CANLII at 15
CANLII recently passed its fifteenth birthday, with announcements and pronouncements about its many notable achievements. Missing however, from the self-congratulatory posts, rationalizations for incomplete case law databases, and the unfulfilled promise of expanding its meagre coverage of secondary, was any realistic critique of what had been achieved and what remains to be done if it is to become a useful tool for legal research. A “devil’s advocate” seems to be required.
Legal research is more than checking recent cases. Legal research is more than checking current legislation.
The Canadian Legal Research and Writing Guide (formerly The Best Guide to Canadian Legal Research) describes the process of legal research “step by step”. According to the Guide, the starting point for legal research is to use “commentary” to define and understand issues. Commentary is defined as being (1) legal texts, (2) legal encyclopaedias such as Halsbury’s Laws of Canada,(3) law journals and seminar papers, (4) memoranda and factums, and (5) wikis blogs and newsletters.
The Guide continues to say that depending on the subject matter of the legal research, statutes are either close behind if not equal to the commentary. Only then does one look to the caselaw, unless of course the researcher has an exhaustive knowledge of the subject being researched. This is not the norm.
The serious players
A simple comparison of CANLII databases with the legal research databases offered by LexisNexis and Thomson Reuters shows that CANLII is not a serious tool for legal research.
On LexisNexis Quicklaw, the secondary content includes the major encyclopaedias Halsburys Laws of Canada and Juris Classeur Quebec, as well as over 300 Canadian authored texts and treatises, an extensive collection of law reviews and journals, the Canada Digests and Classification System, Case and Statute Citators, and Words and Phrases, and in-depth collections of the cases of courts and administrative tribunals and legislation. Thomson Reuters (Carswell) products include parallel collections of secondary and primary content.
In every respect, the content of these services is demonstrably superior to the content that is accessible through CANLII.
Despite the critical importance of secondary content in conducting legal research, CANLII’s initiatives to date in developing databases of secondary content are a bust. The Wrongful Dismissal eBook, with the promise of more to come at some unknown future date, a digest and an document or two, do nothing for a legal researcher.
Yet CANLII has had the opportunity to create a unique and valuable legal research tool. Each law society and bar association produces large collections of current course material every year. The Canadian Bar Association publishes the Canadian Bar Review. Building a comprehensive collection of Canadian law reviews and journals, blending the Canadian Bar Review with the journals published by the universities, seemed an easy first step. Collecting and publishing course materials from all of the provinces would be an invaluable addition to CANLII. Recent posts on slaw.ca show what can be accomplished by CAIJ to create an invaluable research tool with secondary content from many sources that would also be available to CANLII. What is the problem?
Caselaw on CANLII
Even CANLII’s greatest strength is one of its weak spots. After fifteen years, CANLII still does not offer a comprehensive collection of case law. The verdict of The Canadian Guide to Legal Research available on a CANLII website is clear:
CanLII is not comprehensive enough to be your sole source for case law or statute research. Its case and statute citators are incomplete, and do not contain treatment codes. Case history coverage does not start until 2006. Parallel citations are limited, and discontinued after mid-2009.
Old Style Publisher Talk
Yet any reading of CANLII announcements and pronouncements seems intended to create a different impression. Rationalizations and verbal “sleight of hand” are employed to make it seem as if CANLII offers the researcher everything needed to conduct legal research. I am quite familiar with many of these rationalizations, having used them at one time or other during in my publishing career to gloss over problem areas. These include the following:
1. Use of the phrase “Historic Cases”
These include the use of the term “historical databases” which it defines as “cases that predate CANLII that are not available on CANLII”, as if that were the starting point for legal research in Canada. I understand the meaning of “comprehensive databases”, which is generally taken to mean that you believe that you have all of the cases reported in print law report series, and pretty much everything else, but have not audited the database to confirm that you have every single case. To suggest or imply that any case that is not on CANLII is therefore “historic” and unnecessary is preposterous. In its early days, Quicklaw used the same term to describe law reports it did not have online.
As you all know, CanLII has grown in the past 15 years into a robust legal search engine with comprehensive coverage of current Canadian case law and legislation, in addition to hosting a significant and ever growing quantity of “historical” materials (i.e. cases published prior to CanLII’s founding). Through the years, CanLII has expanded its historical coverage, its range (regularly adding several new administrative tribunals), and the sophistication of its research tools..
