With the acquisition of Canada Law Book, Carswell has acquired a handful of publications that are similar to its own publications and that have been marketed as alternatives to each other. A few of them are best sellers and significantly strengthen Carswell's overall position in the market for legal information. However, some of them could become a future concern for Carswell if they continue to be published and marketed as they have been in the past.
Competition between two of them, Martin's Criminal Code and Tremeear's Criminal Code, has led them to become virtual clones of each other. How to differentiate them from each other, as well as respond to competitive challenges from new players entering the lucrative market for annual annotated Criminal Codes, is the question that Carswell faces. The most notable recent challenge has been from Alan Gold's Practitioners Criminal Code, which seeks to become the Criminal Code of choice for the criminal defence Bar. What if Gold's just the precursor of even more annotated Criminal Codes to come?
In planning for the future of Martin's and Tremeear's, Carswell has taken the logical first step by surveying its existing customers. For years, editorial decisions at Carswell and at Canada Law Book have been based the best information readily available – anecdotal evidence from users and reviews of the competing products – but not on the solid information that a user survey can provide. That may now change if the information gathered by the survey serves as a catalyst to rethink the "vision" for each of the Codes.
The Anecdotal Evidence
What do subscribers really think about Martin's and Tremeear's? For that matter, what do they think about Gold's? The essence of some of the anecdotes that I have heard over the years are set out below. The list is not complete but does give the reader the flavour of what some users have said:
"Martin's has been around forever (actually since1955). I use it because I have always used it."
"Tremeear's is preferred by judges who don't know much about criminal law because of the clear statements of the elements of the offence in the commentary. It is reliable."
"If a corporate law library has only one Criminal Code, it is usually Martin's. It is the best known Criminal Code and is on standing order."
"Prosecutors favour Tremeear's because it was originally written by a former crown attorney. If it has any bias, it would favour the Crown."
"Defence counsel prefer Martin's because it has been edited over the years by prominent defence counsel. If it has any bias, it would favour the defence."
"I use it because it is the Criminal Code I am familiar with. It is too much trouble to change now."
"I am looking for a Criminal Code with a point of view – Gold's Practitioners Criminal Code was written for the defence counsel. The other Codes are prepared by judges who need to remain neutral."
"I respect the views of author A (or B or C depending upon the Code selected)".
Reviews of competing products
It is a fact that both Tremeear's and Martin's cover the same ground in the same manner. Each is a portable annual annotated Criminal Code published in print with almost the same content, intended for daily use by practitioners of criminal law. Each is or has been prepared in whole or in part by present and former leading members of the Bar, many of whom were appointed to the Bench.
Both Codes include the Canada Evidence Act, the Charter of Rights and Freedoms, the Controlled Drugs and Substances Act, and the Youth Criminal Justice Act. However, Tremeear's also includes the DNA Identification Act, the Firearms Act and the Interpretation Act, while Martin's opts for the Crimes Against Humanity and War Crimes Act, a statute rarely used in Canada. Both have "thumb tabs' for each statute. These differences are trivial at best and reflect the personal preferences of the authors, rather than user needs.
Both Codes have conventional Tables of Contents, Tables of Cases, Tables of Concordance, Tables of Amendments, and Indexes. Both have a point form Offences "Table" or Offences "Grid" that summarize whether an offence is indictable, summary or hybrid, the maximum and minimum sentence, sentencing options and the like.
Both Codes have thousands of summaries of the same cases, Tremeear's with the case name and citation preceding each summary, while in Martin's, the case name and citation follows each summary. In Martin's, the case summaries are called "Annotations". In Tremeear's they are called "Case Law". In both Codes, most if not all, of the case summaries were prepared by professional legal writers and editors and merely reviewed by the name authors. The cases summarized are the most frequently cases most often cited in the courts.
Tremeear's has "Commentary" while Martin's has a "Synopsis" which summarize the section to which they refer in comparatively plain English. Tremeear's has "Related Provisions" that follow the Case Law, while Martin's has "Cross References" that precede the "Annotations".
Tremeear's include a Glossary of Terms that lists the meaning of the various abbreviations used in the Case Law that follows each section of the Criminal Code. While Tremeear's uses the letter "D" for the words Defendant/Accused, "P" for Prosecutor/Crown, "V" for Victim/Complainant, etc…. Martin's simply uses the words themselves making such a glossary unnecessary.
Tremeear's has a black cover while the cover for Martin's is brown. In short, the differences are in more about form than about substance.
