The Tax Court of Canada tried to ensure no Muslims appeared before a Jewish judge who was under investigation amid allegations of bias related to the Israel-Palestine conflict, a court record shows.
Last fall, while the Canadian Judicial Council was in the midst of investigating several complaints against Tax Court Justice David Spiro, the court said it 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 policy was for “perception purposes,” the chief justice’s letter said. The court did not, however, make the policy public while it was in place in late 2020 and the first five months of this year. The letter from Chief Justice Rossiter describing the policy is part of a public court record viewed by The Globe and Mail involving Justice Spiro.
Scholars such as Peter Russell, an emeritus professor in the University of Toronto’s political science department, say the screening of counsel and litigants for religious affiliation is unprecedented.
The policy has prompted criticism in the legal community. “Having what would seem to be in effect a ‘Muslim ban’ in one of Canada’s courtrooms doesn’t seem consistent with our justice system’s commitments to equality,” said Amy Salyzyn, a professor at the University of Ottawa law school, and president of the Canadian Association for Legal Ethics. (She said she was not making her remarks in her capacity as president.)
Anver Emon, the Canada Research Chair in Islamic Law and History at the University of Toronto, said the issue was about more than perception. “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.
In May, the Canadian Judicial Council cleared Justice Spiro, finding he made mistakes but not grave enough to warrant removal.
The complaints related to the judge’s contact in the late summer of 2020 with a University of Toronto official over the possible hiring of a director for the law school’s International Human Rights Program. The No. 1 candidate was international scholar Valentina Azarova, and Justice Spiro expressed concern to the official related to Ms. Azarova’s published work on the Israel-Palestine conflict. Soon afterward, the school rejected Dr. Azarova. (The school cited reasons related to immigration law and the pandemic; a review by former Supreme Court justice Thomas Cromwell cleared the university of being improperly influenced.)
The Arab Canadian Lawyers Association, among others, complained that the judge’s impartiality was in question. The judicial council asked for a response from Chief Justice Rossiter and from Justice Spiro.
Chief Justice Rossiter responded in a letter that he had spoken with Justice Spiro, who “readily understands his role as a Judge,” and that the chief justice had reinforced the “dos and don’ts,” and had no doubt that the incident would not be repeated.
He went on to explain that the court had undertaken to ensure Muslims did not appear before Justice Spiro.
“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,” Chief Justice Rossiter said in the letter.
Sophie Matte, a Tax Court spokeswoman, told The Globe in an e-mail that the measure was used only during the judicial council review process, and that “the Tax Court of Canada wishes to reiterate its commitment to impartiality to all litigants who appear before the Court and to the Canadian public.” She said the court would make no further comment. There is no indication of whether any cases were steered to other judges over a perception that Muslims were involved or whether Justice Spiro recused himself from any cases.
Prof. Russell questioned the lack of transparency, and whether it squares with the stated notion that the policy was implemented for perception purposes.
“If it was for perception,” Prof. Russell said in an interview, “shouldn’t you be saying, ‘Hey, we stopped this guy from hearing any cases involving Islamic people?’”
The policy made it appear, falsely, as if the complaints against Justice Spiro pitted Jews and Muslims against one another, said Mohammad Fadel, a professor at the University of Toronto’s faculty of law.
“It’s not some idea that there is particular religious animus between Jews and Muslims or Muslims and Jews. Reducing it to some kind of stereotypical ancient religious conflict is very disturbing, and I think it just 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.”
Prof. Salyzyn said any questions about bias or the appearance of bias should be discussed in open court. She added: “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.”
Justice Spiro, appointed to the bench in 2019, is a former fundraising adviser to the University of Toronto law school, and a former member of the board of directors of the Centre for Israel and Jewish Affairs, an advocacy group. He told the judicial council in his letter that he expressed no concern about or disapproval of Dr. Azarova’s scholarship. Instead, he conveyed a wish that the school do its due diligence before the appointment to ensure it was prepared for the controversy he expected. He did so, he said, because he cares about the law school.
In clearing Justice Spiro, the judicial council ruled that properly informed members of the public could not conclude he is biased. Several complainants then asked the Federal Court to review that decision. The letters from Chief Justice Rossiter and Justice Spiro are now part of the public record of that continuing court case.
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