CANADIAN LEGAL RESEARCH
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  • Only one more week of class. Then, you’ll have time to work on the research plan. Please come to the lecture next Monday with any questions that you might have (e.g. start thinking of some concerns now & write them down). Westlaw/Lexis Advanced Certification.
  • Canada is a federation consisting of 10 provinces and 2 territories for which the federal government has direct authority, although power to legislate in some areas has been delegated to the Territorial Councils. Both the federal Parliament and the provincial legislatures derive their power from the Constitution. Canadian Courts can review/determine the validity of legislation that appears to exceed the limits of legislative authority granted.
  • The Canadian Court system is comprised of both federal and provincial courts (NOTE: it is not a dual system like the U.S., though….reiterate from previous slide). Provinces are responsible for the administration of justice, organization of their court systems, and appointment of judges to lower courts. The Supreme Court of Canada is the final court of appeal for both federal and provincial courts, in all civil and criminal matters (2 divisions of the Federal Court of Canada = Federal Court of Appeal / Trial Division). Provincial court systems vary in structure and name (examine structure of each before researching), although most have a Court of Appeal and various lower courts, including a superior trial court of general jurisdiction. REMEMBER: When researching foreign systems, be sure to have a thorough understanding of the Court system / structure.
  • No systematic reporting system. Thus, the reporting system has much duplication in coverage by competing publishers. Also, there is considerable time lag b/n decisions and their reporting (4-10 months). The Canadian reports of Supreme Court decisions began publication in 1876, and are now known as the Canada Supreme Court Reports (Archives-KE140.R46). From 1923-1969, the set was called Canada Law Reports: Supreme Court of Canada (Archives-KE132.5.J63). Decisions of the Federal Court have been published since 1971 in the official Canada Federal Court Reports (don’t have at Marquette). A one-volume Consolidated Index (1971-1984) was also published (don’t have). Since 1974, there is also an unofficial reporter for federal decisions, National Reporter (Maritime Law Book Company), which includes all judgments of the Supreme Court of Canada and the Federal Court of Appeal (has headnotes that are assigned a broad topic and number similar to the West digest system). Both federal and provincial decisions are published in the Dominion Law Reports (Canada Law Book)(KE132.D66—full set 1-4 th series w/index/annotations). Advance sheets to this series are published weekly. Useful features: cumulative tables of cases, cumulative indexes, and an annotation service. Only D.L.R. cases, listed by vol./page, are annotated, but the range of citing cases is not limited to those in the D.L.R. [Lexis/Westlaw also have Canadian caselaw in Int’l sections---see coverage printout].
  • Reports are published for each of the Canadian provinces (Quebec/Ontario have had continuous reporting since the nineteenth century). The Provincial Reports are published by various publishers, each following its own style of indexing and digesting of cases (some similarities w/federal reporting if publisher is the same, e.g. National Reporter ) (see MarqCat for call nos. of provincial Canadian reports—all but Ontario Reports are in Archives). Two other reporters also provide multi-provincial coverage: (1) Atlantic Provinces Reports (Maritime Law Book, 1975-date) (Marquette doesn’t have); (2) Western Weekly Reports (Carswell, 1912-date) (Law Archives KE156.W49). As in the U.S./England, Canada also has numerous subject case reporters covering specific legal fields ( e.g. Canadian Criminal Cases ). The Virtual Canadian Legal Information Institute has links to the websites of the Federal Court of Canada, Supreme Court of Canada, and Provincial Courts [give a demo here to show them the organization of the website and contents]. (NOTE: also has administrative law).
