Writing Laws: Making Them Easier to Understand - CanLII

WRITING LAWS:MAKING THEM EASIER TO

UNDERSTAND*Susan Kr.ongold**

The author argues in this article thatreadability is a legal issue. One of theprimary goals in drafting any docu-ment, including a statute, should bethat its ultimate readers will be able tounderstand it. The drafting community,governments and statute users all havea part to play in creating legislationthat is accessible, understandable andinviting to its audience.

Plain language principles, usedover the past twenty years to improvethe readability of public documentssuch as insurance policies and instruc-tion booklets, can be used to make lawseasier to understand. The articlefocuses on elements of existing legisla-tion that create serious problems forreaders - sentence length, sentencestructure, cross-references, archaic

Dans cet article, l' auteure soutient quela lisibilitj est une question d'ordrejuridique. Lorsqu'on ridige un docu-ment, y compris une loi, on devraitavoir comme but principal, entre au-tres, de se faire comprendre des lec-teurs et des lectrices auxquels ledocument s'adresse. La communautjridactionnelle, les gouvernements etles gens qui consultent les lois ont tousun r6le d jouer dans l' laborationd'une lgislation qui soit accessible,comprihensible et attrayante pour lepublic auquel elle est destinge.

Pour que les lois soient plus fa-ciles d comprendre, on peut se servirdes principes du langage simple, quisont appliquis depuis plus de vingt ansafin d'accroftre la lisibilitg de docu-ments tels que les polices d'assurance

* The editors wish to point out that this article does not conform to the

OTrAWA LAW REVIEW editing style.The author advocates a philosophy of writing which includes a citation

style that avoids cross-reference and the use of Latin terms.An exception has been made for this article only because it addresses

matters of document design and form.*2-" Susan Krongold, B.A., LL.B., Diploma in Legislative Drafting. I am

grateful for the kindness of many people.To the legislative counsel who set aside time in busy schedules todiscuss the issues.To Peter Butt, David Elliot, John Mark Keyes, Hilton Macintosh,Don McPherson, Miles Pepper, Don Ravell, Vicki Schmolka,Arthur Stone and Cliff Watt for taking the time to read andcomment on various drafts. Special thanks to Vicki and David forreading it more than once and for your encouragement throughoutthe process.And especially to Marvin Schwartz who not only read themanuscript many times but was always there to keep me going.I would also like to acknowledge the financial contributions ofThe Law Foundation of Ontario, The Law Reform Commissionand The Foundation for Legal Research.

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and pompous language and documentdesign.

et les modes d'emploi. L'auteure sou-ligne les gliments des lois existantesqui posent de serieux problemes auxlecteurs et aux lectrices - la longueurdes phrases, la structure des phrases,les renvois, le langage archaque etpompeux et la forme des documents.

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INTRODUCTION ........................... 499

THE CASE FOR CLEARER LAWS ............... 501WHY MAKE THE EFFORT? ................. 501

The rule of law ....................... 501There are costs to unreadable law .............. 502

CAN IT BE DONE? ...................... 504People should be able to read statutes ............ 504Complex ideas can be written as clear law ........ 504A law can be intelligible and legally certain ....... 505People will respect clear law ............... 507Are Canada's laws that bad? . . . . . . . . . . . . . . . 507

WRITING CLEARER LAWS ................... 509ORGANIZATION ........................ 509

Headings and marginal notes ............... 511Tables of contents and indices .............. 512Road maps .......................... 513

SENTENCE STRUCTURE .................. 514Sentence length ....................... 514A subject-verb-object sentence is best . .. ........ 516Put the central idea first .................. 517

CROSS-REFERENCES .................... 520W ORDS ............................. 524

Technical terms and terms of art ............. 524Avoid foreign words .................... 525Avoid legal twins and triplets ............... 525Avoid archaic words .................... 526Avoid unfamiliar or surplus words .............. 527

DOCUMENT DESIGN ........................ 528MAKE THE PAGE INVITING TO READ ........... 529

W hite space ......................... 529Line length ......................... 530

MAKE THE INFORMATION EASY TO LOCATE .... 530Headings, headnotes and marginal notes ..... ... 530Numbering systems ..................... 534Running heads and feet .. ................ 535

MAKE THE TEXT EASY TO READ ............ 536Type style .......................... 537Type size .......... ................ 538Defined words ..... ................... 540Amendments ............................. 541Ragged-right margin .................... 542

DEVELOP STANDARDS TO HELP DRAFTERS ..... 542PLAN THE DESIGN OF MATERIALS THATARE REQUIRED BY STATUTE ............... 543

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TESTING TO SEE IF PEOPLE UNDERSTANDA STATUTE ... ........................... 544

Paraphrasing ......................... 545Thinking aloud ....................... 546Comprehension testing ................... 546Usability testing ...................... 547

PARTNERS IN CLARITY ..................... 548ROLE OF GOVERNMENT .................. 548

Clarity must be supported ................. 548A different approach to drafting as a process ....... 549

THE ROLE OF THE DRAFTING OFFICE .......... 551Aim for a wider audience, not everyone ........... 552Legal training is not enough ............... 553

CONCLUSION ............................ 553

APPENDIX I: Drafting Conventions of The Uniform LawConference of Canada ......................... 555

APPENDIX II: Directions on How an Act Works ........... 569

APPENDIX III: Process Flow Charts ................ 570

APPENDIX IV: Foreign Words ................... 572

APPENDIX V: Lawyers' Twins and Triplets ............. 573

APPENDIX VI: Archaic Words ................... 574

APPENDIX VII: Unfamiliar or Surplus Words ............ 575

REFERENCES ............................ 578

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INTRODUCTION

Whenever I read something and I can't understand it, I know it waswritten by a lawyer.

Will Rogers

It is strange that free societies should thus arrive at a situationwhere their members are governed from cradle to grave by texts theycannot comprehend.

Francis Bennion

I have been drafting legislation and other legal documents forclose to fifteen years. Early in the 1980s I discovered material fromthe plain English movement. I began reading about a consumermovement worldwide that promoted the notion that consumercontracts, insurance policies, government forms and legal practicedocuments should be drafted so that the general public couldunderstand them. Without knowing it, I began to challenge the styleof drafting that I had eagerly picked up from other drafters and tochange some of the ways I approached the drafting of legislation.

I didn't realize how much I had been influenced by the plainlanguage movement until I found myself at a meeting discussing apiece of legislation that the federal government was developing. Thegovernment official who was giving instructions complained to thedrafter that the text, although legally correct, was unintelligible. Theofficial noted that he had trouble understanding the text even thoughhe knew exactly what it was supposed to say. How would anyonewho didn't know what it was supposed to say understand it? "Can'tyou make it more readable?", he asked. I was shocked to hear thereply, "Readability is not a legal issue. If you want the public tounderstand it, you can write an administrative manual." That incidentwas the catalyst for writing this article. Readability is a legal issue.One of the primary goals of drafting any document, including a statute,should be that its ultimate readers will be able to understand it.

I had two purposes in mind in writing this article. One was tograb the attention of the drafting community in Canada - to informthem about plain language activities that are going on and tochallenge them to draft for a broader audience. My second purposewas to empower non-drafters who actually read legislation as part oftheir work to insist on texts that they can understand. Statute lawgoverns almost every facet of our lives from birth to death, and evenafter. A statute requires our parents to register us at birth and tellsthem how to provide for us during their lifetime and after their death.There are statutes that tell us how to grow our food, how to processit and how we must offer it for sale. We are told by statute when wecan leave school, go to work, vote, drink, drive and marry. The list is

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endless. The time has long passed when any one person could befamiliar with all current written law. In Canada at the federal levelalone there were 8,000 pages of statute law in 1970. Since theRevised Statutes of Canada 1970 were published, 14,000 new pagesof public law have been passed.' Interested statute readers cannothope to be familiar with every law that exists but they do want to beable to read and understand at least those laws that affect themdirectly. That desire is reasonable since they are required to conductthemselves within those laws. Bolstered by the activities of the plainlanguage movement worldwide, people are demanding that the legaldocuments and the laws that govern their lives be intelligible to them.The legal profession is slowly responding to the notion that peopleneed to understand the documents that they must sign and tounderstand the words that are spoken to them in court. The languageof the law is changing in response to challenges about its archaiclanguage and convoluted structure.

Renewed interest in the theory of writing as a process anddevelopments in psycholinguistics and sociolinguistics have given theproponents of clear legal language a firmer basis from which toargue. As we learn more and more about what kind of text is easierto understand, we are able to produce documents that communicateinformation more successfully. Clear writing techniques have beenused around the world to improve the clarity of a wide range ofpublic documents - insurance policies, publications explaining thelaw and government services, and instruction booklets for consumerproducts. Plain language projects are on the increase in Canada asgovernments begin to see the value of communicating better withtheir public. 2

Legislative drafting offices must also examine how principles ofclear writing can be applied to their own very specialized field oflegal writing. I hope this article will help them in that exercise.

I Johnson, Revised Statutes of Canada, 10.2 Here are some examples of plain language documents that have been

drafted in the common law provinces:" forms and information material for the Personal Property Security Act

(Alberta)* information brochures on the maintenance, enforcement and access

provisions of the Children's Law Reform Act (Ontario)* standard mortgage documents of the Farm Credit Corporation (Canada)* Small Claims Court rules, forms and information brochures (British

Columbia).

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THE CASE FOR CLEARER LAWS

I am firmly convinced that the style of laws is of scarcely lessimportance than their substance. When we are laying down the rulesaccording to which millions are, at their peril, to shape theiractions, we are surely bound to put those rules into such a formthat it shall not require any painful effort of attention or anyextraordinary quickness of intellect to comprehend them.

Thomas Babington Macaulay

WHY MAKE THE EFFORT?

Whenever I speak to legislative counsel about improving thetext of statutes, I get an earful on why it cannot really be done.Drafters universally work under unreasonable time constraints, oftenwith half-baked instructions. While their workload is becoming largerevery year, their resources are shrinking. Ministers rarely appreciatethe time and effort involved in developing a piece of legislation thatis both legally sound and clear. Their interest is in producing aproduct, any product, not necessarily a good one. It is awkward,knowing the overwhelming demands made on drafters, to insist thatthey do better. But there are two overwhelming reasons why we mustalways try for that next level of improvement in spite of theconstraints - the rule of law depends on it and there are high coststo inaccessible law.

The rule of law

In a democracy people should be able to understand the lawsthey are expected to obey:

The efficacy and maintenance of the rule of law, which is thefoundation of any parliamentary democracy, has at least twoprerequisites. First people must understand that it is in their interests,as well as in that of the community as a whole, that they should livetheir lives in accordance with the rules and all the rules. Second theymust know what those rules are.3

Laws should not be drafted on the assumption that a trained lawyerwill be available to interpret them. Fairness demands that people beinformed of benefits or obligations in language which they canunderstand. Parliamentarians, as well, should understand the lawsthey are passing. When people don't know the law or misunderstandit, they are less likely to comply with the law or to exercise theirrights under it.4

3 Merkur Island Shipping Co. v. Laughton [1983] 1 ALL E.R. 334, [1983] 2W.L.R. 45 quoted in Kelly, The Victorian Experience of Plain Drafting, 58. Seealso The Preparation of Legislation, (Renton) 36.

4 Kelly, The Victorian Experience of Plain Drafting, 57.

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In 1990, at the Ninth Commonwealth Law Conference in NewZealand, Garth Thornton, former Parliamentary Counsel of WesternAustralia, spoke about the dual function of a statute. He noted thatbesides establishing a legal area, the law needs to communicate itscontents to the people who need to know and understand it:

That is what makes the case for improvement of statute lawoverwhelming. The language of a law is satisfactory only if it is thebest language to state the message accurately and to communicate iteffectively to as many people as possible. 5

When the law is difficult to understand, people may break thelaw without meaning to. In a 1983 case, Merkur Island Shipping Co.v. Laughton, the Court's answer to a question put before it dependedon the effect of three interrelated Acts of Parliament, none of themexpressed in clear language. On how important it is to have clearlaws, one of the judges hearing the case had this to say:

In industrial relations, it is of vital importance that the worker on theshop floor, the shop steward, the local union official, the districtofficer and the equivalent levels in management should know what isand what is not "offside". And they must be able to find this out forthemselves by reading plain and simple words of guidance. Thejudges of this court are skilled lawyers of very considerableexperience, yet it has taken us hours to ascertain what is and what isnot offside, even with the assistance of highly experienced counsel.This cannot be right.6

There are costs to unreadable law

Legislation that is not readily accessible to the public increasesthe cost to the public. A statute that is difficult to understand makesdecision-making more difficult, makes administration more costly andincreases the need for legal services. A clearly drafted statute savesmoney and time for all users - administrators, lawyers, the courtsand the general public. In Access to Justice, a recent report of theJustice Reform Committee in British Columbia, the HonourableE.N. (Ted) Hughes maintained that justice would "be more relevant,efficient, accessible and less costly" if the province made a

5 Thornton, Plain Language and Statute Law, 185. This dual aspect oflegal writing, providing both substance and communication, was alluded to bylaw reformers of the past. Thomas Babington Macaulay (1800-1859) presidedover a commission responsible for preparing a penal code for India. He triedto avoid the statutory language that was contemporary to his time and toproduce law that was accessible to a population that had few libraries. Thecode incorporated explanations and illustrations to help the reader. See Linden,Ten Great Codifiers of the Past.

6 Sir John Donaldson, M.R., quoted in Kelly, The Victorian Experience ofPlain Drafting, 58.

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commitment to the use of plain language in all areas of the legalsystem. 7

David Kelly, Chairperson of the Law Reform Commission ofVictoria, supports this proposition:

Laws which are not written in plain English impose unnecessarycosts on Government and on the community at large. A documentthat is not readily comprehensible takes longer to understand, ismore likely to need a "translator" and is more likely to bemisunderstood. Poorly drafted Bills consume the time of Membersof Parliament who must understand and debate them. They impedethe conduct of business in Parliament and interfere with theGovernment's legislative program. Poorly drafted Acts andregulations consume the time of those who must administer orcomply with them. They reduce the efficiency of administration andof business activity....They waste the time of lawyers and judges. 8

Although no empirical research focusing on the costs of unclear lawshas been conducted in Canada, research has been done in othercountries. A test conducted during the Victoria Law ReformCommission's plain English review established that it took lawyerstwice as long to solve problems if they had to work with legislationin its traditional form. When lawyers were presented with legislationin plain language, they cut their reading and problem solving timein half.9

In the United States, Janice Redish described the savings madeby the Department of Education in administering its grants programafter its regulations were redrafted in plain language:

[P]otential applicants now receive a cover letter and the regulations.By writing the regulations so that the audience (prospective grantees)can easily follow them, the Department of Education saved the timeand money needed to write a separate grants announcement,eliminated duplicative paperwork, and eliminated the possibility oflegal errors that might have arisen in translating the regulations intoguidelines.10

There are also social costs to inaccessible law that cannot beeasily measured. People may participate less in the life of thecommunity when they do not understand the laws. Sometimes theeffectiveness of a government program can be put at risk.

7 Access to Justice (Hughes), 12.8 Kelly, The Victorian Experience of Plain Drafting, 58.9 Eagleson, Taking the Gobbledegook Out of Legal Language, 115.

10 Redish, How to Write Regulations, 9.

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CAN IT BE DONE?

People should be able to read statutes

A drafter once remarked cynically that however we draft ourstatutes, the public, except for a remote lunatic fringe, will never readthem." It may be true that most members of the public will neverread or want to read a statute but the number of statute-readers issteadily growing. Labour relations experts, consumer groups, schoolofficials and municipal officials spend a great deal of their timereading legislation and participating in its development. People ofreasonable intelligence who are able to read a good novel or anewspaper with no difficulty should not be blocked from readingstatutes by excessively long sentences, unnatural sentence structuresor hocus-pocus vocabulary.

Drafters cannot guarantee a vast improvement in their audienceratings by improving the clarity of statutes. They must, nonetheless,try to communicate the law in the clearest manner possible. Theymust attempt at all times to remove linguistic or visual barriers toreadability. How will they know if they can attract more than the"lunatic fringe" unless they make a concerted effort to reach abroader audience?

Complex ideas can be written as clear law

When pressed to make statutes simpler to read, some legislativecounsel have argued that the demand for simple legal documentscannot be satisfied if the ideas which have to be expressed arecomplex.' 2 It is true that the drafter has little or no control over thecomplexity of the subject matter of statutes. It is precisely becausepolicy is complicated that the words, syntactic structures and formatused to express that complex policy should not add to the complexity.

