By Ken Fox
From time to time at the library we get requests for “unreported” decisions. What do folks mean by unreported?
These days, you usually mean that a case is difficult to find, that it is not available on CanLII for instance. This is very reasonable – you take a phrase you have heard, and apply it to a situation in a way that makes sense.
Traditionally, unreported means something different with respect to case law. The court issues written reasons for its judgments, and legally-trained editors working for private publishing companies select cases for printing based on their importance, uniqueness, and court level. Cases printed in law reports (i.e., “reported”) were not only more accessible than unreported cases (i.e., those not selected for inclusion in a law report), but more authoritative, with some courts only allowing reported cases to be cited.
So (you ask) in the past, private publishers decided which cases were important, and thereby played a significant role in the creation of the common law? Yes they did, and to a certain extent they still do.
Unreported decisions existed only in copies issued from the courts, and photocopies of them were generally collected in court house libraries. At the Law Society Library in both Regina and Saskatoon we still have collections of unreported Saskatchewan judgments going back to the 1960s.
But technology changes things. In the traditional sense of “unreported,” CanLII hosts hundreds of such cases. For example, look at the citation info in this one – there is a neutral cite, but no reference to Saskatchewan Reports (Sask R), Western Weekly Reports (WWR), or any other print law report. The case is unreported, but easily accessible.
In 2014, Susannah Tredwell speculated that online publishing of case law has created a new kind of unreported decision: “those judgments that the courts do not make easily available.” This type includes oral judgments, and any other judicial decision for which no written reasons are released.
I don’t know the exact name of this phenomenon – semantic drift? – but it seems to me the meaning of “unreported” is changing. The publishing companies have little or no say in what cases are available – that power is now the courts’ alone.
In addition to changing the availability of case law, the existence of comprehensive, free sources such as CanLII, CommonLII, WorldLII and Google has eroded the authority of the print reporting system. As far back as 2005, Nick Pengelley mused that there might no longer be an authoritative distinction between reported and unreported case law. In 2009, Ted Tjaden suggested that Canadian courts, contra England, may adopt a more flexible, discretionary approach to what judgments can and should be cited in court.
So (you ask), this is the end of the centuries-old law reporting system? Really? Well, it’s not for me to say, but – yes.
How do you access unreported decisions?
In Saskatchewan, everything for which there are written reasons from 2000 forward is on CanLII. If you are looking for one of those “unreported” decisions in the newer sense of the term, you might need to contact a court registry office or one of the lawyers involved in the case. The Saskatchewan courts provide instructions on how to access court records.
From before 2000, practically all reported (in the old sense) Saskatchewan cases are now on CanLII. For unreported cases, try a subscription service such as WestlawNext or Quicklaw. Failing that, contact us, and we’ll do our best. If it’s from the 1960s or later, we might have it in a filing cabinet.
On the question of terminology – well, for me “reported” still means the case includes a citation to a printed law report. Call me Old School if you like, I won’t mind. And if you are one of those folks who call any difficult-to-find case “unreported” – then (1) I won’t correct you, and (2) I may someday join you – because one thing I’ve learned is that history’s greatest fools are the ones who try to stand in the way of change, and I just don’t want to be that guy.
Providing Legal Resources to Lawyers in Smaller Communities – Law Society Library & Access to Justice
By Melanie Hodges Neufeld
Providing publicly accessible legal resources and information increases the public’s understanding of legal matters and ability to handle these matters. In addition to the numerous public resources created and provided by the Library and research assistance, the Library is also involved in several access to justice initiatives. Please see a recent article in our Benchers’ Digest (page 6) “Putting the Public First – Saskatchewan Access to Legal Information Project” for more information on this initiatives.
However, it is important to recognize that the definition of access to justice is broader than just assisting self-represented litigants. Access to justice also includes ensuring members of the public have access to competent and affordable legal services. The resources and services provided by the Law Society Library enable lawyers, particularly in smaller centres, to adequately service their communities. Our Members’ Section ensures our members have access to the resources they need no matter their location. It is already difficult to attract new lawyers to smaller communities. A lack of resources could potentially make these locations even less attractive and leave communities without legal services.
If you are a lawyer practicing in a smaller community in Saskatchewan, please share your voice and review the following notice regarding funding to maintain legal resources, such as WestlawNext, and the other resources available through the Members’ Section and the Law Society Library. Once you have reviewed the notice, please complete the survey contained within. The deadline to complete the survey is April 7th. We appreciate your time and feedback.
By Sarah Roussel-Lewis
Some interesting reads to help you ease into your week:
- Canada’s weirdest laws: dental hygienists can’t clean their spouse’s teeth (Findlaw Canada)
- Keystone XL pipeline gets OK from U.S. State Department (CBC)
- Legislation introduced to cut the pay of Sask. MLAs (Global News)
- Liberals urged to scrap 19th century rule that requires laws be printer in books (CBC)
- Provincial budget sees cuts to Regina libraries, U of R funding (Global News)
- Should Pacemaker Evidence Be Used to Catch Cheaters? (Family LLB)
The March 24th edition of Lawyers Weekly digital edition is now available via the Members’ Section of the Law Society website. Articles in this issue include:
- Defence counsel deny law on consent needs reform
- Insurance Law: End of B.C. tort system
- Media Law: The era of fake news
- Business & Careers: Taking on too much
From the Court of Queen’s Bench
The Court of Queen’s Bench has updated Practice Directive CRIM–PD#1 concerning the scheduling of pre-trial conferences to reflect that criminal pre-trials will also be conducted in the judicial centres of Estevan, Moose Jaw, Swift Current and Yorkton. The updated practice directive can be found on the Court’s webpage here.
The Court of Queen’s Bench has issued three new criminal practice directives effective April 1, 2017:
CRIM-PD#3 concerns the safe handling of large or sensitive exhibits;
CRIM-PD#4 sets out a new process and application forms for obtaining a subpoena in a criminal matter; and
CRIM-PD#5 describes which exhibits filed in a criminal matter may be returned after the expiry of the appeal period, and which exhibits will be retained by the Court.
They can be found on the Court’s webpage here.
By Melanie Hodges Neufeld
The Law Society Library provides the legal research tools for the lawyers of Saskatchewan. Did you know that over 80% of members accessed the Members’ Section resources last year? Or that requests for research assistance increased over 50% in the last two years? For a detailed description of what we offer, please see my recent blog post or visit our website.
Law Society members, please review the following notice regarding funding to maintain legal resources, such as WestlawNext, and the other resources available through the Members’ Section and the Law Society Library. Once you have reviewed the notice, please complete the survey contained within. The deadline to complete the survey is April 7th. We appreciate your time and feedback.
From the Court of Queen’s Bench
The Court of Queen’s Bench has issued a new Civil Practice Directive effective April 1, 2017 that sets out template order forms to be used by Counsel and Bankruptcy Trustees in bankruptcy discharge applications. The new Civil Practice Directive CV-PD #4 can be found on the Court’s website here.