Column

Illustrated Judgments


[An Unhappy Fisherman’s Exhibit. Picture from a Cour du Québec’s judgment illustrating that the roof bought by the plaintiff was too low for comfortable fishing. Source : 2003 CanLII 42894 (QC C.Q.) (juge Raoul P. Barbe) at para. 8.]

Earlier this year, SCC’s judges cited a CTV news video clip in Canada (Prime Minister) v. Khadr, 2010 SCC 3, (at para. 7.). In that case, the government policy — its refusal to request M. Khadr’s repatriation — was established through a reference to a press conference given by the Prime Minister and available in CTV’s archives (see at 2 m. 37 sec.). 

click image to see video in new window

It was not a premiere: judgments have cited news clips to establish a government decision in the past. In Option Consommateurs, a Quebec Superior Court’s judge had to decide if the government ordered the victims of the 1998 ice storm to evacuate their houses or not. In his reasons, the judge cited Premier Bouchard’s intervention on national television and he referred to the Radio-Canada archived video. (para. 47, Option Consommateurs c. Union canadienne, 2005 CanLII 42425 (QC C.S.), at 3 min. 21 sec.). As video exhibits are becoming more frequent in Canadian courts, even in the highest jurisdictions, judges’ reasons start reflecting the fact.

click on image to open video in new window

This column is about this phenomenon, the growing presence of non-textual elements in the judicial discourse. Reference to video and eventually inclusion of videos in judgments are certainly the more spectacular innovations, however, inclusion of images or graphical elements in judgments (or in other legal documents, such as as legislation) is in no way a recent phenomenon.

The first occurrences of illustrated judgments available on CanLII date back to the XIX century. The oldest one is from the Ontario Court of Appeal, McKay v. Crysler, 1878 CanLII 8 (ON C.A.) and the original report shows an extract from a county treasurer’s book from which entries are subject to a lengthy discussion by the court to solve a property dispute about a piece of land.

The earliest graphical element present in a SCC judgment on the LexUM website (and on CanLII) appeared in an 1879 judgment. It is the illustration of the XIXe Coburg wharf and harbor. It is found in Standly v. Perry, (1879) 3 S.C.R. 356 and the naïve drawing evokes an old police procedural, only the barn, the woods and maybe the vicarage seem to be missing. Despite its quaintness, the illustration sheds light on the dispute. The reasons would be much harder to understand if the illustration was missing. 

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If the nineteen century cases already show uses of graphical elements, recent judgments rely much more on images. Sometime, these non textual elements seem the only way to give access to central factual elements of the litigation. In Robinson c. Films Cinar inc., 2009 QCCS 3793 (CanLII), no less than fourteen pairs of images are used to illustrate the similarities and differences in two works to determine if a copyright infringement occurred. 

Despite their importance, as of today, images are not always present in the judgments reproduced in electronic database systems. In some of the main data sources of legal information in Canada images are frequently ignored without mention. It could be surprising to some that more than a century after their introduction in the law reports, graphical elements are not readily supported in all our legal databases. With a collaborator, we did a review of Quicklaw, Westlaw Canada, SOQUIJ and CanLII to assess how these systems support graphical components of judgments. 

It can safely be said that the newer the legal information service the better the support of non-textual elements. The corollary being that older systems seem to be less comfortable with complex documents. A reason could be that many commercial providers of legal databases accumulated their holdings at a time when their services were strictly text oriented. A second explanation is that still today, many older systems cannot support the many files required to publish an illustrated judgment in HTML. Legal publishers who cannot publish non textual elements of judgment will certainly have to revisit the issue since the new comers offer a comprehensive support to images and other graphical elements.

Looking forward, images are not the only non-textual elements to be considered in the judgments of the future. Video clips, but also sound clips, could become frequent occurrences. We are already at the point where in some jurisdictions video clips are expected. At the Commission des lésions professionnelles in Québec, video exhibits seem to be so usual that a commissioner recently observed, among other things, that “[the worker] did not submit a video of the work environment” to support her rejection of the worker’s claim for compensation. (source : Héroux et Multina inc., 2007 QCCLP 7291 (CanLII)).

So it seems that “illustrated judgments” are here to stay and quite probably they will become even more frequent. Many issues can be identified here. First of all, judgments published in electronic databases must be complete; when images are used by the court they must be present or the means to obtain them must be mentioned. With non-textual elements that are not embedded in the documents, as news video clips, the stability of the element and its continuous availability over time must be ensured. The simple reference to the current URL of a clip is probably not enough to ensure its permanent availability. Thirdly, it could be useful to start elaborating a framework and standards for this new material. The Canadian Citation Committee began to work in that direction in 2002 when it proposed naming convention for the multimedia material related to a judgment. Probably this work will have to be revisited and completed to follow suit with the judiciary. 

It is funny to notice that we kept lamenting for years about how slowly the judiciary was in adoption new technologies and that today we find ourselves having to work hard to cope with their new uses of information technology.

[Pierre-Yves Regnier contributed to the research to prepare this column.] 

[Disclosure: The author’s company, LexUM, designs and operates CanLII for the Canadian Legal Information Institute.] 

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Comments

  1. Fascinating! Thanks, Daniel. I would think the permanence of exterior links will be a serious issue. Was it on Slaw that I recently read a report of link rot in academic publications over the past five or ten years? Quite scary how many sources were not available a few years after publication.

    Consider the ‘old’ method that the federal government had for citing federal statutes. Remember the series with ‘stable’ in the name? Do those links still work? And I recall trying to track EU documents in the early 2000s – they seemed to reorganize their web site every six months or so. (I see they have a new system this year.)

    Will the new not-yet-improved digital Ontario Reports now be able to handle graphic elements better than the print? Certainly one has seen charts and graphs – very rarely photos – in the ORs, but they are always a bit of a surprise.

  2. Daniel,

    This was a great post. It is funny to think that the judiciary could actually be ahead of the technology curve.

  3. Professor: Thank you for this excellent post. Jason Wilson of Jones McClure has a new blogpost commenting on your post: The Fate of Nontextual Elements in Case Law http://j.mp/9UE7s1

  4. Friends,

    Yesterday, in a workshop on digital document preservation, I listen archivists all day long today. One of them explained that where they use to archive a newspaper, make it paper or digital, today they have to archive the full set of multimedia artifacts. The New York Times web edition come to mind. Archiving such a newspaper is a real challenge.

    Another archivist, this one from Ontario, observed that the more and more government ministers announce programs or provide information about programs and activities without distributing textual communiques. In those circumstances, the only traces to be keep is the video clip of the announcement.

    I guess that is where the legal discourse is going too. I cannot see why in times when rich medias are adopted everywhere that would not be the case in the legal arena.