Legistics

Legistics

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Table of Contents

• Part 1 - Words and Expressions
  • Attributing meaning to terms
  • Body Corporate and Corporation
  • But
  • Comprise
  • Deem
  • Definitions
  • Definitions (Adjectives)
  • Everyone and Anyone
  • Expiry, expiration and end
  • Expressing Obligations and Prohibitions
  • Expressing Permission, Powers or Rights
  • Expressing Possibility
  • Expressing Universality
  • First Nation(s) - Aboriginal
  • Formula Descriptions
  • Geographical names
  • Gender-inclusive Language
  • Hereby
  • However
  • If, where and when
  • Members of Parliament
  • Notwithstanding, alternatives to
  • One (pronominal use)
  • Possessives
  • Pursuant to
  • References to Text in Columns
  • Restrictive elements
  • Rounding of numbers
  • Series of Nouns
  • Such
  • Terms and conditions
  • There - words
  • Time periods
  • Triad separators in metric measurements
• Part 2 - Sentences
  • Cross-references
  • More than one sentence in a section or subsection
  • Present indicative
  • Sentence structure: Complexity and organization
• Part 3 - Paragraphing
  • What is paragraphing?
  • Why paragraph?
  • How do you paragraph?
  • The logical relationship among paragraphed elements
  • Table of factors and examples
• Part 4 - Punctuation
  • Compounds and Hyphenation
  • Em dashes

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Date modified:

2024-10-25

Legistics
Attributing Meaning to Terms

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Recommendation

It is recommended that legislative counsel, when attributing meaning to terms, use the bolded wording in the models set out below for the particular cases.

Models

1. When referring to a defined term:

      The Agency is responsible for the enforcement of the Food and Drugs Act as it relates to food, as defined in section 2 of that Act.

   (Note that in the example above, the word food does not have quotation marks, as we are referring not to the definition but to the concept of food.)

2. When defining a term by reference to another defined term:

   (when the two terms are the same)
      For the purposes of subsection (2), "spill" has the same meaning as in subsection 24(1) of the Oil and Gas Production and Conservation Act.

   (when the two terms are different)
      In these Regulations, "locally engaged employee" has the meaning assigned by the definition "employee" in section 2 of the Locally-engaged Staff Employment Regulations.

   (when the term is to be defined not in the Act in which it occurs, but later in the regulations)
     For the purposes of this section, "certifying authority" has the meaning assigned by the Regulations.

3. When referring to the general sense of a term garnered from

   • (a) a text that is larger than a definition, such as an entire Act or regulation or a group of  provisions (some of which may supplement a defined term); or
   • (b) a text, other than a single-definition provision, that would not be described as a definition if it were to be amended (such as a provision that sets out that something is — or has the qualities of — something, without defining it^[1]):

      The Investment Canada Act does not apply in respect of the acquisition of control of a Canadian business, within the meaning of that Act, by a foreign bank or by an entity associated with a foreign bank.

     "continuous freight movement" has the meaning assigned by Part 1 of Schedule 1 to the Act.

   Similar wording may also be used when you need to pinpoint a portion of a definition:

      This subsection applies in the case of a federal authority, within the meaning of paragraph (b) of the definition "federal authority" in subsection 2(1), if the Minister agrees.

Footnotes

• [1] For example:

  Meaning of greater interest

  (3) For the purpose of subsection (1), a government institution has a greater interest in a record if ….

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Legistics
Body Corporate and Corporation

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Recommendation

The term "corporation" should be used instead of "body corporate".

Discussion

The terms "body corporate" and "corporation" mean exactly the same thing. However, "body corporate" is archaic. It is never used in business and financial writing, which deal with corporations at great length, and does not appear in either the Canadian Oxford Dictionary or the Gage Canadian Dictionary (although other dictionaries do list it). Indeed, the very unfamiliarity of the term "body corporate" may mean that not all readers realize that it means the same thing as "corporation."

"Body" is a noun and "corporate" is an adjective. In English, adjectives generally go before the nouns they modify. "body corporate" is one of a small number of expressions in which the adjective follows the noun. This construction was fashionable in Elizabethan times, but, needless to say, it is no longer common.

Some expressions of this sort have passed into reasonably common use in modern English (e.g. "Attorney General," "Governor General," "heir apparent," "court martial"). Others are used only in legal English, but have well-established technical meanings within that field (e.g. "fee simple," "term certain," "condition subsequent"). However, not only is "body corporate" not current in modern English, but also it does not have a particularly technical meaning: it simply means "corporation," as is clear from the following definitions.

The New Oxford Dictionary of English:

• body corporate

  • formal term for CORPORATION

• Black's Law Dictionary (8^th ed.):

  • body corporate. See CORPORATION.

corporation. An entity (usu. a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its constitution gives it. — Also termed…body corporate; corporate body. See COMPANY.

company. 1. A corporation — or, less commonly, an association, partnership, or union — that carries on a commercial or industrial enterprise;…

Source:

• R. Quirk et al., A Comprehensive Grammar of the English Language (Longman: Harlow, England, 1985), at 419 (Note), 1294-96.

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Legistics
But

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Recommendation

Legislative counsel should not be reluctant to use the word "but".

Discussion

"And" is sometimes used where "but" should be, perhaps in honour of a past legislative drafting taboo. As a result, the extra information that "but" conveys is missing and the reader has to guess whether "and" means "and in addition" or "and in contrast". One example of such loose usage is, "The report shall be delivered and not necessarily post-marked."

Sometimes "and" can cause unwanted ambiguity that using "but" would have avoided. For example, in "A candidate may protest an election result after the ballots have been counted and before the result has been announced", it is unclear whether the candidate can protest only once or on two occasions. The same sentence with "but" is unambiguous: "A candidate may protest an election result after the ballots have been counted but before the result has been announced".

"But" is used to introduce a contrast to what precedes it or to introduce information that is unexpected. Its meaning is roughly "and in contrast", "and yet" or "except that", depending on the situation; in most instances, it can be used as a concise expression of these notions. (See also the note on However.)

Like "and" and "or", "but" in general links two members of any syntactic category: two clauses, or two verb phrases, or two noun phrases, and so on.^[1] It is the use of "but" to conjoin clauses that is most relevant to legislative drafting. Nonetheless, legislative counsel should always bear in mind that conjoining other syntactic elements may be possible as well.

Examples

The following is a non-exhaustive list of the many kinds of syntactic elements that "but" can link (the linked elements are shown in italics):

Clauses:

• Main:
  • A first offence is punishable by a fine, but a subsequent offence is punishable by imprisonment.
  • The offence is punishable by a fine, but it is not punishable by imprisonment.
• Subordinate clauses:
  • If the judge decides that the information is relevant but that its disclosure would injure national security or endanger the safety of persons, the information must not be disclosed.
• Relative clauses:
  • "agency of a foreign state"means any legal entity that is an organ of the foreign state but that is separate from the foreign state.
• Verb phrases:
  • The Board is an institution of public government but is not an agent of Her Majesty.-
• Preposition phrases:
  • …a notation that the person arrived at the departure gate with a ticket but without a reservation for the flight.
• Adjectives:
  • … exchange arrangements based on stable but adjustable par values….

Footnotes

• [1] Unlike "and" and "or", however, which can link a series of the same syntactic element, "but" can only link two members. For example, a provision could not read "The Minister may issue a licence, but may not make it subject to conditions, but may impose a fee for the licence."

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2022-08-29

Legistics
Comprise

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Introduction

The word "comprise" deals with the relationship between a whole and its parts, but it is used commonly with two opposite meanings, "to consist of" and "to constitute," as shown in the following examples (along with a significant variant of each major sense):

• 1a. A standard deck comprises 52 cards. ("consists of," "is composed of")
• 1b. A standard deck comprises four aces. (variant — "includes")
• 2a. Fifty-two cards comprise a standard deck. ("constitute")
• 2b. A standard deck is comprised of 52 cards. (passive variant —"is constituted of," i.e. "consists of," "is composed of")

Recommendation

It is recommended that legislative counsel not use the verb "comprise."

Instead, for meaning 1a, "consist of" or "is composed of" is recommended; for meaning 1b., "include" is recommended.

For meaning 2a., "constitute" is recommended; for form 2b., which is meaning 2a. in the passive voice, "consist of" or "is composed of," is recommended as "is constituted of" does not appear in Acts or regulations.

Discussion

It appears that the English language is changing with regard to the meaning of "comprise," with the once non-standard "constitute" meaning becoming more and more common. It is undesirable for a word to be used in legislation when there is a lack of consensus about its meaning, for the following reasons.

First, there is the possibility of ambiguity, particularly between the "consist of" and "include" meanings: the use of "comprise" to mean "include" in some cases may raise the question for other cases, at least theoretically, whether parts mentioned are an exhaustive listing or only an inexhaustive one.

Second, it goes against principles of readability to use a word that is used differently by different people.

Third, the use of the "constitute" meaning, while common both in Acts and regulations and in the language at large, might still be criticized by some readers as non-standard English. The "include" meaning might also be criticized by some.

Despite these criticisms, usage guides are not in fact uniform in their advice about how acceptable these forms are (see Sources at the end of this article).

If any generalizations may be drawn from the guides cited under Sources, they are that Canadian sources seem to be more favourable than British ones toward the "include" meaning, and that the Oxford dictionaries are more tolerant of the "constitute" meaning than the other sources are. Nonetheless, the lack of consensus among usage guides and dictionaries about what is acceptable is itself evidence that this word is in a state of flux.

It may be that "comprise" is displacing the active form of the verb "compose": although "compose" is very common in the passive voice ("a deck is composed of 52 cards"), and although "compose" is held up by the usage guides as the correct alternative to the "constitute" meaning of "comprise," it is quite rare to encounter it in the active voice ("52 cards compose a deck"), while this meaning of "comprise" is very common ("52 cards comprise a deck"). This is true not only in the language at large but in Acts and regulations as well - the passive "composed of" is used more than 250 times there but the active "compose" less than 20 (and that in very limited contexts), while "comprise" is used about 100 times with this meaning.

Sources (chronological order)

• Fowler's Modern English Usage (2^nd ed., 1965, UK)
  Disapproves of using comprise to mean either constitute or include (pp. 102, 275).

• The Longman Guide to English Usage (1988, UK)
  Describes it as an "error" to use comprise to mean constitute, including is comprised of; disapproves of include meaning (pp. 157-8).

• Webster's Third New International Dictionary of the English Language (1993, US)
  Defines comprise as "1: to include…CONTAIN…5a: to consist of : be made up of…b: to make up : CONSTITUTE…"

• The Gregg Reference Manual (1995, Canada)
  Defines comprise as "to include, contain, consist of", and disapproves of the constitute meaning, including is comprised of (p. 258).

• The Canadian Style (1997, Canada)
  Disapproves of the constitute meaning, and tells the reader to avoid is comprised of. Its position on include is a bit weaker than Fowler's or the Longman's, merely saying that include implies part of a whole, while comprise implies all of the whole (our emphasis) (pp. 228, 234).

• The Canadian Oxford Dictionary (1998, Canada)
  Defines comprise as "1 include… 2 consist of, be composed of… 3 make up, compose [i.e. constitute]…" It notes that instances of the constitute meaning, including is comprised of, "have traditionally been criticized and are still strongly opposed by some…The disputed uses are very common, however, and considered unobjectionable by many."

• Uses comprise both ways in other definitions (e.g. consist of: "New England: and area…of the US, comprising [six states]"; constitute "six counties: the Ulster counties…which since 1920 have comprised the province of Northern Ireland").

• The New Fowler's Modern English Usage (1998, UK)
  Disapproves of the include meaning. Lists examples of constitute meaning under "disputed or erroneous uses," but says "It cannot be denied, however, that the sheer frequency of this construction seems likely to take it out of the disputed area before long"; and for is comprised of in particular, "Opposition to [it] is also weakening" (p. 168). Comprise "seems to be prevailing in its battle with compose" (p. 387).

• The New Oxford Dictionary of English (1998, UK)
  Gives "consist of; be made up of" as the core sense of comprise, but also gives "make up; constitute" as a subsense, and states that instances of is comprised of "are common and are fast becoming part of standard English." Its position on include is very similar to that of The Canadian Style.

• Uses comprise both ways in other definitions (e.g. consist of: "Yugoslavia: …comprised Serbia, Montenegro, and [other territories]"; constitute: "Serbia: …Serbia and Montenegro now comprise Yugoslavia").

• The Gage Canadian Dictionary (2000, Canada)
  Disapproves of the constitute meaning and calls is comprised of "incorrect". Its definition of comprise includes include and vice-versa, the definition of include being followed by a usage note that gives comprise as a synonym but explains the difference in "emphasis" of the two words as to whether parts mentioned are listed completely or incompletely.

• Despite disapproving of the constitute meaning, uses comprise both ways in other definitions (e.g. consist of: "snapping turtle: any of a family (Chelydridae, comprising two species) of large…turtles…"; constitute: "beaver: either of two species comprising a family (Castoridae) of large rodents…").

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2024-10-25

Legistics
Deem

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Background

"Deem" is a legal term that is used frequently in federal legislation (on the FOLIO database, about 4,600 times in statutes and 1,900 times in regulations).

Its basic use is to create a legal fiction - to provide that the legislation is to be applied as if some fact were different from what it is in reality.

"Deem" has also been used for a variety of other purposes, including

• to change the meaning of terms, for example by "deeming" a word to mean something,
• to alter the application of legislative provisions, for example by providing that they apply in ways that they would not otherwise apply,
• to confer discretion, for example by authorizing a public official to do something that they "deem" necessary,
• to create a presumption, for example by providing that something is "deemed" to have happened,
• it is a legal expression that does not have any clear meaning in ordinary discourse,
• its use often results in leaving important details of the legislation to be worked out by the reader and, if not used carefully, it can lead to undesired results.

Also, "deem" in regulations may raise concerns about the validity of the regulations. However, this problem is beyond the scope of an article such as this, which focuses on linguistic issues.

Finally, the Legislation Deskbook (Section 3.17 Amendments - Changing References) says:

Interpretive provisions that "deem" one reference to mean another should not be used because they do not result in a textual amendment that can, for example, be made to the legislative database.

This article discusses the various ways in which "deem" has been used in legislation. It also identifies situations when it should not be used and recommends alternative expressions.

Creating legal fictions

The following is an example of how "deem” is used to create a legal fiction:

(2) A document that is served on a holiday or after 5:00 p.m. at the recipient's local time is deemed to be served at 9:00 a.m. on the next business day.

Here, a fact (the time of service) is changed for the purpose of applying other provisions that involve the time of service. The legislation does not change the fact; it makes the other provisions apply as if the facts were otherwise.

"Deem" can also be used to confirm a fact that might otherwise be disputable or hard to determine, as in the following example:

30. A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person's birth.

Finally, another important type of legal fiction occurs with retroactive commencement provisions. These usually say that provisions "are deemed to have come into force" on a particular date in the past. Here, "deemed" signals retroactivity, as the Federal Court of Appeal has recognized in CI Mutual Funds Inc v. Canada [1999] 2 FC 613 (CA).

Changing meaning

"Deem" has been used to change the meaning of a particular expression and in this sense its use is similar to the creation of legal fictions, for example

(a) "game" is deemed to include reindeer, carcasses or part of them;

However, definitions and other interpretive provisions should be drafted using the present indicative of verbs such as "means" and "includes"(for example, "game" includes reindeer). Legislative authority includes the power to narrow or enlarge the meaning of the words used, subject to the substantive limits of the authority. "Deemed" should not be used in these circumstances.

"Deem" has also been used when stating rules of law that function like definitions, for example

(3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.

Although this may seem like a legal fiction, there is nothing fictitious about the result of this provision: the amount received becomes public money. This provision is simply stating a rule about how the money is to be treated. Like other rules of law, it should be stated using the present indicative (see Present indicative in Part 3):

(3) An amount received ... is public money ...

This particular rule of law is formally similar to a definition: it extends the meaning of "public money". However, because of its substantive nature, such rules are not generally drafted as definitions.

Application provisions

Application provisions are another type of rule of law in which "deem" has been used, for example

57. Where duties are imposed on goods according to a specific quantity or a specific value, such duties shall be deemed to apply in the same proportion to any larger or smaller quantity or value, and to any fractional part of such specific quantity or value.

This example extends the application of customs duties to quantities or values other than those to which they expressly apply. However, this should be done more directly by saying "such duties apply in the same proportion ..."

Sometimes a provision is intended to alter the application of some other law (other than the one that contains the provision). Generally speaking, the best way to do this is to amend the provisions of the other law (if it can be opened for amendment) or to reproduce the relevant provisions in the new law (if those provisions are not extensive or are an important feature of the new law). However, this is not always possible. In these cases, deeming provisions have been used, like the following:

(2) Employees appointed under subsection (1) are deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act.

The Public Service Superannuation Act applies to people who are employed in the Public Service. The provision in this example extends its application to a group of people who are not so employed without altering the status of the employees for any other purpose. It can be understood as either altering the scope of the PSSA or as incorporating that Act by reference into the Act that contains this provision.

It is also possible to extend the application of another law without using "deem", as in the following example:

(2) The Public Service Superannuation Act applies to employees appointed under subsection (1).

However, there are two differences between the deeming and application approaches. First, the application approach makes all the provisions of the PSSA apply, while the deeming approach makes only some of its provisions apply (those that mention employees or employment in the Public Service). Secondly, the deeming provision makes it clear that the scope of the other Act is being extended to people that it does not otherwise cover. This is less obvious in the application provision, which may give the impression that it is merely providing information about the scope of the PSSA. However, this impression can be avoided by adding an "as if" clause:

(2) The Public Service Superannuation Act applies to employees appointed under subsection (1) as if they were employed in the Public Service.

Confer discretion

"Deem" is sometimes used to confer discretion to determine or decide something, for example

9. (1) The Minister may, in order to carry out the purposes and provisions of this Act, establish advisory committees that the Minister deems necessary and appoint the members of those committees.

In this example, "deem" is used to give the Minister discretion to determine what advisory committees are necessary. This sense should be expressed using more common terms, such as "decide" or "consider" (see the article on Consider in this Part).

Creating presumptions

"Deemed" is sometimes used to create a presumption that something is the case, even though it is not necessarily so, for example

45. A municipal council is deemed to have consented to the issuance of a demolition permit if, within 15 days after the permit is issued, the council does not give notice of its intention to review the permit.

In the example, consent is presumed to have been given in the circumstances to which this provision applies. However, it leaves open the question of whether the presumption is conclusive or rebuttable. In Re St Peter's Church (1982) 140 DLR (3d) 577 (SCC) the Court considered the provision in the last example. At 595, McIntyre, J stated:

It is true, of course, that the words "deemed" or "deeming" do not always import a conclusive deeming into a statutory scheme. The word must be construed in the entire context of the statute concerned.

In this case, the majority found that conclusive deeming was intended (see also Re Rogers and McFarland (1909), 19 OLR 622 and St. Leon Village Consolidated School District (1960), 31 WWR 385 (ManCA)). However, in some cases it has been held to mean rebuttably presumed until the contrary is proved (see Foncier Franco-Canadien v. Bennett (1963), 43 WWR 545 at 547).

"Deemed" should not be used to create a presumption. Other expressions should be used to avoid ambiguity about whether a conclusive or rebuttable presumption is created, for example "conclusively presumed" or "presumed in the absence of evidence to the contrary".

Recommendation

"Deem" should be used only when it is necessary to create a legal fiction. It should not be used for definitions or application provisions or for the creation of presumptions or discretionary powers.

This article is based on ELLCDN 2001-3.

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2024-10-25

Legistics
Definitions

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Introduction

Definitions are powerful provisions because they control the meaning of terms used throughout a legislative text and, in the absence of a contrary intention, the meaning of terms in all other enactments relating to the same subject-matter.^[1] They have a very strong influence on the interpretation of legislative texts. This article examines these important provisions in the English version of federal legislative texts. It will examine the principles governing the use of definitions and the rules for drafting them.

(Please also see the Legistics article "Attributing Meaning to Terms")

Principles governing the use of definitions

Common meaning of words

Definitions in legislative texts are stipulative; they state what a term is to mean in the text. They are only required if they depart from the commonly understood meaning of the term. Definitions included in legislative texts must never simply reiterate the content of a dictionary or state the obvious. If the meaning of a term is well understood by the intended audience and unambiguous, don't define the term. It is not necessary to define a term simply because it is a technical, scientific or other term of art. Legislative counsel should systematically avoid defining terms that do not depart from their ordinary meaning.

All texts on legislative drafting, from the Uniform Law Conference Drafting Conventions^[2] to Driedger^[3] and Thornton,^[4] argue for restraint in the use of definitions, primarily because they do give an artificial meaning to words. Definitions require a reader to grasp, understand and remember a number of terms that depart from the reader's common understanding of them. This puts a strain on the reader's ability to read and understand the substantive provisions of the text.

Definitions also fragment the text and require the reader to combine separate units of text, which again complicates the reader's task in trying to understand the law. And this problem is aggravated when definitions in other documents apply or are incorporated by reference. Although it is possible to define a term used in a legislative text by reference to a definition in another text, this technique should be the exception rather than the rule. It should be limited to those cases where consistency between the two texts is essential and the definition referred to is likely to be frequently amended.

Definitions should not extend the meaning of words to things that are not ordinarily associated with them. Avoid definitions like the definition of cattle in section 2 of the Criminal Code:

"cattle" means neat cattle or an animal of the bovine species by whatever technical or familiar name it is known, and includes any horse, mule, ass, pig, sheep or goat.

As Thornton states:

"[d]efinition in legislation is only useful so long as it serves the essential purposes of determining and communicating legislation. To serve the purpose of easy communication, a definition must follow customary usage as closely as possible. A definition which places a completely forced and artificial meaning on a term is a bad definition."^[5]

Effect of definitions

The Interpretation Act specifies the effect of a definition:

• 15. (1) Definitions or rules of interpretation in an enactment apply to all the provisions of the enactment, including the provisions that contain those definitions or rules of interpretation.

• (2) Where an enactment contains an interpretation section or provision, it shall be read and construed

  • (a) as being applicable only if a contrary intention does not appear; and

  • (b) as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears.

Before a term is defined in a legislative text, all other Acts and regulations dealing with the same subject-matter should be consulted to ensure, where possible, consistency in the use of the term.

Role of definitions

There are three reasons to define a term in a legislative text:

• to avoid uncertainty about the meaning of words by resolving any ambiguity
• to explain the meaning of words that are new or unusual
• to shorten the text by reducing repetition

Definitions should be used to avoid uncertainty when

• a word has different meanings and the context does not make it clear which one is intended.
• a word has no precise or uniform ordinary meaning:

  • "flock" means a group of at least 10 birds or sheep.

• a word's ordinary meaning covers many things, but only some of them are intended:

  • "employee" means a person employed to work at least 35 hours per week on an indeterminate basis.

But in these cases it is best to include a modifier with the defined term to indicate something about its limited meaning:

• "full-time employee" means….

Definitions can be used to explain the meaning of new or unusual words:

• "after-market parts" means goods that are not for use as original equipment in the production of light-duty vehicles or heavy-duty vehicles and that are

  • (a) goods of a tariff provision listed in Schedule IV; or

  • (b) automotive component assemblies, automotive components, sub-components or listed materials.

• "precursor" means any chemical reactant which takes part at any stage in the production by whatever method of a toxic chemical. This includes any key component of a binary or multicomponent chemical system.

There is a risk, however, that defining these terms will not fully capture their meaning. This concern can be alleviated by using a generic definition so that the term's meaning will continue to evolve and the definition will not become outdated. An includes definition may also be an alternative. However, there is always a danger of causing ambiguity if an includes definition is used in these circumstances.

Definitions can be used to shorten long names or phrases or to avoid repetition, for example:

• "Agreement" means the Free Trade Agreement between Canada and the United States entered into between the Government of Canada and the Government of the United States and signed on January 2, 1988….
• "COSEWIC" means the Committee on the Status of Endangered Wildlife in Canada established by section 13.

Use of definitions

Words should usually not be defined if they are used only once or twice — the meaning of the term should be incorporated into the provision itself. If a technical term or term of art is used that may not be understood by all readers, an alternative is to place the meaning in brackets after the term

Example:

(2) Unless otherwise indicated, when these Regulations refer to the mass of an explosive, they are referring to the net explosives quantity (the mass of the explosive excluding the mass of any packaging or container).

Contents of definitions

A definition must not include any substantive provision. But when is a definition substantive? One test is to look at how much meaning a provision conveys without the definition, for example, in "The Minister may appoint qualified persons as members…." qualified conveys little on its own — the substantive nature of the content should be added in a subsequent sentence: "A person is qualified to be appointed if the person…." On the other hand, in "The Minister may make emergency orders for the purpose of protecting the habitat of a listed wildlife species" habitat conveys meaning on its own. A definition would simply clarify its meaning.

Rules of conduct are substantive and should not be in definitions. Avoid granting a power to a person solely by means of a definition. The following definition should only be used if there is an independent power in the substantive provisions of the text that grants the Minister a power to approve containers:

"approved container" means a container approved by the Minister.

When a word or expression denotes something fundamental to the legislation, its definition is equivalent to an application provision. Consider drafting it as an application provision at the beginning of the text to be read first, rather than as ancillary matter buried among the definitions. This gives a degree of visibility or priority that is appropriate to the fundamental nature of the word or expression. For example, the following provision in section 2 of the Canada Wildlife Act replaced a definition of "wildlife" in that Act:

(4) The provisions of this Act respecting wildlife apply in respect of

• (a) any animal, plant or other organism belonging to a species that is wild by nature or that is not easily distinguishable from such a species; and

• (b) the habitat of any such animal, plant or other organism.

Types of Definitions

Delimiting definition

A delimiting definition is exhaustive. It is intended to set limits on the otherwise ordinary meaning of terms. These definitions normally begin with the word "means".

Examples:

• "hire or reward" means any payment, consideration, gratuity or benefit, directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft.
• "vessel" means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method or lack of propulsion.

A delimiting definition may be used to abbreviate a lengthy group of words to a single word or a shorter group of words.

Examples:

• "Board" means the Canadian Wheat Board continued by section 3 of the Canadian Wheat Board Act.
• "Canadian aircraft" means an aircraft registered in Canada.

Extending definition

An extending definition adds to the ordinary meaning of a term a meaning it does not normally have. These definitions usually begin with the word "includes". This type of definition may be used to broaden the meaning of a term, expressly including elements that would otherwise not normally be included.

Examples:

• "name of the device" includes any information necessary for the user to identify the device and to distinguish it from similar devices.
• "servant" includes agent.
• "winning ticket" includes a ticket that is eligible for refund.

Narrowing definition

A narrowing definition narrows the ordinary meaning of a term by setting limits or expressly excluding. These definitions normally begin with the word "means" or the words "does not include".

Examples:

• "corporation" does not include a partnership that is considered to be a separate legal entity under provincial law.
• "elevator" means a grain elevator, warehouse or mill that has been declared by Parliament to be a work for the general advantage of Canada.

Mixed definition

A mixed definition may be necessary not only to set limits on the otherwise ordinary meaning of terms, but also to clarify particular elements included in or excluded from the term. These definitions are typically introduced by "means … and includes …" or by "includes … but not does include …."

Examples:

• "aircraft" means any machine capable of deriving support in the atmosphere from reactions of the air, other than a machine designed to derive support in the atmosphere from reactions against the earth's surface of air expelled from the machine, and includes a rocket.
• "wages" includes every form of remuneration for work performed but does not include tips and other gratuities.

But the ULC Drafting Conventions, s. 21(4), caution against definitions that mean one thing and include another. They should only be used when an exhaustive definition is required and there are serious doubts about whether it covers particular things.

