About 1940, a British expert committee gave a very thoughtful report on what is meant by giving the profession and the public meaningful access to court decisions. The British had a few other things on their mind that year, and resources were thin. That valuable report is long forgotten. Then in the 1970s the Canadian Law Information Council did similar work, but Toronto publishers suspected the Council of socialist tendencies, and it got disbanded. Well-meaning efforts since to give the public everything free, have seen Canada's best publisher of court decisions abruptly go out of business. Its replacement is operating, but has not totally revived that publishing scheme.
So it is time to take stock of where we are again.
What do lawyers need for good access to court decisions? Five capacities or abilities:
- to get a reliable copy of any specific worthwhile decision at any time, if you ask for it specifically;
- to learn speedily of the latest worthwhile decisions;
- to learn which decisions are notable or novel, which are routine, and which are useless (to anyone except the parties to them);
- easily to learn the subjects of any given decision, without reading the whole thing; and
- to search part or all of the existing body of court decisions and reliably find which touch on a given topic.
More often, you are not looking for the text of a case about which you already know (#1). Usually your need is to find the case law (or a defined part of it) about a certain topic (#5).
In the days of printed law reports, we achieved most of those objectives, though often # 2 was rather poorly met, and #1 was spotty. In Canada today (September 2017), we are not really meeting any of these objectives, though in many ways #1 is pretty good.
Today the big problem is extracting the minerals from the ore (#’s 2-4). A mass of raw unrefined unsorted material is almost useless. "Here are the full texts of three hundred thousand court decisions, almost none with any summary or digest, nor even any indication of topics in each." That sounds impressive, but it is well-nigh useless. The decisions are sorted only by court, and roughly by date, but never any other way. So unless you practise in Prince Edward Island or one of the territories, the bulk from even one year of your home province is far too great to be of any use.
As for #5, a whole generation of lawyers believe that they can do meaningful legal research simply by whole-text computer searching of certain words and phrases. (Contrary to what you may have read, the world's first inventor of this process was an Edmonton lawyer. He discovered it in Edmonton, between the time that he left a big Edmonton firm and the time that he became an Ontario law professor and was convicted of murder.)
That computer searching method is a helpful adjunct to other research, but it rarely gets you much more than half of what you are looking for, and often it is very time consuming. Online searching can easily be framed to exclude parts of the database (such as certain provinces or older cases). But getting a reasonable degree of inclusion is very hard. It never reaches anything approaching the degree of inclusion which Maritime Law Book Co. used to offer with three keystrokes.
Until last autumn, Maritime Law Book furnished the best summaries (headnotes) and the only good classification system. It was reliable, and covered almost all the case law in common-law Canada since the mid-1970s. Now some of that is inaccessible. Two Toronto branches of international publishers and one other computer server have their own big databases. Two have headnotes, but their headnotes and classification systems are of only moderate quality. And one always demands an expensive paid-up subscription to access even one court decision from them. That is hard for a sole practitioner or researcher to afford, and entirely inaccessible for a lay person.
What is more serious, at any moment one of those databases could become totally inaccessible, maybe even lost forever, whether or not you were willing to pay. In the old days, the available case law could not disappear unless every law library in Canada burned down simultaneously. When the University of Alberta's case law computer database disappeared, few noticed. The best one, Maritime Law Book, was gone for three quarters of a year. (It is now largely back as online Compass and vLex Canada.) And other existing databases have been known to go off line for hours or even a day at a time. What malware or a big technical malfunction could do at any time, is scary to imagine. Such problems with non-legal databases are becoming fairly common.
The big free database of Canadian court decisions is pretty complete in recent years, and not bad in earlier years. But it usually has no summaries (headnotes) and no classifying or finding tools (other than whole text searching). (Most Supreme Court of Canada decisions there give a headnote, but not all. The other federal courts’ decisions there do not.)
The traditional type of printed law report achieved most of the five aims well, but these reports have become uneconomical for all but the biggest and best-funded libraries. The best version (MLB Co) has gone out of business, and the future of the other hard-copy law reports is doubtful.
The percentage of oral decisions available to the profession has now dropped from about 10% in the 1970s, to almost zero. For most databases it is zero.
We assume that we are better off now, than we were 20 or 30 years ago. But hard-copy law reports were always available, they winnowed out the cases not worth reading, they provided a convenient summary of each case and most of its legal points, and they were always indexed in various finding sources. A year or two ago, we had a combination of law reports, good finding systems, and computer whole-text data+bases, and we were well off. Now we have lost a great deal of that, and seem poised to lose most of the rest.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: email@example.com or phone 780-424-5345.