Paper over pixels?

The emergence of the Internet is clearly not for everyone. A recent report by the Canadian Judicial Council (comprised of the country’s chief justices and associate chief justices) underscores this point – by rejecting an online extension of the legal system’s presumption of openness.

The Council’s recommendations – which, fortunately, are non-binding – pertain to court documents and case files that are routinely, in the absence of special circumstances, made available to the public. Access to such information now requires a visit to a courthouse, in person. While such visits are not for everyone, access is a central tenant of transparency and accountability in an extraordinary powerful and unelected branch of the state. To put it mildly, living in a country without the presumption of openness is no walk in the park.

The judges have no apparent wish to quell public access. However, their view is that there is no good reason for extending it either. Instead, they say, while basic records or “dockets” – including court decisions – can be shared over the Internet, the submissions and supporting evidence resulting in such decisions should be excluded from cyber-purview. Traditional paper-based access will suffice.

As The Globe and Mail reported in its highly critical editorial on Sept. 10, the Council’s guidelines are based in part on the view that “remote access to the contents of all court records is not desirable to the public.” The manner by which the Council arrived at this conclusion is telling – the opinions of experts working within the existing system were sought; as for the participation of ordinary citizens . . . well, why bother. Even media representation was minimal, with the Canadian Newspaper Association the only invited representative of this sector.

The Globe’s editorial rightly points out that such a mindset is in keeping with the “leadership” shown on the matter by the Supreme Court of Canada, a body sharing only limited information online (and likewise having yet to embrace any form of e-filing). Of course, Supreme Court argumentation becomes public domain – but only via indirect media coverage or the effort and expense of visiting the downtown Ottawa building.

One of the most familiar rationales for such restricted online access is privacy. While there are some legitimate concerns which call for careful deliberation, privacy issues are hardly new: Personal and sensitive information in paper form is often protected, warranted or not. The same can be true online. The State of Pennsylvania is currently seeking public input on a new policy that seeks wider public access to electronic court records, while explicitly exempting personal identifiers in the process.

Indeed, it seems doubtful that privacy affords legitimate grounds for preserving the status quo. We know from Auditor General findings in Canada, for instance, that privacy is routinely invoked by federal departments as a justification for not sharing information with one another even when the legislative restrictions or concerns are not obvious. In other words, privacy becomes a reason for inaction and risk aversion.

In fairness to the judges, the legal system has little margin for error in the handling of sensitive information involving alleged and ongoing commercial, criminal and civil matters. The resource issues and technical design intricacies are also significant, as most pilot initiatives have mirrored an important lesson from public sector electronic service delivery more broadly – in the short term, cost savings are unlikely.

Still, the Council’s guidelines also reflect an institutional inertia across the legislative and judicial branches of government that favours paper-based tradition over digital transformation. Perhaps the institutions are not solely at fault. The courts, in fact, enjoy wider public support and respect than democratically elected political bodies, supporting the Council’s assessment that things are fine. When something works why change it?

The case for change is twofold. First, within the justice community there is growing recognition that online channels are the future. Retired Ontario Superior Court Justice Jean-Jacques Fleury prepared a thoughtful and balanced paper three years ago on such issues, combining an acknowledged lack of technological knowledge with a willingness to examine the case for adaptation and renewal.

Secondly, the failure of our public institutions to adapt can only erode civic engagement and interest. If the courts were to follow the Council’s advice (something provincial jurisdictions are not obliged to do), the cost over time would be an erosion of legitimacy. Conversely, a willingness to embrace the Internet age would not only spur Canadian legal innovations in terms of the design and conduct of justice, it would also inspire younger generations to view the courts as more relevant and welcoming of their participation.

Jeffrey Roy ([email protected]) is an Associate Professor at the University of Ottawa.

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