No lobbying for judges, periodt!
Justice David Spiro (left) of the Tax Court of Canada, and Justice Donald McLeod of the Ontario Court of Justice
By Desmond Cole
If you’re a judge, you shouldn’t be meddling in a university’s hiring processes based on your own political concerns, or those of your friends. Justice David Spiro, a Canadian tax lawyer, knew this but did it anyway. Just days after Spiro inserted himself into the University of Toronto’s hiring process for Dr. Valentina Azarova, the school rescinded the scholar’s job offer, even though she had been the hiring committee’s unanimous choice.
After public exposure, international condemnation, and an investigation by the Canadian Judicial Council, Spiro has admitted his intervention was wrong and expressed regret. The CJC took this to heart and has decided not to reprimand the judge—the review panel’s only disciplinary option was to remove Spiro, and it decided this would be too harsh. Many of Spiro’s critics are upset with the CJC decision. While I share this feeling, I’m worried that many are only angry because they disagree with Spiro’s politics, and are silent on the bigger issue that judges should never engage in political activity.
Spiro is a former director for the board of the Centre for Israel and Jewish Affairs, a lobby group that attempts to normalize Israel’s immoral occupation of Palestinian lands (he resigned from this position before he became a judge). He’s also a major U of T donor. A CIJA staffer somehow received leaked information that Azarova, a critic of Israel’s human rights violations, was being offered the top job at U of T’s International Human Rights Program. The CIJA staffer wrote to Spiro, who had a conversation with a U of T assistant vice-president, and said that hiring Azarova might damage the schools reputation (lol). Then Azarova was dumped, and the position remains empty more than eight months later.
Unsurprisingly, social media commentators who support Israel’s occupation are more likely to say Spiro did nothing wrong, while those who condemn the occupation are more likely to criticize his actions. But the problem is bigger than these particular viewpoints. As the Canadian Association of University Teachers argued when it censured U of T over its treatment of Azarova, “delegates concluded that the decision to cancel Dr. Valentina Azarova’s hiring was politically motivated, and as such constitutes a serious breach of widely recognized principles of academic freedom.”
If we accept this argument, a judge who intervened to stop a pro-Israel scholar from getting a university job would also be out of line. The hiring decision was none of Spiro’s business, and beyond his personal beliefs, it’s his political interference as a sitting judge that stinks so badly. Judges already have too much power in their own domain, and we can’t accept their lobbying of other institutions, no matter their motivations.
Many Black folks reacting to the Spiro case have compared his situation with that of Justice Donald McLeod, an Ontario judge currently facing his second judicial hearing in three years. McLeod has been accused of repeated political activity with a Black lobby group called the Federation of Black Canadians (FBC), and has been suspended for most of the last two years.
Those who compare these two situations say Spiro, a white man, has dodged accountability while McLeod, who is Black, is being unfairly targeted with a longer and harsher process. One Black lawyer summed up the comparison by stating that it demonstrated, “Different skin colours, different outcomes.” But such comparisons don’t fully assess the extent of McLeod’s political activity, and some of them suggest that lobbying is acceptable, or that it isn’t even lobbying, if one’s motivations are pure.
Canada’s judicial ethics guidelines say that “all partisan political activity and association must cease absolutely and unequivocally with the assumption of judicial office.” In this context, “partisan” includes activity with political parties, but also participation in contentious political issues. The reason for this restriction is clear: “a judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in their impartiality and the independence of the judiciary.”
McLeod’s lobbying and political activities are too long to list here in full. A 2018 hearing panel concluded that he had engaged in political activities by meeting with several politicians, including Prime Minister Justin Trudeau, and asking them to fund specific initiatives. The Ontario Judicial Council determined that McLeod had engaged in impermissible political activity, but that his conduct wasn’t serious enough to count as misconduct.
This is the very same fate the CJC recently handed out to Spiro, and it suggests that Black people who make it into the judiciary can still get a pass for questionable behaviour. If anything, McLeod got by despite a pattern of repeated political activity that Spiro was not accused of.
McLeod then resumed his role as Chair of FBC, and the group continued its political advocacy. I reported in February of 2019, fewer than three months after his first hearing decision, that McLeod was back at FBC, and that he had not disclosed all of his political activities at the first hearing, including a phone call he initiated regarding the deportation of Abdoul Abdi, which was before a federal court at the time.
I also reported that McLeod had engaged in a phone call with two Black people who were racially profiled at a Parliament Hill event organized by FBC, and that the judge had discouraged them from speaking publicly about their experiences. Judges, Black and white, really believe they can pick up the phone and influence political decisions with impunity.
In September of 2019 I reported that McLeod attended a funding meeting with Employment and Social Development Canada, where an invite-only group of Black people discussed the allocation of $25 million in funding for Black communities. The following week, the OJC announced that it had suspended McLeod with pay, and he has remained suspended throughout the second investigation and public hearing into his actions.
Unlike Spiro, McLeod has never admitted any wrongdoing for these actions. His many denials (he is entitled to make them) have contributed to the length and complexity of his process. There’s simply less to argue about when people take responsibility for their actions. While Spiro resigned from CIJA to join the judiciary, McLeod founded and led his lobby group while serving as a judge. He has asked Black people, the general public, and the judiciary to accept this bizarre situation as normal, and many have obliged him.
Some Black folks argue that McLeod’s advocacy has been in service of his community. Spiro could make the same claim about his CIJA-inspired interference at U of T, but it’s still unacceptable. The goal of judicial lobbying isn’t the issue—judges who exert political pressure always go too far. The judiciary should definitely hold McLeod, Spiro, and all judges to the same standard: the highest standard, one that rejects all lobbying and political interference.
Leslie Green, a law professor at Queen’s University and Balliol College, Oxford, filed one of the complaints against Spiro. He recently described his ethical concerns this way: “Judges should not act in a way that suggests they are covert lobbyists, whether they seem to be promoting the agenda of the Federation of Black Canadians or of the CIJA. The appearance of bias is inevitable and poisonous. This is legal ethics 101.”
In his courtroom, McLeod can deny someone accused of a crime their freedom and separate them from family, friends, and loved ones. He is a Black elite, and his share of institutional power is greater than most Canadians of any race. It’s infantilizing to suggest that McLeod cannot be tempted by power, and it’s destructive to suggest we shouldn’t check him because white judges get away with the same conduct or worse. Black institutional elites who aim to be as unaccountable as their white peers are reinforcing white supremacy, not challenging it.
At his hearing in February McLeod said “I don’t have the luxury of just being a judge.” But in practical terms, McLeod never stops being a judge, no matter how else he sees himself. A judge who tells us they’re just making a friendly community call is still wielding an influence that changes the way people respond to them. One day we’ll stop consolidating so much power in the hands of a few elites. For now we need to keep them all in check, and protect our own collective power instead of fetishizing theirs.