In Defence of Maxims

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Page 1Statute Law Review/2001/Issue 1, May/Articles/In Defence of Maxims - Stat Law 2001 22 (45) Statute Law Review Stat Law 2001 22 (45) 1 May 2001In Defence of MaximsR. N. Graham1 Assistant Professor, Faculty of Law, University of New Brunswick. Oxford University Press 2001 STATUTES It is unbecoming for young men to utter maxims. --Aristotle, 384-322 B.C.I. INTRODUCTIONMaxims have fallen victim to a lot of bad press. While ancient courts regarded maxims as shining beacons of clarity in an otherwise murky legal world, the maxims of statutory construction appear to have very little appeal for modern jurists. Cases that would once have been addressed through the invocation of pithy Latin maxims now fall to be decided through appeals to public policy or equitable concerns. The fabled canons of construction, useful guidelines that once directed courts toward a statute's meaning, now lie impotent and forgotten, visited only by eccentric legal scholars. When maxims are invoked by modern counsel, they are met with scepticism or even scorn, often eliciting stern judicial warnings that maxims must be approached 'with caution'2 lest they lead a hapless jurist to 'over-ride' the lawgiver's intention.3 The lowly maxim, once regarded as a valued tool of legal interpretation, has been declared a 'dangerous master' that is perhaps best left alone.4 Despite all of this bad publicity, the maxims of statutory interpretation continue to serve as valuable tools for those interested in legislative language, and they can form an important component of a modern approach to statutory language. The purpose of this article is to extol the many virtues of the maxims and to encourage their revival in modern jurisprudence. To that end, this article has three elements: (i) a discussion of the nature of the maxims together with descriptions of four specific maxims that may serve as useful examples; (ii) a consideration of the criticisms that have plagued the maxims, and (iii) an examination of the role that maxims can and should play in modern law.II. WHAT ARE THE MAXIMS?The maxims of statutory interpretation are handy interpretive guidelines that are usually expressed in Latin phrases. Each of these Latin phrases refers to a specific principle of statutory construction that can help the courts interpret legislation. From a certain perspective, the maxims form a code of 'statutory grammar' that helps us understand patterns of language found in legislative texts. The maxims are unlike many of the standard rules of grammar, however, in that the maxims are not hard and fast rules of universal application. The maxims are more akin to rules of statistical probability than to prescriptive rules of grammar that apply inPage 2all cases. While maxims often describe the result that ought to be reached when particular problems of interpretation arise, they differ from true grammatical rules in that the court is free to ignore the maxims whenever it deems reliance on a maxim inappropriate. Rather than binding a court and forcing it to reach a pre-ordained construction of a legislative passage, the maxims simply describe what drafters probably meant through the use of specific patterns of language. For this reason, it is best to regard the maxims as sources of argument rather than as binding rules that force the court to render particular decisions. Used correctly, the maxims can provide creative counsel with a series of highly persuasive arguments that are useful in cases involving legislation. Each of the maxims discussed here is linked to a particular pattern of language that typically gives rise to the need for judicial construction. Where these patterns of language occur, the maxims lead directly to a set of logical inferences that explain why the relevant pattern of language typically appears in legislation. The maxims are tied directly to the logic underlying linguistic patterns. Maxims draws the courts' attention to this logic, allowing lawyers and judges to make extremely useful arguments and predictions concerning the meaning that may be attributed to legislative texts. The best way to understand the maxims is through the use of examples; the next section accordingly presents brief discussions of four of the more useful maxims of construction. They represent a small fraction of such maxims, but a study of their purpose and rationale will assist an understanding of the general nature of maxims.III. SOME MAXIMS(A) NOSCITUR A SOCIISNoscitur a sociis is the most basic of the maxims of construction and the source from which several other maxims are derived. Translated literally, the phrase 'noscitur a sociis' means 'know a thing by its associates'. This maxim can be used in almost any problem of construction, for it applies wherever a statutory provision contains a word or phrase that is capable of bearing more than one meaning. The maxim works by comparing the contentious word or phrase with other words or phrases that accompany the language being interpreted. So, standing alone, the word 'disability' is ambiguous. It may refer to (a) medical disabilities, (b) legal disabilities, or (c) any factor that renders the subject 'less able' to perform a particular task. If the word 'disability' is associated with the words 'illness' and 'death', however, as in the phrase 'the insurer will pay the amount of $10 million in the event of the insured's illness, disability or death', we may be able to rule out some of the meanings that 'disability' carries standing alone. The association of the word 'disability' with the words 'death' and 'illness' makes us relatively confident that the disabilities with which we are concerned are medical in nature. The word 'disability' is coloured by its association with 'death' and 'illness'. This form of interpretation, which is unconsciously performed by most competent users