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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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Gould calls Poilievre a ‘fraudster’ over his carbon price warning

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OTTAWA – Liberal House leader Karina Gould lambasted Conservative Leader Pierre Poilievre as a “fraudster” this morning after he said the federal carbon price is going to cause a “nuclear winter.”

Gould was speaking just before the House of Commons is set to reopen following the summer break.

“What I heard yesterday from Mr. Poilievre was so over the top, so irresponsible, so immature, and something that only a fraudster would do,” she said from Parliament Hill.

On Sunday Poilievre said increasing the carbon price will cause a “nuclear winter,” painting a dystopian picture of people starving and freezing because they can’t afford food or heat due the carbon price.

He said the Liberals’ obsession with carbon pricing is “an existential threat to our economy and our way of life.”

The carbon price currently adds about 17.6 cents to every litre of gasoline, but that cost is offset by carbon rebates mailed to Canadians every three months. The Parliamentary Budget Office provided analysis that showed eight in 10 households receive more from the rebates than they pay in carbon pricing, though the office also warned that long-term economic effects could harm jobs and wage growth.

Gould accused Poilievre of ignoring the rebates, and refusing to tell Canadians how he would make life more affordable while battling climate change. The Liberals have also accused the Conservatives of dismissing the expertise of more than 200 economists who wrote a letter earlier this year describing the carbon price as the least expensive, most efficient way to lower emissions.

Poilievre is pushing for the other opposition parties to vote the government down and trigger what he calls a “carbon tax election.”

The recent decision by the NDP to break its political pact with the government makes an early election more likely, but there does not seem to be an interest from either the Bloc Québécois or the NDP to have it happen immediately.

Poilievre intends to bring a non-confidence motion against the government as early as this week but would likely need both the Bloc and NDP to support it.

Gould said she has no “crystal ball” over when or how often Poilievre might try to bring down the government

“I know that the end of the supply and confidence agreement makes things a bit different, but really all it does is returns us to a normal minority parliament,” she said. “And that means that we will work case-by-case, legislation-by-legislation with whichever party wants to work with us. I have already been in touch with all of the House leaders in the opposition parties and my job now is to make Parliament work for Canadians.”

She also insisted the government has listened to the concerns raised by Canadians, and received the message when the Liberals lost a Toronto byelection in June in seat the party had held since 1997.

“We certainly got the message from Toronto-St. Paul’s and have spent the summer reflecting on what that means and are coming back to Parliament, I think, very clearly focused on ensuring that Canadians are at the centre of everything that we do moving forward,” she said.

The Liberals are bracing, however, for the possibility of another blow Monday night, in a tight race to hold a Montreal seat in a byelection there. Voters in LaSalle—Émard—Verdun are casting ballots today to replace former justice minister David Lametti, who was removed from cabinet in 2023 and resigned as an MP in January.

The Conservatives and NDP are also in a tight race in Elmwood-Transcona, a Winnipeg seat that has mostly been held by the NDP over the last several decades.

There are several key bills making their way through the legislative process, including the online harms act and the NDP-endorsed pharmacare bill, which is currently in the Senate.

This report by The Canadian Press was first published Sept. 16, 2024.

The Canadian Press. All rights reserved.

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Voters head to the polls for byelections in Montreal and Winnipeg

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OTTAWA – Canadians in two federal ridings are choosing their next member of Parliament today, and political parties are closely watching the results.

Winnipeg’s Elmwood —Transcona seat has been vacant since the NDP’s Daniel Blaikie left federal politics.

The New Democrats are hoping to hold onto the riding and polls suggest the Conservatives are in the running.

The Montreal seat of LaSalle—Émard—Verdun opened up when former justice minister David Lametti left politics.

Polls suggest the race is tight between the Liberal candidate and the Bloc Québécois, but the NDP is also hopeful it can win.

The Conservatives took over a Liberal stronghold seat in another byelection in Toronto earlier this summer, a loss that sent shock waves through the governing party and intensified calls for Prime Minister Justin Trudeau to step down as leader.

This report by The Canadian Press was first published Sept. 16, 2024.

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Next phase of federal foreign interference inquiry to begin today in Ottawa

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OTTAWA – The latest phase of a federal inquiry into foreign interference is set to kick off today with remarks from commissioner Marie-Josée Hogue.

Several weeks of public hearings will focus on the capacity of federal agencies to detect, deter and counter foreign interference.

Prime Minister Justin Trudeau and key government officials took part in hearings earlier this year as the inquiry explored allegations that Beijing tried to meddle in the 2019 and 2021 federal elections.

Hogue’s interim report, released in early May, said Beijing’s actions did not affect the overall results of the two general elections.

The report said while outcomes in a small number of ridings may have been affected by interference, this cannot be said with certainty.

Trudeau, members of his inner circle and senior security officials are slated to return to the inquiry in coming weeks.

This report by The Canadian Press was first published Sept. 16, 2024.

The Canadian Press. All rights reserved.

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