Le principe de proportionnalité procédurale à l’aune des technologies de l’information : pour une modernisation en modération de la procédure civile

January 1, 2016 marked the entry into force of the new Code of Civil Procedure, leading Québec’s civil justice system into the 21st century. This new Code is much more than a simple reform; rather, it encourages a wholly “new legal culture” by providing solutions adapted to the needs of its citizens. As such, to quote the Code itself, “appropriate technological means should be used whenever possible”, i.e. conforming to the principle of proportionality. This proposition may appear trivial upon first glance, but actually contains a fairly innovative reality: a well-established principle – that of procedural proportionality – now regulates a new area of activities – being information technologies. This thesis aims to identify all of the ramifications and implications of this application and will do so in two steps. First, we will begin by defining the legal concept of procedural proportionality, which has been relatively little studied until now. As to its origins, the concept of proportionality itself goes back millennia and, throughout time, has gained prominence in several fields of law: it is therefore the story of an ever-growing trend. That being said, it was only in the middle of the 20th century, against a backdrop of civil justice crises and under the influence of utilitarian theory, that proportionality was introduced as a matter of civil procedure (first in the United States, then in England, to finally percolate into other jurisdictions). In Québec, proportionality is today a guiding principle of procedure, which qualification has had a genuinely systemic effect. This gain is however not unanimous, as several other civil jurisdictions, France being the first, relegates proportionality to the rank of mere concept, theoretically located at the intersection of new managerial principles of civil procedure (such as quality, efficiency, celerity, etc.) In a second step, we will examine the practical technological effects of the principle of procedural proportionality. In our opinion, what we call “technological procedure” based on electronic transmission of documents and audiovisual technologies is insufficient in and by itself: it is only a mass of technical rules, without coherence or cohesion, much too mechanical. The principle of proportionality, applied to technologies, is therefore an interesting way to unify and humanise technological procedure. Concretely speaking, this means that a court should authorize, refuse or order the use of technologies according to an in concreto and in globo analysis of the interests at stake. For instance, in the case of a complex litigation, the use of Skype for the remote testimony of a main witness who lives next to the courthouse should be refused, since it is manifestly disproportional. In this manner, we are  v witnessing the emergence of a new sub-principle, what we call “technological proportionality” herein, which has its own definition, test and finalities. Furthermore, judges will henceforth have to assume a new role with respect to information technologies, notably by making technological choices and performing a form of “technology assessment”. In the end, such an approach, as it develops in Québec, offers a novel discussion on technology in civil procedure: neither proportionality (ancient, traditional, legal) nor technologies (futuristic, innovative, high-tech) are rejected; in fact, one cannot be dissociated from the other. The message of this thesis can therefore be summarised by three simple words: modernization in moderation.

Keyphrases: Cyberjustice, Québec, Code of Civil Procedure, Principle of proportionality, Information technologies, Electronic procedure, Procedural law, Digitization, Videoconferencing, Adjudication