of the English language, is often referred to as 'contextual construction', for it requires an examination of the context in which an ambiguous word or phrase is found before deciding on its interpretation. Francis Bennion describes the operation of the maxim as follows: Where words or phrases capable of different meanings are associated, they take colour from each other and this may exclude meanings which would be possible if the words or phrases stood alone. Thus, where a power was given to 'break up the soil and pavement of roads, highways, footways, commons, streets, lanes, alleys, passages and public places' the court held 'construing the word 'footway' from the company in which it is found' that the power was limited to paved footways in towns and did not extend to a field footpath (Scales v. Pickering (1828) 4 Bing 448).5 In Bennion's example, the word 'footway' is understood by reference to the reasoning embodied in meaning of its companion words and phrases. As highways, streets and the other listed items tend to refer to developed areas, 'footway' was understood in a similar sense, embracing paved footways but excluding undeveloped trails. The meaning of the term 'footway' was 'known' by its associates.Page 3Bourne v. Norwich Crematorium Ltd. (1967)6 provided a classic use of the noscitur a sociis. Bourne involved the taxation of a crematorium company under a UK Income Tax Act.7 The taxpayer, Norwich Crematorium Ltd., sought to deduct an annual amount in respect of expenditures it had incurred in the construction of a furnace that was used in its operations. The provision upon which the taxpayer relied for the deduction permitted tax relief in respect of 'an industrial building or structure occupied for the purposes of a trade'. The tax authorities had disallowed the taxpayer's deduction, suggesting that the facilities used by a crematorium could not be considered 'industrial' for the purposes of the relevant legislation. The taxpayer appealed, asking the Court to determine whether or not a crematorium's furnace could be considered an 'industrial building or structure' for the purposes of an income tax statute. The Court addressed this question through the use of contextual interpretation. 'Industrial building or structure' was defined in the relevant statute as 'a building or structure in use ... for the purposes of a trade which consists in the manufacture of goods or materials or the subjection of goods or materials to any process'. According to the taxpayer in Bourne, the cremation of human remains was 'a process' to which 'goods or materials' (namely, human bodies) were subjected. If the taxpayer was correct, the structure in which this process took place, the furnace of the Norwich Crematorium, would be an 'industrial structure' for the purposes of the Act, and the taxpayer would be entitled to the deductions claimed. The characterisation of human remains as 'goods or materials' was one that caught the Court by surprise. According to Stamp J.: I would say at once that my mind recoils as much by the description of the bodies of the dead as 'goods or materials' as it does from the idea that what is done in that crematorium can be described as 'the subjection of' the human corpse to a 'process'. Nevertheless the taxpayer so contends, and I must examine that contention'.8 The Court went on to describe the taxpayer's argument as follows: The argument, of course, goes on inevitably to this: that just as the phrase 'goods and materials' is wide enough to embrace, and does embrace, all things animate and inanimate, and so includes the dead human body, so the other words to which a meaning must be given, namely 'subjection' and 'process', are words of the widest import.9 From a purely literal perspective, the taxpayer's contention made a certain amount of sense. The human body is composed of 'materials'. It is 'material' in the sense that it has substance and forms a part of the material world. The word 'materials', however, did not appear in isolation in the relevant legislation. It was associated with the word 'goods' and a host of other words that imported the notion of goods intended for sale and materials that were used in manufacturing. Applying noscitur a sociis, one could interpret the word 'materials' by reference to the words and phrases with which it was associated, giving the word 'materials' a narrower definition that included only materials that were used in manufacturing. In Stamp J.'s opinion: English words derive colour from those 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. That one must construe a word or phrase in a section of an Act of Parliament with all the assistance one can from decided cases and, if one will, from the dictionary, is not in doubt; but having obtained all that assistance, one must not at the end of the day distort that which has to be construed and give it a meaning which in its context one does not think it can possibly bear.10 Given the context in which the word 'materials' was found, Stamp J. held that the word encompassed only materials that were used in a manufacturing process, not extending to human corpses destined for a crematorium. As a result, Stamp J. held that 'the consumption by fire of the mortal remains of homo sapiens is not the subjection of goods or materials to a process within the definition of 'industrial building or structure' contained in s. 271(1)(c) of the Income Tax Act'.11 The taxpayer's deduction was accordingly disallowed. The mode of reasoning found in Bourne lies at the heart of noscitur a sociis. Like most courts that use thisPage 4form of reasoning, however, the Court in Bourne refrained from referring to this maxim by its traditional Latin name. However, in the more recent case of R v. Goulis,12 the Ontario Court of Appeal invoked the maxim by name, demonstrating that there is still some life remaining in this handy Latin phrase. In Goulis, the