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Blog August 12, 2022

Judges Judging Judges

Justice David Spiro assisted the Centre for Israel and Jewish Affairs (CIJA), along with B’nai Brith, in blocking an appointment to the Directorship of the Law School’s International Human Rights Program (IHRP) at the University of Toronto. CIJA did not approve of Dr Valentina Azarova’s supposed stand on Palestinian’s rights. There was an international outcry; the Canadian Association of University Teachers (CAUT) investigated and then censured the University of Toronto.  Its Law Faculty exploded into a fireball of suspicion, recrimination, and evasion.  A weak Dean slipped quietly out of office; a disgraced university fundraiser decided to take up a new career.

Spiro committed two wrongs. (1) He violated the academic freedom of (a) those faculty who worked on the file and unanimously selected Azarova, (b) the IHRP and those students who would have benefited from an open research environment, and (c) Valentina Azarova.  (2) Spiro violated his judicial duty to not only be impartial but to be seen as impartial.  How would people view a judge who appears to be shilling for a pressure group of which he used to be a co-Chair?  How would a Palestinian, Arab, or Muslim feel in his court, knowing that he couldn’t leave his CIJA days behind?  The Canada Revenue Agency is minutely scrutinizing Muslim (but not Israeli) charities.  That could give rise to a case Spiro might hear. 

Along with many lawyers, law professors, and community groups, I complained about Spiro to the Canadian Judicial Council. The CJC agreed that Spiro had made a ‘serious error’, but not so serious as to warrant a full inquiry into his conduct.  Others spoke well of Spiro, and he apologized and would desist from further misconduct.  True, the misconduct had been serious enough that the Chief Judge of his own court silently took him off cases involving ‘anyone who could be thought of as of being of Muslim or of the Islamic faith’—itself an extraordinary measure.  Still, it was deemed not so serious that, whatever other facts the CJC might turn up in an inquiry, he could be fired. So, there was no need to inquire further into whether there were such facts.  A jigsaw puzzle of non-identical letters, press-releases, web-posts, and documents was eventually released, in peculiar order, supposing it somehow fit together as a ‘decision’ of the CJC.

But the CJC’s reasoning was obscure and its procedures, as applied, unfair.  Together with a number of other complainants, I therefore asked the Federal Court to quash that decision and send Spiro’s case back to the CJC for reconsideration. It rendered its judgment of 25 July 2022,(2022 FC 1087). The Centre for Free Expression and CAUT jointly intervened in the case.

Justice Catherine Kane rebuffed us:  the CJC’s decision may have been wrong, but it was reasonable and its procedures were fair enough in the circumstances. Adequate weight had been given to the public interest in free expression and to universities’ interest in academic freedom, and on the other side the CJC had to weigh Spiro’s personal interests in his reputation and his job, she elaborated.  

Now, the standard for constituting an inquiry into judicial misconduct is high; but it cannot be that every such inquiry must end in firing.  It must be possible that judicial conduct appears so egregious that further inquiry is warranted, but that after a full and proper inquiry he is nonetheless vindicated.  Was this such a case?  

The CJC seemed determined not to find out. At every point where the CJC had a discretion to investigate or inquire more broadly, it declined to do so.  It interviewed none of the people who, in my complaint, I named as having personal knowledge of relevant facts.  It accepted without comment Spiro’s assertion that he had been ‘building bridges’ between Israelis and Palestinians. It hyped one character-reference for Spiro written by the very professor to whom Spiro communicated warnings about Azarova, and one by a former UofT president who oversaw another violation of academic freedom(Does the CJC not have Google?) It made no comment on the fact that, just a few weeks before, Spiro dangled before the Dean the appetizing suggestion that his Tax Court could use the school’s Moot Court, and that he would like to encourage more UofT applicants to clerkships in his court. (Tribunal Record, 116-7, and Appendix D).  It minimized the scope and scale of Spiro’s family’s massive donations to the University. (All of this—and more—we discovered only when we received the Certified Tribunal Record as a result of our application for judicial review.)  But what mattered most to the outcome was the CJC’s finding that Spiro was only alerting the university that Azarova’s appointment would prove controversial, not ‘actively’ campaigning against her.  Complainants cannot require that a judge leave behind his ‘identity’ when on the bench, and Spiro was expressing his identity. (Like wearing Green on St Patrick’s Day?)

