A fundamental, but seldom discussed, aspect of legislative drafting is the tense and mood of verbs. One of the few texts that deals with this question is subsection 24(1) of the Legislative Drafting Conventions of the Uniform Law Conference of Canada, which says:
24. (1) Verbs should appear in the present tense and indicative mood unless the context requires an exception.
The use of "shall" as an imperative is the major exception to this rule.
The purpose of this note is to elaborate on this apparently simple rule and to suggest that using the present indicative in some circumstances can result in ambiguity about whether a provision imposes a requirement or confers a discretionary power.
The basis for using the present tense in legislation is expressed in section 10 of the Interpretation Act, which says:
10. The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.
This rule reflects the perspective of someone interested in how the legislation applies to them in the present. This perspective is preferred over the future tense (which would reflect the perspective of the legislator considering whether the legislation should be enacted) and the past tense (which would reflect the perspective of a court applying the law to facts that have already occurred). Tenses reflecting these other perspectives should only be used in subordinate clauses expressing actions that take place either before or after the action in the principal clause. For example,
- A judge may make a probation order if the judge is satisfied that the accused will comply with the terms of the order.
- A judge may issue a restraining order against a person who has harassed the person applying for the order.
Note that in the second example, the tense is the present perfect, which is used to express past action that may continue up until the present. This tense is commonly used in legislation because of its temporal range and the consequent "indefiniteness which makes it an appropriate verbal expression for introducing a topic of discourse." (See R. Quirk and S. Greenbaum, A University Grammar of English (1973) at 43-44).
Indicative Mood and Modal Verbs
Rodney Huddleston in English Grammar: an outline (Cambridge: 1988) at 79 suggests that the present indicative is generally used to make "assured factual assertions", while modal verbs "would be typically used for permitting, directing, undertaking rather than for asserting facts." He provides the following examples:
|Modal verbs||Present indicative|
|You can/may have another apple||You have an apple|
|He must be in bed before 8 o'clock||He is in bed now|
|You shall have your money back||You have your money back now|
This usage is reflected in legislative drafting practice by using "shall" and "must" to create obligations and "may" to confer powers, for example:
- If the Minister receives two or more extradition requests for the same person, the Minister must determine which one may proceed.
If the present indicative is used here ("the Minister determines"), the first impression it creates is that the legislation is merely describing something that occurs. This is inconsistent with the creative, ordaining nature of law. Another problem is that it could be unclear whether the Minister has to make the determination, or instead has discretion not to. Although the surrounding context might resolve the question, it is clearer to indicate what is intended by using a modal verb (may, must or shall).
The present indicative is used for provisions that do not in themselves create obligations or powers, but that instead state particular elements of an obligation or power or say something about how the legislation operates. These sorts of provisions are sometimes described as rules of law, as opposed to rules of conduct. The use of the present indicative in these cases is more natural than the now antiquated use of "shall". Its use has been advocated by authorities on drafting, such as Dreidger and Coode (see Driedger, The Composition of Legislation (1976) at p. 13). It also helps to preserve the imperative character of "shall" by confining it to rules of conduct that direct people to do something.
The following are common examples of using the present indicative to express rules of law that are components of rules of conduct:
- (1) No person shall fish without a licence issued by the Minister.
- (2) A licence is valid for one year after the day it is issued.
- The Minister may issue a fishing licence, but the licence is valid for not more than one year after the day it is issued.
- (1) The Clear Language Agency is (hereby) established for the purpose of promoting clear writing.
- (2) The Agency consists of 10 members to be appointed by the Governor in Council.
Rule components may also be subordinate clauses, such as
- If the Minister receives a request for extradition, the Minister may …
- The Minister may grant a request for extradition that is submitted within 30 days after…
Some examples of rules about how legislation operates are:
- This Act comes into force on January 1, 1999.
- This Act applies to ships registered after January 1, 1999.
- This Act prevails over any other inconsistent Act.
It is sometimes difficult to determine whether a provision states an ancillary or subordinate rule of law, as opposed to a rule of conduct. Consider the following examples:
- The head office of the Agency is in the city of Winnipeg.
- The directors have experience in the management of airports.
They could be interpreted in three ways:
- they create rules of conduct: the first example requires those who run the agency to maintain its head office in Winnipeg, while the second establishes what candidates must do to be eligible for appointment as directors;
- they state rules that are ancillary to the creation of an agency or the appointment of directors, describing one of the attributes they must have to fulfill their functions;
- they are merely descriptions of certain characteristics of the head office and directors, if they are not clearly linked to the creation and appointment provisions.
This ambiguity should be avoided by using a modal verb or an infinitive to express the imperative character of the provisions, for example:
- The head office of the Agency shall be / must be / is to be in the city of Winnipeg.
- The directors shall have / must have / are to have experience in the management of airports.
The present indicative is the normal tense and mood of verbs in legislation, subject to a major exception for rules of conduct, which generally take modal verbs such as may, must and shall. Future and past tenses should only be used for subordinate clauses describing events occurring before or after the action in the main clause.
Related Documents: See the articles in Part 1 on "May", "Must" and "Shall".
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