Of course, a word should not be defined to both mean and include the same thing, i.e., "A" means and includes B.

Drafting Definitions

Other terms used to define

Other wording besides "means" and "includes" may also be used to draft definitions:

• refers to (if a particular aspect of meaning is intended):
  

  8. For the purposes of the schedules to this Act,

  • (a) "Section", "Chapter" and "sub-Chapter" refer, respectively, to the portion of Schedule 1 that bears that appellation;

  • (b) "heading" refers to any four-digit number, or the first four digits of any number, set out in the column "Tariff Item" in Schedule 1 and the enumeration of goods or other matters accompanying that number;

    • "director" means a natural person occupying the position of director of a corporation, and "board of directors" or "directors" refers to the directors of a corporation as a body.

• has the same meaning (incorporating a definition by reference)

  (3) In this section, "employee" has the same meaning as in subsection 2(1) of the Public Service Employment Act.

  Words are sometimes defined "in relation to" or "in respect of" certain things but this should only be done to achieve a particular effect, for example:

• to limit the application of a definition:

  • "consumption", in relation to crude oil, means the action of using it as a fuel or energy source or consuming it in the manufacture of products of trade and commerce.

  • "manager", in respect of an elevator, means the chief executive officer employed at the elevator by the operator or licensee of the elevator.

• to allow the definition to include a particular relationship as part of the meaning:

  • "commercial discovery area", in relation to a declaration of commercial discovery …, means those frontier lands described in the declaration.

• to allow the meaning of the defined words to shift depending on the circumstances addressed in the definition:

  • "health care insurance plan", in relation to a province, means a plan or plans established by the law of the province to provide for insured health services.

Using defined term in the definition

Be careful about including the defined word in the definition as it may create a logical loop. However, this does not generally cause problems when a definition limits the scope of the defined term:

• "authorized explosive" means any explosive that is declared to be an authorized explosive in accordance with the regulations.

• "studies" means studies undertaken at a university or college, or any course of academic, professional or vocational training.

Parts of speech

Interpretive provisions can apply to any part of speech, including phrases. However, nouns are the most commonly defined. A definition of one part of speech usually applies to other grammatical forms of the same word. This is confirmed in section 33 of the Interpretation Act:

(3) Where a word is defined, other parts of speech and grammatical forms of the same word have corresponding meanings.

Contents of definitions

Definitions should, as far as possible, be complete in themselves. Definitions that simply refer to another provision of the text or to another text can be annoying because they simply send the reader to another provision or text to find out what the word means. However, if it is necessary to refer to other provisions or a definition in another text, try to give a generic meaning in addition to the reference. For example,

"waiting period" means the two-week period referred to in section 66 for which unemployment benefits are not paid.

is more informative than

"waiting period" means the period referred to in section 66.

To keep the main rule of conduct uncluttered it may be desirable to state the rule then explain the meaning of terms used in the rule in definitions that follow. For example, instead of

100. Any vehicle or receptacle in which explosives are conveyed from one building to another in a magazine, or from any building to any place outside of a magazine, or from one part of a magazine to any place outside of a magazine, other than a vehicle or receptacle in which only explosives of Division 1 of Class 6 (ammunition) are conveyed, shall be constructed without any exposed iron or steel in its interior.

try

100. (1) A transport unit, other than a transport unit in which only explosives of Division 1 of Class 6 (ammunition) are conveyed, shall be constructed without any exposed iron or steel in its interior.

(2) A transport unit is any vehicle or receptacle in which explosives are conveyed from one building to another in a magazine, or from any building to any place outside of a magazine, or from one part of a magazine to any place outside of a magazine.

Multiple defined terms

Avoid multiple defined terms such as

"magazine" and "storage unit" mean any building, storehouse, structure or place in which explosives are kept or stored.

When definitions are arranged alphabetically, a reader looking for the definition of "storage unit" is unlikely to think of looking under "m". These definitions also violate the consistency rule of drafting — different words should have different meanings.

Formal Aspects

Definitions are drafted in the form of "Act" means …, "action" includes ….

The defined words are enclosed in "quotation marks" and are not capitalized unless they are capitalized generally. If there is only one definition in the provision, it should be a single sentence:

2. In this Act, "institution" means any international financial institution named in the schedule.

Definitions that apply throughout an Act or regulation should be in a separate section near the beginning of the text with a heading or marginal note that says "Interpretation" or "Definitions" ("Definitions" may be used if there are only defined terms with no other interpretive provisions). If defined terms relate only to a particular part, division or group of sections, they may be put at the beginning of the part, division or group. If they relate to a single section, they may be placed in a subsection either at the beginning or the end of the section. Placing them at the beginning of the section, however, may give them undue prominence and, if marginal notes are included for each subsection, the first note for the section will not indicate the contents of the section (it will say "Definitions").

If there is more than one definition, the provision should be introduced by the opening words:

1. The following definitions apply in this Act/these Regulations/this Part.

Each definition should be one or more sentences. In older Acts and regulations, definition provisions were drafted as a single sentence with the following opening words, "1. In this Act/these Regulations/this Part,". The current practice is preferred because it recognizes that each definition stands on its own, and it allows multiple sentences for complex definitions.

Definitions are grouped alphabetically within their own language group. They are not numbered. The equivalent word in the other language version is indicated in French quotation marks (« … ») and italics in the marginal note or in parentheses and italics at the end of the definition in legislative texts that have no marginal notes. For example:

"Commissioner"
« commissaire »

"Commissioner" means the Commissioner of the Royal Canadian Mounted Police.

"Commissioner" means the Commissioner of the Royal Canadian Mounted Police.
(commissaire)

If there is no equivalent word, the phrase "Version anglaise seulement" (meaning "English version only") is used instead. If the definition section contains only one definition, the introduction and the equivalent French term are omitted.

If a definition applies to two alternative forms of the same defined term, each alternative is placed within quotation marks.

Example:

"in vitro diagnostic device" or "IVDD" means a medical device intended to be used …. (instrument diagnostique in vitro ou IDIV)

Note that the equivalent French terms, including the word ou, are in italics when the term appears at the end of a definition in regulations.

A general definition section that applies to the legislative text as a whole usually appears at the beginning of the text and should have the following format:

INTERPETATION [DEFINITIONS]

1. The following definitions apply in these Regulations.

• "Act" means the ABC Act. (Loi)

• "bus" means a vehicle having a designated seating capacity of more than 10, but does not include a trailer or a vehicle imported temporarily for a special purpose. (autobus)

• "diesel engine" means a type of engine that has operating characteristics significantly similar to those of the theoretical diesel combustion cycle. The non-use of a throttle during normal operation is indicative of a diesel engine. (moteur diesel)

• "Minister" means the Minister of Finance. (ministre)

• "pardon services" includes

  • (a) inquiries made, upon request of the National Parole Board, by the Royal Canadian Mounted Police to ascertain the conduct of the person applying for a pardon following the date of the person's most recent conviction;

  • (b) the decision-making of the National Parole Board;

  • (c) the granting and the issuing of, and the refusal to grant or issue, pardons; and

  • (d) notifications by the National Parole Board and the Royal Canadian Mounted Police, regarding the National Parole Board decision and the separate storage of records, to the person applying for a pardon, to any organization that has a file or information concerning the conviction for which a pardon is applied for, and to any organization that is consulted during any inquiry. (services en vue d'une réhabilitation)

If the definition is divided into paragraphs and subparagraphs, the defined term and any necessary opening words appear on the first line, and the usual rules respecting the division of text into paragraphs and subparagraphs apply.

Example:

"machinery spaces of category A" means

• (a) spaces that contain

  • (i) internal combustion-type machinery used for main propulsion or, where the aggregate of total power output is not less than 373 kW, for purposes other than main propulsion,

  • (ii) an oil-fired boiler, or

  • (iii) a fuel oil unit; and

• (b) trunks to spaces referred to in paragraph (a).

Paragraphs are normally separated by semi-colons and subparagraphs by commas.

Cross-references in the text to definitions are made by saying, "the definition " word "in section 2".

Amendments to Definitions

In an amending Act or regulation, amendments to definitions should come into force concurrently with the substantive amendments to which they relate. For instance, if a substantive amendment containing a defined term comes into force on a named date, an amendment made to the defined term should come into force on the same date, even if that means creating a separate subsection for the amendment of the definition.

If a definition is being added to a definition provision drafted in the old style or a definition in such a provision is being replaced, the old style must be followed.

Alternatives to Formal Definition Sections

It is not necessary to always use a formal definition to set out the meaning of a term in a legislative text. It is possible to use interpretive provisions that say something about the meaning of words, but which are drafted as regular provisions without focusing on quoted words. This may be done when

• a range of words is to be interpreted:

  • (5) In this section, a reference to any provision in the Work Force Adjustment Directive is to be read as a reference to the equivalent provision of a collective agreement, if the collective agreement contains provisions that replace the Directive.

  • (3) This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.

  • (4) A reference to a time of day in this Act is a reference to local time.

• the words being interpreted are adjectival or adverbial:

  • (2) For the purposes of this Part, one corporation is affiliated with another corporation if

    • (a) one of them is a subsidiary of the other;
    • (b) both are subsidiaries of the same corporation; or
    • (c) both are controlled by the same person.

• the provision has a substantive character:

  • (2) For the purposes of this Part, a public post-secondary educational institution is considered to be public if the Foundation is of the opinion that a substantial part of its funding comes from a provincial government.

Footnotes

• [1] See s. 15 of the Interpretation Act.

• [2] See s. 21 of the Conventions.

• [3] E. Driedger, The Composition of Legislation, 1976, p. 45 to 51.

• [4] G.C. Thornton, Legislative Drafting, 4^th ed, 1996, p. 144 to 154.

• [5] Thornton, p.145.

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Date modified:

2024-10-25

Legistics
Definitions (Adjectives)

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Introduction

The purpose of this article is to clarify that, although nouns are most often used as the defined term when drafting a definition, there is also the option of using an adjective as the defined term.

Discussion

It may, in certain cases, be beneficial to define an adjective rather than a noun or a compound noun, as evidenced in the example under the heading “Analysis”. That example demonstrates the importance of carefully considering which part of speech is to be used as the defined term. Additionally, it may be appropriate to use a single word as the defined term because a lengthy defined term may reduce the flexibility available with respect to the use of the term throughout the text and may even make the text heavier or more cumbersome since, in general, a defined term is to be written out in full each time that it appears. For example, defining the participial adjective “tested” (tested, in respect of a mixture, describes a mixture for which there is data of the types set out in section 1) instead of the compound noun “tested mixture” makes it possible to use the defined term in a variety of ways: “If mixtures A and B have been tested and mixture C has not been tested, then…”; “If one of the mixtures is a tested mixture that is classified in a category…”.

Recommendation

Although nouns are the most commonly defined part of speech, legislative counsel should be aware that they have the option of defining an adjective when appropriate. The following are examples of properly defined adjectives.

• transboundary, in relation to a field or an accumulation of oil or gas, means extending beyond the Board’s jurisdiction under this Act.
• substantially gainful, in respect of an occupation, describes an occupation that provides for a salary or wages equal to or greater than the maximum annual amount a person could receive as a pension.
• corrosive, in relation to a mixture or substance, means liable to cause skin corrosion.
• crushed, with respect to the cranium of a seal, means that both halves of the cranium have been broken.
• power-driven, in respect of a vessel, means that the vessel is propelled by an engine or has an engine on board to propel it.
• appropriate, with respect to a person, means that the person has the legal power to sign.
• infested means containing any injurious, noxious or troublesome insect or animal pest.
  • 1 If grain stored in an elevator is found to be infested, the operator of the elevator must treat the infested grain in accordance with instructions issued by the Commission.
• encrypted means treated electronically or otherwise for the purpose of preventing intelligible reception.
  • 2 It is prohibited to decode an encrypted subscription programming signal or encrypted network feed otherwise than under an authorization from the lawful distributor of the signal or feed.

Analysis

Sometimes the part of speech used as the defined term may cause difficulties further on in the text as can be seen in the following example.

• traded security means a security that is traded on a recognized stock exchange, commodities exchange or over-the-counter market.
  • 3 An association may, directly or indirectly, acquire the actively traded securities of a third party from a related party.

On the face of it, there does not seem to be an issue with the definition.  However, since the defined term is a compound noun composed of a participial adjective (traded) and a noun (security) that are considered to be a single unit for the purposes of the definition, the use of the defined term and the adverb that modifies it in the above example becomes problematic. Although it was not likely the intent, the adverb “actively” modifies the entire defined term “traded security” not just “traded” and the sentence is therefore illogical and ungrammatical.

This example demonstrates why it is sometimes appropriate to use an adjective as the defined term.

This issue can be resolved by simply defining the participial adjective “traded” alone.

• traded, in relation to a security, means that the security is bought and sold on a recognized stock exchange, commodities exchange or over-the-counter market.

*Note: Legislative counsel should pay particular attention when drafting cross-references to defined adjectives since there could be ambiguity as to which term is being referenced, as demonstrated in the following example.

1. 4 Section 5 does not apply in respect of traded securities, as defined in subsection 1(1) of the Act.

Although the defined term is italicized, the significance of it may not be clear to the uninitiated reader. Counsel should consider drafting such cross-references as follows.

1. 4 Section 5 does not apply in respect of securities that are traded, as defined in subsection 1(1) of the Act.

Questions and Answers

Question 1:

Is it acceptable to define a noun or a compound noun in the English version even if an adjective is defined in the French version?

Answer:

It will depend on the circumstances. It may not always be necessary to define the adjective in the English version, particularly if the components of the defined term will always appear together and in the same form. The fact that different parts of speech are defined in the English and French versions will not itself result in a discrepancy, as demonstrated in the following example.

• converted credit union means a federal credit union that has been converted into a bank with common shares. (transformée)
• transformée Qualifie la coopérative de crédit fédérale qui a été transformée en banque ayant des actions ordinaires. (converted credit union)

• 2 (1) A conversion proposal must be written in language that is clear and simple and must include the proposed name of the converted credit union.

• 2 (1) La proposition de transformation doit être rédigée dans un langage clair et simple et doit comprendre le nom prévu de la coopérative de crédit transformée.

Question 2:

Is it always necessary to include an expression such as “in relation to”, “in respect of” or “with respect to” in the definition of an adjective?

Answer:

Those expressions are used when the intent is to limit the application of a definition, allow the definition to include a particular relationship as part of the meaning or allow the meaning of the defined words to shift depending on the circumstances addressed in the definition. They serve to identify what exactly the adjective is intended to modify. Further discussion of those expressions can be found in the “Definitions” article.

Question 3:

What is the most common type of error made when defining an adjective?

Answer:

One of the most common errors is not using the same part of speech in both the definition and the defined term. For example, an adjective must not be defined as a noun.

• Incorrect: multi-fuel means a vehicle capable of operating on two or more different fuel types.
• Correct: multi-fuel, in relation to a vehicle, means that the vehicle is capable of operating on two or more different fuel types.
• Incorrect: appropriate means, with respect to a VHF channel, the channel specified in notices to mariners for use in a traffic zone for vessel traffic management purposes.
• Correct: appropriate, with respect to a VHF channel, describes the channel specified in notices to mariners for use in a traffic zone for vessel traffic management purposes.

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Date modified:

2024-10-25

Legistics
Everyone and Anyone

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Recommendation

Legislative counsel should ensure that "everyone" and "anyone" are spelled as one word each when they mean "everybody" and "anybody" respectively.

The spellings "every one" and "any one" in this context are archaic, cause readability problems and may cause ambiguity.

Discussion

The words "everyone" and "anyone" were originally two separate words each. However, through common use these expressions were "reanalysed" by English speakers as being only one word each. The two-word spellings were still common in the nineteenth century, but the one-word spellings became standard in the twentieth century,^[1] with the result that "everyone" and "anyone" are now clearly distinct from the expressions spelled "every one" and "any one," which mean "each one" and "any given one" respectively.

One place where the old-style two-word spellings of "everyone" and "anyone" are preserved, however, is in Acts and Regulations. Both the former and the modern spellings of "anyone" are reasonably common there. "Everyone," however, is almost always spelled "every one"; this spelling is particularly common in provisions creating offences. It would appear that the spelling of "everyone" in Acts and Regulations has never been brought up to date since the first version of the Criminal Code^[2] in Victorian times. ("Every one" is a defined term in the Criminal Code, but the definition also specifically includes "similar expressions.")

Spelling "everyone" and "anyone" as separate words may lead to readability problems. The modern expressions "every one" and "any one" have, besides different meanings, quite different pronunciations from "everyone" and "anyone," with the main stresses falling in quite different places — "every one" and "any one" as opposed to "everyone" and "anyone" — which may cause a reader to stumble over a passage that contains an unfamiliar spelling. These different stress patterns are no accident: main stress on the final element, as in "every one", is the typical English stress pattern when one word modifies another (e.g. "a green house" — a house that is green); main stress on the first element, as in "everyone", is the typical English stress pattern when two words combine to form a compound word (e.g. "a greenhouse" — a structure in which plants are grown).

Even the most distinguished scholars of criminal law seem to find the archaic spelling "every one" difficult, with one leading textbook misquoting Criminal Code provisions by using the spelling "everyone" in places.^[3] There have been judgments of the Supreme Court of Canada in which judges have used the spelling "everyone" in their paraphrases of provisions that actually use the spelling "every one."^[4]

In the 1980s the Law Reform Commission of Canada proposed a substantial rewrite of the Code.^[5] Among its goals, "[i]n style the new Code aims to be intelligible to all Canadians. It is drafted in a straightforward manner, minimizing the use of technical terms…"^[6] One way it applied these basic drafting principles was by using the spelling "everyone" throughout.^[7]

Besides possible readability problems, spelling "everyone" and "anyone" the same way as "every one" and "any one" may also lead to ambiguity, as those spellings have a different meaning in modern English from "everyone" and "anyone".

Examples

• "everyone" — meaning "everybody," "every person"

  • Everyone has the right to be secure against unreasonable search or seizure
  • Everyone who commits an offence under section 7…is guilty of an offence punishable on summary conviction…or…an indictable offence…, s. 8

• "every one" — meaning "each one"

  • Subsection (1) does not apply in respect of a conspiracy, combination, agreement or arrangement that is entered into only by companies each of which is, in respect of every one of the others, an affiliate.

• "anyone" — meaning "anybody," "any person"

  • A preclearance officer may order anyone found in a preclearance area to report to the officer or to leave the area.

• "any one" — meaning "any given," "any given one"

  • Only one licence may be issued to any one individual.

Sources:

• R.W. Burchfield, The New Fowler's Modern English Usage (Oxford: Oxford University Press, 1998).

• H. W. Fowler, A Dictionary of Modern English Usage, 2^nd ed. (Oxford: Oxford University Press, 1965).

• Law Reform Commission of Canada, Recodifying Criminal Law, (Report 31), Revised and Enlarged Edition of Report 30 (Ottawa: Law Reform Commission of Canada, 1987).

• A.W. Mewett & M. Manning, Mewett & Manning on Criminal Law, 3^rd ed. (Markham: Butterworths, 1994).

• E. Partridge, Usage and Abusage, new ed. (Penguin, 1995).

Footnotes

• [1] R.W. Burchfield, The New Fowler's Modern English Usage (Oxford: Oxford University Press, 1998), at 270-271; H. W. Fowler, A Dictionary of Modern English Usage, 2^nd ed. (Oxford: Oxford University Press, 1965 (originally published 1926)), at 174.

• [2] The Criminal Code, 1892, S.C. 1892, c. 29.

• [3] A.W. Mewett & M. Manning, Mewett & Manning on Criminal Law, 3^rd ed. (Markham: Butterworths, 1994), at 9, 32.

• [4] R. v. Heywood, [1994] 3 S.C.R. 761 at 782, per Cory J.; R. v. Creighton, [1993] 3 S.C.R. 3 at 21, per Lamer C.J.C.; R. v. Kelly, [1992] 2 S.C.R. 170 at 187, per Cory J.

• [5] Law Reform Commission of Canada, Recodifying Criminal Law, (Report 31), Revised and Enlarged Edition of Report 30 (Ottawa: Law Reform Commission of Canada, 1987).

• [6] Ibid., at 2.

• [7] However, when the rewrite appeared in full Bill form in an appendix, the spelling "every one" was used: ibid., at 169 ff. There were a few isolated cases of "everyone": ss. 33(2), 63, 74(2).

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Date modified:

2024-10-25

Legistics
Expiry, Expiration and End

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Background

The word "expiration" is used consistently in the Revised Statutes of Canada. The apparent reasons for this are that the Statute Revision Commission preferred this word to the word "expiry" and this is the term defined in Black's Law Dictionary. In the regulations both the terms "expiration" (450 occasions) and "expiry" (139 occasions) are used.

"Expiration" is defined as "the coming to an end, termination". "Expiry" is also defined as the end or termination; however, the dictionaries go on to state that it is used especially to mean the termination of a time or period fixed by law, contract or agreement. According to Garner's Dictionary of Modern Legal Usage, "expiration" is the preferred word in American legal English while "expiry" is the preferred word in British legal English.

Proponents of plain language drafting include the word "expiration" in their lists of inflated and unusual words, see for example, Susan Krongold, "Writing Laws: Making Them Easier to Understand" (1992), 24 Ottawa L. Rev. 495 and the Law Reform Commission of Victoria, Plain English and the Law -- Drafting Manual. The word "expiry" is the word that is most familiar and used most in everyday speech.

Recommendations

1. When possible, the word "end" should be used instead of the word "expiration".

   Examples

   • All accounts required to be maintained under subsection (2) must be retained until the end of one year after the day on which leave to abandon operation of the pipeline has been granted by the Board.
   • A member of the Tribunal is eligible to be re-appointed at the end of a first or subsequent term of office.
   • An additional charge may be levied on goods on which wharfage is payable within a 30-day period and has not been paid at the end of that period.
   • An employee who is appointed for a specified period ceases to be an employee at the end of that period.

2. When the word "end" is not appropriate, the noun "expiry" or the verb "expires" should be used. For example, the word "expiry" is preferable to "end" in the case of documents such as permits and licences.

   Examples

   • A person to whom a permit is issued must return the permit to the game officer who issued it within 15 days after the day on which it expires or is cancelled.
   • The holder of a camping permit must remove any trailer or other vehicle from any area for which the permit was issued before the permit expires.
   • The notification must both be signed and include the results of tests carried out to determine the expiry date of the new human milk substitute.

NOTE: When a starting date is given, the use of "expiration" and "expiry" might not be necessary when expressing the end of a period.

Example

If the application is made after the two-year period following the day on which this Convention comes into force, the rights that are not subject to forfeiture are acquired as of the date of application.

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Date modified:

2022-08-29

Legistics
Expressing Obligations and Prohibitions

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Direction

Provisions creating obligations in new legislative texts are ordinarily to be drafted using “must”.

Provisions creating prohibitions in new legislative texts are to be drafted using “must not” or the verb “prohibited”.  (Prohibitions are a kind of obligation, an obligation to not do something, but as drafting considerations for prohibitions are different from those for positive obligations, they are treated separately in this note.)  “May not” and “no person may” are not to be used to create prohibitions.

The auxiliary “shall” is not to be used, because of its legalistic tone, its rarity in Canadian English outside legal documents and the multiple meanings that have been ascribed to it in legislative texts.^[1] However, when an existing text that contains “shall” is being amended, “shall” may be used in the amending text to preserve consistency, if there is no opportunity to remove “shall” generally from the existing text.

“Must” can sometimes be linguistically inappropriate as a replacement for “shall”.  For instance, a provision such as “There shall be a corporation to be known as XYZ” yields something that sounds wrong if “must” is substituted for “shall”: “There must be a corporation to be known as XYZ”.  If “must” appears to be the wrong word, “is to” can often be used instead: “There is to be a corporation to be known as XYZ”.  Alternatively, some other redraft might be possible: “The XYZ corporation is established”.

It is appropriate to use “must” to impose an obligation on a Minister or the Governor in Council (if, as a matter of policy, that is what is to be done).

Discussion

Obligations

“Must” is widely used to express obligation and has long been recognized as being capable of creating legislative requirements.  However, this usage in federal legislation was at one time restricted to non-penal provisions and to sentences in which the subject was not a person. 

“Must” is extensively used in the legislation of other jurisdictions, notably Australia and at least three Canadian provinces (British Columbia, Alberta and Manitoba) that have amended their Interpretation Acts to state that “must” is to be interpreted as imperative.  The UK Office of Parliamentary Counsel has also recognized its use.  There is no case law casting doubt on the effectiveness of “must” to create obligations and prohibitions. The Australian Plain English Manual contains apt words with regard to imposing obligations on Ministers or the Governor in Council: “We shouldn’t feel any compunction in using ‘must’ and ‘must not’ when imposing obligations on the Governor-General or Ministers, because ‘shall’ and ‘shall not’ were acceptable in the past.”^[2]  Indeed, in Canadian federal legislative texts, the words “the Minister shall” are currently used in over 300 statutes and in over 200 regulations, and “the Governor in Council shall” in over 100 statutes and in seven regulations.  For that matter, the words “the Minister must” are currently found in over 40 statutes and in over 30 regulations, and the words “the Governor in Council must” in four statutes (but not in any regulations).^[3]

Prohibitions

There are several ways to draft prohibitions:

• “X must not …”
• “A person must not …”
• “It is prohibited to …”
• “It is prohibited for anyone to …” / “It is prohibited for any person to …”
• “Everyone is prohibited from …” / “Every person is prohibited from …”

Prohibitions must not be drafted as

• “No person must …”

Not only is “No person must” rare in common usage, but it is ambiguous about whether it means that the thing is prohibited or is merely not obligatory.

“May not” and “no person may” must not be used to create prohibitions.  “May” in the positive has quite a different meaning from “shall” or “must”; however, the meaning of these words in common usage is more or less the same when they are made negative: that something is forbidden. 

Footnotes

• [1] “Shall” was traditionally used to create numerous kinds of rules of law, for example, “This Act shall come into force on…” Rules of law are now to be drafted using the simple present tense: “This Act comes into force on…”

• [2] http://www.opc.gov.au/about/docs/PEM.pdf.

• [3] It should also be noted that, in contrast, “the Minister is to” is currently found in only four statutes and one regulation, and “the Governor in Council is to” is not found at all.

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Legistics
Expressing Permission, Powers or Rights

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Direction

Provisions granting a permission, power or right to do something that is otherwise prohibited or for which authority does not otherwise exist are to be drafted using the auxiliary verb “may”.

Legislative counsel should avoid the use of  “may not” and “no person may” to limit or deny a permission, power or right and seek an alternative using phrases such as

• X is not authorized to…
• Nothing in this Act (these Regulations) authorizes X to…
• X is not permitted to…
• X may… only if…

Discussion

Permission, powers or rights

Section 11 of the Interpretation Act states that “may” is to be construed as “permissive”. Accordingly, it is used for provisions that permit people to do things that they would not otherwise be allowed or able to do. For example, it is used in the following ways:

• to give permission:

  The pilot of an aircraft must not land in fog unless authorized to do so by or under these Regulations. However, the pilot may land in fog when there is an emergency.

• to create rights:

  An accused may elect to have a trial by jury.

