Muslim and Arab-Canadian groups ask Federal Court to review decision that cleared judge accused of bias without disciplinary hearing

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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 have allowed him to hear cases involving litigants or Muslim lawyers.

The question, set out in documents filed with the Federal Court, is 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 his interference in the hiring of a director of human rights at the University of Toronto.

Federal Court Judge Catherine Kane is conducting a review of that decision in Toronto on Monday and Tuesday. The Arab Canadian Lawyers Association and other plaintiffs will direct Judge Kane to a controversial selection policy undertaken last fall in secret – but later revealed in court documents – in which the Chief Justice of the Court of tax, Eugene Rossiter, promised that his court would not assign a case to Judge Spiro that implicated anyone who was a member of the Islamic faith during the CJC complaint process. He also said Judge Spiro would recuse himself “from any case 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 step to address concerns about perceived bias should have signaled to the CJC that Judge Spiro’s conduct raised concerns about impartiality, integrity and independence of the judiciary, making it potentially incapable. to perform the duties of his office. Such a step cannot be ignored,” says a court filing from the National Council of Canadian Muslims, Arab Canadian Lawyers, the Canadian Muslim Lawyers Association and law professors Craig Scott and Leslie Green.

The Attorney General of Canada, who supports the decision of the judicial council, did not respond to the plaintiffs’ argument about the Tax Court’s stated attempt to exclude Muslims from the courtroom of the Judge Spiro. Judicial counsel is not a party to the case, but is stepping in to challenge a separate argument by plaintiffs that its proceedings were unfair to them.

Proposed human rights director Valentina Azarova was unanimously chosen by a hiring committee, but soon after Judge Spiro had a phone conversation with a fundraising official from university in September 2020, the university backed out of hiring the German researcher, citing immigration issues during the pandemic. Judge Spiro, a former board member of the Center for Israel and Jewish Affairs, an advocacy group, said he fears Dr Azarova’s published work on the Israeli-Palestinian issue will be controversial in the community Jewish and harm the university. reputation.

This week’s hearing is the legal follow-up to a university controversy in which organizations boycotted the university. The school commissioned a report from former Supreme Court Justice Thomas Cromwell, which concluded that 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 justices and associate chief justices, decided at an early stage of its review that Justice Spiro’s conduct did not warrant a recommendation for removal and therefore did not merit a public hearing. He determined that, although Judge Spiro made serious mistakes, he was motivated by a bona fide concern for the reputation of his alma mater and expressed remorse for his conduct.

Plaintiffs claim in a legal filing that the judicial council drew an “incomprehensible distinction” between Judge Spiro expressing concerns about the possible impact of Dr Azarova’s hiring and actively campaigning against her appointment.

They say Judge Spiro’s conduct has harmed the Palestinian-Canadian community. “Anti-Palestinian racism operates to silence the Palestinian experience and expressions of solidarity with Palestinians, including by labeling as anti-Semitic those who defend Palestinians and criticize Israeli policies or conduct.

They also claim that the CJC process was unfair because while it gave Judge Spiro ample opportunity to respond, it did not give plaintiffs an opportunity to offer follow-up information or receive communications before a final decision is made.

The CJC said it ensured procedural fairness by investigating and responding to complaints. He 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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