Acknowledgements...iii. Table of Contents...xi

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1 TABLE OF CONTENTS Acknowledgements...iii Preface...v Table of Contents...xi Chapter 1 Essential Background...1 Introduction...1 Primary and Secondary Sources of Law Defined...2 The Relative Weight of Primary Sources of Law...3 Legislation... 3 The Constitution... 3 Statutes... 3 Regulations... 4 Jurisprudence... 4 Judicial Decisions... 4 Decisions of Administrative Tribunals... 5 Role of Concurring and Dissenting Opinions... 5 Reception of English Law...5 Jurisdiction...6 Courts...7 Importance of Court Structure... 7 Supreme Court of Canada... 9 Judicial Committee of the Privy Council... 9 Federal Courts... 9 Provincial and Territorial Courts... 9 Superior Courts... 9 Inferior Courts How a Case Makes Its Way Through the Courts Prioritizing Primary and Secondary Sources in Your Research Flow Chart for Prioritizing the Law Appendix 1 Canadian Court System Alberta (1906 ) British Columbia (1867 ) Manitoba (1871 ) New Brunswick (1786 ) Newfoundland & Labrador (1729 ) xi

2 The Practical Guide to Canadian Legal Research Nova Scotia (1721 ) Northwest Territories (1875 ) Nunavut (1999 ) Ontario (1792 ) Prince Edward Island (1773 ) Que bec (1793 ) Saskatchewan (1906 ) Yukon (1898 ) Federal Courts (1875 ) Supreme Court of Canada (1875 ) Chapter 2 The Legal Research Process and Checklist...31 The Legal Research Process The Legal Research Checklist Function of the Checklist: Research Guide and Record of Your Research Path How is the Checklist Organized? Description of Issue(s) Research Tools Secondary Sources ) Legal Encyclopedias ) Book, Loose-leaf Services, Continuing Professional Development Materials, Law Reform Commission Reports, etc ) Journal Articles ) Legal Dictionaries and Words and Phrases ) Other Materials, Both Legal and Non-Legal ) Legal Memoranda and Other Legal Documents Primary Sources and Related Tools ) The Constitution ) Statutes ) Noting-up Statutes ) Regulations ) Noting-up Regulations ) Cases and Case Law Digests ) Noting-up Cases Foreign Jurisdictions Appendix 1 Research Checklist Chapter 3 Using Legal Research Databases...53 Legal Research Databases Advice for Using Legal Research Databases xii

3 Table of Contents Types of Legal Research Database Providers Commercial Vendors LexisNexis Quicklaw WestlawNext Canada Canada Law Book Products CCH Online and Canadian Legislative Pulse Maritime Law Book National Reporter System HeinOnline LegalTrac LLMC Digital Canadian Human Rights Reporter Online SSRN Government Providers Non-Profit Organizations Using Legal Research Databases Tips for Conducting Research Chapter 4 Legal Encyclopedias...67 What are Legal Encyclopedias? When are Encyclopedias Useful? The Canadian Encyclopedic Digest How is the CED Organized? Currency Accessing the Canadian Encyclopedic Digest on WestlawNext Canada Browsing Searching The Canadian Encyclopedic Digest in Print How to Use the Canadian Encyclopedic Digest in Print Noting-up Halsbury s Laws of Canada How is Halsbury s Laws of Canada Organized? Currency Accessing Halsbury s Laws of Canada on LexisNexis Quicklaw Halsbury s Laws of Canada in Print How to Use Halsbury s Laws of Canada in Print Comparing Halsbury s Laws of Canada and the Canadian Encyclopedic Digest Halsbury s Laws of England (3rd) Canadian Converter xiii