• to grant powers, usually to a government official or body:

  The Governor in Council may make regulations…

A grant of powers generally includes the discretion to decide whether the powers should be exercised. However, in certain contexts, there may be a duty to exercise the power despite the use of “may”. As Ruth Sullivan states:

There are many cases in which the courts have found the power conferred by “may” to be coupled with a duty once all the conditions for the exercise of the power have been met…The duty if it arises, is inferred from the purpose and scheme of the Act or from other contextual factors.^[1]

Limiting or denying a permission, power or right

There are several ways to draft a limitation or denial of a permission, power or right:

• X is not authorized to…
• Nothing in this Act (these Regulations) authorizes X to…
• X is not permitted…
• X may… only if…

Traditionally, the negation of “may” (no person may; X may not) has been used in legislative texts to limit or deny a permission, power or right. This use was endorsed by Elmer Driedger:

Since Every person may isa universal grant of permission, power or right, the opposite No person may is a withdrawal or denial of permission, power or right. This form is apt where the legislature has somewhere granted permission, power or right, and it is now intended to make an exception.^[2]

However, as Driedger warns, the word may can be troublesome:

There are situations where may is used and it is not clear whether the legislature has merely made an exception to a grant or has issued an injunction, and there would be doubt whether or not penal consequences follow the doing of what is said not to be permitted.^[3]

Footnotes

• [1] Sullivan on the Construction of Statutes, 5th ed. (LexisNexis Canada Inc.: 2008), at 71 and 73.
• [2] The Composition of Legislation, 2nd ed. (Ottawa: 1976), at 12.
• [3] Ibid.

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Legistics
Expressing Possibility

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Recommendation

Possibility can be expressed in legislation using a variety of words and expressions. Legislative counsel should take care to use a word or an expression that is appropriate to the context, that expresses an appropriate degree of possibility, and that does not create ambiguity about the intended meaning.

Discussion and examples

Possibility can be expressed in legislation using verb forms such as can, could, may and might, and expressions that include the words possible and likely and their variants. These words and expressions should be employed judiciously, as they do not necessarily express the same kind or degree of possibility and could, in certain contexts, lead to ambiguity.

Can

This word expresses possibility in a general sense. The same meaning is conveyed by the expression “it is possible (for X) to”:^[1] 

• if conditions of registration can be established to prevent adverse health impact (i.e., if it is possible to establish conditions of registration)
• if the pilot can land the aircraft safely (i.e., if it is possible for the pilot to land the aircraft safely)

Because can is also associated with ability, it is especially suitable in cases where “the possibility of an action is due to some skill or capability on the part of the subject referent”,^[2] even if the capability is not necessarily desirable:

• “gas” means natural gas that can be produced from a well (i.e., it is possible to produce the  natural gas)
• glass that can shatter into sharp or dangerous pieces on impact (i.e., it is possible for the glass to shatter)

Could

This word, which is the past-tense form of can, is used to express possibility in hypothetical situations and to express a weaker or more tentative possibility than can:^[3]

• any situation or condition that the Minister has reasonable grounds to believe could, if left unattended, induce an accident or incident

  [hypothetical]

• the emergencies that can reasonably be expected to occur at the airport or in its vicinity and that could be a threat to the safety of persons or to the operation of the airport  

  [note the difference in strength between can and could in this example]

May

This word also denotes possibility, but, unlike can, it is used to describe epistemic possibility, that is, possibility in the sense that the speaker does not know whether the proposition is (or may become) true. It expresses possibility associated with chance ^[4] rather than with capability. The same meaning is conveyed by the expression “it is possible that”:^[5]

• inspect any books, records, electronic data or other documents that the inspector believes may contain information that is relevant to the inspection (i.e., it is possible that the books, etc., contain information…)
• disclose to the Minister any actual or potential conflict of interest that may arise and affect their duties (i.e., it is possible that a conflict of interest will arise…)

NB: In legislation may is principally used to grant powers or permission (see the article “Expressing Permission, Powers or Rights”). It is recommended that, to minimize the possibility of ambiguity, legislative counsel avoid using may in cases where more than one interpretation is possible, especially if they have already used the word in its principal legislative meaning in the provision:

Might

This is the past-tense form of may. Like could, it can be used to express possibility in hypothetical situations:

any other element on board the vessel that might, if damaged or used illicitly, pose a risk to people, property or operations

Might can also be used to express a more tentative or weaker possibility than may. (See footnote 3.) Swan actually attempts to quantify the difference between the two words by saying that, in the statement “I may go to London tomorrow”, there is perhaps a 50% chance of the proposition becoming true, while in the statement “Joe might come with me” there is perhaps a 30% chance.^[8]

Likely

This word is used frequently in legislation:

• an assessment of the environmental effects that are likely to occur within the area as a result of the proposed activity
• the symptoms do not indicate a life-threatening condition and the individual is likely to return to their pre-exposure state of health

Dictionaries generally give likely a meaning similar to “probable” or “to be expected”.    A Dictionary of Modern Legal Usage places its strength between possible and probable (it points out that Glanville Williams describes likely as “a strong ‘possible’ but a weak ‘probable’”).^[9] It also says that “most often it indicates a degree of probability greater than five on a scale of one to ten”, but cautions that “it may also refer to a degree of possibility that is less than five on that same scale.”^[10] Legislative counsel should bear in mind that the degree of possibility or probability conveyed by this word can vary, although they are probably safe in relying on the dictionary definitions.

Possible

This word “embraces a wide gamut: everything from the remotest chance to a 100% certainty.”^[11] The examples found in legislation suggest, however, that it is used most often to express possibility in the sense of “capability” (“it is possible to”) rather than “chance” (“it is possible that”):^[12]

• a commissioner must, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers
• if the survey is conducted in an area where it is possible to sample sediment
• an aerodrome operator may add a key functionality to a restricted area card only if it is possible to cancel or remove the functionality without damaging or altering any other elements
• the need to ensure, as far as possible, that at all times the membership will be representative

Sources

• De Wolf, Gaelan Dodds et al. Gage Canadian Dictionary.
• Fee, Margery and McAlpine, Janice. Oxford Guide to Canadian English Usage. Second Edition.
• Fowler, H.W. Fowler’s Modern English Usage. Revised Third Edition by R.W. Burchfield.
• Garner, Bryan A. A Dictionary of Modern Legal Usage. Second Edition.
• Huddleston, Rodney. English Grammar: An Outline.
• Huddleston, Rodney and Pullum, Geoffrey K. The Cambridge Grammar of the English Language.
• Oxford University Press. The Canadian Oxford Dictionary.
• Oxford University Press. Oxford English Dictionary Online.
• Quirk, R. et al. A Comprehensive Grammar of the English Language.
• Shaw, Harry. McGraw-Hill Handbook of English. Fourth Canadian Edition.
• Swan, Michael. Practical English Usage.

Footnotes

• [1] Quirk et al., A Comprehensive Grammar of the English Language, p. 222.  “Can” is also used to express ability and informally, instead of “may”, to express permission, but this article is not concerned with those uses. For a discussion of permission, see the article “Expressing Permission, Powers or Rights”.
• [2] Ibid., p. 222.
• [3] Quirk (p. 233) states that the tentative note injected by the past-tense form could (and similarly by might in relation to may) is related to the hypothetical use of that form. Both Quirk and Fowler allow that some speakers perceive little or no difference in meaning between the present-tense and past-tense forms; nevertheless, all the grammar and usage sources consulted for this article agree that the past-tense forms of can and may (could and might) convey a weaker, more tentative or more polite idea than the present-tense forms. This is the same sort of distinction that Francophone legislative counsel make between the forms peut and pourrait of the verb pouvoir.    
• [4] Michael Swan, Practical English Usage (third edition), pp. 316, 320.
• [5]Quirk, p. 223.
• [6] Swan, p. 316.
• [7] Bryan Garner, A Dictionary of Modern Legal Usage, pp. 693 and 694.
• [8] Ibid., p. 530.
• [9] Ibid., page 694.
• [10] The reason for this may simply have to do with ease of use in English sentence structure. “May” and “might” express the idea of chance more concisely and conveniently in many cases. For example, it would be very difficult to substitute  “it is possible that” for “may” in the phrase “any person who the Minister considers may be affected by the order”.

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Legistics
Expressing Universality

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Introduction

One of the fundamental characteristics of laws is that they address groups of people, if not the country as a whole. They are, accordingly, drafted to speak in a universal way rather than to particular individuals.  This article discusses how to achieve this universality of address.

Although it may seem counterintuitive, drafting in the singular is generally preferred to the plural as the best way to achieve universality while minimizing ambiguity. As Dick says, "[t]his sidesteps the question of whether the 'legal action' or 'predicate' applies separately to each member of the class mentioned or jointly to the class as a whole." ^[1]

The preference for the singular^[2] is not in contradiction with the need to make legislative provisions apply universally. According to Quirk, the distinction between singular and plural, though important for specific reference, tends to be less crucial for generic reference, because generic reference is used to denote a class or species generally.^[3] Further support for drafting in the singular is provided by subsection 33(2) of the Interpretation Act, which states that "words in the singular include the plural, and words in the plural include the singular."

Universality in legislation can be said to be expressed either in relation to all the members of a given class or in relation to everyone.^[4] In either case, an accurate description of the subject depends on the judicious use of determiners such as a, an, any, every, each, all and no, and of pronouns such as everyone and anyone.

Discussion and examples

The discussion and examples that follow are meant as a guide. The article refrains from making specific recommendations, but rather sets out the various options available to legislative counsel when drafting a legislative text and the reasons why one option or another may be preferable in certain cases, depending on the intended meaning or the desired emphasis. The choice often seems intuitive, but perhaps only because the reasons for it have been so well assimilated that we no longer need to think about them.

1. Expressing universality in relation to a class

Singular indefinite articles: a, an

A, an

The singular indefinite article "a" or "an" is the first determiner a drafter should consider when referring to the subject of a provision, whether that subject is a person or a thing. Quirk tells us that the indefinite article, used generically, denotes any representative member of a class.^[5] Driedger points out that grammatically the indefinite article does not necessarily express universality, but that if an enactment is regarded as being addressed to each member of the community individually, the indefinite article has universal effect.^[6] As the examples below illustrate, the indefinite article in many cases can do the job quite well, whether the provision is conferring a power, privilege or right, imposing an obligation or prohibition, or setting out a rule of law:

• A court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of a dissenting offeree.
• An officer who is about to search a person under this section must ... without delay take the person before the senior officer at the place where the search is to take place.
• A mark or label on the safety equipment required by these Regulations ... must be in English and French.
• A by-law establishing a penalty must not be submitted to the Governor in Council for approval until it has been submitted for approval to the members and approved by them ...
• A witness who is served with a summons ... is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.
• A person who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Other determiners: any, each, every, all, no

Any

"Any" indicates an indefinite amount or number and therefore can be used with both the singular and the plural. According to Quirk, it can be substituted for the indefinite article "a" or "an" when that article is used generically. However, Driedger, Thornton and Dick all advise that "any" should be eschewed when a simple indefinite article will do. In the examples below (which, like the others, have been drawn from existing legislation), "any" could easily be replaced with an indefinite article without a change in meaning:

• Any (A) person who has filed a waiver may revoke it by filing with the Minister a notice of revocation ...
• Any (An) aircraft of a person referred to in subsection 9(1) or (2) that would be exempt from seizure under a writ of execution ... is exempt from seizure and detention under that subsection.
• Any (A) description that is required to be included in the publication or bulletins published under subsection (1) or (2) ... may be formulated in such a manner that ...

However, "any" is useful in the following ways.

Since one of its meanings is "it doesn't matter which/who/what",^[7] it can be used to emphasize generality, free choice or randomness. In the examples below, that emphasis would be lost if "any" were replaced with the indefinite article. It is up to the drafter to decide whether the emphasis is important.

• The Governor in Council may, by regulation, exempt any aircraft from seizure and detention under section 9.

• "container terminal" means any marine facility that accepts containers for transport.

• (1) Subject to subsection (2) ... , no vessel, other than a canoe or skiff that is not equipped for propulsion ... shall pass through a lock of the St. Ours, Chambly, Ste. Anne or Carillon Canal ... without a permit ...
  (2) Any vessel may pass through a lock of a canal referred to in subsection (1) for the purpose of obtaining a permit if the vessel does not proceed further along the canal than a lock station where permits are issued.

  [In subsection (2), the "any" emphasizes an exception that applies generally rather than just to a few vessels, as in subsection (1).]

Because of its generalizing function, "any" can be useful in provisions that confer a right, privilege or power to all the members of a class, because it leaves no doubt that any one of the members – and, by extension, all the members – may exercise that right, privilege or power^[8]:

• Any Minister of the Crown may, with the approval of the Governor in Council, enter into an agreement with the government of any province ...
• Any creditor may respond to a consumer proposal by filing with the administrator ...
• The Minister or any person designated by the Minister may issue a licence to any person who is qualified ...

Since "any" can also mean "if there is/are any" or "whatever there is/are",^[9] it is useful in provisions such as the following:

• An act of a director or officer is valid despite any irregularity in their appointment ...
  [There may or may not be an irregularity, but if there is, it does not invalidate the act.]

• Within 30 days after the expiry of the period referred to in subsection (1), the competent minister must consider any comments received ...
  [There may or may not be any comments, but if there are, the minister must consider all of them.]^[10]

• If a hazardous substance is stored ... in a work place, any hazard resulting from that storage ... must be confined to as small an area as is practicable.
  [Perhaps no hazard will result, but if any do, they must all be confined to the area.]

Each, every

Quirk states that "each" and "every" are distributive, because they consider the members of a set singly rather than as a group, and that apart from that they are often equivalent to "all" .^[11] Indeed, in certain contexts, any of these determiners can be used without a change in the essential meaning:

• The President must, as soon as feasible, notify all members of the revocation.
• The President must, as soon as feasible, notify every member of the revocation.
• The President must, as soon as feasible, notify each member of the revocation.

In other contexts, however, "each" and "every" are preferable to "all" because they make it possible to avoid ambiguity:

• Each/Every member is entitled to a certificate of membership.
  [One certificate each; no ambiguity.]
• All members are entitled to a certificate of membership.
  [Ambiguous: one certificate each or one between them?]

In some cases, "each" and "every" can be used interchangeably without an appreciable difference in meaning:

• The Board must meet at least once in each/every calendar year ...
• Every/Each inspector must be given a certificate in a form established by the Minister ...
• The Grievance Board must review every/each grievance referred to it ...

However, differences do exist between "each" and "every" that at times make one preferable over the other.

"Every" can have a generic interpretation^[12] that brings it closer to "all" in meaning and makes it a more appropriate choice when we are thinking of people or things together, as a group. It is therefore useful when we want to refer to all the members of a class while retaining the precision of the singular:

• This Part applies to every port authority set out in the schedule and to every port authority for which letters patent of incorporation are issued ...
• Every reference to the Ethics Commissioner in any deed, contract, agreement, instrument or other document ... is to be read as a reference to the Conflict of Interest and Ethics Commissioner ...
• There must be paid to every person who has held the office of Prime Minister for four years an allowance ...

Conversely, although "each" and "every" are both distributive, the distributive meaning is stronger with "each" , and this makes it more appropriate when we are thinking of people or things separately, one at a time, rather than collectively:^[13]

• For each type of application or licence, the base hours are the number of hours spent by the Commission.
• ... if a vessel security plan is prepared for more than one vessel, ensure that the plan takes into account the characteristics specific to each vessel ...
• The total remuneration that each officer receives in a fiscal year ... and the amount of any reimbursements or monetary benefits that each director receives in a fiscal year ...

"Each" is also the appropriate determiner when we are referring to one of not more than two people or things:

• Each spouse or common-law partner must be awarded the pension ...
• A seafarer is not required to meet the medical standards for visual acuity in each eye ...
• ... the Minister must lay the proposed regulation before each House of Parliament.

Just as he does with "any" in relation to the expression of a right, privilege or power, Dick advises using "each" to express an obligation imposed on every member of a class, if the indefinite article seems inadequate. Thornton advises using "every" for this purpose. As we have seen, however, the choice is really up to the drafter, and depends on the desired emphasis. The three examples that follow use different determiners to express an obligation. All three choices are correct. It is the emphasis that changes.

• A member of the board who wishes to resign must notify the Minister in writing ...
• Before assuming office, each member of the Legislative Assembly must take and subscribe before the Commissioner the oath of office ...
• Every person who is a Canadian citizen must, prior to being employed under these Regulations, take and subscribe an Oath of Allegiance ...

All

"All" is used to describe quantities of more than two. It can be used in legislation for clarity and emphasis when the plural is appropriate in the context and precision is not at issue:

• Whereas all Canadians are entitled to access to federal legislation in keeping with the common law and civil law traditions;
• The arbitrator has ... all the powers and duties of an arbitrator under sections 60 and 61 of the Canada Labour Code.
• ... sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
• All fees paid under the Act must be kept in an account entirely separate from moneys collected under the statute establishing the court.

No

This negative determiner can be used, with a positive verb, to emphasize a negative idea that could also be expressed using a positive determiner and a negative verb. The examples below show both options. Once again, the choice is the legislative counsel's.

• No offender referred to in subsection (1) is required to serve [An offender referred to in subsection (1) is not required to serve] more than one half of the offender's sentence ...
• No operator contravenes [An operator does not contravene] subsection (2) if it is not reasonably possible for the operator ...
• No by-law made under paragraph ... has any effect [A by-law made under paragraph ... has no/does not have any effect] unless ...

The definite article: the^[14]

The

The definite article indicates identifiability. It can be used to denote universality in a noun phrase where the subject is identifiable and the identifiability is associated with uniqueness:^[15]

• The master of a vessel or the offshore installation manager of an MOU to which Division 3 applies must ensure that ...

  [What master? The master of a vessel, and each vessel has only one master. If it had more than one, we would probably write "a master of a vessel" . Ditto for "installation manager" .]

• Regulations made under this section may authorize the superintendent of a park ...

  [Which superintendent? The superintendent of a park. We understand from the wording that there is only one for each park.]

• If the whereabouts of the parents of a young person are not known or it appears that no parent is available, a notice under this section may be given ...

  [In this case, the uniqueness applies to a set of people rather than to an individual.]

2. Expressing universality in relation to everyone

When the law applies to every member of society rather than to every member of a particular class, universality is expressed using the terms "a person", "any person", "every person", "no person", "anyone", "everyone" ^[16] and "no one". In some cases, more than one of these terms is suitable:

• A person must not provide false information for the purpose of obtaining ...
• Any person (Anyone) may file in writing with the Minister a request ...

• The following persons are disqualified from being a director of a corporation:

  (a) anyone (any person) who is less than 18 years of age; ( ... )

• Every person (Everyone) is guilty of an offence who wilfully makes ...
• Every one (Everyone) who counsels another person to be a party to an offence is ...
• English and French are the official languages of Parliament, and everyone (every person) has the right to use either ...
• No person (No one) is excluded by this Order from any requirement ...

3. Plural nouns

There are some cases – usually when the provision does not create a rule of conduct – in which it is acceptable to use the plural to express universality or some other general idea. Some examples were provided under "All" above. Below are others: ^[17]

Preambles and purpose provisions

• WHEREAS Canadians and people everywhere are entitled to live their lives in peace, freedom and security;
• The purpose of this Act is to contribute to the ... rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

Application provisions

• This Act applies to lighthouses that are the property of Her Majesty in right of Canada.
• These Regulations apply to engines of the 2006 and later model years.
• This Act applies to persons eighteen years old or older who are alleged to have committed an offence while a young person.^[18]

Empowering provisions

• The Minister may designate persons or classes of persons whom the Minister considers qualified to act as inspectors for the purposes of this Part.
• The Minister may make regulations amending the schedule by adding, deleting or amending the name of any communicable disease.
• The Commission may establish procedures respecting ...

4. Some thoughts about the French practice^[19]

It is worth mentioning, for the sake of legislative counsel who are new to co-drafting, that, in French, the rules governing the expression of universality are not the same as in English. For example, the preferred determiner for this purpose in French is the definite rather than the indefinite article, and it can be used in either the singular or the plural. In French, the existence of grammatical genders and the use of subject-verb and subject-adjective agreement often make it possible to achieve clarity whether the legal subject is singular or plural. Other differences in drafting conventions and in the operation of the language sometimes result in provisions that look rather different from their English counterparts but share the same meaning. Below are some examples:

Sources

• Attal, Jean-Pierre. Grammaire et usage de l'anglais. Paris-Gembloux: Éditions Duculot, 1987.
• Department of Justice Canada. English Legislative Drafting Course. Course material.
• Department of Justice Canada. Guide fédéral de jurilinguistique législative française. "Expression de la généralité" .
• Dick, Robert C. Legal Drafting in Plain Language. Third Edition. Scarborough: Carswell, 1995.
• Driedger, E.A. The Composition of Legislation. Second Edition. Ottawa: The Department of Justice, 1976.
• Huddleston, Rodney and Pullum, Geoffrey K. The Cambridge Grammar of the English
• Language. Cambridge: Cambridge University Press, 2005.
• Quirk, R. et al. A Comprehensive Grammar of the English Language. Harlow: Longman, 1985.
• Swan, Michael. Practical English Usage. Third Edition. Oxford: Oxford University Press, 2005.
• Thornton, G.C. Legislative Drafting. Fourth Edition. West Sussex: Tottel Publishing Ltd, 2007.

Footnotes

• [1] Dick, p. 71. The author gives as an example the following sentence: "The inspector shall issue clearance certificates for the tests listed in Schedule A." The sentence "does not indicate the number of certificates that must be issued in relation to the number of tests in Schedule A."
• [2] The practice of drafting in the singular does have exceptions. These are discussed under "All" (in section 1) and "Plural nouns" (in section 3).
• [3] Quirk, p. 265.
• [4] Driedger indicates on page 19 that, when the application of laws is confined by a class description of the subject, the law is expressed to be universal in relation to the described class, although it is not universal in relation to all persons.
• [5] Quirk, p. 281.
• [6] Driedger, p. 10.
• [7] Quirk, p. 391; Swan, p. 47.
• [8] Swan, p. 48: "Any and every can both be used to talk in general about all the members of a class or group" . Dick, p. 144, Rule 24: "Where a right, privilege, or power is conferred, use any (as in "any Trustee may)".
• [9] Swan, p. 46.
• [10] Huddleston and Pullum, p. 382. In this example and the next, the obligation to consider and confine all the things mentioned is imposed by the modal verb "must".
• [11] Quirk, pp. 382-383.
• [12] Huddleston and Pullum, p. 378.
• [13] Ibid., pp. 378-379; Swan, p. 153. The first source illustrates this difference between "each" and "every" indirectly by stating that one can say "almost every student passed" , but not "almost each student passed" . The modification of "every" is possible because, unlike "each", it can be interpreted collectively. Consider also what Attal says about these determiners: "EVERY ... correspond au distributif indéfini français chaque; mais il traduit aussi ... tous (toutes), car il a toujours un sens collectif"; and "EACH correspond à l'indéfini français chaque. A l'inverse de every,il insiste sur l'unité indépendante; c'est un distributif." Attal, pp. 212-213.
• [14] The definite article is also discussed in the Legistics articles "Cross-references" (which advocates its use in a series of provisions to avoid excessive cross-referencing) and "Gender-neutral language" (which presents it as one way of replacing a possessive noun in order to ensure gender neutrality).
• [15] Huddleston and Pullum, pp. 368-371; Quirk, p. 268.
• [16] Traditionally written as "every one" in the Criminal Code. For the correct use of the words "anyone" , "any one", "everyone" and "every one", see the Legistics article "Everyone and Anyone".
• [17] See also the Legistics article "Gender-neutral Language", which states that the plural may be used to avoid gender-neutral language if doing so would not create an ambiguity.
• [18] In this example, the singular might have been preferable, to avoid the shift from the plural "persons" to the singular "while a young person". Consider the following examples of application provisions, where the consistent use of the singular makes it possible to describe with precision a somewhat complex idea or subject:

  This Act applies to every corporation incorporated and every body corporate continued as a corporation under this Act that has not been discontinued under this Act.

  This Act applies to a reserve as if it were a marine conservation area.

• [19] The French approach to this subject is discussed thoroughly in the article "Expression de la généralité", in the Guide fédéral de jurilinguistique législative française.

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Legistics
First Nation(s) - Aboriginal

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Introduction

The article discusses Branch policy on the capitalization of the terms "First Nation(s)" and "Aboriginal" in federal legislation.

Recommendation

The terms "First Nation(s)" and "Aboriginal" should always appear with initial capitals. In addition, the term "Aboriginal" should not be used as a proper noun, but rather as an adjective, e.g. Aboriginal people(s), not Aboriginals.

Discussion

First Nation(s)

Until now, the capitalization of this term has followed that of "band". That is, the lower case was used except in the official name of an Indian band (e.g. "council of a band" but "the Stony Band (of Indians)", and similarly "the first nations in British Columbia" or "any first nation" but "the Buffalo Point First Nation").

Despite this history in the Branch, a change in this practice is now advocated as the language appears to have evolved. A survey of various sources in print and on the Internet indicates that our practice does not reflect general usage. In the overwhelming majority of cases, "First Nation" appears with initial capitals. In fact, at least three Canadian dictionaries list the term only with initial capitals.

Indian and Northern Affairs Canada has its own terminology guide, Words First,^[1] which indicates that "the term ‘First Nations (people)’ generally applies to both Status and Non-Status Indians" and that it should be capitalized when used as a noun and as a modifier, both in the singular and the plural. As the exact meaning of the term is less clear in other sources, legislative counsel must take the appropriate steps to ensure that the intended meaning is clear in the context.

The guide notes that there is no legal definition of "First Nation(s)" and that "…the provisions of the Indian Act, its regulations, other federal statutes and their interpretation by the courts take precedence over the content of (the) guide". However, the term is to be preferred over "Indian" except in certain cases, including "… in discussions of some legal/constitutional matters requiring precision in terminology". One solution to this problem that has already been used in legislation is to define "First Nation" to mean "a band within the meaning of the Indian Act".

Aboriginal

The question also arises as to whether the initial letter of the word "Aboriginal" should be written in lower case or upper case. Although the legislative corpus has been relatively consistent with its use of the lower case, except in expressions such as "Aboriginal peoples of Canada", there are valid reasons advocating the use of the upper case.

Among those reasons is the recommendation of several style guides including Practical English Usage by Michael Swan which states that initial capitals are used for "nouns and adjectives referring to nationalities and regions, languages, ethnic groups and religions" and the Canadian Style which states that the term Aboriginal is to be capitalized when referring to the Aboriginal people of Canada. The Canadian Style goes on to state that "[a]lthough the Canadian Constitution Act, 1982, uses the term aboriginal peoples in the lower case, the words Aboriginal, Indigenous and Native have since come to be capitalized when used in the Canadian context." The use of initial capital letters is not only grammatically correct but also conveys respect.

The terms "First Nation" and "Aboriginal" should be capitalized regardless of whether they are used as part of a proper name, in reference to a specific group or as a generic. To avoid any possible interpretive difficulties, when amending a text that uses the term "first nation" or "aboriginal" in the lower case or that has defined those terms using the lower case, it is recommended as good drafting practice to use the upper case and to correct other references to those terms in the existing text, including the definition, to achieve uniform expression.

Footnotes

[1] Words First: An Evolving Terminology Relating to Aboriginal Peoples in Canada was developed by Indian and Northern Affairs Canada in consultation with the Assembly of First Nations and other Aboriginal organizations as well as Treasury Board, Finance Canada and other government departments.

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Legistics
Formula Descriptions

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Background

It is important to remember that, when referring to formulas and the description of formula elements in a legislative text, the English and French versions reflect different conceptual approaches.

Recommendation

It is recommended that the wording set out below be retained in the English version, rather than trying to reflect the different French wording and approach.

Examples

Consider the following provision:

19. The monthly amount of the earnings loss benefit under section 18 that is payable to a veteran is to be determined in accordance with the formula

A – B

where

• is 75% of the veteran’s imputed income for a month; and
• is an amount that is payable to the veteran for that month from prescribed sources.

