Googling' the Judge and the Perception of Impartiality. Out-of-Court Speech, the Internet, and Judicial Ethics

AuthorKaren Eltis
“Googling” the Judge and the Perception
of Impartiality
Out-of-Court Speech, the Internet,
and Judicial Ethics
e Internet’s eect on the boundaries of acceptable out-of-court judicial
speech and association,1 particularly in an era of ubiquitous social net-
working, is a matter of increasing substance to court s and litigants.2
For evident reasons pertaining to the public’s condence in the judi-
cial system and the perception of its integrity, it behooves judges to take
pains to avert the slightest appearance of bias. In Canada, the Charter of
Rights and Freedoms is, of course, only properly satised when fairness
and impartial ity are both “subjectively present and objectively demon-
strated to the informed and reasonable observer,”3 as justice must be done
1 See Ed Ratushny, “Spea king as Judges: How Far Can ey Go?” (2000) 11
National Journal of Constitutional Law 293 at 296: “[T]he judge is not speaking
as a judge but as a member of society . . . . e iss ue here is whether such speech
may reect adversely on the impa rtiality of the oce of the judge a s constitut-
ing ‘unjudicial’ c onduct even though not performed in the capacit y of a judge.
In the second situation, t he judge is engaging in judicial conduct, but in doi ng
so, may be ful lling the judicial role improperly.”
2 For said purposes, I borrow a broad working de nition of “judicial eth ics,”
namely: “Judicial eth ics are the morals that guide t he comportment of judges.”
Justice Georgina R Jack son, “e Mystery of Judicial Ethics: D eciphering the
Code” (2005) 68 Saskatchewan Law Review 1 at 2.
3 As discussed by Bryden’s enlighteni ng piece in great detail. See Phi llip Bryden,
“Legal Principles G overning the Disqualic ation of Judges” (2003) 83 Canadian
Bar Review 555. See the Canadian Cha rter of Rights and Freedoms, s 11(d), Part
1 of the Constitution Act, 1982, being Schedule B to t he Canada Act 1982 (UK),
1982, c 11 [Charter], which states: “Any person charged with an oence has t he
Courts , Litigants, and the Digi tal Age102
and be seen to be done. is duty unquestionably extends to judges’ extra-
judicial or out-of-court speech, conduct, and associations.4
Sparing an outline of the normative fr amework, well exposed elsewhere,5
the obligation in question and the related requirement of general “retenue,”
or acting in a “reserved manner,”6 are enshrined at various levels of the
right . . . (d) to be presumed innocent until proven g uilty according to law in
a fair and public hear ing by an independent and impartia l tribunal.” See R v
RDS, [1997] 3 SCR 484 at para 31 [RDS]. See also Rex v Sussex, [1924] 1 KB 256
at 259, Lord Hewitt CJ. See also Sta nley De Smith, Judicial Review of A dminis-
trative Action, 4th e d (London, Sweet & Maxwell, 1980) at 250, and Robert Reid
& Hillel David, Admi nistrative Law and Practice, 2d ed (Toronto: Butterworths,
1978) at 231, and the Québec Char ter of Human Rights and Freedoms, CQLR
c C-12, s 23, which states: “Every person has a r ight to a full and equal, public
and fair hear ing by an independent and impartia l tribunal, for the determi na-
tion of his rights and obl igations or the merits of any charge brought agains t
him.” See 2747-3174 Quebec Inc v Quebec (Régie des permis d ’alcool), [1996] 3
SCR 919, as cited by Bryden.
4 e appearance of bias, then , may originate from both the words and conduct
of the judge, indicati ng prejudice. Justice Mahoney considered in dicta in
Wee ras ing e v Canada (Minister of Empl oyment and Immigration), [1994] 1 FC
330 at para 13 (CA), the question of whether or not “consultation by a decision
maker before publishing a de cision, including consultation by the judge wit h a
law clerk” could be abuse d so as to entail reasonable apprehension of bias. e
answer lies in “whet her an informed person, viewing t he matter realistical ly
and practical ly, and having thought it through, would t hink it more likely than
not” that the decision wa s inuenced by the clerk.
5 For the Canadian frame work, see, for example, Bryden, above note 3, and Ra-
tushny, above note 1. See also Adam Dodek , “Second Opinion: Help Wanted:
A Judicial Code of Conduct” L aw Times (25 February 20 08), online: http://
lawtime 0802252322/commenta ry/second-opin ion-help-wanted-
6 See Gonthier J in Ruo v Conseil de la m agistrature, [1995] 4 SCR 267 at para
108 [Ruo], citing t he Universal Declaration on the Independence of Justi ce,
adopted unanimously at t he nal plenary session of the Firs t World Confer-
ence on the Independence of Justice, Montréa l, 10 June 1983 [internal footnotes
omitted, emphasis in or iginal]: “2.10. Judges shall always conduct themselve s
in such a manner as to prese rve the dignity of their oce and the impa rtiality
and independenc e of the judiciary. Subject to thi s principle, judges shall be
entitled to freedom of belief, ex pression, association and assembly.”
Justic e Gonthier, ibid , also approved the following f rom United Nations,
High Commissioner for Huma n Rights, Basic Principl es on the Independence of
the Judiciary, adopted by the Seventh United Nations Congress on t he Preven-
tion of Crime and the Treatment of Oenders, M ilan, 26 August–6 September
1985 [emphasis added]: “8. In accordance with the Univers al Declaration of

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