Contents Abstract 1. Introduction 2. Access to Law and CanLII’s Origins 3. The Establishment of CanLII 4 CanLII: The First Year 5. Partnership 6. Conclusion 7. Addendum to JILT publication (November 2003) Notes and References Download

CanLII: How Law Societies and Academia Can Make Free Access to the Law a Reality *

Daniel Poulin

Centre de Recherche en Droit Public

Faculty of Law, University of Montreal

[email protected]

Abstract

The production of law, whether by legislation, judicial rulings or jurisprudence essays, rightfully carries great prestige.  Very little of this aura shines, however, on the publisher who compiles up-to-date versions of legislative texts and indexes and who filters and formats judgments and doctrine.  The production of law eclipses its distribution, which expresses itself only relatively modestly, and then finds itself at the margins of normative activity.

The following article focuses specifically on the ways law is made available and circulated.  Some of the progress achieved in this area in Canada will be outlined, particularly with respect to the development of open publication on the Internet.  In this article, Open publishing designates a publishing approach where in legal documents are made available on the Internet free of charge, under a very liberal license allowing for their reproduction.

Keywords : CanLII, LexUM.

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This is a Refereed article published on 23 April 2004.

Citation : Poulin, ' CanLII: How Law Societies and Academia Can Make Free Access to the Law a Reality ', 2004 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/04-1/poulin.html>. New citation as at 15/07/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_1/poulin/>.

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1. Introduction

  Recent years in Canada have provided the most favourable conditions for the evolution of the open publication of law.  Canadian academics had already started to disseminate primary legal material on the Internet in the early 1990s.  It was only when the legal profession got involved, and brought in tangible resources, however, that the work on this significant endeavour began to gain momentum.  A partnership between the Federation of Law Societies of Canada and the LexUM Lab of the University of Montreal was then established and CanLII created.  At the end of CanLII’s first year, there was no doubt that the partners had been right in joining forces and that their work together was very fruitful.

2.  Access to Law and CanLII’s Origins

At first sight, the notion of “access to justice” is a principle with “access to law” being one of the conditions for its realization.  However, more attentive examination reveals that legal principles are involved with both forms of access.  Indeed, access to law or legal texts is just as important as access to justice for achieving the ideals of equality, transparency and justice.

In Canada, the notion of access to justice , at least as it is usually understood, refers to reforms undertaken to make the legal system, and especially legal recourse, more accessible to Canadian citizens.  The notion refers to the establishment of mechanisms for class action [1]; simplified procedures for the recovery of small claims [2] ; “legal aide” systems designed to reduce or eliminate the cost of access to legal services for the less wealthy; and so on.  “Access to justice” thus refers to access to the legal system .

  The notion of access to law or access to legal texts is less common in legislation and case law but, when mentioned, it is framed by the principles that make up the foundations of our law.  Two recent developments clarified its importance and have contributed to defining new policies in Canada about these matters. 

The first of these developments occurred in late 1996 when the Government of Canada made the Reproduction of Federal Law Order [3] .  This text instantly became the key element of the Canadian Federal Government’s new policy of openness with regards to the free circulation of legal texts.  The Order sets out an eminently favourable attitude to broader circulation of federal legal texts in clear terms:

“Whereas it is of fundamental importance to a democratic society that its law be widely known and that its citizens have unimpeded access to that law;

[…]

Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.”

This order had considerable effects.  It greatly clarified federal policy in the matter, for, until then, even though the federal statutes and regulations had been published on the Web, permission was required to copy and reproduce federal documents.  Since federal legislation was already on the Web, the importance of the publishing did not really expand as a consequence of the Order.  For commercial publishers and any others seeking to publish federal legislation however, it was not necessary anymore to obtain a license to do so.  Other Canadian jurisdictions in the provinces and territories progressively started to followed suit with respect to making their legislation available.

The policy regarding public access to case law followed a similar evolution, through other means.  At about the same time, traditions of judicial independence and openness of the Canadian judicial system prompted some courts to publish their judgments on the Web.  However, in most cases, the commercial publishing circuit remained the only source for Canadian judgements.  The situation in Quebec was more complicated, for courts in Quebec were neither in charge of the distribution of their judgments, nor responsible for the establishment of policies in this regard.  These tasks had been delegated to a Crown corporation, the Société québécoise d’informatique juridique (SOQUIJ).

