In reviewing the implications of the recent citation rule changes adopted by the BC Court of Appeal, one consideration that came to mind is the impact on access to justice for the public.
Citation and access to case law
British Columbia adopted neutral citation in 1999 (BCCA) and 2000 (BCSC), so a significant body of its case law is easily accessible by neutral citation. The use of neutral citation with no parallel citations for BC cases does not pose any access barriers, particularly with the ease of accessing this case law on CanLII. Indeed, the new directive removes barriers and therefore increases access for cases that have a neutral citation.
What about cases without neutral citation? By allowing citation to QL or Westlaw Canada for those cases, with no parallel citations, how will self-represented litigants – or even lawyers without accounts to those commercial services – obtain those cases? Fortunately, the BC Courthouse Libraries provide public access, and all in-library users have free access to both QL and LawSource. In British Columbia this change should not have a negative impact on access to justice for both the public and the profession.
The situation is different for jurisdictions such as Ontario and Quebec, where the courts were late in adopting neutral citation.
- If a case is cited only to QL or Westlaw Canada, finding it on CanLII becomes more difficult. Citations from those electronic services are not part of CanLII’s Reflex database, so a citation search will not retrieve the case.
- A style of cause search may retrieve the case, but there can be considerable variety in how various services assign case names.
- The case can often be tracked down in a print reporter, by obtaining a citation from the Canadian Abridgment Consolidated Table of Cases. However, a parallel citation can eliminate that step, and also help with finding the case on CanLII.
- Another option is to use the CanLII citation for these cases, as a primary or parallel citation. This eliminates the barriers resulting from citing only to commercial services.
And what about cases too old to be on CanLII? A user given only a QL or Westlaw Canada citation, who does not have access to those services, will not be able to find the case in print reporters without first locating its print citation.
Allowing citation to commercial electronic services, with no requirement for parallel citations, could create barriers for those who don’t subscribe to the commercial services. That is just one instance where access to those services through law libraries is important.
Law libraries and public access to legal information
A quick trip through the Internet sites of Canadian courthouse libraries and law society-funded libraries reveals that the majority of those libraries provide some access to the general public. However, there are exceptions. A 2007 report by the Courthouse and Law Society Libraries Special Interest Group, summarized in the Library Boy blog, indicates that only 58.6% of the libraries responding were open to the public. Of those libraries that provided public access, many of them did not extend public access to commercial electronic databases. And library access to legal information through the public library system has decreased as a result of the termination of government funding for the Community Access Program, as discussed in the Clicklaw Blog.
Legal researchers know that using secondary sources is a key part of effective legal research: that will apply even more so for those without formal legal education. In a recent post, I referred to Martin Felsky’s suggestions for effective use of CanLII by paralegals. In his article, he states that:
The last category of research is the ability to find the most cited texts and articles. Most of us do not have the luxury of having a large law library accessible to us. I understand the paralegals are not allowed to use the County Law Association libraries and so [it] is not always easy to browse through the necessary textbooks and other secondary materials that are usually the most profitable way to start any research project.
If this is indeed the situation for paralegals at the LibraryCo libraries, it seems to contradict both the spirit and the letter of the LibraryCo public access policy.
Given the statistics on self-represented litigants recently published in the Final Report of The National Self-Represented Litigants Project (May 2013), and the increasing responsibilities being taken on by paralegals, serious consideration must be given to how courthouse libraries and law society-funded libraries can increase public access. Various studies are currently underway regarding access to justice, but access to legal information has not received priority. The law societies have supported public access through CanLII, but this is not enough. The repositories of legal information in our courthouse libraries and law society-funded libraries should be made available to the public as well.