Expressing Universality

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Introduction

One of the fundamental characteristics of laws is that they address groups of people, if not the country as a whole. They are, accordingly, drafted to speak in a universal way rather than to particular individuals.  This article discusses how to achieve this universality of address.

Although it may seem counterintuitive, drafting in the singular is generally preferred to the plural as the best way to achieve universality while minimizing ambiguity. As Dick says, "[t]his sidesteps the question of whether the 'legal action' or 'predicate' applies separately to each member of the class mentioned or jointly to the class as a whole." ^[1]

The preference for the singular^[2] is not in contradiction with the need to make legislative provisions apply universally. According to Quirk, the distinction between singular and plural, though important for specific reference, tends to be less crucial for generic reference, because generic reference is used to denote a class or species generally.^[3] Further support for drafting in the singular is provided by subsection 33(2) of the Interpretation Act, which states that "words in the singular include the plural, and words in the plural include the singular."

Universality in legislation can be said to be expressed either in relation to all the members of a given class or in relation to everyone.^[4] In either case, an accurate description of the subject depends on the judicious use of determiners such as a, an, any, every, each, all and no, and of pronouns such as everyone and anyone.

Discussion and examples

The discussion and examples that follow are meant as a guide. The article refrains from making specific recommendations, but rather sets out the various options available to legislative counsel when drafting a legislative text and the reasons why one option or another may be preferable in certain cases, depending on the intended meaning or the desired emphasis. The choice often seems intuitive, but perhaps only because the reasons for it have been so well assimilated that we no longer need to think about them.

1. Expressing universality in relation to a class

Singular indefinite articles: a, an

A, an

The singular indefinite article "a" or "an" is the first determiner a drafter should consider when referring to the subject of a provision, whether that subject is a person or a thing. Quirk tells us that the indefinite article, used generically, denotes any representative member of a class.^[5] Driedger points out that grammatically the indefinite article does not necessarily express universality, but that if an enactment is regarded as being addressed to each member of the community individually, the indefinite article has universal effect.^[6] As the examples below illustrate, the indefinite article in many cases can do the job quite well, whether the provision is conferring a power, privilege or right, imposing an obligation or prohibition, or setting out a rule of law:

• A court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of a dissenting offeree.
• An officer who is about to search a person under this section must ... without delay take the person before the senior officer at the place where the search is to take place.
• A mark or label on the safety equipment required by these Regulations ... must be in English and French.
• A by-law establishing a penalty must not be submitted to the Governor in Council for approval until it has been submitted for approval to the members and approved by them ...
• A witness who is served with a summons ... is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.
• A person who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Other determiners: any, each, every, all, no

Any

"Any" indicates an indefinite amount or number and therefore can be used with both the singular and the plural. According to Quirk, it can be substituted for the indefinite article "a" or "an" when that article is used generically. However, Driedger, Thornton and Dick all advise that "any" should be eschewed when a simple indefinite article will do. In the examples below (which, like the others, have been drawn from existing legislation), "any" could easily be replaced with an indefinite article without a change in meaning:

• Any (A) person who has filed a waiver may revoke it by filing with the Minister a notice of revocation ...
• Any (An) aircraft of a person referred to in subsection 9(1) or (2) that would be exempt from seizure under a writ of execution ... is exempt from seizure and detention under that subsection.
• Any (A) description that is required to be included in the publication or bulletins published under subsection (1) or (2) ... may be formulated in such a manner that ...

However, "any" is useful in the following ways.

Since one of its meanings is "it doesn't matter which/who/what",^[7] it can be used to emphasize generality, free choice or randomness. In the examples below, that emphasis would be lost if "any" were replaced with the indefinite article. It is up to the drafter to decide whether the emphasis is important.

• The Governor in Council may, by regulation, exempt any aircraft from seizure and detention under section 9.

• "container terminal" means any marine facility that accepts containers for transport.

• (1) Subject to subsection (2) ... , no vessel, other than a canoe or skiff that is not equipped for propulsion ... shall pass through a lock of the St. Ours, Chambly, Ste. Anne or Carillon Canal ... without a permit ...
  (2) Any vessel may pass through a lock of a canal referred to in subsection (1) for the purpose of obtaining a permit if the vessel does not proceed further along the canal than a lock station where permits are issued.

