Chapter-13 Modern Contextual part-4

Supreme Court of Canada prefers approach to statutory interpretation is that set out by E. A. Driedger:

Today 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[1].

The modern approach recognizes the important role that context must inevitably play when a court construes the written words of a statute. It is undoubted that words take their colour from their surroundings[2]I will examine this second factor of the modern approach in three steps. First, I will scrutinize the immediate context of the impugned words: the provision in which the words appear and any closely related provisions. Second, I will follow with an inquiry into the broader context of the section, i.e., the Act as a whole to determine the intention of the legislator. Finally, I will review the external context, that is the historical settings in which a particular provision has been was enacted.[3]

Simon of Glaisdale in Maunsell v Olins[4] drew a distinction between the different audiences that the legislation is aimed at:

“It is sometimes put that, in statutes dealing with ordinary people in their everyday lives, the language is presumed to be used in its primary ordinary sense, unless this stultifies the purpose of the statute, or otherwise produces some injustice, absurdity, anomaly or contradiction, in which case some secondary ordinary sense may be preferred, so as to obviate the injustice, absurdity, anomaly or contradiction, or fulfil the purpose of the statute: while in statutes dealing with technical matters, words which are capable of both bearing an ordinary meaning and being terms of art in the technical matter of the legislation will presumptively bear their primary meaning as such terms of art (or, if they must necessarily be modified, some secondary meaning as terms of art.”

This analysis brings us on to the in interpreting the modern rules of construction Lord question whether the intention of Parliament can only be gleaned from the current rules of construction, which are a mixture of a literal and purposive interpretation,[5] or, whether the courts need the assistance of extrinsic aids to determine the intention of Parliament.

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[1] (See Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578, per Estey J. (taxation); Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134, per Dickson C.J. (administrative); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, per Iacobucci J. (employment); R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin C.J. (criminal); R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 28, per Iacobucci J. (admiralty); Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 27, per Iacobucci J. (immigration); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, per Iacobucci J. (radiocommunication).)

[2] Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42;

[3] Cited from:Marche v. Halifax Insurance Co., 2005 SCC 6, [2005] 1 S.C.R. 47

[4][1975] AC 373, 391.

[5]Miers and Page, op cit, state at 187 that the preponderance of academic writers and some senior judges now argue that current judicial practice incorporates the literal and purposive interpretation and is better expressed as a series of questions: “What was the statute trying to do? Will the proposed interpretation give effect to that object? Is the interpretation ruled out by the language?”

Chapter-13 Modern Contextual Part-3

The modern rule. There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

The contextual approach requires that the Court consider a broad range of factors such as the text of the provision to be interpreted, the legislative scheme within which the provision appears and other indicia of legislative intent. If the various factors point to differing conclusions, then the Court must weigh the competing factors and test possible interpretations against the broad criteria laid out in the passage quoted above. In the end, it is the duty of the Court to decide and to provide reasons for its arrival at that decision.

In any event, where the various indicia point to possible differing conclusions, the contextual approach requires consideration of the consequences of the competing interpretations. The proper interpretation will be the one that provides outcomes that are reasonable and just.

Driedger[1] formulates the modern interpretation of the rules of construction as follows:

“(1) The Act as a whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedly enacted by the words), the object of the Act (the ends to be achieved), and the scheme of the Act (the relation between the individual provisions of the Act).

(2) The words of the individual provisions to be applied to the particular case under consideration are then read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the general body of the law, that is the end.

(3) If the words are apparently obscure or ambiguous, then a meaning that best accords with the intention of Parliament, the object of the Act and the scheme of the Act, but one that the words are reasonably capable of bearing, is to be given them.”

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[1]Driedger, The Construction of Statutes, 81, quoted in Miers and Page, op cit, at 187.

Chapter-13 Modern --Part-2

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.

