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Tuesday, June 1, 2010

Courts Can Do some Violence with words

Courts can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point [Ghaidan [2004] UKHL 30; [2004] 2 AC 557, 581,]
Cited from:R v Momcilovic [2010] VSCA 50 (17 March 2010),Supreme Court of Victoria - Court of Appeal
We have yet another case Of Canada wherein Maxwell is quoted as follows. The basic purpose of doing violence with the words of statute is permissible in cases where the meaning assigned to does not appear to be reasonable or just. It is quoted as follows.{blogger]

The opening paragraph of c. 10 of Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 199, reads:
“Construction Most Agreeable To Justice And Reason
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. ‘An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.’ Where to apply words literally would ‘defeat passing of the statute, not in the light of subsequent events.”the obvious intention of the legislation and produce a wholly unreasonable result’ we must ‘do some violence to the words’ and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events.
And further :

The opening paragraph of c. 11 reads at p. 228:
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule: ‘the canons of construction are not so rigid as to prevent a realistic solution.’
“What is, then, being discussed here are instances in which the courts will depart from the literal rule. Such instances are, however, exceptional, and it is impossible to lay down any categories of cases in which ordinary grammatical interpretation will inevitably be abandoned: the courts are very reluctant to substitute words in a statute or to add words to it, and it has been said that they will only do so where there is a repugnancy or something which is opposed to good sense.”

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