Saint John, N.B., where they had four daughters: Lindsey, Laura, Sarah and Rachel.

Before politics: Hired by Irving Oil a week after he graduated from university and was eventually promoted to director of distribution. Worked for 33 years at the company.

Politics: Elected to the legislature in 2010 and later served as finance minister under former Progressive Conservative Premier David Alward. Elected Tory leader in 2016 and has been premier since 2018.

Quote: “I’ve always felt parents should play the main role in raising children. No one is denying gender diversity is real. But we need to figure out how to manage it.” — Blaine Higgs in a year-end interview in 2023, explaining changes to school policies about gender identity.

This report by The Canadian Press was first published Sept. 19, 2024.

The Canadian Press. All rights reserved.

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