The English version, when referring to the portion of text that describes how to calculate the amount or value of a formula element, would use the wording "the description of B in section 19".  (The French version would use the wording "l'élément B de la formule figurant à l’article 19".)  The English version does not treat the descriptions as integral to the formula itself and rarely, if ever, refers to "elements" or "variables".

For example:

(a) no amount may be deducted under subsection 118(1) because of paragraphs (a) and (b) of the description of B in that subsection by an individual in a taxation year for more than one other person;

Also, when referring to determined amounts or values, the English version uses the wording "the amount (or value) determined for B".

For example:

(a) the amount determined for E in the definition "cumulative eligible capital" in subsection (5) in respect of the disposition of the property by the transferor;

Conclusion

It is recommended that legislative counsel use the wording above when drafting the English version of legislative texts.  The differences in conceptual approach and wording in the English and French versions are not to be regarded as discrepancies.  They are used consistently throughout the legislative corpus.

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Legistics
Geographical names

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Introduction

Section 38 of the Interpretation Act states that "the name commonly applied to any country, place . . . or thing means the country, place . . . or thing to which the name is commonly applied, although the name is not the formal or extended designation thereof." This provision advocates a common-sense approach to naming geographical entities in legislation. However, there are well-established policies and practices governing the writing of geographical names in federal documents, and it is only logical that federal legislation abide by them.

These policies and practices are based on the principles set out in Treasury Board Circular 1983-58, which implemented the policy adopted at the time by the Canadian Permanent Committee on Geographical Names (CPCGN) on the treatment of geographical names in federal bilingual documents. TB Circular 1983-58 identified the CPCGN, known today as the Geographical Names Board of Canada (GNBC),^[1] as the body responsible for authorizing the geographical names to be used on federal maps. It also recognized the Translation Bureau as the body responsible for determining the treatment of those names in prose texts. Today, the GNBC and the Bureau, along with the Gazetteer of Canada, are the most authoritative sources of information on the writing and translation of Canadian geographical names.

The field of geographical naming is vast and subject to considerable and continuing analysis in Canada. This article provides some basic guidelines for legislative counsel of the English version of legislative texts and identifies the sources they can consult for more detailed information. For practical purposes, geographical names have been divided into four categories:

• 1. Canadian geographical names having one official version (English or French)
• 2. Canadian geographical names having two official versions (English and French)
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• 3. Foreign geographical names

1. Canadian geographical names having one official version (English or French)

Quick consultation guide for names of this type

Canadian Geographical Names Data Base

This is the national and most authoritative repository of official Canadian geographical names, including those authorized by the provinces and territories. It may be consulted on the GNBC web site: http://geonames.nrcan.gc.ca/search/search_e.php.

Termium

The information in the Translation Bureau's terminology bank complements that in the Canadian Geographic Names Data Base.

Canada's Geographical Names Approved in English and French

This is a document produced by the GNBC and available for consultation on its web site, under Gazetteers and publications. Its Appendix 3 provides useful and still current guidelines on the writing and translation of geographical names.

Gazetteer of Canada series

This has traditionally been the most authoritative source, but since it is in paper form, it is not as up to date as the first three.

Principles and Procedures for Geographical Naming, 2001

This is a GNBC document available on the GNBC web site that provides detailed rules on the designation and translation of geographical names. See in particular Principles 8, 9 and 12, and Appendices 3 and 5. The information regarding bilingual official names (Principle 1, Note 2) may not be up to date.

The Canadian Style

Chapter 15 provides extensive information on the subject. The information regarding bilingual official names (15.04, 15.15) may not be up to date.

Glossary of Generic Terms in Canada's Geographical Names(BT 176)

This glossary, produced jointly by the CPCGN and the Translation Bureau, provides bilingual versions of generics (explained under Geographical features, below). An Addition to the glossary is available on the GNBC web site.

Most geographical entities in Canada have only one official name. However, the treatment of that name in a document depends on whether the entity is an inhabited place or a geographical feature.

(a) Inhabited places (cities, towns, municipalities)

Inhabited places - with the exception of those listed in Canada's Geographical Names Approved in English and French and dealt with in part 2 of this article - have only one official name: the name adopted by the provincial or federal authority in whose jurisdiction it is located. The official name, as it appears in the Gazetteer of Canada or the Canadian Geographical Names Data Base, is to be used in both English and French documents. Therefore, the following names should be used in the English version of a legislative text:

• Montréal (not Montreal)
• Québec (not Quebec City)^[2]

Admittedly, this represents a departure from long-standing drafting practice and from usage among the general public, and therefore there may be a psychological barrier to overcome in following the rule. Moreover, there is the practical concern that, in the case of "Québec", at times it may not be clear whether the reference is to the city or the province (although the name of the province is written as "Quebec" in English-language documents). One solution, provided in Termium and considered acceptable by the Geographical Names Board of Canada, is to use, if the context permits, "city (or City) of Québec". Termium and The Canadian Style recommend "city" in reference to the geographical entity and "City" in reference to the corporate entity.

Examples:

• The head office of the Foundation shall be in the city of Québec.
• The Commissioner shall hear any complaint made by the City of Québec against the Corporation.

(b) Geographical features (lakes, mountains, rivers, etc.)

The names of geographical features consist of a generic component, which identifies the type of feature, and a specific component, which is the proper name of the feature. In "Buck Lake", for example, "Lake" is the generic and "Buck" is the specific.

Under the federal policy, it is permissible to translate the generic component of the name, but the specific component must always be identical to the one that appears in the Canadian Geographical Names Data Base or the Gazetteer of Canada. For example, "lac Saint-Jean" can be written in English as "Saint-Jean Lake"; "mont Adagio", as "Mount Adagio"; and "rivière Abitibi", as "Abitibi River". The French and English equivalents for many generics are provided in Termium, in the Translation Bureau's Glossary of Generic Terms in Canada's Geographical Names (BT 176) and in the Additions to that glossary provided on the GNBC web site.

2. Canadian geographical names having two official versions (English or French)

Quick consultation guide for names of this type

Canada's Geographical Names Approved in English and French

This document may be consulted on the GNBC web site: http://geonames.nrcan.gc.ca/search/search_e.php. It should be consulted first, since it is likely to contain the most up-to-date information. See below for a detailed list of its contents.

Canadian Geographical Names Data Base

As mentioned earlier, this is the most comprehensive and authoritative source of information. It contains all official Canadian geographical names.

Termium

This terminology bank may provide information that is not available in the above sources or that is complementary to them, and tends to be up to date.

Gazetteer of Canada series

Again, this has traditionally been the most authoritative source, but since it is in published form, it is not as up to date as the first three.

Although most geographical names have only one official form, some have two (English and French). While the accuracy of a geographical name can be checked in the Canadian Geographical Names Data Base or the Gazetteer of Canada, it may not be obvious from those sources whether the name has an official version in the other language.

The best source of information on bilingual official names is Canada's Geographical Names Approved in English and French, which sets out various categories of such names in easy-to-consult lists. Legislative counsel may find the following lists useful for the English version of legislative texts:

(a) Names of pan-Canadian significance

This is a list of entities (chiefly geographical features) in Canada that have established, well-known names in both English and French. Both names were recognized by Treasury Board Circular 1983-58 as having official status. Legislative counsel should use the English name.

Examples:

(b) Names of features shared by two provinces and having official status

These are the names of entities (mainly bodies of water) shared between Quebec and another province. The portion in Quebec has one official name, and the portion in the other province has another.

Examples:

If both portions of the entity are being referenced in a legislative text, the legislative counsel should use both names, but make it clear that only one entity is being referred to, as in the following example:

"The licence is valid in respect of the body of water known as Lac Des Marets in Quebec and as Cheeseman Lake in Newfoundland and Labrador."

If the names are being used in a list, similar care should be taken to remove any ambiguity, although the solution may vary with each case.

(c) Geographical names approved in both English and French within one province

This is a list of entities (primarily inhabited places) that have an English name and a French name, both of which have been accorded official status by the province. The provincial practice is followed in federal documents.Legislative counsel should use the English name.

Examples:

(d) Undersea feature names approved in English and French

This is a very long list that sets out the names of the features in alphabetical order in both English and French.

(e) Names of international waters adjacent to Canada approved in English and French

The waters in question are those shared with Greenland or with the United States.

(f) Names of national parks of Canada and national historic sites of Canada in English and French

This is a long list that sets out, by province, the names of national parks (including proposed national parks), national park reserves, national historic sites of Canada, and heritage canals.

3. Foreign geographical names

Quick consultation guide for names of this type

List of Independent States

This list is available on the GNBC web site under "Information for translators"(http://geonames.nrcan.gc.ca/info/tra_e.php). Look under "Names of sovereign states", then "list of English and French names of sovereign states". The list provides a ready reference for the names of foreign countries. It is updated in consultation with the Department of Foreign Affairs and International Trade and the Translation Bureau.

List of Country Names (BT 264)

This list, which is produced by the Translation Bureau and may be more up to date than the GNBC list, is available at http://www.bureaudelatraduction.gc.ca/index.php?lang=english&cont=686.

Termium

Some foreign geographical names have been standardized in Termium.

Guidelines for Names Outside Canada for Official Canadian Use

Like the above-mentioned List of Independent States, this GNBC document is found on the Board's web site under "Information for translators", then "Names of sovereign states" (http://geonames.nrcan.gc.ca/info/tra_e.php).

To assist with the writing of foreign geographical names not found in the first three sources listed above, the GNBC has approved the Guidelines for Names Outside Canada for Official Canadian Use, which sets out the principles to follow and the types of sources (gazetteers, atlases, etc.) to consult in this field. Although the document does not list specific reference works, the GNBC toponymist consulted in the writing of this article commented favourably on the Times Atlas of the World and the National Geographic atlases with respect to English-language place names, and on the Bordas atlases with respect to French-language place names.

Footnotes

• [1] The GNBC is part of the Department of Natural Resources. The precursor of the GNBC and the CPCGN, the Geographic Board of Canada, was created in 1897 by the federal government to approve and standardize the writing of Canadian geographical names. Initially, the Geographic Board of Canada had sole authority for naming geographical entities, but over time that authority devolved to the federal departments, provinces and territories with authority over the area in which the entity was located. Today, the GNBC retains a central co-ordinating role with respect to the treatment of Canadian and foreign place names in federal maps and documents, and Order in Council P.C. 2000-283 requires federal departments, agencies and crown corporations to abide by the GNBC's decisions in the matter.
• [2] Conversely, the French drafter would use "The Pas" (not "Le Pas") and "Saint John" (not Saint-Jean).

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Gender-inclusive Language

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Introduction

Most legislative provisions are meant to apply broadly to all persons or to specific classes of persons without distinction based on sex, gender identity or gender expression. The traditional practice for Canadian legislative drafting in English was to apply the default masculine rule when referring to persons, which meant that words that ostensibly refer to men only – such as “fireman” or the pronoun “he” – were used to refer collectively to persons of any gender.^{Footnote 1} Over time, the default masculine rule has given way to drafting practices that limit the use of words marked for gender to contexts in which their use reflects the legislative intention, which helps ensure that legislative provisions use language that is inclusive of the diverse readers to whom they may apply. A gender-inclusive approach to legislative drafting is also consistent with the values of equality recognized, for example, in the Canadian Charter of Rights and Freedoms, as well as with government policies that seek to promote gender equality^{Footnote 2} and the drafting conventions of the Uniform Law Conference of Canada.^{Footnote 3}

This article sets out recommended techniques for gender-inclusive legislative drafting in English and provides some historical background on gender in English legislative language. It also includes many examples of the recommended techniques in use and describes their potential pitfalls.

(See the article Rédaction législative inclusive in the Guide fédéral de jurilinguistique législative française for recommended techniques in French.)

Recommendations

1. When referring, without distinction based on sex, gender identity or gender expression, to all persons, a class of persons or an unspecified person who occupies a particular office or position
   1. use generic descriptors, titles and other words that are gender-inclusive; and
   2. avoid the pronouns “he” and “she” (including the doublet “he or she”) and their other grammatical forms by
      1. repeating the noun,
      2. using the singular, gender-neutral pronoun “they” and its other grammatical forms,
      3. replacing possessive pronouns with a definite or indefinite article,
      4. using the plural, if the context allows, or
      5. structuring the sentence so that the pronoun is not required.
2. When referring to a specific, identifiable individual, use the pronouns, titles and other gendered terms that they would use, if known. If their pronouns are not known, consider repeating their name or title or structuring the sentence so that no pronoun is required.

Discussion and Examples

Gender in legislation – history

In common law jurisdictions, the default masculine rule has been applied in legislative drafting in English since at least the mid-1800s. Earlier legislation often differentiated references to men and women by using the pronouns “he” and “she” separately and sometimes used the doublet “he or she” to indicate that rules applied to both men and women.^{Footnote 4} The Parliament of Upper Canada enshrined the default masculine rule in 1837 when it became the first common law jurisdiction to enact a general interpretation statute. That statute provided that in any Act “every word importing the masculine gender only, shall extend and be applied to a female as well as to a male”.^{Footnote 5} Federal legislation in Canada has included a similar rule since 1867. The modern version is set out in subsection 33(1) of the Interpretation Act. Unlike its 1837 counterpart in Upper Canada, it allows for the possibility of either a default masculine or a default feminine rule:

Gender
33 (1) Words importing female persons include male persons and corporations and words importing male persons include female persons and corporations.

Genre grammatical
33 (1) Le masculin ou le féminin s’applique, le cas échéant, aux personnes physiques de l’un ou l’autre sexe et aux personnes morales.

While the Interpretation Act creates a form of gender-neutrality from a legal perspective and helps resolve ambiguity as to the scope of gender-specific terms in existing legislation, the use of gender-inclusive language when drafting new legislation and amending existing legislation results in legislative language that is clearer on its face and reflects a conception of gender that is broader than the male-female binary expressed by the Interpretation Act. It also means that readers of legislation, including judges, do not have to rely as much on interpretive rules set out in separate texts.^{Footnote 6}

Referring to unspecified persons

Legislation is full of references to unspecified persons that are meant to include persons of any gender. Despite its roots as a language with pervasive grammatical and social markers of gender,^{Footnote 7} modern English has retained few such markers. The exceptions that are most relevant to legislative drafting are the frequently used third-person singular pronouns “he” and “she” and various gender-specific terms for broad classes of persons (such as “men” or “sisters”) and for occupations and office holders (such as “stewardess” or “Chairman”). The dominant practice in English legislative drafting is to refer to unspecified persons using generic singular nouns. For example, phrases such as “a person”, “every person” and “anyone” are used to refer collectively to all persons while more precise descriptors such as “a licence holder”, “each employee”, “a manufacturer” and “a judge of a Superior Court” are used to refer to a class of persons. In addition, titles such as “the Commissioner”, “the Minister”, “the Chief Justice of the Federal Court” and “the chief mate” (of a vessel) are used to refer not to a specific individual but to whichever person may occupy the office or position at a given time. In these cases, gender-inclusive drafting involves using words and phrases that are not marked for gender and paying particular attention to pronouns.

The techniques set out earlier under Recommendation (1) are restated below, accompanied by examples and some further discussion.

1. Use generic descriptors, titles and other words that are gender-inclusive

   Most of the descriptors and titles used in formal writing in English are already gender-inclusive. Non-inclusive terms have gradually fallen out of use and been replaced by more inclusive alternatives. Gender-specific nouns such as “woman”, “man”, “sister” and “son”, along with the pronouns “he” and “she”, may of course be used in legislation when the intention is to refer to persons of a particular sex, gender identity or gender expression. For example, there are various references to “women” in the Pay Equity Act, the Employment Equity Act and the Department for Women and Gender Equality Act, whose purposes include redressing discrimination experienced by women. However, most references to persons in federal legislation are not meant to be gender-specific, so unmarked nouns such as “person”, “individual”, “sibling” and “child” will better reflect the legislative intent in most cases.

   Gender-specific occupational names and titles were commonly used in earlier legislation but have mostly been replaced by more inclusive terms. The following chart provides some examples of occupational names and titles that should be avoided along with gender-inclusive alternatives.^{Footnote 8}

   Avoid	Use
   fireman	firefighter
   policeman	police officer
   foreman	supervisor
   mailman	letter carrier
   stewardess, steward	flight attendant
   fisherman	fisher
   seaman	sailorFootnote 9
   chairman	chairperson or chairFootnote 10
   ombudsman	ombuds, ombud or ombudspersonFootnote 11

   Note: In the case of an official title, legislation should reflect the actual title used by the relevant organization or established by existing legislation, even if it is not inclusive. However, non-inclusive titles should be replaced if there is an opportunity to do so.

2. Avoid the pronouns “he” and “she” (including the doublet “he or she”) and their other grammatical forms by

   1. repeating the noun

      An easy way to avoid gendered pronouns is to simply repeat the noun. One important advantage of this technique is that there is no ambiguity of reference.

      Example 1. The Minister must refuse to issue a permit if the Minister has reasonable grounds to believe that false or misleading information was provided in the application for the permit.

      Example 2. The Governor in Council may make any orders or regulations that the Governor in Council considers necessary for the purpose of carrying out the Agreement.^{Footnote 12}

      Example 3. After a person’s term as a member ends, the person may carry out any duties of a member in respect of a matter that was referred to the Commission under subsection 26(4) while the person was a member.^{Footnote 13}

   2. using the singular, gender-neutral pronoun “they” and its other grammatical forms^{Footnote 14}

      Pronouns are ubiquitous in everyday speech and the constant repetition of nouns can sometimes result in awkward phrasing. Pronouns therefore remain an important tool for the drafting of plain-language legislation that reads well. The third-person pronoun “they” – as well as its other forms “them”, “their”, “theirs”, “themselves” and “themself” – may be used to refer to an unspecified person in the singular without reference to the person’s gender.^{Footnote 15}

      Example 4. A person must, in their application, attest that they meet each of the eligibility conditions referred to in paragraphs 3(1)(a) to (n).

      Example 5. The Minister may refuse to issue a permit, or may amend, suspend or cancel a permit, if they are of the opinion that the public interest warrants it.

      Beware of ambiguity: Because the pronoun “they” can be used to refer to persons in both the singular and plural as well as to things in the plural, ambiguity may arise as to what “they” refers to in some contexts. If the referent is not clear, repeat the noun or restructure the sentence.

      Example 6. Ambiguous “they”: The medical examiner may issue the certificate to the applicant if they have met the requirements set out in section 27.

      In this example, it is not immediately clear who has to have met the requirements of section 27, the medical examiner or the applicant. Although the content of section 27 likely resolves the ambiguity, it is clearer to replace “they have” with “the medical examiner has” or “the applicant has”, as the case may be.

      Example 7. Ambiguous “their”: The Commissioner or a person acting under their direction in carrying out their duties under the Act must not disclose any information relating to an investigation.

      In this example, the first “their” logically refers to the “Commissioner”, but the second “their” is ambiguous. Is the person carrying out their own duties under the direction of the Commissioner or are they carrying out the Commissioner’s duties? It is better to repeat the noun each time for clarity:

      The Commissioner or a person acting under the Commissioner’s direction in carrying out the Commissioner’s duties under the Act must not disclose any information relating to an investigation.

      Note on themselves/themself: Avoid using the emphatic and reflexive pronouns “themselves” and “themself” to refer to an unspecified person in the singular. Both forms are attested by the Oxford English Dictionary as possible singular pronouns for emphatic and reflexive uses.^{Footnote 16} However, “themselves” reads more naturally as a plural pronoun and may sound odd in the singular while “themself” is less well established in usage and often considered non-standard.^{Footnote 17} Possible solutions include changing the verb to one that does not require a reflexive pronoun or, if the context allows, making the noun plural to go with a plural “themselves”. If no solution is available, choose the form that reads most naturally in the context. For example, “themselves” may sound more natural if it is placed farther away from the noun that it refers to or after another form of “they” that refers to the same noun. In some contexts, the addition of “every” or “each” before a singular noun may also imply a collective plural that reads well with “themselves”.

      Example 8. The employer must ensure that … each employee participates, at least once every six months, in a drill that requires them to board a lifeboat while wearing an immersion suit and to secure themselves on a seat.

   3. replacing possessive pronouns with a definite or indefinite article

      The possessive pronouns “his” and “her” (and the doublet “his or her”) can often be replaced with the definite article “the” or the indefinite article “a” (or “an”) without any loss of meaning. The choice of definite or indefinite article depends on the context.

      Example 9. Original wording: The Chief Commissioner may make a report on any claim on the basis of the information then available to the Commission if, in his opinion, postponement of his report in respect of the claim would result in undue delay.

      More inclusive wording: The Chief Commissioner may make a report on any claim on the basis of the information then available to the Commission if, in the Chief Commissioner’s opinion, postponement of the report in respect of the claim would result in undue delay.^{Footnote 18}

      Example 10. Original wording: A judge of the court of appeal may release an appellant from custody pending the determination of his appeal if … (c) in the case of an appeal or application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, if leave is required, his application for leave to appeal.

      More inclusive wording: A judge of the court of appeal may release an appellant from custody pending the determination of the appeal if … (c) in the case of an appeal or application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served a notice of appeal or, if leave is required, an application for leave to appeal.

   4. using the plural, if the context allows

      While the standard practice for Canadian legislative drafting in English is to refer to unspecified persons in the singular in most contexts, use of the plural is sometimes appropriate. In the plural, any pronoun will necessarily be a form of “they” and therefore always be gender-inclusive.

      Example 11. Original wording: These Regulations do not apply to a wildlife officer who is engaged in the performance of his duties.

      More inclusive wording: These Regulations do not apply to wildlife officers who are engaged in the performance of their duties.

   5. structuring the sentence so that the pronoun is not required

      There are many ways to structure sentences to avoid using a form of “he” or “she”. Below are some potential solutions for common phrases seen in legislative texts.

      Replace or shorten a subordinate adverbial clause: Legislative provisions often feature subordinate adverbial clauses (especially “if” clauses) that have a pronoun as their grammatical subject. In many cases, the subordinate clause can be replaced with a structure that does not require a gendered pronoun or modified to make the grammatical subject implicit.

      Example 12. Original wording: A person is not eligible to be appointed a returning officer if he is undergoing a term of imprisonment as a result of having been convicted of an indictable offence.

      More inclusive wording: A person who is undergoing a term of imprisonment as a result of having been convicted of an indictable offence is not eligible to be appointed a returning officer.

      Example 13. Original wording: The Minister may order the owner to do any other thing with respect to the work if he or she is satisfied that it is necessary in the circumstances.

      More inclusive wording: The Minister may, if satisfied that it is necessary in the circumstances, order the owner to do any other thing with respect to the work.^{Footnote 19}

      Example 14. Original wording: A licence holder must — if his licence authorizes controlled activities in respect of a prescribed human pathogen or prescribed toxin — notify the Minister before he makes any change to the physical structure of the facility that could affect biocontainment.

      More inclusive wording: A licence holder must — if the licence authorizes controlled activities in respect of a prescribed human pathogen or prescribed toxin — notify the Minister before making any change to the physical structure of the facility that could affect biocontainment.^{Footnote 20}

      Use the passive voice: While the active voice is generally preferred, the passive voice is widely used in formal writing in English. It works best in contexts in which it is not necessary to the state the active subject of the verb, such as when the subject is implicit given the content of the provision itself or of surrounding provisions.

      Example 15. Original wording: If the applicant is served with a notice under subsection 26(3) before the day on which the application is submitted, he must include a copy of the notice in the application.

      More inclusive wording: If the applicant is served with a notice under subsection 26(3) before the day on which the application is submitted, a copy of the notice must be included in the application.^{Footnote 21}

      Remove the reference to the person: A reference to an inanimate thing is sometimes sufficient to evoke the person involved, especially when a provision is read within the context established by the surrounding provisions.

      Example 16. Original wording: Every applicant must provide, in his application, an outline of the proposed project or activity in reasonable scope and detail.

      More inclusive wording: Every application must include an outline of the proposed project or activity in reasonable scope and detail.

      Caution: When restructuring sentences to avoid the use of pronouns, always assess the restructured sentence for ambiguity as to who is responsible for carrying out the action of the verbs, especially if the sentence structure is complicated or more than one person is mentioned in other parts of the sentence. The placement of phrases within the larger sentence is often the key to resolving ambiguity, or one of the other recommended techniques may provide a better solution.

Referring to a specific individual

When a text mentions a specific, identifiable person, an inclusive approach to drafting is less about choosing inclusive language than about showing respect for the person by using the pronouns, titles and other terms that they would use, if known. References to specific individuals are rare in legislation but do occur, particularly in proclamations, orders and preambles. Individuals mentioned may include the current monarch or Governor General, a person who is being appointed to a public office by Order in Council or a person to whom a tax or penalty is remitted under a remission order.

Example 17. We, the Right Honourable Mary May Simon, Governor General of Canada … proclaim that His Royal Highness Prince Charles Philip Arthur George is now …. Charles the Third, by the Grace of God of the United Kingdom, Canada and His other Realms and Territories King ….

Example 18. Her Excellency the Governor General in Council … re-appoints Aisha Njeri, of Ottawa, Ontario, as a special adviser to the Minister of Foreign Affairs, to serve as Ambassador for Women, Peace and Security … and fixes her remuneration ….

References to specific individuals do occasionally occur in the body of an Act or regulation.

Example 19. 56.1 (1) … Madam Justice^{Footnote 22} Louise Arbour of the Ontario Court of Appeal is authorized to take a leave from her judicial duties to serve as Prosecutor of the International Tribunal for …. (Judges Act)

If a person’s pronouns are not known, avoid making assumptions about their pronouns based on their name or any other indicators. Instead, consider replacing the pronoun with the person’s name or title or restructuring the sentence so that no pronoun is required. For example, the reference to “her remuneration” in example 18 could be replaced with “the Ambassador’s remuneration”.

Amending existing legislation

When amending legislation, replace any gendered language in the provisions being amended with more inclusive language. However, if there is no opportunity to modernize the language of the text as a whole, be aware that the new gender-inclusive language will be read in relation to any existing less-inclusive language and choose a drafting technique that will not introduce unintended ambiguities. For example, if a series of provisions uses “he” or “he or she” to refer to “an applicant”, the introduction of a singular “they” to refer to the same applicant in only one or two of the provisions may create confusion. In such cases, explore alternative solutions, such as repeating the noun or restructuring the sentence.

References and Further Reading

Balhorn, Mark (2004). The Rise of Epicene They. Journal of English Linguistics, Vol. 2, No. 2, pp. 79-104. doi:10.1177/0075424204265824

Baron, Dennis (2018). A brief history of singular ‘they’. Oxford English Dictionary Blog. https://www.oed.com/discover/a-brief-history-of-singular-they

British Columbia Law Institute (2022). Gender diversity in legal writing: Pronouns, honorifics, and gender-inclusive techniques. https://www.bcli.org/wp-content/uploads/Gender-Diversity-in-Legal-Writing-1.pdf

Curzon, Anne (2003). Gender Shifts in the History of English. Cambridge University Press. doi:10.1017/cbo9780511486913

Department for Women and Gender Equality (2018). Gender Results Framework. https://women-gender-equality.canada.ca/en/gender-results-framework.html

Eagleson, Robert D. (1994-1995). A Singular Use of They. The Scribes Journal of Legal Writing, Vol. 5, pp. 87‑100. https://heinonline.org/HOL/Page?handle=hein.journals/scrib5&id=1&size=2&collection=journals&index=journals/scrib

Gender-inclusive writing: Use the singular “they” (n.d.). Writing Tips Plus. https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/gender-inclusive-writing-use-the-singular-they

Inclusionary: A collection of gender-inclusive solutions (n.d.). Writing Tips Plus. https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/inclusionary

Inclusive writing – Guidelines and resources (n.d.). Writing Tips Plus. https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/inclusive-writing-guidelines-resources

Interdepartmental Terminology Committee on Equity, Diversity and Inclusion (n.d.). Guide on Equity, Diversity and Inclusion Terminology. https://www.noslangues-ourlanguages.gc.ca/en/publications/equite-diversite-inclusion-equity-diversity-inclusion-eng

Petersson, Sandra (1998). Gender Neutral Drafting: Historical Perspective. Statute Law Review, Vol. 19, No. 2, pp. 93‑112. doi:10.1093/slr/19.2.93

Treasury Board Secretariat (2018). Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices. https://www.canada.ca/en/treasury-board-secretariat/corporate/reports/summary-modernizing-info-sex-gender.html#h-6

Ritchie, Marguerite E. (1975). Alice Through the Statutes. McGill Law Journal, Vol. 21, No. 4, pp. 685‑707. https://lawjournal.mcgill.ca/issue/volume-21-issue-4-1975

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Legistics
Hereby

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Introduction

This article examines the use of the word "hereby" in federal legislation^[1].