We must be careful to distinguish between complex subjectmatter and complex presentation. Elmer Driedger tried to make thatdistinction in the following passage in which he addresses publiccomplaints about the complexity of legislation:

There is always the complaint that legislation is complicated. Ofcourse it is, because life is complicated. The bulk of the legislationenacted nowadays is social, economic or financial; the laws theymust express and the life situations they must regulate are inthemselves complicated, and these laws cannot in any language or inany style be reduced to kindergarten level, any more than can the

I Adamson, The Demands of the Legislator and of the Lawyer and hisClient, 63.

12 Aitken, PIESSE THE ELEMENTS OF DRAFTING, 13.

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theory of relativity. One might as well ask why television sets are socomplicated. Why do they not make television sets so everyone canunderstand them? Well, you can't expect to put a colour image on ascreen in your living-room with a crystal set. And you can't havecrystal set legislation in a television age. 13

It is not important for everyone to understand how a televisionset puts the picture on the screen. The user needs to know only howto turn it off and on and how to switch channels. Not knowing aboutthe inner workings or underlying theory does not hinder participationin the event. I do not need to know anything about televisionreception to enjoy a good sitcom. But not to understand the lawmeans not to understand one's obligations and rights as a citizen and,as a result, not to be able to participate fully in the economic orsocial change that is ultimately implemented by legislation. Althoughthe drafter cannot often influence the complexity of the policy thatgives rise to statute law, the drafter is responsible for making surethat everyone who is supposed to be able to read a statute will beable to read it. And he or she does this, not by reducing it tokindergarten level, but by directing it to the level of the identifiedreaders. 14

A law can be intelligible and legally certain

In the past, most lawyers have been concerned solely withaccuracy in their writing. However, the good writers among themhave always insisted on clarity as well as precision. Now, more andmore lawyers are beginning to recognize that their documents mustbe clear and intelligible as well as correct. Drafters of legislation,until fairly recently, have persuaded proponents of clear writing thatlegislation cannot meet that standard. Ernest Gowers, for instance,was taken in by that position when he wrote that the special styleof statute drafting is caused by the necessity of being unambiguous.He continued:

[Being unambiguous] is by no means the same as being readilyintelligible; on the contrary, the nearer you get to the one, the furtheryou are likely to get from the other. It is accordingly the duty of thedraftsman....to try to imagine every possible combination ofcircumstances to which his words might apply and every conceivable

13 Driedger, quoted in Bennion, BENNION ON STATUTE LAW; Aitken, PIESSE

THE ELEMENTS OF DRAFTING 209; and in Miers, LEGISLATION, 101.14 The Victoria Law Commission experimented with redrafting what was

considered to be a very complicated piece of legislation, The Takeovers Code.The identified readers were takeover experts. The code was tested against fifteentop takeover experts in the country. They all found that the plain languageversion was more accurate and easier to read than the original. See R. Eagleson,"Plain English in law is an economic necessity", The Lawyers Weekly (12 May1989) 4.

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misinterpretation that might be put on them, and to take precautionsaccordingly. He must avoid all graces, not be afraid of repetitions....he must limit by definition words with a penumbra dangerouslylarge, and amplify with a string of near-synonyms words with apenumbra dangerously small; he must eschew all pronouns whentheir antecedents might possibly be open to dispute, and generallyavoid every potential grammatical ambiguity....All the time he mustkeep his eye on the rules of legal interpretation and the case-law onthe meaning of particular words, and choose his phraseology to fitthem.'

5

Drafting that takes into account all possible or foreseeableconsequences must be distinguished from drafting that is soconvoluted in its language and so complicated in its syntacticstructure that the reader needs to analyze each sentence in minutedetail to obtain even a preliminary gist. Subsection 99(4) of theLandlord and Tenant Act (Manitoba) tells you that you can remain inyour apartment in certain circumstances when your lease expires.Those circumstances can be discovered eventually in this section ofover two hundred words but the drafter should not have left thereader with this kind of struggle:

99(4) Notwithstanding that(a) a landlord has given a tenant written notice toterminate a tenancy agreement under subsection (3); or(b) a written tenancy agreement provides that it shallexpire on a predetermined expiry date;

the tenant, unless he is in default of any of his obligations under thisAct or his tenancy agreement, has the right subject to subsection (12)or (13), to continue in occupancy of the premises after the tenancyagreement is terminated by notice or otherwise expires, except where

(c) the landlord requires possession of the premises forthe purpose of demolishing the premises; or(d) the landlord requires possession of the premises forthe purposes of repairing or renovating the premises andthat such repairs or renovations cannot be carried outwhile the tenant continues to occupy the premises; or(e) the landlord requires the premises for his ownoccupancy or for occupancy by his parents, his spouse'sparents, or any of his adult children;

but where a landlord denies a tenant the right to continue inoccupancy for any of the reasons set out in clause (c), (d) or (e), heshall state his reasons for doing so in a written notice to terminategiven by the landlord to the tenant in accordance with section 98 andsubsection (3); or where the tenancy agreement has a predeterminedexpiry date, the landlord shall give written notice to terminate to thetenant at least three months prior to the expiry date of the existingtenancy agreement.' 6

15 Sir Ernest Gowers, THE COMPLETE PLAIN WORDS, quoted in Aitken,PIESSE THE ELEMENTS OF DRAFTING, 12-13. The notion is also supported byMiers, LEGISLATION, 82. Aitken was quoting from the 1948 edition of Gowers.The passage has been omitted from the third edition (1986) edited by S. Greenbaum& J. Whitcut.

16 R.S.M. 1987, c. L-70.

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People will respect clear law

The law needs to be direct; drafters and legislators have to getused to the fact that the law doesn't need to be pompous or convolutedto be dignified.17 Many lawyers feel that respect for the rule of lawcomes, in part, through its language; that, somehow, if the languageof the law loses its dignity, the law will lose its place of respect inthe universe. This attitude is especially strong in relation to thelanguage of statutes. Statutory language, it is felt, must be in keepingwith the dignity of Parliament.

It is not only lawyers who are more comfortable with a moreformal style of language for statutes. I am regularly asked to putwritten instructions in "statutory language", as if the language ofstatutes is a different language from ordinary prose. Francis Bennion,former Parliamentary Counsel (UK), describes his own experiencewith a British member of Parliament:

I ran into trouble by laying down a test of whether the landlord had"tried his best" to let office property. This seemed better modernstyle than the well-worn phrase "used his best endeavours". Themeaning of course is exactly the same, and greater precision is notattainable. In the House of Commons Gordon Oakes described thephrase as "amateurish", while Denis Howell thought it "a headmaster'sphrase" and demanded that "better phraseology" be provided in theHouse of Lords.' 8

Are Canada's laws that bad?

Early Canadian legislation was typical of legislation found allover the British Commonwealth. Before the 20th century, statuteswere written as solid pages of text with few divisions, sectionnumbers or headings. Sentences of two or three hundred words werecommon.19 The following provision of a nineteenth century statutefixed the price of bread. It was typical of the kind of enactmentfound in early Canadian statutes:

I. Whereas it is necessary to make more effectual provision forregulating the assize and fixing the price of bread in the severaltowns throughout this Province, and more particularly to define thesame; Be it therefore enacted by the King's most Excellent Majesty,by and with the advice and consent of the Legislative Council and

17 Thornton, LEGISLATIVE DRAFTING, 52. Some judgment on what isappropriate in the range between colloquial and formal is required. The choicewill be individual but should not be made on the basis of "dignity" alone. SeeLaw Reform Commission of Victoria, PLAIN ENGLISH AND THE LAW, APPENDIX 1, 1.

Is Bennion, BENNION ON STATUTE LAW, 2d ed., 38.19 For a concise history of the development of legislative drafting style see

Law Reform Commission of Victoria, ACCESS TO THE LAW: THE STRUCTURE ANDFORMAT OF LEGISLATION, Appendix 4.

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Assembly of the Province of Upper Canada, constituted andassembled by virtue of and under the authority of an Act passed inthe Parliament of Great Britain, intituled, "An Act to repeal certainparts of an Act passed in the fourteenth year of His Majesty's reign,intituled, "An Act for making more effectual provision for theGovernment of the Province of Quebec, in North America" and tomake further provision for the Government of the said Province",and by the authority of the same, That from and after the passing ofthis Act, it shall and may be lawful for such of His Majesty'sJustices of the Peace residing within the limits of any town in thisProvince, where a Police is now or hereafter may be established, orresiding within the limits of the division constituted, for the timebeing, for holding a Court of Request in said town or towns, toassemble on the first and third Saturday in each month, at the CourtHouse, in each and every of the said towns, respectively; and two ofthe said Justices being then and there present, are hereby authorisedand required to assize and fix the price of bread; and if more thantwo of the said Justices being then and there present, the majorityshall fix and determine the same for each ensuing intermediate period;or if any default shall be made by reason of the non-attendance ofthe said Justices, or in case no change, alteration or modification, befound necessary, then the last assize made shall continue to be in fullforce and effect, until the same shall be varied and changed by anew assize, in manner above mentioned. 20

Most statutes in Canada today have quite a different look. Infact, Elmer Driedger maintained that there has been, since the 1940s,a distinct Canadian style, unlike any British style. His observationwas confirmed, tongue in cheek, by Sir Robert Megarry in an addressto the Bars of Alberta and British Columbia:

The complaint is about your statute books, both federal andprovincial. They are too plain. I have read many, many pages ofthem; and I found that I could understand all that I read or nearlyall. That is not the sort of thing that one ought to find in anywell-mannered statute book.2'

There is no doubt that the average Canadian statute is mucheasier to read than its British, Australian or New Zealand counterpart.The work of the Uniform Law Conference and regular statuterevision has substantially contributed to the present level of clarity ofstatutes in Canada.22 Even though statute law is better drafted here, itis still difficult for most people to read. And although Canadiandrafters have not much to learn from the drafting style of otherjurisdictions, they can learn a great deal from the activities andexperiments going on in those jurisdictions to improve drafting style.

20 1825 (U.K.), 6 Geo 4, published in PUBLIC ACTS, VOLUME 1, 1792-1840.21 Driedger, A MANUAL OF INSTRUCTIONS FOR LEGISLATIVE AND LEGAL

DRAFTING, 12.22 Since 1918 in Canada the Uniform Law Conference has been actively

developing a set of rules for legislative drafting across Canada. The present rulesare contained in Appendix I. Regular statute revision exercises have eliminatedmany archaic and Latin expressions.

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WRITING CLEARER LAWS

Everything that can be thought at all can be thought clearly.Everything that can be said can be said clearly.

Ludwig Wittgenstein

The expression of the law, to be well understood, ought to be writtenin a language directly accessible to the mind.

J.-L. Sourioux and P. Lerat

Everything should be as simple as it can be, but not simpler.

Albert Einstein

The plain language approach to legislative drafting is an oldsong with a modern arrangement. The movement addresses writingissues that have been dealt with by writers in the past but focusesparticularly on writing and presentation techniques that make the textmore accessible to readers. Some drafters will hear the refrain for thefirst time; others will gain new insight from the more modern anddramatic presentation. When the principles are applied, the lawshould be just as legally precise as it was before but clearer and moreinviting to the reader.

The usual mark of success for a plain language document is thatit can be understood the first time it is read. That is not a fair test forstatute law. Statutes require more effort to read than most prose. Tounderstand a statute, a reader must be willing to spend time with it,reading it slowly, not just once, but several times. The reading shouldnot be directed at sorting out a jigsaw puzzle but rather at becomingfamiliar with the whole story. In this section, I focus on how thedrafter can avoid producing a jigsaw puzzle for the reader.

A note of caution: I am not trying to set out new rules tosubstitute for old ones. The object is not a set of rules, rather a set ofchallenges. The drafter must use his or her discretion in every case todetermine whether a technique is appropriate. When I urge shortersentences, for instance, I don't prescribe an exact length nor do Isuggest that a long sentence can never be clear. I do, however,challenge the drafter to be aware that long sentences can sometimesmake the message hard to decipher.

ORGANIZATION

An Act should be organized so that readers can find their wayaround it easily. The Honourable E.N. (Ted) Hughes, in Access to

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Justice, pointed out that "poor organization obscures underlyingprinciples and defeats the reader".23

The work of the Uniform Law Conference has made a majorcontribution in Canada in promoting a uniform and logical structurefor all Canadian statutes. As a result of the work of the Conferencethe text of most Canadian legislation is organized in this order:

* title* preamble* definitions• interpretation or application provisions* substance of the Act" regulation-making powers* transitional or temporary provisions* repealing and amending provisions* commencement provisions* schedules* forms 24

This organization of material has tried to take into account areader's perspective. It leaves the more technical areas of the law,such as regulation-making powers, schedules and temporaryprovisions at the end. The substance of the Act is closer to the front.Within the substantive provisions, a logical structure of ideas and alogical connection between sentences gives the reader something tobe able to predict. If related material is arranged together, there isless strain on the reader.

A statute should also be divided into sections and subsections ofmodest length. A section with too many subsections is difficult toread and to understand. 25 Elmer Driedger noted that section numbersare printed in bold face type in most jurisdictions and are easy tospot so the reader knows where a new section begins. But subsectionnumbers are printed in ordinary type and it is difficult to grasp thecontents of a page consisting only of subsections.26 One main idea orissue should be addressed in each section. Garth Thornton hassuggested a "unity of purpose" test for determining what should be

23 Access to Justice, 8; Law Reform Commission of Victoria, PLAIN

ENGLISH AND THE LAW, APPENDIX 1, 12.24 Drafting Conventions, Part III (reproduced in Appendix I of this article).

This order, or something similar, is generally followed in Australia, New Zealandand many other Commonwealth countries. Practice in the United Kingdom is forthe main principles of the legislation to follow the enacting clause. The shorttitle, interpretation, application, repeals, savings and commencement provisionsare placed at the end of the Act. See Thornton, LEGISLATIVE DRAFTING, 147.

25 Driedger, MANUAL, 562.26 Driedger, MANUAL, 557.

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included in a section. Each subsection must have some relevance tothe central theme of the first subsection. If the central theme or topicof the section cannot be extracted and stated briefly in a marginalnote to the first subsection, then the section needs to be restructured.2 7

Headings and marginal notes

Readers of legislation often approach an Act with specificproblems or questions in mind. They do not always plan to read theAct from beginning to end. This is certainly true if they consult theAct on more than one occasion. 28 Marginal notes and headings helpthe reader to find the provisions that need to be read to answer theirquestions more quickly.

Marginal notes as reference aids are commonplace in Canadianlegislation. Elmer Driedger supported their use when he spoke beforethe Renton Committee:

A draftsman can contribute a great deal to comprehensibility byarranging the provisions of a statute logically and orderly, dividingit into parts in some cases and inserting headings, sub-headings andmarginal notes....as guide-posts. If a statute is carefully arrangedand if these visual aids are supplied, then a reader, by scanning thestatute, can at first glance get a fairly good idea of what the subjectmatter is, and what the scope of the Act is. 2 9

In many jurisdictions in Canada marginal notes are provided foreach section and each subsection of an Act. Some jurisdictions haverecently changed that practice to accommodate a computer generatedtable of contents. In the provinces using this technique each sectionhas a marginal note (sometimes called a headnote) which, togetherwith centred headings, is used to create the table of contents. Alberta,for instance, uses this technique to provide a table of contents forvirtually all of its Acts and regulations.

Since readers often have questions in mind when approaching anAct, drafters should consider writing headings in the form ofquestions or replacing the abstract nouns that are the usual stuff ofheadings with an answer to a question. So, for instance, the abstract"Coverage" would become the answer "What damaged property we

27 Thornton, LEGISLATIVE DRAFTING, 60. The Law Reform Commission ofCanada, in an experimental redraft of the Narcotics Control Act, found that onesection of the Act provided enough material to make sixteen sections. See LawReform Commission of Canada, DRAFTING LAWS IN FRENCH, 208.

28 Law Reform Commission of Victoria, PLAIN ENGLISH AND THE LAW:APPENDIX 1, 18.

29 The Preparation of Legislation (Renton), 65.

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insure". Here are some examples of questions used as headings fromAlberta's proposed Municipal Government Act:

Part 1WHY DO WE HAVE THIS ACT?

Part 2WHAT DO I NEED TO KNOW BEFORE READING THIS ACT?

Part 3HOW CAN I INFLUENCE WHAT MY MUNICIPALITY DOES?