However, in R. v. Creighton, [1993] 3 S.C.R. 3, Lamer C.J. came around to an interpretation based on the "modern" method, that is, an interpretation that rejected the "plain meaning" of the term "unlawful act" under s. 222(5)(a) of the Criminal Code. That interpretation is part of a line of decisions that originated with R. v. Larkin (1942), 29 Cr. App. R. 18: see R. v. DeSousa, [1992] 2 S.C.R. 944, at pp. 958-59. Although in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 14, Lamer C.J. stated that his support for the "modern" method was based on the presumption of constitutionality, that presumption is not actually the basis for the line of decisions in question. Moreover, in Ontario v. Canadian Pacific Ltd., Gonthier J., writing for the majority, used the "modern" contextual interpretation method

This Court subsequently used the "modern" interpretation method again: in R. v. Lewis, [1996] 1 S.C.R. 921, at para. 68, that method, as formulated by Professor Sullivan, was cited with approval by my colleague Iacobucci J.:

In order to arrive at the correct interpretation of statutory provisions, the words of the text must be read in context: see Driedger on the Construction of Statutes [3rd ed. 1994], at p. 193, and Côté, supra, at p. 257.

The "modern" method was also used by this Court in McIntosh, supra, at paras. 58-59, where my colleague McLachlin J. stated the following in dissent:

But even if the words were plain, the task of interpretation cannot be avoided. As Driedger on the Construction of Statutes (3rd ed. 1994) puts it at p. 4, "no modern court would consider it appropriate to adopt that meaning, however "plain", without first going through the work of interpretation".

The point of departure for interpretation is not the "plain meaning" of the words, but the intention of the legislature. . . . To quote Driedger, supra, at p. 3: "The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences". . . . The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator.

However, this Court now seems to have returned to the former "plain meaning" method in Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550, at paras. 21-22:

While the parties' use of these various interpretive techniques is adept, a full discussion of these techniques is unnecessary to the resolution of this appeal. This is so because the language and context of the provisions in question make their meaning clear.[1]

To state the obvious, the first step in a question of statutory interpretation is always an examination of the language of the statute itself. As E. A. Driedger wrote in his text, Construction of Statutes (2nd ed. 1983), at p. 87:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something . . . to show that they were used in a special sense different from their ordinary grammatical sense.

Legal scholars and practitioners have long been critical of the failure of Canadian courts to adopt a consistent and coherent approach to statutory interpretation.[2] However, beginning with the recent case of Rizzo & Rizzo Shoes Ltd. (Re) [3]a majority of the Supreme Court has applied, with varying degrees of elaboration, the "modern contextual approach" advocated by L'Heureux-Dubé J. This approach has gained wide acceptance. It has been adopted by Supreme Court[canada][4] Perhaps the best-known statement of the contextual approach is found in Driedger on the Construction of Statutes:

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[1] Please Refer Qubec.[supra]

[2] See, for ex., R. Sullivan, "Statutory interpretation in the Supreme Court of Canada" (1998-99), 30 Ottawa L. Rev. 175; and Geof R. Hall, "Statutory Interpretation in the Supreme Court of Canada: The Triumph of a Common Law Methodology" (1998), 21 Advocates' Q. 38. Both authors offer persuasive rejections of limited or formulaic approaches to interpretation. Instead, they both favour a pragmatic and contextual approach which mirrors the approach taken by the courts in making common law rules. See also W. N. Eskridge and P. P. Frickey, "Statutory Interpretation as Practical Reasoning" (1990), 42 Stan. L. Rev. 321, an article which influences the thinking of both Sullivan and Hall.

¹⁶ [1998] 1 S.C.R. 27, at paras. 21-23.

[4] Merck & Co. v. Nu-Pharm Inc. (2000), 5 C.P.R. (4th) 138 (F.C.A.), at paras. 36-37.

Chapter-13 Modern Contextual Approach part-1

Modern Approach/Interpretation method

The "modern" interpretation method was recognized by Côté, supra, at p. 234:

In trying to ascertain legislative intent, the reader must begin with the text chosen by the author as a vehicle for his thoughts. According to Lord Denning,

Beyond doubt the task of the lawyer and of the judge is to find out the intention of Parliament. In doing this, you must, of course, start with the words used in the statute: but not end with them as some people seem to think.