The second policy development-related event occurred in Quebec.  This policy change followed the successful legal action taken by Wilson & Lafleur, a commercial publisher against SOQUIJ.  This action involved getting complete access to decisions of Quebec courts and tribunals in order for Wilson & Lafleur to prepare the publication of these decisions.  The publisher first lost in Superior Court, but won the case on appeal.  In their reasons, the Quebec Court of Appeal justices wrote:

“In a state of law, where each individual is subject to and governed by statutes, regulations and, it must be admitted, precedent, it is essential that citizens be able to discuss and criticize these rules freely.  Since the establishment of a true democracy requires that citizens be able to express their opinions and freely criticize the institutions governing them, and thereby participate in their evolution, it seems to us obvious that such discussion and criticism must also apply to the products of these institutions.  In this case, this clearly refers to judicial decisions.”[4] [My translation]

They add that, “seen from this angle, citizens’ access to court decisions is required in itself and must therefore be real” (paragraph 27) [my translation] and conclude that this requires for access to be offered at the real cost of reproduction (paragraph 39).

This Court of Appeal decision brought about major consequences regarding the conditions for access to judicial decisions in Quebec.  In the following year, Quebec went from a place where free publication of law had made painfully little progress to eventually become the Canadian jurisdiction where case law is most accessible.  More specifically, the Quebec government adopted a new policy and mandated that the Société québécoise d'information juridique set up a Web site offering a free basic access to all decisions rendered by courts and tribunals in Quebec [5] .

Taken together, the Federal Order and the Quebec’s Court of Appeal decision gave new momentum for the largest accessibility to official legal documents in Canada.  With the increasingly favourable policies to the best possible distribution of law and a growing number of Canadians able to access the Internet, the conditions had never before been so conducive to establishing a united Canadian structure for the open publishing of law.

3.  The Establishment of CanLII

Over the course of 1999-2000, a team from academia, LexUM at the University of Montreal, and a group of professional associations, the Federation of Law Societies of Canada, progressively decided to pool their resources, which resulted in the creation of CanLII.

LexUM, a research team at the University of Montreal, had been working on open access to law since 1993.  LexUM began publishing the decisions of the Supreme Court of Canada using a Gopher site that was to became a website in 1994.  Other collections were added, albeit in a relatively limited way, until 2000.  In fact, during this period, without outside funding, the LexUM team carried out many contracts related to publication of law in order to pay for its dream of free publication [6] .  LexUM’s activities certainly contributed to the growth of free and open publication of law in Canada during the 1990s, though it carried out more activities for others than for itself.

At one point in time, LexUM was responsible for the online publication of a third of the collections of legislation and most of the case law collections available free of charge on websites in Canada.  In this regard, it must be noted that the trust invested at the time by various government agencies and court organisations in a small university team to leapfrog progresses using the Internet to publish law was doubly beneficial.  It gave those who decided to work with LexUM the immediate benefit of getting on the Internet, while at the same time significantly helping the creation of a computer and law laboratory in a Canadian university.  Overall, in that period, the free publication of law was making progress, although in a rather piecemeal fashion and, admittedly, less quickly than elsewhere.

The Canadian Federal Justice Department (Justice Canada) had great interest in this matter.  Its own activities related to the access of legal information involved offering legislation on the Internet (1995) and funding the ACJNet network (1995-1997).  However, Justice Canada never committed to funding a resource that could provide a more general free publication of Canadian law.

Justice Canada usually concerns itself with the legal education and vulgarization needs of specific interest groups, along with other well defined issues such as arms control.  Changing the traditional channels for access to primary legal information was never a priority for Justice Canada.  In the end, for whatever intents and purposes, Canada’s key legal actor was not a part of the developments that resulted in the creation of CanLII.

  Provincial governments were not able to play a significant role in establishing a unified resource for Canadian law either.  In the previous years, almost each of them, in their own way and at their own speed, had progressively taken charge of free publication of their legislation.  Although these were meaningful steps, none of these governments had the ambition or the means to exercise leadership at a national level.  Government publishers were too preoccupied by the specific services offered to their citizen groups to assume the stewardship of a pan-Canadian resource, or to even play a role in establishing it.

