V. At the Frontiers of Change: Open Justice: 2.0

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Technology confronts open court with the paradox that the near unbounded transparency of judicial processes may undermine the principle’s core objective of access to and accessible justice. In theory, the age-old principle of open court should welcome the ways in which technology can boost and even transform openness in the justice system. But technology has blown virtually all aspects of the process open, frequently subjecting victims, witnesses, defendants, and others to extended, unwanted, and often interminable publicity. Additionally, the gravitas and decorum of proceedings can be affected and undermined with the indiscriminate circulation of all manner of information, whether accurate or not, by unfiltered means of communication. Still, the justice system has had little choice but to respond to and interface with technology. Whether and when unbounded access to legal process becomes a counterproductive force is a matter of some debate.

The discussion that follows does not propose or recommend corrective steps. Rather, it places the familiar concept of openness in the less familiar context, or vortex, of systemic technological change. The simple point is that the clock cannot be turned back to a time when the process of justice operated under so-called conditions of “practical obscurity”.98 Technology has all but eclipsed the constraints and physical limits of the system, raising critical questions about the foundational assumptions of open court. This discussion selects three examples, among many, for consideration. The first concerns access to records, where documents are increasingly circulated in digital rather than paper form, and can be made more readily accessible online to an unlimited audience. The second concerns the courtroom itself, and the capacity for communication by social media, in real time and to the world at large, of witness testimony and evolving developments at trial. The third looks at court orders, which can no longer as reliably prevent the communication of information that, in the past, could be effectively regulated by publication bans. In these and other ways, technology has transformed the legal process, and systemic change has implications for open court and how it should be defined in a post-digital world.

i. Electronic Court Records

The digitization of court records casts the issue of access in a new light. Conventionally, members of the public could attend at court registries to request copies of documents relating to court proceedings. The practical obscurity of paper records and initiative required to procure copies conferred a relatively high level of protection on personal information and privacy in court records. Technological capacity and the move to electronic systems of filing, storage, document retrieval, and access have positive implications for openness, but are not without risk. Court records containing sensitive personal information can be retrieved, re-configured and distributed remotely, thereby escalating the threat to the privacy and security of those involved in the justice system.

Awareness of those risks has led to calls for re-consideration of openness, and whether its underlying values are advanced in a digital age that has fundamentally altered the balance between access and privacy. It is argued, for instance, that open court’s underlying values of transparency and access to justice are only marginally advanced by “frictionless” electronic access to court records.99 Under this view, the goal is to preserve or maintain the same degree of practical obscurity for online records.100 The concern in this context echoes the discussion of testimonial aids mentioned above, in recognizing that too much openness can have negative consequences for access to justice. In other words, exposure to unwanted publicity – not to mention threats to security – can place a chill on participants in the justice system, causing them to opt out of the system or be deterred from seeking justice if it might mean losing control over their personal information.101 Concerns that are raised in the context of certain civil proceedings, involving family, wealth, relational, employment, and other sensitive information, can arise in the criminal process.102

Alive to these issues, the Canadian Judicial Council commissioned a study that led, in 2005, to a “Model Policy for Access to Court Records in Canada”.103 The Model Policy, which applies to civil and criminal proceedings, advanced a “principled framework” for negotiating these issues, culminating in a report and recommendations to implement the framework’s principles. In elemental terms, the Model Policy recognized that open court is a “fundamental constitutional principle” that should be enabled through the use of new informational technologies.104 Pursuant to that objective, the Model Policy prescribed a methodology for determining the permissibility of restrictions on access to court records. The Model Policy’s test is clearly styled on the Dagenais/Mentuck criteria, and on its face contemplates a high degree of protection for access to court records.105

Overall, the Model Policy supported the status quo of making document-form court records available to the public on site at courthouses. In addition, it endorsed electronic access to judgments and most docket information, but not all court records. There, the Model Policy acknowledged that unrestricted electronic access could “facilitate some uses of information that are not strongly connected to the underlying rationale for open courts”, which might have a “significant negative impact on values such as privacy, security, and the administration of justice”.106 In such circumstances, the Model Policy proposed a contextual analysis to determine the risks and consider other factors that bear on access versus privacy.

