Literal Approach and Development of Other Approaches

No doubt we adopt the approach that helps us interpreting the provisions of a statute. Any approach is a valid approach till it results in a reasonable interpretation that reflects the intent of legislature.However, there is a common feeling that plain meaning and literal approach are same. However, the following does not suggest so. I am quoting from the case the citation of which is given at the end of the post..[Blogger]General Confusion about Adoption of Particular Approach
There is an apparent confusion regarding the ordinary meaning, plain meaning and literal rules of construction and the contextual, pragmatic and purposive approaches: [see generally R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., (Toronto: Butterworths, 1994) (hereinafter Sullivan) and P.-A. Côté, Interpretation of Legislation in Canada, 2nd ed. (Cowansville, Que.: Les Éditions Yvon Blais, 1991).]

The history of the plain meaning rule is canvassed by Sullivan (at pages 1-6). Originally, the phrases plain meaning rule, ordinary meaning rule and literal construction rule were essentially interchangeable. The process of interpretation invoked by these rules was, first, to determine the literal meaning of the words used, and then, only if ambiguity remained, resolve the ambiguity by reference to elements such as the mischief the provision was intended to address. This two-pronged approach has gone by the wayside as it is formalistic, technical and narrow. This conclusion is addressed by Sullivan, at page 4, who quotes one of our own judges, Rouleau J. in ECG Canada Ltd. v. Canada, reflex, [1987] 2 F.C. 415 (T.D.), at page 423:

What is Ordinary Meaning

There is no question that the literal approach is a well established one in statutory interpretation. Nevertheless, it is always open to the Court to look to the object or purpose of a statute, not for the purpose of changing what was said by Parliament, but in order to understand and determine what was said. The object of a statute and its factual setting are always relevant considerations and are not to be taken into account only in cases of doubt.
The "ordinary meaning" rule, as defined by Sullivan, simply suggests that the ordinary meaning of words as generally understood provides the best evidence of what meaning Parliament intended to convey. The ordinary meaning is that gleaned on first impression from the words in their immediate context, that is in the context of the provision in which they appear. Under this approach, if there is no reason to reject it the ordinary meaning will be applied. However, the purpose and scheme of the Act, the consequences of the proposed meaning, and any other source that may point to the legislators' intent must be examined. This examination may lead the court to modify or reject the ordinary meaning if an alternative plausible interpretation exists. Where there is no reason to reject the ordinary meaning, or where there is no plausible alternative meaning, the court must apply the ordinary meaning: Sullivan, at pages 26-28, referring to the reasons of Cory J. in Thomson v. Canada (Deputy Minister of Agriculture) , 1992 CanLII 121 (S.C.C.), [1992] 1 S.C.R. 385.

