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 Given that almost all cases are readily accessible from online sources, there are now very few unpublished cases. Originally, there were such things as “unpublished” and “unreported” cases. Unpublished cases were those that were selected for eventual reporting in a print series of law reports.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As a consequence, there really is no such thing as an “unpublished” or an “unreported” case.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.