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Legal Research Review

Legal Research Review. How Cases are Published. Court makes decision Will either be published or not (oral reasons) May go directly to an OFFICIAL reporter automatically Supreme Court Reports, Ontario Appeal Cases May be given a “neutral citation” (numbered decision)

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Legal Research Review

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  1. Legal Research Review

  2. How Cases are Published • Court makes decision • Will either be published or not (oral reasons) • May go directly to an OFFICIAL reporter automatically • Supreme Court Reports, Ontario Appeal Cases • May be given a “neutral citation” (numbered decision) • May get picked up by an UN-OFFICIAL reporter • Canadian Criminal Cases, Motor Vehicle Reports • May get picked up by an electronic service • Quicklaw or Westlaw Canada (LawSource) • Given an electronic citation (resembles a neutral citation) • Called “unreported decision” if not published elsewhere

  3. Reported Decisions (print reporters)

  4. Reporter Abbreviations • http://www.library.brocku.ca/research/politic/lrchart.htm

  5. Neutral Citation • Canadian Judicial Council standard • Elements • Style of cause • Year of decision • Court or tribunal identifier • Ordinal number • Unique, complete, immediately available and permanent • Example: Smith v. Leblanc, 1998 BCCA 21

  6. Jurisprudence: Neutral Citation

  7. Electronic Citations • Citation assigned by electronic service • Each service has their own numbering system • Examples: • Bank of Nova Scotia v. Visentin, [1996] O.J. No. 4563 (Gen. Div.) (QL) • Harris v. Beck Estate, 2007 CarswellPEI 11 (S.C.(T.D.)).

  8. Jurisprudence: Electronic Citation

  9. Jurisprudence: Examples • Mugesera v. Canada, 2005 SCC 40 (Westlaw Canada). • Nisbett v. Manitoba (Human Rights Commission), 101 D.L.R. (4th) 744. • R. v. C.I.P. inc., 135 N.R. 90. • R. v. Raponi, [2004] 3 S.C.R. 35 (LexUM).

  10. Excellent Website Describing Legal Citation • http://library.queensu.ca/law/lederman/legalcit.htm

  11. Parallel Citations • Citations that refer to the EXACT SAME case • Same parties • Same hearing • Reported by different sources • Just like one event happens, several newspapers may report on it. Stories cover the same situation, but publish in different places.

  12. R. v. Tessling, 244 D.L.R. (4th) 541

  13. Reading Citations – what type? • 2009 ONCA 846 • 133 D.L.R. (3d) 546 • 2009 SCC 56 • 40 N.R. 255, 7 W.C.B. 177 • 65 C.C.C. (2d) 193 • 1999 CanLII 3822 (ON C.A.) • [2009] O.J. No. 3909

  14. Reading Citations • 2009 ONCA 846 • NEUTRAL • 133 D.L.R. (3d) 546 • PRINT • 2009 SCC 56 • NEUTRAL • 40 N.R. 255, 7 W.C.B. 177 • PARALLEL, EACH IS PRINT • 65 C.C.C. (2d) 193 • PRINT • 1999 CanLII 3822 (ON C.A.) • ELECTRONIC • [2009] O.J. No. 3909 • NEUTRAL

  15. Looking up Cases by Citation • Use shortest possible route • Citation is the UNIQUE identifier for the case • Note that we include years in SQUARE brackets, but not those in ROUND brackets! • Name is helpful, but could be applied to more than one case • If you have the citation, use it without the name • Many databases offer shortcuts • E.g. don’t need to enter punctuation or spaces

  16. Locating by citation – what do you type?? • R. v. Harper, [1982] A.C.S. no 108 • R. v. Harper, 133 D.L.R. (3d) 546 • R. v. Harper, (1982), 40 N.R. 255 • R. v. Harper, 65 C.C.C. (2d) 193 • R. v. Harper, 7 W.C.B. 177 (SCC)

  17. Locating by citation – answers • 1982acsno108 • 133dlr3d546 • 40nr255 • 65ccc2d193 • 7wcb177 • And, incidentally, 5 D.L.R. (4th) 255 would be: 5dlr4th255

  18. Relationships Between Cases • A story….

  19. Walt has a grow-op in his house. Acting on a tip, the RCMP fly over his house in an airplane equipped with a Forward Looking Infra-Red ("FLIR") camera to detect the heat emanating from the house. On the basis of the FLIR readings, and other tips, the RCMP get a search warrant and find both marijuana and guns in Walt’s house – he is charged with various drug and weapons offences.

