This guide is intended for researchers with little or no formal legal training but wishes to conduct basic legal research. Most resources linked in this guide are free online resources available with a library subscription.
Legal Problem Solving
Legal researchers may approach a legal problem in a number of ways but there are a number of common steps that most will follow when presented with a legal problem:
For more information see Principles for Legal Research - Learning Module, Brian Dickson Law Library, University of Ottawa
Maureen F. Fitzgerald's Legal Problem Solving: Reasoning, Research and Writing, 4th ed. (Markham: LexisNexis Canada, 2013).
Getting Oriented - Read!
In order to determine the relevant facts and legal issues requires some understanding of the law. Unless we are very familiar with the research topic we will begin by looking at Commentary (Explanations of the Law). Traditionally legal texts and encyclopedias were used to help lawyers and legal researchers get oriented to the applicable law. Increasingly preliminary research can be done online with care.
Finding the Law (Statutes)
Your preliminary reading should have provided references to key statutes (Acts) that set out the law relating to your research question. There may be more than one applicable statute or regulation, and their may be different statutes in different provinces.
Finding the Law (Cases)
Case law serves two purposes: 1. it applies the statutes law to specific contexts and 2. it creates law in areas where there is no statute law that governs. In the Canadian system cases can establish a precedent which means that courts generally follow earlier decisions and that the decisions of higher level courts are even binding on lower level courts. It is important to identify "leading cases" that established the legal precedent.
Researching law requires understanding three important criteria: JURISDICTION, CURRENCY, and AUTHORITY.
Jurisdiction refers to the territory or region where certain laws apply. Canada is a jurisdiction and the Federal government passes laws that apply only in Canada. Provinces are also jurisdictions, and so are cities like Halifax. Each jurisdiction creates its own applicable laws. Nova Scotia passes laws that apply only within the province.
Jurisdiction can also refer to the authority that a decision making body has to make judgments. The Nova Scotia Supreme Court has jurisdiction to hear cases that originate in Nova Scotia, and their judgments are only binding in Nova Scotia. The Supreme Court of Canada has jurisdiction to hear cases from all across Canada. The Nova Scotia Family Court has jurisdiction to hear cases involving child protection, while the Tax Court has jurisdiction over property tax disputes.
In which jurisdiction does this law apply? Which court has jurisdiction to address this complaint?
Currency is concerned with the state of the law at a particular time. Laws do not remain static; they change and evolve with society. A statute might be repealed if it is no longer relevant or it may be changed (amended). if the problem you are researching occurred in the past you will need to determine what laws applied at that time.
Currency also applies to cases. A case might be appealed to a higher level court and the original judgment can be overturned. The judgment from the original case is then no longer considered to be "good law." It is important then to know the history of a case. Newer cases might also change the application and interpretation of earlier cases so we must consider how later cases applied them.
Am I applying the most current laws and case judgments to my legal problem?
Authority refers to the right and expertise of a particular source source. This is important for any kind of research but particularly relevant in legal research. Judges have authority to render a decision in a case before them. Higher level court decisions are more authoritative than lower level courts.
Authority is also important when considering commentary on cases and legislation. The legal community recognizes certain people as experts in the field. For example, Peter Hogg is considered a Constitutional law expert, and G.H.L. Fridman is considered a Tort law expert. When consulting material online be mindful of the source and what qualifies them to be legal experts (e.g. a paper published by a Family Law firm on divorce would likely be an authoritative source.)
Am I using the most important (authoritative) cases and explanations of the law available?