Adjudicators in the Community: New Frontiers in Apprehension of Bias

Justice Sopinka famously said (in 1989) that judges are not monks (although he should also have said nuns) and can have a role to play in their communities. He was writing in the (mostly) pre-internet era, where social interaction within communities was largely hidden from public view. With the prevalence of the internet, community involvement of judges and adjudicators has become more transparent. Two recent court decisions help to illustrate different views on how adjudicators can engage in their community — both in-person and virtually — and may help to focus a public discussion on reasonable limits to social media activity of adjudicators.

The concern about public activity of adjudicators mostly relates to perceptions of impartiality. The test for apprehension of bias is an objective one and is based on the following assumptions about the person viewing the activity of an adjudicator:

• He/she is informed
• He/she views the activity realistically and practically
• He/she thinks the matter through

Having done all that, this perfectly objective person would then ask whether it is more likely than not that the adjudicator would not decide fairly. This test, established 37 years ago in the dissent of Justice de Grandpré in Committee for Justice and Liberty v. National Energy Board, 1978 1 S.C.R. 369, at p. 394, is still routinely cited by courts and tribunals. The reason for its longevity is its emphasis on context. The context of social interaction has changed dramatically since 1978, but the test still works.

The recent Supreme Court decision in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII) did not directly address social media but provides some useful perspectives on community involvement of adjudicators. In that case, a judge was found not to be biased because of his community involvement in minority language rights. A recent lower court decision in Ontario (Robinson v Lepage, 2015 ONSC 3128) found that a paralegal firm’s online donation to a part-time Small Claims court judge for a charity bike race raised a reasonable apprehension of bias. The implications of the analysis in that decision for community activity of adjudicators in an online world are troubling.

In the Yukon case, the Supreme Court addressed three areas of alleged bias of the judge: pre-employment community activity, conduct during the trial, and community activity while on the bench. (In the result, a reasonable apprehension of bias was not found based on the judge’s community activities before and after appointment – it was his actions and words during the proceeding that was his undoing.) I have written about pre-appointment activities and bias already. I have also written about actions during a proceeding and bias. In this column, I will focus on community involvement while appointed.

The Yukon case involved minority language rights. At the time, the judge was a governor of the Fondation franco-albertaine. Its “mission” is to “establish charitable activities to enhance the vitality of Alberta’s francophone community”, and its “vision” is for “a francophone community in Alberta that is autonomous, dynamic and valued”. The Yukon Court of Appeal recognized that the organization’s goals were primarily charitable, not partisan, but expressed the following concern:

..the parallels between the situations of s. 23 rights-holders in Alberta and those in Yukon are direct and obvious. Further, the expressed visions of the Fondation franco-albertaine would clearly align it with some of the positions taken by the Board in this case. We are unable, therefore, to accept that the judge’s position as governor of the Fondation franco-albertaine was innocuous.

The Supreme Court reminded us that the inquiry into whether a decision maker’s conduct creates a reasonable apprehension of bias is inherently contextual and fact-specific.

A judge’s identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them. Justice is the aspirational application of law to life. Judges should be encouraged to experience, learn and understand “life” — their own and those whose lives reflect different realities.

The Court noted the importance of judges avoiding affiliations with advocacy or political groups but stated that judges should not be required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest.

Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise. We expect a degree of mature judgment on the part of an informed public which recognizes that not everything a judge does or joins predetermines how he or she will judge a case. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.

The court concluded that, “standing alone, vague statements about the organization’s mission and vision do not displace the presumption of impartiality”.

As summed up by Jennifer Taylor, “judges can do a lot of living while still remaining impartial, and the reasonable person has to recognize that.”

The recent decision of the Divisional Court in Ontario about community involvement of a Small Claims court judge takes a different approach to community involvement. As is common in Canada, Small Claims court judges are often practicing lawyers and the position is part-time. The nature of the litigation is not described in the Divisional Court’s decision. The losing party raised a number of arguments in the appeal, but the court only addressed the allegation of bias. The appellant framed it as unethical conduct by the deputy judge “by personally soliciting and receiving charitable donations from the paralegal representing the Respondent and in failing to disclose this fact to the Appellant prior to the commencement of the trial”. In this case, the deputy judge was participating in a charity bike ride to raise funds for a children’s hospital. Like all participants, he was given a Web page where people could donate and also provide comments (presumably of encouragement). The deputy judge did not identify himself as a Small Claims court judge. A paralegal firm donated an undisclosed amount and the paralegal who represented the respondent at trial wrote the following comment: “A great effort for a great cause. Enjoy the ride Mr. Gilbert!”. It appears from a careful reading of the decision that the Small Claims court judge did not directly solicit the paralegal firm.

The Divisional Court judge went further back than Justice de Grandpré ‘s words of wisdom, and relied on Socrates to support a finding of bias:

Socrates perhaps said it best: “four things belong to a judge- to hear courteously, to answer wisely, to consider soberly and to decide impartially.” The case before the court concerns the quality of impartiality.

Although deputy judges of the Small Claims court are not subject to the Canadian Judicial Council’s Code of Ethics, the judge held that small claim court judges are “subject to the same ethical standards as other judges of Ontario”, and relied on the following Code of Ethics provision:

Judges are free to participate in civic, charitable and religious activities subject to the following considerations:

(a) Judges should avoid any activity or association that could reflect adversely on their impartiality or interfere with the performance of judicial duties.

