Anaya Nolan
The word shall has traditionally been used in legal drafting to indicate that certain actions are mandatory. However, in Canadian law, there has been a shift away from using shall due to its legalistic tone, rarity in Canadian English outside legal documents, and the multiple meanings ascribed to it. The preferred alternative is must, which is considered clearer and less ambiguous. This shift towards plain language drafting is intended to improve understanding and consistency in legal texts, with some Canadian provinces already amending their Interpretation Acts to embrace must as imperative. The use of shall in Canadian law is now generally restricted to preserving consistency in existing texts or in specific contexts, such as rules of conduct.
| Characteristics | Values |
|---|---|
| Use case | "Shall" is used to create rules of law, such as "This Act shall come into force on..." |
| Alternative phrasing | Rules of law are now drafted using the simple present tense: "This Act comes into force on..." |
| Use in legal drafting | "Shall" is considered legalistic and ambiguous and is being replaced by "must" in some jurisdictions |
| Use in Canadian English | "Shall" is rare outside of legal documents in Canadian English |
| Multiple meanings | "Shall" has multiple meanings in legislative texts |
| Use in contracts | "Shall" is commonly used in contracts to express obligations imposed on the subject of the sentence |
| Use in statutory provisions | "Shall" is used in statutory provisions to direct a manner of conduct or secure order, system, and dispatch in proceedings |
| Use with other verbs | "Shall" is typically not used with other verbs in the same sentence |
| Use in existing texts | "Shall" may be used when amending an existing text that contains "shall" to preserve consistency |
| Use in rules of conduct | "Shall" is used in rules of conduct to direct people to take action |
| Use in legislative drafting | "Shall" is used in legislative drafting to indicate that certain actions are mandatory |
| Use in federal legislation | "Shall" has been restricted to non-penal provisions and sentences where the subject is not a person |
| Use in Interpretation Acts | Three Canadian provinces have amended their Interpretation Acts to state that "must" is imperative |
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What You'll Learn
'Shall' vs 'Must' in Canadian Law
The use of "shall" and "must" in Canadian law has been a subject of discussion and evolution. "Shall" has traditionally been used in legal drafting to indicate an imperative command or a mandatory action, while "must" is commonly used in everyday conversation for the same purpose.
However, the use of "shall" has been criticised for its legalistic tone and rarity in Canadian English outside of legal documents. It also has multiple meanings in legislative texts, which can lead to ambiguity. For example, in the sentence "There shall be a corporation to be known as XYZ", substituting "shall" with "must" yields something that sounds incorrect: "There must be a corporation to be known as XYZ". In such cases, alternative phrasing can be used, such as "There is to be a corporation to be known as XYZ" or "The XYZ corporation is established".
As a result, there has been a shift towards using "must" in Canadian law. At least three Canadian provinces (British Columbia, Alberta, and Manitoba) have amended their Interpretation Acts to state that “must” is to be interpreted as imperative. This change, however, has not been well publicised among lawyers, leading to confusion.
In contrast, "may" is generally used to indicate a permissive provision, implying discretion. "May not" and "no person may" should not be used to create prohibitions, as they have a different meaning from "shall not" or "must not", indicating that something is forbidden.
To summarise, while "shall" has been traditionally used in Canadian law, the shift towards using "must" aims to improve clarity and consistency in legal drafting. This change aligns with the approach taken by other jurisdictions, such as Australia and the UK, and addresses the concerns associated with the use of "shall".
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'Shall' in Rules of Law
The use of "shall" in legal drafting has been a topic of debate, with some arguing for its removal due to its ambiguity and rarity in common speech, and others defending its use in certain contexts. In the context of Canadian law, "shall" has traditionally been used to create various types of rules, such as "This Act shall come into force on..." However, there has been a shift towards using the simple present tense instead, such as "This Act comes into force on...".
The auxiliary "shall" is generally avoided in Canadian legal drafting due to its legalistic tone and rarity in Canadian English outside of legal documents. It also has multiple meanings in legislative texts, leading to potential ambiguity. For example, in the sentence "There shall be a corporation to be known as XYZ," using "must" instead of "shall" may sound awkward. In such cases, alternative phrases like "There is to be a corporation to be known as XYZ" or "The XYZ corporation is established" can be used.
"Shall" is typically used as an imperative command, indicating that an action is mandatory rather than permissive. This contrasts with the word "may," which generally indicates discretion. However, the interpretation of "shall" can vary depending on legislative intent, and it may be given a permissive or directory interpretation in certain contexts. For instance, when used to direct the manner of conduct for officials or to secure order in proceedings, "shall" is often considered directory rather than mandatory.
The use of "shall" in legal drafting has been criticised for its ambiguity and potential for misuse. Some argue that lawyers often use "shall" to mean something other than "has a duty to," leading to inconsistencies and litigation. As a result, there has been a growing preference for using "must" instead of "shall" to impose requirements or express obligations clearly. This shift towards using "must" is also reflected in the Interpretation Acts of several Canadian provinces, which state that "must" should be interpreted as imperative.
In summary, while "shall" has traditionally been used in legal drafting, its usage is declining due to concerns about ambiguity and misuse. Alternative phrases such as "must," "may," "will," or "is entitled to" are often preferred to provide clearer and more precise language in legal texts. However, when amending existing texts containing "shall," it may be used to preserve consistency if it cannot be removed entirely.
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'Shall' in Rules of Conduct
In the context of law, "shall" is an imperative command that indicates that certain actions are mandatory and not permissive. The word "shall" is traditionally used in various types of rules of law, such as "This Act shall come into force on..." However, in Canadian federal legislative texts, the use of "shall" is avoided due to its legalistic tone and rarity in Canadian English outside of legal documents. Instead, the word “must” is preferred and is interpreted as imperative in several Canadian provinces, including British Columbia, Alberta, and Manitoba.