The same may be said of courts and tribunals.  Prior to CanLII’s creation, many courts had started publishing their decisions on the Internet.  Federal courts were the first to act, followed by the high courts of British Columbia and Alberta.  Although these actions were of great importance for the local citizens and lawyers, Canadians who wanted to search the law still had to visit dozens of websites to perform a comprehensive search.

Legal professional associations were the ones who would make the difference when they decided to take action and actually commit to building a virtual library of Canadian law.  By the end of the 1990s, the Federation of Law Societies of Canada began looking into the problems arising from accessing legal documentation.  It must be mentioned that in Canada, law societies provide library services to their members, the judiciary and to some extent to the general public.  Even though the largest law firms have their own libraries, solo practitionners and lawyers in smaller law firms rely on law society libraries for a large part of their legal information needs.  Such services came at a cost of about $300 Canadian dollars per year per lawyer and these costs were soaring.

A study conducted by the Law Society of Upper Canada in 1998 estimated that legal publication costs had risen 23% from 1995 to 1998 [7] .  Many Bar administrators felt that this increase considerably reduced the benefits of the information revolution to the Canadian legal community.  This loss of control over the costs of law society libraries was the main impetus for law societies to take action.  Furthermore, the Canadian legal community was missing out on many of the benefits accruing from the growing free availability of legal documents on court and government websites since these resources were too scattered and inconsistent to be practical for a professional user.

For all these reasons, in March 2000, the FLSC resolved to explore the possibility of setting up a virtual library of Canadian law.  This orientation, which resulted in an analysis of the lawyers’ needs, was later progressively integrated to the law societies’ mission to provide legal education services to the public.  Indeed, the first sketches prepared by the Federation’s Virtual Law Library Committee contained a very wide range of scenarios for giving lawyers a better access to primary sources of Canadian law.  The five strategies taken into consideration were as diverse as partnering up with or buying a legal publisher, creating a new legal publisher for profit or not, and establishing a not for profit institute that could work in collaboration with a university.  This last approach was finally selected in summer 2000.

From that point on, the project was developed based on the establishment of a not for profit institute to be developed in partnership with LexUM in order to acheive free publication open to everybody.  Among the factors brought to the attention of the Federation regarding an association with the University of Montreal group was the well-known existance of already established Legal Information Institutes in the United States and Australia.

The seminal Cornell Legal Information Institute, created by professors Peter Martin and Tom Bruce in 1992, has remained a landmark for lawyers on the Internet by providing a highly reliable source of information on American law.  Even more impressive was the success of the Australasian Legal Information Institute (AustLII) based in Sydney, which had succesfully achieved complete coverage of the primary sources of Australian law.  Yet another “LII”, BaiLII, had just been created in Ireland and the British Isles.  Given these successes and LexUM’s reputed achievements, engaging in this kind of work with an academic group was extremely promising.

  From then on, discussions between Federation officials and LexUM researchers were extraordinarily fruitful.  Common sense guided both parties.  LexUM found in the FLSC the partner it had been seeking for years and the FLSC discovered a team that was already actively developing the kind of resource it needed.  A pilot project was therefore set up and carried out in the summer of 2000.  By the end of August 2000, a pilot version of CanLII was presented at the Federation’s annual conference in Halifax.  The representatives of the various law societies were impressed enough to fund the start-up of the project for a year.  Thus, CanLII was born.

4.  CanLII: The First Year

When the CanLII project began in 2000, LexUM already had experience publishing law on the Internet.  After all, LexUM had been the Canadian champion of custom-made free legal websites for years.  What remained to be seen was if LexUM could enter mass production.  This transformation required a revision of the way the documents were acquired, processed and published, as well as sucessfully developing the software needed to do so in an efficient manner.