Recommendation

The use of the word "hereby" in federal legislation is unnecessary and should be avoided.

Discussion

The word "hereby" has been gradually falling out of favour in federal legislative texts (like "there- " words). It is currently used only in conjunction with performative speech acts. A speech act occurs whenever language is used to accomplish something — make a statement, ask a question, report, predict, etc. A performative speech act is a special kind of speech act in which the action indicated by the main verb is accomplished at the very moment of utterance.

Most performative speech acts are readily recognizable. They are in the first person, present tense and active voice with an explicit performative verb, for example, "I name this ship Queen Mary", "I welcome you", "I advise you to leave" and "We promise to return". It is quite obvious that these are not simply descriptive statements, but actually accomplish something just by being uttered — naming, welcoming, advising and promising.

In the right circumstances, performative speech acts may also be made in the second or third person. In these cases, the listener or reader has to decide if the statement being made is descriptive or performative. For example, are the statements "the court is now in session" or "you are now husband and wife" descriptive or performative? The crucial factor for a listener or reader making this determination is the social context in which the speech act is uttered. The right conditions must be present for a speech act to be effective as a performative utterance: the words must be uttered in the right socially authorized and authoritative context. If an ordinary person is making either of these statements, they would obviously just be descriptive; however, if a court official is making them at the start of court proceedings or a minister during a wedding ceremony, they would be performative. In addition to the context, it must also be the speaker's intent not merely to describe a state of affairs but to bring one about.

Performative speech acts found in legislative texts are made in the third person, present tense, and passive voice, for example,

• The XYZ Agency is < hereby > established.
• The Board is < hereby > dissolved.
• The Framework Agreement is < hereby > ratified ….
• Every legislative instrument … is < hereby > ratified ….
• There is < hereby > appropriated for these purposes ….
• The Government of Canada < hereby > recognizes ….

All of the above examples include the word "hereby". Linguists use this term in cases of doubt as a test to determine if a speech act is performative — if you can insert the word "hereby" into the statement, it is a good indication that the statement is performative. In legislative texts "hereby" appears to have traditionally been added as an explicit means of indicating that a speech act is intended to be performative. However, if it is clear from the context that a statement is performative (for example, the minister uttering the words during a wedding ceremony), there is no need for the word "hereby". This is the case in our legislative examples — it is clear from the context in which they are made (Parliament speaking by means of an Act or through delegated legislation) that they are performative. There is no need to add "hereby".

In fact, the recent trend in many jurisdictions has been to drop the word "hereby". British Columbia, Alberta, Saskatchewan, the Northwest Territories and Newfoundland and Labrador have all done so. In addition, it does not appear in recent Australian and New Zealand legislation. There are also examples in our own legislation of performative speech acts that do not rely on the word "hereby" to make them explicitly performative. For example, the replacement of a provision is achieved by simply stating "paragraph (a) is replaced by x".

Footnotes

[1] This article does not apply to the use of "hereby" in formal documents such as proclamations and orders in council.

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Legistics
However

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Recommendation

Legislative counsel should not be reluctant to use the word "however".

Background

Quite often a legislative text contains conflicting rules. Using the word "however" can help to make clear which rule prevails, by signalling that what follows overrides what precedes. "However" can be used at the start of a subsection to show that the subsection overrides the previous one; this way, the override can be indicated without a cross-reference to the previous subsection, as would be needed with "despite". (See also the note on Alternatives to "notwithstanding" .)

More commonly, "however" is used to show the relation between clauses within a single provision, with the two clauses forming either one sentence with a semi-colon or two separate sentences. As a subsection may consist of more than one sentence, drafters may punctuate the provision in either of these two ways (see the note on More than one sentence in a section or subsection). There is no hard and fast rule about whether it would be better to divide the provision into two sentences or to keep it as only one, although, in general, the longer the clauses are, the better it would be to have separate sentences.

Examples

1. One sentence punctuated with a semi-colon

   If an individual requests the opening of a retail deposit account at a point of service at which the opening of such an account can only be initiated, the member bank is not required to open the account at that physical location; however, the bank shall, subject to these Regulations, open the account at another physical location.

   The two implant registration cards referred to in subsection (1) shall be printed in both official languages; however, the manufacturer may choose to provide four cards, two in English and two in French.

2. Separate sentences

   At least 25% of the directors of a corporation must be resident Canadians. However, if a corporation has less than four directors, at least one director must be a resident Canadian.

   An order is not a regulation for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

3. Separate subsections

   (1) The Board may delegate to the Chairperson, a committee of directors or an officer of the Foundation any of the powers or rights of the Board.

   (2) However, the Board may not delegate any power or right of the Board to….

4. Alternative to "however"

   If for any reason a drafter is reluctant to use separate sentences or clauses set off by a semi-colon in a provision, the same meaning as "however" can be arrived at by using "but", or — if more emphasis seems necessary in the particular case — "but nevertheless" or "but nonetheless":

   An order is not a regulation for the purposes of the Statutory Instruments Act, but it must be published in the Canada Gazette.

   An order is not a regulation for the purposes of the Statutory Instruments Act, but nevertheless it must be published in the Canada Gazette.

Punctuation

"But" and "however" have similar meanings, which have been described as "adversative".^[1] However, they have different grammatical properties. "But" is a conjunction, and so can link clauses (as well as numerous other syntactic structures — see the note on But), usually with a comma between the clauses. "However" is not a conjunction but a connective adverb.^[2] As "however" is not a conjunction, the clause that precedes the "however" must end either with a semi-colon or with a period (in which case, of course, the "however" clause is a separate sentence). The two clauses must not be separated by only a comma, as many readers find the result an unacceptable "comma splice".

The following examples illustrate two of the different grammatical properties of the conjunction "but" and the adverb "however".

First, a conjunction may appear only between the clauses being conjoined; the adverb "however" may appear in a number of different positions, even at the very end of the clause:

• (a) An order is not a regulation, but it must be published in the Canada Gazette.

• (b) An order is not a regulation; however, it must be published in the Canada Gazette.

• (c) An order is not a regulation; it must, however, be published in the Canada Gazette.

• (d) An order is not a regulation; it must be published in the Canada Gazette, however.

Although the adverb "however" may appear in a number of positions, it is recommended that legislative counsel use it in the initial position within a clause (as in sentence (b) above), in order to signal the override to the reader as soon as possible.

The second different grammatical property discussed here is that a conjunction may conjoin members of almost any syntactic category; the adverb "however" may be used only with clauses. This is clearly illustrated in the following sentences, in which "however" may be used instead of "but" in the first sentence (with different punctuation) but not in the last two sentences:

• (a) An order is not a regulation; however, it must be published in the Canada Gazette.

• (b) An order is not a regulation, but it must be published in the Canada Gazette.

• (c) An order is not a regulation, but must be published in the Canada Gazette.

• (d) An order must be published not in the Canada Gazette, but in a local newspaper.

Footnotes

• [1] R. Huddleston & G.K. Pullum, The Cambridge Grammar of the English Language (Cambridge: 2002), p. 1311.

• [2] ibid.

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2022-08-29

Legistics
If, Where and When

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Background

The use of where to state a case or condition is archaic and appears legalistic to non-legal readers and if is generally recognized by English speakers as introducing a condition in everyday usage. Since it is often difficult to express the difference between case and condition, and since if can be used for both, if will be correct in any event. It precludes the need to make the distinction between case and condition and is preferable in the interest of clarity.

Recommendation

If can almost always be used to introduce a case or condition in legislative texts. However, when is the more appropriate choice when time or timing is important to the rule, when describing a rare or once-only situation or when there is some certainty that an event will occur. We can usually reserve where to introduce adverbial clauses that refer to a specific physical place. This does not preclude the use of “where”, “in cases where”, or “in circumstances where” when they seem more logical and natural in the particular context.

Examples

Examples of "if":

• If the third party has consented to the disclosure, the third party is deemed to have waived the requirement.
• If a complaint relates to a request for access to a record, . . .
• If any person proposes to construct or alter any work . . .
• If the Governor in Council believes on reasonable grounds that . . .
• If the verdict that the accused is unfit to stand trial was returned after the close of the case for the prosecution, . . .

Examples of "when":

• When a person dies, . . .
• When a licence expires, . . .
• Except when otherwise provided, . . .
• When the surface of a manoeuvring area or a part of one is snow-covered or otherwise unsuitable for painting, . . .
• When a training phase is completed, . . .

Examples of "where":

• An air carrier must give a safety features card to every passenger on board any aeroplane operated by the air carrier, at the place where the passenger is seated.
• . . . the indicating instrument located in an approved position on the instrument panel where it is plainly visible to and usable by any pilot . . .

As an alternative to the use of too many ifs in the same provision, consider restructuring the text to clarify the relationships among the conditions.

Examples

• When a runway is closed, the operator of the aerodrome must place closed markings on the runway as follows:
    (a) if the runway is greater than 1 220 m in length, . . .
• If a restricted area pass has been designed to be worn on outer clothing, no person shall enter or remain in a restricted area unless the pass is visibly displayed on their clothing in a place where the pass is designed to be worn.
• If a court imposes a fine, the court shall not, when the sentence is imposed, direct that the fine be paid without delay unless . . .

Perhaps using more than one subsection to express the above would result in a simpler text overall.

Sources

• Driedger, Elmer. The Composition of Legislation. Ottawa: Department of Justice, 1976.
• Garner, Bryan. A Dictionary of Modern Legal Usage. New York: Oxford University Press, 1995.

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Legistics
Members of Parliament

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Background

The phrase "Members of Parliament" has been used in legislation to refer to both Senators and members of the House of Commons, or exclusively to members of the House of Commons. The following is an example of the latter use of the phrase:

• 1. The following individuals may not be directors of a port authority:
  • (a) a Senator or a member of Parliament or an officer or employee of the federal public service or of a federal Crown corporation;

Literally, however, the expression includes both Senators and members of the House of Commons. Therefore, the above reference to "Senator" is superfluous and creates confusion about what the phrase "member of Parliament " means.

Section 17 of the Constitution Act, 1867 makes it clear that Parliament includes the Senate:

17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

The above section makes it clear that Parliament includes the Senate; Senators are parliamentarians, as are the members of the House of Commons. As such, they are obviously included within the literal meaning of the phrase "Members of Parliament". This notion is supported by the fact that, for the purposes of the Members of Parliament Retiring Allowances Act, which applies to both Senators and members of the House of Commons, the term "member" is defined in section 2 as including members of both Houses. Section 2 of the Parliamentary Employment and Staff Relations Act provides that the Act "applies to and in respect of …(b) a Member of Parliament…". In this context, "Member of Parliament" was clearly intended to include Senators, as well as members of the House of Commons.

There does, however, appear to be some confusion on the part of the public about whether Senators are "Members of Parliament" given that members of the House of Commons are traditionally designated as "MPs" and Senators are not. Because of this designation, the public seems to understand "Members of Parliament" as referring to members of the House of Commons alone, not to Senators.

Certain enactments refer specifically to "members of the Senate" and to "members of the House of Commons" - not "Members of Parliament" - when making references to parliamentarians. Once such example is the Parliament of Canada Act. Section 55 refers to the sessional allowances of "members of the Senate and the House of Commons". Similarly, section 63 (concerning the expense allowances of parliamentarians) makes specific references to both Senators and members of the House of Commons. There are many other references like these in the Act. Interestingly, however, the heading of the section relating to the remuneration and sessional allowances of Senators and members of the House of Commons reads: "Remuneration of Members of Parliament".

Recommendation

It seems clear that, literally, the expression "Members of Parliament" includes both Senators and members of the House of Commons. However, given that the traditional designation of members of the House of Commons as "MPs" creates some confusion as to who is caught by the phrase, legislative counsel should avoid the phrases "Members of Parliament" or "Senators and Members of Parliament". Instead, it is recommended that legislative counsel use "members of the Senate and the House of Commons" or, alternatively, "Senators and Members of the House of Commons" when referring to Members of Parliament in both Houses.

It should also be noted that the Table of Precedence for Canada requires that any references to Senators should always precede those references to the Members of the House of Commons. [The Table of Precedence is published in Precedence of Canadian Dignitaries and Officials (as revised November 4, 1993), Department of Canadian Heritage prepared by Canadian Heritage Ceremonial and Canadian Symbols Promotion].

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Legistics
Alternatives to "notwithstanding"

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Background

Quite often a legislative text will contain conflicting rules, and it is important to make clear which rule prevails. "Despite" and the other expressions discussed above help to do that. (See also the note on However)

Although "notwithstanding" is still a reasonably well-known word in modern Canadian English - thanks perhaps in part to numerous media mentions of the Charter's "notwithstanding clause" - "despite", "even if" and the others are more current.

"Despite" is a preposition and introduces a noun phrase, and so can replace "notwithstanding" when it introduces a noun phrase.

"Notwithstanding that" introduces a clause rather than a phrase. The clause can be somewhat ambiguous about whether it indicates that its content is the case or merely may be the case. Therefore, legislative counsel should not use "notwithstanding that" to introduce clauses. Instead, legislative counsel should use the appropriate replacement discussed above. ("Even though" can also be ambiguous in the same way as "notwithstanding that"; it is therefore recommended that "even though" be used only when it is clear from the context that what follows is a fact.)

Legislative counsel should be careful not to do a global replacement of "notwithstanding that" without first reviewing every example of those words in the text, however, because "that" can have various different uses and may not be introducing a clause. For example, in "The Minister may enter into agreements referred to in subsection (1) but, notwithstanding that subsection, such an agreement may not.", "that" is a determiner and so "notwithstanding that" cannot be replaced by "even if" or "despite the fact that", although "notwithstanding" can be replaced by "despite".

Recommendation

Legislative counsel should avoid "notwithstanding". Most of the time "notwithstanding" is followed by a noun phrase, and in these cases legislative counsel should use "despite" instead. "Notwithstanding that" is followed by a clause; legislative counsel should instead use one of the following alternatives:

• "even if" - what follows might or might not be the case, depending on the particular situation
• "even though" - what follows clearly is the case
• "despite the fact that" - what follows is the case, but this would not necessarily be clear to the reader
• "whether or not" - same as for "even if", but is the best choice when the legislative counsel do not even know whether what follows is the case or might or might not be the case

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Legistics
Possessives

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Introduction

Legislative counsel have traditionally been reluctant to use the "'s" form of the possessive (e.g., "in the Minister's opinion") in the English version of legislative texts; they have generally preferred the "of" form (e.g., "in the opinion of the Minister"). However, the "'s" form may often be the better choice from the point of view of the readability and ease of use of the text: besides being shorter, it is the most frequent option in everyday English. The "'s" form is not slang or substandard English. It has been in the language for hundreds of years, surviving from the time when English nouns had case endings, like Latin.

Recommendation

Drafters should not be reluctant to use the "'s" form of the possessive, or the possessive pronouns "its", "his or her" and "their" (see the article Gender-neutral Language), when appropriate. The examples that follow should help legislative counsel decide when one of these choices is appropriate, and at times the criterion will simply be what constitutes idiomatic English (for example, "the arrest of the suspect" can be redrafted as "the suspect's arrest", but "member of Parliament" cannot be redrafted as "Parliament's member"). Legislative counsel who wish to obtain more information on the subject are invited to consult the sources listed at the end of this article.

Discussion and examples

1.  Use of the "'s" form instead of the "of" form to indicate possession

In addition to the general considerations noted above, the "'s" form of the possessive may be preferable to the "of" form for a number of reasons:

(a) To avoid ambiguity:

write

For greater certainty, a candidate's representative who is present at a polling station is not an election officer.

avoid

For greater certainty, a representative of a candidate who is present at a polling station is not an election officer.

(b) To avoid repeating "of" several times:

write

"appropriate provincial minister", in relation to a provincial institution, means the minister of the Crown of the institution's province of incorporation who is responsible for the institution's supervision.

avoid

"appropriate provincial minister", in relation to a provincial institution, means the minister of the Crown of the province of incorporation of the institution responsible for the supervision of the provincial institution.

(c) To avoid breaking up elements that belong together:

write

No action may be taken against the Corporation in respect of the Corporation's obligation to make a payment in relation to a deposit held by a member institution that is being wound up.

avoid

No action may be taken against the Corporation in respect of the obligation of the Corporation to make a payment in relation to a deposit held by a member  institution that is being wound up.

Because "to make a payment" relates to "obligation", the provision reads more naturally when these two elements are not separated.

(d) To put new or complex information in final position:

There is a general tendency in English to place new information and relatively more complex information at the end of a sentence. Using the "'s" form may be advisable if it achieves one of these aims and therefore makes the sentence read more naturally:

write

The Commissioner is the chief executive officer of the Agency and is responsible for the Agency's [old information]^[1] management [new information].

avoid

The Commissioner is the chief executive officer of the Agency and is responsible for the management [new information] of the Agency [old information].

write

The Board is responsible for the management of the Agency's [simpler information] resources, services, property, personnel and contracts [more complex information].

avoid

The Board is responsible for the management of the resources, services, property, personnel and contracts [more complex information] of the Agency [simpler information].

2.  The possessive pronouns "its", "his or her", and "their"

In the first example provided under 1(d), the expression "the Agency's" could have been replaced by the pronoun "its". As noted above, the second mention of "the Agency" is old information, and the role of pronouns is generally to represent old information:

The Commissioner is the chief executive officer of the Agency and is responsible for its management.
A candidate shall, within three months after polling day, send to his or her official agent a written statement in the prescribed form that sets out the amount of any personal expenses that he or she paid and details of those personal expenses, including documentation of their payment.

3.  Use of the "'s" form with collective nouns and inanimate nouns

One question that can arise is whether the "'s" form can be used with collective nouns and inanimate nouns. The answer is yes with respect to collective nouns, especially if they denote organizations or other groups of living beings:

• in the Board's absence
  (or "in the absence of the Board")
• the partnership's registered office
  (or "the registered office of the partnership")
• the herd's vaccination date
  (or "the vaccination date of the herd")

With respect to inanimate nouns, there is no single general rule. It is acceptable to write "in the absence of fraud", but not "in fraud's absence"; "the incidence of mortality", but not "mortality's incidence". However, one can say either "the vessel's condition" or "the condition of the vessel"; "the drug's effectiveness" or "the effectiveness of the drug"; "Canada's multiculturalism policy" or "the multiculturalism policy of Canada". The choice depends on what is idiomatic and appropriate in a given case.

4.  Use of the apostrophe in expressions of time and measurement

For a considerable period it was customary, in legislative texts, to omit the apostrophe after the "s" in certain plural expressions indicating time or measurement (e.g., two days notice, six months wages). The reasons for this departure from ordinary English practice are no longer clear, and there is now agreement that it should cease. Legislative counsel should therefore use the apostrophe in both singular and plural expressions of this type, as indicated in the following examples:

Sources:

• Canada. Public Works and Government Services Canada. The Canadian Style. Toronto: Oxford, 1997.
• Huddleston, R. and Pullum, G.K. The Cambridge Grammar of the English Language. Cambridge: Cambridge University Press, 2002.
• Partridge, Eric. Usage and Abusage. Third Edition. London: Penguin, 1995.
• Quirk, R. et al. A Comprehensive Grammar of the English Language. Harlow: Longman, 1985.
• Swan, Michael. Practical English Usage. Oxford:  Oxford University Press, 2005.

Footnotes

• [1] Old information is not necessarily information already mentioned in the same sentence; it may be information previously mentioned in the discourse. Some works refer to it as "given information".

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Legistics
Pursuant To

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Background and Recommendation

The expression "pursuant to" is used in legal drafting to link a provision to another provision or to some factual matter. Although it is used in legal writing and in the legal community, it is not used in ordinary speech or writing. It is also sometimes ambiguous because it has a number of different meanings. For these reasons, legislative counsel should use another word or expression that is more common and, if there is a risk of ambiguity, more precise.

Alternatives to "pursuant to"

"Under" is perhaps the most generally applicable alternative. It is a more common word and has a range of meanings that match the many meanings of "pursuant to". For example, in Osman v. Callander (1986), 48 Sask.R. 23 (QB) at 24, the judge said:

The word "under" has many meanings -- in many instances, it denotes a lower or subservient state, but it also denotes a reference to or relationship with some other thing.

This comment also suggests that "under" is a broader term. "Pursuant to" tends to denote things that are principally or specifically dependent on a related provision, while "under" also includes things that are merely related to it.

Other alternatives are "in accordance with", "as required by", "described in", "authorized by", "on the basis of", "because of" and "as a result of". The following examples and commentary explain how these alternatives may be used.

Links to other Provisions

If a provision involves something that is established, issued or done, "under" can provide the link necessary to refer to the provision. For example:

an offence under section 5

This example could be used if section 5 creates the offence. However, it would also be appropriate if section 5 establishes procedures to which the offence is subject. If it is necessary to make the latter meaning clear, it is better to say

an offence described in section 5

Similar concerns arise with the following example:

a licence issued under section 5

In this example, "under" would most often link the licence to the authority for its issuance. However, section 5 may be related in another way. It may instead provide rules about issuing licences. If it is necessary to clearly refer to the authority for its issuance, it is better to say:

a licence authorized by section 5

By the same token, in order to convey unambiguously the sense of conformity with a set of rules, "in accordance with" or "as required by" should be used. For example:

• a licence issued in accordance with section 5
• a licence issued as required by section 5

These examples suggest not only that section 5 provides authority for issuing the licence, but also that it sets out rules governing or requiring its issuance.

Links to Factual Matters

When a reference is made to some factual matter, rather than another legislative provision, "on the basis of", "because of" and "as a result of" are good alternatives. For example:

• a warrant issued on the basis of information provided by a peace officer
• weeks for which benefits may be paid because of [or as a result of] illness

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2022-08-29

Legistics
References to Text in Columns

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Recommendation

It is recommended that references to text set out in columnar format be made in the following manner:

(3) The user of a parking service set out in column 1 of the schedule shall pay the amount set out in column 3.

Background

The following example illustrates the previous practice for referring to text that is set out in columnar format:

(3) The user of a parking service set out in column 1 of an item of the schedule shall pay the amount set out in column 3 of that item.

Rationale

Two factors suggest that this manner of referring to text in columns should not be used. Firstly, the wordiness of the format hinders reader comprehension, making the provision more difficult to interpret. Secondly, such a reference is technically incorrect, in that the columns in question are columns of the schedule, not columns of the items in question.

The French drafting practice correctly refers to columns as being columns of the schedule, not the item:

(3) L'utilisateur d'un service de stationnement visé à la colonne 1 de l'annexe paye le montant prévu à la colonne 3.

The recommended formulation has the added benefit of bringing the English drafting practice more into conformity with the French drafting practice.

Particular Items

In addition, given the fact that columns are not "of" items (just as items are not "of" columns, both being "of" the schedule, table, etc.), references to particular items in columnar text should be made in the following manner (within or across schedules, single or multiple references):

• (2) A water conditioner whose concentration of copper sulphate is set out in item 2, column 1, of Schedule 3 must bear the precautionary symbol set out in column 2.
• (2) A water conditioner whose concentration of copper sulphate is set out in item 2, column 1, of Schedule 3 must bear the precautionary symbol set out in item 7, column 2, of Schedule 5.
• (2) A water conditioner whose concentration of copper sulphate is set out in item 2 or 3, column 1, of Schedule 3 must bear the precautionary symbol set out in item 7 or 8, respectively, column 2, of Schedule 5.

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Legistics
Punctuation with Restrictive/
Non-Restrictive Elements

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Introduction

Phrases (prepositional, participle, gerund and infinitive) and subordinate clauses (adverbial and relative) are a prominent feature of legislative provisions; therefore, it is important that they be accompanied by punctuation that helps convey the intended meaning of the provision.

An important consideration in this respect is whether a phrase or clause is restrictive or non-restrictive: it is restrictive if it is essential to the principal meaning of the sentence; it is non-restrictive if the principal meaning of the sentence is clear without it. In the latter case, the modifier is merely providing additional, as opposed to essential, information. (Accordingly, some people use the term "defining" instead of "restrictive" and "non-defining" instead of "non-restrictive.") Commas, when used carefully, help to highlight the restrictive or non-restrictive nature of a phrase or clause, and so the tendency to insert them between the various elements of a sentence without due care ought to be avoided.

Recommendation

The general rule for punctuating these elements is that, because a restrictive element is essential to the meaning of a sentence, it should not be set off by commas (or, for that matter, by dashes or parentheses), while a non-restrictive element should be set off by punctuation. Some people remember this rule by thinking that, for a restrictive element, the punctuation is restricted.

Examples

Phrases

Restrictive: A vessel other than a barge shall be provided with the equipment set out in Schedule 1.

Restrictive: This Act applies in respect of crops grown in Canada except wheat and barley grown in the designated area.

Non-restrictive: An application referred to in subsection (1) shall include the applicant's name, business address, including the postal code, and telephone number.

In the restrictive examples, the phrases clearly provide information that is essential to the meaning of the sentence. In the non-restrictive example, "including the postal code" is an added detail.

Clauses

Restrictive: Profits, income or gains of a resident of a Contracting State that are taxed in the other Contracting State shall be excluded.

Restrictive: Trustees shall not disclose confidential information concerning any professional engagement unless the disclosure is required by law.

Non-restrictive: The Fund may adopt periods other than those that apply in accordance with paragraph (c) above, which shall be the same for all members, for the repurchase of holdings of currency acquired by the Fund.

In the first restrictive example, the clause "that are taxed in the other Contracting State" identifies the profits, income and gains that are the subject of the exclusion and so is essential to the meaning of the sentence. Similarly, in the second example, the "unless" clause provides information about an important exception to the prohibition.

In the non-restrictive example, "which shall be the same for all members" is not essential to the principal meaning of the sentence, but is just extra information.

Legislative counsel are reminded that while English grammar allows "which" to be used in either a restrictive or a non-restrictive relative clause, the use of "which" for both types of clauses could result in some cases in ambiguity as to whether the meaning is intended to be restrictive or non-restrictive. As English grammar allows "that" to be used only in restrictive relative clauses, drafting practice is to use only "that" for restrictive relative clauses and to use "which" only for non-restrictive ones, which tend to be rare in legislation in any case.

Exceptions to the general rule

There may be occasions when an element, though restrictive in meaning, should be set off by commas because of the syntactical requirements of the sentence, as in the following examples:

the restrictive element refers to a notion in the previous sentence and so is placed before the main clause:

The Minister shall issue a registration mark for an aircraft that is in compliance with the standards. If the aircraft is not registered in Canada within 12 months after the day on which the registration mark was issued, the registration mark is cancelled.

