A New Wrinkle on Judicial Conduct Allegations

It seems the Tax Court of Canada added its own wrinkle to the complaints last year to the Canadian Judicial Council about Justice David Spiro’s intervention in the hiring of a new Director of the University of Toronto’s International Human Rights Program (“the Program”). (See the The Globe and Mail (“The Globe”) stories about the Tax Court here and about Justice Spiro’s intervention here).

A Faculty of Law hiring committee at the University of Toronto recommended the appointment of Dr. Valentina Azarova as the new Director of the Program. Dr. Azarova’s scholarship concerned Palestine-Israel relations. Justice Spiro raised the proposed appointment with an Assistant Vice-President in a fundraising call. He knew, he said, that he could not call the dean, but presumably he expected his message would get passed along to the dean. He explained he wanted to be sure the Faculty did its due diligence in the appointment process because the choice could be controversial. He raised the matter at the instigation of The Centre for Israel and Jewish Affairs, of whose Board of Directors he had been a member before his appointment to the Bench. He and his extended family had also been significant donors to the law school.

Several organizations and individuals filed complaints with the Canadian Judicial Council (“the CJC”) alleging Justice Spiro’s comments constituted judicial misconduct. The CJC described the complaints as alleging that “[t]he conduct of Justice Spiro … put the integrity and impartiality of the Tax Court of Canada in jeopardy, and cause[d] any party or lawyer before the Court who is Palestinian, Arab, or Muslim to reasonably fear bias.” A Judicial Conduct Review Panel concluded Justice Spiro’s comments reflected his long relationship with the Faculty of Law and did not constitute an effort to exert pressure on the actual decision through his judicial position. The CJC’s Director of Communications, in setting out the Review Panel’s decision (rather than publishing the actual decision, it appears), noted,

The Review Panel did find, however, that it was an error for Justice Spiro to raise such concerns in the manner he did. The judge properly recognized the mistakes he made and expressed remorse. The Review Panel found this error serious but that it did not warrant removal of Justice Spiro from office.

The decision also stated that Justice Spiro had worked to build bridges between the Israelis and Palestinians and “nothing in the career of Justice Spiro or his work supports the suggestion of perceived bias on his part against Palestinian, Arab or Muslim interests.”

Groups and individuals who filed the complaints have sought judicial review by the Federal Court of the CJC’s decision.

According to The Globe, while the matter was before the CJC, the Tax Court

was screening counsel and litigants to prevent members of the Islamic faith from being involved in cases before him. Justice Spiro would recuse himself immediately, even late in a case – “from any file at any time” – if anyone involved appeared to be of the Muslim faith, Tax Court Chief Justice Eugene Rossiter said in a letter to the judicial council. (The Globe and Mail here)

The Tax Court took the step as a matter of “perception”. More specifically, the Chief Justice of the Tax Court wrote to the CJC as follows:

“The Tax Court has taken the initiative, for perception purposes, of having all files that have been assigned to Justice Spiro … reviewed by the Associate Chief Justice of the Tax Court of Canada to ensure that, to the best of the Associate Chief Justice’s assessment … no files upon which he will adjudicate will have, as parties or agents or counsel, anyone who could be thought of as being of Muslim, or of the Islamic faith.” (Quoted in The Globe)

This screening continued until May this year when the CJC released its decision dismissing the complaints against Justice Spiro.

(My references below to comments about the Tax Court’s initiative come from The Globe‘s story.)

Called “unprecedented” by Emeritus Professor Peter Russell, this screening is based not only on religion, but also on perceived religion. Another major concern about the Tax Court’s screening is that it was effectively a secret: the Tax Court did not publicize it. Thus, as commentators pointed out, it is hard to say who was able to “perceive” it.
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It is not clear how the Chief Justice was to determine whether a party might be “thought” Muslim or of the Islamic faith. Certainly, there could be cases where the facts make it obvious that a party is an adherent to Islam (the issue or references to religion, for example). One must exercise a certain amount of judgement, though, in deciding whether a party is “thought” to be Muslim or a follower of Islam. Did the Chief Justice decide based on names? How many non-Muslims and non-adherents to Islam did this effort catch?

I recall many years ago when I ran in a federal election being involved in a debate where the candidate for another party mentioned “there are no Aboriginal people here” (I can’t recall the context that would elicit this statement). I said I was unable to tell whether there were Aboriginal people attending the debate: one couldn’t necessarily tell by appearance. The Chief Justice’s task was even more difficult, being based on written materials. As for those he missed (actual or “thought of”), had they heard about this culling of parties and representatives: would they be prompted to call the Chief Justice?

Justice Spiro could recuse himself: was he to ask parties and representatives whether they were Muslim? If he “thought” someone was Muslim or adherent to Islam, would he disappear from the Bench? Was it enough that a party or agent might be Muslim, even if they were not concerned about Justice Spiro’s impartiality? The Globe and Mail indicated there is no information about the impact of this measure or whether either the Chief Justice or Justice Spiro activated it.

