Legal Research

Foundations of the Common Law Library (1215-1914)

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By Ken Fox

Let’s talk about Legal Information Institutes (LIIs). Every Canadian legal researcher knows about CanLII (I least we hope you do). But there is also LII (that’s the USA one), BaiLII (Britain and Ireland), AustLII (Australasia), AsianLII, HKLII (Hong Kong), PacLII (Pacific Islands), SAFLII (Southern Africa), WorldLII, and many others, all of which are part of the larger Access to Law Movement.

LIIs provide free access to current, primary law in their jurisdiction. But they do not always contain comprehensive collections of historic materials (in all cases, I assume, they are working on it). In the English-speaking world, the most earnest attempt to fill in the historical gaps is CommonLII, which covers the world of common law (assuming there is a high correlation between commonwealth countries and common law countries, that is).

Recently, CommonLII enhanced their historical vision with the Foundations of the Common Law Library (1215-1914). No, 1215 is not a typo. In addition to the Magna Carta, the site includes many obscure statutes from the thirteenth century and forward, including, for instance, the Treason Act of 1351.

The collection of English Reports goes back to 1220, but seems a bit patchy when compared to the statute law, as there are hundreds of cases tagged January 1220, but then nothing more until the year 1457. Despite being “reports,” many of these records are no more than what we would today call summaries or digests – an example from 1491:

Conusee. –A man had lands of ancient demesne in extent for debt, and they were recovered from him by the sufferance of the vouchee, whereby he was ousted ; in this case he shall be holpen here. Morton, Chancellor ; per Assent, Bryan, and Hussey, Justices (7 H. 7. 11 [1491-921).

It might require a historical legal scholar to determine in what way the debtor was “holpen” (helped) in this case, but it appears that people in 1491 got themselves into similar situations that many of us do in the 21st Century.

“Foundations” is perhaps an overused metaphor. Is the modern law really built upon these judgments, in the way that a courthouse is built upon concrete footings? In reviewing the above ruling and a few others, I am more inclined to think of them as the infancy of the common law. The law was smaller, simpler, and by appearances, more innocent. The modern law grows out of it, rather than resting upon it. In any event, to invoke yet another overused metaphor, this is the fresh spring that over time will become the mighty river that is the common law.

What else does this collection include? It’s a bit of a mixed bag. In the case of Canada, it includes only a link to the complete Supreme Court of Canada judgments on CanLII. For Australia, who led in the development of CommonLII, there are law report series for all provinces, each going back to the 19th Century or earlier. There are also collections for Uganda, Southern and Western Africa, Hong Kong, Burma, India, Pakistan, Sri Lanka, Jamaica, Bahamas, and ever other country in the Commonwealth with a significant collection of reported case law.

So the next time you see a citation for a very old British judgment, or one from any common law jurisdiction, or you just feel like exploring the cracks and fissures in the footings beneath modern jurisprudence, remember to revisit CommonLII.org and return to the Foundations.

Using Abridgment Topics to Refine Citing References in WestlawNext – Tip of the Week

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By Ken Fox

WestlawNext Canada, which is presently available to all Saskatchewan lawyers through The Law Society’s Member’ Section, includes an excellent Citing References tool. Today’s tip will help you in situations where you are dealing with a long list of citing references for a major case. My example relates to evidence law, but the technique will work with any legal topic.

I’ve recently learned that the law of evidence mostly originates in criminal law, and is transplanted, as needed, to civil law. Thus, most of the citations in Cudmore’s Civil Evidence Handbook are criminal cases. So, if you are a civil litigator, you may wonder from time to time how a criminal law authority on evidence has been applied in civil matters.

Take, for example, R. v. Cloutier 1979 CarswellQue 15, a case that rules that there must be a probative relationship between a fact introduced as evidence and the facts at issue in the matter. Start by pulling up that case in WestlawNext. Now find the Citing References tab and select “Cases and Decisions.” There are 207 references, and at a glance, most of them are criminal cases.

Is there an easy way to filter out the criminal case, and view the civil ones?

Look at the left-hand panel of the results screen. First, make sure you are only viewing Cases and Decisions, not all document types. Most of the filters are exclusive to case law. Going down the screen, you should see “Search within results,” Date, Depth of Treatment, Jurisdiction, Court Level, Treatment Type, Abridgment Topics, and Citation Frequency. Any of these can be used to limit the results to parameters of your choosing.