2. Listing lots of and lots of databases
An example of what I refer to as” verbal sleight of hand” is to tout the large number of separate databases in one’s collection, creating a sense that there is more data than in fact there is. I recall one major legal publisher annually announcing new databases of decisions of administrative tribunals at the CALL Annual Meeting. These databases sometimes consisted of only a handful of cases of no practical utility to a legal researcher. Only afterwards would efforts be made to make them comprehensive or to flesh them out with the leading decisions made by that tribunal. Another major legal publishers lists a large number of law reports in its databases, instead of saying that the databases are comprehensive from a certain date. CANLII on the other hand frames the number of databases in the context of rapid growth and future plans to obscure the fact its databases are simply incomplete:
Growing quickly from 20 legislative and case law databases comprising 20,000 documents in 2001 to more than 153,000 documents across 65 databases in 2003, CanLII’s leadership, along with its publishing partner Lexum, recognized that CanLII must be responsive to the evolving demands of its users. Early success washed away any doubts that may have lingered about the benefits CanLII could bring to the legal profession and thus emboldened CanLII, the Federation and the law societies to develop long range plans and commitments.
3. Specious research
Another example is the use specious “research” to support the idea that fifteen years of cases were just fine:
“Going back to case law, being 15 years old also has practical consequences. According to a study we commissioned in 2013, which you can read here, “statistical and functional analysis […] suggest that cases typically cease to be cited in 3 to 15 years, depending on the jurisdiction, with the exception of Supreme Court of Canada decisions, which persist for 50 years.” In other words, you could argue that the “practical lifespan” of Canadian cases, Supreme Court cases aside, is 15 years.”
I recall doing something similar with a new edition of Practice Volumes of the Canadian Abridgment. I deleted all cases not noted in a new edition of Watson and McGowan on the premise that they were the only case of vale.The resulting hew and cry from the legal research community was such that another edition was published in short order. I was told quite clearly that the point of a collection of caselaw, be they summaries or full text, was to give access to the obscure as well as the most common. How is it any different for CANLII?
Some nice to haves
In 2014, CANLII launched an innovative website, CanLII Connects, where “user generated” commentary on, and summaries of, Canadian cases are published every day by lawyers, notaries, academics, and other members of the legal community who have signed up to be contributors. This is a good idea, providing insights into the significance of a case, frequently by persons directly involved in the case itself. In the era of social media, it provided a means of connecting with litigators. In short, a great “nice to have” product, cost effective to produce and popular with users. It is one of very few good ideas that CANLII has had, but I would argue not enough to justify CANLII’s existence.
The claims made for CanLII exceed what has been delivered. It is simply not “one of the biggest players in the Canadian legal information landscape and an indispensable resource to lawyers and notaries”. While it may be true that “Not a day goes by without a legal professional telling us that he or she relies almost entirely (or entirely) on CanLII for his or her primary law needs”, and that it is a “practice enabler” for small firm or solo practitioner, it is not credible as a vehicle for serious legal research other than a source of recent cases.
Fifteen years is a long time. I recall that in a similar period of time, Carswell developed a major legal publishing program consisting of the full range of primary and secondary legal information products that are the basis of its online services today. CANLII has achieved little by comparison. LexisNexis Quicklaw may have taken a bit longer to establish itself but it was the true pioneer in online legal research.
What accounts for the reluctance or inability of CANLII to take any big steps forward
It is time for the Federation of Law Societies to undertake a serious review of the CANLII project in order to understand what went wrong. Is ownership the problem? Is it possible for the various law societies to converge on a common vision, or a common plan of action? Is funding the problem? Have the law societies given all the resources to this project that they are prepared to pay, leaving very little left for meaningful content development? Have the law societies lost interest? The substitution of experts for law society power brokers may suggest that interest in the CANLII project is flagging.
Is a limited vision the problem? Is CANLII really just about case law? If so, does it really serve a purpose? The initial road map for CANLII refers to primary sources of law. As such was it intended merely to duplicate the services offered by the commercial legal publishers. With the cost of primary law dropping through the floor, one might ask, why bother?
Inspired by need and opportunity, the National Virtual Law Library Group formally presented the “CanLII project” to the Federation of Law Societies of Canada (“Federation”) in August of 2000. “CanLII’s Road Map” described a vision of a “new, original resource, offering free access to all primary sources of law” that would be “set up for the benefit of members of the Canadian legal profession and the Canadian public in general.” The mission was to be “the best place to consult Canadian law.”
CANLII purports to be ” closer than ever to achieving the dreams of its founders to become the best place for lawyers and all Canadians to consult Canadian law”. As the devil’s advocate, I just don’t see it. After fifteen years, this “emperor” still has no clothes.
P.S. I was invited to attend a recent CANLII Townhall by email. No sooner had I registered, then I received the following communication:
You have registered for the CANLII event tomorrow via ClickMeeting. Unfortunately, this is a special meeting for certain pre-identified CANLII stakeholders. It just so happens that the link to the registration page for this meeting is public on my CLICKMeeting profile…
For those who read this post and conclude that I know little about CANLII and its accomplishments and its future plans, it was not for lack of trying.