Part 4HOW IS A MUNICIPALITY FORMED AND REFORMED? 30

Tables of contents and indices

Even when an Act is logically organized, readers need help inforecasting its contents. A glance through a table of contents enablesa reader to discover easily and quickly the framework and generalcontent of an Act.31 The Renton Committee recognized the value ofa table of contents, particularly to the non-lawyer:

A problem frequently complained of by those we spoke to is thecomplex structure of most statutes. From a lawyer's point of viewour statutes are set out in a logical manner: they usually begin withdefinitions and then move on to application sections, then to theoperative part of the statute, and end with such things as administration,regulations, and penalties. This is obvious to a lawyer. Lawyers areable to skim statutes and pick out the key parts. Non-lawyers havedifficulty. The marginal notes are helpful....but more assistance isneeded for the non-lawyer by providing tables of contents whichwould show at a glance what is in the statute. 32

A table of contents benefits the drafter too. When a draft Billis reviewed against a table of contents, the table acts as a test fororganization and logic, and reveals duplication and gaps in information.

Tables of contents are becoming more commonplace in Canadaevery year. Manitoba, Alberta and British Columbia prepare a tableof contents for any Bill over a minimum length. The NorthwestTerritories added a table of contents to all of its longer Acts in itsmost recent statute revision. At the federal level it is common

30 Municipal Government in Alberta (Municipal Statutes ReviewCommittee), 1. This technique was also used in redrafting regulations under theHealth Education Assistance Loan program (Department of Education, U.S.A.).See Redish, How to Write Regulations, 17.

31 Thornton, LEGISLATIVE DRAFTING, 146.32 Friedland, ACCESS TO THE LAW, 70.

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now to see a table attached to lengthy Bills for Parliamentary use;unfortunately, when the Bills are passed and printed, the tabledisappears. It is rare in any jurisdiction to find a table of contentsfor regulations.

A table of contents should be attached to every piece oflegislation including regulations. 33 The table should accompany thestatute both at the parliamentary stage when it is reviewed by thelegislature and be included as part of the statute when it is printed forpublic distribution.

For a long Act, a subject-index provides the occasional user aswell as the specialist with a very useful working tool. An indexwould help the reader of a very long Act to access the Act as areference work.34

Road maps

Some jurisdictions outside Canada are experimenting withrevealing a document's organisation to readers by using introductorystructural or procedural paragraphs that explain what is to come andthe order in which it is to appear. The technique may be useful in along or complicated Bill. The Office of Parliamentary Counsel in theAustralian Commonwealth is one such jurisdiction. Appendix IIcontains two illustrations.

There have also been a few attempts to provide readers withflow charts in Acts. This technique is particularly helpful in an Actwhere a complicated procedure is described. The flow chart acts as aquick reference summary. Drafters often prepare flow charts for theirown use; the device helps them to understand a process before theyattempt to draft the prose that describes it. The reader would benefitin the same way from this aid. A Canadian example of a flow chart iscontained in Appendix III.

33 This was a recommendation of the Law Reform Commission of Canada(see Law Reform Commission of Canada, DRAFTING LAWS IN FRENCH, 69) and ofthe Law Reform Commission of Victoria (see Law Reform Commission ofVictoria, ACCESS TO THE LAW, 13).

34 Thornton, Plain Language and Statute Law, 184; Law ReformCommission of Canada, DRAFTING LAWS iN FRENCH, 69.

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SENTENCE STRUCTURE

The length and complexity of many legislative sentencesprovides an unnecessary challenge to the reader.35 Legislativesentences are long because they contain too many ideas in too manyclauses and phrases for a reader to absorb in one reading. Awkwardsyntactic arrangement of these clauses and phrases within thesentences contributes to comprehension problems.

Sentence length

A story is told of a businessman who was charged with violatinga complicated regulation that set ceiling prices on the articles he sold.It became clear in court that the businessman was not particularlyfamiliar with the regulation. The judge asked him whether he hadever read it. The businessman replied indignantly, "Read it, Judge?I can't even lift it!"36

Drafters alone cannot be held accountable for the length of anAct or its weight. The length is often determined by the policy putbefore the drafter by the government. But the drafter can control thelength of each sentence used to produce the text of a statute.

Over a hundred years ago Jeremy Bentham observed that it wasdifficult for the mind to retain long, unedited material. Long beforeempirical research made the same point, Bentham identified"longwindedness" as one of the imperfections of statute law in hisday. He described the mind's difficult task in confronting aninordinately lengthy text:

[T]o comprehend in a complete and correct manner any one part, themind finds itself under the necessity of retaining within its grasp thewhole [and] is drawn out to such length as to be liable to overpowerthe retentive faculty of the mind on which the obligation of takingcognizance of it is imposed.37

He noted that each legislative sentence of his day could make asmall book and challenged drafters to help the reader by breaking upthe text into more digestible chunks:

35 Writers have recognized that long sentences in legislation present aconsiderable obstacle to understanding. See Thornton, LEGISLATIVE DRAFTING, vii& 61; Law Reform Commission of Victoria, PLAIN LANGUAGE AND THE LAW,

Report 21; The Preparation of Legislation (Renton), 64.36 Dickerson, How to Write A Law, 22-23.37 Bentham, Nomography, 240.

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Pitching blocks are erected in London, for porters with their loads:when will English legislators take equal care for the relief of theminds of those who study their labours?38

"[T]he shorter the sentence," he said, "the better". The shorterthe sentence, the clearer it is to the eyes of the reader; the shorter thesentence the clearer it is to the eyes of the judge.

Every modem authority on legislative drafting condemns longand complicated sentences even if they are accurate and grammatical.Elmer Driedger found long sentences a major defect of statute law:

My main criticism of common law legislation is that sentences aretoo long. This is a characteristic of English writing generally and notjust of legislation. It seems to be thought to be a great intellectualachievement to write one sentence consisting of three or more mainclauses, each modified by as many subordinate clauses as can beworked in grammatically. Much of our common law legislationwould be better if sentences were shorter and there were moresections and subsections. 39

Driedger also described the devastating psychological effect oflong sentences on the reader:

There is nothing so discouraging as a long block of solid type. A pageof unbroken type is enough to weary and challenge even the most astuteminds. Ten to fifteen lines of solid type are usually quite enough;anything from fifteen to twenty-five lines should be re-examined;and anything over twenty-five lines should be broken up.4 0

It is very difficult for the average reader to hold more than afew ideas at a time in short term memory. After two or three ideas,the reader needs to pause and put together what he or she has read.The period at the end of a sentence is one signal for such a pause.When there are no periods in a long string of thoughts, the readerwill try to break up the thoughts into smaller pieces in order tounderstand them. Sometimes the reader does not know where to pauseor which ideas to group together and gets lost.4 1 It is the drafter's jobto "shake out" ideas for the reader into conceptual bites.42

38 Bentham, Nomography, quoted in Law Reform Commission of Victoria,Access to the Law, 50.

39 Driedger, MANUAL, 556-57.40 Driedger, MANUAL, 562.41 Charrow, CLEAR & EFFECTIVE LEGAL WRITING, 96-97; Law Reform

Commission of Victoria, PLAIN ENGLISH AND THE LAW, APPENDIX 1, 33. There isno ideal number of words for a legislative sentence. Most plain languageguidebooks suggest sentences of fifteen to thirty words. That may or may not bea reasonable guide for a legislative sentence. What counts is not so much thenumber of words in a sentence, but how easily we get from beginning to endwhile understanding everything in between.

42 1 am grateful to Arthur Stone, former Chief Legislative Counsel, Ontario,for this metaphor. Interview, June, 1990.

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Although long sentences are universally condemned, it is stillpossible to find sentences in legislation with more than two orthree hundred words. Section 9 of the Workers' Compensation Act(Nova Scotia) is one such example of over two hundred words:

9.(1) Where, in any industry to which this Part applies, personalinjury by accident arising out of and in the course of employment iscaused to a worker, compensation as hereinafter provided shall bepaid to such worker, or his dependants, as the case may be, exceptwhere the injury

(a) does not disable the worker for a period of at least threedays from earning full wages at the work at which he wasemployed, provided however that where a personal injury byaccident results in a permanent partial disability to the worker,the Board may pay compensation notwithstanding that suchpersonal injury does not disable the worker for a period ofthree days from earning full wages at the work at which hewas employed, the amount of such compensation to be in thediscretion of the Board; or

(b) is attributable solely to the serious and wilful misconductof the worker, unless the injury results in death or serious andpermanent disablement.43

I break it up here into more manageable chunks:

9. (1) Compensation under this Act must be paid to a workeror to his or her dependants if, in any industry to which thisPart applies, personal injury by accident arising out of andin the course of employment is caused to the worker.

(2) Compensation must be paid only if the injury disablesthe worker for a period of at least three days from earningfull wages at the work at which he or she was employed.

(3) If the injury does not disable the worker for a period ofthree days but results in a permanent partial disability, theBoard may still pay compensation in an amount of itschoosing.

(4) Compensation must not be paid if the injury isattributable solely to the serious and wilful misconduct ofthe worker unless the injury results in death or serious andpermanent disablement.

A subject-verb-object sentence is best

In English, normal word order is subject-verb-object. The closerthese three elements are to each other, the easier a sentence is tounderstand the first time it is read. Drafters are taught to putadverbial modifiers as close as possible to the words that theymodify. It is a good rule because it avoids ambiguities like this one:

43 R.S.N.S. 1989, c. 508, s. 9.

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The defendant was arrested for fornicating under a little-usedstatute.

44

Putting the adverbial phrase "under a little-used statute" closeto the verb it modifies solves the problem:

The defendant was arrested, under a little-used statute, forfornicating.

There are circumstances when the drafter must use thistechnique to avoid ambiguity. But the technique has now become ahard and fast rule that distinguishes legislative writing from normalEnglish writing. Sometimes these additions, exceptions or pieces ofincidental material disrupt the logical flow of the sentences and makeit difficult for readers to understand what is meant.45 The drafter'scustom of "nesting" clauses within clauses forces the brain to keeptrack of the initial part of the construction until the nested item hasbeen absorbed and the balance of the construction is revealed. 4 6 If inwriting a sentence you delay or muddy the subject-verb-objectconnection, your reader may have to hesitate, backtrack and rereadlooking for the connection.

Put the central idea first

To provide a context for readers, the central idea of a sentenceshould be introduced early in a sentence, not buried in a morass ofdetail. 47 Unfortunately, this is not the principle by which mostdrafters are taught to construct a legislative sentence. In fact they areinstructed to do quite the opposite - list the circumstance orconditions or qualifications first, and then the general rule last.

44 I found this example among the student handouts from the LegislativeDrafting Programme, University of Ottawa, 1981-82.

45 Charrow, CLEAR & EFFECTIVE LEGAL WRITING, 100.46 P.K. Saha, A MODERN VIEW OF LANGUAGE quoted in Friedland, ACCESS

TO THE LAW, 69.47 This principle reflects the natural grammatical structure of English as a

language. Most languages of the world state the main point first, and then therestrictions and qualifications. They are called "right-branching" because thegraph that describes their parsing branches to the right. Japanese and Turkish, incontrast, are left-branching; they state their qualifications first. Neither of theseis necessarily better as a structure than the other but if you have grownaccustomed to processing language in a right-branching fashion, you will findyour comprehension retarded by left-branching constructions. Once the readerpenetrates the structure - that the qualifications and restrictions come first, theaction last - it is not too difficult to reconstruct a sentence in mind. Thequestion is whether you should expect that from the reader. See P.A. Kolers,Readability, in Friedland, ACCESS TO THE LAW, Appendix 7, 136.

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The traditional approach to the construction of a legislativesentence has its roots in a paper written by George Coode in 1843.Coode broke down the legislative sentence into four components -

case, conditions, legal subject, and legal action. He suggested that ifthe law is intended to operate only in certain circumstances, thosecircumstances should be described before any other part of theenactment is expressed. This direction has been followed faithfullyby generations of legislative drafters ever since.48

The main principle in subsection 29(2) of the CanadianInternational Trade Tribunal Act is the power of the tribunal toextend the period within which it must prepare a report. That centralidea has been placed after the list of circumstances under which anextension may be made. The list of circumstances comprises overfifty words, requiring readers to absorb a great deal of informationbefore they get to the point of the provision:

(2) Where, in the opinion of the Tribunal, the period referred toin subsection (1) should be extended for any reason including,without limiting the generality of the foregoing,

(a) the complexity or novelty of the issues presented by theinquiry,

(b) the variety of goods or number of persons involved in theinquiry,

(c) the difficulty of obtaining satisfactory evidence in theinquiry, or

(d) the reference, pursuant to subsection 27(3), of any othermatter for examination in the inquiry,

the Tribunal may extend that period by not more than ninety daysand, where it does so extend the period, it shall so notify thecomplainant and each other interested party forthwith in writing.49

When the main principle is placed first in the sentence, thereader learns immediately about the Tribunal's power of extensionand can then put that knowledge in context by reading about thecircumstances:

(2) The Tribunal may extend the period referred to insubsection (1) by not more than ninety days if, in theopinion of the Tribunal, the extension is justified for anyreason including,

48 G. Coode, Coode on Legislative Expression, published in Driedger, THE

COMPOSITION OF LEGISLATION, Appendix I. Garth Thornton notes that "Coode'swork remains of value for its care for the structure of the sentence, its attentionto the core of the sentence (the subject-verb, or subject-predicate relationship)and finally for Coode's emphasis on the arrangement of the modifying clauses inthe best position. His suggested order is still worth keeping in mind and applyingwith discretion." Thornton, LEGISLATIVE DRAFTING, 24.

49 R.S.C. 1985 (4th Supp.), c. 47, s. 29(2) (emphasis added).

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(a) the complexity or novelty of the issues presented by theinquiry,

(b) the variety of goods or number of persons involved inthe inquiry,

(c) the difficulty of obtaining satisfactory evidence in theinquiry, or

(d) the reference, pursuant to subsection 27(3), of any othermatter for examination in the inquiry,

(3) The Tribunal shall notify the complainant and each otherinterested party in writing and as soon as practicable of anyextension.

Subsection 17(4) of the Narcotics Control Act 5o deals with theplight of the owner or occupant of a vehicle that was forfeited to theCrown for a narcotics offence. If the owner or occupant is innocent ofany wrongdoing, he or she may apply to the court for a ruling abouthis or her interest in the vehicle. In this provision, the main idea hasbeen left to the end of a sentence of more than one hundred words:

(4) Where, on the hearing of an application made undersubsection (I), it is made to appear to-the satisfaction of the judge

(a) that the applicant is innocent of any complicity in theoffence that resulted in the forfeiture and of any collusion inrelation to that offence with the person who was convictedthereof, and

(b) that the applicant exercised, with respect to the personpermitted to obtain possession of the conveyance, allreasonable care in order to be satisfied that the conveyancewas not likely to be used in connection with the commission ofan unlawful act or, in the case of a mortgagee or lienholder,that the applicant exercised, with respect to the mortgagor orlien-giver, all reasonable care in order to be so satisfied,

the applicant is entitled to an order declaring that the interest is notaffected by the foifeiture and declaring the nature and extent of theinterest.

5'

This is the provision rewritten with the main idea first:

(4) The applicant is entitled to an order declaring that his or herinterest is not affected by the forfeiture and declaring thenature and the extent of the interest if, on hearing theapplication, the judge is satisfied

(a) that the applicant is innocent of any complicity in theoffence that resulted in the forfeiture and of any collusion in

50 R.S.C. 1985, c. N-1.51 This example was taken from Law Reform Commission of Canada,

DRAFTING LAWS IN FRENCH, 86. Narcotic Control Act, R.S.C. 1985, c. N-1, s.17(4) (emphasis added).

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relation to that offence with the person who is convicted ofit, and

(b) that the applicant exercised, with respect to the personpermitted to obtain possession of the conveyance, allreasonable care in order to be satisfied that the conveyancewas not likely to be used in connection with the commissionof an unlawful act or, in the case of a mortgagee or lienholder,that the applicant exercised, with respect to the mortgagoror lien-giver, all reasonable care in order to be so satisfied.

