Development of a neutral citation standard for Canadian case law
A project developed by the Canadian Ad Hoc Committee to develop a Neutral Citation Method for case law
Summary
This project arose out of the need to develop new electronic documentary tools for the Canadian legal community. A neutral citation standard will facilitate the design of documentary systems that include components from various information providers. The new standard will allow for the full use of existing electronic tools without any need to wait for an official paper version to be published. This would enhance the public nature of Canadian case law.
In terms of technology and the activities involved, such a project is essential to the development and acceptance of a neutral citation standard in Canada because we must devise a substantial proposal and build support for it. Otherwise, the proposed standard will remain only that.... a proposal. More specifically, it must be designed so that it can easily be used by all courts.
From a methodological standpoint, a national standard can be created only if a consensus is achieved. Eliciting input from all the parties involved will constitute a large part of the committee’s work and in order to facilitate this; the committee must have adequate financial and technical resources. Explanatory materials will need to be produced and completed, and continually updated proposals developed that reflect the progress of the committee’s work.
Adequate funding for the project will enable the committee to undertake these tasks without delay. Such funding is, to a certain extent, essential to the start of the committee’s work and will ultimately lead to its success. In the medium term, the project will facilitate the development of modern electronic documentary tools for the Canadian legal community. It will also facilitate the use and citation of recent court decisions. In the longer term, the new standard will help to open up the Canadian legal information market and increase competition in this market. It will ultimately lead to the expansion of the Canadian legal publishing industry, as well as providing excellent legal documentary resources at reasonable cost.
1. The problem
In Canada and elsewhere, the method of citing case law is based on paper publications of judicial decisions. Until recently, this approach caused few problems. With the advent of electronic publishing media, however, a number of interested parties such as the American Bar Association (A.B.A.) have begun to look for other means of referring to these decisions. A number of proposals have been made, all of which are extremely simple and neutral both in terms of the medium, whether paper or electronic, and in terms of specific publications of private publishers. The project described in this document is designed to take advantage of the window of opportunity in the Canadian legal community to permit the development of a neutral citation standard for Canadian case law.
The traditional method of citing legal references is based on various printed law reports. Over time these series of reports have acquired great prestige and have to date served the legal community in Canada admirably. A number of observers, however, have noted that the author of a text would prefer to be able to cite a legal reference without having to ensure or assume ahead of time that his or her readers will have access to the same report series. On the reader side, the use of a vendor- or publisher-neutral citation would permit the reader to follow up a specific reference without necessarily having to make use of the same report series as the author. In fact, the ideal solution would make it possible to cite case law in the same way as legislation is cited. When referring to a statute, an author does not take the trouble to define the specific work to which reference is being made but rather will merely refer to the provision of the statute and the reader will consult the work he or she has at hand.
As the electronic media begin to play an increasing role, it is high time to review the traditional approach to citing case law. In fact, it is increasingly the case that a decision will be available from one end of the country to the other on the Internet, for example, several weeks or even several months before it is available in a report series. During this period, lawyers do not have a definitive reference at their disposal. However, as the supply of electronic information products for lawyers grows, the use of these tools to their full potential is restricted by the lack of an official citation method for electronic documents, except for a general rather indirect reference to the same document on paper. Since it is generally felt that the importance of electronic media will continue to grow in the years to come, it seems appropriate to develop a citation method without delay that will enable them to grow for the greater benefit of the legal community in this country.
The same situation exists in the United States although the problem there is possibly even more acute. In many jurisdictions, in fact, the obligatory citation method involves the use of a specific commercial product. The company that publishes these reports that are treated as an official reference also feels that it has intellectual property rights in the references. It is not surprising that in this context substantial groups that have emerged in the legal profession and elsewhere should feel that it is necessary to break the monopolies that are being created in the field of case law, which would otherwise be in the public domain. The A.B.A. established a special committee to examine this issue. This committee submitted its recommendations in favour of a neutral citation method in August 1996. Today, a number of states in the U.S. have taken a stand in favour of adopting the recommendations of the A.B.A. committee, although a lot of work remains to be done before the A.B.A. proposals can be generally adopted there. In that country, groups that have a vested interest in the current citation method are powerful and pose a major obstacle to the implementation of the Association’s proposals.
