PART 5
DEVELOPING REGULATIONS
The Basic Steps and the Plain Language Approach

4. PLAIN LANGUAGE DRAFTING (Continued)

4.2 Key Rules for Plain Language Regulations (Continued)

• 4th Use Language that your Readers can Understand (Continued)

  • (E) Avoid Double Negatives

    Try not to use double negatives, since it is much easier to understand positive statements.

    For example:

    Instead of writing:
    A person who is not a designated person must not enter the regulated zone.

    Write:
    Only designated persons may enter the regulated zone.

    Double negatives can also be avoided by using the phrase "at least" instead of "not less than" or by using the preposition "unless" or "without", instead of "if … not". For example,

    Instead of writing:

    • A person who is not less than 18 years old must not …

    • A person must not enter the regulated zone if the person does not show their identity card.

    Write:

    • A person who is at least 18 years old must not …

    • A person must not enter the regulated zone without showing their identity card.

  • (F) Pay Attention to Word Order in Sentences

    The way words are put together in sentences has an important effect on how easily they can be understood. Traditional legal drafting often distorts the usual word order to achieve greater precision. This most often occurs when a complex series of ideas is compressed into a single sentence. Certain components of the sentence may have lengthy modifiers. The modifiers are placed next to the components they modify in order to avoid ambiguity about what they modify. For example, a verb modifier may be placed between the auxiliary and the main verb:

    The Minister may, with the approval of at least five members of the Council and after consultation with interested persons, issue a licence …

    This sentence leaves the reader looking for the main verb while having to read subordinate material that makes no sense until the verb is completed. This split between the main verb and its auxiliary can be avoided by rewriting the sentence:

    The Minister may issue a licence if at least five members of the Council approve and the Minister is of the opinion that all interested persons have been notified and adequately consulted.

    Another common problem is putting lengthy conditional clauses at the beginning of a sentence. This makes it difficult for the reader to find the main clause and understand what the sentence is about. In these cases, the reader has to read twice: once to find the main clause and a second time to understand the conditional clause and fit it together with the main clause.

    For example,

    If the Minister is of the opinion that all interested persons have been notified of the licence application and have been adequately consulted and at least five members of the Council approve, the Minister may issue a licence …

    This problem can be easily avoided by redrafting the sentence as shown above. Finally, as noted above in the discussion about organizing regulations, exceptions to a general rule should follow the rule, not come before it. Long exceptions should be put in a separate sentence.

  • (G) Use Short Sentences

    Few people can plough through a long, convoluted sentence and remember how it began. Usually, people have to read a long sentence over and over before they understand its meaning. This is particularly true of legislative sentences. Long, dense blocks of text are intimidating to most readers and make it very difficult for them to pick out the information they need. Try to break up the information into components that the reader can recognize and understand. A long, convoluted sentence can be simplified by using paragraphs (discussed below under Formatting Features at p.26) or by dividing it into more than one sentence. Shorter sentences are easier to read and understand. They also often lead to a clearer description of the regulatory requirements, in contrast to long sentences with numerous modifying phrases. However, success is a matter of balance. Too many short sentences can make a text disconnected and threaten the relationship between the ideas that are being conveyed.

    The following example shows how a long sentence can be broken up and made easier to read:

    Original Version

      2. Where any person who intends to oppose or intervene in any application fails to file his reply or submission with the Secretary or to send a copy thereof to the applicant within the time specified in the notice of application for filing a reply or submission with the Secretary, the application may be heard and determined without further notice to that person, except that nothing in these Rules shall be construed as authorizing the Board to suspend or cancel any certificate or licence without a public hearing and without notice thereof having been given to the holder of the certificate or licence and an opportunity having been afforded to such holder of being heard, or, in the case of an application for a certificate, to dispense with considering the objections of any interested person within the meaning of section 45 of the Act.