‘Two reasons in particular militate in favour of going beyond the enactment. First, as we have seen, the goal of interpretation is more than simply discovering the historic thought of the author of the enactment: it has other goals, and consequently requires a number of factors to be taken into account, such as the consequences of interpretation, which have nothing to do with the text itself. Second, even if we consider that interpretation's sole purpose is to reveal the thought of the legislator, two principal reasons dictate going beyond the literal method in order to reveal such thought. Firstly, because of what has often been called the "open texture" of language, the literal approach is often not sufficient to dispel all doubts about an enactment's application. Secondly, the literal approach confines the courts to the explicit component of Parliament's message: the implicit component, which is derived from the text of the statute, must also be considered in the quest for legislative intent.’

The "modern" interpretation method has also been recognized in other common law countries.[1]

‘However, all these [various successive stages of interpretation] together with the rules and presumptions applicable to them are always at least implicitly relevant in the sense that they must be borne in mind even if their applicability to the interpretation of a specific provision of an enactment is quite self-evident, and even if the "correct" answers to the questions of understanding they raise, can be arrived at intuitively’.

The presumptions are to serve as basic guidelines throughout the process of interpretation. Because due cognisance of the operation of the presumptions is not necessarily a clearly discernible first stage in the process of interpretation, since the presumptions obtain throughout all the stages of interpretation, the interpreter should be conscious of their existence, contents and operation right from the outset. This awareness of the presumptions should underlie his step by step interpretation of the enactment, carrying him through the various stages involved, and guiding him in the "right direction".

During this first stage of interpretation recourse may as a rule be had to dictionaries to ascertain the "ordinary meaning" of words or expressions. . . . An interpreter may, as a matter of fact, by no means remain with the result obtained by applying this rule even though "the language of the enactment is (ostensibly) clear". . . . The real meaning of an enactment may in fact remain hidden to an interpreter who adheres merely to "clear language" or who qualifies this language -- if it happens not to be so clear -- without due cognisance of all the other co-equal structural elements which constitute the overall context of meaning within which the enactment prevails.

Finally, the "modern" interpretation method was reformulated in Canada by Professor R. Sullivan: Driedger on the Construction of Statutes (3rd ed. 1994), at p. 131:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just. [Emphasis added.]

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[1] L. M. du Plessis, The Interpretation of Statutes (1986), at pp. 55 and 57:

Chapter-12 Contextual approach part 12-5

Context: Both Internal and External

It true when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used the body of the Statute unless the context requires otherwise. The context is both internal and external. The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act. The external context involves determining the meaning from ordinary linguistic usage (including any special technical meanings) from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles.

4.4Every word/provision to be read in context.

In matters of interpretation one should not concentrate too much on one word and pay too little attention to the other words. No provision in the statute and noword in the section may be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used[1].

In the matter of C.I.T. Vs. Sun Engineering works (P) Ltd, Justice Anand (As His Lordship then was), speaking for the Court, has said that it is neither desirable nor permissible to pick out a word or a sentence from the Judgment of the Court, divorced from the context of the question under consideration and treat it to be the complete `law' declared by the Supreme Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Supreme Court. The decision on the question involved in the case in which it is rendered and while applying the decision to the later case, the Courts must carefully try to ascertain the true principle laid down by the decision and not to pick out words or sentence.

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[1] SYED HASAN RASUL NUMA.Vs.UNION OF INDIA, 1991 AIR 711; 1990 SCR Supl. (3) 165

Chapter-12 Contextual part-4.2

In Jagir Singh and Others Vs. State of Bihar and another, etc. etc.[1] it is stated:

"20. The general rule of construction is not only to look at the words but to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under the circumstances. Sometimes definition clauses create qualification by expressions like "unless the context otherwise requires"; or "unless the contrary intention appears"; or "if not inconsistent with the context or subject-matter". "Parliament would legislate to little purpose", said Lord Macnaghten in Netherseal Co. v. Bourne,[2] (1889) "if the objects of its care might supplement or undo the work of legislation by making a definition clause of their own. People cannot escape from the obligation of a statute by putting a private interpretation on its language." The courts will always examine the real nature of the transaction by which it is sought to evade the tax."

