Question – When Is a Digital Case Citation Not a Case Citation?
Answer – When it appears in the McGill Law Journal’s Canadian Guide to Uniform Legal Citation (the “McGill Guide”)
In the McGill Guide, a case citation to decision of a court or tribunal in an online database is described as “an online case identifier”. It does not qualify to be considered as a case citation like any other. This makes no sense.
What is a case citation anyway?
Simply stated, a case citation is a reference to a reliable source of the full text of the decision of a court or tribunal. In his Foreword to the McGill Guide John I Laskin makes this point clearly and unequivocally when he states that the first function served by a case citation is to
“enable(s) readers to find, quickly and easily, a reliable version of the source cited, be it a court decision or a journal article, and where appropriate or necessary, to verify and trace the roots of the source”.
For a few hundred years, give or take a few, print law reports were that source. Of necessity, the original guides to legal case citation reflected this historic fact.
However, times have changed. In this decade, in this century, in this country, the primary, the most accessible and the most used source of the full text of the decision of the court or a tribunal is a case law database. It is the print law report citation that has become the “also ran”.
When the McGill Guide was first published, onlone services were still in their formative stages. Print law reports seemed so permanent by comparison. Law libraries across the country maintained large historical collections of law reports. To conduct a complete search of the case law required the use of print. That is not the case today.
The print law report is on life support
At one time, any court or tribunal decision of note was available in print. Library collections with comprehensive collections of law reports were the norm. Today, however, as more and more law libraries dump their collections of print law reports, this is no longer the case.
Although few publishers will admit it publicly, subscriptions to current series of print law reports are tanking. There are law report series with fewer than fifteen subscribers but the exact number of current subscribers to any particular series is known only to the publisher. Theoretically a publisher could publish as few as one volume per series and claim that the print law report is alive and well rather than lose face by terminating a series.
At this point, the print case citation is primarily used by the commercial legal publishers as a correlative citation to the online case identifier for a case actually reported in an online database, and as a marketing device to create the impression that one online service has something unique to offer a subscriber.
A Major Achievement Despite Criticism
As well as trivializing the online case citation, the McGill Guide compounds the problem by directing that in citing cases, one must follow a “hierarchy of sources” in which the least useful and least accessible citations appear first. Specifically it directs the reader to refer to the Neutral Citation, then to print reporters that are increasingly available only in databases, and only last and seemingly least to the primary sources of case law – the online services of Lexis, Carswell, Azumet and Canlii.
For this and many other very good reasons, it is now “open season” for posting critiques of the McGill Guide. Many if not all of the comments are justified and worthy of careful study. In doing so one should be mindful of the invaluable contribution made by the McGill Guide to legal research and writing in Canada. When it was first published, the legal profession was generally careless, casual or indifferent to styling legal references. Judicial decisions in particular cited text books without stating the edition used, let alone providing the correct page reference. The publication of the McGill Guide and its widespread circulation among law students over time has dramatically improved the standard of citing cases and texts as a whole. Proposed alternatives necessarily will build on this foundation. Bravo to all past and future editors of the McGill Guide and to Carswell for faithfully supporting this publication from its inception.
Postscipt: I admit to bias in critiquing the McGill Guide. As the original Carswell publisher for the Guide, I am quite proud of its role in educating the legal profession in correct forms of citation. I hope that new editions of the McGill Guide will continue to flourish alongside the many other Guides that appear to be in development in the legal research community.
The justification for preferring print over online sources was explained to me as a preference for freely accessible over proprietary sources. Although print law reports are proprietary, they are generally available for free in local Law Society or university libraries (though not necessarily with minimal effort, especially for those in remote communities and those unfamiliar with the process of legal research), whereas Lexis, Carswell, etc. generally are not. This explains the primacy of the neutral citation as well, since essentially all cases with a neutral citation are available on CanLII – although this does not explain the disfavouring of the CanLII citation.
I agree, though, that the overall approach shows favour toward print sources and skepticism toward online sources. Based on my (recent) education in legal research, I now have an adverse reaction to seeing online citations (which I can access at the office) purely because they don’t jive with my sense of style.
Many of the proprietary online sources are also available or soon to be available to the public or members of those same libraries.
“Courthouse Libraries BC continues to be dedicated to keeping you current with legal information. So we’re very pleased to announce that we have rolled out WestlawNext Canada throughout the province. We’ve offered LawSource, CriminalSource and Criminal Spectrum in our libraries for quite some time, and WestlawNext is the new platform that combines these three resources in to one powerful finding tool.”http://www.courthouselibrary.ca/training/stream/the-stream-alex-mcneur/2015/02/13/courthouse-libraries-bc-now-offering-westlawnext-canada
In any event, neutral citation is simple and works, why not stick to it whenever possible?
Back in my own law review editor days I came to the conclusion that the print citation should be preferable for the reasons Paul mentions, but also because of accuracy issues with online reports – particularly of older cases. Much of the online sources catalogue of older cases are the product of OCR or manual re-typing and errors do sneak in despite the online service’s best efforts. There was at least two occasions that upon the law review’s citation check and quote review of a case that we found the online version having and extra word or missing a word which changed the outcome: e.g. changing “the appeal is allowed” to “the appeal is not allowed.” We contacted the online service and they promised to correct the problem, which they did, but they also didn’t make any note attached to the case indicating that there had ever been a problem.
At least a few years ago another reason to prefer a cite to a paper reporter was that the online service’s citation was nearly useless unless you subscribed to that particular service while a search for a paper reporters citation would more than likely help you find the case on the majority of online services.
