Do Judges have a Public Relations Problem?

Recently the TV show This Hour has 22 Minutes did a piece on Canadian judges. It’s a riveting piece on the public’s perception of judges.

The skit called “Judges: a Danger to Canadian Women” can be viewed here: http://www.cbc.ca/22minutes/videos/clips-season-24/judges-a-danger-to-canadian-women. At first viewers think the show is commenting on xenophobia, then it turns out to be about judges.

The judiciary should take this piece seriously. It is a current temperature read on the public’s feelings towards judges.

Is it fair that judges are seen negatively?

No. Most judges are excellent, care about justice, and are deeply competent.

Despite this, the public sees things differently. The internet has transformed the way we receive information. However, our courts have failed to reflect this change. Simply rendering decisions in dense, legalese is not enough. The public expects and requires our courts to communicate with them in a way that they understand.

I hope that our courts can adapt new ways of explaining itself to the public. Including explaining our judicial system, explaining the law, and explaining their decisions in novel ways.

To find new ways of doing things, we need to ask questions. Why are decisions only provided with written reasons? We now can create videos. We can create flowcharts. We can create graphics. We can use social media.

Also, why do we televise Supreme Court proceedings and not others? What about matters at the Ontario Court of Appeal? What about trials of national importance or of great public interest? Wouldn’t seeing great lawyers and great judges in action increase our faith in our judiciary?

Of course the medium would need to be adjusted accordingly. But if our courts want to continue to maintain the public’s trust, then it needs to look seriously at how it communicates with the public. Public trust in the judiciary is integral to democratic order.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

What Can Judges Google?

Not only must Justice be done; it must also be seen to be done.

In R v Ghaleenovee, 2015 ONSC 1707, Justice Goldstein writes that:

[15]           It is almost impossible for any adult person in Canadian society in 2015 to function without at least some access to the Internet. …it is very tempting for a trial judge to use it.  Several trial courts in this province have considered the extent to which the Internet, and specifically Google Maps, can be used to take judicial notice of facts…

[20]           I conclude that indisputable facts can be established accessing the Internet as a source.  There are, however, two caveats.  The first is that the Internet contains wheat as well as chaff.  Everyone with a computer has been directed to a highly dubious “urban legend”.  I see no difficulty, however, with consulting a reputable website that is generally accepted as containing accurate information.

[21]           The second caveat is that a judge must not compromise the fairness, integrity, and reputation of the trial process.  The Internet has not changed that.  Judges have their role and counsel theirs: R. v. Brouillard1985 CanLII 56 (SCC)[1985] 1 S.C.R. 39 at paras. 12-13. Checking indisputable facts is one thing.  Conducting an investigation and drawing inferences – especially without giving the parties an opportunity to respond – is another.

[26]           In this case, the trial judge downloaded an image of the fence in question after the accused, Mr. Ghaleenovee, testified. The image was not put to Mr. Ghaleenovee.  He did not comment on it.  It was not the subject of extensive submissions.  The trial judge, however, used it to make an adverse finding of credibility against Mr. Ghaleenovee, at least in part:

We are aware that Mr. Ghaleenovee had small cuts to the knuckles of his hand…  He offers an explanation for how he got the cuts to his knuckles, but it does not seem very likely that he could have cut his hand on the fence in the way he described, or at all.  The fences in question are tubular, they have corners, but not the kind of corners that anybody could cut their hands on, particularly in the way described by Mr. Ghaleenovee…

[27]           In my respectful view, using an image that was downloaded from the Internet by the trial judge and not put to the witness compromised the appearance of fairness.  A reasonable person would consider it unfair that Mr. Ghaleenovee was never asked to comment on the image.  I might add that the trial judge’s comment was also problematic because of his observation – made without expert evidence – that Mr. Ghaleenovee’s cuts on his knuckles were consistent with tooth marks.

In R. v. Bornyk, 2015 BCCA 28, the Court of Appeal commented on a trial judge who conducted his own research regarding finger print analysis and asked for counsel’s submissions on the articles:

[11]        By his actions, the judge stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of “advocate, witness and judge”.

I have some lingering questions. If you know the answer, please comment.

If judges cannot Google, then are law clerks also restricted from Googling? It would seem like a loophole otherwise.

If a judge does not explicitly comment about their outside research in the decision, then is there any other way to ensure compliance? Does that encourage a policy of “Don’t ask, Don’t Tell”?

Can judges rely on case law not provided by counsel?