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[1] Jagir Singh And Others Vs. State Of Bihar And Another, Etc. Etc., AIR 1976 SC 997]

[2] Macnaghten in Netherseal Co. v. Bourne, (1889) 14 AC 228

Chapter-12 Contextual Part-4.1

It is a sound principle of construction that, meaning of words and expressions used in an Act, must take their color from the context in which they appear. Neither the meaning, nor the definition of a term in one statute, affords a guide to the construction of the same term in another statute, more so, if the two Acts in which the same word is used, are not cognate Acts and the sense in which a term has been understood in several statutes, does not necessarily throw any light on the manner in which it should be under stood generally.[1]We cannot discern a statute's meaning by examining its text alone. The majority correctly acknowledges that we must examine the statutory text in its context, which includes prior versions of the same statute[2].Words have different shades of meaning and must take its color from the context in which itis used having regard to the purpose and object of the legislation, and the Court must necessarily keep in view the mischief which the legislature seeks to remedy. Interpretation of a statute, contextual or otherwise must further and not frustrate the object of the statute[3].The question of what a word means in its context within the Act is a question of legal interpretation and, therefore, one of law. The choice of the proper rule of construction to be applied to ascertain the meaning is again a matter of law.[4]

In S. Gopal Reddy vs.State of Andhra Pradesh[5] Supreme Court observed :

"It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object that the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary."

Contextual reading is a well-known proposition of interpretation of statute. The clauses of a statute should be construed with reference to the context vis-à-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of 'ex visceribus actus' should be resorted to in a situation of this nature.[6]

The duty of the Court in interpreting or construing a provision is to read the section, and understand its meaning in the context. Interpretation of a provision or statute is not a mere exercise in semantics but an attempt to find out the meaning of the legislation from the words used, understand the context and the purpose of the expressions used and then to construct the expressions sensibly.[7]

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[1]S.MOHAN Lalvs.R. KONDIAH 1979 AIR 1132; 1979 SCR (3) 12

[2]PGE V. Bureau Of Labor And Industries, 317 Or 606, 611, 859 P2d 1143 (1993); Kreiger V. Just, 319 Or 328, 336, 876 P2d 754 (1994).

[3] VATTICHERUKURU VILLAGE PANCHAYAT AND Orsvs.NORI VEKATRAMA DEEKSHITHULU AND ORS., 1991 SCR (2) 531; 1991 SCC Supl. (2) 228

[4] United States V. Wurzbach, [1930] 280 US 396 (@)399;Criminal Law: Smith & Hogan, 5th Edn. P. 70,

[5]S. Gopal Reddy Vs.State Of Andhra Pradesh Reported In (1996) 4 SCC 596

[6] DINESHCHANDRA JAMNADAS Gandhivs.STATE OF GUJARAT AND ANR,. 1989 AIR 1011; 1989 SCR (1) 138

[7] AJOY KUMAR BANERJEE & ORS. ETC.Vs.UNION OF INDIA & ORS. ETC., 1984 AIR 1130; 1984 SCR (3) 252

Chapter-12 Contextual -part-4

Contextual reading is a well-known proposition of interpretation of statute

Section 15AB of the Acts Interpretation Act ,1901 deals with the circumstances in which extrinsic materials may be used in the interpretation of statutes. They may be used where they are capable of assisting in the ascertainment of the meaning of a provision of an Act:

to confirm the ordinary meaning taking into account its context in the Act and the purpose or object underlying the Act; or

to determine meaning when the provision is ambiguous or obscure or where the ordinary meaning leads to a result that is manifestly absurd or unreasonable[1].