The following types of situation can often be avoided by redrafting; however, when the particularities of the sentence require that the restrictive element be placed as shown, it has to be set off by commas (or by one comma, if the restrictive element is at the beginning of the sentence):

the restrictive element is followed by a modifier that should be read with the first part of the sentence only:

The value of the outstanding debt obligations, other than those payable to the bank holding company or to entities controlled by the bank holding company, of the specialized financing entity and any specialized financing entity of the bank holding company controlled by the specialized financing entity must exceed twice the value of the sum of the following:

A vessel, other than a tug or barge, that is about to engage on a minor waters voyage shall be provided with the equipment set out in Schedule 1.

the restrictive element cannot be placed in the normal position in a sentence because to do so would create ambiguity:

Subpart 1 does not apply in respect of aircraft that, under subsection 202.13(1), are not required to be registered.

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Legistics
Rounding of Numbers

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Numbers are often rounded in order to emphasize the important or relevant digits in a numerical expression and to produce a simpler number that is easier to read and use. The process of rounding consists in omitting one or more of the least significant digits in the number and adjusting the remainder in accordance with specific rules. These rules may vary slightly depending on the desired purpose (readability, precision, etc.) and the type of information (statistical, scientific, etc.).

The following are examples of rounding provisions using the most common rules that are appropriate for legislative texts:

Monetary Amounts

(X) If an amount to be used for a taxation year contains a fraction of a dollar, the amount is to be rounded to the nearest whole dollar or, if the amount is equidistant from two whole dollars, to the higher of them.

For example:

• $53.23 becomes $53
• 26.50 becomes 27
• 36.75 becomes 37

Decimals

(X) If the quotient referred to in paragraph … contains a fraction, the fraction is to be expressed in decimal form and rounded to three decimal places, the digit at the third decimal place being increased by one if the digit at the fourth decimal place is 5 or more.

OR

(X) The rate determined in accordance with the formula is to be expressed in decimal form and rounded to the nearest one-thousandth or, if the rate is equidistant from two consecutive one-thousandths, to the higher of them.

For example:

• 53.2343 becomes 53.234
• 26.5355 becomes 26.536
• 36.7587 becomes 36.759
• 36.7599 becomes 36.760

Truncation

Although it is more a matter of shortening the numerical expression than rounding it, truncation is often mentioned in the rules for rounding. It consists in simply dropping one or more digits after the decimal point. For example 1.677754 truncated to the fourth decimal place becomes 1.6777. It should be noted that this is different than if the number had been rounded to the fourth decimal place, which would be 1.6778.

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2022-08-29

Legistics
Series of Nouns

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Introduction

This note addresses two issues related to certain series of nouns and the effective use of indefinite articles and conjunctions to clarify meaning.

Part 1 recommends that, in order to avoid unnecessary repetition, we use a single indefinite article when beginning a particular type of series of nouns.

Part 2 sets out how best to embed bijural terms (“doublets”) in series of nouns using, when required, additional indefinite articles and conjunctions.

Part 1
The Indefinite Article and Certain Series
of Nouns Conjoined by “or”

Recommendation

In cases involving a series of nouns with mixed initial consonant and vowel sounds conjoined by “or”, it is recommended that only one indefinite article (either “a” or “an”, depending on the first noun) be used at the beginning of the series, rather than inserting the appropriate indefinite article before each noun.

Background

We have, in the past, sometimes attempted to introduce for each noun in such a series the appropriate indefinite article. For example:

(2) It is prohibited to possess a gun, a crossbow or an arrow without a licence.

This can be cumbersome and it is preferable to use only one indefinite article, placed before the first noun in the series. The above could be redrafted as:

(2) It is prohibited to possess a gun, crossbow or arrow without a licence.

This will lead to a text with less repetition.

If an element in the series does not take an indefinite article (because it is a noncount or plural noun), it must be separated out from the other elements. “It is prohibited to possess ammunition or a gun, crossbow or arrow without a licence.”

Rationale

Rather than introduce the appropriate indefinite article before each noun in a series of nouns with mixed initial consonant and vowel sounds, we can rely on the “notion” of an indefinite article expressed by the one that precedes the first noun. That notion carries through for each of the nouns in the series. The indefinite article is a morpheme (a unit of linguistic meaning) and a morpheme is abstract, that is, its meaning is independent of the phonetic form in which it appears in the text. Most grammars do not call for a series of articles for a series of nouns, though some prescriptivist usage guides do.

Part 2
Embedding Certain Bijural Terms (“Doublets”)
in a Series of Nouns

Recommendation

When drafting or amending provisions in which we need to embed bijural “doublets” — such as “agent or mandatary” — in a series of nouns, it is necessary to have a conjunction both within and outside the doublet. Also, in order to help signal such bijural groupings, it is recommended that the appropriate indefinite article be inserted before each noun in the series outside of the doublet, as well as before the first term in the doublet but not between the elements of the doublet.

Rationale

For example, the following would not be correct, because the doublet is not offset from the series as a two-word grouping:

   (5) A director required to make a disclosure under subsection (1)  must not vote on any resolution to approve the contract unless the contract
(a) relates primarily to his or her employment as a director, officer, employee, agent or mandatary of the corporation;

Doublets, which refer to things, persons or activities with similar scope or function, require an additional conjunction “or”. That conjunction would, in the case above, be inserted between the terms “employee” and “agent” — in place of the comma — to offset the bijural doublet.  (If there is any doubt as to whether the two terms in the doublet refer to such similarity of scope or function, it is best to consult the bijural team on the issue for clarification.)

In addition to the extra conjunction “or”, bijural doublets may, for clarity, require extra indefinite articles.  Thus, despite the recommendation in Part 1 to avoid repeated indefinite articles in certain cases, in the case of series of nouns containing bijural doublets, additional indefinite articles actually help to flag the doublet grouping and clarify meaning.  For example, the provision above might best be redrafted as follows:

(5) A director required to make a disclosure under subsection (1)  must not vote on any resolution to approve the contract unless the contract
(a) relates primarily to his or her employment as a director, an officer, an employee or an agent or mandatary of the corporation;

Note that no indefinite article should be inserted before the second element of the doublet.

The additional indefinite articles referred to above prove most helpful in complex series of nouns and groupings, such as the following:

“personal representative” means a person who stands in the place of and represents another person, including a trustee, an executor, administrator or liquidator of a succession, an administrator of the property of others, a guardian or tutor, a curator, a receiver or sequestrator, an agent or mandatary or an attorney.

This definition contains three doublets (“guardian/tutor”, “receiver/sequestrator” and “agent/mandatary”) and one triplet (“executor/administrator/liquidator of a succession”).

When embedding bijural terms in such doublets or triplets, remember that — in the English version — the common law term is placed first. Thus, we would never, for example, see “mandatary or agent”.

Note to Part 2:

When the first term (such as “agent”) in a doublet means something that is broader than its normal sense, be cognizant of what second term is appropriate.  For example, “agent or representative” might be required rather than “agent or mandatary”. Again, should there be any doubt, consult the bijural team.

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2022-08-29

Legistics
Such

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Recommendations

1. "Such" should not be used with backward reference to something specific, as in referring to a previously mentioned licence as "Such" licence.

   However, it may be used with backward reference to something previously mentioned with the sense of "similar to" that item, as in "Such" a licence, which means "a licence of the same kind as a previously mentioned licence".

2. "Such" should not be used with forward reference to relative clauses, as in "Such" information as the Minister may request.

   However, it may be used with forward reference to other kinds of subordinate clauses, as in "The information must be stored in "Such" a manner that it is readily available".

Discussion

"Such" has been commonly used in legislation in a number of ways. The two ways that are recommended against in this note are rarely or never used in modern English other than legal English. The other ways in which "Such" is used in legislation are still current in modern English, and drafters are free to use those constructions as they like. This note discusses several of those constructions.

1. Backward reference

Reference to a specific thing

"Such" has been traditionally used in legal drafting to refer backward to a noun that has been previously mentioned to indicate that what follows is another mention of that exact same thing: for example,

If a person has a fishing licence, "Such" person must show "Such" licence to an inspector on demand.

This sense of "Such" is legalese^[1] and should not be used in drafting legislation.

Grammatically, "Such" is a determiner when it is used in this sense; this use of "Such" by lawyers appears to be based on the mistaken belief that it results in greater precision than do the ordinary English determiners "the", "that" and "those".^[2] Legislative counsel should use those determiners instead, or redraft the provision in another way that will eliminate "Such". Thus, the example above should be redrafted:

If a person has a fishing licence, they must show the licence to an inspector on demand.

Acceptable use — "similar to"

"Such" is commonly used in modern English to refer backward to a noun that has previously been mentioned; not to indicate that the second noun is the exact same thing as the first (as in the sense discussed above), but to indicate that the second noun is of the same type as, or is similar to, the first noun. This sense of "Such" is often quite useful, as it can allow legislative counsel to avoid burdensome repetition of phrases qualifying the first noun, including cross-references: for example,

Subsection (1) does not apply in respect of records of a branch of the bank outside Canada or in respect of customers of "Such" a branch.

Here, use of "Such" avoids having to repeat "of the bank outside Canada".

No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be "Such" a substance.

Here, use of "Such" avoids having to repeat the cross-reference "included in Schedule I, II, III or IV".

However, "Such" must be used carefully in these instances because it might not be clear how far the similarity extends. This can be illustrated by the following example:

motorized boats exceeding ten metres in length used for commercial fishing and other "Such" boats used for recreational purposes

Here, "Such" may refer either to all "motorized boats" or only to "motorized boats exceeding ten metres in length".

The most noticeable difference between this use of "Such" and the use that is recommended against — to refer backwards to a particular item — is that in the use recommended against, "Such" is a determiner and therefore, as in "such licence", there is no indefinite article between "Such" and the noun. (This lack of a determiner is due to the fact that articles are also within the class of determiners and there can be only one determiner in a noun phrase in English.) In the acceptable use, in which "Such" is not a determiner, there is an indefinite article between "Such" and the noun — as in "Such" a licence — except in the following cases:

• There is another determiner that precedes "Such", as in any "Such" licence or no "Such" licence.
• The noun is plural or is a non-count noun, and thus does not take an indefinite article at all.

In the latter case, whether the use of "Such" is acceptable will depend on the meaning. For example, in the case of the non-count noun information, "such information" will be acceptable if it means "information of the same kind as the information previously mentioned", but not if it means the information previously mentioned.

2. Forward reference

"Such" … as …" followed by relative clause"

Here, "Such" looks forward to a relative clause introduced by "as". It frequently occurs in provisions that both impose requirements and confer power to flesh out the requirements. For example,

Applicants shall provide "Such" information as the Minister may require.

This construction is archaic.^[3] Again, "Such" appears to be used as a determiner here, and again it should be replaced by another determiner — usually "any", but sometimes "the" or "a", depending on what goes best in the particular provision. The relative clause should then be introduced by "who", "that" or "which". For example, the provision above should be redrafted as:

Applicants shall provide any information that the Minister requires.

The expression "until such time as" should never be used. The word until suffices.

Acceptable use — "Such" … "that" …, "such… as to" …

There is another construction using "Such" with a following subordinate clause that is current in modern English^[4]; a typical example is "to such an extent that"…. However, in this use the subordinate clause is not a relative clause; furthermore, "Such" in this use is not a determiner, and so an indefinite article can appear between "Such" and the noun.

Grammatically, the subordinate clause may be either fully tensed ("in such" a manner that …, "in such a way that"…) or infinitival ("in such a manner as to"…, "in such a way as to"…).

The following are examples with a fully tensed clause:

No person shall use any other mark in "Such" a manner that it is likely to be mistaken for a national fuels mark.

Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to "Such" an extent that it amounts to a fraudulent misrepresentation of fact.

Phrases such as "in such a manner" that can be rephrased as "in a manner such that"; but in such cases legislative texts usually shorten the expression to just "such that". For example,

No person shall alter the genome of a cell of a human being or in vitro embryo "Such" that the alteration is capable of being transmitted to descendants.

The following are examples with an infinitival clause:

A bill is negotiated when it is transferred from one person to another in "Such" a manner as to constitute the transferee the holder of the bill.

A vote held under subsection (1) or (2) must be conducted in "Such" a manner as to ensure that those employees or employers who are eligible to vote are given a reasonable opportunity to participate….

Every person who packages or stamps tobacco or cigars in "Such" a way as to indicate that the duties of excise have been paid….

It will be noticed that the infinitive verbs do not have explicit subjects. This construction will work well, therefore, when the actual subject of the infinitive is easily understood from the context of the provision, but it should be avoided if ambiguity about the identity of the subject could arise.

Acceptable use — "such as" … listing examples

Needless to say, although legislative texts do not often list examples, "such as" can be used if they do. For example:

The Agency may notify any interested authority, "Such" as a professional licensing or disciplinary body established under the laws of Canada or a province…

Footnotes

• [1] B. Garner, A Dictionary of Modern Legal Usage (2^nd ed.) (Oxford U. Press: 1995) at 849.
• [2] ibid.
• [3] Garner, ibid. R. Quirk et. al., A Comprehensive Grammar of the English Language (Longman, New York: 1985) at 1144.
• [4] Garner, ibid., describes it as generally unobjectionable.

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Legistics
Terms and Conditions

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Introduction

This article discusses the use of the phrase "terms and conditions" in federal legislative texts to refer generally to all the provisions of a contract, lease, licence, permit or similar type of document.

Recommendation

From a linguistic point of view, the use of the expression "terms and conditions" is not necessary when referring generally to all the provisions of such documents. The word "terms" includes conditions and can be used instead of the doublet. The word "provisions" is another alternative.

Discussion

According to the dictionaries, the word "term" is generic. It covers both conditions and other stipulations in a document.^[1] A condition according to the dictionaries is a term of a document.

1. The Canadian Oxford Dictionary defines "term" as conditions or stipulations.

2. Black's Law Dictionary defines a "condition" as

   A stipulation or prerequisite in a contract, will, or other instrument, constituting the essence of the instrument. If a court construes a contractual term to be a condition, then its untruth or breach will entitle the party to whom it is made to be discharged from all liabilities under the contract.

3. The Dictionary of Canadian Law also defines a "condition" as

   a contractual term which the parties intended to be fundamental to its performance

Bryan Garner states the following about the phrase "terms and conditions" in A Dictionary of Modern Legal Usage (2^nd ed.):

This phrase is among the most common redundancies in legal drafting. But, someone might ask, is term really broad enough to include condition — is not a condition something that must be satisfied before a contractual term applies? The OED defines terms as "conditions or stipulations limiting what is proposed to be granted or done," and that is its usual sense in law. Hence terms is sufficient.

In addition, Guest states in Anson's Law of Contract that a condition is "a statement of fact, or a promise, which forms an essential term of the contract".^[2] It is a term that differs from the other terms of the contract in that a breach or repudiation of the condition by one party discharges the other party to the contract from further performance of the contract.

Footnotes

• ^[1]  In fact in some jurisdictions it is the triplet "terms, stipulations and conditions" that was or is still used. See Dick, Legal Drafting (1972), at 127.

• ^[2]  Guest, M.A., Anson's Law of Contract (26^th ed.) (1984) at 115.

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2024-02-27

Legistics
There- words

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Discussion

"There-" words are words that begin with "There-" and end with a preposition, usually "at", "for", "from", "in", "of", "to", "under" or "with". They have been said to be "thrown in gratuitously to give legal documents that musty legal smell".^[1]

Instead of using "There-" words, legislative counsel should use the appropriate preposition with a noun or pronoun. In the case of "thereof", legislative counsel can use the possessive: for example, "unload any conveyance or open any part thereof" should be redrafted as "unload any conveyance or open any of its parts". In addition, "There-" words that refer to places can often simply be replaced by the word "there".

Redrafting is more difficult when "There-" refers to a noun phrase that is not explicitly stated but merely implied by another part of speech, such as a verb. Take for example "An Act to amend the XX Act and to amend other Acts in consequence thereof". To avoid "thereof", one must first think of the noun phrase to which "There-" refers, that is, amending the XX Act. The title therefore means "An Act to amend the XX Act and to amend other Acts in consequence of amending the XX Act", which can then be re-drafted as " An Act to amend the XX Act and to make consequential amendments to other Acts".

Avoiding "There-" words not only results in plainer language, but also often resolves ambiguities about their antecedents. A typical ambiguity is found in "a corporation with a subsidiary along with the directors thereof", in which it is unclear whether "thereof" is referring to "corporation" or "subsidiary". This provision should be redrafted as either "a corporation with a subsidiary along with the directors of the corporation", or "a corporation with a subsidiary along with the directors of the subsidiary", depending on the intended meaning.

Ambiguity may also arise when a plausible antecedent of a "There-" word is implied by a verb.

An example of this latter sort of ambiguity was addressed by the Supreme Court of Canada in Chrysler v. Competition Tribunal (1992), 92 D.L.R. (4th) 609 at 618, although the court itself cast doubt on the interpretation that the antecedent of the "There-" word was implied by the verbs "hear and determine", as had been argued. The Court was considering subsection 8(1) of the Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.) which says:

8. (1) The Tribunal has jurisdiction to hear and determine all applications made under Part VIII of the Competition Act and any matters related thereto.

8. (1) Le Tribunal entend les demandes qui lui sont présentées en application de la partie VIII de la Loi sur la concurrence de même que toute question s'y rattachant.

Gonthier, J commented:

In English, the phrase "any matters related thereto" may refer to the applications or to their hearing and determination, though to my mind, the latter reading is constrained [sic] and does not reflect the natural meaning of the words, namely "… hear and determine all applications made under Part VIII of the Competition Act and hear and determine all matters related to the applications". In French, "s'y rattachant" can only refer to the noun "demandes", and not to the verb "entend", or otherwise the clause would read "toute question se rattachant aux auditions".

Although the Court was able to resolve the ambiguity, the issue would have been avoided altogether if "to the applications" had been used instead of "thereto".

Legislative counsel should also beware of situations in which redrafting to avoid "There-" words itself leads to ambiguity, which can happen when there is a modifying phrase following the "There-" word. For example,

"This Part applies to every Canadian corporation and to every subsidiary thereof that has more than three directors".

As drafted, this is not ambiguous. However, if this provision were redrafted as "…to every subsidiary of a Canadian corporation that has more than three directors", it would be ambiguous whether "that has more than three directors" applies to "Canadian corporation" or to "subsidiary", as in the original version. Further redrafting is needed:

• "This Part applies to every Canadian corporation and, if such a corporation has more than three directors, to its subsidiaries".
• "This Part applies to every Canadian corporation and, if a subsidiary of such a corporation has more than three directors, to the subsidiary".

Footnote

[1] B. Garner, A Dictionary of Modern Legal Usage (2^nd ed.) (Oxford U. Press: 1995) at 401.

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2024-02-27

Legistics
Describing Time Periods

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Introduction

In this article, "time periods" refers to words used in statutes or regulations to describe the limited amount of time within which something must be done. Federal legislation uses a myriad of expressions to describe them: "as soon as possible", "as soon as practicable", "as soon as reasonably practicable", "as soon as practical", "forthwith", "immediately", "without delay", "within five days", etc. This article attempts to categorize the types of expressions found in legislation to describe time periods and recommends that standard terms be used to describe periods falling within a given category.

Categorization of Time Periods

Based on an examination of general and legal dictionaries and case law, it is very difficult to argue that a particular expression that does not use specific units of time has a precise meaning that should be used in a particular situation to the exclusion of other expressions. For example, the legal dictionaries tend to treat "without delay" and "immediately" as having the same meaning. Another factor that contributes to confusion is the use of variations of expressions that are probably intended to convey the same meaning. For example, there is the often-used "as soon as possible", while "as soon as practically possible" and "as soon as is reasonably possible having regard to the circumstances" have also been used.

For the purposes of this article, time periods, other than those that set out specific units of time, can be grouped into the following three categories:

• 1. Shortest time period: In this category, the thing that is to be done must be done before anything else. To comply with a requirement specifying this period, it is necessary to stop current activities in order to do the thing. No delay in doing the required thing is permitted.

• 2. Something must be done soon - taking the circumstances into account: In this category, the thing that is to be done must be done soon, but it is permissible to do other things first if the delay is justifiable in the circumstances. The nature and importance of the thing to be done, and other objective and subjective factors, are considerations in determining how soon the thing must be done.

• 3. Requirement to do something "within a reasonable time": Usually this expression is used when there is no requirement for the thing to be done quickly — instead, a reasonable period of time is acceptable. What is reasonable is determined by the circumstances and the nature of the thing to be done.

Recommendations

It is recommended that the following words and expressions be used for the three categories described above . The addition of any other words to these expressions could cause ambiguity and is discouraged.

1. Shortest time period

The recommended terms to describe this time period are "immediately" and "without delay". These words should be used only if it is possible to act immediately. If the client department would permit the person having the duty to comply with the time period to do other things before complying with the duty, the expressions in the next category should be used.

There is an issue with using the expression "as soon as" something happens, e.g. a person has to do something "as soon as the person becomes aware" of a fact situation. This expression is usually intended to mean that the thing has to be done immediately after something else happens. The problem with this approach is that, literally, it requires the thing to be done the instant that the condition in the phrase is met. The issue can be avoided by inserting an "after" and using one of the recommended terms for this category; in other words, a person has to do something "immediately after the person becomes aware" of a fact situation. However, there may be occasions where adding "immediately after" may increase the complexity of the sentence to an undesirable degree. In these cases, the use of just "as soon as" would be acceptable.

2. Something must be done soon − taking the circumstances into account

The recommended terms to describe this time period are "as soon as feasible" and "as soon as the circumstances permit". "As soon as practicable" is also an alternative, but keep in mind that it is a term that is seldom used outside of legislative texts.

The following expressions are problematic:

"as soon as practical": This expression may introduce a very subjective test, suggesting that the person required to do the thing can take into account the cost and usefulness of doing the thing quickly.^[1]

"as soon as (is) possible": While there are many cases in which this expression has been interpreted to mean "within a reasonable time",^[2] there is also a common perception that it means "without delay".

"forthwith": Although this word has a generally accepted judicial sense that corresponds to the second category of time period, its use is discouraged because it is not plain language and its judicial sense may not be the same as the sense understood by the public.

3. Requirement to do something "within a reasonable time"

When the intention is that something is to be done quickly while taking into account the circumstances, the expression "within a reasonable time" should not be used as it does not convey the idea that the thing has to be done soon. Instead, the expressions recommended for the second category of time periods should be used.

The only time that the use of this expression is appropriate is when the client wants a requirement that the thing has to be done, but not necessarily soon, and wishes to provide a generous period of time for compliance.

Footnotes

• [1] These factors are raised in the discussion of "so far as is practical" in United Services Fund (Trustees of) v. Richardson Greenshields of Canada Ltd., (1988) 23 BCLR (2d) 1 (CA).

• [2] R. v. The Beatrice (1895), 5 Ex.CR 9 at 16; Cote v. Briggs, [1953] 4 DLR 527 at 534 (NBCA) .

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Date modified:

2024-02-27

Legistics
Triad Separators in Metric Measurement

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Recommendation

It is recommended that, to facilitate the reading of numbers with many digits in metric measurement, the Branch continue its practice of introducing a separator between groups of three digits, counting to the left and right from the decimal marker. Such a triad separator should be a small space (except in the "optional" case set out below), rather than the comma used in imperial measurement.

Such a triad separator is optional with a four-digit number. For example, one may use either 1 234 or 1234. The space, however, should be used when the four-digit number appears in a column with other numbers having five or more digits. Whichever manner is opted for, the document (and any amendments) should remain internally consistent.

Examples

• Write: 32 453.246 072 5 or 32 453.246 0725
• Write: 1245 (1 245 is optional)
• Write: 3.1416 (3.141 6 is optional), but write 3.141 59.

Since monetary units are not part of the international system of units, the rule cited above is not applicable, and the comma is used as the triad separator ($10,000.00).

Rationale

Despite the fact that several media sources (see www.cbc.ca) appear to have opted for a mixed usage in metric triad separators (combining the comma of imperial measurement with the units of metric measurement), federal legislation should adhere to the uniformity of the international system of units (SI usage). Further information respecting metric usage may be found in the Federal Regulations Manual.

Sources

• Metric Practice Guide, National Standard of Canada CAN/CSA-Z1234.1-00
• The Canadian Style, Public Works and Government Services, Translation Bureau, 1997

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2022-08-29

Legistics
Cross References

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Background

Traditional drafting in English regards each section and subsection as independent thoughts that must stand on their own. It also considers paragraphs and other subsidiary units of text in much the same way. As a result, a specific cross-reference is usually inserted whenever a reference is made in one provision (section, subsection, paragraph, etc.) to something in another.

This approach is based on the need to avoid ambiguity. It also recognizes that many people read legislative texts piece-meal, particularly lengthy ones, looking for an answer to a particular question. They want to find a provision that gives them their answer and skim the text or the marginal notes until they find one that appears to provide the answer. If the provision refers to something without a specific cross-reference, they must read the accompanying provisions to find the reference.

Although cross-references help eliminate ambiguity and make it easier to read legislative texts piece-meal, they also have disadvantages. When legislative texts are amended or drafts are renumbered, care must be taken to correct cross-references. Cross-references interrupt the reading of a text by referring the reader to a numbered provision, which must then be translated into the idea contained in that provision. The interruption is particularly bothersome when the cross-reference is quite detailed. Although the current convention on compound cross-references is much simpler than it was in the past we now say "subparagraph 2(2)(a)(i)" rather than "subparagraph (i) of paragraph (a) of …"), there are still times when cross-references are convoluted, for example references to paragraphs or subparagraphs of a definition ("paragraph (a) of the definition "Federal land" in section 2").

Recommendations

Legislative counsel should rely on context when a provision (section, subsection, paragraph, etc.) refers to something in a neighbouring provision. Readers can be expected to read the provisions together. Having read the first one, they can carry forward its ideas into subsequent provisions, as long as there are no intervening provisions to disrupt the flow of ideas or introduce ambiguity.

The assumption that a series of provisions will be read together is particularly strong with subsections of a single section. By numbering them as subsections, it will indicate that they are closely linked and should be read as a group.

This assumption also applies when a heading is used to group a series of sections together. The heading indicates that the sections have a common theme and should be read together.

Examples of Ways to Link Ideas without Cross-references

Definite Articles

The simplest way to connect ideas is by using the definite article in a series of provisions:

• (1) A person who is at least 18 years of age may apply to the Minister for a licence to fish on a recreational basis.
• (2) The application must be in the prescribed form and be accompanied by the prescribed fee.
• (3) On receiving the application, the Minister may issue a licence in the prescribed form authorizing the person to fish on a recreational basis and may specify any prescribed terms and conditions in the licence.
• (4) The Minister may make regulations prescribing the fee, the form of the licence and any terms and conditions that may be specified in it.

The definite article can also be used to link ideas among paragraphs:

A disposal permit may specify, or impose requirements respecting,

• (a) the quantity or concentration of any substance that may be released into the environment, either alone or in combination with any other substance from any source or type of source;

• (b) the places or areas where the substance may be released;

• (c) the commercial, manufacturing or processing activity in the course of which the substance may be released;

• (d) the manner in which and conditions under which the substance may be released into the environment, either alone or in combination with any other substance; …

Specific Words and Phrases

Another way of connecting ideas without cross-references is to denote the ideas using specific words or phrases that differentiate them from similar ideas. For example, in the licence provision above, the licence could be referred to as a "recreational fishing licence", rather than the more generic "licence". Similarly, the "fee" in subsection 4(4) could be referred to as the "application fee".

