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Canada - When it Comes to Records, Justice is Blind
For lawyer Tavengwa Runyowa, the judge’s decision was groundbreaking. He believed it would almost certainly become an important precedent in other police misconduct cases.
Mr. Runyowa’s client, Gurpreet Singh, had been convicted of immigration fraud offences in a Saskatoon court, but before sentencing, the defence had taken the extraordinary step of asking for a mistrial after a guilty verdict.
Evidence had emerged that the lead investigator had been accused of witness intimidation. But the allegations of misconduct went further: The veteran officer had been involved in the internal investigation into his own reported wrongdoing.
In July, 2025, Justice Naheed Bardai granted a request from the defence to stay the charges, stating that allowing someone accused of wrongdoing to investigate themselves – even if the allegation is unfounded – is deeply unfair: “This conduct undermines the notion of a just and impartial criminal process that is the foundation upon which our system of justice is built.”
Mr. Runyowa said the verdict tackled fundamental questions that had not been addressed before, such as the extent to which Crown prosecutors are obligated to oversee police investigations. The decision, he believes, has significant precedential value for future cases.
There’s just one problem: The ruling is essentially invisible to the public.
Six months after Justice Bardai issued his judgment, the decision is still not available on the Canadian Legal Information Institute (CanLii) website – the only place where Canadians can access court, tribunal and commission rulings in one spot for free. In this country, courts get to decide whether verdicts are posted on CanLii. There’s no indication that Justice Bardai’s ruling will ever be added.
This is not an isolated incident. Rather, it is emblematic of how the Canadian courts treat records that are supposed to be readily available to the public.
In many major cities and communities across Canada, it is impossible to access even basic court records – such as lawsuits, small claims files, criminal dockets and appearance schedules – without physically travelling to a courthouse. As Mr. Singh’s case shows, even obtaining judicial decisions – the bedrock of a legal system that builds on precedent – can be complicated.
The extent of the problem varies depending on the jurisdiction, the type of court and the records in question. Some jurisdictions – including British Columbia, Quebec, Ontario, New Brunswick and Nunavut – do have online portals that connect users with case information. However, these websites often only reveal the existence of records – not the records themselves. And about half of Canada’s provinces and territories have no online search capability at all.
Canada’s court system is increasingly becoming a global outlier, as countries around the world embrace digital technology in order to bring more transparency.
In the United States, the Administrative Office of the U.S. Courts runs a service called the Public Access to Court Electronic Records, or PACER, which provides instant access to more than one billion documents from more than 200 federal courts.
Free-speech advocates have long warned that Canada’s opaque justice system is undermining a tenet of our democracy – the open court principle, which is the idea that, in order to maintain an honest, fair and accountable justice system, courts must be transparent and accessible to the public.
In fact, the open court principle is protected by the Charter of Rights and Freedoms under the right to freedom of expression. This is why regular Canadians are allowed to walk into a courtroom and watch a criminal trial. While some exceptions exist – for example, to protect the identities of young offenders – court records are supposed to be open as well.
Toronto lawyer Frank Addario says this type of transparency makes the system better. “Decisions made in secret are prone to personal bias, they’re prone to laziness, they’re prone to incompetence,” he said. “So as awkward as it is for everyone – including lawyers like myself – to have their conduct scrutinized, it’s better than the alternative, which is that we all get to operate in secret on a ‘trust us’ basis.”
Mr. Addario noted that countries such as the United States are light years ahead of Canada, and there has never been a compelling reason put forward about why that level of openness can’t exist on this side of the border as well. “It works down there, and we’re just stuck in an older, stodgier model,” he said.
Now, an increasingly vocal contingent of legal tech entrepreneurs, researchers and academics is warning that advances in artificial intelligence are adding new urgency to Canada’s transparency problem.
AI is in the midst of revolutionizing the legal sector, making generations of case law accessible to practitioners in seconds. If Canadian courts don’t embrace the digital age, the country will miss out.
“Canada has a legal data desert,” warned Samuel Dahan, an associate professor at Queen’s University Faculty of Law and the director of the Conflict Analytics Lab, an artificial-intelligence research lab for law. “It’s making innovation very, very problematic.”
Unlike many other countries, Prof. Dahan said, Canada has no open corpus of legal data for judicial decisions.
The United States has the Harvard Law School Caselaw Access Project. In Britain, there’s the Cambridge Law Corpus. In France, there is the Judilibre. Prof. Dahan added that these types of platforms are fairly standard in Europe.
