Legislative Drafting

E. A. DRIEDGER
Ottawa

Statutes are often criticized severely by judges, lawyers and lay-

men, and no doubt some of their criticism is .well founded . Those
who draft the statute law have it in their power, by the applica-
tion of a few fundamental principles, to remove from the statutes
many of their admitted defects . Legislative drafting, however, is
a subject that should interest every lawyer even though he may
have no occasion to draft a statute himself . Familiarity with the
fundamentals of legislative drafting is a valuable aid in reading
and construing statutes. Moreover, a statute is but another legal
document,and many of the rules applicable to the drawing of
statutes are equally applicable to the preparation of commercial
legal documents . In the following pages an attempt will be made
to stimulate some interest in the subject ; at the same time
attention will be drawn to some of the more common sources of
ambiguity, and a few suggestions will be offered on how to avoid
ambiguity and how to improve the language of statutes.
A perfect statute would be clear and unambiguous, saying
neither too much nor too little and leaving in the reader's mind
* Readers interested in this subject might refer further to
Jeremy Bentham, Nomography, vol . III, Collected Works of Jeremy
Bentham (Edinburgh, 1843) ; George Coode, On Legislative Expression; or,
The Language of The Written Law (Extract from Appendix to Report of the
Poor Law Commissioners on Local Taxation, House of Commons Papers
1843, vol. xx. London, 1845; Reprinted London, 1852; Reprinted Halifax,
1946) ; Lord Thring, Practical Legislation : The Composition and Lang-
uage of Acts of Parliament and Business Documents (London, 1877; Re-
printed Toronto & Boston,'1902) ; Sir Courtenay Ebert, Legislative Methods
and Forms (Oxford, 1901) ; Sir Alison Russell, Legislative Drafting and ,
Forms (4th ed., London 1938) ; E. L. Piesse, Elements of Drafting (Sydney,
1946) ; Sir Ernest Gowers, _Plains Words : A Guide to the Use of English
(London, H.M. Stat. Off. 1948) ; Rules of -Drafting adopted by the Con-
ference of Commissioners on Uniformity of Legislation in Canada (1948),
26 Can . Bar Rev. 1231 ; F.'A : Mann, The Interpretation of Uniform Statutes,
62 L.Q.R. 278 ; Ernst Freund, The Use of Indefinite Terms in Statutes,
30 Yale Law Journal 437 ; U. A. Lavery, Punctuation in the Law, 9 Ameri-
can Bar Association Journal 225 ; Granville Manson, The Drafting of Federal
Statute Law, 43 American Bar Association Journal 121 ; H.E. Read and
J. W. MacDonald, Cases and Other Materials on Legislation (Brooklyn,
1948).
292 THE CANADIAN BAR REVIEW [VOL . XXVII

no doubt as to what is intended . Language, however, is far from

being a perfect medium of expression and it is perhaps too much
to expect a draftsman to turn out a perfect piece of work ; but
it is not too much to expect him to make a determined effort
to reduce doubt or ambiguity to a minimum. His success as a
draftsman depends upon the extent to which he succeeds in
doing so.

The Preliminary Process

A statute is merely the verbal expression of a thought and
the function of a draftsman is to reduce the thought to words.
It follows that he must have a clear conception of what he wants
to say. Muddled thinking cannot produce clear language, and
a draftsman who does not know what he wants to say is defeated
before he starts.
Consider, for example, the following law:
Any unauthorized interference with animals after inspection, whether
by substitution or otherwise, or any evasion, or misrepresentation, will
be deemed a breach of these Regulations, and, in addition will render the
shipment liable to seizure and detention pending the orders of the Min-
ister as to its disposal .'
What is an unauthorized interference with animals or an evasion?
As the section reads, it is not merely an evasion of the regula-
tions or a misrepresentation of some matter material to the
regulations that is deemed to be a breach of the regulations;
any evasion or misrepresentation (whatever that may mean) is
deemed a breach . The difficulty with this section is that the
draftsman did not know what he wanted to say.
Another example of confused thinking may be found in the
Feeding Stuffs Act.2 Subsection one of section five requires that
every package containing any feeding stuff "mentioned in
column 1 `of Schedule A" to the Act shall be labelled in such
manner as may be prescribed from time to time by regulation .
The first item in Schedule A reads:
Feeding stuffs (excluding chop feeds), ground, crushed or in meal,
cake, pellet or biscuit form, not otherwise provided for, and to which,
in the opinion of the Minister, the particulars specified are appropriate .
What was the draftsman thinking when he said and to which,
in the opinion of the Minister, the particulars specified are ap-
propriate?
'Section 17, Quarantine Regulations, Animal Contagious Diseases Act,
R .S.C., 1927, c. 6 .
2 Statutes of Canada, 1937, c . 30 .
1949] Legislative ' Drafting 29 3

Before he'. can begin his work the draftsman must know
what .'he wants to say. The, thoughts to be expressed usually
come from someone else.; A lawyer does not draft agreements,
leases and willsJor amusement, and he,does not draft them to
suit his own fancy. His task is.to carry out his client's instructions.
True, the lawyer may, and usually does, suggest ideas to the
client and he may even persuade the client to change his mind,
but 'in the end the document must carry out the intentions
of the client . So it is' with the legislative draftsman. He does
not decide how the law is to be changed nor what new laws are
to be enacted. His function is to prepare the legislation
desired by someone else, and it follows that there must be a
transfer of ideas to the draftsman . He must understand pre-
cisely what change is to be made in the law or what the new law
is to be. He may draft a perfectly plain amendment but if that
amendment is not the desired amendment he has not done his
work properly . - Statutes and other legal documents frequently
fail their purpose because the draftsman, although he had a
clear conception, did not have the right one . The understanding
of instructions is vital. Those .who give instructions may have
difficulty in explaining what they want, and the draftsman, by
cross-examination, by illustrations or otherwise, must carefully
probe their minds . In the process he may suggest new ideas,
but he must bring about a complete meeting of the minds. The
draftsman' may lack the technical information necessary to a
complete understanding of his instructions. If so, he must obtain
it. Extensive legal research may be necessary. If so, he must
undertake it.
Language
When the draftsman has a clear conception, and the right
one, his next step is to express it . in appropriate language . He
must convey his meaning to the reader and at the same time
must, if possible, exclude every other meaning . As one judge
said ". . . it is not enough to attain a degree of precision which
a person reading in good faith can understand ; but it is neces-
sary to attain if possible to a degree of precision which a person
reading in bad faith cannot misunderstand" .'
Language, then, is the tool of the draftsman and, like eyery
other craftsman, he must know his tools and how to use them.
Imperfections in statutes are usually attributable to imperfec
tions in language. Over a hundred years ago Bentham 4 enumer-
a Stephen J . in In ré Castioni (1891), 1 Q.B . 147, at p . 167.
' Nomography by Jeremy Bentham .
294 IM CANADIAN BAR REVIEW fVOL. XXVII

ated the imperfections of which statute law is susceptible,

and what he said then is true to-day . He divides these imper-
fections into two classes, Imperfections of the First Order and
Imperfections of the Second Order. Imperfections of. the First
Order are ambiguity, obscurity and overbulkiness, which he defines
as follows:
1 . Ambiguity is where the effect of the expression employed, is to
present in conjunction divers imports, in sugh sort, that though to the
individual mind in question it appear clear enough that in one or other
of them is to be found the import which by the legislator was intended
to be conveyed, yet which it is that was so intended to be conveyed is
matter of doubt.
2 . Obscurity is where, of the expression employed, the effect is, for
the present at least, not to present any one import, as that which_ by
the author or authors of the portion or portions of law in question, was
on the occasion in question intended to be conveyed .
In the case of ambiguity, the mind is left to float between two or
some other determinate number of determinate imports :-in the case
of obscurity, the mind is left to float amongst an indeterminate, and it
may be an infinite number of imports . Obscurity is ambiguity taken at
its maximum .
3. OverbuRiness . Ambiguity and obscurity are imperfections, capable
each of them of finding its seat in any the minutest part of a mass of
the matter of law : overbulkiness is an imperfection not capable of being
brought into existence but by the accumulation of a large number of
such points .

