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.

Comments

  1. In response to your concerns about my remarks in the Globe and Mail, your analysis presumes Rossiter’s measures were temporary, pending the outcome of the CJC hearing. But a review of his letter reveals nothing of the sort. The only way you can assume this was temporary is if you believe the communications officer of the court, Sophie Matte, who Sean Fine interviewed. But as the court never disclosed this “temporary measure” and has no obligation to do so, how certain are you that this was and remains temporary or simply a “cover your ass” moment for the Tax Court? The wording of Rossiter’s letter reads as follows: “Justice Spiro will recuse himself from any file at any time In which it appears to him they either the counsel, representative of any litigant, or a litigant is a Muslim or is of the Islamic faith immediately.” Any file at any time. There is no indication of temporary measures in this letter. Or perhaps I’m to read your remarks as suggesting that Rossiter described how he’d protect the integrity of the justice sector in an unartful, incautious, even inept manner.

  2. Thank you for this thoughtful analysis, Patricia.

    On the question of concerns that would arise if there was a general practice of a judge being required to take leave merely on the basis of complaints, I’d underscore your point that, here, the matter had been screened to a Panel, which means that it was determined that the “complaint may be serious enough to warrant the removal of the judge.”

    This is a significant threshold and it is statistically rare for a complaint to reach this stage. The latest report of the CJC that I could find reported that “from April 2019 to March 2020, the Council reviewed 648 files of which 335 were opened as complaints” and then of course in only a vert small handful of these a Panel would be constituted (https://cjc-ccm.ca/sites/default/files/documents/2020/2020-04-09%20Report%20to%20Canadians%20on%20the%20work%20of%20Council_0.pdf).

    Should there be a blanket policy of judges taking leave when a complaint reaches the stage of a Panel? A blanket policy could help dissuade improper inferences in any individual case that a judge taking leave somehow concedes guilt or some sort of wrongdoing? I’d be interested in any thoughts on potential downsides of this approach.

    Amy

  3. Response to Anver Emon: I agree your comment seems appropriate if the Tax Court’s measure re Justice Spiro applies both during and after the CJC’s decision, that is, it is intended to be permanent. And you’re also right that I was basing my comment on the “assumption” that the measure was temporary. I have no other information about that than Sophie Matte’s statement, which I took to reflect the position of the Tax Court, since she is a spokesperson for the Court. And it makes a certain amount of sense (putting aside the merits of the measure otherwise for now) that the measure would only apply until the CJC cleared Justice Spiro. Having said that, I still believe the measure raises considerable problems, whether it is temporary or permanent (but more if it is permanent, given the CJC’s decision, whether one agrees with the decision or not), for reasons I referred to in my post and mentioned by others. But also see my response to Amy Salyzyn’s comment.

  4. Response to Amy Salyzyn: I agree a universal policy of a judge being required to take leave, regardless of the nature of the complaint, once the matter is referred to a review panel has merit. I’m not sure there is a downside at this point except for the administration of the court, as long as it is clear that the requirement is a standard one. Automatic leave is cleaner than trying to identify potentially “problematic” cases. There is also the benefit that judges would not be dealing with the CJC inquiry at the same time as hearing/deciding cases. It is certainly preferable than the Tax Court measure, which I see as having many problems.

    Once the CJC has made a decision dismissing the allegations, the judge would resume sitting. And then if there’s a judicial review? Another leave? I would be inclined to say “no”.

    I was reminding myself of the provisions in Bill S-5 (despite its dying on the order paper). First, complaints by the Council or anonymous complaints don’t even go to a screening officer. Then, contrary to the current process, the (new) screening officer can’t dismiss complaints of sexual harassment or discrimination. All these go to a reviewing member who can dismiss on the same grounds as the screening officer could dismiss other types of complaints. Or refer to a three-member review panel. Unless I’m missing something (quite possible), the reviewing member may not believe that the judge’s conduct warrants removal, but one of the other penalties the review panel can impose.

    So should the leave begin at this point (review by the three-member panel) or not until the three-member review panel refers the complaint to the Council to establish a five-member full hearing panel because it believes removal may be warranted, should it do so?

    But given that complaints about sexual harassment and discrimination are treated differently in this process, albeit only adding another step (and, perhaps more importantly? the involvement of a Council member), should the leave occur when the allegations are made or at some intermediate point or not until, like other complaints, (I would argue) the referral to a full hearing panel? My concern is (and I’m not talking about the complaints against Justice Spiro here) that, although they are very serious accusations, they may nevertheless be made in bad faith. In that sense, I don’t see them as any different from other complaints, despite the slightly different treatment under S-5.

  5. If it is reasonable (as I think it is) to suggest that some complaints to the CJC may be made in “bad faith”, is it reasonable to consider the possibility that the handling of complaints is not always undertaken in good faith? I think it is.

    We have a lot of information about the record of the CJC that we can access. I noticed today something else, a NEWS item, posted on the website yesterday – https://cjc-ccm.ca/en/news/report-review-panel-regarding-honourable-de-spiro. It links to the actual review panel report. Why wasn’t that report made publicly accessible with this Press Release – https://cjc-ccm.ca/en/news/canadian-judicial-council-completes-review-matter-involving-honourable-de-spiro – posted almost five months ago? Why now?

    I had inquired about that report in July, suggesting that there should be a consistent policy. Now it is being suggested that the belated decision to publish the report was made by the members of the review panel. Is that what the CJC considers a reasonable policy?

  6. Chris, I agree the CJC should post review panel (and other) decisions on its website. When I was writing this post, I was surprised (astonished?) to find that decisions I had previously read, and in some cases quoted, no longer appeared available.

  7. I first began accessing the CJC’s website years ago (at least as early as 2010 when I submitted my first complaint). To appreciate that the CJC itself is in serious trouble and why, one can very productively start by reviewing two of the annual reports – from 2002 and 2003 – and a special report entitled The Way Forward that was produced between those two annual reports. All three are listed and accessible with this link – https://cjc-ccm.ca/en/resources-center/publications?date_sort=DESC&page=3&category=5. *I note that for me the “page=3” changed to “page=1”, so scroll to the bottom and select page 3.*

    The 2002 annual report is well worth reading just for the address given by Richard Pound. It is also interesting because it included an appendix (E) with the By-laws, in contrast to the 2003 report which in addition to the By-laws (appendix D) added “Procedures for Dealing with Complaints” (appendix E). I think that most of the provisions in the new Procedures had previously been included in the By-laws, but among the new features was the Executive Director’s role as what I call an autonomous and unchallengeable gatekeeper (section 2.2). Bill S-5 – https://parl.ca/DocumentViewer/en/43-2/bill/S-5/first-reading – proposed to have that same role played by “screening officers”. That is indicative of the real intention in Bill S-5: to have parliament authorize in statute what the CJC set out to do in 2002/2003. The CJC’s record from those years says that they were fully satisfied with what they accomplished. So what went wrong?

    One of the things that would be worthwhile now is a full critique of Bill S-5. I’m not the person best qualified to do that. But I’ll note one interesting curiosity. Why is a role mandated for the Canadian Superior Courts Judges Association – an entity that could choose to fold its tent tomorrow without consulting with anyone else?

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