eAccess to Justice
English

eAccess to Justice

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Part I of this work focuses on the ways in which digitization projects can affect fundamental justice principles. It examines claims that technology will improve justice system efficiency and offers a model for evaluating e-justice systems that incorporates a broader range of justice system values. The emphasis is on the complicated relationship between privacy and transparency in making court records and decisions available online.


Part II examines the implementation of technologies in the justice system and the challenges it comes with, focusing on four different technologies: online court information systems, e-filing, videoconferencing, and tablets for presentation and review of evidence by jurors. The authors share a measuring enthusiasm for technological advances in the courts, emphasizing that these technologies should be implemented with care to ensure the best possible outcome for access to a fair and effective justice system.


Finally, Part III adopts the standpoints of sociology, political theory and legal theory to explore the complex web of values, norms, and practices that support our systems of justice, the reasons for their well-established resistance to change, and the avenues and prospects of eAccess. The chapters in this section provide a unique and valuable framework for thinking with the required sophistication about legal change.


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Published 22 September 2016
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EAN13 9780776624310
License: All rights reserved
Language English

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The University of Ottawa Press gratefully acknowledges the support extended to its publishing list by Canadian Heritage through the Canada Book Fund, by the Canada Council for the Arts, by the Federation for the Humanities and Social Sciences through the Awards to Scholarly Publications Program and by the University of Ottawa. Copy editing: Interscript Proofreading: Robbie McCaw Typesetting: Interscript Cover design: Édiscript enr. and Elizabeth Schwaiger. With thanks to the Cyberjustice Laboratory at the University of Montreal for permission to use the logo.
Library and Archives Canada Cataloguing in Publication
eAccess to justice / edited by Karim Benyekhlef, Jane Bailey, Jacquelyn Burkell, and Fabien Gélinas.
(Law, technology and media) Includes bibliographical references. Issued in print and electronic formats. ISBN 978-0-7766-2429-7 (paperback).--ISBN 978-0-7766-2430-3 (pdf).--ISBN 978-0-7766-2431-0 (epub).--ISBN 978-0-7766-2432-7 (mobi)
1. Justice, Administration of--Automation. 2. Court administration--Automation. 3. Conduct of court proceedings--Technological innovations. I. Burkell, Jacquelyn, author, editor II. Gélinas, Fabien, 1966-, author, editor III. Benyekhlef, Karim, 1962-, editor IV. Bailey, Jane, 1965-, author, editor V. Series: Law, technology and media
K2100.E22 2016
347.00285
C2016-906247-3 C2016-906248-1
@ Karim Benyekhlef, Jane Bailey, Jacquelyn Burkell, and Fabien Gélinas, 2016, under Creative Commons License Attribution — Non Commercial Share Alike 3.0 (CC BY-NC-SA 3.0)http://creative-commons.org/licenses/by-nc-sa/3.0/
Printed in Canada
Acknowledgements Introduction Karim Benyekhlef
Table of Contents
Part I: Justice Values and Digitalization
Introduction: Fundamental Values in a Technologized Age of Efficiency Jane Bailey
I
II
III
IV
Cyberjustice and International Development: Reduci ng the Gap Between Promises and Accomplishments Renaud Beauchard
Evaluating e-Justice: The Design of an Assessment Framework for e-Justice Systems Giampiero Lupo
The Role of Courts in Assisting Individuals in R ealizing Their s. 2(b) Right to Information about Court Proceedings Graham Reynolds
Privacy v. Transparency: How Remote Access to Cou rt Records Forces Us to Re-examine Our Fundamental Values Nicolas Vermeys
Part II: Courtroom Interactions And Self-Empowerment
Introduction: Troubling the Technological Imperativ e: Views on Responsible Implementation of Court Technologies Jacquelyn Burkell
V
VI
VII
VIII
ATJ Technology Principles: Access to and Delivery of Justice Donald J Horowitz
Empowerment, Technology, and Family Law Sherry MacLennan
The Case for Courtroom Technology Competence as an Ethical Duty for Litigators Amy Salyzyn
Tablets in the Jury Room: Enhancing Performance while Undermining Fairness? David Tait and Meredith Rossner
Part III: Toward New Procedural Models?
Introduction: Continuity and Technological Change i n Justice Delivery Fabien Gélinas
IX
The Old… and the New? Elements for a General Theo ry of Institutional Change: The Case of Paperless Justice Pierre Noreau
X
XI
XII
XIII
Cyberjustice and Ethical Perspectives of Procedura l Law Daniel Weinstock