    Revised Version

    •   2. (1) An application may be heard and decided without further notice to a person who intends to oppose the application or intervene if the person fails to file a reply or submission with the Secretary or to send a copy of it to the applicant within the time specified in the notice of application.

    • (2) Despite subsection (1), these Rules do not authorize the Board

    • (a) to suspend or cancel a certificate or licence without a public hearing and without giving the holder of the certificate or licence notice and an opportunity to be heard; or

    • (b) in the case of an application for a certificate, to dispense with considering the objections of any interested person within the meaning of section 45 of the Act.

  • (H) Consider Using More than One Sentence in a Section or Subsection

    A section or subsection should normally consist of a single sentence. However, more than one sentence may be used if

    • the additional sentence is subordinate to the first or otherwise deals with the same idea;
    • making it into a separate subsection would put undue emphasis on it; and
    • the section or subsection does not become too long as a result.

    For example,

    A person directly affected by the decision is entitled to bring an appeal to the Minister. The person must give notice of the appeal to other directly affected persons.

  • (I) Avoid Excessive Cross-references

    Cross-references are used to link ideas contained in different provisions of a set of regulations. The way cross-references are made has been simplified by sections 40 and 41 of the Interpretation Act. For example, you can refer to a subparagraph by writing "subparagraph 2(1)(a)(i)" rather than "subparagraph (i) of paragraph (a) of subsection (1) of section 2". In addition, it is unnecessary to add the phrase "as amended" in order to incorporate subsequent amendments to a referenced provision.

    Traditional English drafting uses cross-references whenever a reference is made to something in another provision (section, subsection, paragraph, etc.). However, you can often rely on context when a provision (section, subsection, paragraph, etc.) refers to something in a neighbouring provision. Readers may be expected to read the provisions together. Having read the first one, they can carry forward its ideas into subsequent provisions, as long as there are no intervening provisions to disrupt the flow of ideas or introduce ambiguity.

    The assumption that a series of provisions will be read together is particularly strong with subsections of a single section. By numbering them as subsections, the drafter indicates that they are closely linked and should be read as a group.

    This assumption also applies when a heading is used to group a series of sections together. The heading indicates that the sections have a common theme and should be read together.

    The following examples show how cross-references can be avoided by relying on context:

    4.

    • (a) A person who is at least 18 years of age may apply to the Minister for a licence to fish on a recreational basis.

    • (b) The application must be in the prescribed form and be accompanied by the prescribed fee.

    • (c) On receiving the application, the Minister may issue a licence to the person in the prescribed form and may specify terms and conditions in the licence.

    • (d) The licence authorizes the person to fish on a recreational basis, subject to any terms and conditions specified in the licence.

    • (e) A disposal permit may specify or impose requirements about

    • (f) the quantity or concentration of any substance that may be released into environment either alone or in combination with any other substance from any source or type of source;

    • (g) the places or areas where the substance may be released;

    • (h)the commercial, manufacturing or processing activity in the course of which the substance may be released; and

    • (i)the manner in which and conditions under which the substance may be released into the environment, either alone or in combination with any other substance.

• 5th Use Formatting Features to Help your Readers

  In addition to writing in language your readers can understand, you can also help them by using formatting features, such as titles, headings, marginal notes and Table of Contents. These features will help readers find the information they need. Another helpful feature is the division of lengthy or complex sentences into indented paragraphs to make them easier to understand.

  • (A) One Title

    Traditionally, there has been a long title and a short title for every set of regulations, other than amending regulations. The long title appeared in the order in council or other executive order used to make the regulations. The short title was set out in section 1 of the regulations. Once the regulations were made, the long title fell into disuse, and the regulations were referred to by their short title only (as they are in, for example, the Consolidated Index of Statutory Instruments).

    The use of both long and short titles has created confusion for readers, and long titles are no longer used for regulations. The short title should be as informative as possible about the subject matter of the regulations. However, as its name indicates, it should also be short and to the point.

