Case citations exist primarily for the purpose of enabling a researcher to locate the full text of a judgment or the decision of an administrative tribunal. The primary purpose of a style guide for legal citation is to ensure that everyone can understand how various combinations of numbers, letters, brackets and punctuation make it possible for the reader to find the full text of a case referred to in a book, article or another case. There are other uses, such as case citators, but the main purpose of a case citation is to provide the means to easily locate a case.
Increasingly, the place where researchers look first is online, and they look there for cases originally published in print as well as those made available online. Many older print collections are not available to legal researchers and even current print law reports are getting harder to find. The sixth edition of the McGill Guide recognizes "the increased use of online databases by students and practitioners alike" but doesn't go far enough to acknowledge the new reality that has evolved as a result of the shift to online case research.
Reported and unreported cases
In the new reality, it is a fact that cases are "published" in print and that cases are "published" online. Given that almost all cases are readily accessible from online sources, there are now very few unpublished cases. Originally, there were such things as "unpublished" and "unreported" cases. Unpublished cases were those that were selected for eventual reporting in a print series of law reports. Unreported cases were those which were only available as a photocopy of the original judgment which courts for various reasons were reluctant to use in court. That is no longer true. As soon as a useful case becomes available online, it is widely used and cited in court.
As a consequence, there really is no such thing as an "unpublished" or an "unreported" case. Even the words themselves should be banished from the legal researchers vocabulary as being relics from another era.
Rules that favour print over online sources
With the exception of the "neutral citation", the McGill Guide strongly favours citations to print law reports over online sources with regressive rules like the following:
"Provide the neutral citation followed by the citation to the print reporter."
"A neutral citation should only appear on its own when a decision has not been published. When accessing such a case online, one need only provide the neutral citation".
At the same time, the rules state that that one should
"List at least one parallel citation where ever possible."
These rules are antiquated and do not meet current needs. As time passes and as print law reports become increasingly inaccessible, the print citation will come to have little or no value to a researcher. Even now, every article or book published today that does not include the citations of at least one of the major online services is limiting its utility and shortening its shelf life. Texts like Alan Gold's Practitioners Criminal Code and Halsburys Laws of Canada are laying the groundwork for the future by systematically including electronic citations, albeit limited to Quicklaw citations.
A major step forward would see the McGill Guide including in the Appendix a comprehensive list of the specific databases available from recognized providers of legal information in the same way in which the Guide includes comprehensive lists of print law reports and journals with their citations.
A second important step would be to recommend that one should list parallel electronic citations from the major online services, with or without print citations.
The neutral citation
The neutral citation is given a very prominent place in the McGill Guide. I wonder, however, whether this emphasis is justified. Is it not misleading to students new to legal research who do not understand the limited utility and relative newness of the neutral citation? Would it not be better to tell them that it has not been used for very long and that only a fraction of cases have a neutral citation?
The neutral citation is invaluable editorial tool to ensure that parallel citations are correctly identified on an ongoing basis. Over time, it may come to be the dominant citation but that is not presently the case. Easy and direct access to the full text of a case is best done by means of a citation to one of the major providers on access to online cases.
Azimut gets a raw deal
The current edition actually says "do not cite to Azimut when writing for an audience outside Quebec". This is unacceptable for many reasons. Most notably, no limitations on authoritative sources should be included a style guide. In an era of easy access to online services, and the availability of transactional pricing, there is no reason to suggest that any legal researcher ignore one of the leading sources of Canadian Jurisprudence. No other source of content gets a "do not use" reference from the McGill Guide, although there are vague references to internet sources that "differ as to their reliability" for which "judgment must be exercised when citing these sources".
Some services are more reliable than others
The reference to reliability appears in at least two places in the McGill Guide. It is very important to note that some online sources should not be relied upon by legal researchers. This is an important point but the references are vague and leave the reader uncertain as to which databases are reliable and which are not. Wouldn't it be preferable to clearly list sources known to be authoritative, without saying which online sources are unreliable. Students in particular would benefit from this information.
Clearly any list would include the major providers of legal information in the Canadian legal market – Carswell, LexisNexis, Maritime Law Book, CANLII, and CCH. More recently, Canada Law Book has launched its own online service. As was mentioned above, Azimut is clearly on the list. Also not to be overlooked are the new web sites launched by federal and provincial administrative tribunals which include the full text of board decisions.
Opportunity for the McGill Guide
According to a recent announcement on SLAW, a new edition of the McGill Guide is in preparation. Opinions have been solicited as to how it might better meet the needs of legal researchers. Given its widespread use, I expect that the editors of the new edition will receive a lot of useful feedback. For my part, I see the new edition as offering an opportunity to increase the relevance and utility of the Guide by addressing head on the changes that have resulted from the growth of online case research. The new edition may be just what we are waiting for.
It's my experience that there are still many cases that are both unpublished and unreported.
