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Towards Cyberjustice Retrospective Part 1: Who Controls Court Data?

In our October 17th column, we announced that we would start posting a series of blogs highlighting different papers, studies, and pilot projects conducted under the auspices of the “Towards Cyberjustice” project. As a reminder, this project, which was financed by a Major Collaborative Research Grant from the Social Science and Humanities Research Council, spanned over the last seven years and has made significant contributions in the domain of what many call eJustice (what we refer to as cyberjustice). As stated on the Cyberjustice Laboratory’s Website, the purpose of the project was (although we’re still finishing off certain aspects) to “identify and develop concrete solutions for problems affecting the administration of justice” and to “facilitate the integration of technologies into the justice system, ensuring respect for today’s traditions and professional practices, in cooperation with all stakeholders in the legal community.” It is most notably through this work that the Cyberjustice Laboratory was able to update and actualize several technologies it had previously developed, including the online dispute resolution (ODR) platforms now being used by Quebec’s Office de la protection du consommateur, and Ontario’s Condominium Authority Tribunal.

A comprehensive report outlining the advances made by the Cyberjustice Laboratory throughout the scope of the Towards Cyberjustice project will be made available later this year. The general aim of this report is to offer a historical account of the conception of Cyberjustice which can be used as a reference by future generations. It also aims at allowing members of the legal community to have better access to the federally funded work our team has accomplished over the last seven years.

This report will be separated into five chapters outlining the journey of the Cyberjustice Laboratory since its creation. It will begin by offering a detailed account of the Laboratory – how the idea was born, how it came to fruition and how a worldwide community of openness and sharing has been created as a result. The second chapter will outline the pros and cons of the current legal system – the ability for citizens to be empowered and find the information they seek regarding the functioning of said system, as well as the difficulties surrounding the pursuit of their cases in court. The third chapter will then go on to offer an alternative to courthouse pursuits: Online Dispute Resolution. This chapter will describe how to integrate ODR into the legal system and will offer a case study example through an in-depth examination of how the Platform to Aid in the Resolution of Litigation electronically (PARLe) was used by Quebec’s Office de la protection du consommateur. Chapter 4, entitled “A Look Inside the Courthouse” will examine both the public and practitioners’ perspectives of the court system, as well as how to better implement technology into the courthouse by having regard to existing obstacles in this respect. Finally, the fifth chapter of this report will discuss post-modern technology and Cyberjustice and briefly present the future endeavours of the Cyberjustice Laboratory.

This will allow us to put emphasis on important studies led over the last seven years that, although they have sometimes gone somewhat unnoticed, should be of great interest to stakeholders within the legal community here and abroad. For example, we, in collaboration with our colleague Marie Demoulin and with help from our team, recently completed a comprehensive study (in French) on the administration of electronic court documents. This, study, which also received financing from Quebec’s Ministère de la Justice, was made public by the ministry in October of last year.

In order to draft the study, we interviewed and held focus group discussions with legal stakeholders from across Canada in order to try and reach a consensus on a series of important questions, including: “Who controls court data?”. This question actually hides another that is as pertinent: What is court data?”.

This later question was somewhat answered by the Canadian Judicial Council back in 2005 when it stated that a court record “includes any information or document that is collected, received, stored, maintained or archived by a court in connection with its judicial proceedings”. The CJC goes on to state that this includes case files, dockets, minute books, calendars of hearings, case indexes, registers of actions, records of the proceedings in any form, etc.

Taking for granted that this definition is satisfactory (which, as we explain in the study, isn’t the case for all those we spoke with), this brings us back to our initial question: Who controls this information? This obviously has greater significance in an ODR context (or rather in any context where the court data is digital) than in a paper-based system since the entity exercising control over data is not necessarily the one who has custody of said data.

As a reminder, and as stated in Dhont v. Minister of Education et al, ““custody” refers to the physical possession of the actual records, while “control” refers to the authority to manage the records, whether or not they are in the physical possession of the body claiming control”.

The main candidates for control of court data in any jurisdiction are normally the Court itself, and the department of justice. And there lies the rub since representatives we’ve approached from both bodies will claim control and/or custody, but relinquish liability (although this wasn’t a generalised tendency). Our analysis allowed us to establish that control should remain with the courts, although custody could be claimed by the DOJ depending on the chosen interpretation of current statutes.

One could be justified to ask why this matters? After all, whether the courts of the DOJ claims control over court records doesn’t really have a direct impact on court proceedings. If this statement could find support in a paper-based world since documents were in a DOJ-administered courthouse, yet accessible for the judiciary at all times, the migration towards paperless courts and ODR mechanisms shows its flaws. Control means being tasked with choosing, maintaining, and ensuring the security of the servers the court data is housed on. These tasks can obviously be transferred to a third party (i.e. the custodian), but they remain the obligations of the individual who controls said data. This is a major shift in how court data needs to be addressed with the advent of paperless courts and ODR mechanisms, and one that, if not seriously analysed, could lead to dire consequences for the legal system, its perceived impartiality, and its effectiveness.

The study being over 200 pages long, we have pointed out but one of the elements we touched upon, and will continue next month with other considerations…

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