The Rules of Professional Conduct outline the standards of conduct expected of lawyers. Some of these rules are imperatives, often using the terms “shall” or “shall not,” which define proper conduct for purposes of professional discipline. For example, a rule may state that a lawyer "shall behave at all times in a manner that shall reflect creditably on the House." This means that members, delegates, officers, and employees of the House are expected to uphold the highest standards of behaviour and conduct themselves in a way that brings honour and respect to the institution.
Additionally, the Rules of Professional Conduct may include provisions related to maintaining confidentiality. For instance, a rule may state that a lawyer "shall keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law." This rule ensures that lawyers maintain the confidentiality of their client's information unless specific circumstances require or allow disclosure.
The Rules of Professional Conduct also extend beyond the professional realm and apply to lawyers' personal and business affairs. For example, a lawyer who commits fraud in their business dealings may be subject to discipline for engaging in conduct involving dishonesty, even if it occurs outside of their legal practice. This demonstrates that the Rules of Professional Conduct are not limited to an attorney's interactions with clients but also encompass their overall behaviour and integrity.
While the Rules of Professional Conduct provide a framework for ethical legal practice, they do not supersede all moral and ethical considerations. Compliance with these rules relies primarily on understanding and voluntary adherence, supplemented by peer and public opinion. Disciplinary proceedings are a last resort when other measures fail. It's important to note that the rules are not intended to serve as a basis for civil liability but rather to guide and regulate conduct through disciplinary agencies.
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'Shall' in Contract Drafting
The use of "shall" in contract drafting is a debated topic, with some arguing for its disciplined use while others prefer avoiding it altogether. Here are some perspectives on the use of "shall" in contract drafting:
Arguments for Using "Shall"
- Clarity and Efficiency: "Shall" is useful for imposing obligations on the subject of a sentence. Courts acknowledge that its foundational meaning expresses what is mandatory. Using "shall" for this purpose provides clarity and efficiency in contract language.
- Extra Tool: "Shall" gives drafters an additional verb structure to work with, allowing for a distinction between different categories of contract language. This can enhance clarity and help readers understand the document better.
- Standard Usage: "Shall" is standard in business contracts, and its use is familiar to transactional types. Its continued use ensures consistency and aligns with the expectations of those who frequently encounter such language.
- Disciplined Usage: Using "shall" in a disciplined manner, specifically to signify a party's taking on an obligation, ensures that the contract is clear and concise. It helps identify defects in the contract that may otherwise go unnoticed.
Arguments Against Using "Shall"
- Overuse and Misuse: Some argue that "shall" is overused and misused in contract drafting. This can lead to confusion and litigation if not used appropriately.
- Alternative Words: Words like "must" or "will" can be used instead of "shall" to express obligations without the associated issues. Using alternative words can make the contract language more accessible and understandable.
- Syntactic Concerns: "Shall" may not align with standard English syntax, and its use can be limited to specific contexts. Using alternative words can make the contract language more consistent with standard English usage.
- Archaic Tone: Some consider "shall" to sound archaic or outdated, preferring words like "will" that can express similar meanings with a more modern tone.
Ultimately, the decision to use "shall" in contract drafting depends on the drafter's preference, the intended audience, and the specific requirements of the contract. While "shall" has its benefits, it is essential to use it correctly and avoid misusing or overusing it.
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'Shall' in Statutes
"Shall" is an imperative command that usually indicates that certain actions are mandatory and not permissive. It is one of the most frequently used modal verbs in legal drafting. In the context of statutes, it generally indicates a mandatory obligation, although courts sometimes interpret it as directory or permissive.
The use of "shall" in statutes has been a subject of debate and interpretation by various courts. Some courts interpret "shall" as "must", indicating an obligation or requirement. For example, in the case of West Wisconsin Railway Company v. Foley, it was held that "shall" means "must" for existing rights. However, it need not be construed as mandatory when a new right is created. In another case, Railroad Co v. Hecht, the court interpreted "shall" as "may" when the government bore the duty.
The word "shall" has also been interpreted by courts to mean "should", "will", or "may". This inconsistent usage has led to ambiguity and confusion, with drafters in many jurisdictions avoiding its use. For example, the US Federal Government's Style Subcommittee decided to abandon the use of "shall".
In Canadian federal legislative texts, the word "shall" is currently used in statutes and regulations. However, there has been a shift towards using "must" instead of "shall" in legal drafting. This shift is not well-known among lawyers, and there are concerns that the use of a different word may be interpreted as intending a different meaning. To address this, it has been recommended that the Department of Justice publicize the adoption of plain language drafting and amend the Interpretation Act to embrace "must" as imperative.
When amending existing texts that contain "shall", it may be used in the amending text to preserve consistency if there is no opportunity to remove it. In new texts, "must" can be used instead of "shall" to impose an obligation or prohibition. If "must" appears linguistically inappropriate, alternatives such as "is to" or other rephrasing can be used.
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Frequently asked questions
'Shall' is an imperative command, indicating that an action is mandatory. It is used to express obligations imposed on the subject of a sentence.
'Shall' is controversial because it has multiple meanings and is rarely used in Canadian English outside of legal documents. It is also seen as legal jargon that has no place in plain language drafting for legislation.
The alternatives to 'shall' include 'must', 'may', 'will', 'is entitled to', and 'is to'. For example, 'There shall be a corporation' could be changed to 'There is to be a corporation'.
'Must' is preferred because it is seen as less ambiguous and is more commonly used in everyday conversation. It is also recognised as being capable of creating legislative requirements.
