06 Apr What the IHRP Hiring Scandal Tells us About Intersectional Privilege in Canadian Legal Institutions
Photo credit: University of Toronto
[Vincent Wong is a Canadian Lawyer and PhD Student at Osgoode Hall Law School, where he examines barriers to education for undocumented youth in Canada and the relation of those exclusions to racialized divisions of labour. Vincent was previously an Adjunct Professor and William C. Graham Research Associate at the International Human Rights Program at the University of Toronto Faculty of Law.]
In their seminal sociolegal text, Dealing in Virtue, Yves Dezalay and Bryant Garth describe how an elite group of transnational lawyers constructed the autonomous legal field of international commercial arbitration that gave them a central and powerful role in the global marketplace. Tracing the field’s history, Dezalay and Garth describe the central role of the “Grand Old Men”: a closed group of lawyers, trusted for their wisdom and judgment, whose social prestige and professional office served as a guarantee of their independence and impartiality. As the latest saga of the University of Toronto (UofT) hiring scandal demonstrates, the Grand Old Men paradigm remains appropriate today in revealing existing power structures and governing logics within the Canadian legal profession, academia, and the judiciary.
On March 15, 2021, former Supreme Court of Canada (SCC) Justice Thomas Cromwell completed his report on the aborted hiring of Dr. Valentina Azarova for directorship of the International Human Rights Program (IHRP) at the University of Toronto (UofT) Faculty of Law. The hiring was derailed by the then-Dean of the law school Edward Iacobucci, only several days after he had been made aware of concerns about Dr. Azarova’s work on Israeli issues raised by a sitting judge, alumnae, and donor – identified by media as Justice David E. Spiro of the Tax Court of Canada and former director at the Centre for Israel and Jewish Affairs (CIJA), an advocacy group.
Cromwell was originally hired by the President of the UofT, Meric Gertler, to review the hiring incident. It since come to light that Cromwell was the opening keynote speaker at CIJA’s annual legal conference on 9 February 2021, while he was putting the finishing touches on the report. It is unclear why he did not recuse himself given his role as an investigator of alleged external influence from CIJA.
As for me, I write this article from the perspective of an insider – to an extent. From June 2019 until my resignation in September 2020, I worked as a Research Associate for the IHRP and taught a clinical course on media freedom and international human rights. During the summer of 2020, I was asked by Assistant Dean Alexis Archbold if I could help with the hiring committee for the new director. Fatefully, I accepted the request.
Like most people affected by the scandal, I decided to voluntary participate in Cromwell’s review process in hopes that it would shed more light on exactly what happened. On this point, the report surely delivered. A close reading of details uncovered by Cromwell reveal an almost surreal story of what went on behind the scenes with Dean Iacobucci, the funding offices at UofT, Justice Spiro, and the CIJA, who found out about Dr. Azarova’s candidacy and explicitly set out to put the brakes on it.
The Additional Details Revealed by the Report
Among other things, we now know that:
- On the morning of September 4th, 2020, the first person who received Justice Spiro’s concerns about Dr. Azarova’s published work on Israel was an Assistant Vice President (AVP) responsible for donor stewardship calls, who presumably is Chantelle Courtney, former Assistant Dean of Advancement at the law school, according to contacts familiar with UofT organizational structure. The AVP was aware that Spiro was a federally appointed judge. Spiro asked the AVP whether she knew anything about the candidacy, raised concerns about Dr. Azarova’s work on Israel, and “wanted to ensure that the University did the necessary due diligence” (pp 32-33).
- Justice Spiro himself was tipped off about the name and background of Dr. Azarova by a staff member of an organization he was director at until his appointment to the bench, presumably CIJA. CIJA for its part had been tipped off by a professor from a university outside of Canada (p 31).
- The CIJA staff member wrote Spiro, wondering whether “someone could quietly find out the current status” of the job search, hoping that “through quiet discussions, top university officials will realize that this appointment is academically unworthy, and that a public protest campaign will do major damage to the university, including in fundraising” (p 32).
