Canadian Judicial Council puts e-records on trial

The Canadian Judicial Council (CJC) has launched a national consultation to examine issues arising from electronic access to court records.

The CJC, created in 1971 by Parliament to improve the quality of judicial services

in all superior courts and tax courts in Canada, has released a discussion paper entitled “Open courts, electronic access to court records and privacy.”

There’s so much interest in the topic that the Law Society of Upper Canada in Toronto has formed a task force to review the discussion paper, headed by Gavin MacKenzie, a partner at law firm Heenan Blaikie.

“We thought it important that the legal profession had some input into the recommendations being put forward by the Canadian Judicial Council,” said MacKenzie. “We’re particularly concerned in the family law area where litigants are required to file fairly intimate personal and financial information. It is available now if someone wants to spend a lot of time looking for it in the courts, but filing it on the Internet will make accessing it easier and we’re concerned the information could be misused.”

The discussion paper, prepared by the Judges Technology Advisory Committee for the CJC, examines the growing trend in North America of electronic filing and electronic retrieval of court records and looks at the many practical issues that e-access presents to the courts and individuals.

What the next step will be is anybody’s guess.

“I don’t know if there will be a next step since this is only a discussion paper,” said Jeannie Thomas, executive director of the Ottawa-based council.

The first part of the discussion paper touches on the current status of access to court records across Canada and the relationship between freedom of information and access to those records in a predominant paper world.

Based on a review of jurisprudence by the Supreme Court of Canada, the committee has concluded that the right to open courts outweighs the right to privacy. But some of the weightier issues that must be clarified include: who has the responsibility for establishing electronic access policies; what, if any, are the differences between paper and electronic accessibility; should electronic access to some court records be on-site rather than remote and should the identity of users of electronic access systems be tracked.

One of the many conclusions that the council made was that it was not in a position to recommend a model policy, but that it had a leadership role in initiating discussions about the development of electronic access policies and that those policies should be as consistent as possible throughout the country.

The discussion paper notes that no court in Canada currently provides e-access to court records, although such a process is inevitable. However, it suggests that access policies should be established before e-access is allowed.

Several courts post judgments on their Web sites while others provide e-access to docket information which are documents prepared manually by court staff or data entered into a computer such as a listing of court records in a court file.

But in some jurisdictions, notably British Columbia and Alberta, postings of family law cases were pulled from Web sites.

In the case of paper versus electronic accessibility, one option is to establish the same policies for both; proponents argue there is no reason to restrict access to court records and docket information electronically.

A second option is to maintain different policies depending on the medium through which court records and docket information is available. Proponents in this case argue that access to compiled computerized information is fundamentally different that what is available on paper and just because it is capable of being provided doesn’t mean it should be provided.

Once again, the discussion paper concludes that before establishing policies of access to electronic court records it is essential the difference in access in the paper and electronic environment be considered.

Another important issue to be resolved is cases of liability if wrong court information is recorded electronically or if correct information is transmitted to an unauthorized person.

In a paper environment, a party that has the benefit of an order sealing all or part of a file may volunteer or be directed by the court to oversee the mechanics of the sealing of the material. In an electronic environment this isn’t possible.

As an example, if a policy is established that requires personal identification details be removed from court records, the court office will need software to remove that information and for counsel to have compatible software to ensure that data tagged by counsel will be identified by the court office.

Another problem that must be dealt with is that remote access may be available for a wide variety for court files, while on-site access may be mandated for a restricted category of court files. And once access policies are established, there must be a system to communicate and enforce those policies.

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