Three Trade-Offs to Efficient Dispute Resolution Clément Camion
The Electronic Process in the Brazilian Judicial System: Much More Than an Option; It Is a Solution Katia Balbino de Carvalho Ferreira
Access to Justice and Technology: Transforming the Face of Cross-Border Civil Litigation and Adjudication in the EU Xandra E Kramer
Postscript: eAccess to Justice – Brief Observations Guy Canivet
Bibliography Contributors
Acknowledgements
The publication of this book was made possible by t he Social Sciences and Humanities Research Council of Canada’s (SSHRC) support ofRe-thinking Processual Law: Towards Cyberjustice, a 7-year research initiative (2011–2018) funded t hrough the Major Collaborative Research Initiatives (MCRI) program. The MCRI program’s objective was to support cutting-edge research with potential for intellectual breakthrough that addresses broad and critical issu es of intellectual, social, economic, and cultural significance. Thanks to this important funding, theTowards Cyberjustice project has initiated numerous knowledge mobilizati on activities, including this book and the international, intersectoral, and interdisc iplinary conference that preceded it. Aspects of the publication also benefited from the support of the Fonds de recherche du Québec Société et Culture through a cluster gran t to the Regroupement stratégique Droit, changements et gouvernance and a team grant to the McGill Private Justice and the Rule of Law Research Group.
Introduction
Karim Benyekhlef
T he significant expansion of digital technologies ov er recent years has rendered them ubiquitous. They have been integrated into numerous domains throughout society, and the justice sector is no exception. This incorporat ion of modern technologies into the justice system has led to the emergence of a new an d innovative field referred to as cyberjustice. This term encompasses both the integr ation of information and communication technologies into judicial and extrajudicial dispute resolution processes and the digital networking of all stakeholders involved in judicial cases. Conceived in this manner, the primary aim of cyberjustice is to use m odern technologies to aid in the administration of justice such as to allow for the conceptualization of a more efficient method of achieving justice for litigants, thus ultimately reducing the abounding access to justice issues with which the legal system is plagued. In this light, we will begin by (1) presenting theTowards Cyberjustice project, which was created in the hopes of achieving this very pur pose and upon which this book is based. We will then proceed by (2) outlining the main research perspectives that underlie the research conducted in association with this pro ject. Finally, we will conclude by (3) offering insight on what lies ahead in terms of the development of cyberjustice.
Towards Cyberjustice: A Multidisciplinary Research Project
In an effort to advance toward achieving this goal, the Cyberjustice Laboratory, supported by a multidisciplinary group of 36 international re searchers and funded by the Social Sciences and Humanities Research Council, launched a 7-year research project in 2011: 1 Towards Cyberjusticeproject’s main hypothesis was that information and. The communication technologies could significantly contribute to improving traditional legal processes as well as entirely modifying the conventional structure of trials. In this light, the research conducted was aimed at identifying and developing concrete solutions that could optimize traditional legal processes and ulti mately enhance the administration of justice as a whole, such that efficiency would be i ncreased, costs and delays would be reduced, and mechanisms would be simplified. While many attempts have been made toward achieving this goal throughout the legal world, as will be discussed in more detail be low, the project’s novelty and success lies in two unique factors. To begin with, it condu cts socio-legal studies regarding both the impacts of technology on law and the identification of rituals and practices that hinder the networking of the justice system. Additionally, through techno-legal studies funded mainly by theCanadian Foundation for Innovation, it simultaneously develops open-source software solutions that are adapted to judic ial and extrajudicial contexts and can be tailored to the varying needs of each individual justice system. This cross-fertilization of socio-legal and techno-legal studies not only al lows for the development of technological tools tailored to the justice system, but also makes it possible to substantially re-examine the judicial process in a manner that is primarily designed to improve access to justice. These various studies that emerged from theTowards Cyberjusticewere project conducted by an elaborate team of international res earchers from twenty universities
