Introduction to Legal Research: Primary Sources

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Introduction to Legal ResearchPrimary Sources

• Law Library
• Osgoode Hall Law School

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In this session you will learn

• How to find a statute or regulation by name or
  citation
• How to find statutes by subject
• How to note up a statute or regulation
• How to find a case by its name or citation
• How to find cases by subject
• How to note up a case

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What are the Primary Sources of law?

• Case law
• Courts
• Tribunals
• Statute law
• Statutes
• Regulations
• Parliamentary materials

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Why research primary sources?

• Legal research is one of the basic skills
  essential to the practice of law
• Retrieval
• To obtain copies of cases or statutes
• Discovery
• To find the law on a specific topic or issue
• Analysis and interpretation
• To determine what the law says or means

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Where to start?

• Always begin your legal research with secondary
  sources
• Never begin your legal research with primary
  sources
• Primary sources are the raw law secondary
  sources assemble and analyze the relevant primary
  sources into a coherent, explained whole

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???

• RSC 1985, c. C-46
• RSO 1990, c. S. 5
• SC 1991, c. 46
• SO 1998, c. 19

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Citation of Statutes

• Revised Statutes
• All laws in force at the date of the revision are
  cited to their chapter number in the revision.
• Criminal Code, RSC 1985, c. C-46
• RSC Revised Statutes of Canada
• Securities Act, RSO 1990, c. S. 5
• RSO Revised Statutes of Ontario
• Annual (Sessional) Statutes
• All laws published subsequent to the last
  revision are cited to the annual statute volume
  for the year in which the law was passed.
• Bank Act, SC 1991, c. 46
• SC Statutes of Canada
• Condominium Act, 1998, SO 1997, c. 19
• SO Statutes of Ontario
• Continuing Consolidation
• All laws are now published and updated online in
  real-time, but retain a citation to the printed
  version

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Publication of Statutes

• Annual (Sessional) Statutes
• All statutes published in a year collected
  chronologically into one volume
• Revised Statutes
• Periodic revision (i.e., consolidation) of all
  statutes in force at a given date
• Supersedes annual/sessional statutes
• Organized alphabetically by title
• Continuing revision
• No Canadian jurisdiction will ever again publish
  (in print) a revision of its statutes
• Online version is now a continuing consolidation
  and (in some jurisdictions) official

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Legislative Process

• How are laws Made? from Bill to Law
• House of Commons
• First reading
• Ministers comments House debates (Hansard)
• Second reading ? Committee stage
• Committee Debates
• Third reading
• First published in the Canada Gazette III, then
  in the Annual Statutes
• The same again in the Senate (3 readings)
• If amended, the bill goes back to the House and
  starts again with a first reading.
• Royal Assent
• Coming-into-force
• Proclamations/Orders in Council Canada Gazette
  I
• Copies of all bills, etc., are available on the
  web (Canada 1994, Ontario 1995)
• Federal LEGISinfo Ontario Bills Lawmaking

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Finding Statutes

• To find statutes by title
• Justice Laws, Ontario e-Laws (and other
  provincial sites)
• CanLII all provide alphabetical/browse list of
  statutes
• To find statutes on a specific topic
• Online
• do an online search in the full-text legislation
  databases
• Free CanLII, Justice Laws, Ontario e-Laws,
  Canada/Ontario Statute Service
• Pay Lexis/QL, WLeC
• Print
• Canadian Encyclopedic Digest (legal
  encyclopedia)
• Topical looseleaf services
• Find a text on the topic

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Updating Statutes

• Statutes and regulations are frequently amended,
  so they must be updated
• Online versions are current -- but currency of
  online services varies
• Check for the currency statement
• Justice Laws, e-Laws, and pay services tend to be
  current to within 2-7 days.
• Sources (online) -- Osgoode Library Website
• Justice Laws (Dept. of Justice Canada)
• Ontario e-Laws
• CanLII
• Canada Statute Service/Ontario Citator Service
• Lexis/Quicklaw, WestlaweCarswell

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Statute History

• Securities Act, RSO 1990, c. S. 5 (excerpt, from
  e-Laws)
• Non-application of certain Acts
• 3.12  The Corporations Act and the
  Corporations Information Act do not apply with
  respect to the Commission. 1997, c. 10, s. 37.
• Financial Disclosure Advisory Board
• 4.  (1)  The Financial Disclosure Advisory
  Board is continued under the name Financial
  Disclosure Advisory Board in English and Conseil
  consultatif sur la divulgation des renseignements
  de nature financière in French. R.S.O. 1990,
  c. S.5, s. 4 (1).
• Composition of the Board
• (2)  The Board shall be composed of not more
  than five members, all of whom are appointed by
  the Minister. 2002, c. 18, Sched. H, s. 6 (1).
• Chair
• (3)  The Commission may designate a member
  of the Board to be its chair. 2002, c. 18,
  Sched. H, s. 6 (1).
• Meetings
• (4)  The Board shall meet at the call of the
  Commission. R.S.O. 1990, c. S.5, s. 4 (4).
• Duties
• (5)  The Board shall, when requested by the
  Commission, consult with and advise the
  Commission concerning the financial disclosure
  requirements of Ontario securities law. R.S.O.
  1990, c. S.5, s. 4 (5) 1994, c. 11, s. 352.
• (6)  REPEALED 2002, c. 18, Sched. H,
  s. 6 (2).

