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How I Learned to Stop Worrying and Love the Neutral Citation

Gary Rodrigues’ recent column Reality Check: Fact, Fiction, and Case Citations, sparked an interesting discussion about the use of case citations: whether using the neutral citation in a secondary source is enough; which parallel citations should be included in case tables; whether we need to cite print reporters at all; and so on.

As long as I’ve been working in the world of legal publishing, we’ve taken for granted that we should include in every publication a table of cases with as many parallel citations as we could rustle up. Our tables of cases still include citations to as many as four print reporters, and we tend not to include cites to electronic sources unless nothing else is available.

Back in the last century, creating case tables was laborious work requiring many hours at the courthouse library. With the advent of sophisticated databases and online research services, the task has become easier. Even so, the copy editor still needs to create the table, and all the information included there needs to be input, reviewed, proofed, and corrected. And even with this work being done by extremely careful people, errors can creep in.

At CLEBC, we also provide a table of cases and legislation considered in all our online practice manuals. The table includes every case and statute listed in our online publications, along with parallel citations and links to every place in our online library in which the case is discussed. Of course you must be a subscriber to click through to the discussion. We haven’t received much feedback about this feature over the years, though, and we’re wondering whether we should continue to include it. (If you have a view on this, I’d be very interested to hear it.)

But what is our objective here? Why are we doing all this work? Why include all those parallel cites? As a publisher of secondary sources, we want our users to be able to put their hands on the primary law as easily as possible.

For our online publications, the answer is easy: we link to the primary source. For cases to which we cannot link, we include enough information for the case to be found using the search engine of one of the commercial databases or, if the case is not published online, to a print reporter.

With the rise of online publication and the open access movement, accessing primary law has never been easier. Over the past 10 years, we’ve seen many improvements in the superior courts’ judgment databases. CanLII is feature-rich and much more comprehensive; it is now the first choice of most researchers. The online services of the large commercial providers have become more use-friendly, and it is now easy to locate any case included there. All these sources have excellent search engines, and it is an easy matter to use the neutral citation as a search term and thereby find the case. CanLII and the commercial providers also provide information about the case’s history and how it has been treated.

Daniel Poulin’s column from earlier this year reports on Lexum’s survey about its Supreme Court of Canada site. The survey showed that searching by case name is the most popular way to find a case. For English users of the site, the neutral citation is the second-most popular search method. Granted, this survey was of the Supreme Court of Canada site, where it is well understood that all SCC cases are readily available and easy to find.

What of the supposed limitations of the neutral cite? The system only works if every decision receives a neutral citation. CanLII has created its own citation system to address certain historical limitations of the system, but CanLII cites follow the neutral citation very closely.

What about the many older cases for which a neutral cite doesn’t exist? Do we still need to cite all the print reporters? Given the limited availability of print reporter collections, I’m starting to think that we may need to cite one printed report only. But do we need to cite to any print reports? If the case is only available on one of the large commercial databases, we should probably include that citation as well as to the print reporter.

One important consideration: what do the courts require? Rule 44 of the Supreme Court Rules sets out what must be included in a book of authorities. There’s no need to include a print cite if case is available electronically. The BC Court of Appeal has different requirements, though. As Holly Brinton says in her Civil Appeal Handbook (CLEBC):

While counsel are required to cite a reported series where available, the Civil & Criminal Practice Directive entitled “Citation of Authorities” states that copies provided to the Court may be reproduced from an alternate electronic database provided the reported decision contains numbered paragraphs and the paragraph numbering is the same in the electronic source (slightly different instructions apply where the citation is to the Supreme Court Reports).

The practice direction from the Ontario Superior Court is similar to that of the BC Court of Appeal, with the added requirement that “Parties citing decisions from electronic databases should provide the citations for any paper versions of the decision in addition to the citation of the electronic database.”

I’ve started asking law librarians if they care whether we include parallel cites in our tables of cases. My survey isn’t very scientific so far, but a couple say “don’t bother” and one says that it may be handy as a cross-check if inaccurate information is presented in the first instance (in the scenario where a lawyer brings librarian incomplete or inaccurate information about the case name or citation).

I’ll make a bold statement: I’m very very close to giving up all those parallel citations if the case has a neutral citation.

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Comments

  1. For the view from Manitoba, here is a link to the Practice Direction from the Manitoba Court of Appeal regarding the use of neutral citations in documents filed with the Court. As you can see, preference is given to the neutral citation (where available), but a parallel citation to another print reporter is generally required.

    I would note that the Practice Direction was released in 2006 and I agree that we may be very close to the time for revising it, to provide for even greater reliance on neutral citations alone.

  2. I’m all for the use of the neutral citation, exclusively, when a neutral citation is available. I also agree with the rationale for including a parallel citation to an electronic database such as CanLII or Westlaw.

    However, it would be in my view a huge mistake to include only a citation to an electronic database, since those citations only work reliably if you have access to the database in question, and do not work at all for automated indexing of citations since no database (including CanLII) currently allows automated lookups of references.

    Print citations, on the other hand, are publically accessible, work well in all of the databases, and are database-neutral such that they do not lock subsequent readers into using particular database or another. For any case for which no neutral citation is available, a print citation provides a common point of reference from which a user or automated software can determine which case is being referenced.