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Selection of Cases for Publication in Print

Prior to the existence of the Internet there was a long standing debate respecting the volume of cases that were being published by legal publishers. Some lawyers and judges claimed that too many cases were being published because most cases apply well settled principles. Others claimed that the application of old principles to new facts was worthy of publication. The new facts result from an evolving and changing world. Some judges have tried to limit the publication of their decisions.

In 1979 there was no provincial case law reporter for Saskatchewan and Maritime Law Book was preparing to start a series of reports exclusively for Saskatchewan cases. The Law Society of Saskatchewan was at the time the depository of Saskatchewan judicial decisions and the Law Society agreed to send copies of the decisions to Maritime Law Book. The then Chief Justice of Saskatchewan heard that judicial decisions were being sent to Maritime Law Book. The Chief Justice ordered the Secretary of the Law Society to stop sending decisions to Maritime Law Book. Eventually Maritime Law Book was able to acquire the judicial decisions for the Saskatchewan Reports, but the position of the Chief Justice regarding the publication of judicial decisions was obviously one that would limit the publication of cases. The Chief Justice was not alone in his belief that too many cases were being published.

Here in New Brunswick some judges have at times instructed their secretaries not to file or distribute a decision, notwithstanding that judicial decisions are important public documents. Such actions by a judge constitute the suppression of public documents.

The start of the Internet in the 1990s brought important changes to the publication of judicial decisions. First, all decisions were then available to all on government servers and generally they were free of charge. Second, the decisions were sent electronically to the publishers which meant that the decisions did not have to retyped and that resulted in a more reliable document. Retyping inevitably led to errors. Also the work of proofreaders was reduced.

The Internet brought the publication of many more decisions than were published in the past by legal publishers. Some researchers argue that indexing and case selection is now more important than ever because of the large volume of cases available.

Prior to the Internet, Maritime Law Book published all of the appeal court decisions in its provincial and federal reporters. And this has not changed. At the trial level Maritime Law Book publishes in its print reporters (with a headnote) 60% to 70% of all trial decisions. While many judges would say that too many of their decisions are published in print, the test employed by editors at Maritime Law Book is: would the case be useful to a lawyer.

The New Brunswick Reports (2d) has been bilingual since 1982. All cases that are translated are published in print in the N.B.R.(2d). The Official Languages Act, S.N.B. 2002, c. O-0.5, requires that all Court of Appeal decisions be translated. Trial decisions must be translated if the proceedings were conducted in both official languages or if the case “determines a question of interest or importance to the general public”.

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