Similar steps have also been taken in Australia in a context that perhaps more closely resembles our own. The Australasian Legal Information Institute (Austlii) took the initiative to bring together Australian judges and publishers in order to devise a neutral citation method to meet Australia’s needs. The work of this committee is still ongoing.
2. Toward a Canadian Solution
In our Canadian context, the proposed citation method would include four elements besides the style of cause : (1) the year of publication; (2) an identifying code for each court; (3) a serial number; and (4) a paragraph number, the last two assigned by the court. In fact, all these elements could be assigned by the court. Thus, a neutral official reference would be available as soon as a court renders its decision. The result to be sought can be set out as follows :
Instead of: R. v. Evans, [1996] 1 S.C.R. 8
we would use the following reference: R. v. Evans, 1996 SCC 3, ¶ 16
or, more succinctly: 1996 SCC 3, ¶ 16
or even, for computer purposes 1996 SCC 3-16.
A parallel reference to traditional documentary tools would be kept to ensure that the new citation method is not introduced too hastily, as follows :
R. v. Evans, 1996 SCC 3, ¶ 16; [1996] 1 S.C.R. 8.
Finally, it must be noted that the prospects for a neutral citation method seem better in Canada and Australia than in the United States. The problems encountered in the United States are also linked to the fact that very powerful commercial interests are affected by the A.B.A. proposal. This is not the case in Canada, where some of the foremost publishers have responded favourably to the proposal, and others consider it desirable but not easily feasible. This nascent support for the development of a neutral citation standard was especially visible at the “Official Version” conference held in Toronto in November 1997 by the Canadian Association of Law Librarians. A definite consensus for such a project emerged there among representatives of the judiciary, governments, academia and publishers.
Moreover, in Canada one-half of the work has already been done because in 1996 the Canadian Judicial Council adopted a standard for the preparation of judgements that already includes paragraph numbering. This element, which is essential when a specific reference is made to an electronic text, may accordingly be considered to be settled in this country. A number of Canadian courts, including the Supreme Court of Canada, already number the paragraphs in their judgements and almost all the other courts under federal jurisdiction plan to do so in the very near future. However, this task of numbering paragraphs seems to lie at the heart of the reluctance of many judicial circles in the U.S. to change.
Since we are aware of the need to secure a very broad consensus to ensure that an appropriate and adequate neutral standard is successfully developed and adopted, we shall work to develop this proposal further in order to ensure that all interested parties go about making this change smoothly. Already an ad hoc Canadian committee has been established to develop and promote such a standard. This committee was established in Montreal on August 11, 1997 and a list of its present members may be found in section 6 of this document. Moreover, the committee intends to broaden its membership in order to ensure that all parts of the country are represented.
3. Reason for project
The reason for this project is the need to clear the way for the development of new electronic documentary tools for Canada’s legal community. The existence of a neutral citation standard will facilitate the design of documentary systems that include components from various providers of information. This standard will make it possible to use the existing electronic tools to their full potential without it being necessary to wait until an official paper version is available.
The project will help to consolidate the public nature of Canadian case law. Indeed, in terms of Canadian policies on legal documentation, the project will go a long way in helping to ensure that no one in this country can appropriate an official method of citing case law. Furthermore, the presence of an official neutral citation method will help to open up the market for documentary products and it should also permit the development of less expensive products because no one will have a monopoly and all those involved will be able to compete.
The technical problems that have arisen and the lack of an available method of referring to documents not yet published on paper are quite real. They are so real that publishers that are actively involved in the field of legal documentation are now developing a number of solutions to ensure that the electronic products they currently distribute can be cited. We feel that a standard that is developed quickly will be quite appropriate. In fact, in a few years, various solutions will have been devised and it will be much more difficult to have a unified consistent model adopted.