A year later, CanLII was growing.  The completely bilingual site offered over 325,000 files, totalling over 4 GB of legal information by 2001.  While most of these files related to the publication of the federal legislation, the CanLII team had nevertheless put almost 50,000 court decisions on line.  Users could view over 40 browsable and searchable collections of case law, arranged by jurisdictions and courts.  New judgments were quickly made available, generally on the day they were rendered by a court.  Moreover, CanLII was accessible for free to everybody.  In CanLII’s first year therefore the project team had successfully managed to organize the gathering of texts, to set up the publication infrastructure and publishing policies and to develop the required software.

With regards to document gathering, the CanLII team conducted a campaign to convince the courts and the Queen’s Printers of the importance of the free publication of law and, more specifically, of the importance of supporting CanLII.  From the start, CanLII benefited from all available legal documents already gathered by LexUM over the years.  But, to go further, new statutory and case law collections were needed.  On this point, the FLSC’s contribution was been nothing less than remarkable.  The project manager for the Federation, Janine Miller, travelled across the country, put the law societies’ influence behind the project and injected her own considerable energy into guaranteeing the success of the public relations operation [8] .  As result of these actions, documents started to flow toward the CanLII’s servers, albeit in a relatively patchwork manner.  While some documents were received via file transfers, others came as attachments (compressed or not).  Many had to be downloaded from public sites.

  LexUM’s publishing procedures also had to be revised.  The first publishing procedure to be revised related to the coherency and the consistency of the diverse collections which were to belong to CanLII.  This required simplifying various LexUM collections, which were burdened with details, and enriching other corpuses coming to CanLII with no information other than what was contained in the decision files.  Two other issues were also to be taken into account: publishing traditions and privacy matters.

  Since CanLII was being funded by law societies that were mindful of their members’ needs, the CanLII team had to take care of more of case law publishing traditions than other legal information institutes.  This particular requirement involved emulating some publishing industry methods, such as the careful preparation of the title of the judgments, i.e. the style of cause.  The CanLII team had to learn about these conventions and to organize their application.  Furthermore, information on publication dates and docket numbers also had to be extracted for databases entry.  Thus, each file had to be opened, a certain number of elements had to be extracted and, finally, a title had to be prepared.  These operations remain limited, but their necessity made automated processing for publication impossible.

In Canada, family law, young offenders and disciplinary related matters generally entail some restrictions as to the publication of judgments.  Therefore, an additional editorial task pertained to the management of privacy issues.  In the past, commercial publishers performed the de identification work needed to make these judgment files suitable for publication in reports.  CanLII, however, did not have the resources to ensure such de identification activity.

In order to cope with the problem, CanLII representatives first established agreements with the courts to provide for only sending publishable decisions to CanLII.  However, mistakes sometimes occur.  As a result, CanLII staff briefly inspects judgment files related to family matters.  If a judgement cannot be published in the form in which it comes to CanLII, the originating court is notified and the court itself must decide what must be done.  So far, CanLII has avoided taking on the task of editing judgments to remove identifying information.

On a technical level, CanLII benefited from the beginning from whatever software LexUM had previously developed.  CanLII also received significant support from AustLII, a sister organisation in Australia and another dedicated player in the field of public access to legal information.  AustLII allowed CanLII to use SINO, a search engine developed by Andrew Mowbrayfor AustLII.  This powerful search engine became an integral part of the initial CanLII project.  Above that, all the software used was open source software, such as Linux, Apache and PosgreSQL, and is available for free on the Internet.

5.  Partnership

One of CanLII’s special features within the small but growing family of legal information institutes is its close co-operation with legal professional associations and academics.  Since the partnership is still young, it is possible that some problems might have been overlooked due to the partners’ initial enthusiasm.  On the other hand, no final tally of advantages has yet been produced.  The Canadian approach indeed offers a manner through which the sustainability of legal information institutes can be achieved.

  First, it should be noted that CanLII is certainly not an original example of co-operation between legal academia and the Bar in Canada.  Law schools have long benefited from the contributions of practising lawyers to teach certain subjects.  As well, Canadian universities benefit from numerous endowments established by law firms to award their best students with grants and scholarships.  Models of fruitful co-operation are certainly not lacking.  In CanLII’s case however, there were special challenges.

