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 communicat ion,1 inadvertently emailed dra decisions,

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

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

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

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

construction of fundamental concepts such as d isclosure, 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 wil l endeavour to provide an

overview of the issues arising from the interplay between technology and

judging. In an eort to alert cour ts 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-tr udeau-infomerc ial-pitchma n-

e-mail-attack.

2 In R v Lippé, [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).