(b) Judges should not solicit funds (except from judicial colleagues or for appropriate judicial purposes) or lend the prestige of judicial office to such solicitations.

The judge found that when the appellant learned of the deputy judge’s relationship with the paralegal firm and the paralegal, “he could not but think that he did not receive a fair trial and that the judge was biased”. The judge held that “any informed person, viewing the matter realistically and practically would arrive at the same conclusion.”

Stephen GA Pitel and Michal Malecki have recently examined the ethical guidelines on judicial fundraising and concluded that the principles require modifications to reflect modern circumstances. They support the existing direction against judges engaging in fundraising with the addition of minor exceptions. The important part of their paper is the recognition that there is not sufficient certainty around the existing prohibition for judges.

There are many questions that arise from the decision on bias of a small claim court judge.

• Does this mean that deputy judges and adjudicators cannot participate in charity rides/runs/walks?
• Can one participate in such events without a public page for donations (in other words, can an adjudicator just solicit donations from fellow adjudicators)?
• Does the fact that people can donate anonymously change a finding of apprehension of bias?
• And, is it appropriate that rules applicable to judges be applied to those who are not judges?

The decision has been criticized by Dennis Buchanan as being unrealistic for Small Claims court judges who live and work in the legal community:

…It’s entirely plausible for a Deputy Judge to litigate against another lawyer in Superior Court one day, and then adjudicate one of that lawyer’s other files the next. It’s a different kind of relationship that Deputy Judges have with local lawyers and paralegals. It’s not only plausible, but actually likely, that Deputy Judges will socialize with the lawyers (and, to a lesser extent, paralegals) who occasionally appear before him or her. In the legal community, we’re all supposed to be friends and colleagues, whichever side of the bench we’re on, and that’s especially true of Deputy Judges.

The larger issue here is also the involvement of adjudicators in their community. There was no suggestion in this case that the deputy judge had directly approached and solicited a donation. Similar to many of these charitable campaigns, anyone can donate to whoever he/she wants. In this way, it is similar to social media, where anyone can follow, comment or “like” something that an adjudicator posts.

The use of social media by adjudicators and judges continues to attract attention, but there has been little movement in defining what is appropriate activity.

Dean Lorne Sossin and Meredith Bacal (“Judicial Ethics in a Digital Age” (2013) 46:3 UBC L Rev 629) have provided some ideas on what a guideline for judges engaging get in social media might include:

• a responsibility to understand the implications of social media (including understanding privacy settings)
• special responsibility to be informed about and responsive to their court’s social-media policies and practices
• accountability for conduct on social media, whether in the sense of the content they write/post or their expressions of support through “likes” or retweets
• vigilance in avoiding the specific variety of conflicts to which social media can give rise — for example, neither sending nor replying to any direct social-media contacts from counsel who have or are likely to have a matter before the judge, and exercising caution in the “follows” and “likes” in which they participate
• an understanding that all online activity will be measured against the standard of public confidence in the justice system

A recent discussion paper of the Canadian Centre for Court Technology (“The Use of Social Media by Canadian Judicial Officers”) examined the few Canadian tribunal social media guidelines and identified the following common elements:

• The member must perform his duties with dignity and integrity;
• The member must be clearly impartial and objective;
• The member shall uphold the integrity of their tribunal and defend its independence, in the best interest of justice;
• The member shall act with reserve and prudence in public;
• The member shall refrain from pursuing an activity or placing themselves in a situation that may undermine the integrity, independence and dignity of the Tribunal or discredit it;
• The member shall refrain from engaging in any activity or placing himself in any situation which could compromise the effective performance of his functions or could be a recurrent reason for recusation;
• The member must be politically neutral and not engage in any activity or partisan political participation at the federal, provincial, municipal or school level.

The discussion paper recommends rules of conduct aimed specifically at the use of social media, as such rules “may increase awareness regarding the ethical considerations prevailing and may help deter behavior that is inappropriate for judicial officers”. It also recommends mandatory education programs for courts and tribunals to address the advantages, disadvantages and risks of the use of social media in personal and professional contexts.

The discussion paper’s most interesting recommendation is the development of “promising practices” in the use of social media in personal and professional contexts. It concludes that these promising practices for tribunal members and small claim court judges should take into consideration the fact that these appointments are often time-limited and the member may eventually return to the legal profession where a social media presence may be more appropriate.

Professor Karen Ellis has highlighted the challenges in striking the right balance in regulating social media activity:

The paradox here is evident – judges should not be cut off from the community they serve but must, at the same time, most cautiously guard against impropriety and maintain a certain distance from those who come before them. Reconciling these two competing currents is indeed the greatest challenge in developing guidelines for judicial use of the internet, broadly speaking, and respecting social media in particular.

The challenge is even greater for adjudicators who may move in and out of an adjudication role or may have dual roles of adjudicator and lawyer. A contextual examination of the limits on social media involvement for adjudicators is an important first step in developing workable guidelines for adjudicators that allow them to remain connected to their community while also ensuring their impartiality.