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Deem
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.
Background
"Deem" is a legal term that is used frequently in federal legislation (on the FOLIO database, about 4,600 times in statutes and 1,900 times in regulations).
Its basic use is to create a legal fiction - to provide that the legislation is to be applied as if some fact were different from what it is in reality.
"Deem" has also been used for a variety of other purposes, including
- to change the meaning of terms, for example by "deeming" a word to mean something,
- to alter the application of legislative provisions, for example by providing that they apply in ways that they would not otherwise apply,
- to confer discretion, for example by authorizing a public official to do something that they "deem" necessary,
- to create a presumption, for example by providing that something is "deemed" to have happened.
- it is a legal expression that does not have any clear meaning in ordinary discourse,
- its use often results in leaving important details of the legislation to be worked out by the reader and, if not used carefully, it can lead to undesired results.
Also, "deem" in regulations may raise concerns about the validity of the regulations. However, this problem is beyond the scope of an article such as this, which focuses on linguistic issues.
Finally, the Legislation Deskbook (Section 3.17 Amendments - Changing References) says:
Interpretive provisions that "deem" one reference to mean another should not be used because they do not result in a textual amendment that can, for example, be made to the legislative database.
This article discusses the various ways in which "deem" has been used in legislation. It also identifies situations when it should not be used and recommends alternative expressions.
Creating legal fictions
The following is an example of how "deem"is used to create a legal fiction:
(2) A document that is served on a holiday or after 5:00 p.m. at the recipient's local time is deemed to be served at 9:00 a.m. on the next business day.
Here, a fact (the time of service) is changed for the purpose of applying other provisions that involve the time of service. The legislation does not change the fact; it makes the other provisions apply as if the facts were otherwise.
"Deem" can also be used to confirm a fact that might otherwise be disputable or hard to determine, as in the following example:
30. A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person's birth.
Finally, another important type of legal fiction occurs with retroactive commencement provisions. These usually say that provisions "are deemed to have come into force" on a particular date in the past. Here, "deemed" signals retroactivity, as the Federal Court of Appeal has recognized in CI Mutual Funds Inc v. Canada [1999] 2 FC 613 (CA).
Changing meaning
"Deem" has been used to change the meaning of a particular expression and in this sense its use is similar to the creation of legal fictions, for example
(a) "game" is deemed to include reindeer, carcasses or part of them;
However, definitions and other interpretive provisions should be drafted using the present indicative of verbs such as "means" and "includes"(for example, "game" includes reindeer). Legislative authority includes the power to narrow or enlarge the meaning of the words used, subject to the substantive limits of the authority. "Deemed" should not be used in these circumstances.
"Deem" has also been used when stating rules of law that function like definitions, for example
(3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.
Although this may seem like a legal fiction, there is nothing fictitious about the result of this provision: the amount received becomes public money. This provision is simply stating a rule about how the money is to be treated. Like other rules of law, it should be stated using the present indicative (see Present indicative in Part 3):
(3) An amount received … is public money …
This particular rule of law is formally similar to a definition: it extends the meaning of "public money". However, because of its substantive nature, such rules are not generally drafted as definitions.
Application provisions
Application provisions are another type of rule of law in which "deem" has been used, for example
57. Where duties are imposed on goods according to a specific quantity or a specific value, such duties shall be deemed to apply in the same proportion to any larger or smaller quantity or value, and to any fractional part of such specific quantity or value.
This example extends the application of customs duties to quantities or values other than those to which they expressly apply. However, this should be done more directly by saying "such duties apply in the same proportion …"
Sometimes a provision is intended to alter the application of some other law (other than the one that contains the provision). Generally speaking, the best way to do this is to amend the provisions of the other law (if it can be opened for amendment) or to reproduce the relevant provisions in the new law (if those provisions are not extensive or are an important feature of the new law). However, this is not always possible. In these cases, deeming provisions have been used, like the following:
(2) Employees appointed under subsection (1) are deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act.
The Public Service Superannuation Act applies to people who are employed in the Public Service. The provision in this example extends its application to a group of people who are not so employed without altering the status of the employees for any other purpose. It can be understood as either altering the scope of the PSSA or as incorporating that Act by reference into the Act that contains this provision.
It is also possible to extend the application of another law without using "deem", as in the following example:
(2) The Public Service Superannuation Act applies to employees appointed under subsection (1).
However, there are two differences between the deeming and application approaches. First, the application approach makes all the provisions of the PSSA apply, while the deeming approach makes only some of its provisions apply (those that mention employees or employment in the Public Service). Secondly, the deeming provision makes it clear that the scope of the other Act is being extended to people that it does not otherwise cover. This is less obvious in the application provision, which may give the impression that it is merely providing information about the scope of the PSSA. However, this impression can be avoided by adding an "as if" clause:
(2) The Public Service Superannuation Act applies to employees appointed under subsection (1) as if they were employed in the Public Service.
Confer discretion
"Deem" is sometimes used to confer discretion to determine or decide something, for example
9. (1) The Minister may, in order to carry out the purposes and provisions of this Act, establish advisory committees that the Minister deems necessary and appoint the members of those committees.
In this example, "deem" is used to give the Minister discretion to determine what advisory committees are necessary. This sense should be expressed using more common terms, such as "decide" or "consider" (see the article on Consider in this Part).
Creating presumptions
"Deemed" is sometimes used to create a presumption that something is the case, even though it is not necessarily so, for example
45. A municipal council is deemed to have consented to the issuance of a demolition permit if, within 15 days after the permit is issued, the council does not give notice of its intention to review the permit.
In the example, consent is presumed to have been given in the circumstances to which this provision applies. However, it leaves open the question of whether the presumption is conclusive or rebuttable. In Re St Peter's Church (1982) 140 DLR (3d) 577 (SCC) the Court considered the provision in the last example. At 595, McIntyre, J stated:
It is true, of course, that the words "deemed" or "deeming" do not always import a conclusive deeming into a statutory scheme. The word must be construed in the entire context of the statute concerned.
In this case, the majority found that conclusive deeming was intended (see also Re Rogers and McFarland (1909), 19 OLR 622 and St. Leon Village Consolidated School District (1960), 31 WWR 385 (ManCA)). However, in some cases it has been held to mean rebuttably presumed until the contrary is proved (see Foncier Franco-Canadien v. Bennett (1963), 43 WWR 545 at 547).
"Deemed" should not be used to create a presumption. Other expressions should be used to avoid ambiguity about whether a conclusive or rebuttable presumption is created, for example "conclusively presumed" or "presumed in the absence of evidence to the contrary".
Recommendation
"Deem"should be used only when it is necessary to create a legal fiction. It should not be used for definitions or application provisions or for the creation of presumptions or discretionary powers.
This article is based on ELLCDN 2001-3.
