Punctuation with Restrictive/
Phrases (prepositional, participle, gerund and infinitive) and subordinate clauses (adverbial and relative) are a prominent feature of legislative provisions; therefore, it is important that they be accompanied by punctuation that helps convey the intended meaning of the provision.
An important consideration in this respect is whether a phrase or clause is restrictive or non-restrictive: it is restrictive if it is essential to the principal meaning of the sentence; it is non-restrictive if the principal meaning of the sentence is clear without it. In the latter case, the modifier is merely providing additional, as opposed to essential, information. (Accordingly, some people use the term "defining" instead of "restrictive" and "non-defining" instead of "non-restrictive.") Commas, when used carefully, help to highlight the restrictive or non-restrictive nature of a phrase or clause, and so the tendency to insert them between the various elements of a sentence without due care ought to be avoided.
The general rule for punctuating these elements is that, because a restrictive element is essential to the meaning of a sentence, it should not be set off by commas (or, for that matter, by dashes or parentheses), while a non-restrictive element should be set off by punctuation. Some people remember this rule by thinking that, for a restrictive element, the punctuation is restricted.
Restrictive: A vessel other than a barge shall be provided with the equipment set out in Schedule 1.
Restrictive: This Act applies in respect of crops grown in Canada except wheat and barley grown in the designated area.
Non-restrictive: An application referred to in subsection (1) shall include the applicant's name, business address, including the postal code, and telephone number.
In the restrictive examples, the phrases clearly provide information that is essential to the meaning of the sentence. In the non-restrictive example, "including the postal code" is an added detail.
Restrictive: Profits, income or gains of a resident of a Contracting State that are taxed in the other Contracting State shall be excluded.
Restrictive: Trustees shall not disclose confidential information concerning any professional engagement unless the disclosure is required by law.
Non-restrictive: The Fund may adopt periods other than those that apply in accordance with paragraph (c) above, which shall be the same for all members, for the repurchase of holdings of currency acquired by the Fund.
In the first restrictive example, the clause "that are taxed in the other Contracting State" identifies the profits, income and gains that are the subject of the exclusion and so is essential to the meaning of the sentence. Similarly, in the second example, the "unless" clause provides information about an important exception to the prohibition.
In the non-restrictive example, "which shall be the same for all members" is not essential to the principal meaning of the sentence, but is just extra information.
Legislative counsel are reminded that while English grammar allows "which" to be used in either a restrictive or a non-restrictive relative clause, the use of "which" for both types of clauses could result in some cases in ambiguity as to whether the meaning is intended to be restrictive or non-restrictive. As English grammar allows "that" to be used only in restrictive relative clauses, drafting practice is to use only "that" for restrictive relative clauses and to use "which" only for non-restrictive ones, which tend to be rare in legislation in any case.
Exceptions to the general rule
There may be occasions when an element, though restrictive in meaning, should be set off by commas because of the syntactical requirements of the sentence, as in the following examples:
the restrictive element refers to a notion in the previous sentence and so is placed before the main clause:
The Minister shall issue a registration mark for an aircraft that is in compliance with the standards. If the aircraft is not registered in Canada within 12 months after the day on which the registration mark was issued, the registration mark is cancelled.
The following types of situation can often be avoided by redrafting; however, when the particularities of the sentence require that the restrictive element be placed as shown, it has to be set off by commas (or by one comma, if the restrictive element is at the beginning of the sentence):
the restrictive element is followed by a modifier that should be read with the first part of the sentence only:
The value of the outstanding debt obligations, other than those payable to the bank holding company or to entities controlled by the bank holding company, of the specialized financing entity and any specialized financing entity of the bank holding company controlled by the specialized financing entity must exceed twice the value of the sum of the following:
A vessel, other than a tug or barge, that is about to engage on a minor waters voyage shall be provided with the equipment set out in Schedule 1.
the restrictive element cannot be placed in the normal position in a sentence because to do so would create ambiguity:
Subpart 1 does not apply in respect of aircraft that, under subsection 202.13(1), are not required to be registered.
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