Of Digital Authoritativeness and the Age of Steam

• Author: Nate Russell
• Date: January 19, 2015

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:

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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...