Two commentators in The Globe‘s story expressed concern that Justice Spiro would continue to sit under these circumstances. Professor Amy Salyzyn suggested the better course might be, given the particular allegations of group bias, to have the judge take leave while the CJC underwent its process. However, The Globe quotes another commentator, Anver Emon, the Canada Research Chair in Islamic Law and History at the University of Toronto, as saying the measure raised “‘a red flag'” for the CJC about Justice Spiro’s fitness as a judge. Professor Mohammad Fadel expressed a different perspective, arguing that the screening “‘reinforces casual Islamophobia and casual antisemitism, for that matter. It suggests … that it’s not unreasonable for Muslims to believe that a Jewish judge would be biased against them.’”

I share some of these concerns about the Tax Court’s initiative. It might be that a judge should take a leave when subject to allegations to the CJC. However, it is easy to make a complaint (something lawyers are familiar with), even anonymously, as is possible under the CJC’s processes.

Complaints do, however, go through stages of screening, first by the Executive Director and then by the Chairperson of the Judicial Conduct Committee. The reasons the Executive Director might dismiss a complaint include because it is “trivial, vexatious, made for an improper purpose, [is] manifestly without substance or constitute an abuse of the complaint process” and because it is “not in the public interest and the due administration of justice to consider.” One wonders how many of these complaints there are. Once a complaint moves on to the Chairperson, the process become lengthier. (See the CJC’s complaint process here.)

If judges are required to take a leave regardless of the complaint, obvious problems with judicial complement and, indeed, judicial reputation might arise. (People may consider this latter factor as having different consequences or think that ordinary people charged with offences may suffer damage, too, even though they are technically considered innocent. This is true; however, when judicial reputation suffers, the reputation of the judiciary itself suffers, depending on the outcome.) And do they again take a leave when the complainants file for judicial review?

Presumably, requiring judicial leave, then, would also require the chief justice to decide whether it is appropriate in the particular case. Professor Salyzyn wonders, “’If a judge is not able to hear cases involving any member of an entire religion … there is a real question about whether the judge should be hearing any cases at all until the matter is resolved.’”

I agree with Professor Salyzyn that a party with a concern about bias or appearance of bias should normally raise the objection to the judge’s presiding over the case in open court. This is the appropriate process, at least as far as typical conflict of interest issues arise. On the one hand, the allegation that a judge is biased against all members of a particular group does raise questions of how frequently “on the spot” allegations would occur. On the other hand, it should also require considerable evidence, where available, of when the judge has exhibited bias in previous cases or, perhaps, yet, in other aspects of their life. (For what it’s worth, and it evidently isn’t worth anything to some of the organizations and people involved, the CJC did find Justice Spiro had not exhibited bias against parties. I do not know, however, whether, the material those filing the complaints and now seeking judicial review have cited any specific examples of bias.)

Taking The Globe‘s quotation at face value, the comment giving me most concern is Professor Emon’s: “’If you have to remove a judge for every case involving an identifiable group, why is that judge serving?’” He said the policy should have been a “’red flag’” for the judicial council that Justice Spiro’s fitness as a judge was in question.” (The Globe printed a letter in today’s paper from an individual identifying herself as a lawyer, to the same effect: “We shouldn’t be saddled with judges like David Spiro, who has to be removed from cases involving Canadians who happen to also be Muslim, and reminded of his obligations less than two years into his appointment.”)

The implication here is that the judge should be removed from the Bench whenever a group files a complaint that would lead to the court’s not scheduling that judge on cases involves members of the group. Or, as the letter seems to suggest, removal is warranted simply because a group files allegations. Recall that the Tax Court’s measure is to make sure the judge does not sit on particular cases while the CJC investigates the allegations. One might question this approach, but it is not meant to presume guilt. That is what the inquiry is for, to determine whether the allegations are substantiated, although, of course, those making allegations may not trust the inquiry at all or may have particular concerns about it. And there is no doubt that the CJC has received its share of criticism about various judicial conduct inquiries.

The first thing I thought of when I read this comment as The Globe states it, is the discord in the United States about voting. Former President Trump and his allies developed “the Big Lie” that the 2020 election was fraudulent; those seeking to restrict voting are using this lie that the election was fraudulent to make voting harder and through some measures, changing processes from the ballot box to the legislatures.

I have not read the actual complaints about Justice Spiro and am not suggesting they are lies (at a minimum, it is obvious he made the comment to the Assistant Vice-President and he shouldn’t have). What I am suggesting is that to remove Justice Spiro prior to consideration of those complaints to determine their validity is to act on an assumption or acceptance of what may turn out not to be valid.

The reality is that Justice Spiro is only one part of a major conflict revolving around views on Palestine and Israel that goes far beyond him. That does not mean that the CJC should not properly examine his conduct, which was troublesome at the very least. And it does not mean that the complainants are neither entitled to file complaints with the CJC nor seek judicial review of the CJC’s decision. But it does mean that the Tax Court should take care before it leaves itself open to a perception that its response to complainants is selective judge assignments.

Lawyers commonly talk about why judges are assigned to particular cases or be selective about the judges sitting on their cases. It hardly becomes the Tax Court to confirm rumours or encourage lawyer selections by carrying out selections in secret. If the Chief Justice believes this is the correct approach, he should not be ashamed to say so out loud.