Framing the Issues

• Author: Karen Eltis
• Pages: 17-23

17

CHAPTER 1

Framing the Issues

A. INTRODUCTION

Online judgment databases and the court’s duty to respect litigant privacy,

ex parte email communication,1 inadvertently emailed dra decisions,

and the issue of government-owned and -operated court servers, as it re-

lates to judicial independence,2 are but a few of the many issues arising

with greater — indeed, disconcerting — frequency. e cumulative eect

of these, it stands to reason, is to prompt courts to revisit the convent ional

construction of fundamental concepts such as disclosure, accountability,

competence — even impartiality — a nd the balance to be struck bet ween

foundational values such as transparency a nd privacy in the modern age.3

In order to permit courts to stay current in a time of rapid, if not

perpetual, change and with a view to bringing some clarity to judging in

times of evolving technology, the following will endeavour to provide an

overview of the issues arising from the interplay between technology and

judging. In an eort to alert courts to up-and-coming matters deriving

1 Je Coen, “TV Pitchm an Held in Contempt for E-mail Deluge on Judge” (11

February 2010), online: Chicago Brea king News http://articles.chica gobreaking

news.com/2010-02-11/news/28528888_1_kevin-trudeau-infomercial-pitchman-

e-mail-attack.

2 In RvLippé, [1991] 2 SCR 114 at para 45, Lamer CJ dened “jud icial inde-

pendence” as independence from government, but interpreted “government”

broadly enough to include “any person or body, which ca n exert pressure on

the judiciary t hrough authority under the state .”

3 See T David Marshall, Jud icial Conduct and Accountability (Toronto: Carswell,

1995), and Martin L Fried land, A Place Apart: Judicial Indepen dence and Ac-

countability in Canada (Ott awa: Canadian Judicial Cou ncil, 1995).