Googling' the Judge and the Perception of Impartiality: Out of Court Speech, Internet Search Engines, and Judicial Ethics

• Author: Karen Eltis
• Profession: University of Ottawa Columbia Law School
• Pages: 71-90

71

CHAPTER 5:

“GOOGLING” THE JUDGE

AND THE PERCEPTION OF

IMPARTIALITY: OUT OF COURT

SPEECH, INTERNET SEARCH

ENGINES, AND JUDICIAL ETHICS

A. INTRODUCTION

e Internet’s eect on the boundaries of acceptable “out-of-court” judi-

cial speech and association,1 particularly in an era of ubiquitous social net-

working, is a matter of increasing substance to courts a nd litigants as one.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 Charte r

is, of course, only properly satised when fairness and impart iality are

both “subjectively present and objectively demonstrated to the informed

and reasonable observer,”3 as justice must be done and be seen to be done.

1 See Ed Ratushny, “Speaking as Judges: How Far Can They Go?” (2000) 11 NJCL 293

at 296 [Ratushny]:

[T]he judge is not speaki ng as a judge but as a member of society . . . . The

issue here is whether such speech may reec t adversely on the impartiality

of the oce of the judge as constituting “unjudicial” conduct even thou gh

not performed in the capa city of a judge. In the second situation, the judge is

engaging in judicial conduct, but in doing so, may be f ullling the judicial role

improperly.

2 For said purposes, I borrow a broad working denition of ju dicial ethics, namely:

“Judicial ethics are the morals that guide the comportment of judg es.” Justice

Georgina R Jackson, “T he Mystery of Judicial Ethics: Deciphering the Code”

(2005) 68 Sask L Rev 1 at 2.

3 As discussed by Bryden’s enlightening piece in great detail. See Phillip Bryden,

“Legal Principles Governing the Disqualicatio n of Judges” (2003) 82:3 Can Bar

Rev 556 [Bryden]. See Canadian Charter of Rights and Freedoms, s 11(d), Part I of

Courts, Litigants and the Digital Age: L aw, Ethics and Practice

72

is duty unquestionably extends to judges’ extrajudicial or out of court

speech, conduc t, and associations .4

Sparing an outline of the normative framework, well exposed

elsewhere,5 the obligation in question, and the related requirement of gen-

eral “retenue ” or acting in a “reserved manner”6 are ensh rined at va rious

the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982,

c 11 [Charter], which states: “Any person charged with an oence has the right to

be presumed innocent until proven guilty according to law in a fair and p ublic

hearing by an independent and impartial tribunal.” See R v RDS, [1997] 3 SCR 484

at para 31 [RDS], and Rex v Sussex Justices, ex parte Mc Carthy, [1924] 1 KB 256 at

259, Lord Hewart CJ. See also John M Evans, DeSmith’s Judicial Review of Adminis-

trative Action, 4th ed (London: Stevens & Sons, 1980) at 250; Robert Reid & Hillel

David, Administrative Law and Practice, 2d ed (Toronto: Butterworths, 1978) at 231;

and s 23 of the Quebec Charter of Human Rights and Freedoms, RSQ c C-12, which

states: “Every person has a right to a full an d equal, public and fair hearing by an

independent and impartial tribu nal, for the determination of his rights and obli-

gations or the merits of any charge brought against him.” See 2 747-3174 Q ué bec

Inc v Quebec (Régie des permis d’alcool), [1996] 3 SCR 919, as cited by Bryden, ibid.

4 The appearance of bias, then, may originate from both the words and condu ct of

the judge, indicating prejudice. Mahoney JA considered in dic ta in Weerasinge v

Canada (Minister of Employment and Immigration), [1994] 1 FC 330 at para 13 (CA)

the question of whether or not “consultation by a decision maker be fore publish-

ing a decision, including consultation by the judge with a law clerk ” could be

abused so as to entail reasonable apprehension of b ias. The answer lies in

“whether an informed person, v iewing the matter realistically and practically,

and having thought it through, would think it more likely than not ” that the deci-

sion was inuenced by the clerk.

5 For the Canadian framework, see, for example, Bryde n, above note 3, and

Ratushny, above note 1. See also Adam Dodek, “Second Opinion: Help Wanted:

A Judicial Code of Conduct” Law Times (25 Februar y 2008), online: www.lawti-

mesnews.com/200802253898/Commentary/Second-Opinion-Help-wanted-A-

judicial-code-of-conduct.

6 See Gonthier J in Ruo v Conseil de la magistrature, [1995] 4 SCR 267 [Ruo], citing

the Universal Declaration on the Independence of Justice, adopted unanimously at

the nal plenary session of the First World Confe rence on the Independence of

Justice, Montreal, 10 June 1983 (internal footnotes omitted) :

2.10. Judges shall always conduct themselves in such a manner as to pre-

serve the dignity of their oce and the impartialit y and independence of the

judiciary. Subject to this principle, judges shall be entitled to fre edom of belief,

expression, association and assemb ly.

He also approved the following, from United Nations, H igh Commissioner for Hu-

man Rights, Basic Principles on the Independence of the Judiciary, adopted by the

Seventh United Nations Congress on the Prevention of Crime and the Treatment

of Oenders, Milan, 26 August–6 Septemb er 1985:

8. In accordance with the Universal Declaration of Human R ights, members of

the judiciary are like citizens entitled to freed om of expression, belief, associa-

tion and assembly: provided, however, that in exercising such rights, judges shall