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Tuesday, May 4, 2010

Chapter-10 Part-2

Professor Driedger, in his book The Construction of Statutes, l974 argues

... that the cases show that departures from the plain meaning under the "golden rule" are justified only when according that meaning produces some disharmony in relation to the rest of the statute or to related statutes; such departures are not justified, it is said, when the literal meaning merely produces consequences thought by the court to be absurd.

So the golden rule approach is merely a textual harmonization mechanism for the literal approach.

But, Professor Willis, and others, have pointed out that you will find cases, where the Judges do invoke the golden rule, because the result of the case, the consequences, are absurd in their opinion. Look at the case of Re Sigsworth [l935] Chancery 89. The Act in question there was the l925 Administration of Estates Act S.46 which said that if a deceased person does not have a will, then the estate goes to his "next of kin." In this case the next of kin was the son who murdered his mother, and the mother's estate was in question. The Act said "next of kin," it did not say "except if the next of kin has murdered the deceased." But the court did not apply the plain meaning here, but rather implied that the statute included the exception. The court in effect interpreted "next of kin" not to include the "murderer."

So we can have what Driedger calls objective absurdity, that is, when there is inconsistency within the Act itself, or an obvious drafting error in the Act itself, and on the other hand, subjective absurdity, which is when the Judge looks at results in terms of the purpose of the Act as discovered by looking at wider contextual matters, and avoids a "plain meaning" due to the absurdity of the result. When the Judge looks at absurd consequences outside the plain meaning of the rest of the statute, then the golden rule is really closer to the mischief rule which we will look at in a minute.

An example of an obvious drafting error is the case of Sale v. Wills (l972) 22 D.L.R. (3d) 566. Mr. Justice Riley of the Alberta Supreme Court trial division, said that it was obvious that the draftsmen had wrongly inserted the word "by" in an amendment to the Alberta Insurance Act. In the case, Riley cites 11 other Western Canadian cases in which courts have made corrections of an obvious misprint or error.

Driedger in his book, argues strongly against any "subjective" approach to the golden rule. He would confine the use of the approach to "objective" textual harmonization. This is understandable if you accept the view that the ascertainment of meaning in a text can by sharply distinguished from the assignment of meaning to a text, and that the "subjective" approach assigns rather than ascertains.

The Golden Approach can be criticized:

1. It suffers from the same difficulties as the literal approach vis lack of wider contextual understandings of "meanings."

2. The idea of "absurdity" covers only a very few cases. Most cases involve situations where difficult choices have to be made between several fairly plausible arguments, not situations where the words lead to obvious absurdities.

3. The use of the "absurdity" safety valve can be very erratic as pointed out by Professor Willis in his famous article, "Statute Interpretation in a Nutshell" (l938) l6 C.B. Rev.l.

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