by Martin Felsky, Ph.D., LL.B., 16 October 1997
[Martin Felsky is Director of Integer/Actif, Information Technology Education Group, and Chairman of the Legal Research Network. He is also a Technical Adviser to the Judges Computer Advisory Committee of the Canadian Judicial Council. The views expressed in this discussion paper are those of the author alone and do not necessarily represent the views of the Advisory Committee or of the Judicial Council.]
1. A new proposal has been put forward to reform the system of case law citation in Canada. The purpose of this paper is to raise for discussion the issues arising out of the proposal. The paper begins with a description of the current system of case law citation, and then outlines the need for reform. A historical perspective presents a series of proposals for reform in Canada, beginning with a Canadian Law Information Council paper in 1981, and culminating with the Poulin Group proposal. The Canadian efforts are placed in context by a brief description of similar proposals in the United States and Australia. The last part of the paper lists ten key issues for discussion.
The Current System of Case Law Citation in Canada
2. The current system of case law citation in Canada is based on references to particular printed volumes in which decisions are published. A decision acquires a citation only after it has been selected for publication and is published in print form in a recognized law report. When a decision is republished, it acquires another, parallel citation. Any particular decision may have several citations depending on how often it has been published.
3. The present system of citation includes references to decisions published electronically by Quicklaw. However, decisions published and cited in this way are considered "unreported." Although the Canadian Judicial Council has recommended that no judge refuse to accept reference to a decision simply because it is available only from an electronic source, lawyers and judges still need to find and cite printed sources if and when these become available.
4. With respect to judgments published on CD-ROM, on electronic bulletin boards or on the Internet - whether published by commercial services or directly by a court - there is no generally-accepted citation system. Not only are these decisions considered "unreported," they are virtually incapable of being cited.
The Need for Reform
5. Increasing reliance on electronic judgments means jurists need a way to cite judgments that are not in print.
6. Increasingly, the legal community is relying on electronic media to find case law. Simply put, if we are to benefit from this technology we need to be able to cite the material we find. Judgments disseminated on electronic bulletin boards, on the Internet or on commercial database systems are available quickly, are searchable, and may be conveniently stored and accessed. Users of case law in electronic form need some standard way of referring to a judgment as it appears in any electronic medium.
7. The distinction between unreported and reported judgments is no longer supported by the reality of law publishing.
8. Traditionally, judgments issued by a court are considered "unreported" pending their publication in print, even if they are disseminated on an electronic system such as Quicklaw. The rationale for treating certain cases as "unreported" is that unpublished cases are not generally accessible, nor have they been selected by editors for their precedential value. Perhaps another rationale is that they are not considered reliable. The electronic publication of judgments, however, means that all judgments can be readily accessible without print publication. Moreover, the necessity for editorial selection is not a good reason to postpone citation of a case until it gets printed.
A generic case identifier would enable the use of finding tools without resort to proprietary case identification schemes. This is a benefit for several reasons:
The CLIC/CBA Decision Numbering System for Canada
9. The Canadian Law Information Council pioneered efforts to streamline and standardize case identification in Canada. In 1981 it released a study called "A Model Judgments Handling System for Canadian Courts." That report recommended the use of docket numbers to help identify decisions, given the difficulty of finding case law by style of cause.
10. In a 1984 report called "Standards for Headnoting – Case Identification," a case numbering system was recommended as an aid to tracking a decision from trial through the appeal process.
11. In 1985, the Canadian Bar Association ("CBA") presented a proposal to the federal and provincial attorneys-general called "A Unique Case Identifier Numbering System for Canada." Although the proposal met with favourable response, it was never implemented. The Canadian Law Information Council ("CLIC") attempted to promote the idea through 1988 and 1989, but eventually the proposal died along with the organization.
12. The proposed system consisted of five basic elements with a prefix "CDNS" (standing for "Canadian Decision Numbering System"). The system thus anticipated the need for international conventions. It also proposed a scheme of supplementary numbers to track a judgment from trial through the appeal process.
Year (two digits)
Jurisdiction designator (e.g. AB for Alberta)
Court registry (e.g. 23 for Calgary)
Court level (e.g. Q for Queen's Bench)
Decision number (e.g. 00076 for decision number 76 of 1988)
(In the Court of Appeal, the original decision number would be kept, but added to with a new identifier, thereby allowing users to link the two decisions.)