Part of these challenges on the Federation’s side, had to do with the number of organizations involved: fourteen fiercely independent Canadian law societies with thousands of lawyers and public notaries belonging to them.  All of these organizations were to financially contribute to the project and were therefore eager to see concrete and rapid benefits for their business.

Not surprisingly, some law society heads felt that the main responsibility with regards to the public access to legal information belonged to the government.  Some were reluctant to use their members’ resources in order to make up for what the government must do.

The Federation, however, had no previous experience undertaking such an ambitious venture at a national level.  Furthermore, even though law firms are often close to the local law faculties, law societies themselves were not in the habit of partnering up with a university research team for a long term project.  Lawyers in Canada, as elsewhere, are business people and are used to getting whatever services they need from other business people.  Therefore, as it evolved, the project followed a new path in this regard and an academic research body would develop the resource needed by the legal community.

Another element of the challenge stemmed from the fact that LexUM’s heads had been pursuing the goal of establishing free access to the law independently for a number of years.  By co-operating with the law societies, they would have, in a way, to agree to achieve their project for others .  The goals of the academics involved in CanLII were clear: to increase access to law, to develop Canadian know-how in the subject field, to create a place where research on computerized legal documents can be conducted and to offer training for students.  Under these conditions, the enthusiasm of the laboratory members could be put to work for a project it could carry out for and with CanLII.

Faced with the danger inherent to the possible mulitiplication of the number of stakeholders, the partners agreed very early on to identify a centralized channel for discussions between the Federation and the University of Montreal team.  Concretely, the Federation appointed a project manager who remained LexUM’s main contact for the entire first year.

Some months later, this initial structure was revised.  The Federation created an independent non-profit organization: the Canadian Legal Information Institute (the Institute ).  The Institute’s board brought together representatives from all law societies.  The Institute was to be financed by all the law societies using a special equal contribution from all their members and was to act as their agent with respect to the development of the virtual library of Canadian law, the CanLII website.  The purpose of the Institute was to establish CanLII’s general orientation and see to its promotion.The creation of the not-for-profit Institute solved the problem arising from the complexity of governance by the Federation.  The Institute would simultaneously build support for CanLII inside and outside the legal profession while managing the contractual relationship with LexUM.

The Institute thus became the academic team’s counterpart and essentially played an orientation role.  The parties established under contract that the routine management of the project was neither part of the mission, nor among the intentions of the Institute.  Much earlier, LexUM took the care of informing its prospective partner not only of the advantages, but also of the constraints related to its academic nature.  A university laboratory needs much more freedom to succeed and shine.

LexUM would build CanLII, which was the Federation’s project, but, in order to do so, the laboratory had to follow its primary vocation of training and research.  The specific orientation adopted by the Institute and the respect given to the specific needs of its university partner played a very important role in establishing a viable relationship.  As a result, the Federation and LexUM finally managed to build a Canadian Virtual Law Library.

6.  Conclusion

Canadian lawyers chose to take action and change the way law was distributed in Canada.  They were convinced that it was possible to build a completely virtual library that could give them access to all the primary sources of law.  They rejected excessively narrow designs and developed their project toward the establishment of a public resource of which they would undoubtedly be the primary, but not the only, beneficiaries.  They therefore acquired a great deal of capital in the form of goodwill.  Government stakeholders who might have been reluctant to co-operate in a project intended to benefit lawyers alone might also have been enthusiastic about the prospect of democratizing access to law, which was a project they did not have the means to carry out themselves.

Obviously, CanLII cannot fill all the information needs of Canadian lawyers.  Canadian legal publishers will continue to prosper.  However, what has changed since access to official legal information in its raw form is now free of charge, is that commercial publishers of legal databases must now provide fair value for the cost of their products.  Thus, the lawyers’ investment in CanLII is doubly rewarded , first by the savings offered by direct, free access to information and, second, by the transparency of costs that CanLII brings to the Canadian market for legal information.  A number of publishers have welcomed CanLII courteously since they were well aware that the Internet made it virtually inevitable that state law would be made available for free.  CanLII returns the favour by acknowledging and respecting their work.

For the Canadian public, what is at stake is real access to legal information.  When CanLII appeared in 2000, only half of the appeal courts in Canada made their judgements available free of charge.  Free legal information resources were scattered and consequently relatively inaccessible, except for the most experienced cybernauts.  CanLII has already transformed this landscape.  It already offers a place where most of Canadian law can be searched with a single command.

