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?