AI companies and researchers have been using these sites to build tools for law professionals that can help lawyers quickly locate hyper-niche precedents. This allows them to work more efficiently, bringing down costs for clients.
But the technology isn’t just for law firms. AI allows academics to scrutinize the fairness of the justice system in ways that weren’t feasible before. Prof. Dahan warned that, because Canadian court records aren’t easily accessible, this type of independent evaluation is much harder in Canada.
“Without bulk access to the complete body of case law and court operations data, it’s impossible to evaluate how consistently and coherently the law is actually applied,” he said.
For example, researchers should be able to analyze whether decisions on the same legal issue point in the same direction.
“It goes to equality before the law. But inconsistencies can only be detected if the entire dataset is available. Selective disclosure makes unequal justice invisible,” he said.
Additionally, Alistair Vigier, the chief executive officer of legal AI company Caseway, says AI has the capability of democratizing law by equipping regular people with basic tools to navigate the legal system.
For example, a person representing themselves at a landlord and tenant hearing could use AI to find similar cases and identify the best legal arguments. It could help a small-business owner file a patent on their own or even respond to a frivolous lawsuit, avoiding expensive legal bills.
Mr. Vigier said if Canada misses out on these advances, there will be access-to-justice issues and even economic consequences, because it will be harder for Canadian businesses and entrepreneurs to compete.
In the absence of any open data source for judicial decisions, or centralized government repository for verdicts, Canadians rely on CanLii, a not-for-profit that was founded by the Federation of Law Societies of Canada. Judicial bodies voluntarily send written rulings to CanLii at their own discretion. Verdicts that are delivered verbally are essentially hidden from the public record. (In very rare instances, a court has transcribed an oral decision and sent it to CanLii, the organization said.)
It is impossible to know how many decisions never make it to CanLii.
And while CanLii does allow users to view and copy the content on its site for free for personal use, the organization prohibits anyone – whether it’s a person, commercial business or not-for-profit – from mass downloading or duplicating its content.
In November, 2024, CanLii sued Mr. Vigier and Caseway for copyright infringement for allegedly “scraping” its website.
“I started to call them the Lawfia,” Mr. Vigier said, adding that he was astounded that CanLii was “claiming proprietary data over something that the public pays for, that they didn’t create – judges create it.” (Mr. Vigier said the issues have been resolved and a settlement is imminent.)
Francis Barragan, the president and CEO of CanLii, said publishing judicial decisions isn’t as straightforward as some make it seem. Intaking and reformatting the judgments is time-intensive work, he said. But even then, CanLii’s agreement with the courts is to make the decisions available for open access – not necessarily to make them available to ingest into an AI model. The words of the verdicts belong to the courts, he said.
Mr. Barragan noted that researchers and tech companies are free to contact the courts directly to set up their own decision-sharing agreements – just as CanLii has done.
“I understand the frustrations, but that is still our mandate: to provide open access to legal data for legal research, but open data is up to the courts.”
Herein lies another complication in Canada.
Many Canadian court jurisdictions – but not all – do publish judicial decisions on their own websites. Many courts also send decisions to a handful of other entities, including the for-profit legal databases Thomson Reuters Westlaw and LexisNexis Quicklaw. (Woodbridge Co. Ltd., the controlling shareholder of Thomson Reuters, also owns The Globe and Mail.)
Some courts claim copyright over the material they publish online and have restrictions around how the information can be used.
For example, in British Columbia, Manitoba and Nova Scotia, a commercial business such as Mr. Vigier’s is required to seek court approval before deploying AI tools on its database.
For Prof. Dahan, the Canadian model is problematic.
Judges are paid by taxpayers to produce legal decisions. Moreover, courts should be making sure that decisions are publicly accessible, he said.
In the case of Justice Bardai’s ruling on Mr. Singh’s case, Justice Martel Popescul – Chief Justice of the Court of King’s Bench for Saskatchewan – said in an e-mail that individual judges decide whether to publish decisions or not.
“Generally, decisions of precedential value are selected for publication. However, that determination depends on a number of factors, including the additional time required to prepare a fully polished decision suitable for publication,” he wrote.
For Mr. Singh’s lawyer, Mr. Runyowa, the problem is obvious: “Our justice system is based on the principle of precedent. This concept is impeded if some court decisions are locked in a judicial vault that the people cannot access, but which nevertheless affect their interests.”
by Robyn Doolittle, The Globe and Mail
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