Canadian Judicial Council completes its review of the matter involving the Honourable D.E. Spiro
A Judicial Conduct Review Panel, constituted by the Canadian Judicial Council to review a matter involving the Honourable David E. Spiro, has concluded that while the judge made serious mistakes, these were not serious enough to warrant a recommendation for his removal from office.
The Review Panel was constituted at the direction of the Honourable Kenneth Nielsen, Associate Chief Justice of the Court of Queen’s Bench of Alberta and Vice-Chair of the Judicial Conduct Committee, following complaints filed with the Council relating to Justice Spiro’s alleged interference in the appointment of a Director of the International Human Rights Program (IHRP) of the Faculty of Law at the University of Toronto. The 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.
The Review Panel was comprised of Chief Justice Robert Bauman (Chairperson), Chief Justice Martel D. Popescul, Chief Justice Manon Savard, Justice Denis Jacques, and Dr. Jennifer N. Davis, Ph.D. In arriving at their conclusions, the Panel reviewed Justice Spiro’s response to the complaints, various letters of support received, and the report produced by former Justice Thomas Cromwell for the University of Toronto.
The Panel noted that before his appointment to the judiciary, Justice Spiro was a member of the Board of Directors at the Centre for Israel and Jewish Affairs (CIJA). On September 3, 2020, Justice Spiro learned from a staff member of CIJA about the imminent appointment of a person as Director of IHRP, and of related concerns. Justice Spiro was asked whether he could approach the Dean of the Faculty to relay these concerns.
Justice Spiro specifically declined to approach the Dean of the Faculty as he found it to be inappropriate. He had made arrangements earlier for a general “telephone catch-up” on the following day with an official and friend from the University. During their conversation, Justice Spiro commented about the controversial nature of this appointment from the perspective of the Jewish community and the potential damage to the reputation of the University.
Throughout the years and before his appointment to the judiciary, Justice Spiro had been a very engaged alumnus who supported the Faculty financially and professionally. For the Review Panel, it was this background, as distinct from the judge’s judicial position, that prompted Justice Spiro’s discussion with the official from the University. The Review Panel was of the view that Justice Spiro was voicing his concerns about the potential impact of the appointment and associated controversy on the University and the Faculty, as opposed to actively campaigning or lobbying against the appointment. Part of Justice Spiro’s concern was whether the University had done its due diligence in its selection process.
Before his appointment to the judiciary, Justice Spiro devoted a great deal of time to enhance his understanding of the Israel-Palestine conflict and to build bridges between the parties and the faith communities involved. The Review Panel concluded that nothing in the career of Justice Spiro or his work supports the suggestion of perceived bias on his part against Palestinian, Arab or Muslim interests.
The Review Panel concluded that 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. The fear of bias on the part of Justice Spiro is based on misinformation and speculation that is inaccurate. Further, the Panel observed that any fear of bias in the future is not well-founded and cannot form the basis for directing the constitution of an Inquiry Committee.
The Review Panel did find, however, that it was an error for Justice Spiro to raise such concerns in the manner he did. The judge properly recognized the mistakes he made and expressed remorse. The Review Panel found this error serious but that it did not warrant removal of Justice Spiro from office.
Associate Chief Justice Nielsen considered all the circumstances of this case, including Justice Spiro’s remorse and acknowledgment that his conduct raised questions about his commitment to impartiality toward all litigants and counsel who appear before him.
Judges should strive 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, and thereby contribute to confidence in the administration of justice. It was a serious error for Justice Spiro to discuss the appointment of the Director of IHRP, one that he regrets and one from which he states he has learned.
Associate Chief Justice Nielsen has expressed concerns to Justice Spiro as to his conduct in this matter. In view of all of the circumstances, Associate Chief Justice Nielsen is satisfied that Justice Spiro is acutely aware of his duty to the public, as a judge, to not only ensure he is impartial, but to be seen as being impartial. In light of the above, Associate Chief Justice Nielsen directed that the matter be closed.
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