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Statute History (contd)

• Online sources provide a statutes history only
  since the latest revision (RSC 1985 RSO 1990)
• Online services now provide point in time
  full-text versions of statutes, but only recent
  history (Justice Laws 2003, e-Laws 2004)
• For earlier history, youll have to go to print
  sources
• Print versions of the statutes in the revised and
  annual volumes
• Canada/Ontario Statute Citators (in library)
• Table of Public Statutes and Responsible
  Ministers
• Available in print in the library and on the
  Justice Laws site (PDF)
• Canada/Ontario Statute Citators

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Noting Up Statutes

• Statutes are considered and interpreted by the
  courts it is essential to find cases that
  interpret a statute or statute section
• Online
• KeyCite Canada on WestlaweCarswell
• New statute citator on Lexis Quicklaw
• or, do a full-text search of cases online
• Print
• Statutes Judicially Considered (Carswell)
• Canada/Ontario Statute Citator Service (Canada
  Law Book)
• Commercially-published annotated acts
• But Online is much faster, easier and
  comprehensive

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Regulations

• Authority delegated by Parliament to government
  minister or department to enact regulations
• Terminology Regulations Delegated legislation
  Administrative/regulatory enactments
  Statutory Orders/Instruments
• How is a Regulation Made?
• Proposed Regulation published in Canada Gazette I
• Period for Comment
• Final Regulation published in Canada Gazette II

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Citation of Regulations

• Regulations are published serially in the
  biweekly Canada Gazette II and Ontario Gazette
• Cost of Borrowing (Banks) Regulations, SOR
  2001-101 (the 101st statutory order and
  regulation registered in 2001)
• Pharmacy Act General Regulation, O. Reg. 202/94
  (the 202nd Ontario regulation registered in
  1994)
• Like statutes, regulations were periodically
  consolidated in the revised regulations
• Publication of Statutes Regulations, CRC 1978, c.
  1367 (CRC Consolidated Regulations of Canada)
• Grants for Public Libraries Regulation, RRO 1990,
  Reg. 976 (RRO Revised Regulations of Ontario)
• Like statutes, all regulations are now
  continually consolidated and available online
  (Justice Laws, e-Laws, CanLII)

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Researching Regulations

• To find a regulation by name
• You must first know the name of the enabling
  act (e.g., Patent Act, Municipal Act)
• Justice Laws, e-Laws (and other provincial
  sites), CanLII all provide alphabetical listings
  of statutes, which include links to related
  regulations
• Justice Laws provides an alphabetical list of
  regulations by name
• Consolidated Index of Statutory Instruments
• Available in print or online (Canada Gazette
  site), with 2 indexes alphabetical by name of
  regulation and by name of enabling statute
• To find regulations by topic
• Same as statutes

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Case Law

• Precedent and stare decisis
• In common law legal systems, a precedent is a
  judicial decision that establishes a legal
  principle or rule that a court or other judicial
  body follows when deciding subsequent cases with
  similar issues or facts
• Stare decisis to stand by the decision
  principle of the common law requiring judges to
  apply previous binding decisions of their own
  court or any higher court
• Precedent can be binding or persuasive
• Determined by jurisdiction and court level
• E.g., Ontario Superior Court is bound by the
  decisions of the Ontario Court of Appeal and of
  the federal courts, but can be persuaded (but
  is not bound) by decisions of other courts
  (Canadian, Commonwealth, US)

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Citation of Cases

• A form of bibiliographic reference and legal
  shorthand that also imparts meaning
• MacDonald Estate v Martin (1990), 1990 3 S.C.R.
  1235, 121 N.R. 1, 77 D.L.R. (4th) 249, 1991 1
  W.W.R. 705, 70 Man. R. (2d) 241, 48 C.P.C. (2d)
  113, 285 W.A.C. 241, J.E. 91-85, 1990 CarswellMan
  384, 1990 S.C.J. No. 41 (SCC May 10, 1990)
• McGill Guide Canadian Guide to Uniform Legal
  Citation, 6th ed. Toronto Thomson Carswell,
  2006. KF 245 C34 2006 (Reserve Collection)
• Neutral citation
• A vendor-neutral system of uniform case
  citation to be used in preference to all others
  E.g. 2001 SCC 1 in citation list above the
  first decision rendered by the Supreme Court of
  Canada in 2001