These Imperfections of the First Order, according to Bentham,

flow from Imperfections of the Second Order, namely:
1 . Unsteadiness in respect of expression - when for the designation
of the same import, divers words or phrases are employed .
2 . Unsteadiness in respect of import -when to the same word or
phrase, divers imports are attached in different places .
3 . Redundancy - when of any number of words employed in con-
nexion with each other, the whole or any part might without prejudice
to the sense -i
. to correctness, completeness, and facility of intellec-
.e
tion -be simply omitted, or others in less number be inserted in the
room of them . Redundancy is either curable by simple omission, or - not
curable but by substitution .
4. Longwindedness - when a portion of legislative matter, the
elements of which are in such sort connected with each other, that to
comprehend in a complete and correct manner any one part, the mind
finds itself under the necessity of retaining within its grasp the whole,
is drawn out to such length as to be liable to overpower the retentive
faculty of the minds on which the obligation of taking cognizance of it
is imposed.
5. Entanglement - when propositions distinct in themselves are
forced together into one grammatical sentence, and in this state carried
on together throughout the course of it .
1949] Legislative Drafting : - 295

6. Nakedness in respect of helps to intellection -especially. if in

respect of such as are in general use :- such as division into parts of
moderate length,- designations of those parts by concise titles and
figures of arithmetic expressive of numbers, for indication of such res-
pective parts - and reference by titles and numbers as above, instead
of by general description of their contents. '
7 . Disorderliness -1 . In respect of the arrangement given to , the
several matters; whether by including under one and the same name,
and thence under the same treatment, matters which, ~in respect of the
diversity of their nature, require each a different treatment ; 2 . By
placing at a distance from each other those which for facility, and clear-
ness, and correctness of intellection, ought to stand contiguous to each
other,-or near at least to each other : or contiguous or near those which
ought to be at a distance ;- or, 3 . By giving to'this or that article the
precedence over this or that other, which . for clearness or facility of
intellection, ought to have been placed before it .

Many of these imperfections can be eliminated if the drafts-

man will realize that there is only one English language. If he
entertains, the notion that he must make the statute sound
"legal", that is to say, that he must employ expressions such
as aforesaid, hereinafter, hereinbefore, heretofore at every oppor-
tunity, that he must precede his nouns with such, said or the
said whenever he can, that he must search for the longest word he
can find and couple it with a'synonym or two, that he must add
a provided that, a provided further and a provided always to each
section and that each sentence or paragraph must be stretched
out as far as it will go, he will succeèd. only in confusing himself
and everyone else. Statutes must be written in good English.
The advice of Fowler and other authorities on language is valid
for the draftsman too . There is no special language for statutes.
Of course, every art and science has its own technical terms,
designed to express certain meanings with the utmost precision.
It is not suggested that the draftsman should avoid these when
he is drafting a statute relating to a particular branch of know-
ledge . Good English includes these words. Law, too, has its own
special terms and when occasion requires they must be 'used .
For example, fee simple, habeas corpus, consideration, domicile,
executor, testator,, remainderman -are technical. legal terms, but
they mean something, and when properly used, will avoid
ambiguity and not create it. The best and safest rule for the
draftsman to follow is that words and sentences should be as
short and simple as circumstances will permit.
It must not be supposed, however, that statutes can be
written so that everyone can understand them. Obviously, not
every literate person can understand a modern Landlord and
296 THE CANADIAN BAR, REVIEW [VOL . XXVII

Tenant Act or a Real Property Act, but it does not follow that
they are badly drafted statutes . Human activity is so diverse
and complex that law, and particularly statute law, must neces-
sarily be complicated. It is not fair to criticize a Companies Act
or a Bills of Exchange Act on the ground that a layman cannot
understand all its provisions . A reader of statutes must have
some knowledge of the subject matter . A Companies Act is
written for businessmen ; a reader who cannot in a general way
distinguish a company from a partnership, who does not know
anything about directors, by-laws, shareholders and other com-
pany matters cannot be expected to understand such an Act
and he has no right to complain if he does not understand it.
It is not the function of legislative draftsmen to write treatises
for the education of the uninformed .
A draftsman should try to write his statute so that it can be
understood by those who are supposed to understand it, namely,
the persons to whom it is directed, the persons who have to
administer it and the courts and judges who have to apply it.
All these people he should keep in mind, and he should always
ask himself "what will the courts say?" If the draftsman succeeds
in writing his statute so that the courts are left in no doubt
as to its meaning it is altogether likely that the persons to
whom it is directed and the persons who have to administer it
will also understand it.
It is not quite enough to write a statute so that it will be
understood . A sentence containing a grammatical error or a
colloquial expression may be perfectly plain. A statute should
read well, too, and the draftsman is advised to adhere to gener-
ally accepted standards of grammar and vocabulary .

Copying
The draftsman should hesitate before he copies . It is dan-
gerous to take a section out of one statute and insert it in another.
A section taken out of its context may lose its meaning or may
acquire a new meaning-in another context. The draftsman should
satisfy himself that the section to be copied will have the in-
tended effect in the new statute and, if not, he should re-write it.
There is a tendency to copy statutes from other jurisdictions
without making any alterations in the text . Faulty provisions
are repeated as they stand ; archaic or clumsy words or forms
are retained. This habit merely perpetuates bad law. The drafts-
man should not hesitate to make whatever improvements he
19491 Legislative Drafting 297

can, and certainly he should not copy anything that he himself

would not write.
The justification given for copying statutes is gnat past and
future judicial decisions can be applied to the .new statute . This
is not always a sound excuse . Draftsmen do not always go. to
the trouble of looking for the decided cases. . There may be no
cases, but, if there are, they. may be of no value, or may even
reveal defects in the statute. In any event the application or the
relevancy of a judicial decision does not always depend upon
an .exact reproduction . Surely it is the substance of the statute
.that is important and if the substance of the two statutes is
the same, that may be enough. For example, if a draftsman were
to convert a number of disconnected provisoes into separate
subsections, the relevancy of the judicial decisions would not
be affected in the least.
®f course, the draftsman may not have a free hand. His
instructions may prohibit any alteration in the text, even though
the alteration relates only to form and not substance.
It is not being suggested that a draftsman should never look
at the' legislation of other jurisdictions . ®n the contrary, it may
be a great help to him to study the statute of another jurisdiction
on the same subject, and the judicial decisions as well.