Example: CDNS-86-AB-23-Q-45494
The Canadian Judicial Council Standards
13. In May of 1996, the Judges Computer Advisory Committee of the Canadian Judicial Council released its "Standards for the Preparation, Distribution and Citation of Judgments in Electronic Form" (the "CJC Standard"). The CJC Standard was approved by the Executive Committee of the Council in June, 1996.
14. To the extent that the CJC Standard proposed a format for the preparation of judgments in electronic form, it has been almost universally adopted by the superior and federal courts across the country. Paragraph numbering of judgments by courts is thus becoming a reality. However, the citation standards proposed in the May 1996 document have not been adopted.
15. The CJC Standard extends the paper-based system to electronic media by referring to specific publishers, databases, and file names. It does not attempt to create a national case identification scheme, although it promotes the adoption of one. For judgments posted to an electronic BBS (bulletin board system) or Internet site, the CJC Standard proposes a form consistent with the citation of an "unreported" judgment:
Style of cause
Full Date (DD Month YYYY)
Court file or docket number
System: Address or file name
Court (abbreviation)
Pinpoint reference if any
Example: London Life v. Sloan (2 March 1994) Docket No. 94/06 (Internet: http://www.droit.umontreal.ca/word/sloan.en.word) (B.C.C.A.) at paras. 12-14.
The Quicklaw Proposal
16. In May 1997, Quicklaw proposed "An International System for the Citation of Court Opinions." This proposal recommends that the court assign two citations to cases before they are released: a full bibliographic reference in accordance with ISO 690-2, and a "legal" citation more familiar to jurists. The ISO citation would be akin to the CJC Standard proposal, insofar as it would contain a URL and other specific identifying information.
17. The legal cite, on the other hand, would contain the following elements:
Date
Country or region code
Court hierarchy code
Jurisdiction code
Court code
Opinion number
Pinpoint reference
Example: Jones v. Smith, 1997 CA.2.BC.Ct.App no25 para34-36
The Poulin Group Proposal
18. On August 11, 1997, an ad hoc group interested in citation standards produced a "Declaration for the Elaboration of a Vendor-Neutral Citation Proposal in Canada." The Declaration is a one page document reproduced here in full, with some minor modifications to the translation from French:
"In view of bringing about the advent in Canada of a vendor- and media-neutral case citation standard, a number of specialists and other actors in the law field in Canada met in Montreal August 11th, 1997, to work out a proposal of such a standard for comments. The meeting was held at the Centre de recherche en droit public of the University of Montreal at the invitation of professor Daniel Poulin, director of LexUM.
Judging that a case citation standard will allow:
we hereby propose that the development of a case citation standard incorporating the following features be considered by all actors in the Canadian legal world:
1. the year of publication of the decision
2. an identification code unique to each tribunal
3. a sequence number
4. a paragraph number attributed by the tribunal.
Thus, instead of: R. v. Evans, [1996] 1 S.C.R. 8
we would get: R. v. Evans, 1996 SCA 3, 16
or, more succinctly: 1996 SCA 3, 16
and even: 1996SCA3-16 which is better suited to computers.
More traditional parallel citations will be maintained to allow for a progressive transition to the new standard:
R. v. Evans, 1996 SCA 3, 16; [1996] 1 S.C.R., 18
Aware of the importance of gathering a large consensus for the success of the development and the adoption of an adequate and useful case law citation standard, the undersigned will promote discussion of such a standard project, developing their proposition and working with all interested parties to promote its growing acceptance."
The United States
19. In the United States, there are several competing proposals for citation reform, and some states have adopted new systems. One attempt to develop a national standard has been made by the American Association of Law Libraries (see [1995] 87 Law Library Journal 577), whose detailed proposal was adopted in principle by the American Bar Association Special Committee on Citation Issues. That Committee has recommended a generic citation format where each decision is given a serial number and paragraph numbering by the court. The elements of the ABA proposal are:
Year
Court designator
Sequential number
Pinpoint reference (using paragraph symbol)
Example: Smith v. Jones, 1996 5Cir 15 ¶18
Australia
20. The Australian Legal Institute proposed a new citation standard in 1996, and meetings have been held between various stakeholders to discuss acceptance and implementation. (See Greenleaf, Mowbray, King and Chung, "AustLII and the Courts: public information in the public interest," Australian Institute of Judicial Administration Annual Conference, Wellington, N.Z., September 1996.) A general consensus appears to be emerging that a generic citation would include the following elements:
Year
Case number
Court abbreviation
Paragraph number
Issues for Discussion
(1) Citation or identifier?
