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By Ken Fox
From time to time at the library we get requests for “unreported” decisions. What do folks mean by unreported?
These days, you usually mean that a case is difficult to find, that it is not available on CanLII for instance. This is very reasonable – you take a phrase you have heard, and apply it to a situation in a way that makes sense.
Traditionally, unreported means something different with respect to case law. The court issues written reasons for its judgments, and legally-trained editors working for private publishing companies select cases for printing based on their importance, uniqueness, and court level. Cases printed in law reports (i.e., “reported”) were not only more accessible than unreported cases (i.e., those not selected for inclusion in a law report), but more authoritative, with some courts only allowing reported cases to be cited.
So (you ask) in the past, private publishers decided which cases were important, and thereby played a significant role in the creation of the common law? Yes they did, and to a certain extent they still do.
Unreported decisions existed only in copies issued from the courts, and photocopies of them were generally collected in court house libraries. At the Law Society Library in both Regina and Saskatoon we still have collections of unreported Saskatchewan judgments going back to the 1960s.
But technology changes things. In the traditional sense of “unreported,” CanLII hosts hundreds of such cases. For example, look at the citation info in this one – there is a neutral cite, but no reference to Saskatchewan Reports (Sask R), Western Weekly Reports (WWR), or any other print law report. The case is unreported, but easily accessible.
In 2014, Susannah Tredwell speculated that online publishing of case law has created a new kind of unreported decision: “those judgments that the courts do not make easily available.” This type includes oral judgments, and any other judicial decision for which no written reasons are released.
I don’t know the exact name of this phenomenon – semantic drift? – but it seems to me the meaning of “unreported” is changing. The publishing companies have little or no say in what cases are available – that power is now the courts’ alone.
In addition to changing the availability of case law, the existence of comprehensive, free sources such as CanLII, CommonLII, WorldLII and Google has eroded the authority of the print reporting system. As far back as 2005, Nick Pengelley mused that there might no longer be an authoritative distinction between reported and unreported case law. In 2009, Ted Tjaden suggested that Canadian courts, contra England, may adopt a more flexible, discretionary approach to what judgments can and should be cited in court.
So (you ask), this is the end of the centuries-old law reporting system? Really? Well, it’s not for me to say, but – yes.
How do you access unreported decisions?
In Saskatchewan, everything for which there are written reasons from 2000 forward is on CanLII. If you are looking for one of those “unreported” decisions in the newer sense of the term, you might need to contact a court registry office or one of the lawyers involved in the case. The Saskatchewan courts provide instructions on how to access court records.
From before 2000, practically all reported (in the old sense) Saskatchewan cases are now on CanLII. For unreported cases, try a subscription service such as WestlawNext or Quicklaw. Failing that, contact us, and we’ll do our best. If it’s from the 1960s or later, we might have it in a filing cabinet.
On the question of terminology – well, for me “reported” still means the case includes a citation to a printed law report. Call me Old School if you like, I won’t mind. And if you are one of those folks who call any difficult-to-find case “unreported” – then (1) I won’t correct you, and (2) I may someday join you – because one thing I’ve learned is that history’s greatest fools are the ones who try to stand in the way of change, and I just don’t want to be that guy.