Choice of Words
A. long or unusual word should not be used if a simpler or
more common word will convey the meaning equally well. The .
draftsman should aim at precision and readability and a generous
use of long, complicated and strange words will make the reader's
task more difficult .
It is desirable to avoid using words that have not yet sound a
recognized place in our ,,language, and above all a draftsman
should not invent words. No language is richer in vocabulary
than the English, and there is no need for a draftsman to go
outside a standard dictionary for words to express his thoughts .
It is true that our language is a living, growing language and that
as time goes on new words will be added and new meanings
given to old words,,but it is not the function of the draftsman to
hasten the process. By so doing he only creates doubts . He may
know what he intended to say but the probabilities are that his
reader will not . .
Foreign words,and expressions should be avoided. Draftsmen
are still too quick to throw Latin phrases into statutes . Some-
times the draftsman must resort to Latin - for example, habeas
298 THE CANADIAN BAR REVIEW [VOL. XXVII

corpus, quo warranto, certiorari - but many of the Latin phrases

commonly employed could be replaced by English words with-
out loss of precision.
Unnecessary words should not be added to legislative sen-
tences . For example, the Dominion Elections Act provides that :
Every person who violates, contravenes, or fails to observe any of
the provisions of this section is guilty of an indictable offence against
this Act, punishable as in this Act provided .'
What is the difference between violating the section, contraven-
ing it, and failing to observe its provisions? Why go on to say
punishable as in this Act provided when section 86 of the same
Act prescribes the penalties for any indictable offence against this
Act? The example could be written:
Every person who violates this section is guilty of an indictable
offence .
Twelve words instead of thirty-one, and no punctuation!
Old favourites like aforesaid, herein, hereinbefore, hereinafter,
whatsoever, wheresoever and howsoever should find no place in
modern legislation. These words rarely add anything to the
meaning of the sentence and frequently give rise to ambiguity.
If it is necessary to make a reference to something that has gone
before or that is to follow, a more precise method should be
chosen. For example, section 19 of the Indian Act 6 says:
All reserves for Indians, or for any band of Indians, or held in trust
for their benefit, shall be deemed to be reserved and held for the same
purposes as they were held heretofore, but shall be subject to the provisions
of this Part.
What were the purposes heretofore? Perhaps the draftsman did
not even trouble to find out what the intended purposes were,
but, assuming that he did know, who knows now?
Different words should not be used to express the same thing;
the same words should not be used to express different things.
Words like each, any, all, every, can frequently be replaced by
an article.
Use of Words
Care should be taken in the use of a qualifying word or phrase
if the word or phrase is capable of application to two or more
things . Various devices may be used to avoid ambiguity, but
no general rules can be laid down ; each case must receive individ-
ual treatment. Sometimes it is best to repeat the qualifying
word; sometimes ambiguity can be avoided by re-arranging the
6 S . 66(6), Dominion Elections Act, R .S.C ., 1927, c . 53 .
6 R .S .C ., 1927, c . 98 .
1949.] Legislative Drafting 299

words . For example, the phrase any gross carelessness or neglect

of duty? is ambiguous . It is not clear whether gross applies to
neglect. If it was intended to, do so, the phrase should have been
any gross carelessness or gross, neglect. If not, it should have been
written, any neglect or gross carelessness .
On the other hand there may be no necessity of repetition
in a phrase like
Every one is guilty of an indictable offence who . . . knowingly cuts,
tears or in any way removes . . .
The section would perhaps be awkward if written knowingly cuts,
knowingly tears or in any way knowingly removes.. As it stands,
the word knowingly probably would be construed to apply to
tears and removes. Frequently a mechanical device can be em-
ployed to avoid doubt. In the example just given, the phrase
could be re-written :
who . . . knowingly
(i) cuts,
(ii) tears, or
(iii) in any way removes.
1VIiny sections of the Criminal Code take,this form. For example,
section 207 of the Code provides :
Every one is guilty of an indictable offence and liable to two years'
imprisonment who knowingly, without lawful justification or excuse
(a) makes, manufactures, or sells . . .
(b) publicly exhibits . . .
(c) offers" to sell, advertises . . .
This mechanical device is perhaps the, easiest method of avoiding
doubt. If the sentence runs along without any divisions it is
frequently very difficult to understand . For example, the last
half of paragraph (d) of section 7 of the Post Office Act 9 reads:
The Postmaster General may . . . . make regulations . . . for marking
on the covering of letters, circulars or other mailable, matter suspected
to concern illegal lotteries, so-called gift concerts, or other illegal enter-
prises of like character, offering prizes, or concerning schemes devised
or intended to deceive or defraud the public, for the purpose of obtaining
money under false pretences, whether such letters or circulars or other
mailable matter are addressed to or received by mail from places within
or without,Canada, a warning that they are suspected to be of a fraudu-
lent character and for returning such letters, circulars or other mailable
matter to the senders. ,
When the reader comes to so-called gift concerts he his apparently
thrown back to suspected to concern. Then he comes to offering
7 S. 64,. Consolidated Revenue and Audit Act, 1931, c, 27.
BS . 479(d), Criminal Code .
s R .S .C ., 1927, c. 161 .,
300 THE CANADIAN BAR, REVIEW !VOL. XXVII

prizes but the phrase suspected to concern . . . offering prizes does

not make sense. He goes back a step to mailable matter but the
condemnation of mailable matter . . . offering prizes does seem
very drastic. Surely Parliament didn't mean that! The only
escape from this conclusion is to assume that the comma after
character is a mistake and that offering prizes must be read in
conjunction with enterprises . The reader then arrives at concern-
ing schemes but the phrase suspected to concern . . . concerning
schemes is meaningless . The draftsman must have intended
mailable matter . . . concerning schemes . Then, to what do the
phrases devised or intended to deceive or defraud the public and for
the purpose of obtaining money under false pretences apply? Pro-
bably schemes, but then the phrase intended to deceive is out of
place. The next phrase goes back to letters, circulars or other
mailable matter. The phrase commencing a warning goes back to
marking.
How much clearer it would have been to have said :
for marling on the covering of letters, circulars or other mailable matter
(a) suspected to concern
(i) illegal lotteries,
(ii) so-called gift concerts, or
(iii) other illegal enterprises of like character offering prizes, or
(b) concerning schemes
(i) devised for the purpose of obtaining money under false
pretences, or
(ii) intended to deceive or defraud the public,
whether such letters, circulars or other mailable matter are . . .

The section itself could probably be improved, but a mere re-

arrangement along these lines would do much to clarify its
meaning. Furthermore, by arranging a section in this way the
draftsman is forced to clarify his own thoughts .
Long sections should be avoided . A long section is harder to
write than a short one; by increasing the length of the section
the possibilities of error or ambiguity are also increased; long
sections are hard to read. An interesting example is furnished by
subsection two of section 235 of the Criminal Code.l0 Here are
nineteen lines of print before the first proviso is reached ; seven
lines to the second ; six lines to the third; six lines to the fourth ;
thirty-three lines to the fifth ; thirteen lines to the sixth; and
eight lines to the end. Ninety-two lines and nearly a thousand
words in one subsection . Sometimes, of course, a section must

- R.S.C., 1927, c . 36, as amended by 1934, c . 11, s. 1 ; 1935, c . 56, s. 1,

1938, c . 44, s . 13 ; 1946, c . 5, s . 1 ; and 1948, c . 40, s. 1 .
1949] . . Legislative, Drafting 301

be long and complicated, but the draftsman can reduce possibility

of doubt and make it easier to read by dividing up the section .

