CO-WRITTEN BY ANVER M. EMON
The Canadian Judicial Council recently disclosed material related to complaints made about Justice David Spiro. This material is both enlightening and startling and includes a letter from the Chief Justice of the Tax Court that says that Muslim lawyers and litigants will be secretly excluded from Justice Spiro’s courtroom.
In the Fall of 2020, a number of individuals and groups filed complaints with the Canadian Judicial Council (CJC) about certain actions taken by Federal Tax Court Justice David Spiro. In early September of that year, Justice Spiro had spoken to the Assistant Vice-President Fundraising (AVP) at the University of Toronto, indicating his opposition to the appointment of Valentina Azarova as director of the law faculty’s International Human Rights Program (IHRP). Two days after this conversation, the hire was cancelled by the Dean of Law.
Justice Spiro is an active alumnus of, and significant donor to, the law school. Prior to his appointment to the Tax Court, he was also a board member of the Centre for Israel and Jewish Affairs (CIJA). The leadership of CIJA had asked Justice Spiro to inform the university that the hiring of Azarova as IHRP director would be objectionable to the Jewish community and would lead to protest and loss of donations. The objection to this candidate was based on her scholarly writing, some of which focused on the rights, under international law, of the Palestinian residents of territories occupied by the state of Israel.
After reviewing submissions from both the complainants and Justice Spiro, the CJC decided that while the judge had shown poor judgment in raising the matter with the university official, his error was not serious enough to warrant removal from the bench. The CJC accepted that Justice Spiro “properly recognized the mistakes he made and expressed remorse”. That decision is now being challenged, and as part of this process, the CJC disclosed the material submitted to it during its inquiry.
The Decision to Intervene in a Confidential Hiring Process
From this material we learn that CIJA was alerted to the hire by an email and memo from Gerald Steinberg of NGO Monitor, an organization that blacklists academics and organizations (like Human Rights Watch and Amnesty International) that it views as anti-Israel. Steinberg stated that he learned of the hire from a “faculty member”. In the email to CIJA, Steinberg suggested that “through quiet discussions, top university officials will realize that this appointment is academically unworthy, and that a public protest campaign will do major damage to the university, including in fund-raising.” Justice Spiro, a donor, conveyed this to the AVP, a fundraiser.
The material also includes an email exchange between Justice Spiro and the AVP that occurred shortly after the phone call in which Spiro raised his concerns about the hire. In its decision the CJC noted that “Justice Spiro specifically declined to approach the Dean of the Faculty as he found it to be inappropriate” and that he was simply “voicing his concerns about the potential impact of the appointment and associated controversy on the University and the Faculty, as opposed to actively campaigning or lobbying against the appointment.” These emails, though, clearly show that Justice Spiro knew the AVP intended to pass his concerns on to the Dean of Law, that he wanted to be kept in the loop about the status of the (confidential) hiring process, and that he was ready to provide additional information to the university. We also learn from the disclosed material that Justice Spiro raised his concerns about the hire with a retired but still active member of the law faculty and provided that faculty member with a copy of the NGO Monitor memo. We do not know if this faculty member spoke to the Dean or anyone else about the hiring issue. This faculty member later provided a letter of support for Justice Spiro to the CJC. So, we learn that Justice Spiro sought to do indirectly through others what he knew was wrong to do directly (communicate with the Dean).
The Inadequacies of the Cromwell Report
In an earlier blog post, one of us described the many inadequacies of the Cromwell Report, which was commissioned by the university following the cancellation of the search process for the IHRP director. After reading through the material from the CJC, we can add to that list of omissions and distortions.
Why did Cromwell not mention in his report Justice Spiro’s call and email to a law faculty member? There can be little doubt that Justice Spiro informed Cromwell about this communication since it was included in his material to the CJC.Was this faculty member in touch with the dean or any other administrator? Did Cromwell refrain from asking obvious follow-up questions? or did he just decide not to tell us the answers?
We can now read in the CJC material the email exchange between Justice Spiro and the AVP that Cromwell had seen when preparing his report. It is clear from these mails that Justice Spiro was not simply raising a concern and then disengaging. Why did Cromwell not ask whether the AVP directly contacted the dean? For reasons that are unclear, Cromwell’s report gives a very cryptic account of the communication that occurred between the AVP, the Dean, and other law school administrators.
In his report Cromwell said that a “professor” from outside Canada had communicated with CIJA asking it to intervene in the hiring process. This description gave the impression that the objections to Azarova involved a serious engagement with her work. The CJC material, though, tell us that this professor was Gerald Steinberg, a right-wing political activist (whose academic background is in the sciences) who readily labels any individual or organization (such as Amnesty International, Human Rights Watch) that is critical of Israel as anti-Semitic and/or supporters of terrorism.
Whatever else one can say about the Cromwell Report, the material shows that it did not provide the promised ‘comprehensive, factual narrative.’
Judicial Bias and the Exclusion of Muslims
Perhaps the most stunning document included in the material released by the CJC was a letter from the Chief Justice of the Tax Court. In this letter the Chief Justice said that to avoid the perception of bias, Justice Spiro would not be permitted to hear cases involving any litigants or lawyers “who could be thought as being Muslim or of the Islamic faith”. The letter does not tell us how the court intended to identify Muslims – based on name or ethnicity, or country of origin or ancestry? The judge would continue to hear cases, but Muslim lawyers and litigants would be excluded from his courtroom. This is an odd and troubling response to a concern that the judge might be biased or perceived as such because of his actions.
The Chief Justice’s startling error in judgment was not that he defined the group incorrectly – that he should have focused not on Muslims but on Arabs or Palestinians (many of whom are not Muslim. It was that the Chief Justice failed to grasp the character of the perceived bias. The target of Justice Spiro’s biased intervention is neither Muslim nor Arab. Valentina Azarova is a highly regarded international law scholar who has written about the rights of Palestinians. Her exposition of international law was enough for Justice Spiro to lobby against her candidacy, and so it would seem that the alleged bias is against anyone who holds a different opinion than Justice Spiro (or perhaps CIJA) about the legality of the Israeli occupation. This should surely set off alarm bells about the fitness of a judge whose job it is to hear and weigh legal arguments impartially.
If Justice Spiro objects to the international legal defence of the rights of Palestinians, it would hardly be surprising if a Palestinian or Arab litigant, or a charitable organization that provided support for Palestinians, felt that Spiro could not fairly judge their case.
The CJC accepted that Justice Spiro harboured no bias against Palestinians, Arabs, or Muslims in part because he had met with a few well-placed Palestinians while he sat on the board of CIJA, had lunch with an Arab, and worked with people who have Muslim/Arab sounding names or brown skin. The “some of my best friends” defence has been discredited everywhere it seems except at the CJC.
If Justice Spiro is perceived to be biased against those who defend Palestinian rights, even when this defence is made in the dry language of international law, then he may be unfit to hear any case and not just those involving Muslims. Despite the findings of the CJC, the jury is still out on this judge.
**Richard Moon is married to a member of the search committee that recommended the appointment of Valentina Azarova as director of the IHRP.