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Tuesday, May 4, 2010

Golden Rule

Golden Rule or Liberal Rule of Interpretation

"Golden Rule" approach - "plain meaning" may be avoided only if necessary to avoid an absurdity. (See: Grey v. Pearson (l857) 6 H.L.C. 6l, at l06, l0 E.R. l2l6, at l234 (H.L.)

Now the Golden Rule Approach is sometimes called the "liberal" approach. The case most often cited as authority is Grey v. Pearson (l857) where Lord Wensleydale stated 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."

Silence is Golden. On Golden Pond. The Manitoba Golden Boy. Sounds nice, but don't be mislead by the word "golden" into thinking that this approach is necessary something marvellous. A Solomon's tool. Must judges say that it is exactly like the literal approach, except when there is clearly a mistake in drafting, or there is an inconsistency with the plain meaning of the rest of the Act, then you can avoid it. The use of the phrase "grammatical and ordinary sense of the words" indicates that the Golden Rule is tied to the Literal Rule. The idea that words have plain meanings is still affirmed, but here, if you have a plain meaning that is absurd in the context of the rest of the Act, you may modify it. That is you may decide not to give the word a "plain meaning"; but rather give it a "secondary" meaning.

The case of Grey does not necessarily say that the Judge can decide differently because of a perceived absurdity in consequences. You must still stay within the four corners of the Act. For example, Lord Blackburn said in River Wier Commissioners v. Adamson [l877] 2 A.C. 742 at 746:

"But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to say is right, namely that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when supplied 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 signification, 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."

It would be more "golden" (if you believe in judicial activism) to interpret the Golden rule as including cases where you could interpret the statute so as to avoid absurdity of result in relationship to the perceived purpose of the legislation, not just absurdity in the sense that some internal disharmony in the text would occur by applying the "plain" meaning. Under the narrow view, even in Barcellona, the court could not apply the Golden Rule unless some other provisions in the Act dealing with limitation periods would be rendered inconsistent if you applied the plain meaning.

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