Traditional drafting in English regards each section and subsection as independent thoughts that must stand on their own. It also considers paragraphs and other subsidiary units of text in much the same way. As a result, a specific cross-reference is usually inserted whenever a reference is made in one provision (section, subsection, paragraph, etc.) to something in another.
This approach is based on the need to avoid ambiguity. It also recognizes that many people read legislative texts piece-meal, particularly lengthy ones, looking for an answer to a particular question. They want to find a provision that gives them their answer and skim the text or the marginal notes until they find one that appears to provide the answer. If the provision refers to something without a specific cross-reference, they must read the accompanying provisions to find the reference.
Although cross-references help eliminate ambiguity and make it easier to read legislative texts piece-meal, they also have disadvantages. When legislative texts are amended or drafts are renumbered, care must be taken to correct cross-references. Cross-references interrupt the reading of a text by referring the reader to a numbered provision, which must then be translated into the idea contained in that provision. The interruption is particularly bothersome when the cross-reference is quite detailed. Although the current convention on compound cross-references is much simpler than it was in the past we now say "subparagraph 2(2)(a)(i)" rather than "subparagraph (i) of paragraph (a) of …"), there are still times when cross-references are convoluted, for example references to paragraphs or subparagraphs of a definition ("paragraph (a) of the definition "Federal land" in section 2").
Legislative counsel should rely on context when a provision (section, subsection, paragraph, etc.) refers to something in a neighbouring provision. Readers can 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, it will indicate 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.
Examples of Ways to Link Ideas without Cross-references
The simplest way to connect ideas is by using the definite article in a series of provisions:
- (1) A person who is at least 18 years of age may apply to the Minister for a licence to fish on a recreational basis.
- (2) The application must be in the prescribed form and be accompanied by the prescribed fee.
- (3) On receiving the application, the Minister may issue a licence in the prescribed form authorizing the person to fish on a recreational basis and may specify any prescribed terms and conditions in the licence.
- (4) The Minister may make regulations prescribing the fee, the form of the licence and any terms and conditions that may be specified in it.
The definite article can also be used to link ideas among paragraphs:
A disposal permit may specify, or impose requirements respecting,
(a) the quantity or concentration of any substance that may be released into the environment, either alone or in combination with any other substance from any source or type of source;
(b) the places or areas where the substance may be released;
(c) the commercial, manufacturing or processing activity in the course of which the substance may be released;
(d) 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; …
Specific Words and Phrases
Another way of connecting ideas without cross-references is to denote the ideas using specific words or phrases that differentiate them from similar ideas. For example, in the licence provision above, the licence could be referred to as a "recreational fishing licence", rather than the more generic "licence". Similarly, the "fee" in subsection 4(4) could be referred to as the "application fee".
Definition and Application Provisions
Even further precision is possible by using a definition. For example, if an administrative body is established in section 4, a definition can be included to tie references to the name of the body back to section 4. However, the defined word or phrase should be as informative as possible so that the reader will know that it is a specific body (for example, the "Trade Tribunal") and not a generic reference ("tribunal").
Alternatively, an application provision can be included to say that particular provisions apply to the administrative body.
Definitions and application provisions should only be used when there are many references throughout the legislative text. They are unnecessary when the object of the definition or application provision is mentioned only in a few provisions that are grouped together. In these cases, the proximity of the references should dispell any ambiguity.
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