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Tuesday, May 4, 2010

Chapter-10 Golden Rule Part-4

That the application of this principle of construction has its limitations has become clear from a very recent decision of the Supreme Court of Canada[1]. That, of course, was a criminal case but, as will appear, the opinion of the majority on the point has general application. The Court had to interpret certain provisions of the Criminal Code [R.S.C., 1985, c. C-46] from which it was argued that those provisions could not mean what they said because the result would be absurd and Parliament could not have intended an absurd result. In rejecting this argument, the Chief Justice of Canada, speaking for the majority, stated at page 38:

‘Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis’.

From the above it is clear it does not require the input from any extrinsix source/extrinsic aid.

The classical statement of the “golden” rule was stated by Lord Wensleydale in Grey v Pearson;[2]:

“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law ..., that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”.

The golden rule [a canon of statutory construction] ... inclines us to avoid an interpretation of a statute to which an application of the plain meaning rule would otherwise lead us. We must presume that the legislature did not intend any interpretation of the statute that would lead to absurd or ridiculous consequences, no matter how 'plain' the meaning of a statute appears to be.[3]

In construing a statute, the intent of the legislature must be ascertained if possible, and, when once ascertained, will be given effect though it may not be consistent with the strict letter of the statute[4].

The golden rule is applied most frequently in a narrow sense where there is some ambiguity or asurdity in the words themselves. The second use of the golden rule is in a wider senseeven where words have only one meaning[5].But what, as sometimes, perhaps often, happens, if the meaning is not "plain" ? Well we turn to ... The Golden Rule, The Golden Rule so construes a statute as to avoid absurdity or anomalies by adopting a secondary (or less usual) meaning which is also linguistically possible in order to produce a reasonable result. Sometimes, a judge may read in words which he considers to be necessarily implied by words already in the statute. He may even, to a limited extent, alter or ignore statutory words for reconciling an unintelligible provision with the rest of the text (for example, judges have occasionally corrected an "and" in a statute when it meant "or"). "It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further[6]"

" we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance and to justify the court in putting on them some other signification, which though less proper, is one which the court thinks the words will bear[7]" These dicta bespeak a readiness on the part of some judges to go beyond or against the plain meaning and that seems to be inconsistent with the classical doctrine of Parliamentary Sovereignty[8].

[1] R. v. McIntosh [[1995] S.C.J. No. 16 (QL)]

[2](1857) 6 HLC 61, 106.

[3] Statsky , page 81.

[4] People v. Minter (1946) 167 P.2d 11, 73

[5] In Re v. Sigsworth 1935 Ch 89 the court decided that a son who had murdered his mother could not inherit her estate under sec. 46 of the Administration of Estates Act 1925, even though there was only one literal interpreation of the word ‘issue’.

[6] [Becke v Smith (1836) 2 M&W 195 per Parke B].

[7] [River Weir Commissioners v Adamson (1877) 2 App Cas 743, 764-5 per Lord Blackburn]

[8] The golden rule is an adaption of the literal rule. It provides that words should be given their ordinary meaning as far as possible, but only to extend that they do not produce an absurd or totally obnoxious result:... the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in wich case the grammatical and ordinary sense of the words may be modified, so as to avoid that absordity or inconsistency, but not farther. (Lord Wensleydale in Grey v. Pearson (1857) 6 HL CAS 61) .

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