1. Openness, Privacy and Access to Electronic Court Records Paul Schabas Blake, Cassels & Graydon LLP May, 2008

2. Openness of Judicial Proceedings protected by s.2(b) of the Charter “At every stage, the rule should be one of public accessibility and concomitant judicial accountability” A.G.N.S. v. MacIntyre (1982)

3. Rationales for Openness public confidence in justice system enhances evidentiary process scrutiny of players – accountability public education

4. Openness applies to all aspects of process hearings open to the public court records, documents, exhibits are available for inspection whether civil, criminal, family, landlord- tenant, commercial etc.

5. Restrictions limited and specific privacy/embarrassment will rarely justify limits on right to know “As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public” MacIntyre (1982) exceptions do exist for identification of young offenders, sex assault victims, young persons (witnesses), child protection matters

6. High test for limits on public access Dagenais/Mentuck/Sierra Club must show order limiting public access is: necessary to prevent serious risk of harm to another right (e.g. fair trial), or administration of justice, or a commercial interest; and reasonable alternative measures will not prevent the risk requires evidence

7. Even then, court must also be satisfied that: salutary effects of order will outweigh its deleterious effects, including the right of the public order made must be narrowly tailored to impair the right to know as little as possible

8. As noted, roots for these strong presumptions comes from need for transparency and accountability “There can be no doubt that the courts play an important role in any democratic society. They are the forum not only for the resolution of disputes between citizens, but for the resolution of disputes between the citizens and the state in all its manifestations. The more complex society becomes, the more important becomes the function of the courts.” Edmonton Journal v. Alberta (1990)

9. Two Challenges to be discussed: 1.Electronic Access 2.Freedom of Information and Protection of Privacy Issues

10. Electronic Access – Should it Make a Difference? pleadings, records, dockets are all available on request so why not electronically? no answer to limit public access simply because it is in electronic form concern with use/invasion of privacy always present litigants can seek sealing orders if necessary because of, say, commercial harm embarrassment

11. Commercial/Bulk Use Concerns relate to use policy issue for legislatures to govern use, just as do with, e.g., copyright, commercial information use is different from access

12. Laws limit use in other contexts: publication bans on bail, preliminary inquiries, criminal records, confessions identification of victims, youths media subject to limits: e.g. contempt, fair and accurate reports Filing in non-electronic form may be appropriate for some records can seek limitation/restriction orders

13. FOI Legislation and Administrative Tribunals FOI Acts don’t apply to courts But do apply to tribunals Tribunals – judicial tribunals – public But now FOI controls access to records

14. FOI results in limiting scrutiny of tribunals and parties before them e.g. Landlord-Tenant Tribunal Cases in Ontario Order 2109 – cannot get reports of names/information about tenant litigants (address, rent owing) – “personal information” (though you could attend the public hearing!)

15. Order 2265 – cannot get names of tenants on next day’s docket Order 2544 – cannot get the daily docket with tenant names – even if you’re the tenant duty counsel! BUT – can get landlord information because it is commercial! context was that historically information provided, even electronically, to landlord and tenant organizations – IPC stopped this!

16. Ontario IPC says openness requirement only applies to hearing itself – SPPA s.9 No consideration by IPC of provision that says disclosure is desirable for public scrutiny no consideration of public interest override

17. Conclusion Judicial process is public process Any weakening of scrutiny is harmful “In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy” Toronto Star v. Canada (2005)