Legal Research

LEGAL RESEARCH

Prepared by Chris BurnsCriminology Liaison LibrarianKwantlen University College LibraryJune 2008

BY THE END OF THE CLASS YOU WILL: Know the difference between primary and

secondary legal resources Know the difference between the two types

of primary law: statutes and cases Learn about some tools to locate statutes

and cases Understand legal citations Know when to use secondary sources and

where to find them

PRIMARY VS. SECONDARY SOURCES Primary sources are “the law”. There are two

types: Statutes

Created by government Also called acts or legislation (eg. Tobacco Act) Each act may also have associated regulations which

lay out details of the administration of the act (also called subordinate legislation)

Case law Interpretations of laws by judges in courts Includes the long tradition of common law inherited

from Great Britain Sometimes called “judge-made law”

SECONDARY LEGAL SOURCES Secondary sources are research tools which

help you to find and understand primary laws.

Many of these are reference books which must be used in the library.

LEGAL DICTIONARIES These provide definitions for legal terms,

which are often in Latin Kwantlen Library has several Canadian

dictionaries Eg. Dictionary of Canadian Law [REF KE 183 D83

2004] Terms used in a statute are often defined in

the act itself, in a definitions section Quicklaw includes a database called Legal

Words & Phrases which cites legal cases that have clarified the meaning of a legal term

LEGAL ENCYCLOPEDIAS Summarize the current law on a wide range

of subjects in plain language

Very useful for a brief overview of an area of law

Often cite important legal cases on specific legal points

Example: Canadian Encyclopedic Digest (Western)

[REF KE 156 C373]

ANNOTATED STATUTES These reprint the full wording of a statute

and include examples and summaries of important legal cases which have addressed (judicially considered) specific sections of the Act

Usually updated frequently Examples:

Martin’s Annual Criminal Code [ REF KE 8804.9 M35]

Canadian Charter of Rights Annotated [ REF KE 4381 A6 C362]

BOOKS Books are often the best place to start your

research, especially if you haven’t chosen a specific topic yet

Can help you to get a better understanding of an area of law (without being overwhelmed) and guide you to relevant legal cases and additional useful sources

These are all listed in the library catalogue, and many can be borrowed

The series called “Essentials of Canadian Law” provides clear overviews of many topics

JOURNAL ARTICLES Articles in law review journals (such as UBC

Law Review) discuss areas of law and often specific cases (called ‘case comments’) in some depth

Often more up-to-date than other sources Kwantlen library has over 300 law journals in

print version and online You can search for articles on a specific case

or legal topic in several journal indexes (also called databases). See the library’s subject guide for law for suggested databases.http://www.kwantlen.ca/library/internet/law.html#journals

EXERCISE 1 Look up the definition of this term in one of

the print dictionaries, or Duhaime’s online dictionary

Stare decisis

STATUTES The first type of primary law

Both the federal and provincial governments have the power to make laws in specific areas.

Municipalities in BC have been delegated the authority by the Provincial government to create their own by-laws

REGULATIONS Most statutes will have accompanying

regulations; the statute will state who has the authority to make regulations

These are officially called “subordinate legislation” or “statutory instruments”; they have the force of law

They usually contain the nitty-gritty details involved in applying the act

WHO GOVERNS WHAT? The federal government has the power to

create laws on certain matters (such as banking), and each province can create its own laws on other matters (such as education). This is called the distribution of powers.

These powers are set out in the British North America Act of 1867 (now called the Constitution Act, 1867). section 91 lists the areas of federal jurisdiction Section 92 lists the areas of provincial

jurisdiction See

http://laws.justice.gc.ca/en/const/c1867_e.html#distribution

WHO GOVERNS WHAT? PART 2 The division of powers was decided almost 150

years ago so the wording is quite old-fashioned There are a number of areas where it’s not clear

who’s in charge. Usually, if there’s any uncertainty, it becomes a federal responsibility

Sometimes disputes between the federal and provincial governments must be decided by the courts.

