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Muslim and Arab-Canadian groups will ask a court on Monday why a Jewish judge accused of anti-Palestinian bias was cleared without a disciplinary hearing, when his own court would not allow him to hear cases involving Muslim litigants or lawyers.

The question, set out in documents filed in Federal Court, is being posed in the case of Justice David Spiro of the Tax Court of Canada. The Canadian Judicial Council (CJC), a disciplinary body, cleared the judge of several public complaints after he intervened in the hiring of a human rights director at the University of Toronto.

Federal Court Justice Catherine Kane is conducting a review of that decision in Toronto on Monday and Tuesday. The Arab Canadian Lawyers Association and other complainants will point Justice Kane toward a controversial screening policy undertaken last fall in secret – but revealed later in court documents – in which Tax Court Chief Justice Eugene Rossiter promised that his court would not assign cases to Justice Spiro that involved anyone who was a member of the Islamic faith during the CJC complaint process. He also said Justice Spiro would recuse himself “from any file at any time” if anyone involved appeared to be of the Muslim faith.

“The fact that the Tax Court decided to take such an unusual measure to address concerns over the perception of bias should have signalled to the CJC that the conduct of Justice Spiro raised concerns regarding impartiality, integrity and independence of the judiciary, potentially rendering him incapable of performing the duties of his office. Such a measure cannot be ignored,” says a court filing from the National Council of Canadian Muslims, the Arab Canadian Lawyers, the Canadian Muslim Lawyers Association and law professors Craig Scott and Leslie Green.

The Attorney-General of Canada, which supports the judicial council’s ruling, did not reply to the complainants’ argument about the Tax Court’s stated attempt to exclude Muslims from Justice Spiro’s courtroom. The judicial council is not a party to the case, but is intervening to dispute a separate argument from the complainants that its procedures were unfair to them.

The proposed human-rights director, Valentina Azarova, was the unanimous choice of a hiring committee, but shortly after Justice Spiro had a phone conversation with a university fundraising official in September, 2020, the university backed away from hiring the German scholar, citing immigration issues during the pandemic. Justice Spiro, a former board member of the Centre for Israel and Jewish Affairs, an advocacy group, said he expressed concern that Dr. Azarova’s published work on the Israel-Palestine issue would be controversial in the Jewish community, and risk harm to the university’s reputation.

The court hearing this week is the judicial sequel to an academic controversy in which organizations boycotted the university. The school commissioned a report from former Supreme Court judge Thomas Cromwell, who found Justice Spiro’s actions did not influence the hiring decision. Last year, the school offered Dr. Azarova the job, and she turned it down.

The judicial council, made up of chief and associate chief justices, decided at a preliminary stage of its review that Justice Spiro’s conduct did not warrant a recommendation for his removal, and thus did not merit a public hearing. It determined that, while Justice Spiro had made serious mistakes, he had been motivated by a good-faith concern for the reputation of his alma mater, and had expressed remorse for his conduct.

The complainants say in a legal filing that the judicial council made an “incomprehensible distinction” between Justice Spiro voicing concerns about the possible impact of hiring Dr. Azarova, and actively campaigning against her appointment.

They say Justice Spiro’s conduct caused harm to the Palestian-Canadian community. “Anti-Palestinian racism operates to silence the Palestinian experience and expressions of solidarity with Palestinians, including characterizing those who defend Palestinians and are critical of Israel’s policies or conduct as antisemitic.”

They also say the CJC’s process was unfair because while it gave Justice Spiro many opportunities to respond, it did not provide the complainants a chance to offer follow-up information or receive communication before a final decision was made.

The CJC said it provided procedural fairness by investigating the complaints and responding. It said the council is entitled to deference in its choice of procedures, and that complainants are “entitled to minimal procedural rights – any duty of fairness is at the lower end of the spectrum.”

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