Alternatives to "notwithstanding"

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Recommendation

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

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

Background

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

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

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

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

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

Examples

1. "Despite"

   The following examples illustrate that, when "notwithstanding" introduces a phrase, it can be replaced by "despite" with no change in meaning.

   notwithstanding	despite
   An applicant may, notwithstanding subsection (1), apply to the Minister in writing.	An applicant may, despite subsection (1), apply to the Minister in writing.
   Notwithstanding any other provision of this Act, but subject to section 10, .	Despite any other provision of this Act, but subject to section 10, .

   From a search of the database of legislation for occurrences of "notwithstanding", it appears that "notwithstanding" is used as a preposition approximately 9 times out of 10. This is when "despite" can be substituted.

2. "Even if" - what follows may be the case

   The following examples illustrate that, when "notwithstanding that" or "even though" introduce a clause containing a hypothetical statement, they can be replaced by "even if" with no change in meaning.

   notwithstanding that / even though	even if
   A court of appeal may exercise its power to impose sentence notwithstanding that the appellant is not present.	A court of appeal may exercise its power to impose sentence even if the appellant is not present.
   The Minister may accept a notice of objection even though it was not filed in the prescribed manner.	The Minister may accept a notice of objection even if it was not filed in the prescribed manner.

3. "Even though" - what follows clearly is the case

   The following example illustrates that, when "notwithstanding that" introduces a clause containing a factual statement, it can be replaced by "even though" with no change in meaning.

   notwithstanding that	even though
   Where an amount referred to in paragraph 108(3)(a) is charged to the Canada Pension Plan Account pursuant to subsection (3), interest shall, notwithstanding that the amount has been so charged, be credited to the Canada Pension Plan Account.	If an amount referred to in paragraph 108(3)(a) is charged to the Canada Pension Plan Account under subsection (3), then, even though the amount has been so charged, interest shall be credited to the Canada Pension Plan Account.

4. "Notwithstanding that" ambiguous - is what follows hypothetical or fact?

   Notwithstanding that a corporation is an agent of Her Majesty, the Minister may, on behalf of Her Majesty, enter into a contract under this Act with the corporation as if it were not an agent of Her Majesty.

   This provision should be redrafted as one or the other of the following, depending on whether or not the corporations referred to are always agents of Her Majesty:

   Even if a corporation is an agent of Her Majesty, the Minister may, on behalf of Her Majesty, enter into a contract under this Act with the corporation as if it were not an agent of Her Majesty.

   Even though a corporation is an agent of Her Majesty, the Minister may, on behalf of Her Majesty, enter into a contract under this Act with the corporation as if it were not an agent of Her Majesty.

   The same ambiguity problem can in fact arise with "even though", as in the following:

   For the purpose of subsection (1), a change in accounting principle or practice or in the method of applying any accounting principle or practice affects the comparability of a statement with that for the preceding year, even though it does not have a material effect upon the profit or loss for the period.

The most likely interpretation of this wording is that the intended meaning is "even if" rather than "even though"; that is, that a change in accounting principle or practice might or might not have a material effect on profit or loss, but even if it does not, it affects the comparability of a statement with the preceding year's statement for the purpose of subsection (1). However, a possible interpretation is that it is a fact that a change in accounting principle or practice does not, as a matter of law, result in a material effect upon profit or loss.

This discussion assumes that the drafter knows, one way or the other, whether the provision is dealing with a fact or with a mere possibility. In cases in which not even that much is certain, drafters can use "whether or not". Thus, in the following example, "whether or not" can be used if the drafter and the instructing officers do not know whether all the lands in question are outside the MacKenzie Valley or whether some are inside and some are outside:

Sections 15.1 to 15.5 of the Northwest Territories Waters Act apply to the board in relation to Inuit-owned lands referred to in those sections, whether or not those lands are inside the Mackenzie Valley.

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