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Consider
Legistics est un recueil d’articles portant exclusivement sur les questions de rédaction en anglais des textes législatifs. La nature même de l’ouvrage fait en sorte qu’il n’est offert qu’en anglais.
Introduction
"Consider" is used in federal legislation in at least three senses:
- deliberate, look at, examine, take note of, weigh,
- determine, decide, judge, believe, form an opinion,
- deem, treat, regard.
This article discusses these meanings and offers suggestions on the use of "Consider" to convey them.
Deliberate
This sense arises when a person or body is required to "Consider" something, for example,
2) Where no party raises the question of forfeiture under subsection (1), the Tribunal or court shall consider the question on its own motion.
Courts have interpreted it in this sense to mean that the person or body must turn their attention to the relevant matter. One of the most authoritative cases is Walters v. Essex County Board of Education (1973) 38 D.L.R. (3d) 693 (SCC). It involved a provision that required an authority to "consider the report of the inquiry officer"
when approving or disapproving a proposed expropriation. Laskin J said at 397-398:
What, then, is involved in its duty to "Consider" the report? Certainly, the board must have the report before it (…). Although the word "Consider" imports a time element, I do not think a Court can or should impose any arbitrary temporal standard any more than it can or should monitor the degree of required concentration upon the contents of the report. (…) Unless the good faith, indeed the honesty, of the members of the board is called in question, the fact that they are briefed or counselled in advance to a rejection of the report is not a ground for concluding that they did not "Consider" it. I do not read the duty to "Consider" as imposing upon an approving authority an obligation, if its decision is adverse to the opinion expressed in the report, to show by its written reasons that its adverse decision is reasonably founded and hence run the risk of review by the Courts if they should conclude that it is not.
Other courts have found "Consider" to have the following meanings:
- to actually review something [a document] and to turn one's mind to its contents in good faith (Newfoundland Provincial Court Judges v. Newfoundland (1998) 160 D.L.R. (4th) 337 (Nfld SC)),
- to reflect upon, but not to make allowance for (Re Scott and Reimer, (1971), 22 D.L.R. (3d) 243 at 245 (ManCA)),
- to direct one's mind to the subject-matter (Toronto Birth Centre Inc. v. Ontario (Min. of Health) (1996), 92 OAC 74),
- to give an ear to a person or organization, but not to follow the dictates of that person or organization (Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1998), 162 D.L.R. (4th) 625 FCA)),
- to take something [principles] into account, but not necessarily to follow them (Bruce v. Ontario (1998), 41 OR (3d) 309 (CA)).
Determine, Decide
The Oxford English Dictionary, 2nd ed., recognizes "estimate, reckon, judge" as one meaning of "Consider". Although there is little discussion of this meaning in Canadian case law, a US case, Terrill v. Auchauer, 14 Ohio St. 80, 85, has recognized "Consider" as meaning "adjudge and determine" . This sense occurs in the following provision:(2) Where a person has designated information as confidential pursuant to paragraph 46(1)(a) and the Tribunal considers that, by reason of its nature, extent or availability from other sources …, the designation of that information as confidential is unwarranted, the Tribunal shall …
Deem, Treat As
In the US, Words and Phrases (West Publishing, vol. 8A at 230) says that "deemed" has been variously defined as being synonymous with "considered". It cites as an example Lumbermen's Mut. Casualty Co v. McIntyre 21 SE2d 446. However, as the article on Deem indicates, this is only one of the meanings of "deemed" and "Consider" cannot always be equated with the other senses of "deemed", particularly in terms of creating a legal fiction.
"Consider" has also been equated to "be treated as". For example, a statute providing that a chattel mortgage shall be 'considered' as recorded when received, meant that after the delivery and entry the effect shall be the same as if actually spread upon the records (Jones v. Parker, 73 Me. 248, 251). An example of this sense in Canadian legislation is:
2) (The duties payable under subsection (1) shall be paid to the Receiver General at such time and in such manner as is prescribed by the regulations, and shall not be considered to have been paid until they are received by the Receiver General.
"Consider" has also been held to mean "declare as a fact". For example, in a clause in an agreement stating that, upon the realization of certain conditions, property was to be "considered" as belonging to the defendant, "considered" rendered the expression equivalent to a declaration that the defendant owned the property: Vedder v. Davis 1 N.Y.S. 886, 887, 49 Hun, 611.
What follows "Consider"
Fowler's Modern English Usage (3rd ed.) (Oxford: Clarendon Press, 1996) notes that "Consider" can be followed by "as", "to be" or nothing at all: "We consider him a genius / as a genius / to be a genius". It states that the choice among these variants
does not seem to be based on particular rules, but rather on the nature of the surrounding words. Economy points in one direction and the rhythm of the sentence in another.
In addition to these three constructions, "Consider" can also be followed by a full clause: "We consider that he is a genius."
Conclusion
"Consider" has several well-recognized senses and can be used to convey concepts that occur regularly in legislative texts. Since it is generally used and understood, it may also be a good substitute for "deem".
