I never thought I’d be writing a Slaw column about why a Canadian court shouldn’t try to identify lawyers and litigants who could be “thought of as being” Muslim with the goal of trying to prevent those identified from appearing before a particular judge. Yet here we are.
Background
Recently it was reported that the Tax Court adopted a two-part screening initiative in relation to one of its judges, Justice David Spiro:
- All files assigned to Justice Spiro were to be reviewed to try to ensure that he would not adjudicate a matter that had any parties, agents or lawyers “who could be thought of as being of Muslim, or of the Islamic faith.”
- Justice Spiro was to recuse himself “immediately” from “any file at any time in which it appears to him that either the counsel, representative of any litigant or litigant is a Muslim or is of the Islamic faith.”[1]
The initiative appears to be undertaken in response to complaints made to the Canadian Judicial Council (CJC) about Justice Spiro. The background to the CJC complaints is helpfully summarized in a recent Globe and Mail article:
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.)
In complaints to the CJC, “[t]he conduct of Justice Spiro was alleged to have put the integrity and impartiality of the Tax Court of Canada in jeopardy, and cause any party or lawyer before the Court who is Palestinian, Arab, or Muslim to reasonably fear bias.” On January 11, 2021, the CJC announced that it was referring the matter to a Judicial Conduct Review Panel. A referral of this nature is relatively rare and happens only “when it is determined that a complaint might be serious enough to warrant the removal of the judge.”
On May 21, 2021, the CJC reported the Review Panel found that Justice Spiro made a “serious error” in discussing the appointment of Dr. Azarova with U of T in the manner that he did but that this error did not warrant his removal from the bench. Per established procedures, this conclusion ended the CJC’s consideration of the matter. With respect to the bias allegations specifically, the Panel found “reasonable persons apprised in accurate terms of the conduct of Justice Spiro over his career and in relation to this matter could not conclude that the judge is biased against Palestinian, Arab or Muslim interests” and that “the fear of bias on the part of Justice Spiro is based on misinformation and speculation that is inaccurate.”
The Tax Court has said that it ended its initiative to keep apparent Muslims out of Justice Spiro’s courtroom following the May 2021 resolution of the CJC process.[2]
The only reason that we are hearing about the Tax Court’s Muslim screening measures now, in September 2021, is because these measures were disclosed in documents filed in relation to a judicial review of the CJC’s handling of the complaints relating to Justice Spiro. A description of the screening measures is found in correspondence authored by the Chief Justice of the Tax Court and which was sent to the CJC during its review of the complaints against Justice Spiro. Absent the initiation of a judicial review, there is no reason to believe that the public would have ever learned of the initiative.
In addition to being undisclosed, this initiative is unprecedented. To be sure, it is not uncommon, as a general matter, for a judge to recuse themselves from a case where there is the potential for a perception of bias to arise.[3] A judge might realize, for example, that one of the parties in a case before them is a former client or that one of the key witnesses is a close friend and thus remove themselves from the case. There are also likely some blanket policies in place at courts designed to pre-empt bias concerns. For example, a court may have a policy that Judge X does not hear cases involving Judge X’s former law firm (at least for a certain “cooling off” period after the judge transitions from the firm to the bench). However, the type of measure described here – a court policy to remove, from one judge’s courtroom, anyone who could be perceived to be a member of an entire religion – has never happened before in Canada, to my knowledge.
Why these measures are very bad
In addition to being unprecedented, the Tax Court’s initiative (as described in correspondence from the Chief Justice of the Tax Court) is extraordinarily problematic.