Now, there are good reasons in a judicial review for courts not to aggressively tamper with an administrative tribunal’s decisions: (1) a tribunal may have expertise the judiciary lacks:  a College of Physicians and Surgeons knows what proper treatment is; (2) a tribunal may fairly represent all interests at stake: both labour and management are on a labour board;  (3) a body may have legitimacy a court lacks: a city council is elected; judges are not.

But not one of these considerations applies here.  In fact, the CJC is so unlike other tribunals that it needs rigorous procedures. This does not mean that the courts must hold the CJC to a standard of ‘correctness’.  It means that, even a standard of reasonableness in decision is to be applied scrupulously, and this includes use of its discretionary powers.  Owing to its peculiar nature, it is not enough that a CJC decision be possibly, or arguably, reasonable; it must be clearly reasonable.  Why?  Nemo iudex in causa sua: no one should be a judge in their own cause. When Kane reviewed the CJC’s decision-making, she was a judge deferring to judges’ decisions about the conduct of another judge.  Very cosy; not very just.

That is the most fundamental issue that we could not make the Attorney General, or Kane, grasp.  But there is more, for Kane’s judgement is a buzzing hive of confusions and non-sequiturs:

(1) Kane adopted the CJC’s finding that Spiro’s words were merely a heads-up, and so not part of an ‘active campaign’ against a minority racial group CIJA had targeted.   But for all the CJC found, it could have been both.  A heads-up—i.e. a warning—can be part of an active campaign.  Those opposed to Azarova’s appointment had a division of labour: (1.1) A spokesman for a far-right Israeli group made a complaint to CIJA about Azarova as a possible Director; (1.2) CIJA enlisted its former Co-Chair, Spiro, as a go-between with the Law School; (1.3)  Spiro agreed to help CIJA;  (1.4) Spiro funnelled opinions back and forth between an executive officer and a professor, finally; (5.5) B’nai Brith worked to block the possibility of Azarova getting a work permit. This was a very ‘active campaign’ against Azarova, in which Spiro played a part.  

(2)  A warning (e.g. ‘The Jewish Community won’t wear this!’) which ordinarily is not a threat may nonetheless be a threat, or may be just as wrong as a threat—for instance, if coming from a donor/judge. During the controversy, a meme circulated in social media.  It showed Spiro in his judicial robes, with the tag, ‘You have a lovely law school.  It would be a shame if something happened to it.’  A joke. The CJC and the Federal Court would need to have that joke explained.  Let me try:  whether words are a comment, a warning, or a threat depends on background norms and on the total factual context.  But if you decide not to inquire into the latter, you cannot know what force it had.  There is therefore no reasoned nexus between a finding that words were a warning and concluding, without inquiry, that they could not have been part of an active campaign. 

(3)  The fact that the complainants and Spiro did not stand in the relation that lawyers call lis—we were not in a party-vs-party dispute—does not show that the complainants lacked robust procedural rights.  This infers, from the true premise that lis is sufficient for procedural rights, the false conclusion that it is necessary for them.  That is a non-sequitur and a legal error.  The case for complainants’ rights is here firmly rooted in the purposes of the CJC, in natural justice, and in the most basic principles of our Constitution.   

(4) If, as Kane opines, a ‘lower’ bound of procedural fairness includes only a right to make a complaint and to know its disposition, then what might count as a still lower, or lowest, point on the scale of procedural fairness?  No right to complain about judges--not ever?  A right to make a complaint but no right to know what, if anything, is done about it?  The first would obviate the CJC; the second would make it an instrument of injustice: justice must be seen to be done.  That cannot be what Parliament intended in the pertinent statutory scheme, and it is, anyway, seriously wrong.  Yet Kane’s reasons for holding that we were entitled only to complain and then to check the CJC website for news are, in effect, a conclusion that complainants about judges are only entitled to the lowest measure of fair procedure that could possibly exist—not just one on the ‘lower’ end of some scale.  She offered no argument for that bizarre conclusion.

En route, the Attorney General, and the judge, opined that if the public doesn’t like the way judicial discipline now works, they can ask Parliament to change the law.  I do not believe that the law is what Kane says it is.  But it is true that the CJC has, for many years, been the subject of academic and even judicial criticism.  It urgently needs a clearer charter, fairer procedures, lay members, and more open proceedings.  There has been a hint or two, including in the last Parliament, that the Attorney General might not be averse to reform of the CJC.  If that is his plan, a more efficient start would have been not to have defended this case.