It is beyond the scope of this update to probe deeply into the issues related to online data bases and remote access to court records. The Model Policy is notable for identifying the issues, undertaking a proactive study, and formulating a set of recommendations. The Model placed these issues on alert several years ago, showing how access to records implicates larger issues about the meaning and scope of open justice, and the nature and level of privacy protection that might be needed to ensure access to justice for those participating in the justice system.

ii. Electronic Courtroom

The concept of access has also been transformed on site, in the courtroom itself. Historically, the open court principle advanced the justice system’s primordial objective of legitimacy by granting the public general access to legal proceedings.107 At the same time, the limits of time, space, and geography made it unrealistic for the public to attend proceedings in any collective or comprehensive way.108 On the understanding that the press and media would play a critical role in making justice transparent to the public, access has been the foundation of the open court principle.109 The question now is what access looks like and what restrictions are permissible in a domain of post-digital communication.

Practically speaking, technology may have relegated erstwhile debates about televising hearings to the past, because the issue has been eclipsed by in-court options for blogging and tweeting proceedings in real time. Though courts have restricted the use of some technologies to the media and counsel, the capacity to participate in this way is remarkably egalitarian.110 Twitter and other “real-time micro-blogging services” inject “radical immediacy,” because “any sight or speech in the courtroom can be typed and published” by anyone who is present, “within milliseconds of its occurrence”.111 For example, in the absence of cameras in courtrooms, Twitter and live-blogging during the sentencing hearing of Russell Williams “kind of leveled the playing field”, because “everyone could report on what was going on as it was happening”.112 With all in attendance reporting in their own way on social media, the world at large could potentially receive myriad live reports from the courtroom.

The Ghomeshi trial, which is discussed further below, provides a powerful example of the impact of real-time reporting from the courtroom. Jian Ghomeshi’s criminal prosecution for sexual assault and related charges exposed deep cleavages in perceptions of the system and its relative fairness to the complainants. According to reports, there were more than 120,000 mentions of Ghomeshi on Twitter during trial, between February 1 and 9, 2016.113 One commentator described the live tweeting as “a way to bring readers into the courtroom”, adding that although it could be difficult “to wrap your head around how much the people who come forward … are challenged on the stands by defence attorneys”, it was “important for people to see that in play”.114

Under another view, during a moment of “national conversation about sexual violence”, the trial’s coverage, including by live tweet, “opened up” conversation and debate about “many victim-blaming myths that are perpetuated in society”.115 As stated, the trial exposed what sexual assault complainants face on the stand and, for some, the live tweeting was a “clear reminder of why I, like so many others, do not report sexual violence”.116

Disturbing to some at certain levels, this form of access was informational as well as galvanizing. It is clear that the pros and cons of social media in courtrooms are up for active debate. For some, rules and protocols that limit “authorized’ tweeting” to counsel or members of the media are problematic because they are elitist and restrictive in nature.117 On the positive side, social media “enhance(s) the immediacy of courtroom information, increases the range of perspectives, and supports the open court principle by virtually connecting the public with people inside court”.118 At the same time, the lack of editorial oversight and accountability, anonymity of communication, potential for misinformation, and spiralling messaging point to the “profoundly disruptive potential” for the justice system.119

At bottom, the question is whether social media communications are simply an extension of pen and paper journalism, or engage “a new way of thinking about information dissemination”.120 From that perspective, it is not just a matter of adapting existing rules to new media, but asking as well whether these media pose distinctive challenges for vulnerable participants, the serenity of hearings, or the authority of the justice system to manage its processes with decorum and integrity. It is not difficult to imagine how the in-court presence of social media can affect courtroom dynamics, and the effect on victims and litigants has led to publication bans and sealing orders in some cases.121