  • Citation variances: some Canadian reports follow the English method of assigning volumes by year and by volume within that year, while others are simply numbered by volume in the American fashion. There are many case-finding tools published in Canada—most accompany specific reports or are exclusive to specific jurisdictions. The most comprehensive case-finding publication in Canada is the Canadian Abridgment, 2d (Carswell, 1966-date)(KE173.A1.C36). This digests virtually every reported decision from both federal and provincial courts (except Quebec). See also the “Guide to Using the Canadian Abridgment” (KE173.A1.G83)—this is a very helpful tool for gaining understanding about the set. The Gen’l Index provides subject access much like our digesting system of the Gen’l Index/Popular Names Tables. Access to the Abridgment is through the Key and General Index looseleaf volumes. The General Index contains entries organized by title rather than in one alphabetical sequence. Other Research Features of the Canadian Abridgment: Case Table, Consolidated Tables of Cases, Digest References, Words and Phrases volume, Index to Canadian Legal Literature (KE173.A85.C362), Canadian Citations , Canadian Abridgment (updated quarterly by looseleaf supplements), and Canadian Current Law (published biweekly). Other Digesting Services in Canada: a) Dominion Report Service (CCH Canadian); b) All-Canada Weekly Summaries (1977-date); c) Supreme Court of Canada Reports Service; d) Butterworth’s Ontario Digest (1958-date).
  • 1) Until 1982, the primary source of Canadian constitutional law was the British North America Act, 30 & 31 Vict., ch. 3 (1867) (Great Britain created the Dominion of Canada). 2) In the Canada Act of 1982, ch. 11, the UK Parliament relinquished its legislative role in Canada’s affairs. The Constitution Act of 1982 was proclaimed into force on April 17, 1982. These documents are the basis of Canadian constitutional law ( includes : Charter of Rights and Freedoms, limited legislative power, Quebec recognized as a distinct society, Constitutional Amendment 1987 that provides for Quebec’s greater freedom). 3) Where to find the basic Canadian constitutional documents: Appendices of Revised Statutes of Canada. P.W. Hogg’s Constitutional Law of Canada, 2d (KE4219.H63 1997) is a leading treatise & is supplemented by the Meech Lake Constitutional Accord Annotated , which reprints major documents leading to the 1987 amendment. Also, the Canadian Charter of Rights Annotated (Canada Law Book) (KE4381.A6.C36) provides a section-by-section analysis of the Charter w/judicial interpretations.
  • 1. There is no subject codification of Canadian statutes similar to the United States Code . The Revised Statutes of the nation or of an individual province consists of acts arranged alphabetically / chronologically by title (revisions have had individual indexes for each act). New editions are published every 10-15 years, with amendments incorporated into parent acts and new acts added (NOTE: upon completion of a revision, it is brought into force by proclamation and supersedes the previous revision and intervening session laws. 2. The present version of the federal statutes is the Revised Statutes of Canada (KE89.1985) (proclaimed in force in Dec. 1988). Volumes 1-8 of the set consolidate statutes to December 31, 1984, with English and French texts side by side on each page. The Table of Concordances volume provides cross-references to the new revision from its predecessor, the Revised Statutes of Canada 1970, and subsequent session laws. The set is published in both bound and looseleaf format and is accompanied by an index. 3. As in most provincial revisions, chapters in the Revised Statutes are designated by letter and number. MUCH LIKE PROVINCIAL STATUTES.
  • 1. Canadian Acts of Parliament are published after the end of the parliamentary session or after each year in bound volumes, known as the Statutes of Canada (KE78.S72). Current acts are published during the course of the year in paperbound issues of the Canada Gazette Part III . 2. The “Table of Public Statutes” found in the Canada Gazette lists all acts and amendments since the latest revision and is a basic tool for updating statutory research. 3. Publication of provincial legislation follows the federal paradigm of sessional volumes and revisions, although revisions are often prepared on a more frequent basis. Several provinces issue revised statutes in looseleaf form, allowing for regular updating. 4. In every province, revised statutes are arranged alphabetically by act title and not codified like US statutes. 5. Like other provinces in Canada, Quebec publishes session laws and revised statutes (published in both French and English). NOTE: Quebec differs from the rest of Canadian law b/c its private law is governed by civil law tradition rather than common law. Quebec currently has two Civil Codes: Civil Code of Lower Canada & Civil Code of Quebec (KEQ214.5.A2 1992) (only parts have been adopted so far). The Civil Codes are enacted as part of the statutory law of the province, but they are not included in the Revised Statutes of Quebec (KEQ64.qu412.).
