Ted Tjaden (August 20), Mark Lewis (September 3), and Shaunna Mireau (September 9 and September 14) have already posted on the McGill Law Journal’s Canadian guide to uniform legal citation, 7th ed. (Toronto: Thomson Carswell, 2010), and many others have commented. Here are a few additional links, just for reference:
- Library and Archives Canada Amicus No. 38179070
- Carswell pub. no. 1852 (hardcover)
- Carswell pub. no. 1853 (softcover)
I hope it’s not too late to add a few words of my own. I thought I should hold off until I had actually seen a copy of the Guide, and that took me a while. My emphasis, like Shaunna’s, is on the citation of the so-called “Electronic sources.” (My thoughts on periods haven’t changed since I posted “From Punctuation to Markup” back in August 2009.)
What peeves me most is that the Guide still seems to assume that the printed page is the most important (if not the only) place where sources, electronic or otherwise, will be cited. It’s not. We’ve had the web and practical hyperlinking for twenty years now, for heaven’s sake. (Isn’t heaven where all the clouds are?) Editors and authors should be thinking “web” as much as “print” by now.
People who know me understand that I live my life surrounded by bound printed pages. I love the things. I have thousands of them, and I’m still buying more. Occasionally, I still even download something (copyright permitting, of course) and have the printouts bound. When I’m reading microfilm (which I do a lot), I still tend to use a pen, a notebook, and cursive script. But more and more of what I now write, even just research notes for myself, I write first and foremost for the web. I include hyperlinks because they’re just so very convenient to use. Sometimes I even scan or digitally re-key portions of my older research notes and put them on my intranet, just for convenience.
The simple fact is that, for most practical purposes, the hyperlink is now the better way to cite. Who can seriously dispute that? How often do those of us staring at a convenient link to Wexis or Hein now go to the library stacks instead to read that article from the McGill Law Journal–or should I have written “McGill L J”? Even if I want print, I’m more likely to print from a web site. Here is a link to The King v. Phelps at Tay. 47. The title page for the volume is here. For those of you who don’t spend much time thinking about Upper Canada in the 1820s, I didn’t make that abbreviation up. It’s the citation that the LexisNexis version of the case gives (see below), and it’s in the Cardiff Index. Those with incurable Bieber fever–not to be confused with this illness–can ignore these three links, use a book to decipher the abbreviation instead, and hope that the version of the title given in the book can somehow be found in a catalogue record like this (2nd ed.), this (2nd ed., LLMC filming), this (1st ed.), or this (1st ed., CIHM filming). If it is, then we walk to the stacks or the microform cabinets, as appropriate. So much more convenient than clicking on the link, right?
But that’s not the end of it. To cite the case “properly”, we try (and fail) to find Taylor or Tay KB in Appendix C of the Guide, but somehow find UCKB instead. We intuit that Taylor should be volume 1 of that, even though there’s nothing about Taylor being volume one of anything on the title page of the book. (The first catalogue record noted above helpfully tells us that Taylor was continued by “U.C.Q.B. old series vol. 3-“. Volume 2 would be Draper, of course, the second edition of which was filmed as CIHM 94474.) Since the case I want to cite was a civil case involving the Crown, section 3.3.9 of the Guide tells me to change the name. So my citation becomes “Upper Canada v Phelps (1823), 1 UCKB 47″. I already had a working hyperlink, and I’ve gone to a fair bit of trouble to construct a citation the elements of which mostly don’t correspond to anything that I could find on the relevant pages of the printed book to which it refers. I haven’t touched the book in order to do this, and very few of the readers who look up the case are likely to do so either. Is this an efficient use of time? Of course the URI is an ugly one, but on a web site you don’t have to look at it.
Maybe I’m odd, but on a web page for my personal use, I would want to keep track of both the print and web versions. I might have Upper Canada v Phelps (1823), 1 UCKB 47 (archive.org)(LLMC), 1 CNLC 411,  OJ no 17. I know. The industry still has work to do. Many of you don’t subscribe to LLMC. LLMC, strangely, doesn’t appear as an “Electronic Service” in Appendix E of the Guide, so I’ve had to improvise. Some who do subscribe may need to copy and paste the link into the location bar of a previously opened LLMC tab. The lexisnexis link probably isn’t going to work for non-Quicklaw subscribers. Those in Australia, New Zealand and the UK can try changing “ca” to “au”, “nz” or “uk”. I have no idea what to suggest for those in the US. The company should make it a priority to do something about this, I think, because websites, unlike books, can be read in more than one jurisdiction at a time. Westlaw doesn’t seem to have this case. In any event, what about this citation? Section 3.1 of the Guide says:
Whenever possible, provide the reader with at least two sources to make sure the information is appropriately identified and accessible. Include as many sources as might be useful.
Since a hyperlinked source is usually the most useful thing you can give a reader, this is an improvement. Section 3.2.9 of the 6th edition just said “List at least one parallel citation whenever possible.” So far so good. But section 3.1 of the 7th edition goes on to say:
Before citing less authoritative sources, make sure that more authoritative sources are not available (e.g. do not cite an electronic service before citing an official reporter).
