Note: This is my letter provided to the Canadian Judicial Council in its review of the Ethical Principles for Judges.
Dear Chief Justice Popescul and Chief Justice Smith
Re: Ethical Principles for Judges (“EPJ”)
Introduction
I am an Indigenous lawyer who has a broad public law practice with eight years of consulting and advising on governance issues including public, private and non-profit organizations. I write this letter to urge the Canadian Judicial Council (“CJC”) to seriously consider an intersectional lens when adopting its ethical principles for judges, especially as it relates to social media use and guidance. I cannot comment on all of the substantive recommendations regarding social media use by other organizations that the CJC consulted in its public consultation on ethical principles for judges because it seems that the majority of the comments are not public. I can only comment on those recommendations made public by certain organizations, namely the Canadian Bar Association (“CBA”) and the Canadian Association for Legal Ethics/Association canadienne pour l’éthique juridique (“CALE/ACEJ”).
At the outset, I strongly recommend the CJC adopt a truly public process and share the recommendations that it did adopt, and those that it did not adopt, unless there are strong privacy and safety concerns for doing otherwise. In addition to this recommendation, I write to the CJC in this public consultation process to highlight some substantive recommendations for the EPJs in the context of social media use.
In this letter, I outline my experience using social media, including as a lawyer and an advocate, after which I address my proposed substantive recommendations. Ultimately, I call on the CJC to seriously consider an intersectional lens when considering ethical principles for judges and their social media use.
Context
Prior to becoming a lawyer, I engaged in advocacy relating to sex workers, Indigenous women and girls (namely, Missing and Murdered Indigenous women, girls and Two-Spirit people), and prisoner justice. I continue some of this advocacy today and I am well-published on these topics. My publications, to name a few, include a peer-reviewed article on social media and professional responsibility in Australia, a forthcoming book chapter on restorative justice in New Zealand, and two book chapters on the constitutionality of laws impacting sex workers in Canada. I created a well-cited blog that is used regularly by advocacy organizations in law reform and lobbying initiatives around the world. As a result of my work, I was invited to testify at a parliamentary committee in 2014. I was the only First Nations woman with lived experience to publicly oppose the laws introduced after the Supreme Court of Canada’s Canada (AG) v Bedford 2013 SCC 72 decision at Canada’s Parliamentary Standing Committee on Justice and Human Rights. As part of my practice, I use social media to help connect and engage with other communities, organizations and individuals around the world, as well as to highlight issues that matter to me. I also created a twitter bot that automatically tweets out case law.
In my 2018 article titled “Social Media and Social Change Lawyering: Influencing Change and Silencing Dissent”[1], I argued that bodies that regulate legal professionals fail to understand how their rules serve to exclude certain lived experiences out of the legal profession. My article addressed how these regulatory bodies fail to see the positive possibilities of social media to influence social change. The article concludes by recommending that the Law Society of Ontario take a positive approach and provide concrete guidance for the legal profession on using social media. Specifically, social media guidance from regulators “can pay particular attention to how marginalized communities use social media to voice dissenting perspectives” and how regulators can provide “assurance about what kind of online behaviours would not violate the Rules” (emphasis added) (Sayers, 2018). I urged regulators to provide examples that serve as a guideline including but not limited to what sort of comments or writings would undermine the administration of justice (Sayers, 2018). I concluded that it is within regulators’ “interests to remain timely and relevant, while refraining from reproducing the structures and systems which have regulated Indigenous people out of the legal profession a mere few generations ago” and that “guidance from the [regulators] must go beyond vague sample policies and must encourage social media use to encourage innovation and social change” (Sayers, 2018). This positive approach is essential, from my perspective, to avoid duplicating the systems and structures that perpetuate disadvantage in marginalized communities.
Indigenous people use social media in creative ways to bring attention to their realities. Most recently, Indigenous people continue to document their protests in support of Wet’suwet’en hereditary chiefs in opposing the construction of a natural gas pipeline. Their mobilization including through social media using the hashtag #WetsuwetenStrong, caused national railways, major highways and bridges to shut down.[2] Prior to this, a small group of Indigenous women in Canada used the hashtag, #IdleNoMore to mobilize around issues impacting Indigenous people in Canada, bringing their issues to the international realm. Other important hashtags include those honoured and remembered under the hashtag #MMIWG2S, or Missing and Murdered Indigenous women, girls and Two-Spirit people.
When Indigenous people, particularly Indigenous women similar to myself, or Indigenous two-spirit people, trans*, queer or non-binary people use social media, we take a great risk to our safety, privacy and well-being (including being stalked, harassed, threatened and bullied). Despite these risks, many of us remain present and continue important conversations.
I discuss my recommendations in light of this context below.
Recommendations
Briefly, I recommend the following:
Adopt CALE/ACEJ’s recommendations to engage with the issue of technology competency on social media use;
Adopt recommendations in the Canadian Centre for Court Technology’s May 2015 discussion paper but undertake a comprehensive and impactful (recent and statistically significant) study on social media use among judges;
Adopt a positive approach to social media use, similar to my arguments in my 2018 paper (above) in the EPJs to encourage access to justice with communities, historically and presently marginalized, or other equity-seeking groups;
Adopt best practices for social media use that reflect the fact that many future judges (lawyers today) use social media to create social change;
Adopt a more direct and defined approach, centered around public confidence, to replace CJE’s generally vague principles;
Adopt, in good faith, exceptions to social media use that are in the public interest and align with principles of independence, integrity and impartiality; and
Adopt an intersectional lens for CJE’s equality principles.