  •  A cumulative “Table of Public Statutes” in the Canada Gazette Part II lists all federal acts in the latest Revised Statutes , as well as more recent acts and earlier laws that remain in force but were not included in the Revised Statutes.  Statutory changes and interpretative cases can be found in the looseleaf Canada Statute Citator (Canada Law Book) (cites amendments, repeals, and reenactments and provides the text of amended sections). The Statutes Judicially Considered and Canadian Citations components of the Canadian Abridgment provide extensive references to cases citing both federal and provincial statutes. Canadian Citations coverage of statutes begins with a 1987 volume, and is kept current in looseleaf supplements and Canadian Current Law . Changes in provincial statutes since the latest revision can be found by consulting the “table of statutes” in each annual session laws volume. There are looseleaf statute citators for several individual provinces. E.g. British Columbia Statute Citator; Ontario Statute Citator; Statutes of Alberta Judicially Considered, Etc…) .
  • 1. Access to Canadian regulations is similar to the process for Canadian statutes (infrequently revised compilations and tables for finding subsequent chronologically published material). 2. Federal regulations in force and of general application are printed in the Consolidated Regulations of Canada (19-volume print set or available online at http://www. canlii .org/ca/ sta / - The Can.LII). The regulations are arranged alphabetically by enabling statute, and each is designated with an individual chapter number. There is a table of contents, but no index. Can do a sample search of the regulations, if time [e.g. endangered species] [e.g. disability & employment]. 3. Regulations amending or revoking those in the consolidation are found in biweekly issues of the Canada Gazette Part II (available online at http:// canadagazette . gc .ca/index-e.html ). Look at Gazette Part II / Recent Issues.
  • 1. In Canada Gazette Part II , there are two separate series: S.O.R. for statutory orders and regulations and S.I. for other statutory instruments. NOTE THIS DIFFERENCE IN CITATION & DOCUMENTATION for research. 2. The first step in Canadian federal regulatory research is to check the “Consolidated Index of Statutory Instruments” in the Canada Gazette Part II . This quarterly index lists all regulations by enabling statute that are in force at any time during the calendar year (references to Consolidated Regulations of Canada and Canada Gazette Part II ). A separate table listing regulations alphabetically by title provides cross-references to the main index ( note : no subject index). 3. Provincial regulations are published in official provincial gazettes, usually following the arrangement of the Canada Gazette Part II . Some provinces have consolidations of their regulations, and most are available online.
  • Dictionary is helpful for different “Canadian” terminology, e.g. “Lobster Shift” is the equivalent of the American “graveyard shift” (comparative analysis of terms). The Uniform Guide to Legal Citation was developed by the McGill University Law Review and has been adopted by several law reviews and courts in Canada. It provides citation information in both English and French. An Index devoted solely to Canadian journals. Authors: Yogis, John A. and Christies, Innis M. This guide was originally written with the first-year law student of Canada in mind. It gives a straight-forward, detailed information on sources, both primary and secondary, and contains citation rules.
  • **NOTE: some of the links on CANLII or LexUM might only be in French---be sure to find the English translations only for research (unless you are fluent in French). There are usually translations provided (denoted by a British flag). Comprehensive, One-stop page for Canadian legal resources [also Treaties / WTO / E-commerce, located under “Int’l Legal Resources]. Canadian Federal Constitution, Cases, Statutes and Regulations, as well as provincial. Comprehensive page of sources at the Fed’l and provincial level, as well as descriptions. A very detailed breakdown [including charts] of Fed’l & Provincial Law. A comprehensive tutorial on the Law of Canada & Legal Research, including research strategies for this jurisdiction.
