As a student librarian doing a co-op at the Great Library, one of the first things I learned was locating point-in-time legislation. “Backdating” is the act of tracing the history of an act through its previous versions. In the short time I’ve been at the Great Library, I’ve had several questions about locating historical point-in-time legislation, especially for Manitoba statutes.
I thought I would conduct a quick refresher on how to access these documents using the HeinOnline database behind the Law Society Member Portal.
Let’s say for example you were interested in tracing back the Cemeteries Act to find out what the Act looked like in 1980.
Remember that:
Federal statutes were revised in 1886, 1906, 1927, 1952, 1970, and 1985
Manitoba statutes were revised 1892, 1902, 1913, 1924 (consolidated amendments), 1940, 1954, 1970, and Re-enacted: 1987-1990
In our example, the closest revision year was 1970. The Cemeteries Act in 1980 will include the 1970 version plus any amendments made up until 1980.
Next, look up the amendments and the 1970 version of the Act. We’ll do this by navigating to the LSM Member Portal and accessing HeinOnline.
Although the year we are interested in is 1980, it’s a good idea to go one year past the year you’re looking for. This way you catch amendments that were made in 1980, but weren’t published until 1981. Select the link for 1980-1981.
Scroll down the left-side menu to click on “List of Statutes in Continuing Consolidation”. Acts are listed alphabetically, and under the Cemeteries Act, we can see the 1970 Revised Statutes of Manitoba version and its chapter, as well as a list of amendments up until 1980, including chapter and section:
The next step is to put all of the amendments into context within the 1970 Act, and then we’ll have a picture of how the Cemeteries Act was comprised in 1980.
Stephen Thiele, a research partner at Gardiner Roberts, recently published the following on the difficulties of searching online when you are looking for judicial consideration of “and” and “or”. As these are also boolean operators, it can be difficult for platforms to distinguish between the two. Here is Stephen’s advice.
I have been a legal research lawyer for almost 30 years.
When I started law school in 1987 the use of laptops to take notes in lectures was completely unknown. Our first year legal research and writing class was based on how to conduct research using books like case reports, The Canadian Abridgment Digests, and the Canadian Encyclopedic Digests (Ontario) and other paper sources. Online research was limited to “Quicklaw”, which was a database of cases that could be searched using Boolean search parameters. These cases were generally considered to be unreported decisions because they had not been published in case reports, such as the Dominion Law Reports or the Ontario Reports.
When I articled, we did not have a desk top computer and all legal research was done using the physical books that were either in the firm’s small library or at the nearby law school law library.
When I was called to the Ontario Bar in 1992, lawyers were only beginning to get desktop computers installed in their offices. Thus, online commercial legal research sources were still in their infancy as the legal publishers were still developing platforms that could be utilized over the internet and easily accessed from a law office computer.
At the time, the Canadian Abridgment Digests became one of the first product that was made available on a CD-Rom and eventually Carswell was able to develop an online research tool to rival Quicklaw.
The race toward the virtual library had begun.
Today, law students and the legal profession have become dependent on using online tools to conduct legal research. Paper products have disappeared from library bookshelves as lawyers and students access virtual law libraries. However, as I recently discovered, conducting online legal research is not necessarily easy if the point of law being searched is a common word.
The words “and” and “or” are words that have received a lot of judicial consideration. But they are so common that trying to find jurisprudence in which they have been judicially interpreted using online search tools can prove difficult.
For example, there are some tools available online that are specifically created to assist the researcher in understanding how certain words have been judicially considered. For example, the product “Words & Phrases” might be a good place to discover how the words “and” and “or” have been interpreted. However since both “and” and “or” are Boolean search connectors, they are “stop words” when entered electronically in the relevant search fields of this tool. Accordingly, no results can be obtained.
Meanwhile online dictionaries are not necessarily adequate either, as I discovered when searching a dictionary on another online private commercial source even though these two very common words have received much attention.
So in order to track down the relevant law in which the meaning of common words is sought using virtual research tools, a legal researcher must think of other words and search strategies to produce the desired results.
But finding an alternative might still prove to be elusive. For example, a researcher might try to use different natural language searches or different Boolean search strings such as: “contractual /s interpretation /s “and”” or “meaning /s “and” /s “or””. However, these search strings produce unsatisfactory results.
Thus, a legal researcher might currently still be tempted to hop in a car, while we work from home during the COVID pandemic and potentially in the future, and drive to the office to access a hard copy of a law dictionary to discover the legal meaning of the word “and” and “or”, especially where there is time pressure to find an answer.
But this is an easy way out and is likely to be unavailable in the future as law firms feel the pressure to convert their physical law libraries to virtual law libraries that are accessible to all lawyers and law students from their computers at all times of the day.
Accordingly, in an evolving world where technology is replacing paper, it is incumbent for legal researchers to evolve their methodologies to match the evolution that is taking place in the legal publishing world.
For online research where the only source available might be a case law database because helpful textbooks have not yet been converted to an electronic format or might not be included in a firm’s subscription, the meaning of common words like “and” and “or” requires the researcher to utilize uncommon words. For the words “and” and “or” those uncommon words are “conjunction”, “conjunctive” and “disjunctive”.
As a matter of contractual or statutory interpretation the words “and” and “or” are sometimes interpreted “conjunctively” or “disjunctively” depending on context. Using these uncommon words in a search string will open the door to retrieving the relevant case law to help answer legal questions involving how a court might interpret these common words in a contract or a statute.
Although it cannot be doubted that more and more legal research will be dependent on the use of online tools, whether through publicly accessible sites like CanLII.org or privately purchased commercial tools like WestlawNextCanada or Lexis Advance, hard copy books should not be discounted until such time as these books are converted to an electronic format and made widely available to the legal community in such format. While I am a veteran research lawyer who can easily shift to an online legal research world and discover the keywords necessary to retrieve relevant case law where the interpretation of a common word is at stake, the less experienced legal researcher might struggle.
The take away is that while legal publishers need to rapidly convert paper titles into electronic format, legal researchers must appreciate that there will always remain potential frailties in online legal research and that great care and thought sometimes is required to locate and retrieve the necessary cases on point.
Thank you to Stephen for allowing us to reprint his post here.
In the newest addition to our Legal Ease Guides, we provide you with a helpful summary and quick tutorial of tracing the legislative history of federal and provincial acts.
Discover how to track changes to an act, find amendments, and discover the originating acts of current statutes.
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