CROSS-REFERENCES

One of the most frustrating experiences for the unwary statutereader is having to deal with the numerous cross-references withwhich drafters dot their work. This Criminal Code example is thekind of provision that drives readers to distraction:

822. (1) Where an appeal is taken under section 813 in respect ofany conviction, acquittal, sentence or order, the provisions ofsections 683 to 689, with the exception of subsections 683(3) and686(5), apply with such modifications as the circumstances require. 52

Drafting authorities are now beginning to see the need to reduceunnecessary cross-references. Elmer Driedger, for one, spoke outagainst their unnecessary use:

In all my drafting experience I have tried to keep to a minimumcross-references to specific sections. Often they are not neededbecause of the principle of interpretation that a statute must be readas a whole. Also, it is very irritating to a reader to be chased all overan Act while reading one section. 53

The use of subject to or notwithstanding or despite isparticularly irksome to readers. These words act as obstacles tounderstanding, making the reader go backwards and forwards throughthe text to see what the exception actually is. If they appear morethan occasionally, it means the overall organization of the text needsto be reconsidered. Ideally, they should not be necessary at all.Driedger objected strongly to their frequent use in statutes:

52 Criminal Code, R.S.C. 1985, c. C-46, s. 822(1).53 Driedger, MANUAL, 5. When ideas are organized logically, there is less

need for cross-referencing. Item 95-1 of Ontario's Drafting Manual notes theconnection between logical structure and cross-references:

The draftsman should begin with the assumption that there will beno initial references or cross-references to provisions in other Acts.Exceptions may then be made when the need is shown....Frequentreferences indicate a need to redesign the structure of the Act.

See also Drafting Style Manual for Acts, Regulations and Orders in Council(Alberta), 23; Law Reform Commission of Canada, DRAFTING LAWS IN FRENCH,69 & 189; Drafting Conventions of the Uniform Law Conference, Guideline 25(reproduced in Appendix I).

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I have found also that in many of the statutes of common lawjurisdictions there are too many sections that are subject to ornotwithstanding some other section. It is very irritating to read, say,section 10 and find in the second line that it is notwithstandingsection 15, but that section in turn is subject to section 6. Statutesshould be written so that they can be read from beginning to endwith minimum interruption. It is, of course, sometimes necessary tohave cross-references of this kind, but in many instances it isunnecessary, or could be made unnecessary by a language linkagebetween sections in a statute. 54

As a starting point, the drafter should try to avoid allcross-references. There is no need for a cross-reference if themeaning of a sentence is clear from the context.

Take, for example, section 21 of the Canadian InternationalTrade Tribunal Act:

21. (1) The Tribunal shall conduct an inquiry under section 18,19 or 20 and shall prepare its report thereon in accordance with theterms of reference therefor established by the Governor in Council orthe Minister, as the case may be.

(2) The Minister shall cause a copy of each report submitted tothe Governor in Council or the Minister pursuant to section 18, 19or 20 to be laid before each House of Parliament on any of the firstfifteen days on which that House is sittifig after the report is sosubmitted.

(3) The Tribunal shall cause notice of the submission of a reportpursuant to section 18, 19 o" 20 to be published in the CanadaGazette.

55

The references to sections 18, 19 and 20 in subsections (2) and(3) are not necessary. It is evident from subsection (1) which reportsare meant.56 In fact, the repetitive words were not considerednecessary in the French version. Subsection (2) simply reads:

(2) Le ministre depose les rapports devant chaque chambre duParlement dans les quinze premiers jours de seance de celle-cisuivant leur transmission leur destinataire.

54 Driedger, MANUAL, 557. See also section 26 of the Drafting Conventions(reproduced in Appendix I). In spite of this convention, the technique is stillwidespread.

55 R.S.C. 1985, (4th Supp.), c. 47, s. 21 (emphasis added).56 If there were more than one report, th6 drafter could distinguish between

one report and another by providing a word label. Driedger used "capture fee"and "maintenance fee" to distinguish between two kinds of fees. See Driedger,MANUAL, 188-89.

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Sometimes a cross-reference can be avoided by communicatingthe concept with words that take the place of the cross-reference. 57

Paragraph 35(l)(a) of the Official Languages Act describes what thefederal government is required to do in the workplace to promote theprinciples of the Act:

35. (1) Every federal institution has the duty to ensure that

(a) within the National Capital Region and in any part or region ofCanada, or in any place outside Canada, that is prescribed, workenvironments of the institution are conducive to the effective use ofboth official languages and accommodate the use of either officiallanguage by its officers and employees. 58

The duty described in paragraph (a) applies "within the NationalCapital Region and in any part or region of Canada, or in any placeoutside Canada, that is prescribed".

Paragraph 35(l)(b) describes the government's responsibility inrelation to both official languages in all the places that were notcovered by paragraph (a). The English version of the legislationdescribes those other places by using a cross-reference - "in allparts or regions of Canada not prescribed for the purpose ofparagraph (a)". The French version of paragraph 35(l)(b) avoids thecross-reference. The francophone drafter assumed that the readerwould have read paragraph 35(1)(a) first and simply wrote "ailleursau Canada" (elsewhere in Canada).

If a cross-reference is considered necessary for precision, thedrafter can help the reader by inserting a few descriptive words withthe reference. These words would give the reader enough informationto understand the provision without having to flip back or forward tothe reference to discover the meaning.59

Paragraph 518(l)(d.1) of the Criminal Code has across-reference to a provision that is found more than three hundredsections away:

(d.l) The justice may receive evidence obtained as a result of aninterception of a private communication....in writing, orally or in the

57 Elmer Driedger preferred a "language connection" to a cross-referencefor contiguous subsections. He called this "horizontal and vertical connection;warps and woofs are needed to weave a sturdy fabric". He noted that the languageconnections allowed the reader to read a statute from beginning to the endsmoothly and without interruption. Driedger, MANUAL, 5.

58 R.S.C. 1985, (4th Supp.), c. 31, s. 35(l)(a).59 This technique was supported by the Renton Committee. See The

Preparation of Legislation (Renton), 67.

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form of a recording and, for the purpose of this section, subsection189(5) does not apply to that evidence. 60

Subsection 189(5) of the Code says that an intercepted privatecommunication cannot be received in evidence unless certainconditions are met: the accused has to be given reasonable notice ofthe intention to present the evidence, a transcript of the privatecommunication or a statement setting out the particulars of theprivate communication, and a statement respecting the time, placeand date of the private communication and the parties. 61

A few descriptive words that give the reader a clue about whatsubsection 189(5) requires but that does not necessarily repeat thewhole provision would give the reader enough information to knowwhat the section is about without having to read it, read the referencedprovision and then reread the first provision filling in the gaps.62

Rewritten, paragraph 518(l)(d.1) of the Code might look like this:

(d.1) The justice may receive evidence obtained as a result of aninterception of a private communication....in writing, orally or in theform of a recording and without the notice or the other informationrequired under subsection 189(5).

If summarizing the material in a cross-reference is not possibleor if adding the summary would make the section unwieldy, theinformation could be added as a footnote to the provision. Thistechnique is particularly useful if the cross-reference refers to aprovision of another Act. The reader's first read through theprovision is interrupted but only to refer to a footnote, not to look forthe text of another statute. This technique was used in Alberta'sproposed Municipal Government Act.63

60 R.S.C. 1985 (1st Supp.), c. 27, s. 84.61 R.S.C. 1985, c. C-46, s. 189(5).62 Manitoba has experimented with this technique by putting these types of

clue words in parentheses right beside the cross-reference. See, for example,ss. 33(2) and 33(4) of The City of Winnipeg Amendment Act, S.M. 1989-90, c. 8.I find this approach difficult for the reader because the reader must absorb theinformation in parentheses and then reread the provision. The information wouldbe better for the reader actually incorporated as ideas in the text. If that is notpossible, the information would be less intrusive as footnotes.

63 Municipal Government in Alberta (Municipal Statutes ReviewCommittee). For example, footnote 53 of the draft Act tells the reader that thereference to s. 233 in the Act relates to the taxation of licensed premiseswherever they are located. In another provision, the Act refers to rules in theLocal Authorities Election Act relating to place of residence. Footnote 72 ofthe draft Act sets out the text of those rules.

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WORDS

Technical terms and terms of art

Every art and science has its own technical terms, designed toexpress certain meanings with the utmost precision. If a writer isaddressing biologists about the study of insects, there would be noproblem in using a term such as lepidopterous larvae even thoughmost other people would not understand the term. The drafter mustuse scientific and technical terms when drafting statutes relating to aparticular branch of knowledge. 64

Law, too, has its own special terms and when occasion requiresthey must be used. The difficulty is distinguishing between the trulytechnical legal term and the term that is used because it always hasbeen.

Robert Benson proposes this test: if the term has anuncontroversial core meaning that could not be conveyed succinctlyin any other way, it is a true term of art. 65 Words that have beensuggested to meet that test are plaintiff, defendant, estoppel, ex parte,res judicata, hearsay, injunction, fee simple, mandamus, easement,tenancy in common, habeas corpus, consideration, domicile,executor, testator and remainderman.66

Drafters must always be prepared to challenge words andexpressions that are considered terms of art. It is easy to fall into thetrap of accepting words as the only way that a particular concept canbe conveyed. Ex parte, for instance, has found a plain Englishequivalent recently in without notice to any party being required. Wemust always challenge a term's use. Here are some terms which werepreviously considered terms of art but have found replacements:

order of replevin interim order for recovery of personalproperty

originating motion applicationoriginating notice notice of applicationstyle of cause title of proceeding

If an expression is considered a legal term of art, and must be used toconvey the most precise meaning, there is a way to help the ordinaryreader understand it. The drafter can use a more familiar expressionin the text and then add the term of art in parentheses. The National

6 Driedger, MANUAL, 1; See also Driedger, Legislative Drafting, 298.65 Benson, Plain English Comes to Court, discussed in Perrin, BETTER

WRITING FOR LAWYERS, 153.66 Driedger, MANUAL, 1.

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Mortgage Association and the Federal House Loan MortgageCorporation of the United States used this imaginative, yet easy,solution for three technical terms:

I waive my right to require the note holder to do certain things.Those things are:

(1) to demand payment of amount due (known as "presentment");(2) to give notice that amounts due have not been paid (known as"notice of dishonour");(3) to obtain an official certificate of non-payment (known as a"protest"). 67

Avoid foreign words

Latin and other foreign words and expressions should be avoided.Many of the Latin phrases commonly used in statutes could bereplaced by English words without loss of precision. 68 There has beena concerted effort in many jurisdictions in Canada to identify andremove many of these Latin terms. For instance, a minor theme inthe 1970 statute revision in Ontario was the replacement of Latinexpressions with English equivalents. 69 The more recent 1980 revisioncarried on that process. But there is still some work left to do.

Appendix IV contains a list of legal Latin words and phrases.Each word or phrase was found in an existing provincial, territorialor federal statute in Canada. The list also offers some Englishequivalents that are at least as precise and far more intelligible toboth lawyers and the general public who rarely now have abackground in Latin.

Avoid legal twins and triplets

Legal twins and triplets are a residue of the way legal languagedeveloped in England. Legal language in England underwent twomajor transitions, from Latin to Law French (11 th century) and fromLaw French to English (early 15th century). During the transitionsextremely cautious lawyers strung legal words that had French orLatin roots together with English words. Some of the words in theseword strings had the same legal meaning as the newer Englishwords. 70 Often one word in the string is sufficient.

67 Eagleson, The Case for Plain Language, 19.63 Driedger, Legislative Drafting, 298.69 Tucker, The Ontario Experience in Statute Revision, 2.70 Gopen, WRITING FROM A LEGAL PERSPECTIVE, 16-17.

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Appendix V is a list of these kinds of law words. Each phrasein the list was found in an existing provincial, territorial or federalstatute in Canada.

Avoid archaic words

Legal writing is notorious for using language that no one elseuses. Words such as hereby, hereinbefore, and thereto do not addprecision to a statute. They just give the statute a legal smell. Theycan usually be replaced with more familiar English words or deletedaltogether.

Legislation at the federal level in Canada is filled with thesearchaic words. For instance, the amending formula, "Section 43 ofthe said Act is repealed and the following substituted therefor:" couldeasily be replaced by, "Section 43 of the Act is repealed and thefollowing substituted." Other jurisdictions, such as Alberta, use anamending formula without the archaic language. The words said andtherefor add nothing. Words like these make the ordinary reader feelas if they have just entered a private club without the proper attire.The first impulse is to leave.

Subsection 21(3) of the Canadian International Trade TribunalAct71 directs the Tribunal to cause notice of the submission of aparticular report to be published in the Canada Gazette. Why notsimply say that the Tribunal must have the notice published in theCanada Gazette? The message can be understood when the wordcause is used but that word gives the text an unnecessarily archaicflavour.

Legislative counsel in some jurisdictions have made an effortto rid the statutes of these Old English and Middle English relics,particularly in revision exercises. Ontario, in its 1980 revision exerciseremoved many of the remaining archaic words in its statutes. TheSaskatchewan and the Alberta drafting manuals direct drafters toavoid using words such as thereto, thereof, said, aforesaid,beforementioned, whatsoever and similar words of reference. 72

However, many of these archaic words remain.

Appendix VI is a list of law words that were ordinary words inthe English of the distant past but now are used only by lawyers.Each of the words was found in an existing provincial, territorial orfederal statute in Canada.

71 R.S.C. 1985 (4th Supp.), c. 47, s. 21.72 Drafting Conventions (Saskatchewan), December, 1988, 49; and

Drafting Style Manual for Acts, Regulations and Orders in Council, 4th ed.(Alberta), 25.

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Avoid unfamiliar or surplus words

Drafters should not use a long or unusual word or phrase if ashorter or more common one will convey the meaning equally well.British Columbia's Drafting Policy Manual recognizes this principlewhen it advises its drafters to use short, familiar words and phrasesthat best express the intended meaning. 73

Drafters should try to use language that people use most ineveryday speech and particularly words learned early in life. Usuallythe results are shorter sentences and more direct and accessible law. 74

If the word tell will do the trick in a particular case instead of informor advise, drafters should use it. Why dredge up the word preparednessto create the Emergency Preparedness Act 75 when Civil EmergenciesAct or Emergency Plans Act would surely strike a more direct chordwith the average reader?

The word where is commonly used in statutes to introducecircumstances in which the law is to apply. Since most drafters learndrafting from reading the examples of others, they have becomeaccustomed to seeing the word where in legislation. The word if isvery often a better word because that word is used to introduce acondition in everyday speech. 76 Wherever the word if would be usedin normal speech, it should also be used in statute writing.

The word shall has traditionally been used in law to create alegal obligation. It is no longer used in this sense in everydayEnglish. The only people to whom shall means an obligation is thelegal profession. And lawyers had to learn to recognize that use bytraining. Plain language proponents argue that the word must be usedinstead of shall when an obligation is being imposed or mandatoryconduct is prescribed. The word must would produce the same legaleffect using a more current and accessible word. 77

Here are some other words frequently found in legislation withsuggestions for replacements:

73 Drafting Policy Manual, prepared by the Chief Legislative Counsel,Victoria, B.C., September, 1985, s. 45.

74 Dickerson suggests that the drafter use words in senses that involve theminimum semantic readjustment by either the reader or the drafter. See Dickerson,Perspectives on Legislative and Other Legal Drafting, 7.75 S.C. 1988, C. 11.

76 Thornton, LEGISLATIVE DRAFTING, 23.77 See R. Eagleson & M. Asprey, Must we continue with "shall"? (1989),

63 AUSTRALIAN L.J. 75, February 1989. See also 63 AUSTRALIAN L.J. 522-25(1989); 63 AUSTRALIAN L.J. 726-28 (1989); 64 AUSTRALIAN L.J. 168-69 (1990).For an example of legislation that uses must to create an obligation, seeAlberta's proposed Municipal Government Act.

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aggregate totalby means of byby reason of because offor the purpose of to, forfurnish give, provide, tellrespecting relating to, aboutprior to before

Appendix VII contains more examples of these kinds of wordsand phrases.

Choosing more familiar words doesn't mean that the draftermust choose friendly over precise. A word that is too narrow in scopefor a particular purpose or would result in ambiguity in the statutewould not be appropriate under present drafting standards or underthe plain language banner. The word graffiti, for instance, waspresented at a recent drafting seminar as the kind of term that plainlanguage proponents would put forward to deal with certain acts ofvandalism. Although a familiar word, it may not mean the same thingto every reader. If that is the case, it would not be an appropriateword to use or it would need to be defined. Plain language does notmean lowering standards for precision.

DOCUMENT DESIGN78

In addition to the words that they write, drafters must considerthe impact that page layout and typography will have on readers.With good document design, you can invite people to read the textinstead of discouraging them. With good document design, you canmake the information easy to locate so that busy readers spend theirtime understanding the information rather than searching for it. Withgood document design, you can show readers how the text isorganized so that the relationships among the pieces of informationare clear. With wise choices in typography, you can make the texteasy to read. The substance of the law may be difficult to understand;the presentation of the law on the page should not make thatunderstanding still more difficult.