worldwide, separated into three working groups, eac h of which was dedicated to examining a differing and particular aspect of the research in question. The first working group, whose research will be discussed in further detail in the first part of this collection, considered (a) the digitalization of justice and its interaction with the values inherent in the justice system. The second working group, whose aim was to identify (b) the limits of digitalization, will be examined in the second part of the collection through an in-depth analysis of both courtroom interactions and self-em powerment. Finally, the third working group was dedicated to (c) identifying new procedural models, which will be considered in detail in the third and final part of the collection.
Digitalization of Justice The objective of the first working group was to ide ntify the manner in which the digitalization of justice can increase the efficien cy of the legal system and facilitate access to judicial processes. The main hypothesis and departure point was therefore that access to justice could be improved by implementing concrete technological tools such as electronic filing, electronic case-management sy stems as well as the management of a paperless system, and finally, technological courtroom management, which includes the use of videoconferencing for remote testimony. In this vein, and as discussed in more depth in the first two chapters of the first part, penned by Renaud Beauchard and Giampiero Lupo, resp ectively, the various technologies used for cyberjustice purposes through out several jurisdictions worldwide, as well as the manner in which they are used by all the stakeholders involved, were researched and reported. By making an inventory of the cyberjustice initiatives that had already been conducted by other actors in the legal world, it was possible for this working group to assess the impact that technology has had on both trials and interactions between parties. By placing a heavy focus on the conditions under which technology was introduced into these justice systems, this in turn made it possible to develop technological solutions that were perfectly tailore d to the needs of the legal system. These solutions were further improved upon by consu lting with all the stakeholders involved. By providing these individuals with an ac tive role in the technological modernization of the justice system, it was possibl e to ensure that the technologies developed for their benefit truly target their needs, such that they will ultimately use them. Essentially, therein lies the key: technologies all owing for the digitalization of justice already exist in abundance, but it is their adoption by the relevant stakeholders that has remained elusive.
Figure 1: Network map connecting keywords to cyberjustice projects.
Source:http://mapping.cyberjustice.ca.
The ultimate adoption of said technologies by the stakeholders involved, however, is not the only concept upon which the digitalization of justice may be conceived. As Jane Bailey so eloquently puts it in her introduction to the first part of this collection, “technological innovation in the justice sector sho uld not simply be technology for technology’s sake. Instead, it is essential to understand how a technology may facilitate or affect the fundamental values underlying the jus tice system, values that are essential to access to justice as well.” To this effect, two such values, namely the right to information about court proceedings and the right to privacy, are therefore examined by Graham Reynolds and Nicolas Vermeys, respectively, in the final two chapters of the first part. As such, the first component of this collection and the research conducted by the first working group provide a very well-rounded view, not only of all that is involved in the digitalization of court proceedings, but also as re gards the consideration that must be paid to crucial fundamental rights when attempting to make such a significant transition.
Limits of Digitalization The second working group focused on identifying the constraints and limits that may prevent the digitalization of justice, such as the traditions, practices and rituals of the judiciary. Beginning as early as the late 1990s, nu merous large-scale digitalization of justice initiatives have been launched. Unfortunately, however, these attempts have often 2 failed as a result of their top-down approach, involving a complete overhaul of the system through the implementation of modern technologies characterized by high initial investments in technology and excessive ambition. What has led to the lack of success of such initiatives is the level of complexity of the 3 newly developed systems, which the main stakeholders are often not willing to learn in a 4 timely fashion and demonstrate an outright resistance to adopt. Research has illustrated