4 The Practical Guide to Canadian Legal Research Chapter 5 The Canadian Abridgment The Canadian Abridgment Case Digests How to Do a Case Digest Search in Print Canadian Abridgment Digests WestlawNext Canada The Consolidated Table of Cases: Finding Cases by Name How to Find a Case in the Consolidated Table of Cases Consolidated Table of Cases WestlawNext Canada Words & Phrases Judicially Defined: Finding Cases Interpreting a Word or Phase Canadian Case Citations/KeyCite Canada: Finding the History and Judicial Treatment of a Case ( Noting-up ) When to use Canadian Case Citations How to Note-up a Case Using Canadian Case Citations on WestlawNext Canada: KeyCite Canada How to Access and View KeyCite Results Legislative Citators: Canadian Statute Citations, Regulations Judicially Considered, Rules Judicially Considered, KeyCite Canada When This Information is Useful How to Note-up a Statute, Rule or Regulation Noting-up Legislation on WestlawNext Canada: KeyCite Canada Canadian Current Law Legislation The Index to Canadian Legal Literature: Finding Legal Literature WestlawNext Canada and LexisNexis Quicklaw Chapter 6 Books and Loose-leaf Services...99 Books Treatises When is a Treatise Useful? Introductory Texts and Textbooks Casebooks Nutshells Practitioners Guides Forms and Precedents Loose-leaf Services What is a Loose-leaf Service? How to Use a Loose-leaf Service xiv

5 Table of Contents Forms and Precedents Print Products Electronic Sources Chapter 7 Legal Dictionaries/Words and Phrases What are Legal Dictionaries and Words and Phrases Services? Dictionaries or Words and Phrases? Dictionaries Words and Phrases Chapter 8 Legal Periodicals What are Periodicals? When are Periodicals Useful? Print Versus Online Periodical Indexes Full-text Periodicals Periodical Lists and Other Tools How to Find Periodical Articles Electronically and in Print Electronically In Print How to Find Case Comments Electronically and in Print When You Know the Case Name Electronically When You Know the Case Name in Print Commentary on Supreme Court of Canada Decisions Determining Which Database Contains Which Periodicals in Full-text Chapter 9 Continuing Professional Development Materials What are Continuing Professional Development Materials? When are CPD Conference and Seminar Materials Useful? How to Find Conference and Seminar Materials Websites Indexes Canadian Law Symposia Index Index to Canadian Legal Literature Law Society of Upper Canada: Annotated Document Series Chapter 10 Law Reform Commission Materials What are Law Reform Commission Materials? xv

6 The Practical Guide to Canadian Legal Research What Materials do Law Reform Commissions Produce? Why Use Law Reform Commission Reports? How to Find Law Reform Commission Reports Appendix 1 Links to Canadian and Select Foreign Law Reform Commissions and Institutes Canadian Foreign Chapter 11 Government Documents What are Government Documents? Government Publications Depository Programs Queen s Printer Federal and Provincial Queen s Printers: Contact Information Types of Government Documents ) Parliamentary Publications Committee Publications Gazette Hansard Votes and Proceedings (Journals) Order Paper and Notice Paper Projected Order of Business Status of House Business ) Fiscal Documents ) Statistics Canada ) Commissions of Inquiry Chapter 12 Researching Case Law Anatomy of a Decision Sources of Case Law Law Reports Types of Law Reports How are Law Reports Organized? Unreported Decisions When are Unreported Decisions Useful? Strategies and Research Tools for Researching Case Law Books and Loose-leafs; Encyclopedias Journals and Continuing Professional Development Materials Case Law Digests xvi

7 Table of Contents Law Report Indexes Online Databases Current Awareness Tools for Case Law Noting-up Canadian Case Law Why Note-up? Canadian Case Law Citators Checking for Canadian Consideration of U.K. and U.S. Cases Chapter 13 Constitutional Research Canada s Constitutional History Canada s Constitution Today Canada s Constitution Federalism Canada s Constitution Rights and Freedoms Canada s Constitution Rights of Aboriginal Peoples Canada s Constitution Interpretation Chapter 14 Researching Statutes What are Statutes? Chapter Number Long and Short Title Sections and subsections Margin Notes or Table of Contents Headings, Parts, and Divisions French and English Versions Types of Acts How are Statutes Created and Amended? Types of Bills How a Bill Becomes Law When is a Statute in Force? Coming into Force on a Future Date Coming into Force on a Retrospective Date Coming into Force on Royal Assent Proclamation How are Statutes Published? Sessional or Annual Volumes: Print Revised Statutes: Print Loose-leaf Format: Print Commercial Services: Print Online Publications Researching Statutes xvii