Eg. of a recent dispute: InSite Safe Injection Site Federal jurisdiction: S. 91 section 27 (Criminal law)

Statute: Criminal Code, and the Controlled Drugs and Substances Act

Provincial jurisdiction: S. 92 subsections 7 (Hospitals), 13 (Property and Civil Rights in BC) and 16 (Matters of a Local or Private Nature)

Bill M-214 Supervised Injection Facility Designation Act, 2008, proposed by MLA Jenny Kwan in latest BC legislative session

LEGAL CITATIONS: STATUTES Legal citations clearly (but briefly) indicate the

name and location of a statute For consistency, we use the format found in a book

called the Canadian Guide to Uniform Legal Citation. Most people call it “the McGill Guide.” REF KE 259 C35 2006

For a quick guide to understanding (and creating) legal citations, see Kwantlen Library’s 4-page legal citation guidepost: http://www.kwantlen.ca/library/guides/Legal%20Citation.

pdf Some examples of citations for statutes:

Controlled Drugs and Substances Act, S.C. 1996, c. 19Health Authorities Act, R.S.B.C. 1996, c. 180

CHARTER OF RIGHTS AND FREEDOMS The Constitution Act, 1982, established

Canada’s own constitution (separate from Great Britain’s). Much of the Constitution Act, 1867 continued, with some amendments and additionshttp://laws.justice.gc.ca/en/const/annex_e.html

One addition (Schedule B, Part 1) was the Charter of Rights and Freedoms, often called just the Charter of Rights or the Charter. It lays out the basic rights of all Canadians.http://laws.justice.gc.ca/en/const/annex_e.html#I

All Canadian laws must adhere to the Charter, or else they may be struck down in court.

CHARTER OF RIGHTS AND FREEDOMS (PART 2) The Charter has had a huge impact on Canadian

laws in the past 25 years. Many laws and judges’ decisions have been challenged in the courts on the grounds that they violate a person’s rights guaranteed under the Charter

A province may oppose such a challenge to its laws by invoking the ‘notwithstanding’ clause, s. 33(1). This rarely happens.

EXERCISE 2 Questions about division of powers and

Charter

Which section of the Charter relates to freedom of the press?

Which section of the Charter relates to discrimination on the basis of race?

Which level of government can pass laws related to marriage?

HOW DO I FIND STATUTES & REGULATIONS? You can find both federal and provincial

statutes and regulations in many different sources. See the library’s subject guide for law for a list. http://www.kwantlen.ca/library/internet/law.html#statute

s

The most current sources are: Federal: Department of Justice’s website

http://laws.justice.gc.ca/en/index.html

BC: QPLegalEze database http://www.kwantlen.ca/library/articles/db-qplegal.html

HOW DO STATUTES GET UPDATED? New statutes, or substantial amendments to

existing statutes, are proposed -- usually by members of the ruling party -- in the Parliament (federal) or Legislative Assembly (provincial).

Each bill goes through several ‘readings’ (which involve debate, committee review, revision and a vote) before it becomes law (i.e. an act). For a quick summary, see: http://

dsp-psd.communication.gc.ca/Reference/queens-e.html To track a bill as it makes its way through this

process, check these sources: Federal: LEGISinfo

http://www.parl.gc.ca/LEGISINFO/index.asp BC: QPLegalEze database or BC Legislative

Assembly website http://www.kwantlen.ca/library/articles/db-qplegal.html http://www.leg.bc.ca/

EXERCISE 3: LOCATING AND UPDATING STATUTES Did the federal government pass a bill about

identify theft in the last session of Parliament?

Find the section of the University Act that describes the senate for any university other than UBC. Create a legal citation for this section.

COURTS Courts exist in order to resolve disputes

about the law as it relates to a specific situation

Disputes may be of a civil or criminal nature

There are several different types and levels of courts; each has a different function

LEVELS OF COURT

Canada. Department of Justice. (2005). Canada’s Court System. Ottawa: The Dept. Retrieved June 11, 2008, from http://canada.justice.gc.ca/eng/dept-min/pub/ccs-ajc/page3.html

CASE LAW Case law is the second type of primary law. The term refers to legal cases which have gone to court, and

where a judge (or group of judges) has decided the outcome, and written down the decision and reasons for this judgment

Court cases decided by a jury will not have a written record because juries do not have to justify the reasons for their decisions

Principle of “stare decisis” is fundamental. It is: “A basic principle of the law whereby once a decision (a

precedent) on a certain set of facts has been made, another Court of the same rank will apply that decision in cases which subsequently come before it embodying the same set of facts.”

Duhaime, L. (n.d.) Stare decisis. In Duhaime’s Legal Dictionary. Retrieved June 13, 2008, from http://www.duhaime.org/LegalDictionary/S/Staredecisis.aspx

Since courts must follow the decisions of the same- or higher-level courts, they need to have a way to find similar previous cases. That’s the role of the law report services

LAW REPORTERS Judges' decisions (“cases”) have traditionally been

commercially published in print-format law reporters which reproduce the exact wording of the decision and reasons for judgment. They usually also include some "value-added information" like a headnote -- a summary of the case in keyword format – and subject index to make it easier to find similar cases.

Reporters usually focus on a particular type of law or region.