First, the stated scope of the initiative is confusing and troubling. Why did the initiative propose to focus on Muslims or “those of the Islamic faith” when the bias allegations, as characterized by the CJC, encompassed concerns in relation to Palestinians, Arabs, and Muslims? Was there an ill-informed assumption that these categories are equivalent or interchangeable? Was there an inexplicable conclusion that the category of Muslim was most salient to the bias allegations?[4] Did the Tax Court think, erroneously, that it would be easier or somehow more appropriate to try to identify Muslims from court file information or in-court appearances than it would be to screen for Palestinians or Arabs?[5] What assumptions motivated the Tax Court to focus on Muslims, exclusively, in its policy? These are important, unanswered questions. The CJC’s Ethical Principles for Judges state that judges are expected to educate themselves to improve their “knowledge and understanding of the realities of the lives of those who appear in court” and “on the extent to which [their] assumptions rest on stereotypical thinking.” The stated scope of the Tax Court’s Muslim screening initiative raises real concerns that these expectations were not met.[6]
Second, the proposed operationalization of the initiative is fraught with problems. How can one accurately assess “who could be thought of” as Muslim from a court file? As described by the Tax Court, screening efforts were not to be limited to transferring only those files where a party or lawyer explicitly declared their religion and, indeed, such declarations are presumably not very common in Tax Court cases. What possible information from a court file did the court think could serve as an accurate proxy for “Muslim”? Likewise, how was Justice Spiro supposed to decide if it “appears to him” that a party or lawyer in his courtroom is Muslim? These questions raise the troubling spectre of the court reaching and acting upon inaccurate, stereotypical, and even racist conclusions about who Muslims are and what Muslims look like. Was the plan for the court to flip through court files to identify names of lawyers and litigants that “could be thought of as being Muslim”? Was Justice Spiro supposed to guess who might “appear” Muslim to him based on the physical appearances or behaviours of those in his courtroom? What, exactly, was the plan here? The CJC’s Ethical Principles tell us that “judges do not make assumptions based on general characterizations or attach labels to people that invite stereotypical assumptions about their behaviour or characteristics.” But isn’t this exactly what the policy calls for?
Third, the initiative’s very existence is inconsistent with our justice system’s commitments to equality. The CJC’s Ethical Principles state that “judges should ensure that their commitment to equality is unwavering and that their conduct is such that any reasonable and informed member of the public would have confidence in the judge’s respect for and commitment to equality.” How does a secret court policy that requires differential treatment of members (or perceived members) of an entire religion (a prohibited ground of discrimination) possibly square with this admonition? It is true that, under the stated policy, any litigants or lawyers who might be transferred out of Justice Spiro’s courtroom would (presumably) still be able to have their case heard by another judge in a timely manner. This doesn’t change the fact that the initiative singles out members of a religious group for differential treatment. Nor is the initiative redeemed by the fact that it was reportedly time limited. Trying to operate a courtroom that doesn’t include Muslim lawyers or litigants (or those perceived to be such) is offensive for any amount of time. As summed up by Muneeza Sheikh in her recent Toronto Star op-ed, “[i]n any other context, we would call this what it is — a fundamental and obvious breach of the principle of equality, basic Charter principles, and human rights codes.”
Other approaches were possible
There would appear to be at least two other viable institutional responses to the public allegations of bias against Justice Spiro: (1) do nothing; or (2) have Justice Spiro take a leave pending a CJC decision on the allegations.
Approach (1) would involve no proactive efforts by the Tax Court to manage Justice Spiro’s docket in response to the CJC complaints. Litigants could still bring motions for disqualification in individual cases if they had concerns about appearing before him as a result of the public allegations of bias against him. A benefit of this approach would be that questions of potential bias relating to Justice Spiro (if brought forward in an individual case or cases) would be adjudicated in open court, based on submissions and legal standards, and evaluated in publicly available reasons. A downside is that disqualification motions take time and cost money. This approach could result in delays and costs being downloaded to litigants that would be avoided if the judge wasn’t scheduled to sit on their cases at all.[7]
Under Approach (2), Justice Spiro would have taken leave pending the CJC’s resolution of the complaints. This would avoid burdening parties with disqualification motions in individual cases. It would also send the message that the Tax Court took the allegations contained in the CJC complaints seriously. Finally, requiring a leave would confirm that Canadian courtrooms must be equally open to all members of the community at all times; if the Tax Court had concerns about Justice Spiro adjudicating claims involving actual or perceived Muslims given the pending complaints (which the issuance of the policy would seem to necessarily imply), then the solution was not to create differential access to the Tax Court for Muslims (or those perceived to be such). If Justice Spiro was not able to adjudicate cases involving actual or perceived Muslims, our commitments to equality would seem to dictate that he was not in a position to preside over any cases pending the conclusion of the CJC Review Panel.
Obviously, there are good reasons to be cautious, as a general matter, about requiring or encouraging judges to take leave in response to public complaints. In a Slaw column published in September, Patricia Hughes observes that “if judges are required to take a leave regardless of the complaint, obvious problems with judicial complement and, indeed, judicial reputation might arise.” On this point, it is notable that the case involving Justice Spiro had reached the Review Panel stage, which means the complaint had been vetted and there was an official determination “that the matter may be serious enough to warrant the removal of the judge.” This is a high threshold. A very small percentage of complaints against judges reach the Review Panel stage.[8] Given the numbers involved, a general practice of requiring judges to take leave at this stage would not unduly threaten judicial resources.