- Always provide the neutral citation if it is available.
- After the neutral citation, provide the official reporters (SCR, FC or ExCR).
- If the neutral citation and/or official reporters are not available, provide the semi-official reporters.
- Lastly, provide other sources (electronic services, unofficial reporters, etc.)
There’s confusion here. Have a look at McConaghy v Denmark (1880), 4 SCR 609, 1880 CarswellOnt 216,  SCJ no 9. I’ve put the official version first, i.e. the volume published by the Registrar of the Court and printed by the Queen’s Printer. The Internet Archive has a digital version of this volume, so I’ve linked to it. (The title page is here.) Did I give this electronic version last? The rule doesn’t quite fit the situation with hyperlinks, now does it? By the way, I do know that my links to (QL) and (WL Can) are a bit non-standard, and will probably break eventually. I do them this way so that I can construct them using just the elements from the print-style citations. The links usually work, and it saves considerable labour. Of course, the program that one vendor will have for this purpose won’t play nicely with the programs of the other vendors.
The Jurisprudence chapter (3) of the 7th edition of the Guide still has a separate section (3.8) for “Electronic Services”. Section 22.214.171.124 tells us to write “ FCJ no 26 (QL)”; section 126.96.36.199 tells us to write “1995 CarswellOnt 88 (WL Can)”. Why? Because “1995 CarswellOnt 88 (QL)” would mean something?
In the 6th edition of the Guide there were monstrosities like (in section 188.8.131.52.2) “Vanderburgh v. ScotiaMcLeod Inc.,  6 W.W.R. 673 at 675 (Alta.Q.B.)(QL)“. Not much has changed, unfortunately. In the 7th edition (in section 3.8.1) we see “Desputeauz c Éditions Chouette (1987) Inc,  RJQ 945 (available on Azimut)” and “R v Wilkening, 2009 ABCA 9 (available on WL Can)”. The new rule is:
When a judgment has been published in printed reporter and/or has a neutral citation, write the neutral citation or the printed reporter, then write in parentheses available on, followed by the name of the electronic service.
Why not “Vanderburgh v ScotiaMcLeod Inc,  6 WWR 673 at 675, 1992 CarswellAlta 111,  AJ no 715 (QB)” and “R v Wilkening, 2009 ABCA 9 (CanLII), 2009 CarswellAlta 11“? My reason for disliking “ 6 W.W.R. 673 at 675 (Alta.Q.B.)(QL)” should be obvious: the Western Weekly Reports aren’t on LexisNexis Quicklaw. “ AJ no 715” may be the same case, but LexisNexis Quicklaw doesn’t offer the headnote and other editorial features of the WWR version of that case. I’m usually not going to care about those things, but it still isn’t the WWR version, and it’s just wrong to pass if off as such. My reason for adding “1992 CarswellAlta 111”, and not linking “ 6 WWR 673” to Westlaw may be less obvious, but it’s the same. Even though Thomson Reuters (and its forbears) may have published the same case in all of CarswellBC, WWR, BCLR and RFL (for example), the headnotes and other editorial features are not necessarily the same in all versions. The CarswellBC version may have some of the same such features as one or more of the others, but you can’t tell which without comparing CarswellBC to the print volume. In any event, CarswellBC doesn’t indicate where the page breaks are. So it really isn’t functionally the equivalent of any of the print versions. I hope that, when BestCase disappears into Westlaw, we don’t lose the page images.
There is a use for the parenthetical “electronic service”, as “2009 ABCA 9 (CanLII)” illustrates. I can add a link to the CanLII version, but not to a vendor-neutral version which exists only as an idea. I’m not sure that I like the look of “Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII)(LexUM),  1 SCR 190″, but I can’t think of a better alternative. I can make a principled argument for “Dunsmuir v New Brunswick, 2008 SCC 9,  1 SCR 190, 2008 SCC 9 (CanLII), 2008 SCC 9 (LexUM)“, but I just feel silly writing that.
I could amend my citation of McConaghy v Denmark (1880), 4 SCR 609 (archive.org)(LexUM)(LLMC), 1880 CarswellOnt 216,  SCJ no 9 too, if I wanted to give my readers some extra choices. (For older cases, LexUM provides images, making it functionally equivalent to the print version. Occasionally, in “csi=281150”, one finds LexisNexis versions of older SCR cases which indicate the page breaks, abandoned relics apparently. Maybe an insider will reveal the secret history some day of why we don’t get star-pagination in Canada.)
The Guide lists the publications that have adopted the Guide immediately after the title page. The list is also on lawjournal.mcgill.ca. It’s a good list. I haven’t checked every single journal listed, but I think there are web versions of most. So it’s difficult to know why the group remains so focused on print. They should be thinking about how their citations will work on the web as well. As noted, we’ve had practical hyerlinking for twenty years now, and there can’t be many left who still have a Math Barbie attitude towards the technology.
