Darin Thompson's List: ICT Essay

• The CNA acknowledges the initiative taken by the Canadian Judicial Council ("CJC") and the Judges Technology Advisory Committee ("JTAC") with respect to open courts, electronic access to court records ("E-access"), and privacy.
• It is crucial that any policy established in this area be developed within the parameters of the constitutional imperative that has evolved as a result of various decisions of the Supreme Court of Canada confirming the "open courts" principle. (1)

• Over recent decades as law inexorably moved from print to digital and from “reported” to a state where effectively all cases are reported, “practical obscurity”, as some have called it, associated with limited access to legal decisions is no longer assured.
• You could argue that the pursuit of “practical obscurity” was always inconsistent with the open court principle, but, now lost, does that mean any hope of widespread protection of privacy for litigants has been lost with it?
• The open court principle is, and should be, an immovable object in the service of the administration of justice. Protection of personal privacy interests may not yet be an irresistible force, but momentum is undoubtedly building.

1 more annotation...

• The first cost of the open court principle is to privacy. When a matter is submitted to the courts of justice, the parties cannot expect that the details of their dispute shall remain private. Traditionally, the courts have indicated that the embarrassment that results from having one’s affairs subjected to public viewing is an insufficient justification for curtailing the openness of court proceedings.
• The facility with which modern media and communication networks can intrude into people’s lives has increased our awareness of the importance of our interest in privacy. In the past, technical barriers to the mass collection and distribution of information offered limited but effective protection of the privacy of participants in the justice system. Now that protection has disappeared.
• In Bentham’s day, the open court principle meant limited loss of privacy. In the era of 21st century technology, it can mean an enormous loss of privacy. More and more, parties and witnesses protest that their legitimate expectations of privacy are being trampled on and their lives and reputations damaged by the open court principle.
• In an age of mass media, electronic filing, and on-line access to court documents, it is becoming ever more difficult to reconcile concerns for the privacy, reputation and the well-being of individuals engaged in the justice system, with the principle of the open and public administration of justice. If we are serious about peoples’ private lives, we must preserve a modicum of privacy
• Equally, if we are serious about our justice system, we must have open courts. The question is how to reconcile these dual imperatives in a fair and principled way.
• The law has long recognised that while the core values served by the open court principle must be respected, the principle may be limited where sensitive privacy concerns arise

4 more annotations...

• The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence.  In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.
• he open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.  This principle has been described as a “hallmark of a democratic society”
• What does need some exploration, however, are the interests said to justify restricting such access in this case: privacy and the protection of children from cyberbullying.  These interests must be shown to be sufficiently compelling to warrant restrictions on freedom of the press and open courts.  As Dickson J. noted in Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, there are cases in which the protection of social values must prevail over openness (pp. 186-87).

1 more annotation...

•   This Court has emphasized on many occasions that the “open court principle” is a hallmark of a democratic society and applies to all judicial proceedings:  Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at p. 187; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at paras. 21-22; Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326.  “Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.  The concept of free and uninhibited speech permeates all truly democratic societies and institutions.  The vital importance of the concept cannot be over-emphasized”:  Edmonton Journal, supra, at p. 1336
• The open court principle has long been recognized as a cornerstone of the common law:  Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 21.  The right of public access to the courts is “one of principle . . . turning, not on convenience, but on necessity”:  Scott v. Scott, [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438.  “Justice is not a cloistered virtue”:  Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 (P.C.), per Lord Atkin,  at p. 335.  “Publicity is the very soul of justice.  It is the keenest spur to exertion, and the surest of all guards against improbity”:  J. H. Burton, ed., Benthamiana:  Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115.
• The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein:  Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 17.
•  This Court has developed the adaptable Dagenais/Mentuck test to balance freedom of expression and other important rights and interests, thereby incorporating the essence of the balancing of the Oakes test:  Dagenais, supra; Mentuck, supra; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.  The rights and interests considered are broader than simply the administration of justice and include a right to a fair trial:  Mentuck, supra, at para. 33, and may include privacy and security interests.

2 more annotations...

• New B.C. Supreme Court and Provincial Court records access policies are in effect Feb. 28, 2011. 

   

  The policies are consistent with approaches adopted by other Canadian courts. They reflect openness, accessibility and individual accountability in handling court records.

• One  area of human rights that has been under growing pressure in recent years with  the ever-increasing reliance on information technology has been the right to  privacy.  Now, with the new global  emphasis on security and counter-terrorism, the right of privacy will be under  almost unprecedented challenge.     
• The right of privacy as such is not enshrined in the Canadian  Charter of Rights and Freedoms and, as we heard from various witnesses,  privacy does not generally fall under the jurisdiction of our human rights  commissions