Revised with comments on 22/10/2023.
The 10th edition of the Canadian Guide to Uniform Legal Citation (the McGill Guide) was published in the summer of 2023. Having been six years since the 9th edition was published, the most recent edition has made necessary revisions that improve the accessibility and inclusivity of sources. Anecdotally, the revision that seems to have garnered notable attention is Jurisprudence Rule 3.1: Hierarchy of sources. There are several changes worthy of discussion in the 10th edition, but the focus of this post is to explain the new hierarchy of sources for jurisprudence and to identify some of the benefits and added complexities for teaching citation.
Previously, if a neutral citation issued by the court was not available, citing jurisprudence required two sources – a main citation and a parallel citation. With the 10th edition, if a neutral citation is not available for a decision and a CanLII citation is available, then the parallel citation can be omitted.
The composition of an official neutral citation follows the formula of:
For example, if a neutral citation is available the complete citation without a pinpoint would be: Carter v Canada, 2015 SCC 5.
CanLII’s formula for composing a citation is similar:
If there is no neutral citation, but a CanLII citation is available, the complete citation without a pinpoint would be: R v Oakes, 1986 CanLII 46 (SCC).
If a neutral citation is available for a decision on CanLII, CanLII is identified as the source in parentheses: Carter v Canada, 2015 SCC 5 (CanLII).
However, if a neutral is available, the CanLII source identification is unnecessary and should be omitted: Carter v Canada, 2015 SCC 5.
CanLII citations are only composed and assigned to a decision when a neutral citation is not available.
CanLII has been the preferred online database since the 8th edition (2014). Elevating CanLII citations in the hierarchy of sources for jurisprudence represents a recognition of the continued growth and of the value of open online legal research tools in the legal profession.
Making CanLII citations the secondary tier in the hierarchy of sources is a way of implementing retroactive citations that fit the description of a neutral citation per the description from the Canadian Citation Committee, but are not official neutral citations assigned by a court, administrative board, or tribunal. The Canadian Citation Committee intended to standardize the format to improve collocation of documents across legal research platforms. Their future goals were to improve the accessibility of legal information at a reasonable cost by encouraging innovation through increased competition within the market of legal information. CanLII’s new position in the hierarchy of sources may assist in these latter, loftier goals by promoting open online legal research tools.
Rule 3.5 echoes citation practices in the United Kingdom. Official neutral citations were implemented by UK courts and tribunals in January 2001. Prior to their implementation, the British and Irish legal Information Institute (BAILII) assigned unofficial neutral citations. BAILII citations apply to all judgments on BAILII up to the introduction official neutral citation from courts and tribunals. These unofficial citations by BAILII are considered “publisher, “vendor” or “medium” neutral, because they do not depend on editing from publishers or vendors of legal materials. CanLII’s retroactive assignment of “medium” neutral citations to decisions without official neutral citations is in line with BAILII’s ongoing citation practices.
CanLII has already undertaken this task and, as they are supported by the Federation of Law Societies of Canada (FLSC), this is cost-effective approach. An FLSC news release from May 2023 states, “The CanLII website features 47 legislative and 378 case law databases, representing over 3.1 million cases … In the last 12 months, CanLII registered 20 million web site visits.” Using CanLII citations as an authoritative main citation reduces research costs (see para 78) and drastically increases accessibility for legal professionals and laypersons given the volume of decisions within their open databases.
Complexities for Teaching
However, there are some things that new legal researchers should consider when reviewing CanLII citations. Appendix B-3 in the McGill Guide provides the dates of implementation and the abbreviations of the neutral citation from each Canadian court. Unfortunately, there is no singular date for implementation across Canadian courts. They range from 1998 through 2010. As a reminder, as of September 2022, the Queen’s Bench has become the King’s Bench in Alberta, Manitoba, New Brunswick, and Saskatchewan.
Close attention must be given to the implementation dates in Appendix B-3 in some instances. CanLII has worked with Law Foundations and Libraries across Canada on important digitization projects. Unfortunately, on at least one project, CanLII composed and assigned citations that follow the formula of an official neutral citation. For example, all Alberta Court of Appeal decisions from 1988. These citations have been cross-indexed by subscription platforms. This does mean that increased accessibility has technically been achieved, however, a new legal researcher may not catch this type of minor error. Rule 3.5 clearly states that one should never create a neutral citation when an official one is unavailable. Did CanLII create a neutral citation in these instances and is one to use this unofficial, but official neutral format, of a CanLII citation with or without a parallel?*
Rule 3.5 Neutral Citation states that a growing number of administrative tribunals have adopted neutral citations. However, administrative tribunals are not included in Appendix B-3. Instead, Appendix A-1 lists a two-letter abbreviation for each Canadian jurisdiction that is to be followed by the “usual acronym” of the tribunal. However, the “usual acronym” is not always an obvious identifier for tribunal. Providing an open online appendix that includes updated tribunal abbreviations and their implementation dates would be helpful (open appendices should also be available for law journal and caselaw reporter abbreviations). The Canadian Citation Committee has some tribunal neutral citations listed, but there are many more shown on CanLII, as the number of tribunals has grown since the early 2000s.
Other legal information professionals may have further commentary on broader complexities and issues, such as preservation of digital legal materials. I have only addressed those I anticipate arising during teaching.
Overall, Rule 3.1: Hierarchy of Sources’ elevation of CanLII in the hierarchy of sources in the 10th edition of the McGill Guide acknowledges the benefits and reflects the changing landscape of online legal research. The complexities that are added by this change can be easily addressed through a note on specific documents on CanLII and the creation of an open appendices. Retroactive medium neutral citations are a positive step towards making the McGill Guide more flexible and improving access to legal information.
A final note: Revising the McGill Guide is not a small undertaking at any time, let alone during a global pandemic. It is a process that always receives ample commentary and criticism from the legal profession, particularly from law librarians. I commend and congratulate the Editor, Alexandra Champagne, for delivering this 10th edition of the McGill Guide.
*Frédéric Pelletier is the current VP Legal Information for Lexum, and former Coordinator of the Canadian Citation Committee and Chief Editor of CanLII. He graciously provided an answer and comments to address the retroactive assignment of neutral citations by the ABCA.
“The Alberta courts were early adopters of the neutral citation and first implemented them in 1997. The ABCA, ABQB (as it was then identified), and ABPC adopted it as early as 1998. Some neutral citations were issued to decisions published prior to 1998 because there was no reason not to do it and these courts believed in the standard’s usefulness.
The ABCA participated in Lexum/CanLII’s digitization projects funded by the Law Foundation of Alberta from 2010 through 2014. The ABCA and ABQB enthusiastically accepted the assignment of neutral citations to their older decisions. Lexum was provided with a new standardized cover page for each decision from the courts. This cover page included a neutral citation. Note that the ABQB used “AltaSCAD” as their court identified for decisions issued up to 1979.”
Ask and you shall receive. Thank you for the answers and all the work you have contributed to for both CanLII and Lexum, Frédéric! The elevation of CanLII citations in the hierarchy of sources is a significant event in legal publishing that would not have happened without the continuous work done by these organisations.