At the time this article was published Arthur
N. Stone was Senior Legislative Counsel, Ontario. This paper was delivered to
the Legislative Drafting Section of the Uniform Law Conference of Canada in
The publication of Sir William Dale's book,
Legislative Drafting: A New Approach, has stimulated a discussion in England on
changing the English legislative drafting method to have more similarity to
"continental" drafting as practised in European countries whose law
is based on Roman law. In Canada, essentially the same question must be faced
in the development of bilingual statutes in common law jurisdictions. In our
case, French drafting is being introduced where a body of statutes is already
complete in English and written in a way that was developed when the use of
French was not contemplated. One of the problems is that the French language
and the civil law and its drafting method are seen as intertwined and as
integral to cultural ideals which all of us are committed to preserve. In the
search for cultural ideals, there is a tendency for French drafting theory to
distance or isolate itself from English drafting methods.
It is the purpose of this paper to propose
that much can be done to bring the French and English drafting methods
together. It is concerned with legislative drafting for the future. English
language statutes that are already on the books must be translated as they are.
In Canada, the Civil Code is referred to as
an example of the French ideal and is compared to English statutes to show
fundamental cultural differences. The counterpart in Ontario to the Civil Code
of Quebec or the Napoleonic Code of France is the common law. The principles
expressed in the Civil Code as pure general principles are expressed in the
common law, as generally stated flexible principles in decided cases. The
statute law outside the Civil Code is the counterpart of English statute law.
In practice in Canada, the attributes of the Civil Code are not found in French
statute law. French statutes address the same procedural and administrative detail
as the English statutes do in the same subject matter. On the other hand,
common law concepts such as reasonableness, good faith and fault and negligence
are commonly stated unadorned in English statutes and are troublesome to French
translators who look for greater specificity, The quality of English drafting
varies but, in the case of well drafted statutes in either language, the
differences are not as great as is generally assumed.
One fundamental principle must be recognized
and accepted: in a province, there is one body of law and one judicial system.
It is not possible for either to be different for different cultures within the
province (as perhaps can be done to some extent in Federal statutes which must
recognize two system of law). From this principle certain results follow:
1. The degree of particularity in statutes
is the same in both French and English.
2. To express the law of the province, some
local adaptation is necessary in French terminology which is the medium for
expressing the civil law.
3. The substance of the law should not be
confused with drafting method or style, and substance comes first.
Current Ontario statutes were drafted over
the past 100 years. In that time, the English drafting method and style has
gone through continuous change. The most recent statutes are found by
translators to be easier to translate into comfortable French than the older
ones. Developments in English drafting can be speeded up. Many characteristics
of English statutes are in the control of the draftsman. They exist only as
habits, not essential to the law, and continue because, in English, they cause
no problem. The characteristics of English drafting, often pointed to as a
cultural difference, are not seen in that way by the English draftsman. He sees
two principal governing factors: the expectation of the judicial system and his
own drafting ability. His principal objective is clear communication. It is,
therefore, entirely possible to change habits of expression only.
Awareness of certain improvements would be
beneficial to both English and French expression. Among these I would suggest:
- Reduce the use of internal references to a minimum. In verbal
communication, the use of words to represent a thin g or act
simultaneously conveys the thought. The use of an internal reference does
not ' 'This has become peculiar to statutes and can be eliminated by not
departing from the ordinary means of communicating by words, e.g. "an
order under section 23 becomes "an order for adoption" etc.
- Reduce the use of "subject to" and
"notwithstanding" to a minimum. These are sometimes used merely
to remind the reader of another relevant provision. The draftsman can
accept that a general statement in a statute is riot self-contained and
severable, and that a subsequent more particular qualification to a
generalization is equally legislative without special reference. A genuine
contradiction requiring paramountcy to be settled is probably a failure in
- Reduce the use of the case to a minimum. e.g. "Where a person
is over the age of sixteen years, he shall etc." becomes "A
person who is over the age of sixteen years shall etc.". It comes
easily to a draftsman who is faced with characterizing an endless series
of new thoughts to get into the habit of beginning with 'where".
Although the use of the case is often necessary for ultimate simplicity.
it is useful to test each case to see if it can be eliminated.
- Approach the subject directly. Introduce each new step in a statute
with a positively stated general principle describing it, followed by such
qualifications or particulars as the law requires. Avoid long sentences,
especially in a complicated matter.
- Reduce the use of clauses. Use clauses for clarity only and not as
a device to put more in the sentence.
- Avoid over-particularity. The need for particularity is an aspect
of the civil right to know the law before the event. The trend to more
particularity is universal and is invading even Civil Codes. However,
over-particularity can destroy its own objective. It can also deprive a
court of the degree of flexibility a court must have to obtain justice in
- Reduce Definitions. There is a tendency to overuse definitions in
English. Overuse can be addressed by assuming there will not be any
definitions and adding them on a clear balance of convenience basis.
Definitions should not be used as a device to shape the application of the
Act or to create qualifications respecting its subject matter if the
object can be achieved in the substantive provisions.
These principles are already being observed
in well-drafted English statutes, but the draftsman needs to be ever vigilant
as their abuse comes easily in English.
For bilingual drafting in a common law
jurisdiction, the French draftsman should be a person trained and with
practical experience in the law of the province and be an experienced working
draftsman in the same jurisdiction. This ensures that both the English and
French draftsman have a common perception of what is required to be covered.
Such a person, if not available, should be trained and the process will take
longer. Then, the English and French draftsmen should work together for the
purpose, among other things, of identifying ways in which the English text may
be modified for greater compatibility with the French in those matters that are
within the discretion of' the draftsman. And finally, a consistent English
style arising out of the experience should be formalized.
English drafting in Canada has attained a
good reputation for quality and has a reasonably uniform style. However, in
almost 120 years as a bilingual state, English drafting has not profited
sufficiently from the good characteristics of French drafting: purity of
thought and conciseness of expression. The yearning in England for reform in
English drafting has little chance of fulfillment by means of interplay with
"continental" drafting. In Canada, mutual influence is destined to
happen. The conditions are in place and the urgency increases. It will not be
done by the French and English draftsmen working in solitudes. It will not be
done if civiliste draftsmen are airlifted into a common law province. It can be
done by unifying the drafting process in a manner responsive to the judicial
system of the province.
If bilingual drafting is approached
positively, it can result in an improved, distinctly Canadian, method and style
in English language drafting.