The Palestinian exception to free speech

A sitting Federal Court of Canada judge and major donor made a "serious error" by interjecting himself into a confidential faculty hiring decision at the University of Toronto Law School, but there will be no consequences — because Justice David Spiro is remorseful, says the Canadian Judicial Council (CJC). 

What did he learn? To make sure he is more discreet next time he tries to influence a hiring decision based on the candidate's views on the Israeli-Palestinian issue? Are others expected to take the cue as well?

One would assume that a judicial disciplining body would be more demanding of judges to ensure that their conduct, both in and out of court, will sustain and contribute to public respect and confidence in their integrity, impartiality and judgment.    

In any event, as critical race theorist and Ryerson University Law School Professor Joshua Sealy-Harrington tweeted after the CJC decision:

"It's instructive that Canada's most powerful law school—in alliance with a fraternity of white judges—is, with impunity, suppressing speech about one of the most oppressed racialized communities in the world.

*We* are told law is about order, while *they* wield it for power."

In addition to making it clear who wields the power of law, what this scandal has laid bare is the Palestinian exception to free speech and the rule of law.

Even before the CJC decision, a report commissioned by the university and authored by former Supreme Court judge Thomas Cromwell exonerated Dean Edward Iacobucci. The retired judge concluded that although the dean knew Justice Spiro's views, it did not influence his decision to revoke the offer to Dr. Valentina Azarova. 

In his now widely critiqued report, Cromwell came to this conclusion despite the fact that the Dean was not involved in the hiring process until after Justice Spiro had conveyed his "concerns," and even though the Dean was going against the unanimous decision of the hiring committee.

The former judge also had no qualms about writing this report while speaking as a keynote at an event hosted by the Center for Israel and Jewish Affairs (CIJA), the very pro-Israeli lobby group on whose behalf Justice Spiro called the law school.

In fact, Cromwell's report notes that upon learning of the confidential hire, a staff member of the CIJA asked Justice Spiro, a former director of CIJA, to make the call. 

The CJC review panel leaned on this report, ultimately concluding that Justice Spiro had only expressed Jewish community concerns regarding Dr. Azarova's criticisms of Israel's human rights violations. They found that Spiro did so in his capacity as "a very engaged alumnus who supported the Faculty financially and professionally," and not from his judicial position. 

In a deft and creative use of their pens that would not pass muster in my legal analysis and writing class, the panel also concluded that Justice Spiro was "voicing his concerns" but not "actively campaigning or lobbying."

This is a distinction without a difference. Should judges not be expected to carry themselves in a more circumspect manner because of their influence and clout, whether expressly exerted or not? Is it more or less improper and unethical to interject oneself into a confidential hiring process, whether one is wearing a judge or donor hat?

The CJC’s own published judicial ethics guidelines provides that “all partisan political activity and association must cease absolutely and unequivocally with the assumption of judicial office.” 

In addition to work with political parties, “partisan” includes participation in contentious political issues. The rationale for this is no doubt to ensure public confidence in their impartiality and judicial independence.

Can judges or donors now call to passively "voice their concerns" prior to faculty tenure votes? Per the words of the CJC, this, too, would not be lobbying, but merely calling on the law school to do their "due diligence".    

Both actual bias and the appearance of bias are critical considerations. To disregard this is to do so to the detriment of the justice system. 

This “oversight” makes it all too easy to poison the well of justice and fairness by covert passive lobbying. Perhaps it is time for these judges to revisit their own guidelines for a primer on legal ethics 101 and the idea of academic freedom and how and why that must be protected.

One of the complainants, Osgoode Hall Law School professor Craig Scott, told me the process appeared to be designed to protect judges in a quasi-Kafkaesque way. There was no due process to speak of and no ability for complainants to be involved other than filing the complaint. 

Moreover, even if the panel wanted to dish out more serious sanctions it was not possible, and were limited to dismissal or an admonishment. Except in the most extreme cases, no real punishment will or can be meted out, ensuring that their privilege, power, and position is never questioned or threatened.

While the judiciary and its representative have stooped to ridiculous depths to protect its privilege and position, the law school and the University of Toronto also shamelessly continue in their stubborn ways. 

After the Dean's decision, the entire advisory board of the International Human Rights Program resigned. This elicited an international uproar, including petitions signed by hundreds of academics, faculty staff, students and concerned citizens from around the world.

In April, UofT became the only Canadian school under a rare censure by the Canadian Association of University Teachers (CAUT), which represents 72,000 academics across the country.

The CAUT move led to a spate of resignations, high-profile speech cancellations, including by former governor-general Michaëlle Jean and several organisations, including Amnesty International, cutting ties with the university.

Despite the intense global pressure, nobody has been held accountable for this egregious breach of academic freedom, improper influence and unethical conduct. The power and clout that donors – mostly powerful white men – yield appears to mean more. 

Who needs to stand by the truth, and what is right, when money talks?

The law school, the university, the dean, the university president and now a judge all appear immune from any serious discipline or accountability despite what appears to be blatant violations and possibly unethical conduct.

The global outcry, boycotts, official academic censures, ties cut by major international organisations and reputational harm all arising from the actions of Iacobucci, Spiro, and University President Meric Gertler, have apparently not brought the university, the law school or the judiciary into disrepute. In fact, they refuse to take any responsibility and continue to stand tall. 

This is nothing but the raw and open abuse of power.

It also appears to confirm a Palestinian exception on free speech.