It is possible that, if Justice Spiro took leave pending the report of the CJC Review Panel, some members of the public might inaccurately infer that there was already an official determination that he had done something wrong (as opposed to just being investigated at that point). This risk of potential misunderstandings, however, strikes me as a weak argument. Similar concerns of reputational impact presumably arise upon any sort of publication that complaints against a judge have been made to the CJC and yet, for very good reasons, no one has attempted to legally preclude all reporting on such complaints. Additionally, it is not unfair to place some responsibility on the Tax Court and the CJC to mitigate the potential of such misunderstandings by educating the public about the judicial disciplinary process and the nature of any interim measures taken. In any event, even assuming that there are material reputational risks associated with Justice Spiro taking a leave, this option is still vastly preferable to the problematic initiative taken.[9]
What should happen next
There is still much we don’t know about what happened at the Tax Court. Who decided the scope of this policy and why? Did it become apparent at some point that the policy was unworkable and problematic, and so it was abandoned?[10] Was the policy only implemented in cases where it was convenient for the court or where implementation didn’t require the policy to be publicly disclosed? What criteria, if any, were used to screen cases? If the policy never came into effect did anyone update the CJC on this? How did the CJC react when it learned of this policy in fall 2020?
The secrecy of the policy also generates other, more systemic, questions which have the potential to threaten public confidence in our judicial system. If this kind of screening was happening behind closed doors, what else is happening? What other kinds of vetting goes on?
Providing the public with a full and transparent accounting is now is critical to rebuilding public confidence in the Tax Court and its ability to administer justice in a manner that is consistent with the ethical obligations of Canadian judges and our judicial system’s commitments to equality. Understanding more fully what happened and why is also an important first step to ensuring similar missteps are not repeated in future. Canadians need answers. I hope that they are forthcoming.[11]
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[1] See here and here for media reports that reported on this two part initiative.
[2] According media reports, a Tax Court spokesperson has confirmed that this initiative “was used only during the judicial council review process” and that “the restrictions against Spiro were in place between October 2020 and May 2021.”
[3] Indeed, Philip Bryden and Jula Hughes surveyed judges in 2007 about their recusal practices and one of their findings was “that most Canadian provincial and territorial court judges will recuse themselves more than once, but less than five times in a typical year.”
[4] I note that in a recent statement, the Canadian Association of Muslim Women in Law take the position that the initiative “perpetuates the inaccurate and divisive trope that the Israeli-Palestinian conflict is an issue between the Jewish and Muslim communities, which, in turn, perpetuates Anti-Semitism and Islamophobia since it pits religious communities against each other.” I also note that, in a September 20, 2021 op ed in the Toronto Star, Muneeza Sheikh comments that the Tax Court’s initiative “demonstrates a worrying fixation on Muslims.”
[5] Another strange (at least to me) revelation from the documents filed with the CJC in the judicial review is the fact that Justice Spiro seemed to comment in a February 2021 letter to the CJC (i.e. months after the Tax Court has said that the Muslim screening measures were in place) that it would be inappropriate for him to try to screen out Palestinians. As reported in the Globe and Mail, the correspondence stated:
“Even if I were interested in whether a taxpayer or counsel appearing before me were Palestinian (which I am not), and even if I had any animus toward Palestinian taxpayers or counsel (which I do not), I would have no way of knowing whether they were Palestinian unless I asked a series of questions designed to determine that fact and to elicit from them their political beliefs and their views with respect to Israel.[…] Such matters are obviously none of my concern and are entirely irrelevant to the proceedings before me.”
[6] I note that Jasminka Kalajdzic has posted an insightful Twitter thread on this point.
[7] On this point, it is perhaps worth noting that the Muslim screening policy that was adopted by the Tax Court left open the possibility of disqualification motions being brought anyways (notwithstanding the existence of that policy) given that no one knew about it (!) and also given the above-identified issues with the scope and operationalization of the policy.
[8] As the CJC’s recent reporting confirms:
From April 2019 to March 2020, the Council reviewed 648 files of which 335 were opened as complaints. In the same period, Council closed 292 complaint files, of which 270 were closed at the early screening stage. 22 matters were referred to a member of the Judicial Conduct Committee. There is currently one matter before an Inquiry Committee.
[9] Longer term, one possible systemic response could be to have a general policy which mandates that judges must take a leave any time that a case that reaches a Review Panel stage (I’ve written some further comments about that idea here).
[10] Recent reporting has suggested that the policy may not have been followed while it was in place.
[11] I note that in its recent statement, the Canadian Association of Muslim Women have also called on the Tax Court to disclose more details about this policy and how it operated.
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