McGill Guide 9.1: Suggestions for improvement

I’ve said that ci­ta­tion lay­out is some­thing that can and should be au­to­mat­ed. But as long as we are do­ing this work our­selves, it is help­ful to have clear rules. Clear rules will also make it eas­i­er to au­to­mate this work. There are sev­er­al rules and ex­am­ples in the McGill GuideCanadian Guide to Uniform Legal Citation, 9th ed (Toronto: Thomson Reuters, 2018). This is one of Canada’s legal citation guides. It’s widely but not universally used, and it has been criticized as exclusionary. See Louis Mirando, “Legal Citation: Beyond the McGill Guide”, Slaw (8 December 2014). that could use some ex­tra clar­i­ty or cor­rec­tion.

Extra clarity needed

Here are some ci­ta­tion rules that I’ve had difficulty au­tomat­ing be­cause of am­bi­gu­i­ty in the McGill Guide. I’ll de­scribe these and sug­gest some ways to make these rules clear­er.

“cited to”

Section 3.6.2 of the McGill Guide says:

Cite the pin­point ref­er­ence to the most official re­porter, men­tioned first … If sub­se­quent­ly cit­ing to pin­points, add cit­ed to af­ter the short ti­tle, fol­lowed by the ab­bre­vi­a­tion in the re­porter. No cit­ed to is nec­es­sary when not sub­se­quent­ly re­fer­ring to pin­points or if the first ci­ta­tion con­tains a pin­point.

They give this ex­am­ple:

Delgamuukw v British Columbia, 79 DLR (4th) 185, [1991] 3 WWR 97 (BCSC) [Delgamuukw cit­ed to DLR].

First, this ap­pears re­dun­dant. If the pin­points must al­ways re­fer to the “most official re­porter, men­tioned first”, then there is no need for the “cit­ed to” an­no­ta­tion along­side the short form ti­tle.

Second, the ex­am­ple in Section 1.3.7 presents an­oth­er difficulty (em­pha­sis changed by me):

¹ Roncarelli v Duplessis, [1959] SCR 121, 16 DLR (2d) 689, Rand J (dis­cre­tionary de­ci­sions must be based on “con­sid­er­a­tions per­ti­nent to the ob­ject of the ad­min­is­tra­tion” at 140); Oakwood Development Ltd v St François Xavier (Municipality), [1985] 2 SCR 164, 20 DLR (4th) 641, Wilson J [Oakwood cit­ed to SCR] (“[the] fail­ure of an ad­min­is­tra­tive de­ci­sion-mak­er to take into ac­count a high­ly rel­e­vant con­sid­er­a­tion is just as er­ro­neous as the im­prop­er im­por­ta­tion of an ex­tra­ne­ous con­sid­er­a­tion” at 174).

Why does Oakwood take a cit­ed to, but Roncarelli does not? Roncarelli isn’t giv­en a short-form, so pos­si­bly is nev­er cit­ed again in this hy­po­thet­i­cal ar­ti­cle. But maybe lat­er ref­er­ences just use the full style of cause since it’s short enough, in which case a short-form would not need to be in­tro­duced here. But both ci­ta­tions con­tain a pin­point, al­though moved into the par­en­thet­i­cal rather than placed along­side the main ci­ta­tion. If we use cit­ed to to pro­vide a re­minder about which re­porter’s page num­bers are be­ing used, sure­ly both of these ci­ta­tions would re­quire it equal­ly.

My sug­ges­tion for the next re­vi­sion of the McGill Guide is to re­move the cit­ed to el­e­ment be­cause the main ci­ta­tion—the first-list­ed re­porter—is al­ways the one cit­ed to.

Form of citation when full style of cause is in the text

Did you know that when the full style of cause is in the text, you are not to in­clude it in the ci­ta­tion? This lit­tle-known rule is pre­sent­ed in Section 3.3: “If the style of cause is in­di­cat­ed in the text, do not re­peat it in the foot­note.”

The only ex­am­ple of this is found in Section 1.4, as it is also an ex­cep­tion to the rule that every ci­ta­tion should have an in­tro­duc­to­ry sig­nal:

In R v Stinchcombe¹, the court held that…

¹ [1991] 3 SCR 326 at 333, 1991 CanLII 45 (SCC).

(The McGill Guide also has two er­rors in this ex­am­ple: the note num­ber should come af­ter the com­ma, and there is no need for the ju­ris­dic­tion/court in­for­ma­tion “(SCC)” be­cause it is ev­i­dent from the ti­tle of the re­porter “SCR”. The ex­am­ple just pri­or to this one in the McGill Guide got that right.)

This rule would be more clear and more wide­ly known if that ex­am­ple were shown along­side the ac­tu­al rule in Section 3.3. It should also be made clear that if the style of cause in the text is not the full style of cause of the ac­tu­al case be­ing cit­ed (e.g. a more wide­ly known style of cause from a low­er court, like Eric v Lola) then the full style of cause needs to be in­clud­ed in the ci­ta­tion:

In Eric v Lola,¹ the court held that…

¹ Quebec (AG) v A, 2013 SCC 5 [Eric v Lola].

Combining citations, parenthetical information, pinpoints, and textual content in a footnote

The McGill Guide doesn’t give clear guid­ance on how to do this. The only ex­am­ples they give are of par­en­thet­i­cal in­for­ma­tion with­in a ci­ta­tion at Section 1.3.7 (al­ready shown above, but re­peat­ed here with orig­i­nal em­pha­sis):

¹ Roncarelli v Duplessis, [1959] SCR 121, 16 DLR (2d) 689, Rand J (dis­cre­tionary de­ci­sions must be based on “con­sid­er­a­tions per­ti­nent to the ob­ject of the ad­min­is­tra­tion” at 140); Oakwood Development Ltd v St François Xavier (Municipality), [1985] 2 SCR 164, 20 DLR (4th) 641, Wilson J [Oakwood cit­ed to SCR] (“[the] fail­ure of an ad­min­is­tra­tive de­ci­sion-mak­er to take into ac­count a high­ly rel­e­vant con­sid­er­a­tion is just as er­ro­neous as the im­prop­er im­por­ta­tion of an ex­tra­ne­ous con­sid­er­a­tion” at 174).

