Courts not to Supply Casus Omissus

Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature 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. (Per Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".

Courts Not to read words into Statute

It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL).
 Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. 
(Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847)
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS [2008] INSC 614 (10 April 2008) 

It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847)

Intent: The Object of Interpretation

Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74). 
The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS [2008] INSC 614 (10 April 2008)The principles of statutory interpretation as a subject for consideration by a law-reforming body present special difficulties. It is manifest at the outset that it is not a topic where there are any clear-cut defects for which, once diagnosed, legislative intervention can promise a dramatic cure. Sir Carleton Allen, after avery full discussion of the problems of statutory interpretation, wrote that although

"it cannot be pretended that the principles of statutory interpretation form the most stable, consistent, or logically satisfying part of our jurisprudence. . . we are driven, in the end, to the unsatisfying conclusion that the whole matter ultimately turns on impalpable and indefinable elements of judicial spirit or attitude." 

Low in rhe Making, 7th ed., 1964, at pp. 526 and 529. ]

 Justice Frankfurter said:

 "Though my business throughout most of my professional life has been with statutes, I come to you empty-handed. I bring no answers. I suspect the answers to the problems of an art are in its exercise." 

["Some Reflections on the Reading of Statutes,” (1947) 2 The Record of the Association of the Bar of the City of New York 213 at pp. 216-7 ]

 And in a rather similar vein an English judge has said :

"The duty of the Courts is to ascertain and give effect to the will of Parliament as expressed in its enactments. In the performance of this duty the Judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from whom issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing." 

Per Donaldson J. in Corocrafi Ltd. v. Pan American Airways Inc. [I9681 3 W.L.R. 714 at 732; the actual decision was reversed on appeal, [1968] 3 W.L.R. 1273 (C.A.).]

Presumption against Retrospective Operation: Exception

There is a common law presumption that legislative enactments do not operate retroactively.   There is also, however, an exception to that presumption when the enactments are merely procedural or evidentiary in nature. 

These principles are articulated in many cases, such as R. v. Bickford, [1989] O.J. No. 835 at paragraph 9:

As a matter of fundamental principle, a statute is not to be construed as having a retrospective operation unless such a construction is made evident by its terms or arises by necessary implication. However, the presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters.

8.  Similarly, in R. v. Engum [2002] B.C.J. No. 161, the British Columbia Supreme Court stated at paragraph 55:

One principle which is fundamental to our legal system is the general rule of statutory interpretation against retroactive interference with vested rights. A significant exception to this principle is that generally it does not apply to procedure or evidence. These principles are deeply rooted in our legal system.

9.  The law, therefore, states that if an enactment is solely procedural, it may be applied retroactively.  However, if an enactment contains substantive elements, the fundamental principle against retroactivity applies.

10.  For example, in Bickford, the Ontario Court of Appeal held that the amendment to "corroborating evidence" was merely procedural and evidentiary, and therefore operated retroactively.  In that case, the Canada Evidence Act was amended to allow a child victim to testify without the need for corroborating evidence.  The court in Bickford cited Dixie v. Royal Columbian Hospital [1941] 2 D.L.R. 138, which was adopted by the British Columbia Court of Appeal in R. v. Firkins, (1977) 37 C.C.C. (2d) 227:

In my view, the following relevant principles emerge as established by the weight of authority: unless the language used plainly manifests in express terms or by clear implication a contrary intention - (a) a statute divesting vested rights is to be construed as prospective, (b) astatute, merely procedural, is to be construed as retrospective, (c) a statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.

Presumption against Interference with Pending Litigation

If an enactment operates retroactively, as it does in this case then, by definition, it applies to pending litigation.It would be illustrated with the following Citation . [Blogger]

In The Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Les Éditions Yvon Blais, Inc., 1991), at 160, Côté explains the presumption against interference with pending litigation as follows:

In general, new statutes affecting substantive matters do not apply to pending cases, even those under appeal. Since the judicial process is generally declaratory of rights, the judge declares the rights of the parties as they existed when the cause of action arose: the day of the tort, the conclusion of the contract, the commission of the crime, etc. A new statute that is substantive will not apply to pending cases, unless it is retroactive in the true sense of the word, that is, unless it operates in the past and modifies the law in effect on the day of the tort, the crime, the contract, etc. A pending case, even one under appeal, can be affected by a retroactive statute, even one enacted pending appeal.

                                                                                                                                [Emphasis added.]

Presumption Against the Retroactive Operation of a Statute

There is a difference between the two terms  A statute operates retroactively where it changes the past legal consequences of completed transactions: [R. Sullivan, Driedger on the Construction ofStatutes, 3rd ed.] (Toronto: Butterworths, 1994) at 511; Hornby Island Trust, 1988 CanLII 3143 (BC C.A.), (1988), 53 D.L.R. (4th) 435 at 441 (B.C. C.A.)supra at 441.

 In the leading case on the retroactive operation of statutes, Gustavson Drilling (1964) Ltd. v. M.N.R., [1977] S.C.R. 271, the Supreme Court of Canada outlined the general rule regarding retroactive statutes. Dickson J. (as he then was), for the majority, stated at 279 that:

The general rule is that statutes are not to be construed as having retrospective [retroactive] operation unless such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemedto have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively [retroactively].

As retroactive legislation frequently interferes with vested rights, the court presumes that, if the Legislature intended to interfere, it would have said so clearly. A statute will not be given retroactive construction unless it is clear that the Legislature intended such a construction: Hornby Island Trust, 1988 CanLII 3143 (BC C.A.), (1988), 53 D.L.R. (4th) 435 at 441 (B.C. C.A.)supra.