In this connection, reference may be made to the decision of this Court in the case of P.T. Rajan vs. T.P.M. Sahir & Ors. [2] Their Lordships observed that context, purport and object of the statute is to be ascertained that whether "shall" to be construed as a mandatory or directory and further "where a statutory functionary is asked to perform a statutory duty between time prescribed same would be directory and not mandatory. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory if thereby no prejudice is caused. The Court cannot supply casus omissus."

The Court while interpreting the provision of a statute, although, is not entitled to re-write the statute itself, is not debarred from "ironing out the creases". The court should always make an attempt to uphold the rules and interpret the same in such a manner which would make it workable. It is also a well settled principles of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided.

It has also been observed in connection of the contextual approach that:

"Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to any as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place and everything is in itsplace.[3]."

Ex praece dentibus et consequentibus optima fit interpretatio.' The best interpretation is made from the context.[4] Even where the definition is exhaustive in as much as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context[5]. Court should try to understand the spirit of the text and not be bound by letter[6]. The literal interpretation would feed injustice in perpetuity denying to the employees of sickness benefit etc. under the Act, which would be avoided, lest the purpose of the Act would be frustrated[7].

The Act must always be kept in view in construing the context in which a particular word is used[8]. The concept which prompted the legislature to enact this welfare law should also be borne in mind in interpreting the provisions' Due weight ought to be given to the words "unlessthe context otherwise requires"[9] The word "practise" when used with reference ,to an Advocate is an elastic expression, having no rigid or fixed connotation and the precise ambit of its contents can be ascertained only by reference to the rules of the particular forum in which the profession is exercised[10].The context is of the greatest importance in the interpretation of the words used in a statute[11].

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[1] Western Australia v Thomas (Waljen) (1996) 133 FLR 124 at p 139[

[2] P.T. Rajan vs. T.P.M. Sahir & Ors. (2003) 8 SCC 498.

[3] Reserve Bank of India vs. Peerless Co. reported in 1987(1) SCC 424

[4] PROVASH CHANDRA DALUIVs.BISWANATH BANERJEE;1989 AIR 1834; 1989 SCR (2) 401

[5] Vanguard Fire and General Insurance Co.Ltd.v.M/sFraser and Ross[1960] 3 SCR 857

[6]Mangat Rai v. Kidarnath, [1981] 1 SCR 476,HudsonCounty Water Co. v. Me Carter,209US 349,refd.to.

[7]C.E.S.C. LTD. .Vs.SUBHASH CHANDRA BOSE., . 1992 AIR 573, 1991 SCR Supl. (2) 267

[8] Commissioner of Expenditure-Tax, Gujarat, v.Darshan Surendra Parekh, [1968] 2 SCR 589

[9] N.K. JAIN AND OTHERSVs.C.K.SHAH AND OTHERS, 1991 AIR 1289; 1991 SCR (1) 938, Commissioner of Expenditure-Tax, Gujarat, Ahmedabad v. Darshan Surendra Parekh, [1968] 2 SCR 589; Bennet Coleman & Co. (P) Ltd. v. Punya Priya Das Gupta, [1970] 1 SCR181; Organo Chemical Industries and Another v. Union of India and Others, [1979] 4 SCC 573; Kanwar Singh v. Delhi Administration, [1965] 1 SCR 7; State of Gujarat v. Chaturbhuj Maganlal and Another, [1976] 3 SCR 1076 and Vanguard Fire & Gen. Ins Co. v. Fraser & Ross, AIR 1960 SC971, Parekh cotton Mills (P) Ltd. v. State of Bombay, [1957]2 LLJ 490.

[10] SUPREME COURT REPORTSASWINI Kumarvs.ARABINDA BOSE ,1952 AIR 369,1953 SCR1

[11] Town V. Eisner, 245 U.S. 418, Helvering V. Gregory 69 F.(2)D809; Heydon's Case (1584) 3 W. Rep. 16; 76 ER 637; Riverwear Commissioners V. Adamson (1876-77) App. Cs 743 At 764Referred To.[Re UNION OF Indiavs.:SANKAL CHAND HIMATLAL SHETH;1977 AIR 2328; 1978 SCR (1) 423]