  • LEXIS DEMONSTRATION: CASES = “All Supreme Ct. of Canada Decisions” / “Canada Fed’l Court Reports.” Terms & Connectors Search = HEADNOTES (abortion). [Run search in both – Fed’l Leg. Combined / Stat. & Regs.]. STATUTES = “Legislation”---- “Federal” ----search “Consolidated Statutes of Canada”. Terms & Connectors Search = TEXT (dissolution /1 corporation). REGULATIONS = “Legislation” -–- “Federal” –-- Search “Consolidated Regulations of Canada”. Terms & Connectors Search = TEXT (age & discrimination). Also, you can search the Martindale-Hubbell Int’l Law Digest = e.g. country (canada) & topic/subject ( ).
  • WESTLAW DEMONSTRATION: CASES – “Canadian Research Tab” ---- “Supreme Court of Canada & Privy Council”. FIELD SEARCH: TO (abortion). CASES --- Directory---Int’l/Worldwide----Canada----Cases----Fed’l Ct. of Canada. FIELD SEARCH: SU (“corporate dividends”). STATUTES---- “Canadian Federal Statutes”. FIELD SEARCH: TE (dissolution /3 corporation). REGULATIONS----- “Canadian Federal Regulations.” Terms & Connectors Search: corporation & “registration statement”.
  • A huge area----a class in itself!! NOW----An in-class exercise on topics in the Canadian Abridgment!!!

CANADIAN LEGAL RESEARCH Presentation Transcript

  • 1. CANADIAN LEGAL RESEARCH ALR : International Law February 16, 2004
  • 2. Introduction to Canadian Law:
    • Judicial system of (1) Provincial Courts and (2) Federal Courts.
    • Federal Court of Limited Jurisdiction.
    • Constitution / Statutes / Judicial Review.
    • A useful introduction to Canadian law and legal institutions is: G.L. Gall, The Canadian Legal System (KE444.G34.1995).
  • 3. Finding Canadian Caselaw:
    • Provinces are responsible for the administration of justice, organization of their court systems, and appointment of judges to lower courts.
    • Supreme Court of Canada (final court of appeal for fed’l/provincial courts – Criminal/Civil).
    • Provincial court systems vary in structure & name, although most have a Ct. of Appeal and various lower courts.
  • 4. Canadian Reporting System:
    • Canada has no systematic reporting system.
    • FIRST REPORTS: Canada Supreme Court Reports (Archives-KE140.R46); Canada Law Reports: Supreme Court of Canada (Archives-KE132.5.J63).
    • SINCE 1971: Canada Federal Court Reports; National Reporter; Dominion Law Reports (KE132.D66 - full set of 1 st -4 th series).
  • 5. Other Reporters:
    • Reports for each of the Canadian provinces.
    • Provincial Reports by various publishers.
    • Multi-provincial coverage , e.g. Atlantic Provinces Reports (1975-present); Western Weekly Reports (1912-present).
    • See also the Virtual Canadian Legal Information Institute ( LexUM) at http://www.lexum.umontreal.ca/index_en.html .
  • 6. Finding & Updating Cases at Marquette Law:
    • Citation variances.
    • Case-finding tools usually accompany specific reports.
    • Canadian Abridgment, 2d (most comprehensive,
    • 1966-present)(KE173.A1.C36).
    • Contents/Helpful Research Aids: General Index, Case Table, Digest references, Words & Phrases, Canadian Citations.
    • Other Digesting Services in Canada.
  • 7. Constitutional Law in Canada:
    • Until 1982, the primary source was the “British North America Act”, 30 & 31 Vict., ch. 3 (1867).
    • In the Canada Act of 1982, the UK Parliament relinquished its legislative role in Canada.
    • Basic Canadian Constitutional Documents [e.g. Canadian Charter of Rights Annotated…] .
  • 8. Statutory Research in Canada:
    • No Subject Codification of the Canadian statutes like the United States Code .