Advent of Harminisation and context
The above conclusion is reflected in the jurisprudence of the Supreme Court and of this Court. In Hills v. Canada (Attorney General),1988 CanLII 67 (S.C.C.), [1988] 1 S.C.R. 513, an unemployment insurance case, Madam Justice L'Heureux-Dubé speaking for the majority endorsed the contextual approach. At page 549 [quoting Driedger, E. A. Construction of Statutes, 2nd ed., at page 87] she stated:
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. MacGuigan J.A. addressed the proper approach to statutory interpretation in the context of taxation in Lor-Wes Contracting Ltd. v. The Queen, reflex, [1986] 1 F.C. 346, and determined in the oft-quoted passage, at page 352 that 
"[t]he only principle of interpretation now recognized is a words-in-total-context approach with a view to determining the object and spirit of the taxing provisions." In an unemployment insurance decision rendered shortly after Lor-Wes , Canada (Attorney General) v. Tucker, reflex, [1986] 2 F.C. 329 (C.A.), at page 340, MacGuigan J.A. writing for the majority adopted the reasoning inBourne (Inspector of Taxes) v. Norwich Crematorium, Ltd., [1967] 2 All E.R. 576 (Ch. D.), at page 578:
English words derive colour from those words which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. So, too, you cannot take a section out of the Act, interpret it in isolation from its context and then put it back into the Act with the meaning assigned
. Purposive Approach To construction
Given this discussion of the purposive approach and the plain meaning (literal) and ordinary meaning rules of statutory construction, the method of interpretation we are to follow is, in my view, self-evident. In the context of this case, the supposed "plain meaning" approach advocated by the Commission in the interpretation of subsection 13(2) really amounts to the application of the literal approach. The Commission suggests that the subsection must be construed in isolation, without examining how it works within the scheme of the Act. I agree that if that subsection is interpreted in that fashion, its meaning is plain and unambiguous. It is the last twenty weeks of insurable employment that is relevant, regardless of whether those weeks relate to the first or second employment. Adopting the literal approach would certainly simplify the interpretation of this Act. However, Parliament did not pick the simple solution when it drafted the Act, which is commonly viewed as one of the most complex: see  Petts v. The Umpire (Unemployment Insurance) , [1974] 2 F.C. 225 (C.A.), at page 233 perJackett C.J. In this case, as will be demonstrated, the "simple" solution is illogical when consideration is given to the broader context.
In applying the contextual approach to the construction of subsection 13(2), it becomes clear that the meaning of the provision is ambiguous when examined in its full context, in particular with regard to its relation to section 7. In light of the interaction between these provisions, there are two plausible interpretations of subsection 13(2).

... 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. [per Robertson J.A. (dissenting)]

Canada v. Cymerman, [1996] 2 F.C. 593
It appears that "literalism" has in a number of recent cases been in effect repudiated, there is even today some residue of authority for the so-called literal rule, especially in view of the force of precedents in our system. The result may sometimes be that a court, faced with a difficult problem of interpretation, is too readily attracted to the apparently simple course of relying on what is said to be the plain and ordinary meaning of particular words without giving sufficient weight to other considerations which might suggest a different meaning. An excessive emphasis on the words of a provision divorced from their context may be especially inappropriate where it is unlikely that the legislator had in contemplation the particular facts which subsequently arise before a court and where the question is whether the words of the provision ought to be applied to cover the facts. Thus, where the question arose whether a new furnace chamber and chimney tower of a crematorium ranked for an annual capital allowance, as being expenditure on "buildings and structures" in use "for the purpose of a trade which consists in the manufacture of goods or materials or the subjection of goods or materials to any process," the allowance was refused because it would be "a distortion of the English language to describe the living or the dead as goods or materials."[See Bourne v. Norwich Crematorium Ltd. [1967] 1 W.L.R. 691 at p. 695. The enactment in question was the Income Tax Act 1952, ss. 266 and 271.

Literal/plain Meaning Rule

The Plain meaning rule, also known as the literal rule, is a type of statutory construction, which dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law is to be read word for word and should not divert from its true meaning. It is the mechanism that underlines textualism and, to a certain extent, originalism.

What is Plain Meaning Rule

To avoid ambiguity, legislatures often include "definitions" sections within a statute, which explicitly define the most important terms used in that statute. But some statutes omit a definitions section entirely, or (more commonly) fail to define a particular term. The plain meaning rule attempts to guide courts faced with litigation that turns on the meaning of a term not defined by the statute, or on that of a word found within a definition itself.

According to the plain meaning rule, absent a contrary definition within the statute, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable. The literal rule is what the law says instead of what the law means.

Prof. Larry Solum's Legal Theory Lexicon expands on this premise:

Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type.

Lord Evershed was echoing the same point: 'The length and detail of modern legislation has undoubtedly reinforced the claim of literal construction as the only safe rule.'

If the statute was long, this suggested that parliament had expressed its full meaning and that there was no need or scope to imply any additional meanings. Anything omitted was a casus omissus which the judge could not supply because that would amount to legislation. But the literal approach was used equally for wills, contracts, and other legal documents, so that the philosophy was by no means based exclusively on the constitutional relationship between courts and parliament nor on the growing length of statutes.

