Controversy swirled around recent Supreme Court of Canada appointee Justice Brown. Prior to being appointed to the Supreme Court bench, Justice Brown contributed to the University of Alberta Faculty of Law’s Blog. As the first blogger appointed to the highest court in the land, questions abounded. People asked “Should blogging automatically disqualify someone from sitting on the bench?” The consensus seemed to be NO.
But can judges continue blogging about the law after their appointment?
Yes, but with a caveat!
Judges should be encouraged to blog in order to bring transparency to the judiciary and engage the public. It would be great to hear what a typical week of a judge looks like or to hear about common pitfalls in motion records, facta, and Books of Authorities.
However, judges should not be allowed to blog about cases before the court or cases heading to the court. Such commentary would compromise the appearance of impartiality and would risk undermining the decisions’ of other judges. Even worst, public commentary could exert peer pressure on the way other judges’ decided their cases.
Although not a blog post, the Nadon fiasco illustrated the dangers of judges publicly opining on matters before the court. The Harper government commissioned and then released the opinion of former Supreme Court judge the Honourable Justice Binnie. His opinion contradicted and consequently undermined the authority of the decision later rendered by the Supreme Court of Canada.
Concurrent inconsistent viewpoints would bring into question the legitimacy of judges’ decisions.