21. The proposal on the table from the Poulin group is for a case identification system, along the lines of the system proposed by the ABA. Does a case identification system solve the problem that needs to be addressed? Is a parallel ISO-style citation, as recommended by Quicklaw, also a good idea? Is it feasible?
(2) Serial number or docket number?
22. Most proposals for reform suggest that courts assign a serial number to each decision, starting at number one each year. Since decisions already have file or docket numbers on them, it is sometimes suggested that a decision numbering system based on docket number might be simpler to implement. The problem associated with a docket number system is that for any one docket, several decisions may be issued, and these would need to be further distinguished. A serial numbering system, though it adds another step to the process, would ensure that all decisions have unique numbers.
23. One issue to be resolved is the mechanics of assigning serial numbers for jurisdictions where there is more than one court issuing judgments in the same jurisdiction.
(3) What is a decision?
24. Since decision numbers are to be assigned by the originating court, someone has to decide what qualifies as a "decision" worthy of numbering. Should every order or judgment be numbered, or just those that would normally be "reported"? And what about handwritten endorsements that are not transcribed, or transcribed at a later date? What about decisions made during the course of a trial?
(4) How much information should appear in the cite?
25. Part of the unique citation system is a court designator code. Should the cite also contain information, for example, about court level, as in the CLIC proposal? An informative cite can be helpful, especially internationally, but simplicity and brevity have its distinct advantages.
(5) Assignment of Identifiers
26. Is there an available standard way of referring to all courts across the country? Do we leave the identification of courts to each province, and if so how do we ensure a consistent scheme of coding?
(6) Date of decision
27. In some cases there are multiple dates associated with the rendering of a decision: the date oral judgment is made in open court; the date the decision is issued after transcription; the date the judgment is signed by the judge, and the date the decision is entered in the registry. The determination of the appropriate "date" for the purposes of citation should be made consistently as much as possible.
(7) Revised decisions
28. When a decision is released and then revised, should the revised decision be assigned a new serial number, the same serial number as the revised decision, or a modified version of the first number? By linking the original with the revised version, the number can assist researchers. On the other hand, duplicate numbers for "different" but related judgments may cause confusion. Can a simple system be devised to tell us when we have the final form of a judgment rather than an earlier version?
(8) International conformity
29. How do we propose to build a national citation system that is also open to international co-operation? Since it seems impracticable to designate courts with identifiers that are unique in the world, perhaps a country code can be added to each national system.
(9) Date format
30. Should the date of decision be the year only or a full date? And if a full date, what format? The decimal date (19980913) assists in computerized sorting but Quicklaw has pointed out that searching for a decision by year alone may cause problems for certain computer retrieval systems. Is dd/mm/yyyy unambiguous enough? If a date is written out as "23 March 1998", many computer systems may not be able to interpret it as a date.
(10) Punctuation and pinpoint reference
31. Readers tend to like punctuation in citations to visually separate elements for quick parsing. On the other hand, computer users find punctuation superfluous, even problematic. The system of citation needs to balance these needs so that users can actually read and understand the citation, but also enjoy the benefits of computerized retrieval.
32. When citing to a particular paragraph, there are different methods, ranging from a simple number ("35") to "para35" or "¶ [paragraph symbol] 35". We should ensure that the pinpoint reference is not ambiguous - does it refer to page or paragraph or line? - that it meets the needs of computer users, and that it is readable at the same time.
Conclusion
33. Though many issues are worthy of discussion and consideration before a new system of citation is adopted in Canada, we should bear in mind that in essence the proposal is a simple one: just as courts have now started to use paragraph numbers to identify portions of judgments in a generic way independent of paper and publisher, so too the courts can start numbering judgments to support the same goals. Adopting a standard across the country has obvious advantages, and other jurisdictions are moving in the same direction. The time for reform is here.
Copyright 1997 Martin Felsky