Punctuation
Punctuation is frequently a source of ambiguity . A safe rule
to follow is to use as little punctuation as possible . This is parti-
cularly true of the comma, because this mark can be used to
convey meaning. The classic example is the sentence "The
teacher says the, inspector is a fool", the . meaning of which is
completely altered by the insertion of commas after the words
"teacher" and "inspector". If the draftsman must rely on a
comma to convey his meaning it is usually an : indication that the
section requires re-drafting .

The Legislative Sentence

The first scientific analysis of a legislative .sentence was made
by George Coode.ü He says that .
The expression of every law, essentially consists of
-1st, the description of the legal Subject ;
- 2dly, the enunciation of the legal Action.
To these, when the law is not of universal application, are to be added,
- 3rdly, the description of the Case to which the legal action is confined ;
and,
- 4thly, the Conditions on performance of which the legal action operates .
In its simplest form an enactment directs or ; empowers some
person to do something or to abstain from doing something . The
person who is directed or empowered is the legal subject and the
thing to be done or not done is the legal action. For example in
the section,
The Board may appoint Inspectors to assist in the enforcement of,
this Act,12
the legal subject is the Board and the legal action is appoint.
When the law is not universal in its application, a case is
introduced to define the circumstances in which the law operates,
thus :
Where the compensation has not been otherwise apportioned, a judge in
chambers may apportion the same among the persons entitled 13
When some event must transpire before the law operates, a
condition is introduced. For example : .
li On Legislative Expression ; or The Language of the Written Law .
House of Commons Papers 1843, vol . xx. Printed separately London 1845 ;
Re-printed London 1852 .
la S . 40(1), Foreign Exchange Control Act, 1946, c . 53 .
is A common provision in a Fatal Accidents Act .
302 THE CANADIAN BAR REVIEW [VOL . XXVII

Where a person is charged with an offence under this Act, if it is

established that the said person did any act for which a permit is required
under this Act, it shall not be necessary to establish that the person
charged did not possess a permit and the burden of proof that he
possessed the necessary permit shall be upon the person chargedl4
The condition is invariably a condition precedent.
Coode recommends that the correct order of expression is
1st the case ; 2nd the conditions ; 3rd the legal subject; 4th the
legal action . It may be found, however, that the sentence will
be easier to read if some other order is adopted.
It is essential to keep these four elements distinctly in mind
in drafting a legislative sentence . By doing so the draftsman
can arrange his thoughts better and he will be able to express
himself with greater clarity.
A section may include any number of cases, conditions, legal
actions or legal subjects and any number of exceptions to any
of these elements, but .the section should not be made too com
plicated . As Coode says "the more strictly each clause is limited
to one class of cases, one class of legal subjects, and one class of
legal actions, the better ; and it is a mischief to confer in one
sentence two distinct species of rights, to impose two distinct
kinds of obligations, to confer two distinct kinds of powers, and
so on : where parliamentary convenience does not prevail, no
good draftsman ever does so".
A case may be introduced by a variety of expressions -
where, when, whenever, if, in any case where, etc. It is suggested
that the draftsman should adhere to where or, if a single or rare
occurrence is contemplated, when. It is also suggested that if
should be reserved for introduction of conditions and not cases .
Care should be used in writing a case that consists of a
number of elements . The introductory word should not be
repeated . Thus where . . . and . . . and . . . describes only one case,
but where . . . and where describes two cases. Despite the con-
junction and, the cases may well be alternative. Care should also
be taken to distinguish clearly between cases and conditions . A
condition must always be a condition precedent; some event
must transpire in the future before the law operates.

Tense
The present tense should be used wherever possible. It is
unnecessary for the draftsman to project himself into the future
14 S .12, The Emergency Exchange Conservation Act, Statutes of Canada,
1948, c . 7 .
 A

1949] Legislative Drafting 303

for the law must be construed as always speaking. This was the
rule at common law and in any case the Interpretation Acts
16

usually contain a declaration to this effect, The Canadian Inter-

pretation Act 1 provides in section ten" that "the law shall be
6

considered as always speaking, and whenever any matter or

thing is expressed in the present tense, the same shall be applied
to the circumstances as they arise . . .". It, follows, therefore,
that the draftsman should never use the future auxiliary shall.
Of .course, where it is necessary to express a time relationship
between two or more acts or events, other tenses may be used
where the present tense is also used.

Voice
The active voice shôuld be preferred to the passive . The
objection to the use of the passive is that -it fails to identify the
legal subject . If there can be no doubt as to the identity of the
legal subject then there is no objection to the use of the passive
form except that a direct statement may require fewer words .
An example of the correct use of the passive may be found in
section four of the Loan Companies Act,1 7 which provides that
"No letters patent incorporating a loan company shall after the
twelfth day of June, one thousand nine hundred and fourteen,
be issued under the provisions of Part III of the Companies
Act . . .". The persons to whom the section is directed are those
who . under Part III of the Companies Act have authority to
issue letters patent.

Mood
The 'subjunctive mood is not now used as frequently as
formerly. For example, it is correct to say that a report shall be
laid before Parliament at a certain time "if Parliament , be then
in session" but it is now more usual to say "if Parliament is
then in session" . It would be correct to express the cases and the
conditions in the subjunctive but this is no longer regarded as
necessary and it is suggested that both the case and the condition.
:should always be in the indicative, For this reason it is suggested
.also that if should be reserved for introducing conditions and
not cases. Otherwise the conditions may be confused with the-
cases.
1s Ex parte Pratt (1884), 12 Q .B .D . 334, per Bowen L.J . at p. 340 .
16 R .S .C .,1927, e. 1, ,
17 R,S .C ., 1927, c" 28 . `
304 THE CANADIAN BAR REVIEW [VOL. XXVII

