Jewish Tax Court judge barred from presiding over cases involving Muslims, documents show
Allegations against Judge David Spiro arose in connection with U of T hiring controversy
Legal experts are puzzled by why the Tax Court of Canada prevented a Jewish judge from presiding for several months in cases involving members of the Islamic faith rather than removing him entirely from the bench until allegations against him were resolved.
In court documents reviewed by the CBC's The Fifth Estate, it appears that Judge David Spiro, a federally appointed tax judge, was barred from adjudicating cases involving Muslims beginning sometime in October 2020.
At that time, the chief justice of the Tax Court, Eugene Rossiter, informed the Canadian Judicial Council, a regulatory body for judges, of measures taken in response to a number of allegations of misconduct against Spiro in connection with a proposed hiring at the University of Toronto.
It was alleged that Spiro used his influence as an alumnus and major donor to try to block the university's faculty of law from offering a job to Valentina Azarova, an international law practitioner who has written widely on Israel-Palestinian affairs.
Azarova was the unanimous choice of the faculty's search committee to become the director of its International Human Rights Program.
Two days after Spiro's conversation with the assistant vice-president of the university, the dean of the faculty of law informed the head of the selection committee that the department would not proceed with its candidate.
In the documents viewed by The Fifth Estate, Rossiter wrote that "all files assigned to Justice Spiro would be reviewed by the associate chief justice of the Tax Court" and that Spiro would "recuse himself immediately from any file at any time in which it appeared to him that either the counsel, representative of any litigant or a litigant is a Muslim or is of the Islamic faith."
Rossiter said that the decision was made to "allow for any concerns related to the potential perceived bias from Justice Spiro to be removed."
The CBC reached out to Spiro for comment but did not receive a response.
'A real question'
Amy Salyzyn, a professor in the faculty of law at the University of Ottawa, said via email that the way in which this matter was handled "raises serious questions in relation to our justice system's commitments to equality."
Salyzyn said that a fundamental tenet of Canada's justice system is judicial impartiality and that courts and judges are required to guard against the appearance of potential bias.
"Even if this is only for reasons of perception, there is a real question as to whether the judge should be presiding at all until the underlying matter is resolved," she said.
"The message that such a policy would seem to be giving to Muslim lawyers and litigants is that 'this one courtroom is open for business but just not for you.' It is hard to reconcile such a message with the principle of equality before the courts."
Mohammed Fadel, a law professor of the University of Toronto, described the Tax Court's decision as "based on a crude, reductive and dangerous stereotype that pits Muslims against Jews and Jews against Muslims as part of some kind of ancient, irrational feud."
Restrictions in place until May 2021
Sophie Matte, executive legal counsel to Rossiter, refused to elaborate on how the measures were implemented or how many files Spiro was barred from hearing.
Matte would only say that the restrictions against Spiro were in place between October 2020 and May 2021.
This suggests the measures were lifted after the Canadian Judicial Council cleared Spiro following an eight-month review.
The council concluded that while "the judge made serious mistakes, these were not serious enough to warrant a recommendation for his removal from office."
Salyzyn is baffled as to how such a policy limiting the cases Spiro could hear would be implemented.
"Would the court be using names in the court file or the appearances of people to try to assess who might be Muslim? The religion of the parties and lawyers involved in a case isn't normally included in the court file or announced in court," she said.
"A policy of this type would seem to risk invasive, stereotypical or even potentially racist assessments."
Idris Elbakri, a leader among Palestinian Canadians, described the Tax Court's decision as "absurd."
"If Justice Spiro is not fit to be a judge, why is he a judge in the first place?" said Elbakri, a community organizer in Winnipeg. "What if the litigant is a Palestinian Christian?"
Allegations of misconduct against Spiro surfaced in September 2020 after allegations he had intervened in the potential hiring of Azarova.
In August 2020, employment discussions with Azarova were well advanced before being abruptly terminated by the then dean of the law school, Edward Iaccobuci, in early September.
Days before Iaccobuci made the decision to overrule his search committee's recommendation, Spiro had a conversation with U of T's assistant vice-president of university advancement, Chantelle Courtney, the court documents show.
In his response to the judicial council, Spiro acknowledged asking Courtney if she could find out the status of the Azarova appointment.
He also told her that while he did not know Azarova himself, some in the Jewish community had deemed her "an anti-Israel crusader" and warned that her appointment '"would likely be followed by loud and public protests."
"I felt that such protests might harm the reputation of the University of Toronto in general and the faculty of law in particular," Spiro wrote in the documents reviewed by The Fifth Estate.
In addition to being an alumnus and donor to the law faculty, Spiro is a former Toronto co-chair of the Centre for Israel and Jewish Affairs, a non-profit organization dedicated to protecting Jewish life in Canada through advocacy. Spiro was appointed to the Tax Court of Canada in April 2019.
The university's decision not to hire Azarova sparked a public controversy, including an international academic boycott of U of T organized by the Canadian Association of University Teachers.
It also led to allegations that Spiro, whose family has donated millions of dollars to the law school over the years, had attempted to interfere in what should have been an independent and confidential hiring process.
Last fall, the Canadian Judicial Council received eight written complaints against the Tax Court judge.
The Arab Canadian Lawyers Association, Independent Jewish Voices and the British Columbia Civil Liberties Association accused Spiro of violating guidelines requiring judges to act with integrity inside and outside the courtroom.
"If the allegations are true," the groups said, "he sought to use his power, status and influence to undermine the rights of an unsuspecting individual using backdoor conversations."
The Canadian Muslim Lawyers Association wrote that if proven, the allegations would put the impartiality of the Tax Court in jeopardy and taint Spiro "with the permanent spectre of bias or perceived bias for many litigants, Islamic charities, Arab charities, organizations advancing the rights of Palestinians, Muslim religious organizations and Palestinian cultural and religious organizations."
In his response to the Canadian Judicial Council, Rossiter affirmed his faith in Spiro but nevertheless informed the council of the measures he had put in place to ensure Spiro did not hear cases involving Muslims.
"This process will allow for any concern related to a potential perceived bias from Justice Spiro to be removed," Rossiter wrote.
The council assigned a special judicial conduct panel to review the allegations.
In May 2021, the council issued a news release stating that while Spiro had made "serious mistakes in the U of T hiring affair," the fact he had recognized the error and expressed remorse meant he should not be removed from office.
"There is nothing in the career of Justice Spiro or his work that supports the suggestion of perceived bias against Palestinian, Arab or Muslim interests," the panel wrote.
Disagreed with conclusions
But the complainants to the Canadian Judicial Council disagreed with the conclusions.
They described the review committee's decision as "internally inconsistent and not based on a rational chain of analysis."
In June, they filed a lawsuit against the Canadian Judicial Council accusing the body of violating its own policies and bylaws in the handling of the allegations against Spiro.
The litigants requested to know what documents the council used to conduct its internal review. Nearly 500 pages of court-certified documents were handed over to the litigants, including the chief justice's letter outlining the measures taken against Spiro.
Among law professor Salyzyn's questions is why the Tax Court did not announce the measures publicly at the time they were taken.
"This policy appears to have been instituted behind closed doors and not disclosed to the public, but for this litigation."
If there is an issue of bias or the perception of bias, Salyzyn said, "the public interest in open courts would seem, in my view, to favour a much more transparent process."