Judge made ‘serious error,’ but can stay
Panel rebukes Spiro for expressing concerns over U of T hiring choice
Tax Court Judge David Spiro made a “serious error” in involving himself in a University of Toronto hiring decision that became an international scandal, but it wasn’t bad enough to remove him from office, a review panel for the Canadian Judicial Council has found.
The sitting judge, who is a University of Toronto alum and major donor, was accused of applying pressure on the Faculty of Law last summer to block the hiring of human rights scholar Valentina Azarova for the position of director at the faculty’s International Human Rights Program. He expressed Jewish community concerns about her academic work that criticized Israel for its human rights violations in Palestinian territories. His involvement sparked several complaints by individuals and organizations to the council.
In letters marked “Personal and Confidential,” the judicial council told various complainants what it soon said in a press release: “It was a serious error for Justice Spiro to discuss the appointment of the Director of IHRP, one that he regrets and that he states he has learned from.”
“It’s a stinging rebuke,” said Queen’s University law professor Leslie Green, who was one of the complainants who received a note. “There is basically only one serious punishment the council can hand out and that is removal. There is nothing below removal except to scold.”
As the person most qualified person for the job, Azarova was the unanimous choice of a hiring committee. An external investigation for the university found in March that her hiring was moving forward when the faculty dean heard of the judge’s concerns, stepped in and cancelled the decision, leading to an international uproar that has led to petitions signed by hundreds of academics, faculty staff, students and concerned citizens from around the world.
The entire faculty advisory board of the International Human Rights Program resigned and several organizations including Amnesty International and the National Council of Canadian Muslims called for a transparent and thorough investigation.
In April, the Canadian Association of University Teachers (CAUT) Council, which represents 72,000 academic professionals across the country, voted on a rare censure of the university as “a measure of last resort,” leading to a spate of cancellations of high-profile speeches including by former governor-general Michaëlle Jean, and to several organizations, including Amnesty International, cutting ties with the university.
In Friday’s ruling, the judicial council said Spiro’s involvement came from being “a very engaged alumnus who supported the Faculty financially and professionally” and not from his judicial position.
It’s a line that left Samer Muscati, past director of the International Human Rights Program, scratching his head. “The distinction in this case is meaningless. Being a judge gives you incredible clout and influence regardless of whether you are acting as a judge or donor. And it’s still improper and unethical to influence a confidential hiring process regardless of whether you are acting as a judge or a donor.”
The judicial council also said Spiro was “voicing his concerns” but not “actively campaigning or lobbying” against Azarova’s appointment. “Part of Justice Spiro’s concern was whether the University had done its due diligence in its selection process,” it said.
Muscati calls that distinction imaginary, saying “as a judge, ‘voicing his concerns’ can clearly be just an effective as ‘actively campaigning’ as this case shows.”
The panel also concluded nothing in Spiro’s career could suggest he was biased against Palestinian, Arab or Muslim interests.
The Tax Court said Friday “Justice Spiro will not comment.”
Thus far, nobody has been held accountable for the decision that led to the decision to reverse the hiring of Azarova. The job that begins in September is still open, but the university will not commit to hiring her.
The external report in March by former Supreme Court justice Thomas Cromwell exonerated the dean in question, Edward Iacobucci, saying that although he was told of Spiro’s views, although he was going against the express wishes of the hiring committee and although he had not been involved in the hiring until then, he was not influenced by the pressure.
“At the end of this scandal, it appears that none of these powerful men — Spiro, Iacobucci and (university president Meric) Gertler — will be held accountable,” said Muscati. “If that happens, this will truly be the ultimate failure of the legal profession and the judiciary.”