    • The present version of the federal statutes is the Revised Statutes of Canada (KE89.1985)(proclaimed in force in Dec.1988).
    • Chapters in the Revised Statutes are designated by letter and number.
  • 9. Statutory Research, continued…
    • Canadian Acts of Parliament are published at the end of the parliamentary session or after each year in bound volumes, known as the Statutes of Canada (KE78.S72).
    • Current Acts are published during the course of the year in issues of the Canada Gazette Part III.
    • Publication of provincial legislation follows the federal paradigm of sessional vols./revisions.
    • Quebec “caveats” for legal research.
  • 10. Updating Statutes in Canada:
    • A cumulative “Table of Public Statutes” in the Canada Gazette Part II lists all more recent acts and federal acts in the latest Revised Statutes .
    • Statutory changes and interpretative cases can be found in the looseleaf Canada Statute Citator .
    • The Statutes Judicially Considered and Canadian Citations components of the Canadian Abridgment provide extensive references to cases citing both federal and provincial statutes.
  • 11. Canadian Regulations:
    • Access to Canadian regulations is similar to the process for Canadian statutes.
    • Federal regulations in force and of gen’l application are printed in the Consolidated Regulations of Canada (19 vol. print set or available online- http://www.canlii.org/ca/sta/ ).
    • Regulations amending or revoking those in the consolidation are found in biweekly issues of the Canada Gazette Part II (available online- http://canadagazette.gc.ca/index-e.html ).
  • 12. Canadian Regulations, continued…
    • In Canada Gazette Part II , there are two separate series: “S.O.R.” for statutory order and regulations and “S.I.” for other statutory instruments.
    • The first step in Canadian federal regulatory research is to check the “Consolidated Index for Statutory Instruments” in the Canada Gazette Part II (quarterly index).
    • Provincial regulations are published in official provincial gazettes, usually following the arrangement of the Canada Gazette Part II.
  • 13. Secondary Legal Resources for Canadian Law at Marquette:
    • Dictionary of Canadian Law (Carswell)(Ref. KE183.D8).
    • Canadian Guide to Uniform Legal Citation (KE259.C36).
    • Index to Canadian Legal Periodical Literature (KE173.A85.C362).
    • Legal Writing and Research Manual (KE265.Y63.1988).
  • 14. Canadian Law on the Web:
    • LexUM (Univ. of Montreal Law Website): http://www.lexum.umontreal.ca/index_en.html .
    • Canadian Legal Information Institute (CANLII): http://www.canlii.org/ .
    • Louise Tsang’s “Overview of Sources of Canadian Law on the Web”: http://www.llrx.com/features/canadian2. htm .
    • “ Doing Legal Research in Canada”: http://www.llrx.com/features/ca. htm .
    • “ Best Guide to Canadian Legal Research”: http://legalresearch.org (a good tutorial).
  • 15. Lexis Databases for Canadian Law:
    • http://www.lexis.com/ .
    • Legal > Legal (excluding U.S.) > Canada.
    • Canadian Cases = Federal Courts, Provincial Reports, Law Reports, Digests, and Topical Categories.
    • Legislation & Regulations (Consolidated) = Federal, Alberta, British Columbia, Ontario, and Quebec.
    • Martindale-Hubbell Int’l Law Digest.
  • 16. Westlaw Databases for Canadian Law:
    • http://lawschool.westlaw.com .
    • “ Canadian Research” Tab = Case Law, Statutes, Regulations, Journals, and Treatises.
    • “ Directory” > “International/Worldwide Materials” > “Country Materials” > “Canada”.
    • Contents : Canadian Abridgment, Cases by Jurisdiction, Topic, or Carswell Law Reports, Topical or Federal Legislation, Rules, Statutes, and Legislation, Journals, and Treatises for Canadian legal research.
  • 17. Next Time:
    • Private International Law.
    • International Arbitration.