Tax Court broke promise to hijack cases of judge under investigation for bias, legal observers say

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The Tax Court of Canada did not follow its Undisclosed promise to prevent cases involving Muslims from being tried by a judge being investigated for bias related to the Israeli-Palestinian conflict, according to legal observers.

The Chief Justice of the Tax Court, Eugene Rossiter, made this promise in a letter to the Canadian Judicial Council last October. Explaining how the court would identify Muslim litigants or lawyers, he said Associate Chief Justice Lucie Lamarre (now retired) would make an assessment “in accordance with the information in the case”.

At the time, the board was investigating Judge David Spiro into allegations that he attempted to interfere with a hiring process at the University of Toronto. Before clearing him in May, Judge Spiro rendered a 91-page ruling in a case involving two attorneys from the Federal Justice Ministry whose names – Rana El-Khoury and Dina Elleithy – matched the category for which the Chief Justice Rossiter had promised that his court would be on the lookout.

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In Paletta Estate v. The Queen, an entrepreneur’s estate was battling the Canadian government over a complicated tax deferral strategy. An 18-day hearing took place before the start of the judicial council’s investigation. But Judge Spiro delivered his ruling in February (an amended version was released in March), according to the Canadian Legal Information Institute’s public court decisions database. The judicial council was still investigating at that time.

The Tax Court promise became public when several of those who had complained about the judge to the judicial council asked the Federal Court to review the council’s decision to exonerate him. During the review, Chief Justice Rossiter’s letter became part of a publicly available record.

Legal observers and Islamic scholars have called Chief Justice Rossiter’s promise “bizarre,” Islamophobic and anti-Semitic, and inconsistent with the justice system’s commitment to equality.

But they’re also not impressed that the court is breaking the promise. They say it highlights the absurdity of trying to identify Muslim names in the first place.

“Both of these names are ‘Muslim’ or ‘Muslim sounding’ names inasmuch as they are Arabic names,” said Mohammad Fadel, professor of law at the University of Toronto. “So this appears to be a reckless policy implemented in an incompetent manner.”

Anver Emon, Canada Research Chair in Islamic Law and History at the University of Toronto, said the appearance of two Muslim-sounding names in a case tried by Judge Spiro “underscores the illusory nature of the Rossiter’s teaching, as well as the court’s cultural incompetence. when it comes to accomplishing such a strange and bizarre order.

The promise was unqualified, he said, but being secret “it may or may not be carried out.” He added: “This is why the whole measure appears to be a game of shells that ultimately preserves the status quo.”

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The Justice Department told The Globe and Mail that the Tax Court had not informed it of such a policy. Ms. El-Khoury and Ms. Elleithy did not respond to a request for comment made through the ministry.

The Tax Court of Canada and the Canadian Judicial Council declined, through spokespersons, to comment.

Justice Spiro is a former board member of the Center for Israel and Jewish Affairs (CIJA), an advocacy group, and a former fundraising advisor at the University of Toronto Law School. The controversy surrounding him dates from the summer of 2020. Pressed by a member of the CIJA about the possible hiring by the law faculty of the university professor Valentina Azarova as director of its International Human Rights Program, he raised the question with a fundraiser from the university. The CIJA has been very critical of the work published by Dr Azarova on the Israeli-Palestinian conflict.

When the law school dismissed Dr Azarova, several groups and individuals complained to the judicial council that the judge interfered in the university recruitment process, raising questions about his impartiality. (The law school has said it is rejecting Dr Azarova on immigration matters, and a review by former Supreme Court Justice Thomas Cromwell has allowed the school to be unduly influenced.)

Judicial counsel wrote Chief Justice Rossiter as he began his review and asked for his comment. He praised the fairness and collegiality of Judge Spiro. But for “collection purposes,” he said, the Associate Chief Justice would try to ensure that “no case he decides on will, as parties, agents or lawyers, have any effect. person who can be considered Muslim, or of the Islamic faith.

And Judge Spiro would recuse himself, Chief Justice Rossiter, “from any case at any time” if anyone involved appeared to be of Muslim faith.

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Judge Spiro himself seemed to find the idea absurd. In a letter to the judicial council in February, he did not refer directly to the pledge, but commented on the pointlessness of trying to identify Palestinians before him.

“Even though I wanted to know if a taxpayer or lawyer appearing before me was Palestinian (which I am not), and even if I had animosity towards Palestinian taxpayers or lawyers (which I did not no), I would have no way of knowing if they were Palestinians, unless I asked them a series of questions designed to determine that fact and to let them know their political beliefs and views on Israel ”, did he declare. “Such questions obviously do not concern me and have nothing to do with the proceedings before me. “

The Judicial Council found that he had made serious errors in speaking to the law school about the appointment, but not serious enough to warrant the dismissal. He ruled that properly informed people could not conclude that he was biased. Judge Spiro said he simply warned the school to do due diligence as it would face controversy within the Jewish community.

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