Of Digital Authoritativeness and the Age of Steam

Late last week fellow Slaw contributor John Gregory brought up some idiosyncrasies in his post about how web-sourced versions of laws stack up against more official looking books with laws printed in them. You know, the ones that only the law library has?

This brings up a pet peeve of mine—something that Ontario has solved, but which BC practitioners are technically still exposed to. The fact is that if you’re not producing photocopies of the official books with BC laws in them, you’re technically not doing your job for the court in BC. That’s ridiculous, right? Well, yeah. It is. Read on. I’m reposting a portion of an article I wrote in my role with the Courthouse Libraries BC, and which was published in the May edition of the Advocate magazine last year here in BC.

Here is the excerpt of what originally appeared in print last May, with links added and footnotes omitted:

—

According to CanLII’s 2012 survey, only 3% of Canadian lawyers use print more often than digital law resources. The 2013 ABA’s Legal Technology Survey Report paints a similar picture and goes somewhat further—not even 10% of US lawyers used print to research primary law (i.e. statutes and case law) in 2013. Earlier reports indicate the numbers are even lower at 2.2% – 7.6%.

That’s the front line report. Electronic research is dominating. So what’s the official line on digital sources? Well, this causes a bit of discussion here at Courthouse Libraries BC as we are constantly realigning our collections to meet the demands of practitioners.

The principles of evidence preach caution when it comes to authenticity. Over centuries, the law has balanced absolute certainty as to authenticity with more practical concerns—not the least being how can we avoid getting mired in quibbles over absolute certainty?

In Queen Victoria’s early reign, the courts grappled with the “public inconvenience”—as one judge mildly put it [Mortimer v. M’callan (1840) 151 E.R. 320]—when rigid evidentiary standards demanded that original House of Commons journals or Bank of England ledgers be presented in court every time some stockjobber denied the authenticity of a law or record. The Evidence Act (1845) fixed the problem by extending judicial notice to documents printed by the Queen’s Printer and signed orders from another judge. [Those familiar with the Meads case will recognize that judicial notice of statutes continues to pay practical dividends when “detaxers” question the existence of legislation.]

BC’s 1881 Documentary Evidence Act, SBC 1881 c. 7 formalized our own Queen’s Printer, the Gazette, and government clerks in the vetting role they have today. Sections 24 and 25 of the BC Evidence Act have not evolved very much since.

Beyond the Age of Steam

The Evidence Act (1845) was a response to tension between evidentiary principles and real life.

As the old statute states, “[given] the Difficulty of proving that the said Documents are genuine […] it is expedient to facilitate the Admission in Evidence of such and the like Documents” using judicial notice. The act balanced reform with harsh penalties, however. Anyone caught counterfeiting legislation or court orders was threatened with “Transportation for Seven Years, or to Imprisonment for any Term not more than Three nor less than One Year, with hard Labour.”

170 years later, we stand in need of a similar adjustment. Online legislation and case law are the norm, and we cannot wish away the fact that the Internet is an ever-deepening resource for case law, legislation and legal commentary. Substantive approaches to evaluating online legal information are being proposed in academic journals as blogs, wikis and other forums attract serious legal commentators.

Outmoded norms are, however, still holding us back. Authentic BC legislation under BC’s Evidence Act means official printed statutes from the Queen’s Printer for BC. Whether even 10% of practitioners are including official statutes in their binders is, however, a dubious assumption. Courthouse Libraries BC’s bound statutes are hardly seeing a spike in use, and a typical consolidated act, if it were to be official, would be a conspicuous, nightmarish tangle of paper from various amending statutes spanning 18 years since the last revision in 1996.

Where we have achieved progress, it has created a blended landscape of Victorian and modern features. For case law cited in the BC Court of Appeal, or if you’re dealing with federal laws, online is fine: the Court of Appeal’s Practice Directive on the Citation of Authorities from 2013 accepts electronic sources with neutral cites; and Justice Canada made online acts and regulations official in 2009.

But BC Supreme Court does not have a similar practice direction. One judge may prefer citations to the traditional printed reports while another might be quite comfortable citing law blogs. A more uniform approach would probably help counsel and litigants in smaller communities where the availability of print resources is not so certain.

Reforms are afoot in other jurisdictions. Ontario’s Legislation Act allows for official versions of statutes on e-Laws, while Quebec, New Brunswick and Nova Scotia have made similar moves. Australia and New Zealand now publish authoritative laws online, and the Uniform Electronic Legal Material Act of the US provides an approach for states to authenticate and preserve electronic legal material.

The bulk of these reforms are, as one expects, legislated. We know our courts are flexible and up to the task of bringing the common law “in step with the dynamic and evolving fabric of our society“, to use a familiar phrase. But we must appreciate that it’s the legislature, not the courts, that holds the chief responsibility for law reform. Ultimately, it is not fair to the courts or its participants that the only official versions of provincial acts and regulations are isolated to print. As we continue to witness the mass adoption of online tools, the Queen’s Printer for BC and the Legislative Counsel Office deserve our support and encouragement to find ways they can join the digital shift, and depart gracefully from the Age of Steam.