Legistics
Paragraphing

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.

The logical relationship among paragraphed elements

When a legislative text sets out a series of items (a “list”) in two or more paragraphs, the reader needs to know what the logical relationship between the list elements is. Generally speaking, there are three logical relationships that we use with respect to such a list: (1) all of the elements in the list (but not less than all); (2) one of the elements in the list (but not more than one); and (3) any of the elements in the list in any combination.

Legislative counsel have commonly relied on the conjunctions "and" and "or" to express these relationships. The difficulty is that there are three logical relationships but only two conjunctions. The two conjunctions map to the three logical relationships as follows:

Figure 1: Logical Relationships

logical relationships

Thus, “and” and “or” are each capable of expressing two of the three possible logical relationships, and either of them can potentially be used to express the overlapping meaning “any combination of the elements”.

Sometimes the context will either make it irrelevant which sense of the conjunction is intended or make clear which sense is intended. In the following example one does not need to decide which meaning of “or” is intended:

X. A person is not required to pay an admission fee if they are

  • (a) under 18 years of age; or
  • (b) at least 65 years of age.

Because the conditions in these two paragraphs are in fact mutually exclusive, the reader does not need to determine whether the "or" between them is an exclusive “or” (one but not more than one) or an “or” meaning “any of the following”. If, however, one adds a further criterion in a third paragraph, one may need to make that determination. For example,

X. A person is not required to pay an admission fee if they are

  • (a) under 18 years of age;
  • (b) at least 65 years of age; or
  • (c) enrolled as a student at a university.

In this revised version, if the “or” is interpreted as meaning “any one but not more than one” of the listed criteria, the result would be that a person who is both a university student and either under 18 or 65 or older would have to pay admission. This does not seem reasonable. So, we draw the conclusion that the likely intention is the “any of the following” meaning, but this is a reasoned conclusion, rather than one that the text itself makes quite clear.

To avoid requiring the reader to reason her or his way to a conclusion as to the likely intended meaning (and still being left with some uncertainty), a legislative counsel can expressly state the logical relationship among the elements of a list. The legislative counsel can use words and phrases such as "both of", "either of", "any of", "one or more of", “only one of” and "all of". For example:

X. A person is not required to pay an admission fee in any of the following cases:

  • (a) the person is under 18 years of age;
  • (b) the person is at least 65 years of age;
  • (c) the person is enrolled as a student at a university.

By convention, federal Canadian English drafting has placed a conjunction at the end of the second-last paragraph. If the legislative counsel is relying solely on that conjunction to convey the logical relationship among the paragraphs, the reader will need to either look ahead to find that conjunction and then return to reading the list or read through the list without having the critical information as to the relationship among the elements until arriving at the conjunction. There is, therefore, a second reason to state clearly the logical relationship among the paragraphs in the opening words that precede them: it gives the reader this information earlier, facilitating ease of reading and comprehension.

Recommendation

If relying on the conjunction alone would leave the reader with any uncertainty as to what logical relationship among the paragraphs is intended, use an expression such as “all of”, “any of”, or “any one of” in the opening words to make the relationship clear. You should also consider doing this if the number or length of the paragraphs would place the conjunction far from the opening words.

Alert — Conjunctions with negation

Using negation before a conjunction affects which conjunction gives you the intended meaning.

A very informal illustration of this is the common expression of the prohibition on driving while impaired. We commonly and informally express this as a prohibition on “drinking and driving”. What we mean is essentially this: at any particular time, a person must refrain from one or the other of these behaviours (or both). It is a prohibition on the two activities in combination.

By contrast, if you provide that a person may not drink or drive, the prohibition is a prohibition on each of these activities, whether alone or together. Thus in this case, one must not drink and one must not drive.

For those with a bent for mathematics or formal logic, this behaviour of the conjunctions with negation was formalized as a rule of logic by mathematician and logician Augustus De Morgan as follows:

  • not (A and B) = not A or not B
  • not (A or B) = not A and not B

The conjunctions operate with negation in a similar way in the case of paragraphs. If the opening words negate the paragraphed elements, the appropriate conjunction will be or

Negating each of the elements

Prohibited activities

x. Except as permitted by this Part, a foreign bank … shall not

  • (a) carry on any business in Canada that a Canadian bank is permitted to engage in or carry on under this Act;
  • (b) maintain a branch in Canada for any purpose;
  • (c) establish, maintain or acquire for use in Canada an automated banking machine, a remote service unit or a similar automated service, or in Canada accept data from such a machine, unit or service; or
  • (d) control — or have a substantial investment in — a Canadian entity.

Conjunctions between paragraphs

Paragraphs can be part of either a continuing list or an introduced list. A continuing list is one where the sentence simply flows on into the paragraphs. An introduced list is, by contrast, one that is introduced by an expression ending in a colon.

In a continuing list, there must be a conjunction at the end of the second-last paragraph because it is grammatically necessary.

In an introduced list, if the logical relationship among the ensuing paragraphs is clearly set out in the opening words, the conjunction provides no further information and is not required.

Examples:

Continuing list

X. The application must be accompanied by

  • (a) the signed consent of the financial agent to so act;
  • (b) the signed consent of the auditor to so act; and
  • (c) a declaration signed by the leader of the party certifying that the electoral district association is an electoral district association of the party.

Introduced list requiring a conjunction to express logical relationship

X. The application must be accompanied by the following:

  • (a) the signed consent of the financial agent to so act;
  • (b) the signed consent of the auditor to so act; and
  • (c) a declaration signed by the leader of the party certifying that the electoral district association is an electoral district association of the party.

Introduced list setting out logical relationship in opening words (conjunction not required)

X. The application must be accompanied by each of the following:

  • (a) the signed consent of the financial agent to so act;
  • (b) the signed consent of the auditor to so act; [no conjunction required]
  • (c) a declaration signed by the leader of the party certifying that the electoral district association is an electoral district association of the party.

Punctuation of paragraphs

A semicolon is generally used at the end of every paragraph (except the last in a list). A comma is generally used at the end of lesser units of text (except the last in a list). This helps to distinguish the ends of paragraphs (when the paragraph ends with a subparagraph) from the ends of lesser units. However, there is one exception to this rule. Commas are used at the end of paragraphs that must be read together in order to make clear the meaning of a provision. This includes calculations ("total/aggregate of") and comparisons ("lesser/greater of") and continuing lists that use “both” or “either” in the opening words, as in the following examples:

X. The fee payable is the total of

  • (a) …, and
  • (b) ….

X. An application must be accompanied by both

  • (a) …, and
  • (b) ….

When should you paragraph?

You should consider the following factors when deciding whether to paragraph:

  • the length of the parallel units of text;
  • the number of parallel units;
  • the grammatical equivalence of the parallel units;
  • whether paragraphing is the best way to avoid ambiguity;
  • the continuity of the paragraphed text, particularly when subdividing paragraphs and using clause sandwiches.

The examples in the table show how to consider these factors.

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