  [In subsection (2), the "any" emphasizes an exception that applies generally rather than just to a few vessels, as in subsection (1).]

Because of its generalizing function, "any" can be useful in provisions that confer a right, privilege or power to all the members of a class, because it leaves no doubt that any one of the members – and, by extension, all the members – may exercise that right, privilege or power^[8]:

• Any Minister of the Crown may, with the approval of the Governor in Council, enter into an agreement with the government of any province ...
• Any creditor may respond to a consumer proposal by filing with the administrator ...
• The Minister or any person designated by the Minister may issue a licence to any person who is qualified ...

Since "any" can also mean "if there is/are any" or "whatever there is/are",^[9] it is useful in provisions such as the following:

• An act of a director or officer is valid despite any irregularity in their appointment ...
  [There may or may not be an irregularity, but if there is, it does not invalidate the act.]

• Within 30 days after the expiry of the period referred to in subsection (1), the competent minister must consider any comments received ...
  [There may or may not be any comments, but if there are, the minister must consider all of them.]^[10]

• If a hazardous substance is stored ... in a work place, any hazard resulting from that storage ... must be confined to as small an area as is practicable.
  [Perhaps no hazard will result, but if any do, they must all be confined to the area.]

Each, every

Quirk states that "each" and "every" are distributive, because they consider the members of a set singly rather than as a group, and that apart from that they are often equivalent to "all" .^[11] Indeed, in certain contexts, any of these determiners can be used without a change in the essential meaning:

• The President must, as soon as feasible, notify all members of the revocation.
• The President must, as soon as feasible, notify every member of the revocation.
• The President must, as soon as feasible, notify each member of the revocation.

In other contexts, however, "each" and "every" are preferable to "all" because they make it possible to avoid ambiguity:

• Each/Every member is entitled to a certificate of membership.
  [One certificate each; no ambiguity.]
• All members are entitled to a certificate of membership.
  [Ambiguous: one certificate each or one between them?]

In some cases, "each" and "every" can be used interchangeably without an appreciable difference in meaning:

• The Board must meet at least once in each/every calendar year ...
• Every/Each inspector must be given a certificate in a form established by the Minister ...
• The Grievance Board must review every/each grievance referred to it ...

However, differences do exist between "each" and "every" that at times make one preferable over the other.

"Every" can have a generic interpretation^[12] that brings it closer to "all" in meaning and makes it a more appropriate choice when we are thinking of people or things together, as a group. It is therefore useful when we want to refer to all the members of a class while retaining the precision of the singular:

• This Part applies to every port authority set out in the schedule and to every port authority for which letters patent of incorporation are issued ...
• Every reference to the Ethics Commissioner in any deed, contract, agreement, instrument or other document ... is to be read as a reference to the Conflict of Interest and Ethics Commissioner ...
• There must be paid to every person who has held the office of Prime Minister for four years an allowance ...

Conversely, although "each" and "every" are both distributive, the distributive meaning is stronger with "each" , and this makes it more appropriate when we are thinking of people or things separately, one at a time, rather than collectively:^[13]

• For each type of application or licence, the base hours are the number of hours spent by the Commission.
• ... if a vessel security plan is prepared for more than one vessel, ensure that the plan takes into account the characteristics specific to each vessel ...
• The total remuneration that each officer receives in a fiscal year ... and the amount of any reimbursements or monetary benefits that each director receives in a fiscal year ...

"Each" is also the appropriate determiner when we are referring to one of not more than two people or things:

• Each spouse or common-law partner must be awarded the pension ...
• A seafarer is not required to meet the medical standards for visual acuity in each eye ...
• ... the Minister must lay the proposed regulation before each House of Parliament.

Just as he does with "any" in relation to the expression of a right, privilege or power, Dick advises using "each" to express an obligation imposed on every member of a class, if the indefinite article seems inadequate. Thornton advises using "every" for this purpose. As we have seen, however, the choice is really up to the drafter, and depends on the desired emphasis. The three examples that follow use different determiners to express an obligation. All three choices are correct. It is the emphasis that changes.

• A member of the board who wishes to resign must notify the Minister in writing ...
• Before assuming office, each member of the Legislative Assembly must take and subscribe before the Commissioner the oath of office ...
• Every person who is a Canadian citizen must, prior to being employed under these Regulations, take and subscribe an Oath of Allegiance ...