Many enactments are in the imperative. The draftsman is

cautioned, however, to employ the imperative only where the
section is truly a command. A command should never be used
for a mere declaratory sentence, that is to say, a sentence that
merely lays down an abstract proposition of law. A true impera-
tive involves two elements, namely, an indication of the person
who is being commanded and a statement of the thing that he
is required to do or to refrain from doing. If either one of these
elements is lacking there is no true imperative. A common
example of the false imperative is a definition section that says
an expression shall mean something. An enactment of this kind
does not require a person to do or refrain from doing something;
the person to whom the "command" is directed is neither men-
tioned nor implied, and it is idle to suggest that the "command"
is directed to the courts .
Another common example of the false imperative is a section
that defines the application of an Act or a section. Subsection
one of section three of the Loan Companies Act 18 provides that
"The provisions of this Act shall apply to every loan company
incorporated by Act of the Parliament of Canada after the
twelfth day of June, one thousand nine hundred and fourteen".
The correct form of this type of section appears in section six
of the Merchant Seaman Act, 19 "This Act applies to accidents
happening within or without Canada".
Statutes frequently declare that documents, not executed in
accordance with their provisions, shall be void. Here again the
"command" is not directed to a person but to a thing. Similarly
statutes establishing courts frequently provide that an appeal
shall lie; this should read an appeal lies. Of course, if the pas-
sive form is used, although no person is mentioned, a person
is implied. For example, a section might require that notice shall
be given. This requirement is a ,command because it is directed to
the persons who have the right or the duty to give the notice
and these persons will doubtless be identified in other places .
The Bills of Exchange Act 20 properly distinguishes between
the indicative and the imperative. Many of the sections of that
Act merely lay down abstract principles of law and the draftsman
was careful to employ the indicative rather than the imperative .
Section 109 says that in order to render the acceptor of a bill
liable it is not necessary to protest it. Section 137(2) says that a
transfer or by delivery is not liable on the instrument.
1s R
.S .C ., 1927, c. 28 .
19 Statutes of Canada, 1946, c. 58 .
20 R .S . C ., 1927, c. 16 .
1949] Legislative Drafting . 305

In the. other type of false imperative a person is identified,

but he is not required -to do or to refrain from doing anything.
A common example is a penalty section .providing that "every
person . . . shall be guilty of an offence and .shall be liable to . , .",
This. provision merely lays down an abstract principle of law.
A person who contravenes the provisions of a statute is guilty
of an offence and is liable to certain punishment, .
In The War Service Grants Act 21 section 3 states that every
member of the forces shall, upon discharge, be entitled to be paid
a war service gratuity. Here again, a person is mentioned, but
he is not required to do or to refrain from doing anything; the
,correct form is is entitled . Section 5 of the National Film Act 22
states that no one shall be eligible for appointment to the Board.
The section should read no one is eligible.
Improper . use. of shall may create a doubt . as to . the time
when the legal action operates. A section may say .that goods
shall be forfeited . Does 'this mean that . they are . forfeited . upon
the commission of the acts constituting the offence, or does it
mean that something must be done to effect forfeiture? A statute
may declare that a person shall be entitled to something. Is he
entitled now,. or at some, time in the future? The English version
of the Quebec Civil Code-furnishes a good lesson on the proper
use of the imperative. Throughout, one finds the simple indi-
cative where in English language statutes the imperative is
frequently found. For example, article 290 says that :
A tutor has the'care of the person of his pupil, and represents him in
all civil acts .
He is bound to manage his property like a prudent administrator,
and is liable for the damages which may result from bad management.
A section like this . commonly appears in English-language
statutes, "A tutor,shall have the care of the person of his pupil,
and shall represent him in all civil acts. He shall be bound to
manage his property like a prudent administrator and shall be
liable for the damages which may result from bad management ."

Referential Words
The draftsman should strive, to make each section and sub-
section self-contained . For example, section 4 of the Returned
Soldiers Insurance Act?a begins with the words "The said pay
ments" . The reader is left to assume that the payment referred
21 Statutes of Canada, 1944-45, c . 51 . -
22 Statutes of Canada, 1939, c. 20 .
23 Statutes of Canada, 1920, c. 54.
306 THE CANADIAN BAR. R2VIEW [VOL . XXVII

to is the payment mentioned in subsection one of section three.

Unless the clause is self-contained there may be doubt as to
what is intended . Sometimes it is impossible to tell what the
draftsman intended to say. Section 36 of the Post Office Act 24
begins "Such exclusive privilege, prohibition and penalty . . .".
Going back to section 35, we find a reference to exclusive pri-
vilege but no mention of prohibition or penalty. What, then, do
these words mean in section 36?
Difficulties of interpretation frequently arise through use of
referential words like aforesaid, herein, hereinbefore and herein-
after. If it is necessary to refer to something outside the section
or subsection, a more specific reference should be made if pos-
sible.
References to sections like the last preceding section or the
next following section should be avoided for the reason that Parlia-
ment might some day insert a new section or re-arrange the
sections. For example, section 47 of the Supreme Court Act 25
referred to the three sections last preceding . These sections were
44, 45 and 46. Section 44 restricted appeals to appeals from
final judgments; section 45 prohibited appeals from orders made
in the exercise of judicial discretion; section 46 dealt specially
with Quebec appeals. In 1920 the Supreme Court Act 26 was
amended and the jurisdiction sections were completely revised.
Section 47 of the old Act re-appeared as section 42, but the open-
ing words were unaltered. Section 42 still refers to the three
sections last preceding, 27 namely, 39, 40 and 41 . However, the
old section 44 became 36, section 45 became 38 and section 46
disappeared . In its reference to sections 39 and 40, section 42
is meaningless. If direct section references had been made in
the first instance it would have been easier for the draftsman
to see that an amendment was required and it would have been
a simple matter to change the numbers.

Such and Said

The words such and said are used too often. In many cases
these words can simply be omitted and in other cases the definite
article would be better. Frequently, indiscriminate use of such
leads to ambiguity.
Subsection two of section 308 of the Railway Act 2 s reads
_~ .,
.l 1111, c .161 .
S
u IS.C., 1906, c . 139 .
26 Statutes of Canada, 1920, c . 32 .
27 R.S .C ., 1927, c . 35 .

Is R.S .C ., 1927, c. 170.

1949] Legislative Drafting 30 7

Where a municipal by-law of a city or town prohibits such sounding

of the whistle or such ringing of the bell in respect of any such crossing
or crossings within the limits of such city or town, such by-law shall, if
approved by an order of the Board, to the extent of such prohibition
relieve the company and its employees from the duty imposed by this
section .
The word such appears six times in this short enactment . What
does the draftsman mean by such city or town? The only city
or town referred to is a city or town . What does he mean by such
sounding of the whistle? 'Subsection one begins '
When any train is approaching a highway crossing at rail level the
engine whistle shall be sounded at least eighty rods before reaching such
crossing. . . .
The words sounding of the whistle do not occur in subsection
one, so how can there be a reference to such sounding of the
whistle? Assuming that the draftsman intended to refer to whistle
shall be sounded, does he mean sounding of the whistle or sounding
of the whistle at least eighty rods before reaching such crossing?

