Grammar is really important

 

Nerd confession: I enjoy reading court decisions. I really like how judges write and the stories are interesting.

On the weekend I read the decision that struck down the Cyber-safety Act. It came with a cautionary tale about the importance of choosing your words carefully when writing rules. Especially rules, but it's good practice to do it all the time. In the decision, the lawmakers’ use of the word “may” in one clause resulted in the Act being deemed procedurally unfair. The clause was also a Charter violation, but that involved significantly more elements than grammar. This blog post is about grammar.*

The clause said:

5 (1) An application for a protection order may be made to a justice, without notice to the respondent, in the form and manner prescribed by the regulations, by

(a)    the subject… (the subject's parents, police, etc.)

The judge took issue with the no-notice part, because it violated the right of the accused to be heard—the Charter violation. The attorney general argued that the clause was written that way for situations where the accused was unknown and immediate action was required. In situations where the accused was known, the Act presented only it as a possibility, not as a procedure that had to be followed.

The lawyer for the defense argued that the clause had to be read as though the application must be made without notice to the respondent. If the “may be made” portion of the clause gave applicants discretion to choose whether to notify the applicant, it followed that it also gave the applicant discretion to choose whether to make the application to a Justice of the Peace and whether to follow the application process set out in the regulations. I.e. apply however you see fit. In terms of procedural rules, this is anarchy. The judge agreed with the defense.

Grammar is really important.

*Except for this part. Laws are really important. The Cyber-safety Act didn't get scrapped because it was was ill conceived. It got scrapped because it was badly executed. So write it again. Do a better job. The hard work is already done. There's the existing Act. There's Justice McDougall's 62-page decision, which is essentially an explanation everything wrong with the Act and why, and there's two years of operational data from the CyberSCAN investigative unit. 

Compared to the nothing the lawmakers of 2013 had to work with, today's lawmakers have a road map, rich in analyses and data, already laid out for them. They just have to follow it.