All

"All" is used to describe quantities of more than two. It can be used in legislation for clarity and emphasis when the plural is appropriate in the context and precision is not at issue:

• Whereas all Canadians are entitled to access to federal legislation in keeping with the common law and civil law traditions;
• The arbitrator has ... all the powers and duties of an arbitrator under sections 60 and 61 of the Canada Labour Code.
• ... sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
• All fees paid under the Act must be kept in an account entirely separate from moneys collected under the statute establishing the court.

No

This negative determiner can be used, with a positive verb, to emphasize a negative idea that could also be expressed using a positive determiner and a negative verb.^[14] The examples below show both options. Once again, the choice is the drafter's.

• No offender referred to in subsection (1) is required to serve [An offender referred to in subsection (1) is not required to serve] more than one half of the offender's sentence ...
• No operator contravenes [An operator does not contravene] subsection (2) if it is not reasonably possible for the operator ...
• No by-law made under paragraph ... has any effect [A by-law made under paragraph ... has no/does not have any effect] unless ...

The definite article: the^[15]

The

The definite article indicates identifiability. It can be used to denote universality in a noun phrase where the subject is identifiable and the identifiability is associated with uniqueness:^[16]

• The master of a vessel or the offshore installation manager of an MOU to which Division 3 applies must ensure that ...

  [What master? The master of a vessel, and each vessel has only one master. If it had more than one, we would probably write "a master of a vessel" . Ditto for "installation manager" .]

• Regulations made under this section may authorize the superintendent of a park ...

  [Which superintendent? The superintendent of a park. We understand from the wording that there is only one for each park.]

• If the whereabouts of the parents of a young person are not known or it appears that no parent is available, a notice under this section may be given ...

  [In this case, the uniqueness applies to a set of people rather than to an individual.]

2. Expressing universality in relation to everyone

When the law applies to every member of society rather than to every member of a particular class, universality is expressed using the terms "a person", "any person", "every person", "no person", "anyone", "everyone" ^[17] and "no one". In some cases, more than one of these terms is suitable:

• A person must not provide false information for the purpose of obtaining ...
• Any person (Anyone) may file in writing with the Minister a request ...

• The following persons are disqualified from being a director of a corporation:

  (a) anyone (any person) who is less than 18 years of age; ( ... )

• Every person (Everyone) is guilty of an offence who wilfully makes ...
• Every one (Everyone) who counsels another person to be a party to an offence is ...
• English and French are the official languages of Parliament, and everyone (every person) has the right to use either ...
• No person (No one) is excluded by this Order from any requirement ...

3. Plural nouns

There are some cases – usually when the provision does not create a rule of conduct – in which it is acceptable to use the plural to express universality or some other general idea. Some examples were provided under "All" above. Below are others: ^[18]

Preambles and purpose provisions

• WHEREAS Canadians and people everywhere are entitled to live their lives in peace, freedom and security;
• The purpose of this Act is to contribute to the ... rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.

Application provisions

• This Act applies to lighthouses that are the property of Her Majesty in right of Canada.
• These Regulations apply to engines of the 2006 and later model years.
• This Act applies to persons eighteen years old or older who are alleged to have committed an offence while a young person.^[19]

Empowering provisions

• The Minister may designate persons or classes of persons whom the Minister considers qualified to act as inspectors for the purposes of this Part.
• The Minister may make regulations amending the schedule by adding, deleting or amending the name of any communicable disease.
• The Commission may establish procedures respecting ...

4. Some thoughts about the French practice^[20]

It is worth mentioning, for the sake of legislative counsel who are new to co-drafting, that, in French, the rules governing the expression of universality are not the same as in English. For example, the preferred determiner for this purpose in French is the definite rather than the indefinite article, and it can be used in either the singular or the plural. In French, the existence of grammatical genders and the use of subject-verb and subject-adjective agreement often make it possible to achieve clarity whether the legal subject is singular or plural. Other differences in drafting conventions and in the operation of the language sometimes result in provisions that look rather different from their English counterparts but share the same meaning. Below are some examples:

