Framing the Issues

AuthorKaren Eltis
Framing the Issues
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 02-11/news/28528888_1_ kevin-tr udeau-infomerc ial-pitchma n-
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).

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