accused had been charged with hiding over 1000 pairs of shoes. Mr. Goulis was a bankrupt who was required, under the relevant bankruptcy legislation, to disclose all of the assets that he owned. He failed to disclose over 1000 pairs of shoes during his bankruptcy proceedings, and was accordingly charged with an offence under section 350 of the Criminal Code,13 which provided that every one who 'removes, conceals or disposes of any of his property [with intent to defraud his creditors] is guilty of an indictable offence'. The question before the Court was whether Mr Goulis had removed, concealed or disposed of his secret hoard of shoes. The difficulty in Goulis was that the accused had taken no positive action to prevent the discovery of his shoes. He had not 'removed' them from any location, nor had he 'disposed' of them by selling them or throwing them away. As section 350 of the Code required proof that the accused had either removed, concealed or disposed of his assets, the Crown sought to prove that Goulis had 'concealed' his shoes within the meaning of the legislation. The word 'conceal' is ambiguous in that it can refer to a positive physical act or, alternatively, to a simple refusal to disclose. If the word 'conceal' in section 350 of the Criminal Code attracted the first meaning, Mr. Goulis had not committed the offence; if it attracted the second meaning, he had. Writing for the unanimous Court of Appeal, Martin J. A. interpreted the relevant language by invoking noscitur a sociis. His Lordship provided the following admirable summary of the maxim, together with his reasons for acquitting the accused: It is an ancient rule of statutory construction (commonly expressed by the Latin maxim, noscitur a sociis) that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it ... When two or more words which are susceptible of analogous meanings are coupled together they are understood to be used in their cognate sense. They take their colour from each other ... In this case, the words which lend colour to the word 'conceals' are, first, the word 'removes', which clearly refers to a physical removal of property, and second, the words 'disposes of', which ... strongly suggests the kind of disposition which results from a positive act taken by a person to physically part with his property. In my view the association of 'conceals' with the words 'removes' or 'disposes of' in s. 350(a)(ii) shows that the word 'conceals' is there used by Parliament in a sense which contemplates a positive act of concealment.14 Because the word 'conceals' was capable of bearing more than one meaning, the meaning of that word in the relevant statutory provision was selected by reference to the other words with which it was found. Since 'removes' and 'disposes of' both referred to positive actions, the word 'conceals' was understood in a similar sense. Only 'positive acts' of concealment were captured by the relevant language. As Mr. Goulis had taken no positive action to conceal his hoard of shoes, he was acquitted of the offence with which he was charged. The logical foundations of noscitur a sociis are relatively uncontroversial. Contextual interpretation comes naturally to most readers. Without the aid of context, sentences would become mere collections of unrelated, ambiguous words, and communication would be virtually impossible. As a result, noscitur a sociis is easy to understand and equally easy to defend. It is also the source of several other maxims of statutory construction, including 'ejusdem generis'.(B) EJUSDEM GENERISTranslated literally, 'ejusdem generis' means 'of the same genus' or 'of the same class'. Generally speaking, this maxim is used wherever a provision contains a list of specific items accompanied by general words that embrace those specific items. Consider the phrase 'lions, tigers, bears and other animals'. This passage could attract the application of ejusdem generis, as it contains a list of specific items (namely, lions, tigers and bears), as well as general words that embrace those specific items ('other animals'). Where the maxim applies, the general words may be read down to include only those items that are of the same class or genus as the specifically mentioned items. In the lions, tigers and bears passage, for example, we could safelyPage 5read-down the phrase 'other animals' to exclude any animals that were essentially different from lions, tigers and bears. Single-celled organisms, such as paramecia or amoeba, could probably be excluded through the use of the maxim without much controversy, as could human beings and imaginary animals such as unicorns or dragons. It is important to realise, however, that the phrase 'lions, tigers, bears and other animals', construed literally, would have embraced every member of the animal kingdom: paramecia, humans, cuttlefish and perhaps even imaginary creatures would be included. The literal meaning of the phrase 'other animals' is broad enough to capture any animal. It is the ejusdem generis maxim (or the logical inference that ejusdem generis represents) that instructs us not to give the general words their widest possible meaning, but to narrow them in such a way as to ensure that the general words capture only items that are of the same class or genus as the specifically listed items. As noted above, ejusdem generis is a special form of noscitur a sociis. Noscitur a sociis instructs the reader to 'know a thing by its associates'--to give a word or phrase a meaning that agrees with the meaning of other words with which it is found. Similarly, ejusdem generis suggests that general words must be understood by reference to the specific terms with which they are associated. The general words are 'known' by reference to their more specific associates. As a result, ejusdem generis is simply a specific application of the reasoning underlying noscitur a sociis. The logical inference at the