I frequently run across cost and appeal decisions on Canlii for which there are no published versions of the original decision.
In my own work, I've been involved in a number of cases where the decisions have not been put online. This includes cases where the court has provided written reasons in both the Ontario Court of Justice and the Superior Court of Justice.
As for the McGill Guide, the tone of the survey questions doesn't give me confidence that they are moving to an open publishing model, which is the direction I'd like to see them head.
Hi Gary:
I think parallel citation rules should be simplified to suggest that where a case has a neutral citation citing only to that neutral citation is sufficient, even if it is SCC. If needed, admonish the reader to put (CanLII) after the case. Readers not familiar with legal research would have a fairly good chance of finding the case (or CanLII) through Googling and sophisticated researchers will know that they can use the neutral citation to find the case in multiple locations.
I gave my two cents worth in their survey. For example, in their rule for citing to legal encyclopedias, they give examples for Halsbury's UK and CJS but not the Canadian Encyclopedic Digest! They also do not give good examples for citing to a CLE seminar conference paper from, say, the OBA, which is going to be cited 90% of the time compared to their examples from papers delivered at conferences.
I repeat my call earlier here on SLAW for a proper legal citation wiki or some other open source model for legal citation to replace the McGill Guide.
What Gary didn’t get about neutral citations
Despite its tacky title this comment will not lists all Gary’s shortcoming. I don’t want to vituperate against a distinguished Slaw contributor either. I just want to explain one more time why neutral citations are important to a long time skeptical colleague.
Gary wonders whether the very prominent place given to the neutral citation in the McGill Guide is justified. He follows by strongly criticizing the way the Guide deters users from using Azimut citations. The relation between the questioning and the critic strikes me. For the problem with Azimut’s citation for off-Quebec people is exactly what neutral citations are about.
What a lawyer from Ontario will do with an “AZ-50396451”? To make any use of such a citation, she has to know that an AZ-thing comes out of a service called Azimut provided by a company named SOQUIJ. Then, to simply learn what case is referred to, she will have to subscribe to the service. This is costly. Such a citation is indeed pretty obscure.
However, this “AZ-50396451” is simply the commercial code associated by SOQUIJ for the following case: “Brisebois c. MacDonald, 2006 QCCS 5197, AZ-50396451”. Anybody can see the point: the author uses the neutral citation instead or in addition to a proprietary citation, anybody will find the cited case in her favorite database (commercial or not) or in a printed report series. The neutral citation creates a gateway to all systems whereas commercial citations to commercial sites are inherently obscure.
A more coherent critic could have been that McGill Guide's authors did not treat SOQUIJ, eCarswell and Quicklaw the same way. Yet, citations to one or the other of these databases share the same strengths and weaknesses. What a user could understand of “2004 CarswellOnt 4946 (C.A.); [2005] B.C.J. No. 2715 (C.A.) (Q.L.)” if she does not subscribe to both eCarswell and Quicklaw? There is no difference between that and a citation to Azimut.
To sum up, the problem with citations to commercial database citation scheme is that the reader has to subscribe to the service to reveal the meaning of the citation. The neutral citation has been designed and promoted to prevent this problem. When it is used, one can find out which case is being cited whatever the source of the information.
Gary wrote “Case citations exist primarily for the purpose of enabling a researcher to locate the full text of a judgment”. You are right Gary, that’s why citation exists, but the best way to achieve that is by using the neutral citation and I guess that is why the McGill Guide’s authors prominently recommend it. Such a use is not detrimental to one service or another; it is just plain good public policy. That way our case law is not captured in products, it remains public, the consumers of legal information avoid commercial lock-ins and the legal publishers enjoy the open market they cherish.
For the rest, I happily support Gary’s views that the Guide’s authors must start thinking about reconsidering the Guide's bias towards printed sources, precisely for the reasons that Gary pointed out. There is virtue in citing more than one source, but let’s face it, in today’s world most of the time the alternates source will be electronic.
Daniel.
The guide was published three years ago when electronic legal research was not as widespread as it is today. The widespread acceptance of electronic databases and their reliability will surely be acknowledged in the upcoming edition of the Guide.
I appreciate Daniel's efforts to educate me regarding the value of neutral citations. Personally I see that neutral citations have great potential if and when they come to be accepted by the legal profession as the primary means of identifying cases.
My real point, which I may not have expressed clearly, is that neutral citations represent less than 5% of citations seen or used by legal researchers. In print and online, the major commercial publishers have always been the primary source of caselaw. To ignore them online, or treat them in a secondary way, makes no sense to me.
I also agree with Daniel that all major sources of caselaw, including the commercial publishers, AZIMUT and CANLII, should be treated in an equal manner. The fact that a citation is unwieldy, inelegant, or not easily available in one part of the country or another should not influence the decision to include or exclude the citation in a guide to legal citation.