Definitions
Definitions should be used sparingly . A definition that merely
gives statutory sanction to the use of the dictionary meaning of a
word is unnecessary. Before he defines a word the draftsman
should carefully consider whether he is in reality adding some-
thing to or subtracting something from the ordinary meaning
of the word. Where it is impossible to define a word with any
degree of precision, the draftsman should look for another word
or should leave it to the courts to establish the boundaries.
The use of the imperative form in a definition section should
be avoided. Definitions are not commands .
The expression means and includes should never . be used.
Means restricts and includes enlarges the meaning of a word.
There may be occasions, however, when a draftsman finds it
necessary to define a word restrictively and at the same time, to
avoid doubt, to include an additional matter . This can be done
by saying that the word means one thing and includes another.
For example, "'Inland waters of Canada' means all the rivers,
lakes and other. navigable fresh waters within Canada, and
includes the river St. Lawrence . . ." .29 This merely enlarges the
meaning of the term as defined and is not self-contradictory as
is means and includes.
Another error frequently committed is the insertion of sub-
z' Statutes of Canada, 1 .934, c . 44, s . 2(41) .
308 THE CANADIAN BAR REVIEW [VOL . XXVII

stantive provisions in definition sections . A definition section is

merely a glossary of terms or a special little dictionary and
should not contain substantive matters of law. The insertion of
substantive matter in a definition clutters up the definition and
makes the law hard to find. One of the worst examples of this
type of definition is the definition of domicile in the Immigra-
tion Act.30 In some cases the purpose of the statute can be de-
feated by inserting substantive matters in definitions. Paragraph
(g) of subsection one of section 4 of the former regulations under
the Dairy Industry Act imposed a penalty for selling skim-milk
cheese unless the words skim-milk cheese were branded on the
cheese and the container. The term skim-milk cheese was defined
(section 1(g) ) to mean "cheese which in the water free sub-
stance contains less than 48 per centum of milk fat, or which is
made from or by the use of milk commonly known as 'skim-
milk', or from milk from which any cream has been removed,
or from milk to which skim-milk has been added and may not
contain any preservatives other than salt (sodium chloride) and, if
processed with or without emulsifying agents, shall not contain more
than 1,3 per centum of water" . This means that cheese made from
skim-milk, but to which a preservative other than salt has been
added or which contains more than 43 per centum water, is not
skim-milk cheese as defined. There was nothing in the regulations
to prohibit the manufacture or sale of cheese of this type and,
since it would not be skim-milk cheese, the branding requirements
of section four would not aipply .

Will
Will should never be used in place o£ shall when a true com-
mand is intended . Army commands usually are in the form all
men will parade, but since disobedience is almost inconceivable
the command can safely take the form of a prediction . The
draftsman, unfortunately, cannot risk indulging in predictions.

Forfeiture Clauses
Care should be taken in drafting forfeiture provisions. Unless
the draftsman is careful there will always be doubt as to when
and how forfeiture takes place. It is not enough to say merely
that an article shall be forfeited or shall be confiscated or shall be
seized and forfeited. Does the forfeiture take place when the acts
constituting the offence are committed or is some further act
30 R.S.C., 1927, c. 93, s. 2(e) .
19491 Legislative Drafting 309

required to effect forfeiture, namely, a declaration of the court

or an act of sèizùre? If A. judicial -declaration is necessary does the
declaration effect the forfeiture or merely confirm the forfeiture?
A forfeiture section is extremely, important and it should be
carefully framed .

and/or
The symbol and/or should never be used : One good reason
is that in most cases it is unnecessary ; the one conjunction or
the other is usually enough. Another reason is that if more than
two things are joined by and/or there may be doubt as to what
is intended . For example; the expression A and/or B and/or C
presumably must be read four times as follows: (1) A and B and ,
C ; (2) A or B or C; (3) A and B or Q ; and. (4) A or B . and - C.
The first two give rise to no difficulty; but the third is ambig-
uous. Is the choice between A and B on the one hand and C on
the other or is it A certainly and either B or C? Likewise, in the
fourth case, is the alternative' between A on the one .Band- and B
and C on the- other, or is it C certainly and either A or B? If
four or more matters are joined by and/or, construction becomes
impossible . Frequently this symbol produces -absurdities.
A simple expression such as one or more of A, D and C is quite
clear and does everything that the device and/or is supposed to
do. Whatever the circumstances a better form than and/or can
always be found.

Proviso
One of the greatest sources of doubt and ambiguity is the
proviso. It is capable of producing all Bentham's "imperfections"
either singly or in combination. As will presently be demon
strated the proviso is neither necessary nor correct. It is only a
legal incantation that should be banished from the statute book.
An examination of some three hundred .provisoes in the Re-
vised Statutes of Canada and subsequent statutes reveals that
the proviso is most frequently used merely for the purpose of
tacking one independent enactment on another. In many cases
the conjunction and, or even a semicolon, could be substituted
for the proviso ; in other cases a new subsection or section should
be substituted . For example, subsection one of section 19 of
the Copyright Act" states what shall not be deemed to be an
infringement and then goes on to say:
31 13 S.C ., 1927, c. 32 .
310 THE CANADIAN BAR REVIEW [VOL. XXVII

Provided that
(i) nothing in this provision shall authorize any alterations in, or
omissions from the work reproduced, unless contrivances repro-
ducing the work subject to similar alterations and omissions
have been previously made by, or with the consent or acquies-
cence of, the owner of the copyright, or unless such alterations
or omissions are reasonably necessary for the adaptation of the
work to the contrivances in question ; and
(ii) for the purposes of this provision, a musical, literary or dramatic
work shall not be deemed to include a contrivance by means of
which sounds may be mechanically reproduced ; and
(iii) the making of the necessary manuscript arrangement and instru-
mentations of the copyrighted work, for the sole purpose of the
adaptation of the work to the contrivances in question, shall
not be deemed an infringement of copyright .
The contents- of this proviso are merely separate enactments
and each one of them should be a separate subsection.
Subsection two of section 198 of the Criminal Code reads as
follows:
Whether any particular published matter is a blasphemous libel or
not is a question of fact : Provided that no one is guilty of a blasphemous
libel for expressing in good faith and in decent language, or attempting to
establish by arguments used in good faith and conveyed in decent language,
any opinion whatever upon any religious subject.
The proviso is again a separate enactment and should be ex-
pressed in a separate subsection . Subsection two of section 17
of the Juvenile Delinquents Act 32 says :
In every such case it shall be within the power of the court to make
an order upon the parent or parents of the child, or upon the
municipality to which it belongs, to contribute to its support such sum
as the court may determine : Provided that where such order is made upon
the municipality, the municipality may from time to time recover from the
parent or parents any sum or sums paid by it pursuant to such order.
This proviso is a separate enactment and could be added to
the first provision by the conjunction and or by a semicolon,
-or a new subsection could be substituted.
Provisoes are frequently used to restrict the operation of an
enactment. For example, subsection one of section 79 of the
Insurance Acts' says:
No such company shall make any contract with any director, trustee,
officer, employee or servant of the company, save such agents as are
employed to solicit insurance, to pay any compensation or reward what-
ever by way of commissions in respect of the business of the company
or any portion thereof : Provided, however, that this subsection shall not
apply to insurance personally solicited and secured outside of office hours
32 R.S .C ., 1927, c. 108 .
31 R .S .C ., 1927, c. 101 .
1949] Legislative Drafting 311

