Internet research by jurors and judges during cases challenged

‘Judges shouldn’t be doing their own research about the dispute or the parties except to the extent that the information is in open court’

June 5, 2018

Toronto lawyer Paul Slansky has alleged that judges or court staff at the Federal Court of Canada (FCC) appear to have conducted independent internet searches of his client’s website while his case was pending, without disclosing the searches to him and subsequently refusing to provide details of the searches.

The allegations come on the heels of widespread media coverage of three Ontario cases in which jurors were found to have disobeyed judges’ instruction and conducted their own research on the internet, resulting in two mistrials in lengthy criminal proceedings.

The allegations regarding the FCC, which have not been proven in court, are found in an eight-page affidavit from Eric Cole, a resident of Virginia and expert on computer network design and cybersecurity. Cole alleges that “persons with access to the computer network of the Federal Court of Canada did make numerous online visits to the website between July 15, 2016 and March 15, 2018.”

Cole appears to be highly qualified. His expertise has been accepted by numerous courts; he served as a commissioner on cybersecurity for U.S. President Barrack Obama; spent a decade with the Central Intelligence Agency; worked as chief scientist for Lockheed Martin; as chief technology officer at McAfee, a leading provider of cybersecurity solutions; and has written numerous books about computer network design and cyber security.

The website belongs to Donald Best, who is currently appealing Federal Court Justice Keith Boswell’s December 2017 dismissal of his application to overturn a decision of the Canadian Judicial Council (CJC) refusing to proceed with Best’s complaint against Ontario Superior Court Justice Bryan Shaughnessy.

Cole examined and verified the accuracy of the activity records of visits to Best’s website. The records revealed numerous visits from unknown persons at the FCC who arrived at the website after using Google or Bing with keywords that, according to Cole, “led them to articles on ( dealing specifically with the legal case and people before the Federal Court of Canada.” The visitors “primarily” read articles dealing with the case and the personalities involved, ignoring for the most part articles related to other subjects.

More particularly, the logs show six visits from the FCC on Nov. 20, 2017, the day Boswell heard Best’s application for judicial review of the CJC complaint. In a letter attached to Cole’s affidavit, Slansky notes that he observed Boswell operating his computer from the bench during the hearing. Cole concludes that “it is possible that Justice Boswell (accessed the website) from the bench.”

Otherwise, Cole’s investigation reveals that someone from the Federal Court accessed an article relating to the CJC complaint on July 15, 2016, the same day Prothonotary Mandy Aylen issued an order in the judicial review. As well, “many FCC visits” were made to the website two days before Chief Justice Paul Crampton “considered” the case. Again, the reader focused on articles relating to the case and also downloaded evidence posted online.

In the next 18 months, the FCC continued to access the website repeatedly. The vast majority of visits occurred on or within a few days before activity occurred in the proceedings, including two more hearings before Aylen.

Neither the FCC nor the Courts Administration Service (CAS), which maintains the FCC’s computer network, have complied with Slansky’s request that they provide the identities of the person at the FCC who accessed Best’s website. According to Cole, the FCC is a “managed” network, allowing only “authorized persons” to use the network.

“I am confident that Courts Administration Service’s ‘Network Services and Infrastructure’ employees could have or already used their network logs and records to know which individual FCC network access accounts were used to visit the website (at the relevant times),” Cole states in his affidavit.

When contacted by Legal Post, Andrew Baumberg, the Federal Court’s legal counsel, said it would be “inappropriate” to respond given that the file in question was before the Federal Court of Appeal.

Slansky concedes that he’s not sure it was Justice Boswell who accessed the record.

“But if he didn’t access anything, why wouldn’t the Federal Court tell us that?” Slansky said. “Our expert says that it’s easy enough to determine whether he did or not, so the whole thing smacks of a coverup, or at least makes a strong circumstantial case that there’s a coverup.”

Gavin MacKenzie of MacKenzie Barristers Professional Corp. in Toronto, a leading expert on legal ethics, notes that judges are “finders of fact,” like jurors.

“The suggestion here is that judges looking at the website of parties to the litigation, where strong opinions are expressed about the litigation, may find the information persuasive or may perhaps be alienated,” Mackenzie says. “In either case, it’s a problem, because judges shouldn’t be out there doing their own research about the dispute or the parties except to the extent that the information is in open court.”

Slansky, of Toronto’s Slansky Law Professional Corp., has pursued Best’s cause aggressively since 2007. So much so that, in June 2016, the Ontario Court of Appeal upheld an $84,000 award of costs against the lawyer. The court ruled that Slansky had wasted money unnecessarily by “acting on unreasonable instructions from, or providing unreasonable advice to, his client.”

For his part, Best served 60 days in jail for contempt of court in 2013 after he failed to obey Shaughnessy’s order to attend an examination. The judge ordered the examination after the defendants in the 2007 action, having convinced the court to stay the case, sought to recover costs against Best.

Best subsequently complained to the Canadian Judicial Council, alleging that Shaughnessy had “secretly” changed the wording of the warrant committing him to jail so as to deprive him of 30 days’ statutory remission of his sentence to which he was entitled by law.

In 2016, Norman Sabourin, executive director and senior legal counsel for the CJC, refused to act on Best’s complaint, concluding that “it does not involve misconduct.”

Best then applied for judicial review to the Federal Court, where Boswell refused to overturn Sabourin’s decision. At press time, Best’s appeal to the Federal Court of Appeal, in the course of which he has raised the issue of internet Googling by Boswell, was still pending.

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