- Rather than communicating to Spiro that hiring decisions were confidential and strictly internal affairs, the AVP relayed Spiro’s concerns to the law school’s Assistant Dean of Alumni and Development, Jennifer Lancaster (p 33).
- Rather than communicating to the AVP that hiring decisions were confidential and strictly internal affairs, Lancaster relayed Spiro’s concerns to the law school’s Assistant Dean of the JD Program (and IHRP hiring committee member) Alexis Archbold (p 33).
- Rather than communicating to Lancaster that hiring decisions were confidential and strictly internal affairs, Archbold divulged to Lancaster sensitive information that indeed Dr. Azarova was the preferred candidate and that no final decision had been made. She also expressed concern that Dr. Azarova’s name had been leaked to parties external to the recruitment process (p 33).
- Archbold told Lancaster to relay this information to Dean Iacobucci and subsequently called the final member of the hiring committee, Professor Audrey Macklin, about the situation (p 34).
- Cromwell reports that Dean Iacobucci “gave instructions that he would have no engagement with Advancement on the matter and [Lancaster] was to advise the AVP that there would be no further follow up on the matter” (p 34). Yet somehow the AVP was successfully able to update Spiro anyway. The report seems to be silent on exactly how this occurred. At 2:01 pm, the AVP sent an update email to Spiro, writing: “Quick update – understand from [the Dean] that no decisions have been made in the matter discussed. I’ve communicated the points discussed and he will connect w[sic]me next week. Look forward to closing the loop w [sic] you” (p 35).
- At the time Spiro’s concerns first came to him, Dean Iacobucci admitted that he “had no personal knowledge at that time about [Dr. Azarova] or why her appointment would be controversial” (p 34). In other words, he had no involvement in the hiring process until he got the call from Lancaster. Up until that point, the university and Dr. Azarova were amicably exploring different options with respect to her work permit and a potential bridging employment contract. (This accords with my own experience that the Dean has very little involvement with IHRP matters. During my entire tenure at the IHRP, I have never met Dean Iacobucci nor have we exchanged any direct correspondence.)
- The following events up until the disqualification of the candidacy are well documented and ultimately grounded on the argument that Dr. Azarova couldn’t get to Toronto quick enough given the work permit situation, as well as the Dean’s apprehensions about the possibility of whether she could return to Europe during the summers. The Dean holds onto these as the reasons he rejected the candidate and not the concern about her work on Israel.
- What we are left with is that over the long weekend, from September 4th – when he first heard about Azarova – to September 8th, Dean Iacobucci made the final decision to disqualify her candidacy, overriding the unanimous decision of the IHRP hiring committee.
In other words, putting the inferences/conclusions aside, the facts themselves are incredibly damning. And thanks to the report, we know much more about what happened behind the scenes than before.
The Inference and What it Says About Intersectional Power and privilege in the Legal Field
Despite this mountain of contextual evidence, Cromwell states upfront that he “would not draw the inference that external influence played any role in the decision to discontinue the recruitment of the Preferred Candidate” (p 6).
Joyously, UofT President Meric Gertler places this development front and centre of his response to the review. Gertler also makes a point to effectively praise Dean Iacobucci, acknowledging “the difficult position” in which he “found himself”. He implies that Dean Iacobucci did the right thing, by respecting confidentiality, and allowing Cromwell to correct “erroneous or mistaken inferences that were based on less-than-complete information”.
A close examination of how Cromwell chose not to make the inference of external influence in the disqualification of Azarova’s candidacy, as well as of how Gertler is attempting to treat this decision as an exoneration of Dean Iacobucci, speaks volumes about the logics that work create a powerful presumption of innocence for elite white males in the Canadian legal field.