 The presumption against the retroactive operation of statutes, therefore, may only be rebutted by clear language in the statute. If the wording of an enactment is such that the Legislature must have intended to prescribe a new legal regime to a set of facts entirely concluded prior to the coming into force of the enactment, the enactment is retroactive and the presumption against retroactive operation is rebutted.CNG Producing Co. v. Alberta (Provincial Treasurer), 2002 ABCA 207 (CanLII)

Difference :Retroactive and Retrospective Statutes

There is a distinct difference between the two terms

1 Retroactive, and

2.Retrospective

As the terms “retroactive”and “retrospective” have been used interchangeably and have caused some confusion, it is useful to discuss terminology before embarking on a consideration of the relevant issues in this case.The following brings out a clear difference.[blogger]

The Legislature may enact legislation which has retroactive or prospective effect. Included in the category of prospective application is legislation that is said to be “retrospective”. Much has been written by authors and courts on this subject, and applicable rules continue to evolve. As the terms “retroactive”and “retrospective” have been used interchangeably and have caused some confusion, it is useful to discuss terminology before embarking on a consideration of the relevant issues in this case. The Supreme Court of Canada, in Benner v. Canada (Secretary of State), 1997 CanLII 376 (S.C.C.), [1997] 1 S.C.R. 358 at para. 39, adopted the definitions set out by E.A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at 268-69:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospectivestatute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.

In Hornby Island Trust Committee v. Stormwell 1988 CanLII 3143 (BC C.A.), (1988), 53 D.L.R. (4th) 435 at 441 (B.C. C.A.), Lambert J.A. also made the following distinction between the two terms:

A retroactive statute operates forward in time, starting from a point further back in time than the date of its enactment; so it changes the legal consequences of past events as if the law had been different than it really was at the time those events occurred. A retrospectivestatute operates forward in time, starting only from the date of its enactment; but from that time forward it changes the legal consequences of past events.                                                                                                  [Emphasis in original.]

Limitations on construing True meaning

The object of statutory interpretation is to determine what the words of a statutory provision mean. However, what words mean may in some situations depend on who is reading them. Drucilla Cornell makes the following comment about the nature of meaning: "Meaning is not like a dead object which is present for us to grasp and then apply. Meaning only comes to life within a form of life". [Drucilla Cornell "Institutionalization of Meaning, Recollective Imagination and the Potential for Transformative Legal interpretation" (1988) 136 U Pa L Rev 1135, 1136 – 1138.]

Characteristics such as gender, income level and race may all have an effect on interpretation. Judges tend to be privileged, white males and these characteristics can have an impact on the decisions that they make. As one commentator states: [Kent Greenawalt "Variations on Some Themes of a 'Disporting Gazelle' and His Friend: Statutory Interpretation as Seen by Jerome Frank and Felix Frankfurter" (2000) Colum L Rev 176, 210.]

[N]o one who thinks carefully can doubt that social class, race gender, national origin, sexual preference, and more personal factors affect judicial outlooks...When cases are difficult, when good arguments can be made on both sides, the idea that detachment will somehow get judges to the right result seems naive.

Not only can the process of determining the meaning of words be affected by judicial personality, but so too can the implementation of the purposive approach. It will not always be easy to deduce the purpose from the Act and extrinsic materials. In such cases, an inquiry into purpose may not be an objective task and it is possible that different judges might disagree about the purpose of an Act. Indeed it has been said that "Judges giving weight to purposes may implement their own notions of good policy, while attributing them to the legislature". [ Greenawalt, above, 211–212]

The value-based approach to interpretation discussed in Professor Burrow's paper adds a further degree of subjectivity to the interpretation process. In many instances the relevant fundamental value will be clear as it will be contained in the Bill of Rights Act. However, there are many fundamental values not contained in the Bill of Rights Act. It is arguable that judges' personal ideas of policy might sometimes colour their determination of these fundamental values and the relevance of each value in any given case.

The element of subjectivity in interpretation has always existed. What is relatively new is the increasing recognition of this fact. Traditionally the interpretative process has been regarded as objective and neutral. In recent years, however, this assumption has been questioned. Scholars such as feminists and critical legal theorists have argued that the interpretation process is inevitably subjective and political. [ See Margaret Davies Asking the Law Question (Law Book Company, Sydney, 1994), for a discussion of the nature of objectivity. See also Lucinda Finley "Breaking Women's Silence in Law ... the Dilemma of the Gendered Nature of Legal Reasoning" (1989) 64 Notre Dame L Rev 886; Catherine McKinnon Feminism Unmodified: Discourse on Life and Law (Harvard University Press, Cambridge (Mass), 1987) 55.]

F Conclusion

In the majority of cases, the language in statutes communicates effectively and causes no problems. Professor Burrows makes the important point that it is only the difficult cases that come before the courts and that in many situations, statues are clear and applying them presents no problem. [Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561]In those cases where there is some uncertainty, the most ordinary and natural meaning of the words in context should be of central importance. In addition, the courts consider the purposive approach, the Bill of Rights Act and a value-based approach to guide their interpretation of ambiguous provisions.

It is has been said that approaches to statutory interpretation "jostle with each other, and vary from case to case in their relative importance".[Sir Ian McKay "Interpretation Statutes – A Judges' View" (2000) 9 Otago LR 743, 747.] Indeed, to some extent judges will subconsciously or consciously use the statutory interpretation approach that gets the result they want to achieve. In addition, any general trends may be affected by the extent to which purpose can be determined and the importance of the fundamental value at stake. Overlaying all interpretation is the still generally accepted principle that whatever approach is used, the words should only be given meanings which they are reasonably capable of bearing.