Friday, March 18, 2016

Why the Ontario Court of Justice Needs a Policy on Judicial Use of Social Media ASAP

     The right to a fair and impartial hearing is a right of fundamental importance in a free and democratic society.  One of the ways in which our system of justice aims to ensure objectivity and impartiality in judges is to circumscribe their freedom of expression on public and political issues. No one would want to be tried on an impaired driving charge by a judge who has publicly announced that breathalyzer machines are full-proof and sentences for these offences are too lenient.  Anyone convicted of a such an offence by a judge who has made such statements publicly or in court may well have good grounds to challenge the legal legitimacy of his or her findings of guilt.

     With the advent of Twitter, Facebook and other forms of social media the ability of judges to communicate and express their views on political and legal issues has increased substantially and poses a serious threat to the constitutional right to a fair and impartial hearing in criminal trials and other serious legal proceedings.  Who judges "follow" on Twitter may potentially provide some indicia of their lack of impartiality on a subject.  For example,  a judge who "follows" a well known columnist  who is consistent in her commentary on judicial misconduct matters and is called upon to adjudicate a case of judicial misconduct may be compromising their objectivity and impartiality given the consistent theme in the columnist's coverage of judicial misconduct proceedings.  A judge who "retweets" the columnist's publication pertaining to the judge's own decision is arguably descending from the Bench and entering the political arena as an advocate.  Arguably, such a judge has effectively denuded him/herself of objectivity and impartiality.


     As the above-noted scenario shows judicial use of social media has the potential to undermine the legal legitimacy of serious decisions made by judicial officers.  Surprisingly, the Ontario Court of Justice does not have a policy with respect to the use of social media by judicial officers.  If those responsible for the regulation of judicial conduct at the Ontario Court of Justice are serious about the constitutional right to a fair and impartial trial/hearing provided for by the Charter then it time to pass clear and strong policies regulating the use of social media by all judicial officers.  Anything less erodes public confidence in the court. Justice must always be seen to be done. (see R  v. Sussex Justices, Ex Parte McCarthy [1924] 1 KB 256, [1923 All ER Rep 233. etc.)

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