Opinion: Open Courts and Access to Justice in the Digital Age

Written by Calvin Ediger

In its recent report No Turning Back: CBA Task Force Report on Justice Issues Arising from Covid-19, the Canadian Bar Association remarked on the rapid adoption of new technology by Canadian legal actors. Many of these newly adopted technologies promise to save time, costs, and improve access for individuals seeking to access the justice system. However, these new technologies also create new challenges. One such issue is the balancing of the open court principle with access to justice concerns considering the unprecedented amount of exposure participants in the justice system face as a result of the digitization of court documents.

The Open Court Principle

The open court principle is the presumption that court functions will be held in full view of the public and has been described as a cornerstone of the Canadian democratic process. An open court “guarantees the integrity of judicial processes by demonstrating that justice is administered in accordance with the rule of law.”[1] As well the open court principle has been tied to freedom of expression and of the press.[2]  The Supreme Court has held that the freedom of expression that derives from the open court principle is “crucial to the public nature of the administration of justice and the potential for scrutiny that comes with such openness.”[3] However a question arises what this presumption of openness means in the context of new technological innovation.

Technological Advances

In the past users of the justice system were protected by “the de facto privacy protection accorded court documents stored in back rooms and accessible only by visiting the courthouse and asking a clerk to retrieve them.”[4] The advent of online court documents has now ushered in a “new conception of accessibility where an audience of incalculable numbers now has unprecedented and indiscriminate access to bits and pieces of sensitive and personal information.”[5] The new technological context has fundamentally changed the nature and uses of court documents, and “thrusts courts into an unfamiliar role of publisher (rather than custodian) of sensitive data.”[6]

The online publication of court documents “reveal[s] personal information of users of the justice system, potentially exposing them to shaming, doxing, identity theft, blackmail, ransomware and witness intimidation.”[7] In one case arising from a family law dispute, a “Mother’s home address, the address of the children’s school, Mother’s work address and the address of Maternal Grandparents [were] immediately apparent upon opening the court file.”[8] Though such information may seem innocuous, it can be used by bad actors to devastating effect.

Take for example the recent case of Clara Sorrenti, who was awoken in her apartment by police who proceeded to search her residence. After the search, “[p]olice told Sorrenti that someone had used her name and address to send threats to London city councillors and confess to a murder, which led to the police raid”.[9] This form of harassment is common enough online to have its own term, “swatting — a practice involving someone calling in a threat to police, resulting in armed officers being sent to another person’s home or work.”[10]

The proliferation of online information about individuals leaves them open to more than the malicious acts of solo actors. Private firms exist which compile data on individuals from different sources to create profiles. During the pandemic The Globe and Mail reported on one such firm operating out of Shenzhen, China, which had an interest in the military application of open-sourced data. The article noted that one of the areas “where there is a lot of open-source intelligence is around criminal records and court records”.[11] Though each individual bit of data may be of little value alone, the threat arises “when you begin to layer these databases on top of one another, it provides an arguably unparallelled window into human targeting – backgrounds, personal motivations, personal weaknesses – and provides a roadmap for influencing people.”[12]

Access to Justice Concerns

Some may be deterred from accessing the justice system due to fears of what may be done with the personal information disseminated by court documents. This creates an access to justice issue, as recognized by the Supreme Court. Addressing child victims of cyberbullying, Abella J. wrote of the deleterious effect on “the administration of justice — if they [the victims] decline to take steps to protect themselves because of the risk of further harm from public disclosure.”[13]

Though child victims are uniquely vulnerable to the harms associated with the publication of personal information, those same concerns still exist to a lesser degree for other would-be litigants. The Canadian Bar Association recently summarized this phenomenon by stating: “unrestrained disclosure can chill access to justice as individuals hesitate to forward their claims for fear of eternal shaming, being denied housing or employment, and other unintended but common side-effects of online posting.”[14]

On the one hand, the principle of an open court system is essential to ensuring public scrutiny of the operation of the justice system as well as being tied to freedom of expression. On the other hand, the increased accessibility afforded by new technologies in the digital age may serve to deter individuals from accessing the justice system, lest their private information be exposed to a worldwide audience. Privacy concerns may induce some to seek alternative dispute resolution solutions such as mediation and arbitration. These solutions skirt the open court principle as they are private in nature, as well as hampering the evolution of the common law. Ultimately if the open court principle is over emphasized, the results will be individuals seeking alternative private means to resolve their disputes or being dissuaded from pursuing the matter altogether.

[1] G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227 at para 27.

[2] A.B. (Litigation Guardian of) v. Bragg Communications Inc., 2012 SCC 46 at para 11.

[3] Dagenais v. Canadian Broadcasting Corp., 1994 CarswellOnt 112 at para 172.

[4] J. Farrell “Public Records on the Internet: The Pricaxy Dilemma” (23 July 2002), online: https://privacyrights.org/resources/public-records-internet-privacy-dilemma

[5] Canadian Bar Association, Report, “No Turning Back: CBA Task Force Report on Justice Issues Arising from Covid-19” (February 2021) at page 12.

[6] Ibid, at page 13.

[7] Ibid, at page 11.

[8] G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227 at para 20.

[9] Kate Dubinski, “Trans Twitch Star Arreste at Gunpoint Fears for Life After Someone Sent Police to Her London, Ont., Home”, CBC News (9 August 2022), online: https://www.cbc.ca/news/canada/london/trans-twitch-star-arrested-at-gunpoint-fears-for-life-after-someone-sent-police-to-her-london-ont-home-1.6546015.

[10] Ibid.

[11] Nathan Vanderklippe, Tom Cardoso & Mark Mackinnon, “Chinese Firm Amasses Trove of Open-Source Data on Influential Canadians”, The Globe and Mail (14 September 2020), online: https://www.theglobeandmail.com/world/article-chinese-firm-amasses-trove-of-open-source-data-on-influential/.

[12] Ibid.

[13] A.B. (Litigation Guardian of) v. Bragg Communications Inc., 2012 SCC 46 at para 23.

[14] Canadian Bar Association, Report, “No Turning Back: CBA Task Force Report on Justice Issues Arising from Covid-19” (February 2021) at page 12.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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