Cromwell’s refusal to conclude that external influence was part of Iacobucci’s hiring decision confuses concluding that the donor issue was a factor in the decision with concluding that it was the primary factor. That confusion is reminiscent of many human rights cases in which, for instance, sexism or racism cannot be pointed to clearly as the primary factor motivating a decision (e.g. because there was no admission, no direct slur, no “smoking gun”) but all the contextual factors, read as a whole, point to discriminatory treatment.
At bottom, Cromwell simply “takes the Dean’s word for it” that the external influence was not a factor, by pointing to the Dean’s denial and regurgitating his stated concerns. But this also begs further questions about what Dean Iacobucci even means when he says it was not a factor: given that the Israel issue was something he had in his mind when he decided and was raised in numerous discussions about Dr. Azarova from when he first got involved in the hiring process on September 4th until he made the decision to terminate her candidacy on September 8th. The eagerness of Cromwell to accept the Dean’s denial at face value rings very hollow.
Cromwell states that the process of the review “is not one that is suitable for making findings of credibility”, citing lack of safeguards, and that his task is to “construct a comprehensive factual narrative, not to resolve points on which memories differ”. However, given that there are essentially two different sides of the story here with respect to whether Spiro’s concerns played a role, de facto credibility assessments are nevertheless made.
The showdown between competing stories ultimately reaches a climax with the fateful September 6th call between Dean Iacobucci and Professor Audrey Macklin. Dean Iacobucci informs Macklin of his decision to disqualify Dr. Azarova, citing concerns about the immigration timing and Azarova’s inquiry about the possibility of returning to Europe in the summer. Macklin asks if the Israel concerns were an issue, citing that Azarova’s work was well within the zone of professional international legal analysis. Here is where their stories differ:
Macklin recalls that Iacobucci admitted that the work on Israel “is an issue”, but said that given the other two reasons, there was no need to address it (p 39). Dean Iacobucci, for his part, states that he was clear to Macklin that this issue “was irrelevant”. In refusing to draw an inference despite all of the countervailing contextual evidence, Cromwell at the end of the day simply accepts Dean Iacobucci’s denial at face value. He even goes as far as to cover Iacobucci by saying that even if Macklin’s recollection was accurate, the Dean already said to her that the Israeli issue was irrelevant because he could rely on the other two grounds. What accounts for this apparently superhuman ability imputed by Cromwell to Dean Iacobucci to compartmentalize the very concerns that first alerted the Dean to review Dr. Azarova’s candidacy – a candidacy of which he admitted he knew nothing about only two days prior?
The Grand Old Men Redux
Ultimately, the discrepancy between the damning facts and Cromwell’s refusal to find an inference of external influence on Dean Iacobucci’s decision cannot be explained without an analysis of the operation of intersectional power and privilege that continues to govern the legal academy, the legal profession, and the judiciary in Canada. It speaks volumes that this episode first related to improper conduct and influence by a powerful white male judge (Justice David Spiro), was bumped up to and decided upon by a powerful white male Dean of Law (Dean Ed Iacobucci, son of former SCC judge Frank Iacobucci), was mediated through another powerful white male investigator (former SCC judge Thomas Cromwell), and was then whitewashed by a powerful white male University President (President Meric Gertler) while all other voices have been sidelined. This is exactly the danger with a formal, legalistic analysis absent an analysis of power. You can reach whatever conclusion you want with the right phrasing and inferences. The result is a nakedly political process obscured by legal rhetoric.
Yet intersectional vulnerabilities are not simplistic identitarian claims; they are explanations of the multiple dynamics at play. An intersectional framework helps us understand why, despite the opportunity for discretion on framing and findings, the most generous interpretations are applied to the conduct of these powerful white men. Grossly inappropriate meddling by a sitting judge is described as “due diligence” (pp 32-33). Denial that improper external influence played a factor is simply accepted at face value, despite the fact that it flies in the face of a mountain of countervailing contextual evidence.