Definition and Application Provisions

Even further precision is possible by using a definition. For example, if an administrative body is established in section 4, a definition can be included to tie references to the name of the body back to section 4. However, the defined word or phrase should be as informative as possible so that the reader will know that it is a specific body (for example, the "Trade Tribunal") and not a generic reference ("tribunal").

Alternatively, an application provision can be included to say that particular provisions apply to the administrative body.

Definitions and application provisions should only be used when there are many references throughout the legislative text. They are unnecessary when the object of the definition or application provision is mentioned only in a few provisions that are grouped together. In these cases, the proximity of the references should dispell any ambiguity.

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2022-08-29

Legistics
More Than One Sentence in a Section or Subsection

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A section or subsection should normally consist of a single sentence. However, more than one sentence may be used when

• (a) the additional sentence is subordinate to the first or otherwise deals with the same idea;
• (b) making it into a separate subsection would put undue emphasis on it; and
• (c) the section or subsection does not become too long.

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2022-08-29

Legistics
Present Indicative

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Background

A fundamental, but seldom discussed, aspect of legislative drafting is the tense and mood of verbs. One of the few texts that deals with this question is subsection 24(1) of the Legislative Drafting Conventions of the Uniform Law Conference of Canada, which says:

24. (1) Verbs should appear in the present tense and indicative mood unless the context requires an exception.

The use of "shall" as an imperative is the major exception to this rule.

The purpose of this note is to elaborate on this apparently simple rule and to suggest that using the present indicative in some circumstances can result in ambiguity about whether a provision imposes a requirement or confers a discretionary power.

Present Tense

The basis for using the present tense in legislation is expressed in section 10 of the Interpretation Act, which says:

10. The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.

This rule reflects the perspective of someone interested in how the legislation applies to them in the present. This perspective is preferred over the future tense (which would reflect the perspective of the legislator considering whether the legislation should be enacted) and the past tense (which would reflect the perspective of a court applying the law to facts that have already occurred). Tenses reflecting these other perspectives should only be used in subordinate clauses expressing actions that take place either before or after the action in the principal clause. For example,

• A judge may make a probation order if the judge is satisfied that the accused will comply with the terms of the order.
• A judge may issue a restraining order against a person who has harassed the person applying for the order.

Note that in the second example, the tense is the present perfect, which is used to express past action that may continue up until the present. This tense is commonly used in legislation because of its temporal range and the consequent "indefiniteness which makes it an appropriate verbal expression for introducing a topic of discourse." (See R. Quirk and S. Greenbaum, A University Grammar of English (1973) at 43-44).

Indicative Mood and Modal Verbs

Rodney Huddleston in English Grammar: an outline (Cambridge: 1988) at 79 suggests that the present indicative is generally used to make "assured factual assertions", while modal verbs "would be typically used for permitting, directing, undertaking rather than for asserting facts." He provides the following examples:

This usage is reflected in legislative drafting practice by using "shall" and "must" to create obligations and "may" to confer powers, for example:

• If the Minister receives two or more extradition requests for the same person, the Minister must determine which one may proceed.

If the present indicative is used here ("the Minister determines"), the first impression it creates is that the legislation is merely describing something that occurs. This is inconsistent with the creative, ordaining nature of law. Another problem is that it could be unclear whether the Minister has to make the determination, or instead has discretion not to. Although the surrounding context might resolve the question, it is clearer to indicate what is intended by using a modal verb (may, must or shall).

The present indicative is used for provisions that do not in themselves create obligations or powers, but that instead state particular elements of an obligation or power or say something about how the legislation operates. These sorts of provisions are sometimes described as rules of law, as opposed to rules of conduct. The use of the present indicative in these cases is more natural than the now antiquated use of "shall". Its use has been advocated by authorities on drafting, such as Dreidger and Coode (see Driedger, The Composition of Legislation (1976) at p. 13). It also helps to preserve the imperative character of "shall" by confining it to rules of conduct that direct people to do something.

The following are common examples of using the present indicative to express rules of law that are components of rules of conduct:

• (1) No person shall fish without a licence issued by the Minister.
• (2) A licence is valid for one year after the day it is issued.
• The Minister may issue a fishing licence, but the licence is valid for not more than one year after the day it is issued.
• (1) The Clear Language Agency is (hereby) established for the purpose of promoting clear writing.
• (2) The Agency consists of 10 members to be appointed by the Governor in Council.

Rule components may also be subordinate clauses, such as

• If the Minister receives a request for extradition, the Minister may …
• The Minister may grant a request for extradition that is submitted within 30 days after…

Some examples of rules about how legislation operates are:

• This Act comes into force on January 1, 1999.
• This Act applies to ships registered after January 1, 1999.
• This Act prevails over any other inconsistent Act.

It is sometimes difficult to determine whether a provision states an ancillary or subordinate rule of law, as opposed to a rule of conduct. Consider the following examples:

• The head office of the Agency is in the city of Winnipeg.
• The directors have experience in the management of airports.

They could be interpreted in three ways:

• they create rules of conduct: the first example requires those who run the agency to maintain its head office in Winnipeg, while the second establishes what candidates must do to be eligible for appointment as directors;
• they state rules that are ancillary to the creation of an agency or the appointment of directors, describing one of the attributes they must have to fulfill their functions;
• they are merely descriptions of certain characteristics of the head office and directors, if they are not clearly linked to the creation and appointment provisions.

This ambiguity should be avoided by using a modal verb or an infinitive to express the imperative character of the provisions, for example:

• The head office of the Agency shall be / must be / is to be in the city of Winnipeg.
• The directors shall have / must have / are to have experience in the management of airports.

Conclusion

The present indicative is the normal tense and mood of verbs in legislation, subject to a major exception for rules of conduct, which generally take modal verbs such as may, must and shall. Future and past tenses should only be used for subordinate clauses describing events occurring before or after the action in the main clause.

Related Documents: See the articles in Part 1 on "May", "Must" and "Shall".

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2022-08-29

Legistics
Sentence Structure: Complexity and Organization

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Background

Sentence structure, or syntax, is about the relationships among the words that form a sentence. It is one of the most important factors affecting the readability of a text. In fact, one readability study has shown that improvements to sentence structure generally have a greater impact on readability than the elimination of obscure terminology (See Masson and Waldron, "Comprehension of Legal Contracts" by Non-experts: Effectiveness of Plain Language Redrafting (1994), 8 Applied Cognitive Psychology 67 at 78). This is not surprising given the degree to which meaning depends on context. If it is easy to understand how the words of a sentence relate to each other, readers are often able to figure out the meaning of particular words that are unfamiliar.

Sentence structure has two aspects: complexity (including length) and organization (word order). This note examines them separately, but these aspects are related to each other because word order is the principal device available in English to express the interrelationship of ideas in a sentence. The more ideas a sentence contains (complexity), the greater the temptation to depart from the way sentences are normally organized in order to make it clear how the ideas relate to each other.

Complexity

Studies of how people read show that the reading process involves two types of memory: short-term and long-term. Short-term memory is used to store the ideas contained in a single sentence. Once the sentence has been read, the reader's mind extracts its meaning and stores the meaning in long-term memory. Frederick Bowers, a linguist, describes this process as follows:

The process of reading is generally seen as one in which the reader first scans a sentence, organizing it into its semantic-syntactic grouping, and next reduces the organization into a semantic whole for storage in the memory as the succeeding sentence is scanned. (Linguistic Aspects of Legislative Expression (1989) at 338)

The difficulty posed by a complex sentence is that it strains the limits of short-term memory and often requires a reader to reread the sentence several times in order to understand it. Readers need breaks in the progression of ideas so that they can consolidate what they have read and then move on. In fact, the process of rereading is one of breaking the sentence into more manageable units from which meaning can be more readily extracted. The need for breaks also helps explain why more white-space on a page makes it a more inviting text for readers.

One way of overcoming the readability problems of complex sentences is simply to make them shorter. One of the most eminent people to suggest this was Driedger, who wrote:

My main criticism of common law legislation is that sentences are too long. This is a characteristic of English writing generally and not just of legislation. It seems to be thought to be a great intellectual achievement to write one sentence consisting of three or more main clauses, each modified by as many subordinate clauses as can be worked in grammatically. Much of our common law legislation would be better if sentences were shorter and there were more sections and subsections. (A Manual of Instructions for Legislative and Legal Writing, vol 6 at 556-557)

However, it is a mistake to assume that legislation can or should always be drafted in short sentences. There are often good reasons for long sentences and better ways to make them more easily understood. Long legislative sentences may avoid repetition or make clear the logical links between ideas. Just after the passage quoted above, Driedger quoted Sir John Fiennes, a former First Parliamentary Counsel of the United Kingdom:

Shorter sentences are easier in themselves, and it would probably help overall to have them shorter, but of course you are then faced with having to find the relationship between that sentence and another sentence two sentences away, which, if you have it all in one sentence, is really done for you by the draftsman.

Fiennes's point underscores the price that must sometimes be paid for dividing ideas into a series of sentences: the division may obscure the relationship of some of the ideas unless cohesive devices are included to knit them back together. The division may also be accentuated by formatting devices, such as numbering each sentence as a separate section.

Another price for shorter sentences is that they may result in the repetition of ideas that could otherwise be expressed elliptically in a single sentence. Consider the following example:

21. The Commission, with the approval of the Governor in Council, may make regulations

• (a) prescribing products, substances and organisms to be included in the classes listed in the schedule;
• (b) establishing classes, divisions, subdivisions and groups of dangerous goods;
• (c) specifying, for each prescribed product, substance and organism, the class listed in the schedule and the division, subdivision or group into which it falls;

In this example, the lengthy sentence avoids repetition of the opening words. It also makes it easier for the reader to see that the ideas presented in the paragraphs are linked to each other. The problems of complexity are overcome through paragraphing (for more information on paragraphing, see Part 3 - Paragraphing).

Complexity may also be overcome by introducing definitions of words that express ideas that recur throughout the text. Consider the following example:

"Minister" means the Minister of the Crown designated by the Governor in Council for the purposes of this Act.

This definition avoids the repetition of the details of the Minister's designation throughout the text and simplifies the sentences in which it occurs. For example, it would allow

3. The Minister of the Crown designated by the Governor in Council for the purposes of this Act may issue a licence.

to be drafted more simply as

3. The Minister may issue a licence.

The drafting techniques of paragraphing and defining produce much the same result as shortening sentences. They divide a sentence into logical units that can be easily transformed and stored in memory. This demonstrates that problems do not necessarily arise because a sentence is long. Rather, they result from undistinguished groups of ideas and the complexity of their interrelationship.

Although paragraphing can often be used to make complex sentences easier to read, it requires parallel grammatical units, which are not always found in a sentence. When paragraphing is not available, you should consider dividing a complex sentence into shorter sentences. Like paragraphing, it may not only improve readability, it may also help uncover ambiguities lurking within complex sentences.

Cohesion of ideas is not necessarily disrupted by creating multiple sentences, particularly if the sentences are contained within the same section. Numbering sentences as subsections within the same section generally indicates that they are related by a common theme and should be read together as a group. In addition, multiple sentences can be used within a subsection (or a section without subsections) as long as they are closely related: see Part 2 - Sentences (More than one sentence in a section or subsection). Finally, ambiguity about the relationship of ideas can often be overcome by cross-references, although you should avoid including unnecessary cross-references: see Part 2 - Sentences (Cross-references).

Consider the following example:

19. Where a person who handles, offers for transport or transports dangerous goods destined for Canada, or for any place outside Canada through Canada, is not resident in Canada or has their chief place of business or head office in a place outside Canada, that person, if required by the regulations to do so, shall file with the Minister the name of a person who resides in Canada or has their chief place of business or head office in Canada and who is willing to act as an agent, together with proof of such willingness, and on such filing that person is deemed to be the person handling, offering for transport or transporting for the purposes of this Act.

This example has three parts:

• a description of a group of persons who are required to file something with the Minister,
• a description of what they are required to file,
• a provision that filing has a particular legal effect.

These parts have been combined into one sentence to make clear the links between them. For example, the phrase "and on such filing …" is a succinct way of describing the relationship between filing and its legal effect. But is this precision worth the price of a longer sentence? Consider the following redraft:

19. (1) A person who handles, offers for transport or transports dangerous goods shall file with the Minister the name of a qualified agent in Canada if

• (a) the person is not resident in Canada or has their chief place of business or head office in a place outside Canada;
• (b) the goods are destined for Canada, or for any place outside Canada but passing through Canada; and
• (c) the regulations require the person to file the name of an agent.

(2) A person is qualified to be an agent in Canada if

• (a) the person resides in Canada or has a chief place of business or head office in Canada; and
• (b) the person is willing to act as an agent and proof of their willingness is filed with the Minister.

(3) The person whose name is filed is deemed for the purposes of this Act to be the person who handles, offers for transport or transports the dangerous goods.

In this redraft, the links between the various elements of the original sentence are implicit in the arrangement of ideas and the use of the definite article "the" in subsection (3) (see also Cross-references at page 59).

Sentence Organization

Overview

The meaning of sentences depends on more than the meaning of the individual words they contain. It also depends on the relationships among the ideas conveyed by the words. The order in which these ideas are presented greatly affects the ease with which their relationships can be understood.

In English, the usual order of ideas is subject - verb - object. In legislation, these components are often modified by adjectives, adverbs, participles and subordinate clauses. This results in three features that have attracted criticism:

• subjects are often separated from verbs and auxiliary verbs are often separated from main verbs,
• subordinate clauses, particularly clauses expressing conditions ("if" and "where" clauses), are often placed before the subject and verb,
• adverbial clauses are used when simpler adjectival clauses will do.

This section looks at each of these criticisms and suggests ways of responding to them.

Separation of Subject and Verb

The relationship between the subject and the verb in a sentence is critical. If they are close together, it is easy to see this relationship. In sentences with compound verbs, it is also easier to see this relationship when the auxiliary verb is next to the principal verb.

The main reason for separating subjects and verbs is to achieve greater precision. When a descriptive phrase is inserted between them, it is clear that it modifies the subject or the verb and not some other noun or verb found in the sentence. When the descriptive phrase is short, it seldom obscures the subject-verb relationship. For example:

13. The Minister may, in accordance with the regulations, designate inspectors as analysts for the purposes of this Act.

However, when a lengthy descriptive phrase is inserted, it is more difficult for the reader to connect the subject and verb. Consider the following example:

12. A certificate or report appearing to have been signed by an inspector or analyst stating that they have made an inspection or analysed or examined a product, a substance or an organism and stating the results of the inspection, analysis or examination is admissible in evidence in any prosecution for an offence under this Act without proof of the signature or official character of the person appearing to have signed the certificate or report and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate or report.

In this provision, almost four lines of text separate the subject, "certificate or report", from the verb, "is admissible". This provision is also too complex. Both problems can be corrected by dividing it into two subsections and subdividing the first one into paragraphs:

12. (1) A certificate or report of an analyst or inspector is admissible in evidence in any prosecution for an offence under this Act if it

• (a) appears to have been signed by the inspector or analyst;
• (b) states that the inspector or analyst has made an inspection or analysed or examined a product, a substance or an organism; and
• (c) states the results of the inspection, analysis or examination.

(2) The certificate or report is admissible without proof of the signature or official character of the person appearing to have signed the certificate or report. In the absence of evidence to the contrary, it is proof of the statements it contains.

The separation of subjects and verbs often occurs in "clause sandwiches". Part 3 - Paragraphing cautions against their use because of this.

Conditional Clauses

An adverbial clause that describes the circumstances in which a provision applies is sometimes called the "case". George Coode distinguished the case from other adverbial clauses (which he called "conditions") establishing things that must be done before a provision will apply. Coode used the distinction as a basis for determining whether an adverbial clause should go before the main clause or after it (this is discussed below).

However, the distinction has no grammatical basis and is often difficult to make. Driedger has doubted its utility (see Composition of Legislation, 2nd ed. at 7). Both types of clauses may be described as conditional clauses.

Conditional clauses are a fact of life for legislative counsel. Legislation is unlikely ever to be simplified to the point where they are not needed. However, two things can be done to make them easier to understand:

• consolidate conditional clauses; and
• be careful about placing them at the beginning of a sentence.

Consolidation

Provisions are often qualified by two or more sets of circumstances. Consider the following example:

15. (1) If an inspector believes on reasonable grounds that

• (a) there is occurring or has occurred a discharge, an emission or an escape of dangerous goods or an emission of ionizing radiation exceeding levels or quantities prescribed pursuant to the Atomic Energy Control Act from any container, packaging or means of transport by means of which the goods are being handled or transported,
• (b) there exists a serious and an imminent danger of such a discharge, an emission or an escape by reason of any condition, or
• (c) any provision of this Act or the regulations is being or has been contravened,the inspector may take any measure referred to in subsection

(2) if he or she considers it necessary to prevent or reduce any serious and imminent danger to life, health, property or the environment.

In this example, two sets of circumstances govern the exercise of the inspector's power. One is expressed at the beginning of the provision, the other at the end. This complicates the reading process by requiring the reader to understand the first set of circumstances, then the main clause and finally another set of circumstances. Consider the following redraft:

15. (1) If an inspector

• (a) believes on reasonable grounds that

  (i) there is occurring …, and

• (b) considers it necessary to take any measure mentioned in subsection (2) to prevent or reduce any serious and imminent danger to life, health, property or the environment,
• the inspector may take the measure.

This redraft consolidates the two conditions, but it results in a clause sandwich that poses another problem that is considered next.

The Place of the Case (and other Adverbial Clauses)

The question of where to place conditional clauses is more debatable. It can be answered by considering why the order of ideas in a sentence is important at all.

Grammarians have developed a concept that may be useful in examining this question. It is called "thematization". It points to the fact that a series of sentences generally has a principal idea or "theme" that connects them. Each sentence adds more information about the theme. In progressing from one sentence to the next, the reader looks first for the theme and then for the supplementary information. In general, the subject of a sentence is its theme. This is reflected in the usual order of ideas: subject - verb - object. Sentences are sometimes cast in the passive voice in order to keep the focus on the theme (more on this in a later drafting note).

When the theme is in the middle of a sentence or at the end, the reader must first read to find it and then reread to link it to the other parts of the sentence. This occurs, for example, when a lengthy exception is at the beginning of a provision or when other circumstances relating to its application appear at the beginning, as in the previous example. This order of ideas generally makes it more difficult to understand the sentence. This was noted more than 160 years ago in Bentham's Nomography (1839):

Whatever be the principal object which your sentence is designed to bring into view, bring forward as early as you conveniently can the word employed in the expression of it: if you can make the sentence begin with the same word, so much the better. (quoted in Bowers, Linguistic Aspects of Legislative Expression (1989) at 347-8)

This rule is at odds with a drafting convention that originated with George Coode in the middle of the 19th century. This convention relates to conditional clauses that describe the circumstances in which a provision operates (the "case"). Coode recommended that these clauses generally be placed at the beginning of the provision. The rationale is expressed in the following comments:

The case being placed first, the first few words of the sentence answer immediately to the inquirer whether his case is included in the provision or not; whether he need read on or should proceed to seek another law applicable to his circumstances in another clause. (Driedger, Composition of Legislation, 2nd ed. (1976) at 344)

This recommendation found its way into the Legislative Drafting Conventions of the Uniform Law Conference of Canada, but it was criticized by Driedger and has been omitted from the most recent version of those Conventions. It also contradicts the findings of modern linguistic studies, which suggest that difficulty in comprehension increases when an adverbial clause is placed at the beginning of a sentence. (See A.C. Lovgren, "The Place of the Case in Legislative Sentences" [1986] Statute Law Rev. 23 at 27, citing Dennis Kurzon, "Clarity and Word Order in Legislation" (1985), 5 Oxford J. Leg. Studies 269 at 270).

Finally, the applicability of the rationale given by Coode is questionable. It assumes that people usually read legislation to find the provisions that deal with their particular circumstances and skip over those that do not. This may occur when legislation sets out a series of prohibitions or rules that apply in mutually exclusive circumstances. But readers often want to gain a general understanding of the law so that they may be equipped to deal with whatever situations come along. It all depends on what the reader's focus is. Are they trying to weed out the rules that do not apply to them, or are they trying to understand the legislation as a whole?

Most modern legislation sets out groups of interrelated rules that must be understood together, such as rules describing administrative processes, as opposed to prohibiting distinct forms of conduct. Readers can seldom ignore the principal clause. Rather, they are likely to need the information it conveys in order to construct the meaning of the rest of the provision. Until its meaning is understood, the conditional clause has no point. When this clause is short, for example "If an inspector finds a hazardous condition, …", there is seldom a problem. But when it is lengthy or includes multiple conditions, readers will usually have to reread it to grasp the meaning of the provision in which it is found. The following redraft of one of the examples above corrects this problem.

15. (1) An inspector may take any emergency measure referred to in subsection (2) if the inspector

• (a) believes on reasonable grounds that

  (i) there is occurring …, and

• (b) considers the measure necessary to prevent or reduce any serious and imminent danger to life, health, property or the environment

Adjectival Clauses instead of Adverbial Clauses

Another technique for simplifying the complexity of long sentences is to avoid adverbial clauses that have the same subject as the principal clause. This corresponds to the usage of "lorsque" in the French version, which is restricted to instances where the subjects are different.

As noted above, adverbial clauses at the beginning of sentences tend to be more difficult to understand. If the subject is the same as that of the principal clause, the adverbial clause can usually be transformed into an adjectival clause that modifies the subject. Consider the following example:

(3) If an inspector inspects or seizes a sample of any thing, the inspector shall, if the thing is sealed or closed up, provide the person in charge of it with a certificate in prescribed form as evidence of the inspection or seizure.

This can be redrafted as follows:

(3) An inspector who inspects or seizes a sample of any thing shall, if the thing is sealed or closed up, provide the person in charge of it with a certificate in prescribed form as evidence of the inspection or seizure.

The use of this technique simplifies the sentence structure and avoids repeating the subject. However, its use is limited to relatively short adverbial clauses. If the clause is longer, it should instead be shifted to the end of the provision, as suggested above in the discussion of the place of the case.

Conclusion

Legislative sentences can be improved by paying attention to their complexity and organization.

A complex series of ideas is often hard to understand. When they are presented in one sentence as a block of text, the difficulty becomes all the greater. Drafting techniques such as paragraphing or definitions can make a complex sentence easier to understand, but there are limits on their use. Another approach is to divide a complex sentence into a series of sentences. This allows the reader to digest the ideas in stages. However, it also requires the drafter to make sure that the sentences flow together so that the ideas are cohesive.

Sentence organization is equally critical to the reader's understanding. Readers need to know the principal parts of a sentence before they can understand the rest of its information. Reading difficulty is often increased by splitting subjects and verbs and by putting lengthy subordinate clauses at the beginning of a sentence. Legislative counsel can help readers considerably by avoiding these practices and by using simpler adjectival phrases instead of more complex subordinate clauses.

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Legistics
Paragraphing

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What is paragraphing?

Paragraphing is a typological device for arranging legislative text. It involves dividing a sentence into grammatical units and arranging them as separate blocks of text.

Paragraphing is hierarchical in the sense that a particular unit may be subdivided into further units. In federal legislation, the numbering and terminology used to refer to units at each level are as follows:

• paragraph - numbered with italicised lower case letters in round brackets: (a), (b), …
• subparagraph - numbered with lower case Roman numerals in round brackets: (i), (ii), …
• clause - numbered with upper case letters in round brackets: (A), (B), …
• subclause - numbered with upper case Roman numerals in round brackets: (I), (II), …

The following example illustrates the paragraphing hierarchy as well as the punctuation and indentation that is used:

• 3. (1) Sections and subsections may contain opening words (also called the chapeau or umbrella) followed by other units of text, including:
  • (a) paragraphs, which are called "clauses" in some provincial legislation and may contain opening words followed by other units of text and punctuation, including
    • (i) subparagraphs, which are called "subclauses" in some provincial legislation and may contain opening words followed by other units of text, including
      • (A) clauses, which are called "paragraphs" in some provincial legislation and may contain opening words followed by other units of text and punctuation, including
        • (I) subclauses, which are called "subparagraphs" in some provincial legislation, and
        • (II) a comma at the end, unless the subclauses are at the end of a higher unit of text, and
      • (B) a comma at the end, unless the subparagraphs are at the end of a higher unit of text, and
    • (ii) a semi-colon at the end, unless the paragraph is at the end of a section or subsection; and
  • (b) units of texts found only in clause sandwiches, which, because they
    • (i) have no official name, and
    • (ii) do not correspond to grammatical concepts outside legal discourse,
  • are commonly known as middle sections or mid-ambles (if they divide two series of units of text) and, if a sentence
    • (iii) keeps on going, or
    • (iv) is followed by another sentence within the same section or subsection,
  • the unit that follows is called a bottom or tail section or a post-amble and the numbering of the intervening units continues the numbering from the series of units above the middle section.

Why paragraph?

Paragraphing has three basic functions:

• it helps the reader understand a lengthy or complex sentence by exposing its structure, particularly showing which grammatical units are parallel to each other;
• it more clearly indicates how different parts of a sentence relate to each other, avoiding ambiguity about the objects of modifiers such as preposition phrases, relative clauses and adverbial clauses; and
• it can be used to shorten a text by avoiding repetition.

The readability of text is also improved because paragraphing increases the amount of "white space" on the page. However, it also has disadvantages because

• it disrupts the flow of reading by putting numbering and breaks in the text;
• it is seldom used in other types of writing and readers who are not used to reading legal texts may have difficulty understanding how paragraphed units relate to the opening words and each other.

The second of these disadvantages may be waning in so far as readers are becoming increasingly accustomed to seeing text formatted in a bulleted format that reflects much of the logic of traditional paragraphing used in legal texts. In fact, for many readers this is now an argument in favour of using paragraphing.

How do you paragraph?

There are a number of rules for paragraphing legislative texts.

There must be at least 2 parallel units of text.

The parallel units must be preceded by opening words and each unit must be capable of being read grammatically with the opening words. The following example is incorrect:

The Minister may issue a licence

• (a) before the fishing season begins; and
• (b) the licence may be revoked at any time for noncompliance with the regulations.

It is incorrect because paragraph (b) does not read grammatically with the opening words.

Each parallel unit must be grammatically equivalent. In other words, it must have the same grammatical function and it must modify the same part of speech in the opening words. The following example is incorrect:

A licence may not be revoked or suspended

• (a) except with the consent of the holder; or
• (b) unless notice of intention to revoke or suspend the licence has been given to the holder and the holder has been given a chance to respond to the notice.

It is incorrect because paragraph (a) is a phrase while paragraph (b) is a clause. The next example is also incorrect because paragraph (a) modifies the verb "issue" and paragraph (b) modifies the noun "licence":

The Minister may issue a licence

• (a) before the fishing season begins; and
• (b) to catch fish.

Another way to detect a problem with equivalence is to check whether the conjunction between the paragraphs would occur in ordinary speech. In both of the examples just given, it would not be used.

Every modifier in a parallel unit must modify either the same thing in the opening words or something within the parallel unit itself. The following example is incorrect:

Tax is imposed at the scheduled rate on widgets that are

• (a) manufactured and sold in Canada, and is payable by the manufacturer when the widgets are delivered to a purchaser; and
• (b) imported, and is payable by the importer when the widgets are imported.

It is incorrect because each paragraph contains elements that relate to two different things in the opening words. The verb phrases beginning with "manufactured" and "imported" relate to the "widgets", while the verb phrases beginning with "is payable" relate to the "tax". The verb phrase "is payable" in paragraph (a) disrupts the reading of paragraph (b), which begins by shifting the focus back to the "widgets". A similar problem occurs when an independent clause is included in a paragraph, as in the following example:

Tax is imposed at the scheduled rate on widgets that are

• (a) manufactured and sold in Canada, and the manufacturer shall pay the tax when the widgets are delivered to a purchaser; and
• (b) imported, and the importer shall pay the tax when the widgets are imported.

