Ultra Vires


The Principles of Legal Citation

On the Construction of the McGill Guide

Ruth Sullivan, author of On the Construction of Statutes, and (presumed) heiress to Elmer Driedger’s statutory interpretation fortune, would say that language is inherently ambiguous. Hence, the modern rule of statutory interpretation requires that legislative texts be read in their entire context. Context limits language’s ambiguity to a range of potential, reasonable interpretations.

However, sometimes, language is not ambiguous merely by nature, but as a result of clumsy phrasing. For example, you may remember seeing news about an article in the Pratt Tribune whose editor had failed to grasp the importance of a hyphen: “Students Get First Hand Job Experience”. Lucky students.

Recently, I, too, encountered some unfortunate language. But it was not in some provincial rag; it was in the Canadian Guide to Uniform Legal Citation, the holy bible of citation that we know as the McGill Guide.

This year, I am coaching the Davies Corporate/Securities Law Moot. We are trying to secure the Faculty of Law’s sixth consecutive win. Although last year we won overall, our factums tied for third place. One of the areas where we lost points was with McGill Guide compliance. I was determined to learn from that experience.

The McGill Guide prescribes all sorts of formatting rules which, collectively, form Canada’s most comprehensive legal style guide. You will be familiar with some of them: the supras, the paras, the weird law journal abbreviations. Others are more obscure, including the rule on “consecutive pinpoints”—what you and I might call “page ranges”.

Section E – 1.5 of the 9th edition of the McGill Guide covers the rules on pinpoint citations. Part of this section reads, “Separate non-consecutive pinpoints by a comma, and consecutive pinpoints by an en dash (—), not a hyphen (-). Retain at least the two last digits following the en dash (e.g., 159—60).” To the keen-eyed observer, the problem will already be apparent: the instructions say to separate consecutive pinpoints with an “en dash”, but show an “em dash”.

The discrepancy is subtle and pedantic, but it is there. You will recall the hyphen from our earlier discussion about those naughty students and their first hand job experience. A hyphen looks like this: -. An en dash is basically two hyphens stuck together. It looks like this: –. An em dash, however, is the Cadillac of punctuation. It is three whole hyphens wide, and you better not forget it. It looks like this: —.

Last year, my factum indicated page ranges with a hyphen. How naïve. But this year, it was not clear what my team should do instead. Should we do as the McGill Guide says or as it does?

In search of answers, I turned to my trusty copy of Sullivan On the Construction of Statutes. I have read enough Supreme Court of Canada decisions to know that, today, there is only one rule of statutory construction: Driedger’s rule. This is the modern rule to which I adverted earlier; namely, that legislative texts be read in their entire context. Admittedly, the McGill Guide is not a legislative text, but I figured that it is close enough. I know that it governs my life. So, I decided to apply the modern rule to my McGill Guide quandary.

When Driedger, or Sullivan, for that matter, talks about context they really mean six main sources of meaning:

  1. The words themselves;
  2. The words’ “context”;
    1. Context in the internal, grammatical sense—anything within the four corners of the Act, such as preambles, titles and so on;
    2. Context in the external, ordinary sense—anything beyond the four corners of the Act, such as conventions, the text’s subject matter and so on;
  3. The statutory scheme;
  4. The statutory purpose—the broad social or political goals;
  5. The legislative intention—the specific meaning given to a provision in a particular situation; and
  6. The consequences of an interpretation.

Contrary to what you may have read in older decisions, words have no “plain meaning”. At best, the words of a provision have a presumptive meaning that is largely subjective. To wit, the McGill Guide called for en dash; I presumed that meant one of these, –, but then the Guide showed one of these: —.

Unfortunately, the “context” provided little further insight. In terms of the internal context, I consulted other sections of the McGill Guide and discovered that it was inconsistent in its use of punctuation. For example, in E – 2.1.10, a section dealing with pinpoints to statutes, the 9th edition uses hyphens, rather than en or em dashes, to indicate ranges of statutory provisions. 

Thinking back to the memo that the Hon. Ian Binnie wrote for Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, I hoped that I might glean some clarity from the French language version of the McGill Guide. No such luck. Section 1, which sets out the general rules, states that the English and French rules apply to their respective languages exclusively. Even to the extent that the French version could be persuasive, the French version effectively reproduces the problem in the English version. The French version of the troublesome instruction provides:

Séparer les références précises

non-consécutives par une virgule, et

les références précises

consécutives par un tiret court (—)

et non un trait d’union (-).

