3.06.2010

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Friday, June 4, 2010

Words must Be read In context

There is only one principle or approach, namely the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously, with the scheme of the act, the object of the act and the intention of Parliament.
Stubert Investments Limited vs. Her Majesty the Queen (phonetic) 1984 CanLII 20 (S.C.C.), (1984) 1 S.C.R. 536, at 578,
Cited from
Westbank Indian band development Co. Ltd. v. Kelowna, 1991 CanLII 1445 (BC S.C.)
In another case where the court was considering the meaning of Section 13(2) of the Unemployment Insurance Act,[Unemployment Insurance Act, R.S.C., 1985, c. U-1 , ss. 6(1) (as am. by S.C. 1990, c. 40, s. 5), (2) (as am. idem), 7(1) (as am. by R.S.C., 1985 (3rd Supp.), c. 14, s. 1), (3) (as am. idem), (6) (as enacted idem), (7) (as enacted idem), 9(1), 13, 14 (as am. by S.C. 1990, c. 40, s. 10), 17 (as am. idem, s. 11), 24 (as am. idem, s. 17).] it was observed that: "I do not understand the Commission to be suggesting that we should adopt a strict or literal construction of subsection XXXX or that we should interpret it in isolation. That would indeed be a vain attempt. It is well-settled law that the words of a statute must be read in their total context and with proper regard to the purpose and intent of Parliament as expressed in the statute. It is only in cases of ambiguity, however, that a court needs to look beyond the ordinary meaning and normal construction of the words used by Parliament. "
From the above it is clear that there is a shift from literal approach to Contextual and Modern/ Or Modern Purposive approach.The position is well settled in Canada.{blogger]The words are not to be seen in  isolation but should be given the contextual meaning keeping the object of the statute.[Blogger] Canada v. Cymerman, [1996] 2 F.C. 593 That the so-called "literal rule"does not today confine the judge to a sterile grammatical analysis of the actual words which he is called upon to interpret has been emphasised by Lord Somervell in Attorney-General v. Prince Ernest Augustus of Hanover [I957] A.C. 436 at p. 473. where he said:

"Is it unreal to proceed as if the court looked first at the provision in dispute without  knowing whether it was contained in a Finance Act or a Public Health Act. The title and general scope of the Act constitute the background of the context. When a court comes to the Act itself, bearing in mind any relevant extraneous matters, thcre is, in my opinion, one compelling rule. The whole or any part of the Act may be referred to and relied on. It is, I hope, not disrespectful to regret that the subject was not left where Sir John Nicholl left it in 1826. 'The key to the opening of every law is the reason and spirit of the law – it is the "animus imponentis", the intention of the lawmaker, expressed in the law itself taken as a whole. Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed, detached from its context in the statute: it is to be viewed in connexion with its whole context – meaning by this as well the title and preamble as the purview or enacting part of the statute '
 [(Sir John Nicholl in Brett v. Brett) "(1826) 3 Add. 210 at p. 216

    In the same case [1957] A.C. 436 at p. 461.]  Viscount Simonds said:
    " . . . words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy." 


    In a later passage [At p. 463. ] Viscount Simonds referred to 
    the elementary rule . . . that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear or unambiguous."

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