Note that the search runs immediately as you select a parameter unless you press the “Select Multiple Filters” button – which allows you to choose more than one filter at a time. Most of the time it is best to choose a single filter and see what the results are before adding another.

For the present example, the filter we want is “Abridgment Topics.” Go ahead and press the “Select” button beneath that heading.A box appears listing possible Abridgment Topics in alphabetical order. When you select a topic, it appears in the right-hand panel of the box under the heading “Your Selections.” In this case, you might select only Civil Practice and Procedure, or to get a broader range of non-criminal cases, you could select a few other topics as well.

Then click the “Filter” button at the bottom of the box. With only Civil Practice and Procedure selected, we go from 207 hits to 15, a very manageable number – and likely to give us a good look at how that evidence rule has been applied in civil courts across Canada.

But don’t forget you have many other possible filters to work with – you can limit the results to recent cases, Saskatchewan cases, higher court cases, depth or type of treatment, any number of other Abridgment topics, or any combination of the above. So play around, but always being aware what each filter does to your results before adding more.

For research advice and assistance, contact the library.

The Canadian Legal Research and Writing Guide on CanLII

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By Sarah Sutherland; This post is re-posted with permission from the CanLII Blog

We are happy to announce that the Canadian Legal Research and Writing Guide has been added to CanLII’s Commentary section. The Best Guide to Canadian Legal Research, as it was previously known, has been freely available online since 1998.

Catherine Best created the website version of the Guide over her almost 30 year career as a research lawyer. Her expertise in researching complex legal issues and teaching legal research and writing have translated into a quality guide that has been helping researchers effectively use online tools for 20 years. When Catherine Best retired in 2015, she generously donated the site to CanLII.

We have been lucky to have had volunteers step forward to make up a national editorial board of legal researchers who have updated the text and worked with us in the process of converting it to an ebook:

Melanie Bueckert legal research counsel with the Manitoba Court of Appeal in Winnipeg. She is the co-founder of the Manitoba Bar Association’s Legal Research Section, has written several legal textbooks, and is also a contributor to Slaw.ca.

André Clair was a legal research officer with the Court of Appeal of Newfoundland and Labrador between 2010 and 2013. He is now head of the Legal Services Division of the Supreme Court of Newfoundland and Labrador.

Maryvon Côté is an associate librarian at the Nahum Gelber Law Library at McGill University in Montreal. He is active on the Canadian Association of Law Libraries executive and writes on legal research topics.

Yasmin Khan is the head librarian at the City of Toronto Law Library. She has just finished a master’s of science, information and knowledge strategy from Columbia University.

Mandy Ostick is a law librarian and information professional with legal research experience in law firm, university library, and courthouse environments. She has had previous positions as library services manager for Norton Rose Fulbright in Vancouver, law librarian at Thompson Rivers University, and director, digital library at Courthouse Libraries BC.

We have redirected the site’s URL to the version of the Guide on CanLII as you can see here: legalresearch.org.

We are grateful for Cathie’s contribution to legal research in Canada and the ongoing work of the editorial board, and we look forward more exciting content developments. Thank you all!

Gallop Portal

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By Alan Kilpatrick

Did you know that the Gallop Portal (Government and Legislative Libraries Online Publications Portal) provides free and convenient access to almost 500,000 electronic government publications from all levels of Canadian government?

Launched five year ago by the Association of Parliamentary Libraries in Canada (APLIC), the portal is intended to provide Canadians with an easy way to access, connect, and interact with Canadian government resources.  Canadian Legislative and Parliamentary libraries are mandated to provide access to government documents by the Federal government’s Depository Services Program.

APLIC describes the portal as a “one-stop access point” to government publications.  Users can search for documents across jurisdiction and language using a variety of filtering options and a straightforward search interface.  The portal provides particularly high ease of use compared to other Canadian government websites.

We encourage you to check the Gallop Portal out at gallopportal.ca.

 

Changes Underway at CanLII

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By Gregory Walen, Q.C.

Most members of the Law Society of Saskatchewan are familiar with the Canadian Legal Information Institute (CanLII). For those not so familiar, CanLII is a not-for-profit organization whose sole shareholder is the Federation of Law Societies of Canada. Since 2001, CanLII has operated and maintained a website providing members of the legal profession and the public-at-large a virtual  Library of Canadian legal information.