For LexUM, the CanLII project was a unique opportunity to expand the legal information activities of the Faculty of Law at the University of Montreal.  CanLII also gave LexUM a chance to explore new approaches to processing legal information and new modes of publication.  LexUM chose to trust an outside partner while the law societies decided to rely on academics.  LexUM feared subordination to the interests of lawyers and the law societies were probably even more afraid of the legendary frivolity of academics who so easily renounce today what they swore they would do only yesterday.  Both overcame their prejudices to do together what they could not have done alone.  The years to come will show what CanLII can fully achieve.

7.  Addendum to JILT publication (November 2003)

This article was originally prepared in 2001 for the Third Conference Law via the Internet held in Sydney, Australia.  The publication of this article in JILT today calls for some additions since I now have the benefit of hindsight and can look back on the first year of CanLII’s establishment.

In 2001, I wrote that LexUM’s heads “had to agree to achieve their project for others ”.  Three years later in the life of CanLII, I strongly feel that this must be put otherwise: LexUM did not create CanLII for others, but with others.  The positive assessment then made of the collaboration with the profession has been confirmed and surpassed over the last two years.

When I decided to embark on a partnership with the Canadian law societies back in 2000, I felt as if I was jumping off… the Sydney Bridge.  The stakes were really high.  Never had Canadian law societies entrusted so much of their resources in a university project.  The project was a very daring one indeed.  It called for nothing less than revolutionizing the distribution channels for primary legal material in the country.  Furthermore, I fully enjoyed the great liberties and benefits of a Canadian university professor.  Getting major and long term contracts involving the very activities I was dedicated to over the past six years made me feel as if I was betting on some of my freedom to get the money I needed to succeed.

Today, in November 2003, back in Sydney again for the Fifth Law via the Internet Conference, I can confirm that the decision made then was the right one.  Never in the last three years have I regretted joining forces with the Canadian law societies.  These law societies have been reliable, trustworthy partners.  They never tried to take over the work done in our lab at the University of Montreal.  Now, it can therefore truly be said that LexUM was not simply hired for the job, but instead given the opportunity to greatly explore new models to make to law accessible in the ways they themselves dreamt possible.

LexUM has definitely published much for CanLII with over 200,000 judgments and the legislation material of eleven out of fourteen jurisdictions in Canada.  The website is heavily used.  People have directed their browsers to the CanLII site over three milion times this year.  However, beyond its direct utility for the Canadian legal professionals and for all the people interested by Canadian law, the CanLII project has allowed for the University of Montreal team to further develop its expertise and to carry out various closely related projects.

With the help of CanLII related activities and various other related contracts and grants, LexUM lab members have been directly involved with the development and the implementation of two important standards for the Canadian judicial community, the Neutral Citation Standard for Case Law and the Canadian Guide to the Uniform Preparation of Judgments [9] .  Two more sets of guidelines are now at the draft stage.  One guideline relates to Case Naming and the other to the de identification of judgments.  Furthermore, all software developed by LexUM over the course of developing CanLII will be made available as open source software.  The first results of this sort will appear in the coming months on specialized web sites.

Furthermore, LexUM has started to make its technical know-how available for projects aimed at bringing free and open access to law in other parts of the world, especially in developing countries.  The Portail du droit francophone developed for the Agence Intergouvernementale de la Francophonie is the first concrete result of that kind [10] .  Finally, a form of international organisation is taking shape among the Legal Information Institutes of the world.  In October 2002, the representatives of all these organisations met in Montreal and adopted a common declaration, the Montreal Declaration on Public Access to Law , which stated the vision for the free access to legal information movement.  It seems that the vision of these pioneers will now be expanded in even more countries around the world [11] .

  Legal professionals in other countries should consider looking closely at what their Canadian counterparts have achieved.  They should consider taking the actual transformation of the conditions in which primary law material is made accessible in their country into their own hands.  The more noble approach would be if they chose to aim for the ideal of making the law freely accessible for all citizens.  CanLII shows that this is possible.

Notes and References