8 The Practical Guide to Canadian Legal Research Step One: How to Determine Whether a Statute Exists Secondary Sources Web-based Legal Research Websites and Databases Table of Public Statutes Step Two: How to Locate Statutes Web-based Legal Research Websites and Databases Print Volumes of Statutes Gazette Loose-leaf Services and Office Consolidations Step Three: Determine if the Statute is in Force Step Four: Updating Your Statutes Federal Statutes Official/Authoritative Unofficial British Columbia Statutes Official/Authoritative Unofficial Nova Scotia Statutes Official/Authoritative Unofficial Ontario Statutes Official/Authoritative Unofficial Step Five: Judicial Consideration and Statutory Interpretation Judicial Consideration Tracing the History of a Statute or Statutory Section Interpretation Acts Rules of Statutory Interpretation Words and Phrases Hansard Appendix 1 Links to Legislation, Bills, Hansards, and Other Legislative and Government Documents for Each Jurisdiction in Canada Canada Alberta British Columbia Manitoba New Brunswick Newfoundland and Labrador Northwest Territories xviii

9 Table of Contents Nova Scotia Nunavut Ontario Prince Edward Island Que bec Saskatchewan Yukon Chapter 15 Researching Regulations What are Regulations? How are Regulations Made? How are Regulations Published? When is a Regulation in Force? Researching Regulations Step One: How to Determine Whether a Regulation Exists Secondary Sources Web-based Legal Research Websites and Databases Table of Regulations Step Two: How to Locate Regulations Web-based Legal Research Websites and Databases Annual and Revised Regulations Gazette Loose-leaf Version of Regulations Step Three: Determine if the Regulation is in Force Step Four: Updating Regulations Federal Regulations Official/Authoritative Unofficial British Columbia Regulations Official/Authoritative Unofficial Nova Scotia Regulations Official/Authoritative Unofficial Ontario Regulations Official/Authoritative Unofficial Step Five: Judicial Consideration and Interpreting Regulations xix

10 The Practical Guide to Canadian Legal Research Chapter 16 Other Legal Research Tools Legal Blogs and Wikis Law Firm Websites Government Websites Government Directories Internal Knowledge Management Databases Legal Publisher Mailing Lists, Websites and RSS Feeds Research and Resources from Other Disciplines Newspapers Chapter 17 Québec Legal Research Approaching Québec Legal Research History The Civil Code of Québec The Civil Code of Québec Finding the Current Civil Code of Québec Statutes and Regulations Bills Parliament Case Law Secondary Sources Recommended Reading Chapter 18 English Legal Research Introduction Approaching English Legal Research Constitution The English Court Structure Judicial Committee of the Privy Council The House of Lords Supreme Court of the United Kingdom Court of Appeal High Court of Justice and the Crown Court Magistrates Court County Court The European Union The Court of Justice of the European Union (CJEU) The Council of Europe and the European Court of Human Rights English Case Law xx

11 Table of Contents Pre-1865 Cases Year Books Nominate Reports Law Reports since Other Reporters United Kingdom Case Law Online Citation and Neutral Citation Citators (Noting-up) Legislation Bills Legislation Print and Online Legislation and Related Information Online Legislation and Related Information in Print Citation Regnal Years Chart Delegated Legislation ) Statutory Instruments ) Legislative and Regulatory Reform Act ) Orders in Council/Orders of Council ) By-laws Hansard and other Parliamentary Publications Command Papers Secondary Sources Books Legal Periodicals Index to Legal Citations and Abbreviations Legal Dictionaries and Words and Phrases Encyclopedias Legal Encyclopedias Halsbury s Laws of England (5th Edition) The Digest Current Law Recommended Reading Appendix 1 Nominate Reports, Abbreviations and Locations in the English Reports Chapter 19 American Legal Research Introduction Approaching American Legal Research Constitutions Federal State xxi