  20. Trial A: Walt is found guilty and convicted. Ontario Superior Court, Thomson J (oral reasons only – no case report)

  21. Trial B: Walt appeals • Fly-over with FLIR camera violated his right to be free fromunreasonable search and seizure guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms. • The court agrees and Walt is released. • R. v. Tessling, 63 O.R. (3d) 1.

  22. Trial C: The Crown isn’t going to give up • Case moves to Supreme Court. • Walt’s right to privacy does not extend to patterns of heat distribution on the external surfaces of his house. FLIR heat profile did not expose any intimate details of Walt’s life, information about his core biographical data, and therefore his constitutional rights were not violated, and he is guilty as originally charged. R. v. Tessling, [2004] 3 S.C.R. 432.

  23. Consider… • What is the relationship between these two cases? • R. v. Tessling, 63 O.R. (3d) 1. • R. v. Tessling, [2004] 3 S.C.R. 432.

  24. Judicial History • First step in “Noting Up” • Tells the “story” of how the case proceeded through the court system • Each decision is UNIQUE and represents a DIFFERENT HEARING but includes the same parties • If you don’t find out judicial history, the “story” of your case is incomplete!

  25. Judicial Consideration • Second step in “Noting Up” • Tells how courts have treated your judge’s decision • Often referred to as • Citing references (n) • Cases citing (n) • Some sources will offer not only a list of cases, but HOW each case treated your decision

  26. Let’s Note up Together… • Use Quicklaw, LawSource or CanLii (your choice) • Find this case: • R. v. Tessling, [2004] 3 S.C.R. 432 • Note it up • KeyCite (LawSource) • QuickCite (Quicklaw) • “Cited by” (CanLii)

  27. Analyzing the Law • Case Brief • Legal Memorandum

  28. Legal Memorandum, Case Brief • Legal Memo • Identify facts, issues of client situation • Find relevant law • Apply law and determine conclusion • Case Brief • Identify key elements of a case • Succinct • All information comes from the case itself

  29. Situation to follow through

  30. Case Situation • First thing we do: • Facts – relevant ones • Issues – question or “whether” statement • Second thing we do: • Background – secondary sources • Textbooks • Journal Articles • Commentary • Words and Phrases, Dictionaries

  31. Next, we look for Statutes • Statutes take precedence • Cases interpret statutes • Parliamentary authority

  32. Then, we look for Cases • How law has been interpreted • Look for similar fact patters • Look for similar legal issues

  33. How do we find what Statute applies? • Legal Encyclopedia • Canadian Encyclopedic Digest • Halsbury’s Laws of Canada (Quicklaw) • Secondary sources may supply this! • Indexes in Statutes volumes • Last resort is to keyword search • CanLII, E-laws, Justice Canada, Quicklaw

  34. Statutes Sources • Revised Statutes of Canada • Revised Statutes of Ontario • Statutes of Canada • Statutes of Ontario • Online Consolidated Law • Quicklaw • CanLII • Justice Canada • E-laws • Annotated Acts or Looseleafs

  35. What is it? • R.S.O. 1990, c. E.14. • R.S.C. 1985, c. E-2.  • S.O. 1991, c. 17. • O. Reg. 45/91

  36. Other types of citations • R.S.O. 1990, c. E.14 • Revised Statute (Ontario) • R.S.C. 1985, c. E-2  • Revised Statute (Canada) • S.O. 1991, c. 17 • Annual Statute (Ontario) • O. Reg. 45/91 • Regulation (Ontario)

  37. Updating Law • Table of Public Statutes • In print volumes • Online – E-laws, Justice Canada • Canada Statute Citator • Ontario Statute Citator • Quicklaw • Point in time legislation search • See “all versions” of a statute section

  38. Finding Cases • Find a specific case • Quicklaw or online (covered previously) • Use print reporters • Find cases that cite a law • Find cases that cite another case • Find digests of cases • Search for cases • By keyword • By subject • By field searching

  39. Judicial Consideration • In their decisions, judges will “consider” a variety of “authorities” • Statutes (or sections of statutes) • Cases • Regulations • Rules • Books of authority • Words and phrases

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