The Tax Court of Canada did not live up to itself Legal observers say an unannounced promise to keep cases involving Muslims by a judge under scrutiny for bias related to the Israel-Palestine conflict.
Tax Court Chief Justice Eugene Rossiter made the promise in a letter to the Canadian Judicial Council last October. Describing how the court would identify Muslim litigants or lawyers, he said Associate Chief Justice Lucy Lamaray (now retired) would make an assessment “according to the information on file”.
At the time, Council was investigating Justice David Spiro for attempting to interfere with the University of Toronto’s hiring process. Before it approved them in May, Justice Spiro delivered a 91-page ruling in a case featuring two federal Justice Department attorneys whose names — Rana El-Khouri and Dina Alethy — fit the category of Chief Justice Rossiter swore to his court. be on the lookout.
In the case, Palata Estate v. Queen, the estate of an entrepreneur was battling the Canadian government over a complicated tax-deferment strategy. The 18-day hearing unfolded before the Judicial Council’s inquiry began. But Justice Spiro delivered his ruling in February (a revised version appeared in March), according to the Canadian Legal Information Institute’s public database of court decisions. The Judicial Council was still investigating at that time.
The Tax Court’s promise became public when several of those who complained about the judge to the Judicial Council asked the Federal Court to review the council’s decision to vacate him. In the process of review, Chief Justice Rossiter’s letter became part of publicly accessible records.
Legal observers and Islamic scholars have called Chief Justice Rossiter’s promise “bizarre,” Islamophobic and anti-Semitic, not in line with the justice system’s commitment to equality.
But they are also not affected by the breach of the court’s promise. They say this exposes the absurdity of trying to identify Muslim names in the first place.
“Both of these names are ‘Muslim’ or ‘Muslim-sounding’ names, because they are Arabic names,” said Mohamed Fadel, professor of law at the University of Toronto. “So it looks like this is a non-negotiable policy that has been implemented inefficiently.”
Anwar Eamon, Canada Research Chair in Islamic Law and History at the University of Toronto, said the presence of two Muslim-sounding names in the case decided by Justice Spiro “emphasizes the misleading nature of the Rossiter’s directive, as well as the court’s cultural incompetence.” When it comes to fulfilling such a strange and bizarre order.”
The promise was unqualified, he said, but being secret “whether or not it can be acted upon.” He added: “That’s why the whole measure feels like a shell game to ultimately maintain the status quo.”
The Justice Department said the tax court had not advised it of any such policy. Ms. El-Khouri and Ms. Alythi did not respond to requests made through the department for comment.
The Tax Court and the Canadian Judicial Council declined to comment through spokesmen.
Justice Spiro is a former board member of the Center for Israel and Jewish Affairs (CIJA), an advocacy group, and a former fundraising advisor to the Law School of the University of Toronto. The controversy surrounding them begins in the summer of 2020. Pressed by a CIJA member about the appointment of law school scholar Valentina Azarova as director of its International Human Rights Program, she discussed the matter with the university’s fundraising official. The CIJA strongly criticized Dr. Azarova’s published work on the Israel-Palestine conflict.
When the law school dismissed Dr. Azarova, several groups and individuals complained to the Judicial Council that the judge had interfered with the university’s hiring process, questioning her impartiality. (The law school said it dismissed Dr. Azarova over immigration issues, and a review by former Supreme Court Justice Thomas Cromwell cleared the school for being unreasonably affected.)
The Judicial Council wrote to Chief Justice Rossiter as it began its review and sought his comment. He praised Justice Spiro’s impartiality and collectivism. But for “perception purposes”, he said, the Associate Chief Justice shall endeavor to ensure that “any file on which he shall adjudicate, as the parties, or agents or counsel, any person who may claim to be a Muslim.” I can be thought of, or of the Islamic faith.”
And Justice Spiro will disassociate himself, Chief Justice Rossiter said, “from any file at any time,” if anyone involved appears to be of Muslim religion.
Justice Spiro himself found the idea absurd. In a letter to the Judicial Council in February, he did not mention the promise directly, but commented on the futility of trying to identify the Palestinians before him.
“Even if I was interested in whether the taxpayers or lawyers appearing before me were Palestinian (which I am not), and even if I had Palestinian taxpayers or lawyers (who I was not), I would have no way of knowing whether they were Palestinian, unless I asked them a series of questions designed to determine that fact and asked them about their political beliefs and Received his views regarding Israel,” he said. “Such matters are clearly not of my concern and completely irrelevant to the proceedings before me.”
The Judicial Council found that he made serious mistakes in talking to the law school about the appointment, but not serious enough to warrant dismissal. It ruled that properly informed people could not conclude that it was biased. Justice Spiro said he only warned the school to do due diligence because it would face controversy in the Jewish community.
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