Reporters are selective; they include only those cases which are considered significant by the publishers. Only about 20% of all decisions are reported.

An unreported case is not necessarily unpublished or unavailable. Most courts now post or 'publish' their cases on their websites and these are widely available via the court's website or other electronic sources (eg. CanLII, Quicklaw).

LAW REPORTERS : PRINT SOURCES The Kwantlen Library subscribes to several print law

reporter services. For a full list, see: http://www.kwantlen.ca/library/internet/law_print.html#c

ase In order to keep up-to-date, new volumes are

published regularly. You will find long rows of volumes in the reference section!

You can usually search these for cases in a number of ways: by name(s), subject, statute cited, cases considered, and words & phrases used.

Legal citations only give the abbreviation for the title. Eg. C.C.C. means Canadian Criminal Cases

Often the same case will be reprinted in many different sources. This is called a parallel citation.

LAW REPORTERS : ONLINE SOURCES Most courts now freely publish the full text of all

decisions on their websites. These will not have any ‘value-added’ content. CanLII collects these cases from almost all courts so you can search them in one place. Eg. Courts of British Columbia

http://www.courts.gov.bc.ca/ http://www.canlii.org/

Some print law reporters are also available online. Eg. Dominion Law Reports (D.L.R.) [on-campus only]

Other sources collect a wide range of case law on many topics, with added content like newsletters Eg. Quicklaw http://

www.kwantlen.ca/library/articles/db_ql.html See the Library’s guide to online sources of case

law: http://www.kwantlen.ca/library/internet/law.html#case

PROS AND CONS OF ONLINE SOURCES: Benefits of online sources:

Convenient; you don’t have to look in many volumes

Available from off-campus Keyword searchable Note-up feature is handy Results can be easily emailed, printed, saved

Limitations of online sources: May not go back far enough in time; most only

include the past 15 years at most Search results can be huge and overwhelming; it

can be hard to identify the most important cases. Selective law reporters only print significant cases.

Long cases can be hard to scan online; print sources are often easier to read

WHAT DOES A CASE LOOK LIKE? Refer to handout showing parts of a case

CASE LAW : FINDING CASES BY NAME It’s fairly easy to locate a case in either print or online

sources if you know the name of the case; this is called the style of cause

The style of cause is a short form of the parties' names; one personal name usually suffices if there are more parties involved.

By convention, it shows the Plaintiff (the party bringing the action) versus the Defendant (or 'the Accused' in a criminal trial). In an appeal, it's Appellant versus Respondent

In this criminal case, the Crown (government) has brought a charge against a person named Latimer R. v. Latimer

R. stands for Regina (Queen), who is represented by the Crown counsel

EXERCISE 4 : FINDING CASES BY NAME Using any of the sources we’ve discussed,

locate this recent Supreme Court of Canada case involving the Culligan water company

Mustapha v. Culligan of Canada Ltd.

What was the decision?

Did all of the judges agree?

Which judge(s) wrote the decision?

CASE LAW: FINDING CASES BY TOPIC All of the print and online sources we

discussed allow you to search for cases by either keyword or subject

Print reporters can be easier to search because they use consistent subject terms

Online searches can be quite precise

EXERCISE 5: FINDING CASES BY TOPIC Search in Quicklaw or CanLII for a case about

vicious dogs in BC

CASE LAW: NOTING UP A CASE A judge’s handling of a case can sometimes

be challenged by an appeal to a higher court, and overturned

Also, laws and societies change It’s important to know whether a case is

“good law”; does it represent the current precedent in that area or have judges in subsequent cases disagreed with the decision (in whole or in part)?

In order to check if your case is up-do-date, you need to search for more recent, related cases

This is called noting up a case Quicklaw is a very good source for this

LEGAL CITATIONS See Library’s handout on legal citation:

http://www.kwantlen.ca/library/guides/Legal%20Citation.pdf

CanLII uses a new format for citing legal sources, called Uniform Legal Citation. Here’s an example: R. v. Latimer, 2001 SCC 1

EXERCISE 6: CREATING A LEGAL CITATION Create a legal citation for the Culligan case

we found earlier, using the McGill guide format

KEY RESOURCES The Kwantlen Library’s subject guides for

law: Online sources:

http://www.kwantlen.ca/library/internet/law.html Printed sources:

http://www.kwantlen.ca/library/internet/law_print.html

The Kwantlen Library’s guideposts for: Statute Law

http://www.kwantlen.ca/library/guides/GPstatlaw.pdf

Case Law http://www.kwantlen.ca/library/guides/gpcaselaw.pdf

Legal citation

http://www.kwantlen.ca/library/guides/Legal%20Citation.pdf