"PROVIDED THAT"

(Version anglaise seulement)

This article deals with an issue related exclusively to the drafting of the English version of legislative texts. The very nature of the article causes it to be available in English only.

Grammatically, the word "provided" followed by a noun clause (for example, "provided that it does not rain" or simply "provided it does not rain") indicates a true condition. "Provided" and "provided that" are correctly used if they can be replaced by the word "if".

However, at least by the legal community, the words "provided" and "provided that" have been given other roles. As Driedger states, the proviso has been used as "an all purpose conjunction, invented by lawyers but not known to or understood by grammarians".^[1]

"Provided" and "provided that" have been used by the legal community to set up a condition, to create an exception to or a qualification of a general rule, and to create an additional requirement. The meaning in a particular instance will depend on the context. The practice of assigning multiple functions to the words "provided" or "provided that" can lead to ambiguity. Sometimes it is not possible to determine from the context what meaning to give them.

In order to avoid any ambiguity, "provided" and "provided that" should never be used in drafting regulations. They should be replaced by the appropriate conjunction, such as "if" or "when" for a condition, "unless", "but", "except that" or "nevertheless" for an exception or qualification, and "and" or a semi-colon for an additional requirement. The regulatory provision might also be rewritten to avoid the need for a proviso altogether.

There is no objection to using the verb "provide" as a transitive verb or followed by the word "for" or "against".

Part 4 – Table of contents

Footnote

• ^[1] Elmer A. Driedger, The Composition of Legislation (Ottawa: Department of Justice, 1976) at 96.