I agree with critique for the very [reason] Paul mentions. The Law Reporters are often well beyond the reach of the public. For example, Courthouse Libraries BC brings Quicklaw and WestlawNext to all of the 29 locations around British Columbia but cannot ensure that Law Reports are similarly stocked.
Furthermore, once we factor in the accessibility of CanLII, which draws its feed directly from the Courts own website, we have a further reason to prefer the accessibility of the online source.
Re: this point: “As well as trivializing the online case citation, the McGill Guide compounds the problem by directing that in citing cases, one must follow a “hierarchy of sources” in which the least useful and least accessible citations appear first. Specifically it directs the reader to refer to the Neutral Citation, then to print reporters that are increasingly available only in databases, and only last and seemingly least to the primary sources of case law – the online services of Lexis, Carswell, Azumet and Canlii.”
I’m not sure I follow. I must admit I have not really looked at the most recent McGill Guide, but I’m not sure that matters here. When a decision is released, it has a citation that includes the same ingredients with little variation: (1) the title/style of proceeding (or “style of cause” depending court); (2) the docket/court file number; (3) the neutral citation, if any. That’s the judgment, which is the ‘source’ of the common law authority.
The neutral citation is essentially the birth certificate of the judgment and exists before anything is reported or made available online. The document accompanying the neutral citation (i.e. the PDF or paper form of the judgment) is usually subject to editorial revision before being published in the official reporter. For example, if you go to Canlii and search for “2015 SCC 7”, the accompanying PDF is not (yet) a version of the official SCR. But look up “2013 SCC 7” and you’ll get the actual SCR version.
For the Federal Court there is a practice direction to cite and include – where available – authorities from the official reporters. This, I suspect, is in part because official reporters are bilingual, but also because they are final and official! Everything from page numbers, paragraph numbers, and even editorial errors will remain as published in the SCR, FCR, etc. This is a good. These are freely available in print and online – with PDF/A standards (etc) it shouldn’t matter if you are referring to a print or digital version.
In my view the goal of online research should be to bring you to the most official version. The problem with the neutral “citation” is that it could refer to any number of published versions of the decision or the original judgment itself. We simply don’t know. Paragraph numbers, for example, might not match (or indeed might not exist in the older original judgments).
I think the underlying problem is the failure of the publishers of official/unofficial reporters to implement some of the functionality that would make working with PDF versions of decisions much easier. The online versions are nice because you get hyperlinks, rapid access to noting-up/reference tools, headnotes, etc. along with the more flexible presentation format on screen (be in an iPhone or resizing to read along with another window). Yet with PDF’s you can do this and more – tagging facilitates reflowing text for mobile use, read-aloud features (whether for joggers or reduced vision/access purposes), bookmarks facilitate navigating documents, and hyperlinks, quite simply, should be required in this day and age.
In short, we can have it both ways: the certainty and simplicity of a mirror image of the official reporter (or if none, the original judgment), along with the ease of quick online references and easy, accessible access. The McGill guide is trying to push us in the right direction – just maybe for the wrong reasons!
It seems that the overall goal as to the publication of specifically judicial decisions is to make accessible in a form which is not just verifiably exact but also as an unalterable text.
This system was in place until recently. As most know it is not uncommon to have to obtain decisions using the docket or file number for “unpublished” decisions. The use of the internet as a means of communications has upset the historical distribution system at least in the common law jurisdictions.
The neutral citation probably was conceived with the idea of bringing some order to the proliferating “citation” systems in mind: OJ, QJ, SCJ, CarswellOnt, AZ, JE, Lexis, ad infinitum. The neutral citation serves the purpose of bringing the whole system under one roof again because it is a creation of the judicial system itself, like the docket number, etc.
What has changed is that formerly reliance was upon “official”, “semi-official” and any other kind of law reporters. One does not have to go too far back in history to read judicial decisions which are oral transcriptions by “outsourced” reporters. This led in variations in cases of the same case reported by different reporters.
This old system was replaced by the “modern” law reporters in the mid to late 19th centuries. The texts were authoritative not only because they were published but because it was impossible to alter the text – reproduction of the reporter either manually or electronic. This system which is still in place is falling aside. The text can now again be altered and there may be no set text, pdf notwithstanding.
As to McGill, it fails once again. Someone (plural) with lots of experience on the lawyerly side should have edited the guide to chop out some pretty evident mistakes and as well as making the presentation easier to use. It is clear that the editors must have been rushed into print with the high number of very simple copy editing errors – too numerous to list.
But a word of caution – all is not lost for thanks to Beckett: “All of old. Nothing else ever. Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.”
“For the Federal Court there is a practice direction to cite and include – where available – authorities from the official reporters. This, I suspect, is in part because official reporters are bilingual, but also because they are final and official! Everything from page numbers, paragraph numbers, and even editorial errors will remain as published in the SCR, FCR, etc. This is a good. These are freely available in print and online – with PDF/A standards (etc) it shouldn’t matter if you are referring to a print or digital version.”
Or maybe CANLII needs to revisit whenever technology makes it possible to make a neutral citation, “official” and final which of course, nearly suggests PDF version to get around the pagination and even paragraph identifiers. This suggestion may be hersay the case law reporter publishers.
When I did work for the Ontario courts over 2 decades ago, the Ontario CANLII decisions came straight from the Ontario courts. It was original source but occasionally there were minor corrections (spelling errors) online thereafter.