  • (B) Headings

    Headings can be placed before groups of sections to indicate that they have a common theme or subject matter. Different levels of headings can also be used, depending on how the regulation is organized. For example, divide a regulation into parts with headings to indicate what they deal with. In turn, parts can be subdivided into groups of sections under a series of headings to indicate their subject matter with greater particularity.

  • (C) Marginal Notes

    Marginal notes are short notes printed in the margin beside sections or subsections to tell the reader what the provision is about. They also help the reader to find particular provisions. If you include marginal notes, you must do so consistently throughout the new regulations.

    The key to success with this feature is to keep the note short. The marginal note should not be a summary of the section; it should merely state its subject matter. To see examples of the proper use of marginal notes, you can refer to federal statutes, where they have long been used, or to the example of plain language redrafting of the Explosives Regulations at the end of this section.

    Marginal notes do not form part of the regulation itself. They are inserted for convenience of reference only (see section 14 of the Interpretation Act).

  • (D) Table of Contents or Provisions

    Table of Contents or provisions give readers an overview of the structure and content of the regulations. This overview helps them find the information they need when they begin reading the regulations. The longer the regulations, the more important it is to have this overview. There are two standard formats for these tables. One is based on headings and, because of its generality, it is called a table of contents. The other is based on both headings and marginal notes. Because it is more detailed, specifying something about the contents of each provision, it is called a table of provisions. In very lengthy regulations, you should consider having both types of tables: a table of contents for the entire set of regulations and tables of provisions for each part or schedule. Developing these tables will influence the choice and use of headings so that the table strikes a balance between detail and generality.

  • (E) Paragraphing

    Paragraphing is a formatting technique that divides a sentence into blocks of text and allows the reader to quickly grasp the grammatical structure of a complex sentence. It also avoids ambiguity and can be used when a sentence contains two or more parallel elements.

    For example,

    The Minister may issue a licence if the Minister is of the opinion that all interested persons have been notified of the licence application and have been adequately consulted, a majority of members of the Council approve of the issuance of the licence and the applicant for the licence meets the requirements of these regulations.

    This provision can be divided into three paragraphs.

    The Minister may issue a licence if

    • (a) the Minister is of the opinion that all interested persons have been notified of the licence application and have been adequately consulted;
    • (b) a majority of the members of the Council approve of the issuance of the licence; and
    • (c) the applicant for the licence meets the requirements of these regulations.

    Paragraphing this sentence highlights the main idea (the power of the Minister to issue a licence) and immediately indicates that the power depends on three conditions being met.

• 6th Test to see if you have Achieved your Purpose

  See section 5 entitled "Test the Draft Regulation".

4.3 Choosing the Elements To Use

As stated at the beginning of this section, the techniques outlined in this section are optional. Your choice of which ones to use will depend on the nature of the regulations, their intended readers, and the time and resources available to you. Although some of these techniques are always effective, others may not work in all cases, particularly when you are preparing amendments to existing regulations. Consistency of language and format is an important principle when writing regulations. Inconsistency in wording can lead to interpretational problems because it suggests that different meanings are intended. Similarly, the addition of new formatting features, such as marginal notes, in some places but not others may create a confusing patchwork. Finally, usability testing may not be possible because of the limited time and resources available to conduct it. It will be a question of judgment whether usability testing is worthwhile, depending on the extent and impact of the amendments.

4.4 Example of Plain Language Redrafting

The following example shows the differences between the traditional way of writing rules and the "plain language" approach. The first text which attempts to address the requirements for the storage and handling of all types of fireworks pyrotechnics and ammunitions, is from the existing Explosives Regulations, C.R.C., c . 599. The second text is from a set of draft regulations that focuses solely on consumer fireworks.

In the second version, not only has the presentation been improved, but the ideas have been reorganized and set out in a more coherent, understandable way. The overall result is a regulation that is easier to read and understand.

Current Regulation

Re-drafted Regulation

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