What are the differences between Martin's and Tremeear's
Given the strong similarities of Tremeear's and Martin's, are there any substantive differences between them? Not in substance, but very definitely in the mind of the user who for whatever reason believes there are differences, usually based on a preference of one author over another, and the personal familiarity with a Code that comes from long standing use.
Years ago, there were some real differences between the two publications. When Tremeears was relaunched as an annual, the lead author was a well known criminal prosecutor, who introduced new features that set Tremeears apart from Martin's including most notably the clear statements of the elements of each offence contained in the "Commentary". Over time, Martin's matched this feature with a "Synopsis". Tremeear's then added the Offences Table to match the Offences Grid in Martin's, and so on.
The pattern was the same with the format. The paper stock of both Codes became thinner and thinner, and the books heavier and heavier, as more and more cases summaries were added to publication. It was as if they were a race to match and then surpass each other in the amount of information that could be included in a single volume. Focus was lost. At this point, they have become so similar that a strong case could be made for merging them.
The initial questions in the survey are directed at finding out who uses the Codes. The first question asks whether the user the user is either crown counsel, defence counsel carrying on business as a sole practitioner or in a law firm, partnership, law clerk, judge, paralegal, justice of the peace, or a librarian. The second question asks for the percentage of practice devoted to criminal work. Next is the key question – which Code do you currently use, if more than one, and which most often. Subsequent questions focus on preferences regarding format.
The survey also attempts to provide a qualitative assessment of the Code. The user is asked to rate the Code on a scale of 1 to 10, 1 being needs improvement and 10 being excellent as is. Ratings are sought on the organization of the content, the appearance and readability of the book, the completeness of the content, the relevancy of the content, and the usefulness of the commentary and annotations.
At the end of the survey, the user is asked open ended questions that invite the subscriber to freely share his or her opinions – what do you like about the Code you use most often and what improvements /suggestions do you have for making the Code you use most often better.
Some questions that were not asked
The survey covers all of the bases, but does not ask bold questions about what the subscriber dislikes about each Code. Knowing what a user dislikes is arguably more important that what a user likes because it could provide the reason why a user would shift to a competing product. Some possible questions that might have given a clearer picture of the two Codes include the following:
What don't you like about Martin's (or Tremeear's)?
Do you think that Martin's (or Tremeear's) reflects any particular bias? If so, what bias?
Would it help you if Martin's or Tremeear's selected cases that favoured arguments for the crown (or the defence)?
Are there too many case summaries included? Are the books too heavy to be portable?
If you could cut anything, what would it be?
Do you use the Offences Grid in Martin's (or the Table of Offences in Tremeear's)?
How would you differentiate Martin's from Tremeear's?
With regard to formats, the survey seemed to invite requests for additional formats, without seeking information on the relative utility of the various formats. Heretofore, the value of the annual bound annotated Code has been its portability and in the familiarity of the user with the content that made it easier to use a book instead of a computer. Access to digital copies of the content was provided because everyone else was doing it, rather than to meet a specific need. With the arrival of e-books, IPads, and Apps, a survey of preferred digital formats for annotated Codes could be of critical importance. The questions that could have been asked include the following:
Which format do you prefer now?
Do you expect your preferred format to change?
What format do you expect to be using next year, or the year after that?
Do you expect to abandon print? If so, when?
What comes next?
The use of the survey by Carswell will be interesting to watch. Will Carswell opt to merge Martin's and Tremeear's? Or will it seek to identify and strengthen the real or imagined differences between them? I would suggest that some action is required if the are to remain viable publications in the long term as new Codes are introduced into the market. There is one challenger to their leading positions in the market now, and there will be more in the future.
Alan Gold's Practitioners Criminal Code was developed to fill the niche for a new Criminal Code expressly written by and for defence counsel, that blends commentary with case summaries in a manner that enables defence counsel to pursue new lines of argument on behalf of an accused.
Will another publisher identify an opportunity to publish an annotated Code by a leading Crown prosecutor, to fill the niche that exists for crown attorneys – The Crown Attorney's Criminal Code? Will there be a Criminal Code for Judges that could include Jury Charges? Will there be a Criminal Code for Police Officers? For that matter, will another defence counsel challenge Gold's? At one point, I would have said no but now I am not so sure. Annotated Criminal Codes are relatively easy to develop and make so much money that even a relatively small share of the market would make the effort worthwhile.
As with all predictions, only time will tell.
Gary P. Rodrigues was with Carswell at the time the annual edition of Tremeear's was launched and with Lexis Nexis at the time Alan Gold's Practitioners Criminal Code was published.