78 This section was written by Dr Janice C. Redish. Dr Redish is aVice-President of the American Institutes for Research in Washington, D.C. andthe former Director of AIR's Document Design Center. She is an internationallyrecognized expert in clear legal writing and in the design of useful documents.The Administrative Conference of the United States, in its Guide to FederalAgency Rulemaking, recommended Dr Redish's work on writing regulations inclear English to all regulatory writers. (A Guide to Federal Agency Rulemaking,1983, 204.)

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MAKE THE PAGE INVITING TO READ

The issue of inviting people to read should not be dismissed astrivial. When faced with a page of dense, solid type, the reader's firstimpulse is to turn the page or close the book. The mental effort thatreaders have to spend keeping their place on the page and sloggingthrough the density reduces the mental effort they can spend makingsense of the words.

White space

Blank space on the page is not wasted space. It can actuallyhelp readers to find what they need and to see the relationshipsamong the parts of the text.

Compare these two passages. Which would you rather workwith?79

The Lieutenant Governor in Council may, by regulation, (a) combinetwo land titles divisions into one land titles division; (b) divide aland titles division into two or more land titles divisions; (c) annex apart of a land titles division to an adjoining land titles division; (d)designate the names by which land titles divisions shall be known;(e) provide for the transfer of records and documents relating to landin a land titles division that is combined, divided or in part annexedby a regulation under clause (a), (b) or (c).

The Lieutenant Governor in Council may by regulation,

(a) combine two land titles divisions into one land titles division;

(b) divide a land titles division into two or more land titles divisions;

(c) annex a part of a land titles division to an adjoining land titlesdivision;

(d) designate the names by which land titles divisions shall beknown;

(e) provide for the transfer of records and documents relating to landin a land titles division that is combined, divided or in part annexedby a regulation under clause (a), (b) or (c).

White space between pieces of text helps to make the piecesobvious. Keeping each paragraph short promotes ease of reading andputs valuable white space on the page. Lists are an excellent way ofmaking provisions clear, easy to locate when reviewing the text, andeasy for readers to remember.

79 Land Titles Act, R.S.O. 1980, c. 230, s. 4(1). The original uses the listformat.

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Line length

Long lines of type are difficult to follow and tiring on the eyes.A reasonable line length is between fifty and seventy charactersof type for a page with one column of text, and about thirty-fivecharacters of type for each column on a page with two columns of text.Most legislation in Canada is printed with a reasonable line length.

MAKE THE INFORMATION EASY TO LOCATE

Consider how people read and use statutes. Many readers willfirst scan the statute. If it is an amending statute or one for whichthey are primarily interested in certain provisions, they will look firstfor the amendments or the specific provisions that interest them.Even those who read the entire statute carefully at a first sitting arelikely to return to it later with an interest in one particular part. Theymay want to check a provision or to find the answer to a specificquestion. Over time, a statute is likely to be used more often forreference, by people who are looking for specific information, thanit is to be read from beginning to end.

The time that people spend looking for the right statute and theright place in the statute is unproductive. Yet, if they give up lookingbecause they cannot find what they need, the effort that has beenspent to make the words understandable has been wasted.

Headings, headnotes and marginal notes

Headings, headnotes and marginal notes can all help readersfind specific text. They also serve a second purpose: helping readersto understand the way the text is organized. In Canadian statutes,headings, headnotes and marginal notes are used in the following ways.

A heading describes one part of a statute. It is usually centredabove the text on a line by itself. The same format is sometimes alsoused to describe subparts, to cover a group of sections within a part.

A headnote describes a numbered section. It is usually inboldface type, as large or larger than the text, and on a line by itself.

Marginal notes are sometimes used only at the section level andsometimes for each section and subsection. They are usually smallerthan the text type and in the margin on the same lines as the text. Astatute usually has either headnotes or marginal notes, but not both.

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Here are examples of a heading, a marginal note, and aheadnote: 80

Heading PART I

UNFAIR PRACTICES

Marginal note Unfair 3. (1) It is an unfair practice topractice, do or say anything if, as ageneral result, a consumer mightrules reasonably be deceived or

misled.

Headnote Corporation established

2. (1) There is hereby established acorporation to be known as theBritish Columbia HazardousCorporation....

Creating a table of contents. The headings and headnotes, or theheadings and the first marginal note of each section, become the tableof contents of the statute. Tables of contents are becoming morefrequent in Canadian statutes. When it comes at the front of a statute,a table of contents can be extremely useful to readers. Readers usetables of contents both to become familiar with the contents of adocument and to locate specific information without reading theentire document.

Collecting the headings and headnotes (or section-level marginalnotes) into a table of contents also helps the drafter. As the DraftingConventions of The Uniform Law Conference of Canada point out:

A table of contents is useful for the drafter as well as for the reader,since its preparation requires a further review of the Act's basicstructure and exposes any flaws in its logical organization.8'

With modem word processing software, collecting the headings,headnotes and marginal notes into a table of contents is easy. Youcan even use the "table of contents" feature of the word processingsoftware to look at the organization of working drafts. By reviewingthe table of contents while working on early drafts, you can see ifinformation is out of order, missing or redundant.

80 The heading and the marginal note are from the Consultation Draft ofthe Consumer and Business Practices Code (Ontario). The headnote is fromBritish Columbia's Hazardous Waste Management Corporation Act, S.B.C.1990, c. 19.

81 Drafting Conventions of The Uniform Law Conference of Canada(included as Appendix I), note at 16(2).

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Ottawa Law Review ! Revue de droit d'Ottawa

If the drafter has organized the statute into parts, subparts andsections, all of these levels should appear in the table of contents. Tobe most useful to readers, the table of contents should also reflect theformat of the headings and headnotes, so that the hierarchy is obvious.

Considering the importance of consistency. At present, the use ofheadings, headnotes and marginal notes varies widely amongjurisdictions in Canada. A brief review of statutes from the federalgovernment and from the different provincial governments revealsstatutes

" with and without tables of contents" with headnotes and no marginal notes* with marginal notes and no headnotes* with one marginal note for each section; with many marginal

notes for each section

Readers approach documents with expectations that they havebuilt from earlier experiences with similar documents. They getconfused by inconsistencies in organization, style and format just asthey do by inconsistencies in content.

The Drafting Conventions of The Uniform Law Conference ofCanada recognize the importance of consistency for readers and fordrafters. The current conventions, however, cover primarily issues oforganization and style. They do not cover many important formatissues, including headings, headnotes and marginal notes. Perhapsthey should.

Making headings, headnotes, and marginal notes stand out. To beuseful, headings, headnotes and marginal notes must be easy for readers

* to distinguish from the text" to see in a quick glance at the page

For headings: headings are usually centred over the body of thetext. They are distinguished from the text either by being in allcapital letters or in boldface. To make them easy to see, they shouldbe surrounded by white space. To make it clear that the heading goeswith the text that follows, there should be more white space betweenthe previous text and the heading than between the heading and thetext that it covers. 82

82 Consultation Draft of the Consumer and Business Practices Code(Ontario). The original is close to the "better" style.

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Poor:(d) services respecting the goods in clauses (a), (b), and (c).

PART IUNFAIR PRACTICES

3.-(1) It is unfair practice to do or say anything

Better:(d) services respecting the goods in clauses (a), (b), and (c).

PART IUNFAIR PRACTICES

3.-(I) It is unfair practice to do or say anything

For headnotes: headnotes are usually in boldface, at the leftmargin, and above the text. Boldface is better than all capitals forheadnotes because the headnote may have to be fairly long to beuseful. Research has shown that all capitals take up to 30% morespace on the page than the same text in lowercase letters. They alsoslow readers down by 13% to 19%.83 Boldface is also more obviouson the page than italics, as you can see in this example: 84

Application3 (1) This act applies

(a) when a supplier, agent or financial planner is a resident ofAlberta regardless of the residence of the consumer,

Application3 (1) This act applies

(a) when a supplier, agent or financial planner is a resident ofAlberta regardless of the residence of the consumer,

As with headings, there should be more space between theprevious text and the headnote than between the headnote and the textthat follows it. Furthermore, readers expect that headings and headnoteswill be in a type size that is at least as large as the main text.

Headnotes in boldface and a larger type size will be morenoticeable on the page than the typical marginal note. Therefore,

83 See Rehe, TYPOGRAPHY: HOW TO MAKE IT MOST LEGIBLE, 35-36.84 Financial Consumers Act, S.A. 1990, c. F-9.5, s. 3(l)(a). The original is

in boldface.

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headnotes are probably better than marginal notes when there is onlyone note for a section and only one column of text on the page.

For marginal notes: marginal notes are usually entirely in themargin and in a smaller type size than the main text. The smaller sizeis necessary to fit the note in the margin next to the relevant text.(For more on an appropriate type size for marginal notes, see thesection on "Type size".)

An important issue for drafters to consider is whether to haveonly one marginal note (or headnote) for each section or to havemarginal notes throughout the section. The advantage of having onlyone for a section is that coming up with a headnote that covers theentire section forces drafters to consider the unity of the section. Astatute with only one headnote or marginal note for a section is likelyto have fewer subsections in each section, and, therefore, more butsmaller sections. Breaking the statute into smaller sections, with eachsection note as an entry in the table of contents, makes the statuteeasier for readers to understand and use.

Numbering systems

Canadian statutes generally use some type of numbering orlettering system that allows each piece of text to be referred toindependently. Numbering or lettering each piece of the text isanother way to help readers locate information quickly and see wherethey are in a text.

Avoiding excessive subdivision. The Drafting Conventions of TheUniform Law Conference of Canada give a numbering and letteringscheme that allows four levels below the section. Thus, a portionof the text might be l(2)(a)(iii)(C). The Conventions caution,however, that:

Excessive subdivision into clauses, subclauses, and paragraphsshould be avoided, as it makes the text harder to understand. 85

Most readers have difficulty understanding even the reference totext that is more than two or three levels down in the hierarchy. AsReed Dickerson, the late Professor of Legal Drafting at IndianaUniversity School of Law, wrote:

Compound numbers with three or four number-units can producehighly formidable references....It is far preferable....to develop more

85 Drafting Conventions of The Uniform Law Conference of Canada(included as Appendix I), note at 4(6).

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and shorter sections, preferably short enough not to require a highdegree of internal proliferation. 86

Making the numbers easy to see. To be useful to readers who areskimming a text, looking for a particular section or subsection, thenumbering system has to stand out on the page. If you put thenumber by itself in white space and indent the piece of text that thenumber refers to, you can help readers both to find the number whenthey are skimming and to ignore it when they are reading. Comparethese two examples: 87

20. (1) Any thing seized pursuant to section 19, except recordings asdefined in sub-section 28(1), shall, unless

(a) the owner thereof or a person who appears on reasonable grounds tobe en-titled thereto consents otherwise in writing, or

20. (1) Any thing seized pursuant to section 19, except recordings asdefined in subsection 28(1), shall, unless

(a) the owner thereof or a person who appears on reasonablegrounds to be entitled thereto consents otherwise inwriting, or

Boldface works well to indicate where each section begins.Using boldface for every level of the numbering system, however,might be overwhelming. Just as italics are a weak way to indicateheadings, they add nothing to a numbering system. Setting the lowerlevels of the numbering system out by themselves in white space isprobably more useful to readers than either boldface or italic.However, these are areas where experimentation and trials withactual readers would resolve issues on which there is as yet noresearch.

Running heads and feet

One issue in making information easy to find is helping readersknow if they are in the correct statute and in the correct place in thatstatute. Running heads, that is, information at the top of each page,and running feet, information at the bottom of each page, can serveboth these needs. A useful running head might include

* the chapter number and title, which let readers know if theyare in the correct statute

86 Dickerson, THE FUNDAMENTALS OF LEGAL DRAFTING, 193.87 Transportation Accident Investigation and Safety Board Act, S.C. 1989,

c. 3, s. 20.

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* the section number, which lets readers know where they arewithin the statute.

If the statute has a table of contents that gives section numbersand not page numbers for each entry, readers will thumb quicklythrough the pages looking for the section numbers. The sectionnumbers should definitely be in the running head, and they should bein the most conspicuous place in the running head, that is, at theouter edge of each page.

An example from a bilingual statute, with the languages onopposite pages, might look like this:

i Sec. # Chap. # English Title i Titre en franqais No du chap. No de I'art

The page number might best go in a running foot, centred at thebottom of the page.

Avoiding the binding. Designers have to consider how the materialwill be bound when planning running heads and feet. If theinformation gets too close to the inner edge of the pages, it may belost in the binding or be difficult to read without breaking the spineof the book.

Abbreviating in a running head. Information in a running headoften must be abbreviated to fit. Consider, however, how easilynon-legal readers will understand the abbreviation. For example, thelonger abbreviation "Chap." or "chap." may be easier fornon-specialists to grasp quickly than the shorter "C." or "ch."

MAKE THE TEXT EASY TO READ

Issues such as these become important in making the text easyto read:

" choosing a readable style of type* choosing an appropriate size for the type* deciding how to mark defined words" deciding how to show amendments* leaving the right margin ragged

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Type style

Type comes in two basic styles: with and without serifs. Seriftype has extenders on the heads and feet of the letters. Sans-seriftype has no extenders. 88

T serifs T no serifs

Choosing between serif and sans-serif type. Serif type hastraditionally been the choice for formal documents and books.Because the serifs on the feet help draw the reader's eye across thepage, serif type has generally been considered easier to read for longpassages and long lines in typeset material. However, if thereproduction of the page is not crisp, the serifs can contribute toblurry letters that are more difficult to distinguish than sans-serifletters.

In modern documents, designers often choose sans-serif typebecause it gives a very clean, sharp appearance. Consider thelegibility and readability of these two samples of a paragraph fromthe proposed Alberta Municipal Government Act. The first is in aserif typeface. The second is in the sans-serif typeface used for theactual document. 89

Serif:

The purpose of this Sub Part is to provide ways of altering theboundaries of municipalities to ensure efficient and effective longrange planning and responsive and accountable municipal government.

Sans-serif:The purpose of this Sub Part is to provide ways of altering theboundaries of municipalities to ensure efficient and effectivelong range planning and responsive and accountable municipalgovernment.

Designers may mix serif and sans-serif, putting the main text inserif and the headings, headnotes and marginal notes in sans-serif.Sans-serif type also works well in tables and charts. Because tablesand charts are often in a smaller type size than the main text, theletters in tables and charts may be more subject to blurring in

88 The French term, sans serif, is also the technically correct term inEnglish.

89 Municipal Government in Alberta (Municipal Statutes ReviewCommittee), 41.

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reproduction. Furthermore, the pieces of text in a table or chart areusually short and often meant to be read down a column rather thanacross the page. The value of serifs in drawing the reader's eyeacross the page is less relevant in a table or chart than in regular text.

Choosing from among many serif or sans-serif typefaces. Evenwithin each of the two basic type styles, document designers havehundreds of typefaces to choose from. These vary in how the lettersare formed, in how thick the serifs are, and in the openness of theletters, among other features. Look at how the letters in the words ofthis example are formed in two different serif typefaces. The firstline is in Times Roman; the second in Courier.

world pageworld page

Other features of typography, such as kerning (the spacingbetween the letters across the line of type), can be controlled intypesetting and even in many desktop publishing software programs.Having a specialist in typography help plan the standards forpublishing statutes would be an excellent idea. The government ofNew South Wales in Australia has recently begun a project with alocal design firm to develop new specifications for the page layoutand typography for statutes. The purpose of the project is to make thesections and subsections more obvious and to make the typographyeasier to read.90

Type size

Putting the text in a type size that is easy to read is alsoimportant. Type size is measured in points, and a point is 1/72nd ofan inch. A 36-point letter is 1/2 inch high. Research from typesetmaterials a few decades ago indicated that type from 9 to 12 points ismost legible for text.91

Point size and appearance on the page. The appearance of type onthe page depends, however, on more than the nominal point size.Although two different typefaces in the same point size will take upthe same vertical space, they may actually take up different amountsof horizontal space and look very different on the page. Compare thesame words in two different typefaces. The first line is in TimesRoman, the second in Helvetica. Both are in 11 point type.

tax provisionstax provisions

90 Robert Eagleson, personal communication, December 1991.91 Tinker, BASES FOR EFFECTIVE READING.

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The Helvetica type looks larger and takes up more space on thepage. To be as readable as the Helvetica type, the Times Roman typeshould be in a larger point size.

Type size with desktop publishing. The old research cited heredealing with type size and legibility was based on typeset materials.The resolution of type from laser jet printers is not nearly as fine asfrom old type set in cold metal. Document designers today often findthat to get legible type when working with desktop publishingsoftware, they must choose 12 to 14 point type for the main text.