The McGill Guide doesn’t say how to sub­se­quent­ly in­clude a par­en­thet­i­cal that quotes from Justice Taschereau’s dis­sent in Roncarelli.By the way, the old Supreme Court Reports look so nice. Every page tells you whose words you’re reading with a cute little margin note. They use a didone/modern typeface. Footnotes are centred. Line spacing seems perfect. And blockquotes are clearly distinguished with a smaller size.

Should that look like this?

² Roncarelli v Duplessis, supra note 1 (“[l]‘ab­sence de cet avis in­ter­dit aux tri­bunaux de pronon­cer au­cune con­damna­tion” at 140, Taschereau J, dis­sent­ing).

Or like this?

² Roncarelli v Duplessis, supra note 1, Taschereau J, dis­sent­ing (“[l]‘ab­sence de cet avis in­ter­dit aux tri­bunaux de pronon­cer au­cune con­damna­tion” at 140).

The McGill Guide clear­ly lim­its par­en­thet­i­cal in­for­ma­tion with­in a ci­ta­tion to a “brief de­scrip­tion or quo­ta­tion of not more than one sen­tence.” Often though, foot­notes con­tain more in­for­ma­tion than would make sense in a par­en­thet­i­cal. There are few al­ter­na­tives for how to present this.The following examples all come from Val Napoleon & Hadley Friedland, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” (2016) 61:4 McGill LJ 725.

You could just cite with­in the foot­note as if you were writ­ing body text with in-text ci­ta­tions (that is, set the ci­ta­tion off with a set of paren­the­ses):

²⁸ This method ex­plains and ex­pands on John Borrows’ in­no­v­a­tive work, in which he ap­proach­es Indigenous sto­ries as nor­ma­tive re­sources, an­a­lyz­ing a sin­gle Anishinabek sto­ry by retelling it in a case brief form (see John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 16–20).

There is also the ex­tend­ed in­tro­duc­to­ry sig­nal, which in this case even sep­a­rates the au­thor name from the ar­ti­cle ti­tle:

⁵⁰ See John Borrows’ rich dis­cus­sion of some of this in­ter­nal ar­chi­tec­ture in his ar­ti­cle from this spe­cial is­sue, “Heroes, Tricksters, Monsters, and Caretakers: Indigenous Law and Legal Education” (2016) 61:4 McGill LJ 795.

There is the cite-then-ex­plain ap­proach:

³¹ See gen­er­al­ly Bruce Granville Miller, Oral History on Trial: Recognizing Aboriginal Narratives in the Courts (Vancouver: UBC Press, 2011). Miller ex­am­ined over thir­ty cas­es and con­clud­ed that…

The McGill Guide doesn’t ad­vise which of these ap­proach­es to take, per­haps be­cause it is not a style guide. The Chicago Manual of Style sug­gests, “When a note con­tains not only the source of a fact or quo­ta­tion in the text but re­lat­ed sub­stan­tive ma­te­r­i­al as well, the source comes first. A pe­ri­od usu­al­ly sep­a­rates the ci­ta­tion from the com­men­tary.” And, “When a note in­cludes a quo­ta­tion, the source nor­mal­ly fol­lows the ter­mi­nal punc­tu­a­tion of the quo­ta­tion. The en­tire source need not be put in paren­the­ses.”The Chicago Manual of Style, 17th ed (Chicago: University of Chicago Press, 2017), ss 14.37, 14.38.

My sug­ges­tion would be for the McGill Guide to ex­plic­it­ly rec­og­nize that vari­a­tion be­tween these ap­proach­es is okay, and that the choice should de­pend on how the foot­note’s con­tent re­lates to the ac­com­pa­ny­ing body text. Sometimes, it will make sense to place the ci­ta­tion first and then some clar­i­fy­ing re­marks. Sometimes, the pur­pose of the foot­note is a clarification which it­self hap­pens to need a ci­ta­tion.

For ed­i­tors or jour­nals de­sir­ing more uni­for­mi­ty, they could adopt the rec­om­men­da­tions of the Chicago Manual of Style on this point.

Corrections

There are also a few small er­rors that can eas­i­ly be fixed:

• French Section 1.4.3 refers to note 59, which doesn’t ex­ist. The cor­re­spond­ing ex­am­ple in the English sec­tion has an ad­di­tion­al foot­note which is miss­ing from the French ex­am­ple.
• French Section 3.4 presents an ex­am­ple of what not to do. Perhaps that is in­ten­tion­al, but it would be the only such ex­am­ple in the McGill Guide and the cor­re­spond­ing ex­am­ple in the English sec­tion shows the cor­rect ci­ta­tion.

The big picture

None of this REALLY mat­ters. This isn’t what law or writ­ing is about. But con­sis­ten­cy and a de­gree of uni­for­mi­ty with­in a pub­li­ca­tion’s ci­ta­tions can be im­por­tant to ed­i­tors and read­ers. So, we will spend time try­ing to get these things right. I think the small changes sug­gest­ed above could save writ­ers and ed­i­tors many hours that would be bet­ter spent on mak­ing our writ­ing clear­er or check­ing that our sources sup­port our claims.