I’ve arbitrarily chosen an article to illustrate: J.W. Neyers, “Explaining the Principled Exception to Privity of Contract” (2007) 52 McGill LJ 757 (QL)(WL Can). The (QL) and (WL Can) versions that I’ve linked to are full text versions with working links, but no images. The (WL Can) version shows page breaks. Since the (QL) version doesn’t, it isn’t quite the functional equivalent of the printed edition. I would thus prefer to have a distinctive citation for the LexisNexis version (other than an ugly URI), but who knows what that would be? In any event, the link resolver at York University tells me that I have access to eight additional full text versions of this article:
- EBSCOhost Business Source Premier (image, no working links)
- Expanded Academic ASAP (text or image, no working links)
- Gale Cengage Academic OneFile (broken link)
- Gale Cengage CPI.Q (text or image, no working links)
- Hein Online Law Journal Library (image, no working links)
- LegalTrac (text or image, no working links)
- Lexis-Nexis Academic Universe (only partial implementation of OpenURL: text, working links)
- Wilson Index to Legal Periodicals and Books (text or image, no working links)
As this illlustrates, we don’t have the best of all possible worlds anywhere yet: full OpenURL compliance, text with working links, and images. Even where there’s progress on linking, we have vendor silos. (QL) and (WL Can) only link to their own sites, and don’t use the OpenURL standard. And the link resolvers that work with OpenURLs are (as far as I know) all operated pretty locally just because the relevant licences provide access only to particular communities.
The OpenURL standard (ANSI/NISO Z39.88-2004) represents, nonetheless, real progress in vendor cooperation with respect to linking. The registry for the standard is managed by OCLC. Applying the standard, an OpenURL URI for the Neyer article would point to a link resolver (such as sfx.scholarsportal.info, used by Ontario universities), and uniquely identify the article by means of parameters like the following:
If you have a look at what I had to do to construct (QL: sr=JOURNAL-CITATION(“52+McGill+L.J.+757”)&csi=281495) and (WL Can: cite=52+McGill+L.+J.+757) links to the article, you’ll probably guess that I’d prefer to use an OpenURL. There’s just so much arbitrariness in citation formats and database identifiers. Still less arbitrary than the permalinks, though.
This raises another question. Why on earth does Appendix D of the Guide give us “standard” Canadian abbreviations for U.S. law journals? Couldn’t they just adopt Appendix 5 of the ALWD Citation Manual, 4th ed. (Frederick MD: Aspen Publishers, 2010) or the Bluebook equivalent for U.S. law journals? The lack of standardization across borders is a real pain for people who publish in more than one jurisdiction.
Section 21.5(a)(1) of the ALWD Citation Manual has this excellent advice:
When possible, follow local conventions (such as citation guides for a particular country) for the country within which the source originated. For example, use Canadian conventions when citing a Canadian case.
Examples for “Selected foreign materials” (including Canadian materials) follow in section 21.5(b), prefaced as follows:
Listed below are sample citations from selected foreign countries. Use these examples only as guides; when listed, consult the citation guide for the country.
The examples are now all out of date, of course, because of the urgent need to expunge the period from Canadian legal writing.
There is no such spirit of comity to be found in the imperialist McGill Guide. Section 7.2 (“United States”) tells us tersely: “See the latest edition of The Bluebook: A Uniform System of Citation.” The examples make it clear, notwithstanding, that American periods will not be welcome.
Again in the spirit of comity, I would humbly submit that there’s no reason at all to cite law journals any differently than we cite the journals of any other discipline. Cross-disciplinary standardization would be a good thing too. The Chicago Manual of Style, 16th ed. (Chicago: University of Chicago Press, 2010) wisely says, in section 14.281
Citations in predominantly legal works generally follow one of two guides: (1) The Bluebook: A Uniform System of Citation …; or (2) the ALWD Citation Manual: A Professional System of Citation …. For Canada, see 14.305. … Chicago recommends using one of these systems for citing legal and public documents–including cases, constitutions, statutes, and other government documents–even in works with a predominantly non-legal subject matter. This departure from Chicago’s previous recommendations recognizes the ubiquity of these systems in legal publications, commercial databases and government archives. Any editor working extensively with legal and public documents should have one of these manuals on hand.
Section 14.305 adds:
The major reference work for citing Canadian public documents and legal cases in a Canadian context is the Canadian Guide to Uniform Legal Citation …
In other words, “public documents and legal cases” are our specialty. But law journals are just journals. Seems fair to me.
Speaking of the Chicago Manual, maybe I missed it, but I couldn’t find a single reference to the Chicago Manual in the McGill Guide. That’s a shame. The Chicago Manual is a far more comprehensive guide to best editorial practices, and demonstrates much more awareness of developments in publishing technology. Appendix A, for example, is entirely about “Production and Digital Technology”, and includes a pretty fair introduction to XML.