Concern for specific audiences may also lead to differentchoices of type size. Visual acuity declines with age. Materials forolder audiences need to be in larger type.

Type size for marginal notes. If marginal notes are being used, theyhave to be considered when planning type sizes. Notes are usually ina smaller size than the text for two reasons: the difference in typesize makes the notes clearly different from the text, and the noteshave to fit in the margin and yet be long enough to be informative.

The type size for marginal notes, however, cannot be so smallthat the notes become difficult to read. To be readable, the marginalnotes probably need to be at least 9 point. A two point differencebetween the text type and the type in the notes is probably best fordistinguishing the two. The text type, therefore, would have to be in11 point type. If the difference between the notes and the text getstoo large (four points or more), the page will look very unappealingand the notes may be difficult to find and read, as in this example: 92

Remuneration 11 (1) Members of development commissionsfor agencymembers established or continued pursuant to this Act,

including interim commissions, are entitled to:

(a) remuneration at the rates determined by theLieutenant Governor in Council; and

Cost considerations. Of course, there is a trade-off between cost andmany of the issues in document design. Larger type size, white spaceon the page and other features add length to a document. More pagescost more to print. These extra expenses, however, may be more thanbalanced by potential savings from these features. Some of thesavings come directly to the reader. If the relevant information iseasy to find and understand, the busy reader saves time and thereforemoney. Some of the savings come to the agency that administers thestatute. If those who must follow the statute can find and understand

92 The Agri-Food Act, S.S. 1990-91, c. A-15.2, s. 1 l(1)(a).

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what they need, the agency is likely to have fewer inquiries. Ifstatutes are readable and clear, voluntary compliance with them islikely to increase, reducing the need and costs for secondaryinformation and for enforcement. In balancing readability against costand page count, remember that dense pages and small type are likelyto keep many people who should read the statute from even trying todo so.

Defined words

Another issue is how to handle words that have a specificmeaning in the text and that are defined in a separate section. Shouldthey be singled out by a change in type every time they occur in thetext? No consensus exists on this issue.

The argument for changing type is that readers need to knowthat the word has a specific meaning in the context of the statute.The change in type is a reminder that the reader must turn to thedefinition section of the statute.

The argument against changing type is that frequent shifts intype within the text are extremely distracting and irritating to readers.If readers find the changes so annoying that they do not read the textor lose their concentration on the meaning, the changes may do moreharm than good.

For readers, the best choice would be to have no speciallydefined words, so that this issue would be moot. If defined wordsmust be marked within the text, however, consider the impact thatdifferent changes will have on readers.

Using all capital letters for defined words would make themseem more important than any of the surrounding text, which isseldom the case. The Canadian Standards Association uses boldfacein their publications. If there are many instances of defined words ona page, however, readers may be overwhelmed by the amount ofboldface type on the page. If boldface type is being used for headingsand section numbers, using it for defined words too may make itdifficult for readers to find the headings and section numbers easily.

Italic type may be the best choice if defined words must bespecially marked. Italic type is less obtrusive within the text thancapitalization or boldface.

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Amendments

Another issue to consider is whether to change type to signalother differences in the text. For example, in an amending statute,many readers will be primarily interested in the amendments. Makingthe amendments stand out from the rest of the text would bebeneficial to these readers. Two questions need to be addressed here:what should be highlighted, and how should it be highlighted?

What should be highlighted? What information about theamendment is most critical to readers? Is it the statement thatsomething has been changed or the changed text itself? If the entiresection about the amendment is in boldface, as in the example on theleft below, nothing within the section stands out.93 Highlighting onlycritical information might produce a section like the example on theright below:

1. Section 10 of An Act to 1. Section 10 of An Act toprovide for the appointment of a provide for the appointment of aPort Warden for the Harbour of Port Warden for the Harbour ofQuebec is amended by deleting Quebec is amended by deletingtherefrom the words ",who shall therefrom the words ",who shalleach be entitled to a fee not each be entitled to a fee notexceeding five dollars,". exceeding five dollars,".

If the introduction to an amended section is in boldface, but thetext itself is not, only the introduction stands out, as in this example. 94

3. Section 27 of the said Act is repealed and the followingsubstituted therefor:

27. (1) The board of directors of the Board of Trade and Industry ofthe Metropolitan....

How should amendments be highlighted? The dilemma we facewith this longer example is that, while it may be more logical tohighlight the amended text than the introduction, the highlightingtechniques that work well for short pieces of text do not work forlong passages. When the amended text is short, as in the firstexample, boldface works well as the highlighting technique. However,long passages in boldface, italic, or all capitals are difficult to read.The best way to make amendments obvious to readers may be tochange the size of the type, using larger type for the amended sections.

93 An Act to Amend An Act to Provide for the Appointment of a PortWarden for the Harbour of Quebec, S.C. 1991, c. 32, s. 1. The example on theleft is the original.

94 S.C. 1991, c. 32, s. 3.

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Ragged-right margin

Desktop publishing software has created a new problem fordrafters who are used to seeing text that is aligned vertically alongboth the left and right margins of a paragraph. The problem is withthe right margin, not the left. Readers, in both English and French,expect that all but the first line of a paragraph of text will begin atthe same place on the line. On the right, however, readers know thetext can be either justified (lined up) or ragged (each line ending atthe last word).

Ragged-right text is easier to read, particularly when the lines oftext are long. With justified type, readers often have trouble movingfrom line to line. They skip lines or read the same line twice. Withragged-right text, each portion of text has a shape that helps readersmove from line to line.

Justified text also often requires extensive hyphenation, whichcreates problems in computerized typesetting. The rules forhyphenating English words are so difficult that no one has created acomputer program that does it correctly every time. A human copyeditor must still go over every document in which hyphenation hasbeen allowed.

Justifying the lines of type requires spreading the text out to fillup the line. The serious new problem is that some desktop publishingprograms and printers cannot spread the text evenly within the words,but can only justify by adding extra spaces between the words. The"rivers of white" that are created within a paragraph by this methodare extremely distracting to readers. Our eyes focus on the whitespace rather than on the words, as in this example: 95

WHEREAS Manitoba law recognizes the right of every competentperson to consent, refuse to consent or withdraw consent to his or herhealth care;

AND WHEREAS this right should also be respectedafter individuals are no longer able to participatein their health care decisions;

DEVELOP STANDARDS TO HELP DRAFTERS

Document design standards for legislation would help bothreaders and drafters. Both would benefit from consistency inpresentation, just as they benefit from consistency in content andstyle. Standards are rules for consistency.

95 Bill 16, The Health Care Directives Act (Manitoba), 3d Session, 35thLegislature, 1992.

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Standards should also be rules for good practice. Newtechnologies for drafting and publishing statutes bring newpossibilities, but they are also fraught with dangers. The ease withwhich design elements can be added or changed and the wide rangeof choices available make creating documents ,that overwhelm andhinder readers just as easy as creating documents that help readers.

Getting help from document design experts in developingstandards would ensure standards that promote both consistency andgood practice. Most word processing and desktop publishing softwareallow designers to create style sheets or templates that would make iteasy for drafters to follow the standards.

PLAN THE DESIGN OF MATERIALS THAT ARE REQUIREDBY STATUTE

Good document design is critical not only in the presentation ofthe statutes themselves, but also in materials that are required by thestatute. A case in point are forms that are mandated by statute. If thestatute mandates a form, but no work is done on that form until afterthe law goes into effect, problems may arise in developing a formthat people can understand and use. In the end, a small piece of papercould defeat the entire purpose of a statute.

For example, the federal Contraventions Act 96 provides a ticketprocedure for the prosecution of approximately four thousand minorregulatory offences which are presently prosecuted in expensive andtime-consuming criminal trials. The assumption underlying the Act isthat the violators would accept guilt and pay the ticket rather thanappear in court.

The Contraventions Act ticket is meant to work like a parkingticket. However, the scheme offers at least four different andcomplicated options that will have to be explained on the ticket. Canit be done so that the people who receive the ticket can find, read andunderstand their options?

If people cannot find, read and understand their options on theform, they will not be able to exercise their full rights under the law.If the tickets generate phone calls or letters asking for help inunderstanding them, the statutory goal of reducing time and costs willnot be met. If people choose to come to court rather than pay theticket because they do not understand the ticket, the statutory goal ofreducing the burden on the courts will not be met.

96 S.C. 1992, c. 47 (Royal Assent received on October 15, 1992).

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Planning, designing and writing the ticket at the same time asthe statute would assure having a document that works. Draftersshould at all times be asking themselves, "If these provisions have tobe incorporated into a form, can document designers create a formthat covers the provisions in a format, type size, and wording that thepeople who must use the form will understand? If not, how can wechange the provisions so that document designers can develop a formthat will work?" The only way to tell is to work on the form alongwith the statute, involving experts in forms design in the work andtesting drafts of the form with potential users.

TESTING TO SEE IF PEOPLE UNDERSTAND A STATUTE 97

For people to use a statute, they have to be able to find theinformation they need in it. For people to obey the law, they have tounderstand the information that they find. How can we tell if peopleare going to be able to find what they need and understand what theyfind?

The best way is to have people try to use and read the statutewhile it is being drafted. In other fields, before products anddocuments are released, representatives of the audiences for theproducts or documents try them out. Agencies and companies thatproduce successful products and documents use the test results toimprove their work before it is released.

Surrogate measures, such as readability formulas, are neitheraccurate nor adequate for legal documents like statutes orregulations. 98 Readability formulas, for example, the Flesch ReadingEase Scale or Gunning's FOG index,99 give a numerical score orreading grade level to a document based on measuring only a fewfeatures of style like sentence length and word length. A documentthat scores very poorly on one of these formulas is likely to bedifficult for readers because most documents with extremely longsentences also have many other problems.

The opposite is not true. A document that scores well on one ofthese formulas may still have innumerable problems that the formulasdo not count. A document could score well on a readability formula

97 This section was written by Dr Janice C. Redish. Dr Redish is aVice-President of the American Institutes for Research in Washington, D.C. andthe former Director of AIR's Document Design Center. She is internationallyknown for her expertise in clear legal writing and in evaluation and testing.

98 Redish, Readability, 157-73; Redish, The place of readability formulasin technical communication, 46-52; Duffy, Readability formulas, 113-43.

99 Flesch, THE ART OF READABLE WRITING; Gunning, THE TECHNIQUE OFCLEAR WRITING; Gunning, How To TAKE THE FOG OUT OF WRITING.

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even if it was not in grammatical language, the content wasinappropriate for the readers, the organization was impossible forreaders to use, or specific words were unknown to the specificreaders who have to understand the document. Furthermore, theformulas were developed more than forty years ago to set readinggrade levels for schoolbooks and popular magazines. They havenever been tested with legal documents or Canadian audiences.

To find out if people can use and understand a statute, you haveto test it with people. Four useful testing techniques are

* paraphrasing" thinking aloud* comprehension testing" usability testing

With any of these techniques, the first critical requirement isdefining who should take part in the test. Both legal and non-legalaudiences should be included in each test. In each case, the people inthe test must represent the groups who will have to use the statute.For example, if the law governs the administration of hospitals,hospital administrators as well as their lawyers are the appropriatepeople to take part in the test.

With any of these techniques, the best time to test is while thereis time to change the draft statute. You can test a partial draft anduse what you learn about readers' problems both to revise theexisting draft and to write the rest of the statute. Testing is also anexcellent way to decide among alternative possibilities fororganization, style and design.

Although testing takes time, money and expert help fromevaluation specialists, the costs are far less than the costs of nottesting. Savings from voluntary compliance, fewer calls and lesscorrespondence to regulatory agencies, and reduced need forsecondary explanatory publications far outweigh the costs of testing.

What are each of the four types of testing?

Paraphrasing

In a paraphrase test, members of each audience are asked toread a statute, a sentence at a time. They then restate the sentence intheir own words. The test session is captured on audiotape so that theparaphrases can be analyzed later. By analyzing the paraphrases,language specialists can tell not only what portions of the text weremisunderstood (and by how many people in each audience), they can

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also often explain the source of the misunderstanding. Charrow &Charrow, for example, used this technique to investigate commonproblems in jurors' understanding of jury instructions.100

Thinking aloud

In a think-aloud test, readers who represent each audience areasked to read a document and voice all their thoughts as they read.Just as in a paraphrase test, the session is captured on audiotape sothat the readers' thoughts about the document can be analyzed. Athink-aloud test is not as rigidly structured as a paraphrase test. Manyreaders do paraphrase what they are reading, but not every readerparaphrases every sentence. In a think-aloud test, the reader decideswhen to comment rather than being told how much to read beforecommenting. The testers are interested not only in how readersinterpret the written document, but also in their comments about thedocument, such as, "I have no idea what that means," or "at thispoint, I'd be looking for information about ...."

Flower, Hayes & Swarts, for example, used this technique to seehow well the appropriate audiences understood a typical U.S.government regulation. They found that most readers could not dealdirectly with the bureaucratic style in which the regulations werewritten. Most of the original sentences were in the passive voice,with convoluted sentence structures, almost never naming theresponsible parties. In thinking aloud to make sense of the regulation,the readers translated the sentences into "scenarios", new sentencesin which they described to themselves who would or could do whatto whom with what consequences. Their translations were, however,often wrong.' 0 ' Schriver has shown how writers can be trained tomake very effective use of think-aloud tests in revising documents. 0 2

Comprehension testing

Both paraphrasing and thinking-aloud tests focus on readersunderstanding text as they read it. They do not focus on whetherreaders can find the text that they need and whether readersrecognize which text is relevant for their situation. The other twotesting techniques force readers to both locate and understand text forrealistic situations.

100 Charrow, Making Legal Language Understandable: A Psycholinguistic

Study of Jury Instructions, 1306-74.101 Flower, Revising Functional Documents: The Scenario Principle, 41-58.102 Schriver, Plain language through protocol-aided revision, 148-72.

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A comprehension test is like a school test. For a comprehensiontest, the test developers write questions that reflect actual questionsreaders might be asking when they need the document. The testquestions are put together in a booklet and the readers are asked touse the document to answer the questions. By asking readers to markdown the time when they start a question and the time when theyfinish, testers can see how long it takes people to find and answereach question. By asking readers to mark down the pages or sectionsthey looked at in trying to find the answer, testers can see whetherreaders went to the right place first and can tell when readers guessat the answer rather than looking it up.

With a comprehension test, you can give the same test to manypeople at the same time. Felker & Rose, for example, used thistechnique to compare two versions of the same U.S. governmentregulation. They found that readers who were familiar with theregulation and those who were not were both able to find andunderstand information in the revised, plain English version morequickly and more accurately than in the original regulation. 10 3 Youcan also combine comprehension testing with other more generaltechniques for gathering information about readers' needs anddesires, such as focus groups (structured small group discussions).10 4

Although a comprehension test provides information aboutwhere readers have trouble with a document, it provides less insightinto the reasons for those problems than the other techniques. Expertsin clear writing and document design would have to know whichquestions were difficult for readers and analyze the organization andlanguage of the parts of the text that readers should have used toanswer those questions.

Usability testing

Usability testing combines aspects of several of these othertechniques. Like comprehension testing, usability testing focuses onrealistic situations for which readers have to find the information,decide whether it is relevant, understand the information, and act onit. The testers develop case studies of realistic situations for whichthe readers would need the document being tested and then ask themto use the documents.

103 Redish, Evaluating the effects of document design principles, 236-43.104 "Numbers and insights: combining techniques to get useful results"

Simply Stated Issue 70, December 1986-January 1987, pp. 1 & 4. (Simply Statedwas a newsletter, published by the Document Design Center, American Institutesfor Research, from 1979 to 1989. Back issues are available on request from theDocument Design Center, American Institutes for Research, 3333 K Street, NW,Washington, DC, USA, 20007.)

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Unlike a comprehension test, however, testers do not givesimple questions and multiple choice answers. Also, in a usabilitytest, testers observe and listen to one person at a time as in aparaphrase test or a thinking-aloud test. To gain insights into howreaders are dealing with the task and understanding the text, testersask them to think out loud as they are working. The session isaudiotaped and often videotaped, so that the testers can listen andwatch again later - and so they can show pieces of the tests toothers who may need to be convinced about the problems in thedocuments. Seeing readers hunting for information, looking for anindex, or going to the table of contents over and over as each sectionthey look at turns out not to have the information they need andhearing them voice their frustration is more powerful than justcounting their incorrect answers on a comprehension test.

