Key Takeaways
- The Canadian court system is becoming increasingly opaque, with many court records and decisions inaccessible to the public.
- The Canadian Legal Information Institute (CanLii) is the primary source for accessing court decisions, but it relies on voluntary submissions from courts and does not provide comprehensive coverage.
- The lack of transparency in the Canadian court system is undermining the open court principle, which is protected by the Charter of Rights and Freedoms.
- Artificial intelligence (AI) is revolutionizing the legal sector, but Canada’s lack of open data is hindering innovation and access to justice.
- The Canadian model of accessing court records is problematic, with judges and courts claiming copyright over decisions and restricting their use.
Introduction to the Problem
The Canadian court system is facing a crisis of transparency. A recent case in Saskatchewan highlights the issue, where a groundbreaking decision by Justice Naheed Bardai was not made available to the public. The decision, which tackled fundamental questions about police misconduct and the role of Crown prosecutors, was not posted on the Canadian Legal Information Institute (CanLii) website, the primary source for accessing court decisions in Canada. This is not an isolated incident, but rather a symptom of a broader problem with the Canadian court system’s approach to transparency.
The Current State of Court Records in Canada
In many major cities and communities across Canada, it is impossible to access even basic court records, such as lawsuits, small claims files, and appearance schedules, without physically traveling to a courthouse. Some jurisdictions, such as British Columbia, Quebec, Ontario, New Brunswick, and Nunavut, have online portals that connect users with case information, but these websites often only reveal the existence of records, not the records themselves. Approximately half of Canada’s provinces and territories have no online search capability at all. This lack of transparency is undermining the open court principle, which is protected by the Charter of Rights and Freedoms.
The Importance of Transparency in the Justice System
Toronto lawyer Frank Addario notes that transparency makes the system better, as decisions made in secret are prone to personal bias, laziness, and incompetence. The open court principle is essential to maintaining an honest, fair, and accountable justice system. Countries such as the United States are light years ahead of Canada in terms of transparency, with databases like PACER providing instant access to over a billion documents from federal courts. There is no compelling reason why Canada cannot achieve a similar level of openness.
The Impact of Artificial Intelligence on the Legal Sector
Artificial intelligence (AI) is revolutionizing the legal sector, making generations of case law accessible to practitioners in seconds. However, Canada’s lack of open data is hindering innovation and access to justice. Samuel Dahan, an associate professor at Queen’s University Faculty of Law, warns that Canada has a "legal data desert" that is making innovation very problematic. AI companies and researchers are using open data sources from other countries to build tools for law professionals, but Canada’s lack of open data is limiting the development of similar tools.
The Role of CanLii in Accessing Court Decisions
CanLii is a not-for-profit organization that relies on voluntary submissions from courts to provide access to court decisions. However, the organization prohibits mass downloading or duplicating its content, and it has sued companies that have attempted to scrape its website. Francis Barragan, the president and CEO of CanLii, notes that publishing judicial decisions is not straightforward and requires time-intensive work. However, the organization’s agreement with the courts is to make decisions available for open access, not necessarily to make them available to ingest into an AI model.
The Complications of Accessing Court Records in Canada
Many Canadian court jurisdictions publish judicial decisions on their own websites, but some courts claim copyright over the material they publish online and have restrictions around how the information can be used. For example, in British Columbia, Manitoba, and Nova Scotia, a commercial business is required to seek court approval before deploying AI tools on its database. This fragmented approach to accessing court records is creating complications for AI companies and researchers who are trying to build tools for law professionals.
Conclusion
The lack of transparency in the Canadian court system is a pressing issue that needs to be addressed. The open court principle is essential to maintaining an honest, fair, and accountable justice system, and Canada’s lack of open data is hindering innovation and access to justice. It is time for the Canadian court system to embrace the digital age and provide comprehensive and unrestricted access to court records and decisions. By doing so, Canada can ensure that its justice system is transparent, accountable, and fair for all.