Unmistakably — and whilst the exact degree of requisite expertise remains to be determined — judges must possess some understanding of the fundamental notions of technology in order to grasp the related issues permeating cases and to adequately filter and assess evidence. As well, as online communication itself increasingly forms the subject of legal dispute, judges best acquire the aptitude for understanding not only by gaining some facility with (fundamental) technical aspects of the digital revolution but also through experiencing Internet culture. They are at the same time invited to avoid excessive reliance on and disclosure to support staff or ‘experts’, which can be problematic and threaten their independence to a certain degree.
That said, judges’ participation in online culture has too attracted controversy. Prominently, Canada’s most recent Supreme Court nominee, Justice Russell Brown, was denounced by critics for his ‘prolific’ blogging as a law professor. Some argued that his blogging took on political overtones and could therefore be demonstrative of perceived bias. That said, and as further discussed in Courts Litigants and the Digital Age (Irwin Law 2016), in light of recent developments expecting abstinence from participation in online culture (or public ‘digital’ participation generally prior to appointment, for fear of leaving a “digital trail”) may ultimately be detrimental to the justice system by depriving the public of otherwise competent, fair-minded judicial officers. Judicial officers who were simply involved in community life (which now includes the Internet) – within the bounds of propriety – prior to their appointment, as naturally expected of prominent practitioners and academics.
In this vein and as I have written elsewhere journalist Lysianne Gagnon warned of potential candidates for judicial office who were cautious of maintaining a « dossier vierge de polémiques » - a “Virgin dossier, free of debate” - until the long awaited day of their appointment [translation].
Chief Justice Beverly McLachlin seems to echo this point stating the following:
"I think the Canadian public understands that intelligent, engaged lawyers and judges think about problems and may on occasion express [their thoughts], particularly in their prior roles… Justice Brown was an academic and part of being an academic is engaging in a vigourous debate on legal issues and the functioning of the court."
While judges, particularly in the United States, can perhaps more freely share their views subsequent to their appointment, the concern is that expressing their opinions online (and therefore publically) might cause them to appear to be “more pundit than professor”.
In short to reach the ever elusive equipoise – or at the very least mediate intelligently- between the right to free expression and professional restraint, a significant distinction to consider is whether the views impugned for their political overtones were made prior to or post appointment, in addition to their flagrancy. Prior to – in contradistinction to post (and of course depending on the flagrancy)- may simply be evocative of digital competence and a temperament that favours active participation in cultural and community life, rather than indicative of bias, when contextually assessed.
*Karen Eltis is a law professor at University of Ottawa and a member of the Centre for Law, Technology and Society. She specializes in the impact of new technology on constitutional rights from a comparative perspective, with special emphasis on privacy.