The plain meaning approach cannot survive modern hermeneutic understandings of how we read texts. No words are simply "plain in themselves." The words are just scratches on a page. They are said to be plain only because the interpreter is deciding to treat them as such and giving a particular connotation to them, a connotation that the judge claims to be the connotation intended by the legislator. The judge in dividing up the words into plain categories or ambiguous categories is really doing so by supplying a context and assigning a connotation, even unconsciously, for the words. Professor Zander summarizes the criticisms as follows at 49:

But the literal rule has also been subjected to severe criticism:

(l) The most fundamental objection to the rule is that it is based on a false premise, namely that words have plain, ordinary meanings apart from their context. Professor H.L.A. Hart of Oxford has argued that a word has a core meaning 'or standard instance in which no doubts are felt about its application' even though at the edges there is a margin of uncertainty. But Professor Lon Fuller has contested this by urging that meaning attaches not to individual words but to sentences and paragraphs, and that 'surely a paragraph does not have a "standard instance" that remains constant whatever the context in which it appears.' If a statute seems to have a core meaning 'this is because we can see that, however one might formulate the precise objective of the statute, this case would still come within it.'

(2) Those who apply the literal approach often talk of using the 'dictionary meaning' of the words in question, but dictionaries normally provide a number of alternative meanings.

(3) The plain-meaning approach cannot be used for general words, which are obviously capable of bearing several meanings.

(4) Not infrequently the courts say that the meaning of the words is 'plain' but then disagree as to their interpretations.

(5) The plain-meaning theory may be acceptable outside the courtroom, since it could be true that a high proportion of statutory materials and other legal documents can in fact be interpreted without recourse to any mischief or golden rule.

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Chapter 9 Literal/Plain Meaning Approach

Chapter 9

Literal/Plain Meaning Approach

.The Literal/plain meaning Rule of interpretation

When interpreting a statute, we look first to the plain meaning of its language[1]as Statutory interpretation is a question of law reviewed de novo on appeal[2].Basically The purpose of statutory interpretation is to give effect to the intent of the Legislature[3]. and ,

“[w]here Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion,[4]’ also,’ If the language of the statute is unambiguous, we enforce it as plainly written. However, if a statue is susceptible to more than one interpretation, we must engage in judicial construction and interpret the statute’[5]. It is to be seen that ‘A statute that is unambiguous on its face may be rendered ambiguousby its interaction with and its relation to other statutes’[6]

We also follow that :

“The words, which are used in declaring the meaning of other words may also need interpretation and the legislature may use a word in the same statute in several different senses. In that view of the matter, it would not be correct to contend that the expression as defined in the interpretation clause would necessarily carry the same meaning throughout the statute”[7] as ‘the well-accepted principle of statutoryconstruction that requires every provision of a statute to be given effect”[8]

In the case of Technical Words ‘It is no doubt true that normally a technical meaning should be attributed rather than a common meaning to a word if the same relates to a particular trade, business or profession, art or science or words having a special meaning’.[9].

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[1] , see United States v. Gonzales, 520 U.S. 1, 4-6, 117 S.Ct. 1032, 1034-35, 137 L.Ed.2d 132 (1997)

[2]  People v Hammons, 210 Mich App 554, 557; 534 NW2d 183(1995). 

[3] People v Morris, 450 Mich 316,326; 537 NW2d 842 (1995).

[4] see Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L,.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam)).

[5] People v Morris, 450 Mich 316,326; 537 NW2d 842 (1995).

[6] Peoplev Denio, 454 Mich 691, 699; 564 NW2d 13 (1997).

[7] Appeal (civil) 7533 of 1997Indian Handicrafts Emporium Vs.Union of India., Judgement 27/08/2003

[8] 14 F.C.C.R. 16,794 at 44.[part citation is given]

[9] Union of India vs. Garware Nylons Ltd. [AIR 1996 SC 3509 and Unwin vs. Hanson [1891 (2) QB 115]