I discuss each recommendation below.
I agree with the CALE/ACEJ’s recommendations to engage with the issue of technology competency on social media use. There are many privacy issues when it comes to social media use, particularly in how third-party applications are integrated on social media platforms. The CJC should further consider the implications of integration of applications or platforms with social media use.
I agree with the CBA’s adoption of Canadian Centre for Court Technology’s May 2015 discussion paper, “The Use of Social Media by Canadian Judicial Officers” and I agree with recommendations on social media use raised in its 2015 paper. However, it is five years old and social media has impacted law in many ways and continues to impact law today. The CJC, and in consultation with relevant stakeholders, should engage in a more comprehensive and more impactful (recent and statistically significant) study on social media use.
I recommend that the CJC adopt positive approaches to social media use, similar to my arguments in my 2018 paper (above). The current approach to the EPJs and social media use adopts a negative, cautionary approach, as opposed to one that sees the positive possibilities in social media use among judges. One creative and positive approach to social media use by judges includes the Twitter Townhalls by British Columbia Provincial Court’s Chief Judge first started in 2016.[3] Many communities across Canada rarely interact with judges in other circumstances other than inside a court room (or if you are in a northern or rural region with no courthouses, a make-shift courtroom in whatever room is most appropriate). Sometimes these interactions are less than positive and can be very scary and frightening for individuals. Encouraging positive social media use and its parameters, including adopting best practices from other regions, facilitates access to justice and creates positive relationships with communities including Indigenous communities or similar communities (i.e. racialized/criminalized).
I recommend that the CJC adopt best practices on social media use to reflect the fact that many future judges (lawyers today) use social media to create social change. This kind of social media use should be encouraged, and a lawyer who desires to become a member of the judiciary should not be judged on their past words or conduct on social media, no matter how disagreeable to others.
I recommend that the CJC adopt a more direct and defined approach to its generally vague principles (from the public’s perspective), such as public confidence. Adopting a defined approach to social media use and principles, namely public confidence, will guide the behaviour on a more positive and/or proactive manner, as opposed to a cautionary or passive approach. Further, the EPJs should be drafted with the general public in mind. While lawyers and other legal professionals may understand what public confidence means or entails, this may not be true for the general public. The EPJs should act as a resource for the general public in observations of judges and their social media use. Namely, should someone want to file a complaint or raise concerns, the EPJs should be more helpful in guiding the general public about what kind of social media use may fall under the CJC’s purview. In other words, a direct and defined approach may act as a positive or proactive resource or tool for the general public, while encouraging positive social media use among judges.
I recommend that the CJC adopt exceptions to social media use. I believe that it is in the public interest to create exceptions to allow judges to express themselves when time and space permits, including during times where the state may risk interfering with independence, integrity or impartiality of their peers including Canada and beyond. As much as a judge must exercise impartiality by remaining silent (or as it is generally stated, remaining neutral) on many issues, there may be some issues in which they should be able to express their position without risk or fear of discipline. Such exceptions could include social media use done with integrity, with honesty, and in good faith. Governance bodies should not be in the business of punishing integrity and honesty especially those acts in good faith.
I recommend that the CJC adopt an intersectional approach to its equality principles. An intersectional approach recognizes efforts to increase diversity on the judiciary do not take place in a vacuum and that the defined EPJs may help in increasing access to justice in positive ways, or recognizing the positive possibilities of social media use in the context of EPJs. This would also address CALE/ACEJ’s concerns raised in their June 4, 2019 submission about referencing reconciliation and other equity seeking groups. In addition to this, there should be a circumspect approach regarding reconciliation. While the term reconciliation is not new to the legal world, the application of the term in meaningful ways is quite new. The legal profession, including the judiciary, is still learning about its application in respectful and meaningful ways. See, for example, Pooja Parmar’s discussion on reconciliation and cultural competence which is very much applicable to the judiciary[4]: We do not know what reconciliation means in the particular context of cultural competency (Parmar, 2019). The CJC should adopt a thoughtful and intentional approach to reconciliation.
Conclusion
In the end, the CJC is undertaking important work with these public consultations. However, I strongly urge that the CJC share with the public the recommendations that were adopted and those recommendations that were not adopted, unless there are strong privacy and safety concerns not to share. Ultimately, the CJC can, through an intersectional lens, acknowledge any differences while building a strong foundation for a judiciary that is impartial and independent.
Sincerely and chi-miigwetch,
Naomi Sayers
[1] Naomi Sayers, “Social Media and Social Change Lawyering: Influencing Change and Silencing Dissent”(2018) 169(1), Media International Australia, online: https://journals.sagepub.com/doi/pdf/10.1177/1329878X18803378. [2] Many people argue that the Wet’suwet’en must respect the rule of law and allow the construction of the pipeline to proceed. This argument ignores the fact Canada is a multi-juridical jurisdiction, which includes Indigenous law, and thereby, begging the question: If the rule of law exists, who does it exist for? [3] See for example: A first in Canada! Chief Judge hosts Twitter Town Hall, 29 March 2016, online: http://provincialcourt.bc.ca/enews/enews-29-03-2016. [4] Pooja Parmar, “Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence” (2019) Canadian Bar Review, online: https://cbr.cba.org/index.php/cbr/article/view/4558/4465.