For those of you who do not speak French, a “tiret court” is an en dash, but the symbol shown is a “tiret”— an em dash. Strangely, F – 2.1.10, the French version of the statutory pinpoint section I mentioned earlier uses a mix of hyphens and em dashes to indicate ranges of statutory provisions. 

At first, the external context was also of little help. One of the key external contexts to consider is the conventional use of shared language. Legal and social norms may also be instructive. The problem is that the McGill Guide conflicts with conventional hyphen/dash use, regardless of which interpretation one takes. I have never seen any authority use an en dash or an em dash to indicate page ranges—only hyphens.

Courts also use extrinsic aids, such as the legislative history to illuminate the external context. Here, the 8th edition of the McGill Guide offered some clues. Section E – 1.5 of the 8th edition is the precursor to section E – 1.5 of the 9th edition; it also deals with pinpoints. The older section is clear. It says to use en dashes and it shows en dashes (–) in its examples. The French version is consistent with that. In the 8th edition, the French and English versions of section 2.1.10, which deals with pinpoints in legislation, also use en dashes to indicate ranges of provisions.

My findings in the 8th edition were not conclusive. They showed how things were, but the fact remained that the 9th edition has changed some of its en dashes to em dashes. 

Given the multiple inconsistencies in the 9th edition regarding dashes, an inquiry into the “statutory scheme” was not especially useful. I was also unable to gain much insight into the “legislative” intent, because I do not have access to the McGill Law Journal’s travaux préparatoirs. It was not clear whether the editors had intended to use em dashes but had written “en dash”, or if they had intended to continue using en dashes but had mistyped “—”.

The “statutory” purpose was more suggestive. In the physical copy of the 8th edition, there are effectively three “preambles”: (1) “A Word from the Editor”, (2) The Hon. John I. Laskin’s Foreword, and (3) The Hon. Nicholas Kasirer’s Foreward. Each of these preambles speaks to the McGill Guide’s lofty ambitions. Each preamble forms part of the Guide’s internal context. 

In “A Word from the Editor”, A. Max Jarvie, Citations Editor for volume 59 of the McGill Law Journal, states that the McGill Guide aims “to facilitate effective communication between authors and readers.” Mr. Jarvie goes on to explain that three principles underscore and further that aim: logic, clarity, and accessibility. Together, these principles informed my approach: which interpretation would best facilitate effective communication between authors and readers? Which interpretation would most reflect the principles of logic, clarity, and accessibility?

To answer these questions, I turned to the final stage of Sullivan’s analytical framework, the consequences of a particular construction. As I mentioned earlier, I have never seen any authority, other than the McGill Guide, use anything other than hyphens to indicate page ranges. It looks odd to write “at 73–74” instead of “at 73-74”. Yet, it appears that the editors of the 8th edition of Guide, at least, believed that using an en dash, instead of a hyphen, would make for even more effective communication. Thus, the ultimate question was whether an en dash or an em dash would maximize the efficacy of communication.

It seemed more reasonable to use en dashes than em dashes. This came down to balancing two key considerations: readability and concision. First, it appears that the purpose of using an en dash in the 8th edition may have been to improve readability of pinpoint citations. These citations often appear as footnotes, in a smaller font. Many readers of legal texts will be (a) older or (b) tired. Often, they will be both. Using an en dash to emphasize a range of pages promotes accessibility, one of the McGill Guide’s fundamental, animating principles. Second, while it could be argued that an em dash would emphasize a range of pages to an even greater extent, it would do so at the expense of space. Em dashes are a third longer than en dashes. That can make a difference in an especially long citation; perhaps an additional line. Yet, the McGill Guide’s commitment to concision is evident everywhere: “paragraph” abbreviated to “para”, supras standing in for full citations, law journals’ names reduced to a series of individual letters. An en dash figures perfectly into that regime, without sacrificing clarity and accessibility.

I must confess, however, that I arrived at this conclusion too late. The issue arose in the frenzied hours leading up to the submission deadline for my team’s factums. Exhausted, I made it as far as checking the French version, before I made an executive decision. My team would use the luxuriant em dashes.

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