12 The Practical Guide to Canadian Legal Research The American Court Structure Federal and State Court Systems Federal Courts Administrative Agencies State Courts State Administrative Agencies Case Law Law Reports (print) Citation Finding Case Law Online Noting-up American Case Law Legislation Federal Bills Publication of Enacted Laws Slip Laws Session Laws Codified Law How to Search the Code Popular Names Federal Regulations State Bills and Statutes Treaties Secondary Sources Books Legal Periodicals Legal Dictionaries and Words and Phrases Legal Encyclopedias Corpus Juris Secundum American Jurisprudence 2d American Jurisprudence Proof of Facts 2d American Law Reports ( ALR ) Restatements of the Law Digests American Digest System a) Descriptive Word Approach b) Topic Approach c) Case Name Approach Other Digests Uniform Laws and Model Acts Recommended Reading xxii

13 Table of Contents Chapter 20 Australia and New Zealand Legal Research Introduction Approaching Legal Research for Australia and New Zealand Constitutions Australia New Zealand Courts Australia Federal Courts State and Territory Courts New Zealand Case Law Print and Online Citation Legislation Bills Statutes Delegated or Subordinate Legislation Treaties Secondary Sources Books Legal Periodicals Legal Encyclopedias Legal Dictionaries and Words and Phrases Law Reform Digests Case Citators Australian Current Law and Butterworths Current Law Recommended Reading Chapter 21 International and Foreign Legal Research International Law Defining Public International Law Treaties Guides to Treaty Research Judicial Decisions / International Jurisprudence Public International Law Secondary Sources Treatises Encyclopedias Periodicals xxiii

14 The Practical Guide to Canadian Legal Research Research Guides Researching Private International Law Foreign Law Chapter 22 Guidelines for Writing: Legal Essays, Case Comments, and Legal Memoranda General Comments Writing Style Language Organization Use of Gender-Neutral Language Citing References Legal Essays Case Comments Legal Memoranda Organization Heading Introduction Facts Issues Brief Conclusion Analysis Restate Conclusion List of Authorities/Bibliography Appendix 1 A Sample Legal Memorandum Introduction Facts Issues Conclusion Analysis Bibliography Appendix 2 List of Legal Writing Texts Canadian Sources Foreign Sources Selective Topical Bibliography Contents Index xxiv

15 1 ESSENTIAL BACKGROUND INTRODUCTION The purpose of this book is to teach legal research how and when to use the wide range of research tools that are available to you. With the large number of free and easy-to-find legal materials on the internet, it is tempting to think that legal research can be successfully conducted using only free online sources. In this book we describe the tools you will need to master legal research both free and commercial online materials, as well as the print materials that continue to be essential in conducting accurate and efficient research. Before beginning your actual research, there are certain basics you need to know about the nature of law and the legal system to be able to discriminate between law that is binding and law that is merely persuasive. The common law is based on the principle of stare decisis 1 which requires judges to follow the prior decisions of specific courts. These earlier cases serve as precedent; they are binding and must be followed by the courts. While some cases are binding, others may be considered persuasive. Law that is persuasive might influence judicial decisions, but courts are not required to follow these decisions. For a researcher to be successful, it is not enough to simply know how to locate cases, statutes, and treatises on a topic. The researcher must be able to ascertain what law is binding or persuasive in his or her jurisdiction. In addition, when the case law and the wording of a statute on a given topic seem to be in conflict, the researcher must be able to determine which takes precedence. This chapter aims to provide researchers with the background they need to assess when law is binding and when law is merely persuasive. The following topics will be examined: 1. What is the difference between primary and secondary sources of law? 2. What weight is attributed to the various types of primary sources of law? 3. How does jurisdiction determine whether or not law is binding? 4. How does the court structure determine whether or not law is binding? 1 Susan Ellis Wild, Webster s New World Law Dictionary (Hoboken, NJ : Wiley, 2006) s.v. Stare decisis n. Latin. To stand by what was decided. The doctrine of common law under which courts follow the earlier judicial decisions made on the same points of litigation; following precedent. 1