"such"

Recommendations

1. "Such" should not be used with backward reference to something specific, as in referring to a previously mentioned licence as "such" licence".

However, it may be used with backward reference to something previously mentioned with the sense of "similar to" that item, as in "such" a licence", which means "a licence of the same kind as a previously mentioned licence".

2. "Such" should not be used with forward reference to relative clauses, as in "such" information as the Minister may request.

However, it may be used with forward reference to other kinds of subordinate clauses, as in "The information must be stored in "such" a manner that it is readily available".

"Such" has been commonly used in legislation in a number of ways. The two ways that are recommended against in this note are rarely or never used in modern English other than legal English. The other ways in which "such" is used in legislation are still current in modern English, and drafters are free to use those constructions as they like. This note discusses several of those constructions.

1. Backward reference

Reference to a specific thing

"Such" has been traditionally used in legal drafting to refer backward to a noun that has been previously mentioned to indicate that what follows is another mention of that exact same thing: for example,

If a person has a fishing licence, "such" person must show "such" licence to an inspector on demand.

This sense of "such" is legalese[1] and should not be used in drafting legislation.

Grammatically, "such" is a determiner when it is used in this sense; this use of "such" by lawyers appears to be based on the mistaken belief that it results in greater precision than do the ordinary English determiners "the", "that" and "those".[2] Drafters should use those determiners instead, or redraft the provision in another way that will eliminate "such". Thus, the example above should be redrafted:

If a person has a fishing licence, they must show the licence to an inspector on demand.

Acceptable use — "similar to"

"Such" is commonly used in modern English to refer backward to a noun that has previously been mentioned; not to indicate that the second noun is the exact same thing as the first (as in the sense discussed above), but to indicate that the second noun is of the same type as, or is similar to, the first noun. This sense of "such" is often quite useful, as it can allow drafters to avoid burdensome repetition of phrases qualifying the first noun, including cross-references: for example,

Subsection (1) does not apply in respect of records of a branch of the bank outside Canada or in respect of customers of "such" a branch.

Here, use of "such" avoids having to repeat "of the bank outside Canada".

No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be "such" a substance.

Here, use of "such" avoids having to repeat the cross-reference "included in Schedule I, II, III or IV".

However, "such" must be used carefully in these instances because it might not be clear how far the similarity extends. This can be illustrated by the following example:

motorized boats exceeding ten metres in length used for commercial fishing and other "such" boats used for recreational purposes

Here, "such" may refer either to all "motorized boats" or only to "motorized boats exceeding ten metres in length".

The most noticeable difference between this use of "such" and the use that is recommended against — to refer backwards to a particular item — is that in the use recommended against, "such" is a determiner and therefore, as in "such licence", there is no indefinite article between "such" and the noun. (This lack of a determiner is due to the fact that articles are also within the class of determiners and there can be only one determiner in a noun phrase in English.) In the acceptable use, in which "such" is not a determiner, there is an indefinite article between "such" and the noun — as in "such" a licence — except in the following cases:

• There is another determiner that precedes "such", as in any "such" licence or no "such" licence.
• The noun is plural or is a non-count noun, and thus does not take an indefinite article at all.

In the latter case, whether the use of "such" is acceptable will depend on the meaning. For example, in the case of the non-count noun information, "such information" will be acceptable if it means "information of the same kind as the information previously mentioned", but not if it means the information previously mentioned.

2. Forward reference

"such" … as …" followed by relative clause

Here, "such" looks forward to a relative clause introduced by "as". It frequently occurs in provisions that both impose requirements and confer power to flesh out the requirements. For example,

Applicants shall provide "such" information as the Minister may require.

This construction is archaic.[3] Again, "such" appears to be used as a determiner here, and again it should be replaced by another determiner — usually "any", but sometimes "the" or "a", depending on what goes best in the particular provision. The relative clause should then be introduced by "who", "that" or "which". For example, the provision above should be redrafted as:

Applicants shall provide any information that the Minister requires.

The expression "until such time as" should never be used. The word until suffices.

Acceptable use — "such" … "that" …, "such… as to" …

There is another construction using "such" with a following subordinate clause that is current in modern English[4]; a typical example is "to such an extent that"…. However, in this use the subordinate clause is not a relative clause; furthermore, "such" in this use is not a determiner, and so an indefinite article can appear between "such" and the noun.

Grammatically, the subordinate clause may be either fully tensed ("in such" a manner that"…, "in such a way that"…) or infinitival ("in such a manner as to"…, "in such a way as to"…).

The following are examples with a fully tensed clause:

No person shall use any other mark in "such" a manner that it is likely to be mistaken for a national fuels mark.

Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to "such" an extent that it amounts to a fraudulent misrepresentation of fact.

Phrases such as "in such a manner" that can be rephrased as "in a manner such that"; but in such cases legislative texts usually shorten the expression to just "such that". For example,

No person shall alter the genome of a cell of a human being or in vitro embryo "such" that the alteration is capable of being transmitted to descendants.

The following are examples with an infinitival clause:

A bill is negotiated when it is transferred from one person to another in "such" a manner as to constitute the transferee the holder of the bill.

A vote held under subsection (1) or (2) must be conducted in "such" a manner as to ensure that those employees or employers who are eligible to vote are given a reasonable opportunity to participate….

Every person who packages or stamps tobacco or cigars in "such" a way as to indicate that the duties of excise have been paid….

It will be noticed that the infinitive verbs do not have explicit subjects. This construction will work well, therefore, when the actual subject of the infinitive is easily understood from the context of the provision, but it should be avoided if ambiguity about the identity of the subject could arise.

Acceptable use — "such as" … listing examples

Needless to say, although legislative texts do not often list examples, "such as" can be used if they do. For example:

The Agency may notify any interested authority, "such" as a professional licensing or disciplinary body established under the laws of Canada or a province…

[1] B. Garner, A Dictionary of Modern Legal Usage (2^nd ed.) (Oxford U. Press: 1995) at 849.

[2] ibid.

[3] Garner, ibid. R. Quirk et. al., A Comprehensive Grammar of the English Language (Longman, New York: 1985) at 1144.

[4] Garner, ibid., describes it as generally unobjectionable.

Return to the Table of Contents