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Reports of Cases

• Report Decision Judgment Opinion
• Decisions can be
• Reported (selective, edited and published in
  print) or Unreported (not published, available
  online)
• The fact that a case has been reported lends it
  an instant, objective authority
• Law reports (i.e., published) can be
• Official (e.g., SCR), Semi-official (e.g., OR),
  or Unofficial (e.g., BLR)
• Court reporters (e.g., SCR, NR, OAC), national
  reporters (DLR), regional (WWR), provincial (BCR,
  OR) or topical (BLR, CR, RPR)

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Headnotes of Cases

• In reported cases, the text of the judgment is
  preceded by headnotes, prepared by legal
  editors, containing
• Catchwords (legal concepts)
• Digest or abstract of the facts, issues and
  holdings
• List of all authorities considered in making the
  decision (cases, statutes, secondary sources,
  words and phrases)
• List of counsel appearing on the file
• Unreported cases, too, now usually include at
  least catchwords, which are computer-generated
• NB The headnotes are not the decision! Do not
  depend on them! You must read the decision to
  determine what the judge is saying!

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Finding Cases by Citation

• If you have the citation for a case, you can
• Go to the library and get it from the published
  law reports (reported cases only) or
• Logon!
• BestCase, CanLII, Lexis/QL, WLeC and other
  services all have a Find by Citation feature,
  which will retrieve the case
• Again, online is so much easier!

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Finding Cases by Name

• If you know the name of a case but not its
  citation, you can find it
• In print
• Table of Cases volumes of The Canadian Abridgment
  will provide you with the citation then you can
  look it up in the printed reports (reported cases
  only)
• Online
• BestCase, CanLII, Lexis/QL, WLeC all have a Find
  by Name feature, which will retrieve the case
• Online is so much easier and faster!

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History of Cases

• If you plan to depend on a case as precedent, you
  must first determine if it is still good law. Has
  it been reversed or otherwise qualified on
  appeal?
• The history of a case can be found in print
  sources . . .
• Cases Judicially Considered (Carswell)
• . . . or online
• Quickcite (Lexis/QL), Keycite (WLeC), CanLII
• . . . but online is so much faster and easier!

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Noting Up Cases

• After determining the history, you must note up
  the case to see how it has been considered in
  subsequent cases.
• Has it been followed, varied, distinguished,
  considered, mentioned? How frequently?
• A case can be noted up in print sources . . .
• Cases Judicially Considered (Carswell)
• . . . or online
• Quickcite (Lexis/QL), Keycite (WLeC), CanLII
• . . . but online is so much faster and easier!
• NB History Noting-up are usually one and the
  same step.

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Researching Case Law Print

• Legal Encyclopedias - Canada
• Canadian Encyclopedic Digest 3d (Carswell)
• Available in both Ontario and Western editions
• Also available online (WLeC)
• As with any encyclopedia, go to the topic you
  want (e.g., Torts or Negligence) consult the
  table of contents for each topic for the subject
  breakdown
• Or, if your topic isnt that broad or you are
  uncertain, consult the index volume
• You will find a textual overview and analysis of
  the law, with reference to all cases and statutes
  pertinent to each specific point of law.
• Online, you can either browse the table of
  contents or run a full-text search for keywords

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Researching Case Law Print

• Legal Encyclopedias - Canada
• Halsburys Laws of Canada (Lexis/Butterworths)
• Also available online (Lexis/Quicklaw)
• Still being published, so all topics not yet
  covered
• As with any encyclopedia, go to the topic you
  want (e.g., Torts or Negligence) consult the
  table of contents for each topic for the subject
  breakdown or, consult the index volume, which
  will refer you to appropriate topics
• You will find a textual overview and analysis of
  the law, with reference to all cases and statutes
  pertinent to each specific point of law.
• Online, you can either browse the table of
  contents or run a full-text search for specific
  keywords.

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Researching Case Law Print

• Legal Encyclopedias Other Jurisdictions
• United States
• American Jurisprudence 2d (AmJur 2d)
• Corpus Juris Secundum (CJS)
• Both also available online (Westlaw)
• England
• Halsburys Laws of England
• Australia
• Halsburys Laws of Australia

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Researching Case Law Print

• Legal Digests
• The Canadian Abridgment 3d
• Also available online (WLeC)
• Contains digests of all Canadian cases, reported
  and unreported, organized by topic
• Each topic and subtopic has a key number, e.g.,
  Barristers Solicitors IV.4.c.i. Digests of
  all cases that consider that topic are collected
  under that key number
• Or, if your topic isnt that broad, consult the
  Key Research Guide volume, which will refer
  you to the specific key number for any topic.
• Online, you can browse the table of contents or
  run a full-text search for either a key number or
  keywords.

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Researching Case Law Online

• Run a full-text search for specific legal terms
  in any of the online services
• BestCase, CanLII, Lexis/Quicklaw,
  WestlaweCarswell
• Construct your search and determine appropriate
  databases/jurisdictions before logging on
  consider all relevant terms of law and fact,
  synonyms, relationships, etc.