Page 73 of the report gives us another entry point to peel back the veneer of objectivity and examine the operation of intersectional power and privilege more closely. Through eight pointed paragraphs, Cromwell effectively chastises individuals whose behaviour is deemed to fall short of the necessary standard. The first four paragraphs relate to the three aforementioned women within the UofT administration who passed information back and forth between Spiro and Dean Iacobucci. The fifth paragraph refers to Professor Audrey Macklin. The sixth is reserved for me – after Dean Iacobucci issued his blanket denial and (what I perceived to be) misleading responses, I resigned and went public with the relevant information that I knew. I am unclear as to the identity of the individuals named in the seventh paragraph.
However, the lone badge of honour in paragraph eight is reserved for Dean Iacobucci – for strictly obeying confidentiality by offering no information other than denial when pressed. As mentioned earlier, President Gertler hooked onto this seal of approval from Cromwell to thank Dean Iacobucci for his fidelity to confidentiality. This despite the fact that the person who confidentiality most aimed to protect – the preferred candidate, Dr. Azarova – was the person most harmed by the leak and most harmed by Iacobucci’s abrupt and procedurally dubious decision to bar her candidacy.
The conduct of the three women within the UofT administration are not faultless, but it seems to be consistent with what is normally done for powerful donors: to pass requests and concerns along the chain to those with decision-making power in order to keep them happy. In this case, the donor’s concerns were successfully passed on to the Dean and the result he and CIJA was looking for came to fruition. The folks who attempted to bring up concerns (all of whom were not white men), first internally, and then as whistleblowers to the media, are chastised in the report as if there was any hope that Cromwell’s investigation and the improper practices it revealed would have happened at all without our going public (p 73). Later in that same page, Cromwell also spells out a recommendation that, in his view, would have been helpful: ensuring that Professor Macklin and I as members of the selection committee signed written confidentiality agreements, presumably so the University could better hold us legally liable if we went public with information about wrongdoing we perceived to be in the public interest.
Finally, the consequences speak for themselves: Dr. Azarova has still lost her job; I as a person of colour have lost my job in order to truthfully bring details of this incident to light; Palestinian rights and international law with respect to the Israel/Palestine situation are now demonstrably a taboo subject in the law school; and the powerful white men who are at the heart of this impropriety have thus far escaped any sort of formal accountability. Meanwhile, the three female administrators, Professor Macklin, myself, and the former IHRP directors who raised concerns to Iacobucci have been sacrificed at the altar to uphold the unimpeachable integrity that seemingly adheres to the Grand Old Men of the Canadian legal profession as an inherent right. Intersectionality allows us to ask hard questions regarding the likely outcomes of this unspoken governing logic: which groups bear the disproportionate consequences when there is impropriety? Which groups can expect to be exonerated so long as they follow a steady diet of denial and stonewalling?
The unassailable power of elite whiteness at UofT law is to interpret, teach, and create the law but never be seen as violators of it. Even when you physically walk into UofT law’s space, you are consistently bombarded with images and busts of almost exclusively white male lawyers and judges, who are honoured and revered as paragons of virtue, justice, and knowledge. Since these manifestations of whiteness are presumed innocent, a system that is designed to protect them must also be innocent. For those who understand and witness that power on a day-to-day level, who have witnessed denial of systemic racism as the winning electoral issue for our current governing slate of provincial law society benchers, who have seen a nearly 150-year streak of unbroken whiteness at our nation’s highest court, none of this comes as a surprise.
With respect to what can be done moving forward, if we take the law school at its word that ideology and Dr. Azarova’s work draws no concerns, then they should apologize to her and offer her the position (if she wants it) tomorrow. The bottom line is that a breach occurred, an attempt to interfere took place, and the appointment of a highly qualified person was derailed. If the university is genuinely not concerned about lobbyists and donors, there is no reason for them not to hire her now. I hope that the pressure continues until redress is done for all of those harmed, but particularly her. Until then, it is impossible to move forward and the reputation of the IHRP and the law school more broadly remains in tatters.
We will see what our new Dean Jutta Brunnée decides to do. But at this moment, I continue to feel a strong sense of shame and embarrassment to be a UofT law alumnus.