In terms of the technology and the activities that will be required, the current project is necessary because if we wish to see the concept of a neutral method of referring to case law become a reality in Canada, someone must set to work in order to develop the details and establish a support network, without which such a standard would remain a simple dream. In particular, we must develop a framework for referring to each of the courts in this country. In this context, we must draft the guidelines that would enable each Canadian jurisdiction to choose the designations it considers appropriate.
It is also necessary to devise the proposed standard in such a way as to make it easier for the various courts and tribunals to use it. In this regard, solutions will have to be devised with respect to the composite courts that have separate divisions or different registries. It is also necessary to develop an adequate framework so that elements can be added to the citation to give it the same descriptive force as the traditional methods.
Finally and most important, it will be necessary to establish sustained contacts with the various practitioners, court managers and judges who are involved in order to ensure that all the information that could enhance the proposal is considered and all potential partners are invited to participate.
4. Methodology
The development of the standard will be based on the following premises. The standard devised must make it possible to refer to all decisions of Canadian courts consistently. It must allow for decentralised management of the references to the courts within each jurisdiction. These mandatory central elements will have to be fully defined although they will eventually be supplemented by optional elements making it possible to express all the information conveyed by the traditional citation mechanisms. Finally, a user guide for the courts will be prepared in order to support the assignment of neutral references by the courts of this country.
In methodological terms, it seems clear that the development of a national standard can occur only if a consensus is achieved. Consultation among the parties involved will therefore play a major role in the development of the standard. To make this consultation possible, a committee was established in the summer of 1997, the Canadian Ad Hoc Committee to Develop a Vendor- and Publisher-Neutral Citation Method (C3N). This Committee must have at its disposal the technical resources it requires to enable it to produce documentation and carry out consultations. It must also be able to prepare explanatory material and, of course, to develop full proposals that reflect on-going progress. To this end, all the committee documents will be available in both official languages on a Web site.
Three tasks in particular may be highlighted:
· The development of a system for referring to Canadian courts.
· Development of the general framework for neutral citations, all the elements and the order in which they appear around the references to the courts. The structure adopted must make it possible to add optional elements, such as the possible inclusion of an international standard as well as specific information designed to make the citations more accessible to the public and to foreign lawyers.
· Co-ordination of relations with interested organisations must also be organised.
5. Effects of project
In the medium term, the project should facilitate the development of modern electronic documentary tools for the Canadian legal community. It should facilitate the use of and reference to judicial decisions that have not yet been published.
In the longer term, one of the project’s effects should be to help to open up the Canadian market for legal information. This could only increase competition in the market and promote both the development of the legal publishing industry and access to excellent documentary tools at a reasonable cost.
6. The Canadian Ad Hoc Committee to Develop a Neutral Citation Method for Case Law
The Canadian Ad Hoc Committee to Develop a Neutral Citation Method for case law was established in Montreal on August 11, 1997. The main reason for its existence is the need to develop a neutral method for citing Canadian case law. The committee also intends to promote support for this emerging standard in Canadian organisations interested in legal documentation and access to the law.
At the present time the members of the Committee are as follows:
Diane Bourque (Federation of Law Societies of Canada); Daniel Boyer (Canadian Association of Law Librarians); Martin Felsky (InTeger and Technical Adviser to the Judges Computer Advisory Committee of the Canadian Judicial Council); Guy Huard (LexUM, CRDP [centre for research on public law], University of Montreal); Chantal Lamarre (Les Éditions Yvon Blais Inc., Thompson Canada); Denis Marshall (Queen’s University and Technical Adviser to the Judges Computer Advisory Committee of the Canadian Judicial Council); Daniel Poulin (LexUM, CRDP, University of Montreal), Ruth Rintoul (QL Systems).
Daniel Poulin is the Co-ordinator of the Committee.
D.P.; G.H.
Montreal, February 1998