Sources

• Attal, Jean-Pierre. Grammaire et usage de l'anglais. Paris-Gembloux: Éditions Duculot, 1987.
• Department of Justice Canada. English Legislative Drafting Course. Course material.
• Department of Justice Canada. Guide fédéral de jurilinguistique législative française. "Expression de la généralité" .
• Dick, Robert C. Legal Drafting in Plain Language. Third Edition. Scarborough: Carswell, 1995.
• Driedger, E.A. The Composition of Legislation. Second Edition. Ottawa: The Department of Justice, 1976.
• Huddleston, Rodney and Pullum, Geoffrey K. The Cambridge Grammar of the English
• Language. Cambridge: Cambridge University Press, 2005.
• Quirk, R. et al. A Comprehensive Grammar of the English Language. Harlow: Longman, 1985.
• Swan, Michael. Practical English Usage. Third Edition. Oxford: Oxford University Press, 2005.
• Thornton, G.C. Legislative Drafting. Fourth Edition. West Sussex: Tottel Publishing Ltd, 2007.

Footnotes

• ^[1]    Dick, p. 71. The author gives as an example the following sentence: "The inspector shall issue clearance certificates for the tests listed in Schedule A." The sentence "does not indicate the number of certificates that must be issued in relation to the number of tests in Schedule A."
• ^[2]    The practice of drafting in the singular does have exceptions. These are discussed under "All" (in section 1) and "Plural nouns" (in section 3).
• ^[3]    Quirk, p. 265.
• ^[4]   Driedger indicates on page 19 that, when the application of laws is confined by a class description of the subject, the law is expressed to be universal in relation to the described class, although it is not universal in relation to all persons.
• ^[5]   Quirk, p. 281.
• ^[6]   Driedger, p. 10.
• ^[7]   Quirk, p. 391; Swan, p. 47.
• ^[8]   Swan, p. 48: "Any and every can both be used to talk in general about all the members of a class or group" . Dick, p. 144, Rule 24: "Where a right, privilege, or power is conferred, use any (as in "any Trustee may)".
• ^[9]   Swan, p. 46.
• ^[10]   Huddleston and Pullum, p. 382. In this example and the next, the obligation to consider and confine all the things mentioned is imposed by the modal verb "must".
• ^[11]   Quirk, pp. 382-383.
• ^[12]   Huddleston and Pullum, p. 378.
• ^[13]   Ibid., pp. 378-379; Swan, p. 153. The first source illustrates this difference between "each" and "every" indirectly by stating that one can say "almost every student passed" , but not "almost each student passed" . The modification of "every" is possible because, unlike "each", it can be interpreted collectively. Consider also what Attal says about these determiners: "EVERY ... correspond au distributif indéfini français chaque; mais il traduit aussi ... tous (toutes), car il a toujours un sens collectif"; and "EACH correspond à l'indéfini français chaque. A l'inverse de every,il insiste sur l'unité indépendante; c'est un distributif." Attal, pp. 212-213.
• ^[14]   Bear in mind, however, that the expressions "no person must" and "no person may" are to be avoided in legislation. Information on the current policy for drafting prohibitions can be found in the Legistics article "Expressing Obligations and Prohibitions".
• ^[15]   The definite article is also discussed in the Legistics articles "Cross-references" (which advocates its use in a series of provisions to avoid excessive cross-referencing) and "Gender-neutral language" (which presents it as one way of replacing a possessive noun in order to ensure gender neutrality).
• ^[16]   Huddleston and Pullum, pp. 368-371; Quirk, p. 268.
• ^[17]   Traditionally written as "every one" in the Criminal Code. For the correct use of the words "anyone" , "any one", "everyone" and "every one", see the Legistics article "Everyone and Anyone".
• ^[18]   See also the Legistics article "Gender-neutral Language", which states that the plural may be used to avoid gender-neutral language if doing so would not create an ambiguity.
• ^[19]   In this example, the singular might have been preferable, to avoid the shift from the plural "persons" to the singular "while a young person". Consider the following examples of application provisions, where the consistent use of the singular makes it possible to describe with precision a somewhat complex idea or subject:

  This Act applies to every corporation incorporated and every body corporate continued as a corporation under this Act that has not been discontinued under this Act.

  This Act applies to a reserve as if it were a marine conservation area.

• ^[20]   The French approach to this subject is discussed thoroughly in the article "Expression de la généralité", in the Guide fédéral de jurilinguistique législative française.

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