At present, CanLII operates with a skillsbased, expert board of directors appointed by the Federation of Law Societies. Prior to the Federation moving in this direction, the board of directors was
comprised of representatives from all law societies. The Federation felt that a skills-based board of directors would be better suited to carry out their vision of CanLII’s future. Of note, Tom Schonhoffer, Q.C., our former Executive Director of the Law Society, was recently appointed to the Board.

The success of CanLII as an on-line research engine for lawyers cannot be overstated. This comment on its website sums it up:

“With one million documents across 200 databases, CanLII is closer than ever to achieving the dreams of its founders to become the best place for lawyers and all Canadians to consult Canadian law.”

Since its inception, CanLII has relied upon a company called Lexum, a software company delivering online management and publication of legal information. That legal information mostly consists of cases from all levels of court in every province and territory in Canada. Without Lexum and its proprietary software, many would argue that CanLII would cease to exist, at least in its present  successful state.

Of course, CanLII contracting with Lexum did not come cheap. The cost of contracting the services of Lexum was not an insignificant portion of CanLII’s annual budget. Ultimately, it is every member of every law society in Canada that funds CanLII through an annual levy which we pay through our law society membership fees. In the 2018 year, members of all law societies across Canada (excluding the Barreau du Quebec and the Chambre de Notaire) will pay or have paid a levy of $41.94 for CanLII’s operations.

Needless to say that over the years some of us have had concerns that CanLII’s future essentially rested with its ongoing contractual relations with Lexum, a company that also provided software solutions to other organizations. Those concerns appeared to have disappeared in the later part of 2017 when an opportunity arose for CanLII to acquire a 100 per cent interest in Lexum.  Negotiations took place over many months and, on February 28, 2018, the Federation announced that the deal was sealed and CanLII was now the owner of its own service supplier.

In announcing the acquisition, the Federation President, Sheila MacPherson said

“CanLII has grown from a pilot project to become the indispensable goto legal research tool for Canada’s legal profession…The acquisition of Lexum marks an important milestone in the history of CanLII positioning both to take on future challenges in a competitive legal information marketplace.”

So where to from here? It is my view that CanLII will move on to be the Canadian legal profession’s most utilized legal research tool, if it has not already reached that status. I suspect we may see a move towards publication of secondary sources such as digests and texts supplementing CanLII’s focus on primary sources of law.

[Originally published in Benchers’ Digest, Spring 2018]

Regina Public Library’s Legal Speaker Series 2018

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By Alan Kilpatrick

The Regina Public Library is hosting its third annual Legal Speaker Series on Saturday, February 10th from 10:00am – 4:30pm at the George Bothwell Branch.

Drop in between these hours to attend a variety of free workshops on common legal issues, and to learn more about your legal rights. Some sessions require registration.  Volunteer lawyers with Pro Bono Law will be offering 30 minutes of free legal advice. Appointments must be pre-booked directly with Pro Bono Law.

The Law Society of Saskatchewan Library is excited to participate in the event again this year and to connect with members of the public. I will be hosting a workshop on “Doing Your Own Legal Research” for self-represented litigants from 11:15am – 12:15pm:

11:15 – 12:15 – Doing Your Own Legal Research
Doing your own legal research for a court case can be intimidating, especially if you have no formal legal training. However, there is help out there for people wanting to represent themselves. Join reference librarian Alan Kilpatrick from the Law Society of Saskatchewan Library to learn about CanLII, a free legal service that can be accessed by anyone via the Internet. The presentation contains federal and provincial case law, legislation, and more.

Do you need to learn how to conduct your own legal research? Are you just curious about Canadian law? Don’t miss this exciting session with the Law Society of Saskatchewan Library!

We look forward to seeing you there!  Click here to learn more.

Adding Foundational Case Law to CanLII

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By Sarah Sutherland
Manager, Content and Partnerships
Canadian Legal Information Institute (CanLII) 

Since CanLII’s founding, we have been working to make sure the law you need is available. As part of our project to add the Dominion Law Reports cases that have been cited in CanLII case collection that we announced last year, we are including historical cases that are foundational to understanding the context of Canadian law, including Browne v Dunn (1893), 6 R 67 (HL), which we are informed was the most requested case at the Law Society of Upper Canada’s Great Library (Thank you to David Whelan for letting us know this was the case and sharing the scanned copy from the Great Library’s print collection!).