Promoting Privacy, Fairness and the Open Court Principle in Immigration and Refugee Proceedings

Abstract

Court decisions and court documents are becoming easier to access online than ever before. This access provides many possible benefits, including increased fairness. But court decisions and documents often contain intensely personal information. Public exposure of that private information may even lead to significant harm. The Federal Court of Canada has demonstrated leadership among Canadian courts in attempting to proactively grapple with these issues, including by consulting stakeholders about increased electronic access to court records.

We -- researchers connected with the Refugee Law Lab based out of York University’s Centre for Refugee Studies and Osgoode Hall Law School -- write this paper to participate in the Federal Court’s consultation. To date, consultations have highlighted immigration and refugee proceedings as one area of particular concern for privacy risks. Some are even calling for restricted access that could compromise the open court principle and systemic fairness. This article suggests the Federal Court could enhance privacy interests in immigration and refugee proceedings without compromising the open court principle. It suggests that any measures taken to protect privacy should be crafted to avoid amplifying unfairness in access to legal materials. The Federal Court must avoid creating access regimes that asymmetrically block research and technological development that could advance the interests of refugees and other displaced people.

Keywords: Privacy, Open Court Principle, Privacy, Fairness, Federal Court, Canada, Refugee Law, Immigration Law, Legal Technology