Usability testing is, in fact, a very powerful technique. Watchingand listening to even a few people provides enormous amounts ofdata and very rich insights into both how people actually usedocuments and the problems that they have. 0 5

PARTNERS IN CLARITY

In literature the ambition of the novice is to acquire the literary

language, the struggle of the adept is to get rid of it.

G.B. Shaw

The improvement of understanding is for two ends: first our ownincrease of knowledge; secondly to enable us to deliver thatknowledge to others.

John Locke

ROLE OF GOVERNMENT

Clarity must be supported

Drafting laws is a collective exercise. The drafter uses legal andlanguage skills to draft the law. But the government also has animportant role to play in nurturing readable legislation.

Governments are slowly realizing that the public not only isinterested, but also has a right to participate in the development ofstatutes. The federal government in Canada, for instance, hasrecognized the legitimacy of greater public access to the regulatory

105 Special issue on usability testing, Simply Stated Issue 76, January 1988.

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process. 10 6 But increased public access to the regulatory process doesnot necessarily translate into readily understandable laws. If thegovernment is to follow up on its commitment to bring the regulatoryprocess to the public, then it must make a commitment to provideaccessible legal language. The public cannot fully participate in thelaw reform dialogue, if by its language, the law remains hidden orintimidating.10 7

Governments have traditionally valued legal effectiveness overintelligibility.108 From, "We have to do something about this" theymove only to, "Did you do it and will it work?" They neglect theequally important question, "Will the people who are affected by thelaw be able to understand it?" Clarity should be part of the context inwhich legislative counsel are asked to draft legislation.

A government that values clearer laws must lend support at thehighest levels to clarity as a policy. The former federal Minister ofJustice, the Honourable Kim Campbell, recently spoke aboutsimplifying the Government's public message. She supported thenotion that our laws should be expressed in ways which are readilyunderstandable to all.'0 9 But the way our laws are expressed will notchange unless the Government takes a different approach to draftingas a process and supplies adequate resources to drafting offices.

A different approach to drafting as a process

As well as developing a plain language policy in relation tolegislation, Canadian governments must develop a betterunderstanding of drafting as a process when setting their legislativetimetables and developing instructions for drafting legislation.

Governments have tended to view the drafting of legislation asthe last stage in bringing a policy to the public as law. Consequently,the drafter is often brought in at the very end of the process to putthe ideas into "legal language". This approach shows thatgovernments do not appreciate how draft legislation can "talk back"in unexpected ways. Reed Dickerson argued that the drafter should

106 In February 1986, the government released the first federal statement onregulatory policy. Increased public access and participation in the regulatoryprocess was one of the ten guiding principles of that policy. With the policystatement the government also issued The Citizen's Code of Regulatory Fairness,standards that elaborated on the general policy principles. Among other things,the Code called for a full opportunity for public consultation and participation.See, The Federal Regulatory Process: A Guide for Departments and Agencies,Office of Privatization and Regulatory Affairs, January 1988.

107 Dykstra, Plain Language, Legal Documents and Forms, 3.108 Miers, LEGISLATION, 83.109 Address (Canadian Bar Association Annual Meeting, 19 August 1991).

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be involved early in the development of a statute because of thenature of the process:

It is popularly assumed that we should first work out the great bulkof the substance of what we are trying to accomplish and thenexpress it as clearly as we can. The trouble with this approach is thatthe unassisted mind is for most of us an imperfect producer of ideas.One thing that I have learned over the years about writing in generaland legal drafting in particular is that there is tremendous feedbackor "talk back" from any systematic attempt to express one's ideas, tothe point where we can say that the pen or word processor is anextension of the brain."10

Because drafts talk back and sometimes tell us things that we donot want to hear, ministers and government officials must beprepared at times to rethink policy when it becomes clear that theyare creating a monster.III Ministers and their advisers should beprepared to rethink policy when a drafter predicts that the policy willlead to incomprehensible law. Sir John Donaldson gave the sameadvice in Merkur Island Shipping Corporation v. Laughton:

When formulating policy, ministers, of whatever political persuasion,should at all times be asking themselves and asking parliamentarycounsel: "Is this concept too refined to be capable of expression inbasic English? If so, is there some way in which we can modify thepolicy so that it can be so expressed?" Having to ask such questionswould no doubt be frustrating for ministers and the legislaturegenerally, but in my judgment this is part of the price which has tobe paid if the rule of law is to be maintained. 112

Plain language writing takes time. Lack of planning andunreasonable expectations often have drafting offices strainingdesperately to produce any text at all. The rewriting or extra editingnecessary to make the draft communicate better is hardly everpossible.

110 Dickerson, Perspectives on Legislative and Other Legal Drafting, 6.111 This comment, reported in Law Commission of New Zealand,

Legislation and its Interpretation, 77-78, was made by Patrick Brazil:There ought to be an opportunity somewhere along the way forsomeone to say "Hey! You know you realise this is going toproduce a monstrosity of an Act with 200 enormously complexprovisions. Don't you think from the point of view of simplerdrafting or plain English you ought to have a look at the conceptsto see whether or not you can achieve what you have in mind bya simple conceptual approach that will lead to shorter, moreaccessible, more readily, understood legislation?

112 [1983] 1 ALL E.R. 334 at 354, [1983] 2 W.L.R. 45 at 66-67.

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THE ROLE OF THE DRAFTING OFFICE

All writers struggle with saying things so their readers willunderstand precisely what they mean. Lawyers have the added task ofsaying things so that no one can unintentionally misconstrue theirmeaning. A legislative drafter's job is even more exacting. 1 3 He orshe drafts for an especially hostile audience. Stephen J. in ReCastioni describes the challenge:

[I]t is not enough to attain to a degree of precision which a personreading in good faith can understand; but it is necessary to attain ifpossible to a degree of precision which a person reading in bad faithcannot misunderstand. It is all the better if he cannot pretend tomisunderstand it.1 1

4

The use of plain English does not interfere with the drafter'squest for legal certainty. It simply makes the law clearer and easierto understand.

The Chief Legislative Counsel of the federal Department ofJustice recently commented that there does not seem to be a greatdeal of concern or debate in Canada about the quality of theexpression of our laws." 5 The fact is that, after a law is drafted, noone gets formal feedback about the provisions that cause administratorsand the public difficulty. No one keeps track of how much time thepublic service spends in explaining particular provisions over and over.

If there is no debate about the qualify of Canada's laws, it isbecause there is no debate allowed. Invariably, when someonecomplains about not being able to understand a provision, the reply isthat it has to be that way. The prevailing attitude from drafters is"You do your job and let me do mine. I know best." That attitudeneeds to change.

When readers complain that something should be written inplain English, they usually aren't in a position to tell the drafter howto change the text. Regardless, they are expressing a feeling thatcannot be ignored. They are telling the drafter that they are havingtrouble understanding what was meant. That gut feeling should act asa warning to the drafter that he or she has not communicated well.The challenge must be taken up to communicate better.

113 Reed Dickerson has called legal writing the most difficult skill thatlawyers are called upon to perform and legislative drafting the most difficultform of legal writing. See Dickerson, Perspectives on Legislative and OtherLegal Writing, 9.

114 [1891] 1 Q.B. 149, 167-68, quoted in Berry, Could Our Statutes beSimpler?, 95.

115 Johnson, Legislative Drafting Practices and Other Factors Affecting theClarity of Canada's Laws, 1.

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Aim for a wider audience, not everyone

In trying to draft to be understood, drafters must broaden theirtraditional concept of who the legislative audience is. The plainlanguage approach to statutes aims for a wider audience, noteverybody. Complex statutes cannot reach everybody. They are notaimed at everybody anyway."l 6 But a user who is familiar with thesubject matter of a provision should, after a reasonable expenditureof intellectual effort and within a reasonable time, be able to makesense of it in relation to a given set of circumstances. Readers shouldnever be required to struggle with the language of the writers."17

Drafters have traditionally geared their writing to the professionalreader, that is the courts who interpret the law, the lawyers or otherprofessionals who advise those who are personally affected by thelaw, the parliamentarians who examine and pass the law, and thepublic officials who administer or enforce the law. Even these classesof professional readers would benefit from more readable legislation.

The Renton Committee noted complaints about legislation fromjudges and lawyers:

From the evidence we have received however it is clear that the needsof such users of the statutes are not being met... .We have discoveredthat even judges] often find it difficult to understand the intentionof legislation passed by Parliament. If this is so, it is likely thatpractising lawyers find that the way in which the law is drafted presentsat times an impenetrable barrier to understanding it; and we haveindeed had evidence to this effect. If lawyers find the law difficult,how can the layman expect to fare? To the ordinary citizen theprovisions in the statute book might sometimes as well be written ina foreign language for all the help he may expect to obtain there asto his rights and duties under the law. And this in an age, as we havepointed out, when the statute law has a growing effect on practicallyevery sphere of daily life. I Is

116 Thornton, Plain Language and Statute Law, 185; Palmer, Writing andReading the Law, 54; Driedger, Legislative Drafting, 296. See also Kelly, TheVictorian Experience of Plain Drafting, 60. In rewriting the Takeovers Code, avery complex piece of legislation, the aim of the Law Commission of Victoriawas not to make it intelligible to the average citizen. The average citizen wouldhave an insufficient grasp of the commercial context. The aim was simply tomake it as intelligible as possible to those who were familiar with the relevantcontext - lawyers, regulators and others in the takeovers industry.

"17 Miers, LEGISLATION, 102; Eagleson, The Case for Plain Language, 3;Driedger, MANUAL, 562; Law Reform Commission of Victoria, Plain Englishand the Law, Appendix 1, 3. Bentham called for laws to be drafted "so that atevery moment in which they ought to influence the conduct of a citizen, he mayhave presented in his mind an exact idea of the will of the" legislator in thisrespect." See Bentham, View of a Complete Code of Laws, in WORKS, 207,quoted in Law Reform Commission of Victoria, Access to the Law, 49.

118 The Preparation of Legislation (Renton), 37.

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Drafters concentrate a great deal on how a judge might interprettheir work. However, relatively few statutory provisions ever getbefore a court, and most are not the subject of reported judgments:" l9

The judges are breakdown experts. One should not design a law, anymore a car, primarily for breakdown experts. One should design it todo its essential work, bearing in mind, of course, that breakdownsmay occur. If the draftsman pays attention to that principle, he willuse, as far as possible, the language understood by the practitioner inthe relevant field. 120

Legal training is not enough

The drafter should write for the audience that is least familiarwith the law.12' Most drafters have no idea what this means. Mostlegislative drafters have had sixteen to twenty years of formaleducation. But there is nothing in their education that makes themsensitive to words or structures that people with less education or adifferent education find difficult to understand. This sensitizationshould be part of their training.

It is not easy for persons within the profession with a specialisteducation in law and legislation to see what is strange or intimidatingabout the law for others outside the profession. Old habits arecomfortable to live with and pose no barrier to comprehension forthose who are familiar with them.

In order to write for others, we must know what it is in languagethat helps people understand texts and what it is that impedesunderstanding. Therefore, there is inestimable value for the drafterin the study of the nature of language and how it works.122 Trainingdrafters by the apprenticeship method perpetuates poor draftingpractices and rarely encourages new or innovative practices. 2 3

CONCLUSION

I set out, in writing this article, to accomplish two goals - first,to inform the drafting community about how plain languageprinciples can improve legislation and make it more accessible to theordinary reader and, second, to encourage regular statute-users todemand more readable laws.

119 Friedland, ACCESS TO THE LAW, 64.120 Kelly, Plain English Drafting Initiative in Relation to Takeovers, 22-23.121 Redish, How to Write Regulations, 8.122 Thornton, LEGISLATIVE DRAFTING, 2.123 Law Reform Commission of Victoria, PLAIN ENGLISH AND THE LAW:

REPORT, Xii.

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In the text, I have focused on elements of existing legislationthat create serious problems for readers - sentence length, sentencestructure, cross-references, archaic and pompous language anddocument design. I hope that others will continue the discussion ofthese and other elements that affect the clarity of legislation.

In trying to draft readable legislation, I have been guided in myown work by three principles set out by Garth Thornton. I encourageother drafters to take up his challenge. Thornton suggested that theway to greater intelligibility can be found through:

* an obsession to draft so as to be understood, but without thesacrifice of precision and accuracy

* a continuing questioning, evaluation and improvement ofstylistic and other drafting practices

" a readiness to accept change where a benefit isdemonstrated 24

The public must insist on legislative texts that they canunderstand. If a person is fairly well-informed about a particularsubject and can't understand a law that governs it, something iswrong. An interested reader doesn't have to come equipped with thewriting skills necessary to improve a draft. Those skills should beexpected and demanded from the drafter.

However, drafters cannot act alone. The drafting communityneeds better government support to produce better text. Reasonabletime frames, adequate instructions and sufficient resources are thebasic tools for good drafting. The government must not only make apublic commitment to better communication in statute law, it mustalso be prepared to change the way it participates in the developmentof legislation and to contribute resources to the effort.

124 Thornton, LEGISLATIVE DRAFTING, vi.

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APPENDIX I: Drafting Conventions of The UniformLaw Conference of Canada'

I. GENERAL

Logical organization

1. The organization of an Act should be logical.

A logically organized text usually proceeds from the generalto the particular and follows the chronological sequence ofevents. If it deals with matters that occur in a particular order,such as court proceedings or administrative applications, thatorder should normally be followed. See also Part III on logicalarrangement.

Style

2. An Act should be written simply, clearly and concisely, withthe required degree of precision, and as much as possible in ordinarylanguage.

Simplicity and conciseness of language can be made to coexistwith precision in a well-organized text. It is important not toexaggerate the degree of precision that is required.

Sex-specific references

3. Sex-specific references should be avoided.

In the English version of an Act, pronouns such as "he","his" and "him" should not be used if the message is intended torefer to persons of either sex. Instead, the drafter can use "he orshe", repeat the noun referred to or use a combination of thesemethods. Typographical devices such as brackets, virgules andhyphens are unseemly and distracting and should not be used. Itis usually possible to restructure sentences so as to avoid theproblem altogether.

Nouns that have the appearance of referring to men only shouldbe replaced by terms that can refer to both sexes (for example,use "firefighter" instead of "fireman").

I These conventions were prepared by a committee of the Drafting Sectionof the Conference.

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Because French nouns have grammatical rather than naturalgender, and because in that language adjectives and pastparticiples must agree with the nouns to which they relate,French solutions to the problems of sex-specific references arenecessarily different from those used in the English version. Seethe French commentary on this point.

II. DIVISIONS OF AN ACT

Required elements

4.-(1) An Act always has a title and one or more sections(numbered 1, 2, 3...).

The statutes (and ordinances) of all Canadian jurisdictions alwayscontain an enacting clause - an element that is not found inUniform Acts.

Optional elements

(2) An Act may also contain the following elements:

(a) a preamble;

(b) parts (designated Part I, Part II ......

(c) schedules (designated Schedule I, Schedule II ......

(d) forms (designated Form 1, Form 2 ......

On the subject of preambles, see section 18.

If there is only one schedule or form, it is not necessary tonumber it.

Subdivisions of sections

(3) A section may be subdivided into subsections (numbered(1), (2), (3) ... ).

(4) A section that is not subdivided into subsections and a

subsection may be subdivided into clauses (lettered (a), (b), (c)...).

(5) A clause may be subdivided into subclauses (numbered(i), (ii), (iii) ... ).

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(6) A subclause may be subdivided into paragraphs (lettered(A), (B), (C)...).

Excessive subdivision into clauses, subclauses and paragraphsshould be avoided, as it makes the text harder to understand. Seesubsection 23(1).

Definitions

5. Definitions form part of a section or subsection and areseparated by semicolons. They begin with a lower-case letter and arenot lettered or numbered. Subdivisions, if any, within an individualdefinition take the form of clauses and are indented, separated bycommas, and identified as (a), (b), and so forth.

In bilingual Acts, because definitions are arranged alphabeticallyin each language, a system of cross-references is necessary. It isrecommended that the corresponding term in the other languagebe shown in brackets at the end of each definition.

There are conventional differences between French and Englishusage in the form of definitions.

The following example shows the recommended form of aprovision containing a series of definitions:

1. In this Act,

"Minister" means the Minister of Agriculture. ("Ministre")

"weed" means dandelion, ragweed or thistle. ("mauvaise herbe")

Form of sections and their subdivisions

6. Sections and subsections begin with a capital letter and endwith a period. Clauses are indented, begin with a lower-case letterand are separated by semicolons. Subclauses are further indented,begin with a lower-case letter and are separated by commas.Paragraphs are still further indented, begin with a lower case letterand are separated by commas.

