Are Marginal Notes Trivial?
Last October, Les Publications du Québec — the official printer for Acts and regulations in that province — started to remove marginal notes from its newly updated consolidated legislation collection called “Compilation of Québec Laws and Regulations”. When an Act or regulation gets amended, all its marginal notes are now removed from the text. Marginal notes in Quebec legislation will therefore progressively fade out as consolidated texts are being updated.
Marginal notes are words and small phrases that were traditionally displayed in the margin of printed statutes, providing hints about the content of specific provisions. Modern typesetting conventions tend to put them not at the margin, but at the top of sections and subsections, as if they were small headings.
In some jurisdictions, marginal notes are part of the text as tabled at first reading (e.g. in the Federal House of Commons). In other jurisdictions like Quebec, they are added by the official printer only after Royal assent. Whatever the stage at which they are inserted in the text, however, marginal notes are deemed not to form part of the enactment as adopted by Parliament. They are provided “for convenience of reference only”, as most statutory interpretation legislation in Canada carefully put it.
Of course this status as a mere reference aid entails that a marginal note can’t be used as indicative of Parliament’s intent in the construction of statutes. For that reason and with very few exceptions (e.g. R. v. Wigglesworth, [1987] 2 S.C.R. 541, para. 19), we can consider that marginal notes have no legal value. But does that make them trivial?
The decision of Quebec’s official printer to remove marginal notes from its public enactments did not make the headlines in this province and only a few people noticed it, if any. There might have been good practical reasons for making such a decision from the official printer’s perspective. However, despite their low legal value, marginal notes are one of the most useful tools for finding relevant provisions, especially when used in tables of contents of more complex and lengthy pieces of legislation.
Marginal notes might be costly to prepare and maintain, but they are key to help readers – be them law professionals or members of the public – better understand the Law. Aren’t they worth the extra effort?
by Frédéric Pelletier, Lexum
Agreed. Marginal notes, whether in the margin or aligned with the statutory text, are hugely useful to let one know what one is reading. The reason for the traditional rule of interpretation (no legal value) was that in the U.K. Parliament, the notes were added after adoption of the statute (as in Quebec today). But when the notes are adopted as part of the legislation, there is no reason to exclude them from use in interpretation.
The Uniform Law Conference has talked of preparing a new Uniform Interpretation Act. Perhaps that topic could form part of the revision.