by any employee or servant not being a director, trustee or officer of the

company. .
This proviso should be a separate subsection. .
The second most frequent use of the proviso is to supply
a missing fragment of the case, the condition, the legal subject
or the legal action ; usually the legal action . Instead of com-
pleting these elements by way ofan afterthought the draftsman
should put the provision in its proper place. For example, section
23 of the Civil Service Act 34 says:
When it has been determined- by the Governor in Council that .any
post office, the- employees of which do not come under this Act, is to be
brought hereunder, any person then employed in,such office, who
(a) has had at least two years' postal experience, one of which was
in the office in question ; and
(b) was, at the commencement of his service, within the limits of
age prescribed by the Commission ; and
(c) satisfies the Commission that he possesses the necessary qualifi-
cations ;
shall be considered eligible for appointment to any position in such
office without competitive examination : Provided, however, that any
person employed in any such post office on the twenty-seventh day of June,
one thousand nine hundred and twenty-five, shall be eligible for appointment,
even though he was not, at the commencement of his employment, within the
limits of age prescribed by the Commission .
Here the proviso is merely part of the legal subject and is in-
tended to be an alternative to paragraph (b): Paragraph (b)
should be revised to read
was employed in any such post-office on the twenty-seventh day of June,
one thousand nine hundred and twenty-five, or was, at the commencement
of his service, within the limits of age prescribed by the Commission .
Where the fragment belongs to the legal action the word
but or except can usually be substituted, although it is often
preferable to write a separate subsection . Section 88 of the Cus-
toms Act 35 says :
The collector may, if he sees no reason to refuse such permission,
permit an importer to abandon to the Crown any whole package or
packages of warehoused goods, without being liable to pay any duty on
the same ; and the same shall then be sold and the proceeds shall belong
to the Crown : Provided that, if such goods cannot be sold for a sum sufcient
to pay the duties and charges, they shall not be sold but shall be destroyed.
Here the proviso is merely part of the legal action and the word
but could be used in place of provided that . In section 61 of the
Yukon Placer Mining Act 36 the proviso is also part of the legal
action . The section states:
3436 R.S.C., 1927, c. 22 . -
R.S .C., 1927, c. 42 . _' .
36 R.S .C., 1927, c. 216,
312 THE CANADIAN BAR REVIEW [VOL . XXVII

The holder of a water grant with the privilege of selling water may
distribute the water to such persons and on such terms as he deems
advisable, within the limits mentioned in his grant : Provided that the
price charged for such water shall be subject to the control of the Commis-
sioner, and the water shall be supplied to all claim owners who made
application therefor in a fair proportion., and according to priority of
application .
The proviso to section 856 of the Criminal Code can be eli-
minated by various methods. It reads :
Any number of counts for any offences whatever may be joined in
the same indictment, and shall be distinguished in the manner shown in
form 63, or to the like effect : Provided that to a count charging murder
no count charging any offence o'her than murder shall be joined .
For provided that the word but could be substituted, or the word
except could be substituted for provided, or a new subsection
could be added in which case the section might begin with the
words except as provided in subsection two.
Provisoes are also frequently used in definition sections .
The placing of substantive- provisions in definitions has already
been discussed and the practice is more reprehensible when the
substantive provisions are introduced by way of a proviso.
Examples of this type of proviso are contained in the defini-
tions in the Immigration Act .37 The expression Canadian citizen
is defined as follows :
`Canadian citizen' means
(i) a person born in Canada who has not become an alien ;
(ii) a British subject who has Canadian domicile ; or
(iii) a person naturalized under the laws of Canada who has not
subsequently become an alien or lost Canadian domicile :
Provided that for the purpose of this Act a woman who has not been
landed in Canada shall not be held to have acquired Canadian citizenship
by virtue of her husband being a Canadian citizen: neither shall a chald who
has not been landed in Canada be held to have acquired Canadian citizen-
ship through its father or mother being a Canadian citizen:
This proviso consists of a number of substantive provisions
that should appear in the Act and not in the definition section.
Provisoes are also used as a cloak for nebulous thinking .
For example, subsection one of section 3 of the Salary Deduc-
tion Act 33 reads :
Notwithstanding the provisions of any statute or law, there shall,
during the fiscal year ending the thirty-first day of March, 1935, be
deducted from the compensation of every member of the public service
of Canada ten per centum of the amount thereof : Provided that no pro-
vision of this Act shall operate to reduce the compensation of any member
37 R .S .C ., 1927, c. 93, s. 2.
38 Statutes of Canada, 1934, c . 22 .
1949} , Legislative Drafting 313

of the public. service of Canada below one. thousand dollars per -annum.
Provided further that such deduction shall not apply to any member of the
public service of Canada whose compensation during such fiscal year is not
more than one thousand dollars, and there may be paid out of any unappro-
priated moneys in the Consolidated Revenue Fund such sums, not to exceed
in the aggregate one million dollars, as are not otherwise provided for and
are necessary to give effect to the provisions of this subsection.
The first proviso is a fragment of the legal action. The last part
of the second proviso on the first reading appears to have nothing
to do with the subject matter of the - section . What the drafts-
man apparently had in mind was that it might in some cases
happen that monthly deductions had been made from the salary
of a person who received less than $1;000.00 during the , fiscal
year, and this person would therefore be entitled to receive
back the amount of the deductions. The draftsman therefore
thought it was necessary to insert an appropriation section .
Perhaps it did not occur to him that if a deduction was illegally
made the employee would be entitled to his salary and probably
no special provision was necessary . If it was necessary to make
special provision for, this case the draftsman might have provided
simply that deductions not authorized by the statute should be
refunded to the employee out of the - Consolidated Revenue
Fund. It is interesting to note that in a similar statute enacted
in the following year as the language of the proviso was altered
to say "and there may be paid out of any unappropriated moneys
in the Consolidated Revenue Fund such sums, not to exceed in
the aggregate - three million dollars, as axe required and not
otherwise provided in order to ensure that the compensation
,of every member of the public service of Canada shall not be
less than the full amount thereof reduced only by the deduction
provided for by this Act". A further improvement was made in
1936 10 whexi this provision was dropped . '
Provisoes are, also used to join together two completely
unconnected enactments. For example, section 20 of the Civil
:Service Act 41 says :
Except where otherwise expressly provided, all appointments to the
civil service shall be upon competitive examination under and pursuant .
to the provisions of this Act, and shall be during pleasure : Provided that
no appointment, whether permanent or temporary, shall be made to a local
position within a province, -and no employee shall be transferred from a
position in .a province'to a local position in the same or in another province,
whether permanent or temporary, until and unless the caizdidate or employee.
31
Statutes of Canada, 1935, c. 26, s. 3(1) .
40 Statutes of Canada, 1936, c. 8, s . 3(1) .
'1 As enacted by Statutes of Canada, 1938, c . 7,, s .' 1 .
314 THE CANADIAN BAR REVIEW [VOL. XXVII

