Background and Recommendation
The expression "pursuant to" is used in legal drafting to link a provision to another provision or to some factual matter. Although it is used in legal writing and in the legal community, it is not used in ordinary speech or writing. It is also sometimes ambiguous because it has a number of different meanings. For these reasons, legislative counsel should use another word or expression that is more common and, if there is a risk of ambiguity, more precise.
Alternatives to "pursuant to"
"Under" is perhaps the most generally applicable alternative. It is a more common word and has a range of meanings that match the many meanings of "pursuant to". For example, in Osman v. Callander (1986), 48 Sask.R. 23 (QB) at 24, the judge said:
The word "under" has many meanings -- in many instances, it denotes a lower or subservient state, but it also denotes a reference to or relationship with some other thing.
This comment also suggests that "under" is a broader term. "Pursuant to" tends to denote things that are principally or specifically dependent on a related provision, while "under" also includes things that are merely related to it.
Other alternatives are "in accordance with", "as required by", "described in", "authorized by", "on the basis of", "because of" and "as a result of". The following examples and commentary explain how these alternatives may be used.
Links to other Provisions
If a provision involves something that is established, issued or done, "under" can provide the link necessary to refer to the provision. For example:
an offence under section 5
This example could be used if section 5 creates the offence. However, it would also be appropriate if section 5 establishes procedures to which the offence is subject. If it is necessary to make the latter meaning clear, it is better to say
an offence described in section 5
Similar concerns arise with the following example:
a licence issued under section 5
In this example, "under" would most often link the licence to the authority for its issuance. However, section 5 may be related in another way. It may instead provide rules about issuing licences. If it is necessary to clearly refer to the authority for its issuance, it is better to say:
a licence authorized by section 5
By the same token, in order to convey unambiguously the sense of conformity with a set of rules, "in accordance with" or "as required by" should be used. For example:
- a licence issued in accordance with section 5
- a licence issued as required by section 5
These examples suggest not only that section 5 provides authority for issuing the licence, but also that it sets out rules governing or requiring its issuance.
Links to Factual Matters
When a reference is made to some factual matter, rather than another legislative provision, "on the basis of", "because of" and "as a result of" are good alternatives. For example:
- a warrant issued on the basis of information provided by a peace officer
- weeks for which benefits may be paid because of [or as a result of] illness
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