L Sossin & M Bacal, Judicial Ethics in a Digital Age

TITLE: Judicial Ethics in a Digital Age

AUTHORS: Lorne Sossin & Meredith Bacal

SOURCE: University of British Columbia Law Review

CITED: (2013) 46 UBC L Rev 629 – 664

One thing seems to me to be clear. In facing the reality of the modern communications revolution, it is crucial that we understand the technology and how it is being used — something lawyers and judges, often castigated as Luddites, may not find easy. And having understood the new technology and its uses, we must do what we are doing today — discuss, reflect, and share experiences and best practices.

Chief Justice Beverley McLachlin1

INTRODUCTION

1 Is there anything distinct about the judicial engagement with social media that would constitute an ethical concern? If judges engage in improper communication, for example, we tend to focus on the substance of the communication, not whether it was in person, in print, over the phone, or through some other medium. With social media,2 however, we confront the question of whether the medium in some real sense may become the message as well.3 In other words, in this context, there are really two issues — one is a question of engagement itself (e.g., should a judge have a Facebook page or a blog?) while the second question is one of substance (e.g., what kinds of tweets are acceptable or unacceptable for members of a court to post?). This brief study is devoted to addressing the question of whether social media represents a field of judicial ethics in Canada or simply a new venue for existing ethical guidelines to be applied. Further, if there are new and distinct ethical quandaries to which social media gives rise, we explore how those issues should be resolved, building on the existing ethical templates both in and out of the courtroom.

2 Ethical guidelines in the context of Canadian judicial conduct are advisory in nature, and designed so that they may be adapted to various scenarios. Unlike fixed and precise rules, the guidelines are meant to be both enduring and evolving. The guidelines ought to be adaptable to developments in law, culture, and technology. That said, it is equally true that guidelines may become outmoded (indeed, the Canadian Judicial Council announced a review of the Guidelines in 2011).4 For example, rules provide judges with the tools to control the flow of information in the courtroom — to close a hearing or issue a publication ban, etc. Those rules cease to have meaning in an era when “citizen journalists” may publish information on trials in their blog, or live tweet a motion, or use their cell phones to record the events transpiring in the courtroom. “Crowdsourcing” justice has the potential to make the judge just a participant in a connective community, rather than the person in control of a legal process. Technology, in this sense, has disruptive potential in the justice system (just as it does in every other system).

3 The rise of social media will provide an unprecedented level of access by the public into the lives of judges, and by judges into the lives of everyone else. Ethical implications of social media include not simply whether judges choose to engage with various new media for connectivity, but also how they respond when they become the subject of interest and scrutiny in those media. The recent tabloid judicial investigation into the conduct of Justice Lori Douglas represents, in this sense, a particular kind of canary in a particular kind of coal mine. Soon, it will be hard to imagine a judicial appointee who does not bring significant social-media baggage of one kind or another. We believe the rise of social media represents one of those occasions where the existing guidelines are insufficient to adapt to the disruptive potential of new technology.

4 This analysis has two parts. In the first part, we explore the current ethical guidelines for federally appointed judges in Canada and how these may be adapted to the realities of social-media connectivity.5 We also highlight what we believe to be the gaps in the current ethical framework. This analysis is complemented by selected comparative insights from peer jurisdictions that face similar challenges. In the second section, we suggest some forward-oriented considerations for reform and further development both of judicial ethics and judicial discretion in the context of social media.

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