The Status of Online Statutes

If the maxim Ignorantia juris neminem excusat (“ignorance of the law excuses no one”) means something in a society governed by the Rule of law, legislative materials ought to be made available in a manner that makes the most out of current information technologies. Before the invention of the printing press, such technologies included a stone stele put in a public place in ancient Babylonia or parchment documents issued in several handwritten copies to English medieval barons. Up until 15 years ago, the most efficient technology to disseminate Acts, regulations and related proclamations to wide audiences has been printed sessional volumes, loose-leaf binders, official gazettes and the like. Updating legislation with these tools involves methodic consultation of several documents, as still taught in law schools.

Needless to say, the web opens new possibilities. Canadian legislative assemblies, justice departments and official printers have made tremendous progress over the last decade or so in this respect, at various paces. In the mid 90’s, many paper-based publications were made available in electronic format. Then, the scope of available materials expanded, including historical point-in-time consolidations. Access fees to current legislation have progressively been lifted. Recent years have seen a trend towards official status for online legislation, which merely acknowledges the de facto reliance of the legal community on materials posted online by their issuing authorities. Finally, Crown copyright policies tend to be more open, allowing third parties to reproduce and add value to primary sources of legislation.

That said, the general trend among official publishers has been to digitally replicate information and documents as they are available in print, as if the web was just another media. The full potential of this digital network of information is still far from being realized for legislation. Let’s name a few aspects that call for improvements.

  • Links. Obviously. The web allows for related documents and information to be presented together. Consolidations can be linked to their amending Acts, which can be linked to their corresponding bills. Acts and their coming into force proclamations could be only one click away. More information bridges should be established between publishers of legislation and legislative assemblies. The web is primarily about providing users with related information, so no linking opportunity should be missed by the authorities.
  • Updates. On the web, keeping a legislative document up to date requires skill and effort, but at least it is possible to post the most current version and related data where users can easily find it. This is a major departure from the print paradigm where updates to a legislative text have to be conveyed via subsequent publications, which is why legal researchers have learned to retrieve amendments and their proclamation dates from dusty gazettes and various tables and indexes (which, or course, are always more or less outdated). The web has the potential of freeing us from these daunting and error-prone tasks, if only the time and resources invested in the preparation of these parallel publications was allocated to update the digital version of Acts and regulations. The official gazettes would be leaner. This brings home the point that online legislative publications should have official status, since they are the natural go-to place for anyone looking for current information.
  • Formats. Digital documents can be provided in outputs that fit various users’ needs. HTML is best suited for research and browsing – this is the preferred format for anything posted on the web, for its linking capacity. The markup embedded in a HTML document also reveals its structure and content, which is useful for other publishers wanting to enrich documents, as CanLII does for instance. Accessible HTML is even better. For professional use, where control over formatting and visual presentation is key, PDF or even word-processing formats such as Word might be preferred. There is no need to choose between formats as each has its advantages. On a related note, as mentioned earlier on Slaw, it would be worthwhile for legislative official publishers to adopt plain graphic design principles and devise new layouts for legislative information that would be better adapted to the digital realm, where documents can be heavily linked and frequently updated.
  • Search. The capacity to easily search within documents and their metadata is another fundamental aspect of the web which is often neglected. Providing a basic full text search engine is one thing, but allowing users to retrieve documents even if they mistype a keyword or don’t get the punctuation right is critical. Many search engines are still too restrictive in this regard.

Several Canadian legislative source websites have achieved noticeable progress with respect one or more of the above-mentioned aspects of web technologies. The following resources deserve special mention for they have implemented many key features described above: the Justice Canada Laws Website, LEGISinfo (Parliament of Canada), Ontario e-Laws, Manitoba Laws and more recently New Brunswick Acts and Regulations.

Finally, we should add a word about the lack of uniformity and consistency of citation formats to legislative materials, which can be a major hurdle for digital document identification, retrieval and processing. Even with the best available web resource slight variations in citation styles might hinder the capacity of a researcher to retrieve digital content. When confronted to special practices with respect to punctuation, abbreviations and data separators in citations, users have to deal with an additional level of uncertainty when referring to them. Adopting the current recommendations of the Canadian Guide to Uniform Legal Citation (the “McGill Guide”) would certainly help, but further simplification of legislation citations would lead to better uniformity and ease of use, as demonstrated by the success of the Neutral Citation Standard for Case Law. The EU citation standards may provide us with a good starting point towards simplicity, but let us keep this topic for another post.

Easier access to legislative materials will not by itself enable every citizen to gain practical knowledge of all applicable Laws. In our complex society, many situations inevitably require skilled interpretation of legislation and case law by trained jurists. While discussing an exception to the principle that ignorance of the law does not excuse, Chief Justice Lamer wrote that:

[…] the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. (R v Jorgensen, [1995] 4 SCR 55, 1995 CanLII 85 (SCC), par 25)

The legal system has become inherently complex for the layperson, even the most brilliant. This is all the more important that every effort be made by authorities to make the most of current technologies and publish legislative materials that are easier to retrieve and use. The citizen might still need a lawyer to help him comply with the Law, but this would enable him to avoid ignoring it.

By Frédéric Pelletier, Lexum

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