BCCA Practice Directive Re Citation of Authorities

The British Columbia Court of Appeal recently (May 30) released a practice directive dealing with the citation of authorities. Based on the McGill Guide, as you’d imagine, it sets out in detail what the court (the directive would have “Court”) requires, down to the level of periods and point size. Importantly, it recognizes the supremacy and sufficiency of the neutral citation, noting that “[a]dditional (parallel) citations are optional.” The directive also encourages the use of hyperlinked citations and requires citation to paragraph number rather than page number, inferentially acknowledging the death of print versions.

The comparable directive from the Ontario Superior Court is now almost two years old and should be updated to omit reference to citations to print versions, reflecting the robustness of CanLII, the neutral citation, and hyperlinking. That directive was well critiqued on Slaw at the time of its release by Ted Tjaden and those who commented on his post.

Comments

  1. Two steps forward — but at least one step back, with the direction (rule I.2) to “Always use periods within citations where omitted by the McGill Guide.” I wonder who insisted on this backwards step?

  2. Kristin Hodgins

    I am particularly interested in #19:

    “Avoid overly formalistic language, such as “this Honourable Court,” “hereinafter,” “heretofore,” “aforesaid,” or “learned”. Use Latin phrases only when necessary.”

    I’m not entirely convinced it will have any noticeable impact on the language used in submissions to the courts; it doesn’t encourage the use of plain, concise writing but merely discourages the use of overly formalistic language. I’m wondering if the purpose is to improve (albeit in a very small and incremental way) the accessibility of the language for litigants generally? Regardless, I hope this is the first step of many toward requiring the use plain language where appropriate.

  3. Paragraph 2 is the glaring exception in a list of sensible citation directions. As Louis writes, that one’s a step backward. Who cannot comprehend that DLR in a citation today means the same as D.L.R. once did? Maybe my reading lenses are rose-coloured, but I have hope that most who cite cases can learn, and will quickly adapt to such improvements if they just try for a minute or two.

    Style-wise, forcing people to downgrade their written submissions to 12 pt Arial seems inhumane. Someone should buy the Court a copy of Matthew Butterick’s “Typography for Lawyers”.

  4. David Cheifetz

    Louis,

    Assuming it has nothing do with any coding issue relating to the BCSC and BCCA’s own judgment databases, then probably the people who preferred consistency, for the moment, and realized that this is another instance where the courts shouldn’t lead. The citation form in most of the Canadian hard copy sources still uses the periods. Also BC’s “local” case reporters – BCLRs, WWR, and unless things are changing the BCJs and CarswellBC – still use periods in the citations.

    And – this should matter – the S.C.R.s

    Cheers,

    DC

  5. David,

    How about:

    12 pt Arial is [choose one of [easier][more difficult]] for a judge to quote without attribution?

  6. The ultimate Neutral Citation Anointment

    The recently released British Columbia Court of Appeal’s practice directive on the Citation of Authorities (Civil & Criminal Practice Directive, 30 May 2013) is a strong statement in favor of the precedence of the Neutral Citation standard for case law, which allows for a significant move towards the simplification of most citation practices.. The Court asks parties preparing factums of submissions to limit parallel citations to two, beginning with the neutral citation when available (s.3) and to omit useless terms or information in certain circumstances (ss. 5 and 6). The court is also taking stock of the actual sources of legal information in Canada today, that is, electronic databases, and encourages hyperlinking to freely available sources such as the Court’s own website, CanLII, and Lexum’s Supreme Court of Canada decisions website. This is showing leadership. However, as strong as the Court’s anointment of the Neutral Citation may be, one fundamental aspect of this standard has been negated by the first sentence of section 2, which reads: “Always use periods within citations where omitted by the McGill Guide.”

    We, Frédéric Pelletier and I, took a personal interest in freeing the legal community from useless punctuation that used to characterize Canadian legal citations. When I led the design of the Canadian Neutral Citation scheme in the nineties, I made certain that no dots or brackets, square or round, would encumber the new citing device. My approach and that of the Canadian Citation Committee was to avoid useless elements. The use of brackets around the year was strongly encouraged by some, however it did not make it in the Standard, for it was useless. We had discussions about throwing in some punctuation, perceived as a marker of rigor by some. At the end, even the temporary advantage of having a neutral citation looking traditional was pushed aside, and the new citation was adopted as it is now: efficient and neat. The support of judicial authorities, if not immediate everywhere, came rapidly after its adoption in 1999. The British Columbia Court of Appeal and the Supreme Court of British Columbia were among the first to support the new citation.

    As many others, I had the privilege to consult with the authors the McGill Guide a couple of year back when they were working on the 7th Edition of their book. I pleaded as strongly as I could for the abandonment of the useless periods in citations. Later on, I pushed for the simplification of citations on CanLII by proposing this new policy to its Board, which was presented to CanLII users on May 17th, 2011 in the “Acronyms and Abbreviations Without Periods” post on CanLII blog by Frédéric Pelletier who designed the CanLII approach. We are still waiting for the uproar anticipated by a few. The simpler use of CCC, DLR or RSC works well not because we Canadians are geniuses; it simply works here as it works abroad in US and Australia.

    The adaptation of legal citations to the information age will result from many contributions and take place through many steps over time. The reduction of useless punctuation is one aspect of this evolution. The adoption of the British Columbia Court of Appeal’s new practice directive is a significant step towards this goal. Let’s hope that other main Canadian courts will follow the leadership of the British Columbia Court of Appeal in adopting simpler and more efficient citation directives.

    Daniel

  7. Daniel,

    Except that the SCC Lexum site is still using periods for the SCR cites.

    http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/2012/nav_date.do.

  8. Thanks, David.

    The dots will disappear in the Lexum’s part decision, in the header with a gray background. However, we will refrain from changing the way the Court wants to cite in the “body” of the decision. That ‘decision’ belong to them.

    d.

  9. In response to the comments above, especially regarding “consistency” in citation formatting in databases, the reference librarians here at Osgoode ran some tests in a few databases to see whether search results would be affected by the inclusion or exclusion of periods when running full-text searches using a citation as a phrase in the search string. We searched the following sample citation and variants as a phrase:

    30 D.L.R. (3d) 1
    30 DLR 3d 1
    30 DLR3d 1

    We discovered that both Lexis (Quicklaw) and CanLII returned accurate and consistent search results whether or not periods or brackets were used in the search string or appeared in the online text being searched. We obtained the same results regardless of which of the three citation formats were used. These databases seem to be “puntuation neutral” when searching citations as phrases.

    However, when searching full-text in Westlaw, results were completely dependent on matching the punctuation in the search string with what appeared in the text. In fact, full-text searches using no periods in the search string “20 DLR 3d 1” retrieved no hits. The results seemed to be sensitive not only to the use of periods in the citation, but also to the use of brackets.