‘Muslim ban’ involving judge done in secret

The recent revelation that a Canadian court secretly screened out “anyone who could be thought as being of Muslim or of the Islamic faith” from appearing before a judge of that court is unprecedented.

This made-in-Canada Muslim ban is utterly un-Canadian.

The ban was apparently issued after complaints were filed with the Canadian Judicial Council because the judge in question purportedly participated in an attempt to block the hiring of a scholar for her writing on Palestine. The Canadian Judicial Council’s decision to do little about that involvement is currently under judicial review.

No Canadian court has ever reviewed court cases to prevent members of a particular religion, race, gender, sex or sexual orientation from appearing before a particular judge. The reason is obvious: this is textbook discrimination. Imagine a law that prevents Catholics from applying for passports at certain government offices. Or a hospital refusing treatment to Black Canadians by certain doctors.

In any other context, we would call this what it is — a fundamental and obvious breach of the principle of equality, basic charter principles, and human rights codes.

The Tax Court of Canada implemented its Muslim ban in secret. It never told anyone that it had started screening out people that it considered Muslim. We only know that this was done because of a letter disclosed in a lawsuit brought against the Canadian Judicial Council for its handling of numerous complaints against a particular judge. The first time the court publicly acknowledged its ban was when it was contacted by the media last week. Had the lawsuit not been brought and the question not asked, no one would have known.

The implementation of the Muslim ban was also discriminatory. According to the letter, the associate chief justice of the Tax Court would review the court’s files “to ensure that to the best of the associate chief justice’s assessment, in accordance to the information on the file,” any case involving anyone whom the associate chief justice deemed to be Muslim would be treated differently. Having a senior judge religiously profile members of the public and lawyers on the basis of their names, or the issues raised in their cases, is exactly the opposite of equal justice for all.

The Muslim ban involved, or was known to, at least eight judges from across Canada: the chief justice of the Tax Court, who implemented it; the associate chief justice of the Tax Court, who carried it out; the judge of the Tax Court in front of whom Muslims were barred from appearing; and the five judges who participated in the Canadian Judicial Council review of the complaints.

The five judges are the associate chief justice of the Court of Queen’s Bench of Alberta, the chief justice of the Supreme Court of British Columbia, the chief justice of the Court of Queen’s Bench for Saskatchewan, the chief justice of Quebec and a judge of the Superior Court of Quebec. None of these judicial officials saw any issue with the ban, nor any need to publicly disclose it. A truly national scandal.

The ban also demonstrates a worrying fixation on Muslims. As the Canadian Judicial Council explained publicly, numerous complaints were filed relating to the judge’s “alleged interference in the appointment of a director of the International Human Rights Program of the Faculty of Law at the University of Toronto,” concerns that “the integrity and impartiality of the Tax Court of Canada” were in jeopardy, and concerns that “any party or lawyer before the Court who is Palestinian, Arab, or Muslim” might fear bias.

Why, then, did the Tax Court hone in on Muslims instead of “Arabs,” “Palestinians,” or, for that matter, scholars of international human rights law?

It would be entirely fair for Canadian Muslims to ask themselves whether our federal institutions are immune from the same discriminatory sentiment that motivated Bill C-21 in Quebec.

Canadians of all religious and ethnic backgrounds should be asking themselves what can be done to ensure Canada’s courts reflect the population they serve — and to ensure that no court ever institutes any ban of any kind ever again.