In short, technology may both augment and undermine the values of openness. Unrestricted social media use in court elevates the risks to victims and witnesses who may already be vulnerable as participants in the justice system. Measures that are more intrusive of the open court principle might become necessary in due course to protect their privacy and dignity interests. There are also risks to the integrity of the justice system, such as the loss of control about what information about proceedings is sent where, and by whom. Where the dangers of misinformation imperil the delivery of justice, limits on openness – either on the access or publicity side – might be necessary. Though there is no suggestion that matters have reached this stage, too much openness might lead in due course to restrictions – and less openness – because that is what access to justice and the integrity of the justice system may eventually require.

iii. Electronic publicity and publication bans

Though exceptions prohibiting the communication of identifying or other compromising information have been available at common law and by statute, “publicity” is one of open court’s core commitments. Yet it is not only a question whether restrictions on publication are justifiable but whether such limits can be enforced.

In Dagenais v. CBC, the Supreme Court’s breakthrough decision constitutionalizing open court and establishing a strict test for publication bans, Chief Justice Lamer presciently registered doubts about their efficacy. In particular, he stated that “recent technological advances have brought with them considerable difficulties for those who seek to enforce bans”, noting as well that “[i]n this global electronic age, meaningfully restricting the flow of information is becoming increasingly difficult”.122 That was 1994, years before technology had transformed the means of communication: the concerns Chief Justice Lamer voiced in Dagenais may now be approaching epic proportions.

One issue, discussed above in R. v. CBC (2018), is whether publication bans are effective against material posted before an order is made and continuously online – albeit passively – after a ban takes effect.123 When the Supreme Court of Canada decided against a mandatory injunction, the Alberta Court of Appeal upheld the CBC’s acquittal on a charge of criminal contempt.124 The question was whether s.486.2(2)’s language prohibiting prescribed information from being “published” or “transmitted in any way” applied to articles posted before an order, and left online after a publication ban. In upholding the CBC’s acquittal, the Alberta Court of Appeal noted, first, that the criminal context required a strict construction of the provision and a narrow view of criminal liability.125

In addition, Rowbotham J.A. held that a contextual analysis of prohibitions on various forms of communication, in the Criminal Code as well as in the YCJA, reinforced the view that the wording of s. 486.2(2) was deliberate; specifically, it differed from other provisions that, for instance, contain a prohibition against making information “available”.126 In other words, leaving pre-ban materials online was not punishable by criminal contempt under the Criminal Code’s current wording. The Court found that amendments are necessary to create criminal responsibility where pre-existing material is simply continued or left online after a publication ban is ordered.127

Despite sparse details, another issue relating to privacy and anonymity should be mentioned. In 2018, the Ottawa Citizen reported that publication bans on the names of young offenders and victims had been sidestepped by Google’s automatic search functions. Though a search might not reveal prohibited information, Google’s algorithms generate “related searches” that can reveal identity-disclosing information. A class action against Google arising from this breach of privacy had been commenced.128

A final point concerns “internet vigilantism” which, in this instance, refers to the spread of information and online discussion of criminal matters and charges that can spool out of control. Facebook and other social media invite and enable members of a community with an interest in the details of criminal offences to share information, misinformation, and information covered by a ban, not to mention unfiltered views of guilt and innocence. In one instance, police and Facebook staff made concerted efforts to enforce an YCJA ban by deleting posts that identified the victim and her killers. In the circumstances of a Facebook frenzy, it proved impossible to stop the republishing of deleted information by individual users.129

The examples in this discussion may not squarely raise questions of victim privacy in the criminal justice system. Yet by demonstrating technology’s implications for court processes – including the open court principle, victim and witness privacy, and access to justice for all more generally – these examples fit within the mandate of this update. The question, going forward, is whether and how the concept of open court, as currently understood, should be adapted as technology and communications continue to evolve and affect the delivery of justice.

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