11 Finding Tools
Introduction
Often, when we talk about finding caselaw, our minds go straight to keyword searching… What database will we search, what terms are we going to use, how are we going to construct the search, and how might we want to filter our results?
In large part, this is because much of the training we receive from vendors encourages keyword searching from database homepages, with no pre-selection or limiting of search scope. Usually this involves using a moderately general search, trusting the database’s search algorithms, and then narrowing often-voluminous results via filters.
Unfortunately, this is often the least efficient, and most frustrating way to work with caselaw. Why is this? The primary reason is that legal arguments are about legal issues, and are not merely fact-driven: Keywords tend to be fact- and situation-focused, and therefore can result in missing out on leading cases relevant to the legal issues at play, but that differ on the facts (while simultaneously drowning you in hundreds or thousands of irrelevant cases).
Starting Points
There are better ways! There multiple potential starting points that will allow you to make a careful, deliberate entry to caselaw research. Using these methods will help you both avoid being overwhelmed with tons of irrelevant cases, and help you not miss out on key cases of interest.
Starting with a known item, where possible, can make finding caselaw much easier. Use any of the secondary sources previously discussed to find a starting point, as even one case that is on point for your area of research will vastly simplify the research process. Once you have one case, even an older case, or one that’s only moderately on point, it can be noted up, and otherwise worked with.
No sufficiently relevant cases to be found in a secondary source? Also look for any controlling legislation. If your research is pursuant to an act or regulation, find cases that specifically deal with that legislation by noting it up.
Digests and Summaries
Still need a starting point? Digesting tools are available both for topical research, and for more general research. Digests are short summaries of decisions, highlighting key facts and legal issues. In addition to allowing you to quickly scan a significant volume of decisions, digests are also usually organized topically, in a tree structure that allows you to browse to a fairly refined subset of digests.
Both Lexis+ and Westlaw Edge Canada offer major digesting services. Both of these tools are digests (summaries) of cases classified by topic. This classification can be quite detailed and multileveled, which allows you to browse to a very specific legal topic to see relevant cases.
The Canadian Abridgement (Westlaw Edge Canada) “[c]overs virtually every case reported in Canada since 1803, and every reported or unreported case received from the courts since 1986, with the exception of Quebec civil law cases” and purports to classify essentially every court case available on Westlaw Edge Canada. Like every source on Westlaw, the Abridgement can be searched at any level during the browsing process. However, it is important to understand that this search only searches the digests at the selected level, not the full text of the digested cases.
Should you need to search the full text of a topical division of caselaw on Westlaw Edge Canada, use Browse Legal Topics, which serves up exactly the same topical structure, but in full text. It is also good to remember that Browse Legal Topics is linked from the Canadian Encyclopedic Digest, allowing you to go directly from reading about a legal topic, to reading cases and other material on the topic.
The Canada Digest is available on Lexis+ (Content Type – Cases – Case Summaries – All Canada Digests), “a collection of over one million relevant and leading English and French-language case summaries divided up by area of law and topic.” With over 50 major topics, most areas of law are covered. Each topic has its own update schedule and coverage, with most topics covering back to the mid 1800s (for example, Canada Legal Profession Digest has “coverage starts February 24, 1871”, whereas Canadian Labour Arbitration Digest has “coverage from 05 January 1949 through current”).
To use the Canada Digest, select a top level topic, and then use the check boxes to drill down by subtopic until linked digests appear. Each digest has to be clicked on and read individually, as the links are simply the case name (no citation, court, year, or other information). If the digest is sufficiently interesting, the citations to the case at the top of the digest will link to the full text of the decision.
These digests can be searched as a whole, by individual topic, or by using the check boxes beside one or more subtopic(s), as well as the “Search Selected” checkbox. This search only searches the digests (not the full text of the digested cases), so while it will pick up hits where your search terms are significant enough/accurate to what editors have used in the digest(s), you won’t see cases where your terms only appear in the full decision.
Keyword Searching: Browse then Search
Keyword searching is listed last, because it should be a last resort! However, the reality is that even with all the best use of secondary sources, noting up, and filtering through digests, sometimes we don’t find what we’re looking for. Keyword searching can also be a starting place, in a few limited circumstances, such as if we need to find all uses of a very specific/unique phrase.
If you have determined that keyword searching is the best/only technique available to you, it still isn’t necessary to search a whole database: Browse to a relevant subset of decisions, and then search. Westlaw Edge Canada allow a basic pre-search filtering by jurisdiction, or major legal topic. Lexis+ allows pre-search filtering of both jurisdiction, and major legal topic (either one first). Using either or both of these methods can dramatically reduce false hits before you even search.
If these limits aren’t a suitable or sufficient level of filtering for a given search, both Lexis+ and Westlaw Edge Canada offer a fairly sophisticated “Advanced Search” option, accessible from the general caselaw search page, or after applying a jurisdiction or topic limiter, as above. Indeed, should both a jurisdiction and topic restriction be selected in Lexis+, the new search screen will include both a default search box as well as a version of the advanced search.
Advanced search essentially offers a way to search specific facets of a decision (Judge/Decider, counsel, party name, dates) and to build a sort of Boolean/Terms & Connectors search without having to memorize and use the sometimes database-specific Boolean terms. This means that by selecting different search fields, and entering appropriate terms (those that you want all, any, none, or a phrase to be found), the database will build a Boolean search for you. The neat thing about how both Lexis+ and Westlaw Edge Canada work is that as you build the search, it appears in the top search bar. This lets you see how the terms are connected to produce a search string, scaffolding your learning process.
Criminal Trial Decisions/Jury Trials
When we think of decisions, what is actually reported are the reasons, not (just) the verdict… Why the judge or decider made the decision that they made. Juries do not give reasons, just a verdict, and their deliberations are confidential. Therefore, jury trials are not reported, because there quite literally is nothing to report (although there may be related decisions that are reported, such as reasons for sentencing, or admissibility of evidence).
As well, trial level decisions in criminal cases, generally, can be challenging or even impossible to find, as they are not necessarily reported. Judges are not required to issue (written) reasons, so when looking at the history of a criminal case, do not be surprised if the trial decision isn’t available.
Quebec Decisions
Many Quebec decisions are reported in French, as that is the language in which they were heard and decided. Generally speaking, there is no comprehensive project to translate these decisions into English (Supreme Court of Canada decisions are the only decisions that you should always expect to find in both official languages). That being said, the Centre de traduction et de terminologie juridiques has begun a project “Translation of Important Unilingual Court Decisions in the Other Official Language”. Currently, this project focuses primarily on the areas of criminal law and family law.
Should you require a translation of a French decision, while free automated sources such as Google Translate can help with the gist of a decision, they lack the finesse and nuance that an experienced, human interpreter brings to interpretation. Therefore, while these free sources are a great place to run an initial interpretation to decide if a case is worthwhile addressing at greater depth, they should not be relied upon to translate a case for use in an argument.