One way to test whether problems of this sort exist is to try reading provisions without the paragraph divisions. If the syntax is ungrammatical, there are problems.

A parallel unit may refer to things mentioned in the previous unit, as in the following example:

The Minister may issue a licence that

• (a) is valid for fishing on a boat described in the licence; and
• (b) specifies the maximum number of fish that the boat may carry.

Parallel units may not contain complete sentences, as in the following example:

The Minister may issue a licence that

• (a) is valid for fishing on a boat described in the licence; and
• (b) specifies the maximum number of fish that may be caught each day.

The Minister may reduce the maximum number if the licence-holder catches more than that number of fish.

The sentence in paragraph (b) should be moved into a bottom section or another subsection as follows:

The Minister may issue a licence that

• (a) is valid for fishing on a boat described in the licence; and
• (b) specifies the maximum number of fish that may be caught each day.

The Minister may reduce the maximum number if the licence-holder catches more than that number of fish.

The parallel units may be followed by a middle or bottom section (resulting in a "clause sandwich"), but each unit must be capable of being read grammatically with the middle or bottom section, or else the middle or bottom section must be a complete sentence.

Parallel units are all indented alike from the opening words and numbered in the same series.

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Legistics
Paragraphing

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The logical relationship among paragraphed elements

When a legislative text sets out a series of items (a “list”) in two or more paragraphs, the reader needs to know what the logical relationship between the list elements is. Generally speaking, there are three logical relationships that we use with respect to such a list: (1) all of the elements in the list (but not less than all); (2) one of the elements in the list (but not more than one); and (3) any of the elements in the list in any combination.

Legislative counsel have commonly relied on the conjunctions "and" and "or" to express these relationships. The difficulty is that there are three logical relationships but only two conjunctions. The two conjunctions map to the three logical relationships as follows:

Figure 1: Logical Relationships

Thus, “and” and “or” are each capable of expressing two of the three possible logical relationships, and either of them can potentially be used to express the overlapping meaning “any combination of the elements”.

Sometimes the context will either make it irrelevant which sense of the conjunction is intended or make clear which sense is intended. In the following example one does not need to decide which meaning of “or” is intended:

X. A person is not required to pay an admission fee if they are

• (a) under 18 years of age; or
• (b) at least 65 years of age.

Because the conditions in these two paragraphs are in fact mutually exclusive, the reader does not need to determine whether the "or" between them is an exclusive “or” (one but not more than one) or an “or” meaning “any of the following”. If, however, one adds a further criterion in a third paragraph, one may need to make that determination. For example,

X. A person is not required to pay an admission fee if they are

• (a) under 18 years of age;
• (b) at least 65 years of age; or
• (c) enrolled as a student at a university.

In this revised version, if the “or” is interpreted as meaning “any one but not more than one” of the listed criteria, the result would be that a person who is both a university student and either under 18 or 65 or older would have to pay admission. This does not seem reasonable. So, we draw the conclusion that the likely intention is the “any of the following” meaning, but this is a reasoned conclusion, rather than one that the text itself makes quite clear.

To avoid requiring the reader to reason her or his way to a conclusion as to the likely intended meaning (and still being left with some uncertainty), a legislative counsel can expressly state the logical relationship among the elements of a list. The legislative counsel can use words and phrases such as "both of", "either of", "any of", "one or more of", “only one of” and "all of". For example:

X. A person is not required to pay an admission fee in any of the following cases:

• (a) the person is under 18 years of age;
• (b) the person is at least 65 years of age;
• (c) the person is enrolled as a student at a university.

By convention, federal Canadian English drafting has placed a conjunction at the end of the second-last paragraph. If the legislative counsel is relying solely on that conjunction to convey the logical relationship among the paragraphs, the reader will need to either look ahead to find that conjunction and then return to reading the list or read through the list without having the critical information as to the relationship among the elements until arriving at the conjunction. There is, therefore, a second reason to state clearly the logical relationship among the paragraphs in the opening words that precede them: it gives the reader this information earlier, facilitating ease of reading and comprehension.

Recommendation

If relying on the conjunction alone would leave the reader with any uncertainty as to what logical relationship among the paragraphs is intended, use an expression such as “all of”, “any of”, or “any one of” in the opening words to make the relationship clear. You should also consider doing this if the number or length of the paragraphs would place the conjunction far from the opening words.

Alert — Conjunctions with negation

Using negation before a conjunction affects which conjunction gives you the intended meaning.

A very informal illustration of this is the common expression of the prohibition on driving while impaired. We commonly and informally express this as a prohibition on “drinking and driving”. What we mean is essentially this: at any particular time, a person must refrain from one or the other of these behaviours (or both). It is a prohibition on the two activities in combination.

By contrast, if you provide that a person may not drink or drive, the prohibition is a prohibition on each of these activities, whether alone or together. Thus in this case, one must not drink and one must not drive.

For those with a bent for mathematics or formal logic, this behaviour of the conjunctions with negation was formalized as a rule of logic by mathematician and logician Augustus De Morgan as follows:

• not (A and B) = not A or not B
• not (A or B) = not A and not B

The conjunctions operate with negation in a similar way in the case of paragraphs. If the opening words negate the paragraphed elements, the appropriate conjunction will be “or”

Negating each of the elements

Prohibited activities

x. Except as permitted by this Part, a foreign bank … shall not

• (a) carry on any business in Canada that a Canadian bank is permitted to engage in or carry on under this Act;
• (b) maintain a branch in Canada for any purpose;
• (c) establish, maintain or acquire for use in Canada an automated banking machine, a remote service unit or a similar automated service, or in Canada accept data from such a machine, unit or service; or
• (d) control — or have a substantial investment in — a Canadian entity.

Conjunctions between paragraphs

Paragraphs can be part of either a continuing list or an introduced list. A continuing list is one where the sentence simply flows on into the paragraphs. An introduced list is, by contrast, one that is introduced by an expression ending in a colon.

In a continuing list, there must be a conjunction at the end of the second-last paragraph because it is grammatically necessary.

In an introduced list, if the logical relationship among the ensuing paragraphs is clearly set out in the opening words, the conjunction provides no further information and is not required.

Examples:

Continuing list

X. The application must be accompanied by

• (a) the signed consent of the financial agent to so act;
• (b) the signed consent of the auditor to so act; and
• (c) a declaration signed by the leader of the party certifying that the electoral district association is an electoral district association of the party.

Introduced list requiring a conjunction to express logical relationship

X. The application must be accompanied by the following:

• (a) the signed consent of the financial agent to so act;
• (b) the signed consent of the auditor to so act; and
• (c) a declaration signed by the leader of the party certifying that the electoral district association is an electoral district association of the party.

Introduced list setting out logical relationship in opening words (conjunction not required)

X. The application must be accompanied by each of the following:

• (a) the signed consent of the financial agent to so act;
• (b) the signed consent of the auditor to so act; [no conjunction required]
• (c) a declaration signed by the leader of the party certifying that the electoral district association is an electoral district association of the party.

Punctuation of paragraphs

A semicolon is generally used at the end of every paragraph (except the last in a list). A comma is generally used at the end of lesser units of text (except the last in a list). This helps to distinguish the ends of paragraphs (when the paragraph ends with a subparagraph) from the ends of lesser units. However, there is one exception to this rule. Commas are used at the end of paragraphs that must be read together in order to make clear the meaning of a provision. This includes calculations ("total/aggregate of") and comparisons ("lesser/greater of") and continuing lists that use “both” or “either” in the opening words, as in the following examples:

X. The fee payable is the total of

• (a) …, and
• (b) ….

X. An application must be accompanied by both

• (a) …, and
• (b) ….

When should you paragraph?

You should consider the following factors when deciding whether to paragraph:

• the length of the parallel units of text;
• the number of parallel units;
• the grammatical equivalence of the parallel units;
• whether paragraphing is the best way to avoid ambiguity;
• the continuity of the paragraphed text, particularly when subdividing paragraphs and using clause sandwiches.

The examples in the table show how to consider these factors.

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Legistics
Table of Factors and Examples

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Factors

Examples

Length of units

• Paragraph when the parallel units are quite lengthy.

23. The Minister may issue a permit for a project if the permit approval committee has evaluated the permit application and reported on what, if any, environmental harm is likely to result from the project and the Minister considers that any likely environmental harm is outweighed by the socio-economic benefits that are likely to result from the project.

should be paragraphed as

23. The Minister may issue a permit for a project if

• (a) the permit approval committee has evaluated the permit application and reported on what, if any, environmental harm is likely to result from the project; and

• (b) the Minister considers that any likely environmental harm is outweighed by the socio-economic benefits that are likely to result from the project.

Number of units

• Paragraph when there are a number of parallel units, even though none is particularly lengthy.

23. The Minister may issue a permit for a project if the permit application is supported by an environmental assessment report, the permit approval committee has evaluated the permit application, a majority of the members of the committee support the application and the Minister considers that any likely environmental harm is insignificant

should be paragraphed as

23. The Minister may issue a permit for a project if

• (a) the permit application is supported by an environmental assessment report;

• (b) the permit approval committee has evaluated the permit application;

• (c) a majority of the members of the committee support the application; and

• (d) the Minister considers that any likely environmental harm is insignificant.

Grammatical equivalence

• Do not paragraph in a way that results in grammatically unequal paragraphs.

A licence may not be revoked or suspended

• (a) except with the consent of the holder; or

• (b) unless notice of intention to revoke or suspend the licence has been given to the holder and the holder has been given a chance to respond to the notice.

should be paragraphed as

A licence may not be revoked or suspended unless

• (a) the holder consents; or

• (b) notice of intention to revoke or suspend the licence has been given to the holder and the holder has been given a chance to respond to the notice.

Modifiers

• Every modifier in a parallel unit must modify either the same thing in the opening words or something within the parallel unit itself.

3) A person is guilty of an offence punishable on summary conviction if the person is referred to in

• (a) subsection (1) and does not provide the notice required by that subsection within 7 days after the explosion; and

• (b) subsection (2) and does not provide the notice required by that subsection within 120 after the series of explosions.

should be divided into two subsections:

(3) A person referred to in subsection (1) is guilty of an offence punishable on summary conviction if the person does not provide the notice required by that subsection within 7 days after the explosion.

(4) A person referred to in subsection (2) is guilty of an offence punishable on summary conviction if the person does not provide the notice required by that subsection within 120 days after the explosion.

Finally, watch out for the following

25. Every person who contravenes the regulations is guilty

• (a) of an indictable offence and liable on conviction to imprisonment for not more than 10 years; or

• (b) of a summary conviction offence and liable to a fine of not more than $10,000.

which should be paragraphed as

25. Every person who contravenes the regulations is

• (a) guilty of an indictable offence and liable on conviction to imprisonment for not more than 10 years; or

• (b) guilty of a summary conviction offence and liable to a fine of not more than $10,000.

Ambiguity

• Paragraph when it is the best way to avoid ambiguity.

24. The Governor in Council may make regulations declaring that all or part of the National Fire Code of Canada, as amended from time to time, and any other code or standard, as amended from time to time, respecting any materials, equipment or appliances used or installed in a building, structure or premises, has the force of law as if it were part of this Act.

should be paragraphed as

24. The Governor in Council may make regulations declaring that all or part of the following documents have the force of law as if they were part of this Act:

• (a) the National Fire Code of Canada, as amended from time to time; and

• (b) any other code or standard, as amended from time to time, respecting any materials, equipment or appliances used or installed in a building, structure or premises.

Continuity

• Do not paragraph in a way that chops up the text into units that have little meaning when separated from their surrounding words or that splits and mingles grammatical units.

This example is too chopped-up to be easily readable:

25. If the Minister decides that a permit application is

• (a) properly

  • (i) completed, and
  • (ii) signed, and

• (b) submitted by a person who is

  • (i) qualified, or
  • (ii) approved,

  the Minister may grant the application by

• (c) issuing, and

• (d) signing

the permit.

Subdivision

• Be careful about subdividing paragraphed units. Paragraphing beyond the level of subparagraphs makes it more difficult for readers to maintain the continuity of the sentence.

• Consider using multiple sentences rather than trying to express everything in one sentence.

24. The Minister may issue a permit if

• (a) the applicant has submitted

  • (i) a certificate from a financial institution stating that the applicant

    • (A) has a chequing account in good standing with the financial institution,

    • (B) has not defaulted on any outstanding loans with the financial institution,

    • (C) …,

  • (ii) a list of …; and

• (b) the Minister is satisfied that …

should be divided into two sentences

24. (1) The Minister may issue a fishing permit if

• (a) the applicant has submitted an application that includes the required documentation; and

• (b) the Minister is satisfied that …

(2) The required documentation is

• (a) a certificate from a financial institution stating that the applicant

  • (i) has a chequing account in good standing with the financial institution,
  • (ii) …

• (b) a list of …

For more on simplifying complex sentences, see Part 2.

Clause sandwiches

• Try to avoid clause sandwiches because they often separate important elements of a sentence, for example, by putting the subject in the opening words and the main verb in the tail section.

• Multi-layered clause sandwiches are particularly difficult to understand.

• The separation problem does not occur when the tail section forms another sentence or a complete clause

24. The Minister may, if

• (a) an applicant pays the prescribed fee, and

• (b) the applicant is of good character

issue a licence to the applicant.

should be paragraphed as

24. The Minister may issue a licence to an applicant if the applicant

• (a) pays the prescribed fee; and

• (b) is of good character.

In this example, the tail section is a sentence:

(7) An acquisition or a lease may be authorized under this Act in relation to

• (a) real property in a condominium project or an immovable under divided co-ownership; or

• (b) real property or an immovable in a co-operative project.

The authorization also constitutes the authority for the acquisition of a share, membership interest or ownership interest in the relevant condominium corporation …

In this example, the tail section is a complete clause:

(7) If an acquisition or a lease is authorized under this Act in relation to

• (a) real property in a condominium project or an immovable under divided co-ownership, or

• (b) real property or an immovable in a co-operative project,

the authorization also constitutes the authority for the acquisition of a share, membership interest or ownership interest in the relevant condominium corporation …

How to avoid clause sandwiches

• Clause sandwiches can sometimes be avoided by dividing a sentence into a series of sentences.

129. Every permit authorizing a person to temporarily store a particular prohibited firearm or restricted firearm

• (a) that was issued under subsection 110(3.1) of the former Act,

• (b) that had not been revoked before the commencement day, and

• (c) that remained in force pursuant to subsection 110(3.3) of the former Act on the commencement day

continues in force until the expiration of the period for which it was expressed to be issued, unless it is revoked by a chief firearms officer for any good and sufficient reason.

can be divided into 2 sentences

129.

• (1) A temporary storage permit continues in force until the expiration of the period for which it was expressed to be issued, unless it is revoked by a chief firearms officer for any good and sufficient reason.

• (2) For the purposes of this section, a temporary storage permit is a permit authorizing a person to temporarily store a particular prohibited firearm or restricted firearm that

  • (a) was issued under subsection 110(3.1) of the former Act;

  • (b) had not been revoked before the commencement day; and

  • (c) remained in force pursuant to subsection 110(3.3) of the former Act on the commencement day.

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Legistics
Compounds and Hyphenation

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Background

In legislative drafting, as in other types of writing, we are often confronted with the problem of compound words and phrases-and where to use hyphenation effectively in order to make meaning clear. Despite the wide diversity in modern English usage in respect of hyphens (including disagreement among language specialists), there is, according to Fowler, "one principle that seems to command at least lip service from authorities. This is that the hyphen is not an ornament but an aid to being understood, and should be employed only when it is needed for that purpose." With this in mind, the Legislative Services Branch has formulated some general guidelines with respect to hyphenation and current accepted usage. Although personal preference may often diverge from generally accepted usage, the main objective of these guidelines is to assist in improving the readability of legislation.

Hyphenation may aid in establishing the grammatical and semantic relationships among words in compounds. We all recognize that an "old furniture-dealer" and an "old-furniture dealer" are not the same thing - thus strengthening the argument that hyphenation does effectively contribute to meaning. However, we sometimes experience difficulty in deciding how best to express the inter-connectedness of compounds - especially when dealing with sometimes complex compound modifiers. Proper use of hyphenation, when and where required, can help clarify meaning.

While numerous types of compounds exist, this note will concentrate on only two of them: compound nouns and compound modifiers. These two types seem to be the most problematic (and recurrent) in terms of drafting legislation. The note also looks at the capitalization of hyphenated compounds and includes a table of examples. First, a look at the basic notion of compounds.

Basic compounds

Several types of compounds exist:

• open form, such as "middle class";
• hyphenated form, such as "subject-matter" (our usage, following the OED); and
• closed form, such as "childlike".

In English, many compounds - over time - go through all three types, transforming from open to hyphenated to closed form (for example, "fire fly", "fire-fly", "firefly"). The hyphen is often introduced as a visual link, so as to make the distinction that is made in speech by stressing the first word of the compound. A good dictionary, such as the Gage Canadian Dictionary, is your best source for determining the "current" status of such compounds (including those based on prefixes and suffixes).

Compound nouns - a few guidelines

• 1.1 Hyphenate two nouns in apposition that indicate different but equally important functions (for example, "tractor-trailer", "city-state"). The compound constitutes a new, single idea.

• 1.2 Hyphenate nouns normally written as two words, when they are preceded by a modifier which might create an ambiguity ("letter writers" but "public letter-writers" - the latter expression clarifying that the letter writers write for the public, rather than that they write letters that are of a public nature).

  Also, when a modifier applies to the first component of a compound noun usually written as one word, the compound noun must be separated into its component parts and joined to the modifier with a hyphen ("ironworker" but "structural-iron worker").

• 1.3 Hyphenate compound units of measurement created by combining single units that stand in a mathematical relationship to each other (for example, "person-day", "kilowatt-hour").

• 1.4 Noun-plus-gerund compounds are not hyphenated, except when used adjectivally (more on this later - see Compound Modifiers, item 2.8). They may appear as separate or single words (for example, "decision making", "problem solving", "shipbuilding"). (Note, however, that Canadian legislation contains several examples of hyphenated "decision-making" even when not used adjectivally. This is not recommended usage.)

Compound modifiers

Compound modifiers are often hyphenated to avoid confusion, such as the "old-furniture dealer" mentioned above. This is especially the case when compound modifiers precede the noun they modify ( for example, "an oil-based mixture"). When they follow the noun, there may be less need to use hyphenation to indicate meaning, but such hyphenation removes any ambiguity.

Most of our problems with knowing when and where to correctly hyphenate compound modifiers arise when such modifiers are themselves compounded with others.

Here are a few guidelines on compound modifiers and hyphenation.

• 2.1 Unlike adjectives, adverbs (particularly those ending in "ly") are not usually hyphenated when compounded with other modifiers (for example, "publicly held securities"). The function of an adverb is to qualify the word next to it, so there is little chance of misunderstanding. However, when an adverb might be mistaken for an adjective, a hyphen will distinguish between the two (for example, "extra-judicial duties" rather than "extra judicial duties").

• 2.2 Hyphenate noun-plus-adjective compounds - when they occur in that order - whether used attributively (before the noun) or predicatively (after the noun) (for example, "duty-free goods", "goods that are duty-free").

  Similarly, noun-plus-participle compounds are also hyphenated (for example, "time-consuming activity", "an activity that is time-consuming").

• 2.3 Comparative and superlative forms of adjectives are hyphenated when compounded with other modifiers (for example, "shorter-term loan").

• 2.4 Hyphenate compound adjectives in which one element is a cardinal or ordinal number (whether a figure or a word) and the other a noun (for example, "six-month period", "12-person capacity"). The introduction of the "open" style into the 1985 Statute Revision (for example, six month period) has been superseded.

• 2.5 To avoid ambiguity, adjective-plus-noun and participle-plus-noun compounds, when modifying another noun, are usually hyphenated (for example, "crude-oil exporting countries", "large-scale development").

  Even if this type of compound follows the noun it modifies - as long as it remains adjectival - it is hyphenated (for example, "a development that is large-scale").

• 2.6 Adjective-plus-participle compounds, whether used before or after the noun, are hyphenated (for example, "an odd-sounding name", "a name that is odd-sounding").

• 2.7 Adjectives joined with a noun having the "ed" ending are always hyphenated (for example, "able-bodied").

• 2.8 Two-word compound adjectives made of a noun and a gerund - when they precede the noun they modify - are hyphenated (for example, "decision-making process").

• 2.9 Compound adjectives whose final component is an adverb of direction or place (in, out, down, up, etc.) - when they precede the noun - are also hyphenated (for example, "drive-by shooting").

• 2.10 Preposition-plus-noun compound adjectives are hyphenated as well (for example, "after-tax income").

• 2.11 However, chemical terms used as adjectives are not hyphenated (for example, "calcium nitrate deposit").

• 2.12 "Suspended" compounds, in which an element common to successive compound adjectives is omitted, are hyphenated (for example, "interest- or revenue-producing scheme", "two-, four- and six-metre widths").

• 2.13 Adjectival phrases are often hyphenated to avoid confusion with nouns. For example, "the common law" is a noun phrase, while "common-law partner" is an adjectival phrase. Hyphenation also promotes clearer understanding when two (or more) compound adjectives modify one noun (for example, "common-law mirror-image rule").

A lack of hyphens in such adjectival phrases can cause readers to stumble and struggle for meaning. A phrase such as "the benefit of insurance and waiver of subrogration clauses" should be hyphenated to read "the benefit-of-insurance and waiver-of-subrogration clauses".

Common sense should dictate when adjectival phrases need to be reined in and the sentence or phrase reworked. The hyphenation in "a waiver-of-all-rights-to-subrogration clause" does not facilitate understanding - the legislative counsel would be better advised to opt for "a clause waiving all rights to subrogation".

According to Fowler, compound modifiers are often a case of all or nothing when it comes to hyphenation. Neither hyphen can be dispensed with in such phrases as "three-quarter-hour intervals" or "submarine-cable-laying ships". However, by introducing a preposition and rephrasing, the hyphens may be done away with entirely (for example, "intervals of three quarters of an hour").

Note that the adjectival phrases mentioned in this subitem precede the noun they modify. The presence of an adverb or preposition in such phrases is often a signal to hypenate (for example, "cost-of-living index", "coming-into-force date", "on-the-job training", "subject-by-subject analysis").

Capitalizing hyphenated compounds

When capitalizing hyphenated compounds, one rule of thumb is to always capitalize the first element and to capitalize the second element if it is a noun or proper adjective or if it has equal force with the first (for example, "Risk-Taker", "Non-Christian", "City-State").

In general, do not capitalize prefixes and suffixes added to proper nouns (for example, "American-made"). Also, do not capitalize the second element if it is a participle modifying the first element or if both elements constitute a single word (for example, "English-speaking People", "Self-sustaining Reaction", "E-flat Minor").

Conclusion

Despite the vagaries and seeming contradictions of various sourcebooks and rules, hyphenation, when used with common sense, can help clarify the meaning of compounds. Visualize the absurdity represented by the non-hyphenated phrase "a fair skinned English gentleman". By signalling the structural relationships among the component parts of compounds, hyphenation assists the reader in navigating the text. The examples set out above are only a beginning, but they do show the precision that may be achieved through a discriminating use of the hyphen.

Examples

Hyphenate:

Usually hyphenate:

Do not hyphenate:

Sources

• Fowler, H.W., A Dictionary of Modern English Usage, pp. 255-258.

• Garner, B.A., A Dictionary of Modern Legal Usage, p. 18.

• Jarvie, Gordon, Bloomsbury Grammar Guide, pp. 9, 10, 23, 129-132.

• Public Works and Government Services Canada, The Canadian Style, pp. 37-48.

• Quirk, R. and Greenbaum, S. A., University Grammar of English, Appendix III.3.

• University of Chicago Press, The Chicago Manual of Style, pp. 176 -179.

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Legistics
Em Dashes

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Background

The dashes in question are long dashes (—), known as "em dashes", as opposed to hyphens (-).

English legislative counsel have been taught that the only acceptable punctuation within a provision is a comma. French legislative counsel do not have this taboo and are free to use dashes (and other punctuation) as they are used in French writing generally. From the perspective of plain language, the ordinary-usage approach should be valid for English-language legislation as well. Therefore, what is the role of the dash and does it lend itself to use in legislative drafting?

Recommendation

Legislative counsel should use dashes (in moderation) when doing so would clarify matters for readers.

Analysis

The Canadian Style sums up the purpose of dashes rather well:

In most of its uses, the em dash is simply a substitute for a colon, semicolon or comma … Dashes give greater emphasis to parenthetic material than do commas or parentheses. If the parenthetic material contains internal punctuation or forms a complete sentence, the commas that might have been used to enclose it should be replaced by dashes or parentheses, depending on the degree of emphasis desired or the strength of the relationship to the rest of the sentence. Parentheses are generally used to enclose material more remote from the main thrust of the sentence, dashes for material more closely related^[1].

Although in English the accepted typographic practice is to leave no space between the dash and the words next to it, our current software limitations make it advisable to separate the dash from its neighbours with a space — as, in fact, is the custom in French.

In standard English, mid-sentence punctuation is not restricted to commas. Dashes and parentheses both are useful in structuring sentences visually for the reader.

In order of the emphasis that different types of punctuation give to the material they enclose:

• dashes are strong,
• parentheses are somewhat weaker and less of an interruption of thought, and
• commas are weaker yet.

Dashes are used in more or less the same way in both French and English. French legislative counsel have been using them since the French versions of the Acts were modernized, at the time of the 1985 Statute Revision.

The Elements of Legal Writing ^[2] offers the Rules set out below for the use of dashes in legal drafting. Note that the examples are given in illustration of the point being made, not of the heights of fine drafting to which one might aspire. In some of them, especially those in which a long string of information separates subject from verb, the dashes make acceptable a section that should really be redrafted as two subsections.

Rule 92. Use a dash to denote a sudden break in thought.

For example:

The Director may — or, if petitioned, shall — open the books to the public.

Rule 93. Use a dash to mean "namely," "that is," "in other words," and similar explanations or elaborations.

In such instances, what follows the dash is an exhaustive list of the possibilities.

For example:

If the Minister decides to cancel a document because a person involved — the document holder, the owner or operator (or owner-operator) of any aircraft or airport for which the document was issued, or an employee of any of the above — has contravened a provision of this Act, the Minister shall send that person a notice.

Rule 94. Use a dash to enclose parenthetical material containing commas.

For example:

The officer shall make copies of the form — in duplicate in the case of yellow files, in triplicate in the case of green files and in quadruplicate in the case of blue files — and return the original, and all copies but one, to the Office of the Commissioner, storing the retained copy for six months.

Rule 95. Use a dash to precede a final summarizing clause in sentences having several elements as subject of the main clause.

For example:

A-Level officers who fail Test 16 or 17, B-Level officers who fail Test 21, C-Level officers who fail Test 25 and officers at any level who fail the St. John's Ambulance test appropriate to their level — these officers shall take the course again.

Rule 96. Use a dash to show an addition or insertion that defines or enumerates a preceding word or phrase.

This last use is expanded on by Gowers in The Complete Plain Words,^[3]

[t]o introduce an explanation, amplification, paraphrase, particularisation, or correction of what immediately precedes it.

For example:

The zoo-keeper shall keep all deadly fish — piranhas, sharks, stingrays and eels — at a safe distance.

Footnotes

• [1] p. 135.
• [2] p. 76-77.
• [3] 1988 Edition, p.165.

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