The "paragraph" used by some jurisdictions require introductorywords like "the following" followed by a colon. The paragraphsare indented and numbered with Arabic numerals. They beginwith an upper-case letter and are separated by periods. Likeclauses, they must be grammatically parallel, but they mayconsist of complete sentences or of fragments. The "paragraph"

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is more autonomous than the clause, which must be an integralpart of a single sentence.

III. ARRANGEMENT

Preamble

7. If a preamble is to be included, it follows the title.

Definitions

8. Definitions should be set out in the first section of the Act,unless they apply only to a particular Part, section or group ofsections. In that case they should be placed at the beginning of thepassage in question.

Interpretation or application provisions

9. Provisions that deal with the interpretation or application ofthe Act should follow the definitions.

Regulation-making powers

10. Provisions conferring regulation-making power should comeat the end of the Act, preceding only the transitional or temporaryprovisions, those repealing or amending other Acts and thecommencement provision.

If an Act is divided into Parts, it may be more practical to groupthe provisions conferring regulation-making power at the end ofthe individual Parts to which they relate.

Transitional or temporary provisions

11. Transitional or temporary provisions should follow thesubject-matter to which they relate.

If they relate to the Act as a whole, they should follow theregulation-making powers.

Repealing and amending provisions

12. Provisions repealing or amending other Acts should precedethe commencement provision.

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Commencement provisions

13. The provision dealing with the coming into force of the Actshould be its last section.

Schedules

14. Schedules, if they are necessary, should follow the lastsection of the Act.

It may be helpful to mention, in the heading of the schedule, thesection to which it refers. The same is true in the case of forms(see section 15).

Forms

15. Forms, if it is necessary to include them in the Act, shouldbe placed at the end of the Act, following the schedules, if any.

Normally, it is preferable to leave forms to be prescribed byregulation or by administrative procedures.

Marginal notes and table of contents

16.-(1) Each section should have a succinct marginal note.

(2) A table of contents setting out the marginal note foreach section may be inserted between the title and the first section ofthe Act.

A table of contents is useful for the drafter as well as for thereader, since its preparation requires a further review of theAct's basic structure and exposes any flaws in its logicalorganization.

However, if the Act is very short, a table of contents is notnecessary.

IV. DRAFTING PRINCIPLES

Title

17. The title should succinctly indicate the Act's subject-matter.

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Preamble

18. The use of preambles is not recommended.

Statement of purpose

19. If a statement of purpose is required, it should be structuredas a section rather than as a preamble.

Explicit statements of purpose are rarely necessary, since theobject of a well-drafted Act should become clear to the personwho reads it as a whole. In general, legislation should notcontain statements of a non-legislative nature. However, aspecific statement of purpose is occasionally required (forexample, to give guidance to the courts).

Parts

20. An Act should be divided into Parts only if thesubject-matter of each Part is clearly distinct.

The insertion of succinct headings before groups of relatedsections may be a useful alternative or supplement to divisioninto Parts.

Definitions

21.-(1) Definitions should be used sparingly and only for thefollowing purposes:

(a) to establish that a term is not being used in a usualmeaning, or is being used in only one of several usualmeanings;

(b) to avoid excessive repetition;

(c) to allow the use of an abbreviation;

(d) to signal the use of an unusual or novel term.

The drafter should not prepare the definitions until the mainsubstantive provisions of the Act have been settled.

See also section 32.

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No substantive content

(2) A definition should not have any substantive content.

Statements of the application of the Act should be made insubstantive provisions rather than definitions.

Artificiality

(3) A definition should not give an artificial or unnaturalsense to the term defined.

"Means" and "includes"

(4) "Means" and "includes" have different uses.

Note that the French version of this subsection is different.

"Means" is appropriate for exhaustive definitions (where Frenchuses s'entend de, or no linking word at all). "Includes" isappropriate for two kinds of definitions: those that extend thedefined term's usual meaning (here, French uses techniques suchas assimiler d), and those that merely give examples of thedefined term's meaning without being exhaustive (here, Frenchgenerally uses s'entend notamment de). When a bilingual Act isbeing prepared the two drafters must consider these issuestogether.

The drafter should exercise caution when using "includes". Itshould not be used in exhaustive definitions, and thecontradictory "means and includes" should never be used.

Consistency

(5) A defined term should never be used in the same Actin a different sense.

See also subsection 34(2).

Content of section

22.-(1) A section should deal with a single idea or with agroup of closely related ideas.

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Single sentence

(2) A section (or, if it is divided into subsections, eachsubsection) should consist of a single sentence.

Short sentence

(3) Sentences should be as short as clarity and precisionwill allow.

Note that the French version of subsection 22(2) is different.

The tradition of one-sentence sections and subsections is notgenerally followed in French drafting, where a series of shortsentences are often preferred to a single long one.

In both languages, it is desirable to keep sentences terse andsimple. (In traditional English drafting, the one-sentence rule hasoften led to excessively long sentences.) If a sentence becomeslong and convoluted, the drafter should first consider whether itcontains redundant material and can be simplified or (if there isno redundancy) whether it would be more appropriate to break itinto two or more subsections. The French drafter may also resortto the technique of creating two or more sentences within theoriginal provision.

In a bilingual Act, although the French version of a section orsubsection may contain two or more sentences and the Englishonly one, the formal structure of both versions must remain thesame (for example, it would not be acceptable to have twosubsections in one version and three in the other).

Use of clauses and further subdivisions

23.-(l) Clauses should be used only if they improvecommunication of the message to the reader. Subclauses andparagraphs should be used even more sparingly.

"Clause sandwiches"

(2) "Clause sandwiches" should be avoided.

Arrangements of a flush passage followed by a series of clausesand a closing flush are undesirable. Even more undesirable aresimilar arrangements containing two series of clauses,interrupted by a flush passage. They are apt to lead the drafterinto errors of grammar and logic, and are difficult to read ineither language. In bilingual drafting, "clause sandwiches" make

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it difficult - sometimes impossible - to ensure closecorrespondence of form between the two versions.

Parallelism

(3) Clauses and further subdivisions should begrammatically and logically parallel to one another.

Connecting words

(4) A series of clauses or further subdivisions shouldusually be linked by one "and" or "or", placed at the end of thesecond-last item in the series.

No conjunction should be used if the subdivisions follow acomplete sentence (e.g. "The court may give directions withrespect to the following matters:..."). It is best to omit "and" and"or" if their use could cause confusion.

Note that the French version of this subsection is different.

In French drafting, the fact that a series is conjunctive ordisjunctive is indicated by appropriate introductory words, notby literal equivalents of "and" and "or".

Verbs in present indicative

24.-(1) Verbs should appear in the present tense and indicativemood unless the context requires an exception.

The use of "shall" as an imperative is the major exception to thisrule.

Passive undesirable

(2) Restraint should be exercised in the use of the passivevoice.

Duties and prohibitions

(3) "Shall" is used to impose a duty or (with "not" or"no") a prohibition.

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Powers, rights and choices

(4) "May" is used to confer or indicate a power, right orchoice.

Note that the French versions of subsections (3) and (4) aredifferent.

In French drafting, an obligation is usually imposed by thepresent indicative form of the verb, occasionally by auxiliariessuch as doit or est tenu de. A prohibition is indicated by the useof the auxiliary ne peut, by il est interdit de or sometimes by theauxiliary ne doit. A power, right or choice is indicated by theauxiliary peut or occasionally by other phrases.

Internal references

25. Internal references should be used sparingly.

A logical arrangement makes frequent internal referencesunnecessary.

Internal references should clearly identify the provisions referredto by their number or letter. It is not necessary to describe theprovision referred to as "of this Act", unless there is a danger ofconfusion with another Act that has been mentioned.

Derogations and restrictions

26.-(1) Derogations and restrictions ("notwithstanding","despite" and "subject to") should be used sparingly and only if thereis an inconsistency, to make it clear which provision is meant toprevail.

Inconsistencies can often be eliminated by redrafting the passage.

(2) If provision 1 is meant to prevail over provision 2, it issufficient to say that 1 applies notwithstanding (or despite) 2, or that2 is subject to 1. The two devices should not be used simultaneously.

Placement of new provisions

27.-(l) A new provision should be inserted in the most logicalplace.

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Designation of new provisions

(2) The numbers or letters assigned to new provisions aredetermined in accordance with the decimal system adopted by theConference (1968 Proceedings, pages 76-89).

Changes to original structure

(3) Amendments to existing Acts should not detract fromthe readability of the original structure.

Rather than attaching new provisions to an existing structure,perhaps repeatedly, it may be desirable to rework the originalstructure.

Tables and mathematical formulas

28. Tables and mathematical formulas should be used if theymake the text clearer and more concise.

Regulation-making powers

29. Regulation-making powers should be clearly expressed andshould be no broader than is necessary.

V. LANGUAGE

Ordinary language

30.-(1) An Act should be written as much as possible inordinary language, using technical terminology only if precisionrequires it.

Intended audience

(2) The terminology of an Act should be suitable for itsintended audience.

Redundancies and archaisms

31. Redundant or archaic words and phrases should be avoided.

It is desirable to examine stock phrases that take the form ofpairs or triplets (especially common in English - for example,

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"give, devise and bequeath", "terms and conditions") in order todetermine whether fewer words could convey the desiredmeaning. Legislation should be written in a style that is correctand up to date without being either faddish or excessivelyconservative. Many words and phrases that are often seen inlegal documents belong to an earlier age and are no longer wellunderstood. They should be replaced by a contemporaryequivalent. If they add nothing to the message, as is often thecase, they should be eliminated.

Neologisms

32. Neologisms should be used with caution.

In principle, terms that are not found in standard reference worksshould be avoided in legislation. Sometimes it is necessary toinvent a term or to use a recently coined term; in that case it isprudent to define it. The use of neologisms causes specialproblems in bilingual drafting.

Note that in bilingual common law jurisdictions, often the use ofneologisms is the only way to express in French with precisionlegal concepts that are derived from English law and lack anysatisfactory French "functional equivalent".

Other languages

33. Terms from languages other than English should be usedonly if they are generally understood and if there is no equally clearand concise way of expressing the concept in English.

Latin and other foreign terms are used even less often in Frenchthan in English.

Consistency

34.-(l) Different terms should not be used to express the samemeaning within a single Act.

(2) The same term should not be used with differentmeanings within a single Act, unless, in a given context, theparticular meaning that is intended is perfectly clear and no otherterm is suitable.

The exception does not apply to defined terms, which shouldnever be used in a different sense than that of the definition. Seesubsection 21(5).

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VI. BILINGUAL DRAFTING

Bilingual legislation should be prepared by two drafters, oneresponsible for each version, who co-operate on a basis ofequality.

Ideally, both drafters should be bilingual. The participation oflinguists and translators is often helpful.

Although it is usually faster and may seem easier to conduct thedrafting process in only one language and to prepare atranslation once the unilingual draft is settled, the quality of bothversions is significantly improved by co-drafting.

Substance

35. The English and French versions of a bilingual Act must beidentical in substance.

Linguistic quality

36. Each version should be written in correct and idiomaticlanguage, and neither version should be forcibly adjusted to fit thepeculiarities of the other language.

In bilingual drafting, both drafters must be ready to makenecessary compromises in order to reconcile the need forlinguistic quality with the need for identity of substance andclose correspondence of structure.

Structure

37.-(1) The structure of the Act should be the same in bothversions.

Parallelism at the structural level promotes identity of substance.It is likewise a valuable tool for the increasing number ofbilingual users and interpreters of the law who compare the twoversions.

Acceptable differences

(2) It is not necessary that corresponding English andFrench provisions use the same syntax.

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(3) One version of a subsection (or of a section thatcontains no subsections) may contain a different number of sentencesthan the other.

(4) Occasionally, a definition present in one version maynot be necessary in the other.

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APPENDIX II: Directions on How an Act Works

Example 1:

Order of provisions/structure of Parts

2.1A.1. (1) In each Part dealing with a pension, benefit orallowance, this is the order in which the provisions are presented:

(a) qualification provisions (who is entitled to the payment):

(b) claim provision (how is a claim made):

(c) rates provision (how much will the payment be):

(d) payment provisions (how will payment be made andwhen will it commence):

(e) recipient obligations provisions (what does the recipientneed to do):

(f) variation and termination provisions (when can paymentand rate be reviewed or changed):

(g) bereavement payments (payments available when aperson's partner or child has died):

(h) fringe benefits (concessions available to people receivingthat pension, benefit or allowance).

(2) Other relevant provisions are referred to in notes atthe bottom of key provisions in the Part.

(Social Security Bill 1990, Australia)

Example 2:

Steps in acquisition by compulsory process

20. (1) The principal steps in an acquisition by compulsoryprocess are:

(a) the making of a pre-acquisition declaration under Part V;

(b) any reconsideration or review of the pre-acquisition

declaration under Part V; and

(c) the making of an acquisition declaration under Part VI.

(Lands Acquisition Act 1989, Australia)

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APPENDIX IV: Foreign Words

Existing term:

ad litem

bona fide

de novo

ex officio

ex parte

in camera

in loco parentis

inter alia

ipso facto

lis pendens

mutatis mutandis

praecipe

pari passu

per annum

per diem

prima facie [proof]

prima facie [grounds]

pro rata

subpoena

ultra vires

writ of fieri facias

Replacement term(s):

litigation

[made,done] in good faith

new [trial de novo becomes by way of anew trial)

by virtue of his [or her] office

made without notice, by one party alone,without notice to any other party

closed to the public, with the publicexcluded, in which the jury and themembers of the public are excluded

in the role of parent, acting as a parent

among others

by that fact

pending litigation, litigation before the court

with such modifications as thecircumstances may require, varied to suitthe case

requisition

rateable, proportionately

a year, annually

daily, a day

[proof], in the absence of evidence to thecontrary,

apparent [grounds]

proportionately

summons

constitutionally invalid, beyond the scope ofthe Act

writ of seizure and sale

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APPENDIX V: Lawyers' Twins and Triplets

alter or change

assign, transfer and setover

by or under

covenant, promise and agree

deemed and considered

due and owing

each and every

each and all

final and conclusive

for and on behalf of

full and complete

full force and effect

goods and chattels

legal, valid and binding

mentioned or referred to

nature and kind

null and void

purchase, lease or otherwise acquire

save and except

sole and exclusive

suffer or permit

terms and conditions

type and kind

valid and subsisting

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APPENDIX VI: Archaic Words

aforementioned

aforesaid

body politic and corporate

cause to be done

chattels

foregoing

forthwith

hereafter

herein

hereinafter

hereinbefore

hereof

heretofor

hereunder

hereunto

hitherto

indenture

next friend

pray (request)

provided that

said (adj.)

thence

thenceforth

thereafter

thereat

thereby

therefor

therefrom

therein

thereof

thereon

thereout

thereto

theretofore

thereunder

thereunto

thereupon

therewith

whereby

wherein

whereof

whereunder

whilst

whosoever

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APPENDIX VII: Unfamiliar or Surplus Words

Instead of: Try:

adduce

aggregate

adequate amount

allocate

as the result of

as the court seems meet

attains

attempt

by means of

by reason of

cease

commence

conduct money

deems

desires

duly notify

endeavour

ensure

enter into an agreement

expend

expiration

for the purpose of

for the reason that

furnish

has power to

in accordance with

in lieu of

in order to

in pursuance thereof

give, present, submit as proof

total

enough

give, divide

from

as the court considers appropriate

reaches, becomes

try

by

because of

stop

begin

attendance money

thinks, believes, considers

wishes

notify

try

make sure

agree, contract

spend, use

end

to, for

because

give, provide, tell

may

under

in place of, instead of

to

under it

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in respect of

in his stead

indicate

is able to

is binding upon

lessee

lessor

like (adj.)

make provision for

manner

monies, moneys

mutually agree

necessitate

next

notwithstanding

obtain

over and above

permit

preceding

prior to

provisions of this Act

pursuant to

render

respecting

retain

set forth

situate within

specified

submit

sufficient

terminate

transmit

for, about, concerning

for him [or her], in his [or her] place

show, tell

can

binds

tenant

landlord

similar, same

provide for

way

money

agree

require

following

despite (or "although" if appropriate)

get

in addition to

allow

last

before

this Act

under, under the authority of

make, give

about, relating to

keep

set out, listed, given

located in

named

send, give

enough

end, finish

send

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under the provisions of

upon

whatever

whenever

with respect to

within the meaning of

without the Province

under

on

any

when, where

about, regarding

under

outside the Province

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