Cite Unseen
Cyberspace has given birth to a new standard for electronic case reference and citation.

(Reprinted with permission of National and Martin Felsky)



By Martin Felsky
For National

The convenience of new legal research technology brings woth it new uncertainties. How do you know that caselaw on the web hasn't been atmpered with? What's the proper way of citing a judgment published on a court's Website and nowhere else? How do you refer to caselaw from Autralia or American Courts?

As the world of paper gives way to the realm of electronic files and screens, the old methods of reference and citation must be adapted. Lawyers who grew up in the familiar hospitality of the law library should be comforted to know that new standards are already in place alongside the traditional rules.

A NEW STANDARD

Because electronic documents can be readily formatted with different fonts and margins, the concept of a page reference has never been workable in the computer environment. In 1996, after two years of consultation, the Canadian Judicial council (CJC) approved a document called Standards for the preparation, Distribution and Citation of Canadian Judgments in Electronic Form. (A copy may be obtained from the Council's Website, www.cjc-ccm.gc.ca) Although the 1996 Standard covers several important formatting elements, its main recommendation was paragraph numbering of every judgment.

According to the Standard, every new paragraph in a judgment should begin with an Arabic serial number at the margin, enclosed in square brackets. For example:
[23]  This is the first sample paragraph.
[24] The second sample paragraph contains a sub-paragraph, which is not numbered:
Quoting from another judgment, this passage is considered part of paragraph 24, and not a new paragraph.
[25] The next paragraph starts here.

Some courts have developed thier own templates and macros to automate the paragraph numbering procedure, while the Judicial Council has assisted others. The good news is that the Standard is applied consistently, and paragraph numbers can be used with confidence whether citing to an electronic copy or a printed version.

The Standard has been adopted by almost all Canadian courts with federally appointed judges (Quebec plans to implement the Standard as part of a more general technology upgrade). As of September 1999, 20 of 28 federal courts use paragraph numbering in 90% or more of their judgments, and most of the others have been using paragraph numbers in a substantial portion of their decisions. Several provincial courts and administrative tribunals are also using the paragraph numbering standard1.

TELL IT TO THE JUDGE

So you've found your case, reported under the new standard with the numbered paragraphs. But you still need to present it to your opponent, your client of the judge, and that's where you may run into some problems.

Judgments posted on the Web (by one of the ten Canadian courts currently publishing their own judgments) will not appear in printed reports for weeks or months, and indeed may never be chosen for printing at all. Is it appropriate to provide a URL or Web address? Or is the court docket or file number the only acceptable route?

The Canadian Citation Committee was established as an ad hoc working group of legal specialists in 1997 to address this question. Under the leadership of Professor Daniel Poulin of the University of Montreal, the committee has proposed a Neutral Citation Standard that could be consistently applied in all courts across Canada.

The main feature of a Neutral Citation Standard is that it applies to a judgment irrespective of where the judgment might be published. To use an analogy, if you were referred to a passage from the Bible by Chapter and verse, you could find it in any edition of a Bible, in print form or online.

With a Neutral Citation Standard for judgments, the same universally would apply. For reported cases, the neutral citation would be used as a parallel cite; it's not intended to replace the law report cite. Lawyers already use neutral citation standards for referencing statutes and regulations, so the transition to a neutral case citation standard will ot be difficult.

The Canadian Association of Law Libraries endorsed the principle of neutral citation on June 2, 1999. On June 28, the Canadian judicial Council approved the Neutral Citation Standard. As of this writing, the Standard has been adopted by the British Columbia and Alberta Courts, and by the Quebec Tribunal des Professions.

The new form of citation is elegant and simple. It consists of the Style of cause, a four-digit year, a designated abbreviation for the court identifier, and a serial number to identify the particular decision. For example, a decision from the British Columbia Court of Appeal would like this (including a pinpoint reference):
Big Harbour Coffee v. H. Bean, 1999 BCCA 256 § 55

THE REAL THING

The authenticity of judgments on the Web should be of concern to everyone, because until there's some way of guaranteeing authenticity, it seems that law reporting will have to maintain an official paper version. To address this constraint and the risks of tampering, the legal community should adopt the industry standards for authentification.

In 1997, CALL and the Legal Research Network jointly hel a summit called the "Official Version." One of the topics was authentification, and both organizations are still involved in proposing a solution. For more information, see the CALL Website at www.callacbd.ca.

The Judges Computer Advisory Committee of the Canadian Judicial Council has decided to begin revising the 1996 paragraph numbering standard, in light of recent technological developments and to ensure consistencywith the Neutral Citation Standard. One of the exciting aspects of the work on standard is its international scope. Since the Web is truly worlwide, countries that publish their judgments on the Web (in particular, the United-States, Australia and New Zealand) are considering the development of an international standard to facilitate inter-jurisdictional research.

Since our Neutral Citation Standard is consistent with that of the American Bar Association, and is expressly designed to support a national identifier, Canada is well positioned to be an active participant in the domain of worldwide legal research. As foreign law becomes more accessible, Canadian lawyers will be in a better position to advise clients doing business on a global scale.

A copy of the Neutral Citation Standard can be obtained electronically through the Canadian Citation Committee's Website at http://www.lexum.umontreal.ca/citation/en/. Copies in paper form may be obtained from the Canadian judicial Council at Suite 450, 112 Kent Street, Ottawa K1A 0W8, (613) 998-5182, fax (613) 998-8889.

1 The author thanks ruth Rintoul of Quicklaw for providing these statistics.



Martin Felsky is Director of integer.actif, Canada's leading legal technology consulting firm, and publisher of Not in Print, the Weekly Web guide for Lawyers. He is also a member of the Canadian Citation Committee.