The interpreter should it fill the gaps that may have a statute, that is to say, he must supply the omission to provide for certain situations, some cases that the subject of a text logic control for securing?
It is not surprising to note that it is not possible to draw from the jurisprudence general and categorical answer to this question. In the same way that there is no consensus, jurisprudence, the relative importance of the text and purpose, there is, as to fill gaps, two schools of thought, one claiming the Literal Rule and advocating abstention and the other, leaning on the Mischief Rule, that would help to fill gaps. This situation also reflects perfectly the tension between the two main objectives of legal interpretation: the search for legislative history and thought of seeking a reasonable solution to a practical problem. "[ Interpretation of laws, Pierre-André Côté, 3th edition 1999, p. 506]
Professor Côté interesting remarks on this subject. Speaking of the position of not adding to the clear wording of a law, he writes:
"This position calls for two comments. First, the judge does not legislate it adds under the law to make explicit what it has already implicitly.The problem does not seems to be that of whether the judge may or may not add under the law, but rather whether, first, this idea is implicit in the text enough to justify the judge to make it produce effect and secondly, if some reason does not preclude an element implicit in the law is explained by the judge. I am thinking, for example, certain rules that require the legislature extra clarity when he wants to produce certain effects, such as depriving someone of a property right, for example.
The other point which seems necessary is as follows:
the Rule Literal suggests that from the time the judge plays a creative role in resolving a case and ceases to be a strict law administrator, he usurps the functions of the legislature. However, there is no need to show that, by the very nature of things, the judicial function requires a degree of creativity. In the silence of the law, or in its uncertainty, the judge must still determine, and obligation he is to judge may require him to form rules that go beyond the bare text of the law, but remain much as possible in the wake of his mind.
It may be that the judge refused to fill a gap not because of a narrow conception of the judicial function, but because of the general principles of interpretation which require in certain matters, insisting on an explicit formulation of legislative intent. For example, it does not surprise that the For example, it does not surprise that the courts are reluctant to supply the deficiencies of a tax law[1] a retroactive law[2] or a law that severely impair the right of property[3]. "
[1] Rc Compagy British Columbia Railway, [1981] 2 FC 783 (CA): MacMillan Bloedel Ltd.. v Minister of National Revenue, reflex, (1991) 38 FTR 58 (FC),Dome Petroleum Ltd.. C. Saskatchewan, (1983) 25 Sask.R. 26 (Sask.QB).
[2] Re Capital Regional District and Heinrich, 1981 CanLII 482 (BC CA), (1982) 130 DLR (3d) 709 (BCCA).
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