has qualified, by examination, in the knowledge and use of the language of

the majority of the persons with whom he is required to do business : provided
that such language shall be the French or the English language .
Another example of joining unrelated thoughts by a proviso
may be found in the Yukon Act. 42 Subsection two of section 23
says:
The Public Administrator shall perform such duties as are imposed
upon him, and be invested with such powers as are bestowed upon him
by or under any Act of the Parliament of Canada or any ordinance of
the Governor in Council or the Commissioner in Council, and shall be
otherwise subject to the provisions of any such Act or ordinance with
respect to the said office of public administrator : Provided that no such
ordinance of the Commissioner in Council shall have force or effect except
in so far as it is not inconsistent with any ordinance of the Governor in
Council or any Act of the Parliament of Canada.
The proviso has nothing to do with the main provision.
Occasionally provided that is used as a substitute for if. Sec-
tion 22 of the Chinese Immigration Act 43 says that "Persons of
Chinese origin or descent may pass through Canada to another
port or place out of Canada: Provided that such passage is made
in accordance with and under such regulations as are made for the
purpose by the Governor in Council" .
The proviso is far too convenient a tool. If the draftsman
has neglected to complete the case, condition, legal action or
legal subject, or has said too much, he makes a correction by war
of a proviso; if he has not a clear idea of what he wants to say
he adds one or more provisoes ; if he has forgotten the existence
of such simple words as if, but, and or except, or has forgotten the
expedient of adding a new section or subsection, he adds a proviso.
In every case where a proviso is used it can be eliminated
and the result will invariably be an improvement in the statute.
It is not always a simple matter to eliminate provisoes. Where
innumerable enactments are heaped upon each other, where the
draftsman's thinking has not been clear or where the proviso
supplies missing fragments of the case, condition, legal action
or legal subject or two or more of these elements, it may be
necessary to recast the entire section, or perhaps the whole Act,
but in the end it will be worthwhile . A more readable and clearer
statute will result, with fewer sources of doubt or ambiguity.
These considerations are sufficient to justify the abolition
of the proviso. There is, however, a better reason for eliminating
it from the language of statutes . It has no grammatical function
R.S .C ., 1927, c . 215 .
42

11 R .S .C ., 1927, c . 95 .
19491 Legislative Drafting 31 5

in the modern statute. The word provided is merely the past

participle of the verb to provide, and the expression provided that
can mean only that it is provided or, to complete the thought, it is
provided by Parliament that. In other words the phrasQ is only
an enacting formula, but since the whole statute is preceded by
an enacting formula that governs every provision in it, additional
enacting words within the,stâtute should not be used.
The earliest statutes were called provisions and today we
frequently speak of the provisions of a section or the provisions
of a statute . The first statute in volume one of the Revised
Edition of the Statutes of England, 1870, is Provisiones de 'Mer-
ton (the Provisions of Merton) . The next statute in this volume is
entitled "Provisio de Anno Bisertili et Die" (a Provision for the
Day in Leap-Year) . The verb to provide is used in the enacting
formula . The statute of Merton begins with a preamble it was
provided . . . in the Court of our Lord the King . . . and concludes
thus it was provided . The second statute referred to says We
therefore . . .have
. provided . . . that.
Later, other verbs were used in the enacting formula and
the expression most frequently used was it is enacted.
Until the middle of the nineteenth century, in the original
Parliamentary roll,' statutes were written in one single - piece
without distinction by paragraphs or sections and . without
punctuation. Each separate enactment was distinguishable only
by a , separate enacting clause. If two provisions were closely
related as to subject matter or if one provision added an ex-
ception, limitation or qualification to a preceding enactment
it was generally introduced by the words it is provided or it is
provided further.
Although the Acts were written in one piece in the original
Parliamentary roll the printers broke them up into sections.
The first section was always the preamble, which included one
substantive provision . The first section following the preamble
was invariably numbered II. For example, 1 George I, c. 18, be-
gins with a preamble outlining the reasons for the statute and
concludes with the words Be it enacted . . . that . . . . The next
section is -number II and begins Be it further enacted. Section
III begins Provided. Section IV has its own preamble ending
with Be it enacted by the authority aforesaid. Section V begins
And it is hereby further enacted. Section VI begins And it is here-
by further enacted and provided. Section VII begins Be it enacted
by the authority aforesaid. Section VIII begins Provided always ;
section IX Provided also. Section X has a preamble concluding
316 THE CANADIAN BAR REVIEW [VOL . XXVII

with Be it further enacted. The last three sections (XVI, XVII

and XVIII) begin with the word Provided .
A glance through the earlier statutes reveals that in some
instance* Provided that is contained within a section and in
other instances the section begins with these words. There was
apparently no rule to indicate the occasions when this form
should be used in place of 7t is enacted or the occasions when
the formula should remain in the section or should begin a
new section. In any case it is clear that provided was merely an
enacting word. Sometimes it introduced an exception or a quali-
fication but at other times it merely added another provision.
This practice continued until the reign of Queen Victoria,
but a change was made in 1850. Section 2 of chapter 21 of 13
& 14 Victoria enacted that "All Acts shall be divided into sections
if there be more enactments than one, which sections shall be
deemed to be substantive enactments without any introductory
words" . This statute was declared to come into force at the
beginning of the following session and we see a change in the
form of the statutes of 13 & 14 Victoria . The preamble no longer
contains a substantive provision and it is not numbered ; the
individual sections are not preceded by separate enacting clauses.
The preamble to chapter one of 14 & 15 Victoria reads "Where-
as it is expedient to amend the Passengers Act, 1849, as here-
inafter mentioned : Be it therefore enacted by the Queen's Most
Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the Authority of the same ; That
27

The concluding word that makes it clear that the enacting

formula now applies to every enactment that follows. Obviously
with this formula it is unnecessary to have enacting clauses for
each section, and they were accordingly dropped. Strangely
enough, in cases where the enacting clause would formerly have
occurred in the middle of a section, it was retained.
The enacting formula for Canadian statutes is set out in
section 5 of the Interpretation Act 44 as follows:
His Majesty, by and with the advice and consent of the Senate and
House of Commons of Canada, enacts as follows :

The words enacts as follows govern the whole statute and to

insert a further enacting clause is not only unnecessary but also
incorrect.
44 R
.S .C ., 1927, c . 1 .
19491 Legislative Drafting 317

The phrase provided that cannot be said to have acquired a

special meaning through usage ; these words are used in so many
different senses that it is impossible to attribute to them any
precise meaning . Coode and other . authorities suggest that a
proviso may properly be used to take a particular case out of
general enactment and to make special provision for it. Even
this restricted use, is incorrect. The proper course is to add "a
new subsection and to precede the main provision by the words
except as provided in subsection two or subject to subsection two.
This form is correct and it warns the reader that an exception
is to follow. In any event the form of the proviso sanctioned
by Coode .is rarely found in the statutes. Not-one proviso in a
hundred takes this form.
The only meaning that the words provided that can have
acquired by usage is it is provided by Parliament that, and this is
its only grammatical meaning . If it means' that, it can and ought
to be eliminated. This suggestion is not as startling as it might
at first appear to . be. The proviso does not appear in the French
version of the statutes of Canada and provisoes are not used
in the English version of the statutes of the province of Quebec .
There is no French equivalent for the proviso, and in the French
version of the statutes of Canada the phrase provided that appears
as mais, toutefois, cependant, néanmoins or sometimes as il est
prescrit de plus. These words could be translated back into Eng-
lish and there would be no loss in meaning. In 'the English ver-
sion of the Quebec statutes the proper English equivalents are .
used for mais, toutefois, cependant, néanmoins and other similar
words. Where these words do not fit the thought, a new para-
graph, subsection or section is added. The result is that the
English versions of the Quebec statutes are, on the whole, simple
and direct, easy to read and to understand .

Conclusion
Two short sentences from Coode might appropriately be
quoted in conclusion . He says that "There is apparently a notion
amongst amateurs, that legislative language must be intricate
and barbarous", and that "If 'it could be made to be generally
recognized that the essentials of every law are simple, and that
their direct expression is the perfection of law writing, the great-
est defècts of our statute law would cease"4s

45 Page 58 (1852 ed.) .