heart of ejusdem generis makes sense. Consider, once again, the example described above: 'Lions, tigers, bears and other animals'. If the author of that phrase had intended the words 'other animals' to be read in their broadest possible sense, there would have been no reason to list the words 'lions', 'tigers' and 'bears'. Lions, tigers and bears (being animals) would have been caught by the word 'animals' without any need to be singled out by the sentence's author. One of the fundamental presumptions of statutory construction is that there are no extraneous words in legislation. If the words 'lions', 'tigers' and 'bears' are not merely excess verbiage, what is their role in the relevant text? The most logical answer is that they are examples of the kind (or genus) of animals captured by the general words at the end of the passage. Had the author intended to capture all members of the animal kingdom, he or she could have simply used the word 'animals' without providing us with a list. The author has provided us with a clue, however, suggesting that the general words 'other animals' are not to be read so broadly: the author has given us a list of specific examples (namely, lions, tigers and bears) presumably for the purpose of guiding us to the proper construction of the general phrase. Like all maxims, ejusdem generis has its limits. The most important of these lies in the fact that ejusdem generis can rarely (or perhaps never) indicate the precise boundaries of a genus that it creates. Consider an expanded version of the 'lions, tigers and bears' example noted above. A legislative passage might provide that 'Lions, tigers, bears and other animals must be housed in paddocks enclosing no less than one hectare per animal'. As noted above, the maxim reminds us that the phrase 'other animals' must not be interpreted in its broadest possible sense, for this would deprive the words 'lions', 'tigers' and 'bears' of any independent purpose. Ejusdem generis instructs us to use the specifically listed items to narrow the class of 'other animals' to include only animals that are of the same class or genus as lions, tigers and bears. This raises a critical problem. No one knows, simply from the application of this maxim, the full extent of the class to be defined by the phrase 'other animals'. The class could be made up of any group that shares the characteristics of lions, tigers and bears. But which characteristics are important? The class may include all mammals, all potentially dangerous mammals, all carnivores, all animals found at the Toronto Zoo, or all animals mentioned in the Wizard of Oz. The maxim provides us with very little guidance as to the nature of the class that it defines. We are given some assistance by the remaining words found within the provision: the provision requires that certain animals be 'housed within paddocks enclosing no less than one hectare per animal'. Once again, we can safely exclude amoeba from the phrase 'other animals' in this passage, not only because of ejusdem generis, but also because of the context that the remainder of our fictitious statute provides. It simply would not make any sense to enclose an amoeba in a one-hectare paddock. For similar reasons, house-cats can probably be excluded. Although a house-cat does bear certain things in common with the animals that are mentioned in the passage (especially lions and tigers), it would be silly to require that all house-cats be kept in enormous paddocks. This guidance comes from the context of the legislative passage rather than from ejusdem generis. In this example, ejusdem generis simply tells us not to interpret 'other animals' in its broadest possible sense, but to look for commonalities in the specifically listed items with a view to constructing a class that narrows the general terms. The usefulness of this maxim lies in its powerPage 6to remind us of the interpretive possibilities that exist within a certain pattern of language, calling our attention to important interpretive clues that have been left behind by statutory drafters. Courts commonly invoke ejusdem generis. A typical example is the decision of the U.S. Supreme Court in United States v. Alpers.15 In that case, the Court was asked to interpret legislation that prohibited the interstate shipment of any obscene 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character'. Mr. Alpers had been charged under the relevant legislation after shipping phonograph records across state lines. Those records were 'impressed with recordings of obscene, lewd, lascivious and filthy language and obscene, lewd, lascivious and filthy stories'.16 Alpers conceded that the records were indecent. The only question that remained was whether the records constituted a 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character' for the purposes of the relevant legislation. Based on Alpers' concession that the records were indecent, the records clearly amounted to 'matter of indecent character' if that phrase was given a literal construction. The records were clearly 'matter'. The 'indecent character' of that matter was admitted by Mr. Alpers. However, the Court of Appeals had relied on ejusdem generis for the purpose of reading-down the phrase 'other matter of indecent character' such that the phrase encompassed only items that were of the same class or genus as the items that were listed in the provision. Minton J. of the Supreme Court described the Court of Appeals' reasoning as follows: In interpreting the statute as applied to this case the Court of Appeals invoked the rule of ejusdem generis. Since the words 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print' appearing in the statute refer to objects comprehensible by sight only, the court construed the general words 'other matter of indecent character' to be limited to matter of the same genus. The Court of Appeals held phonograph records without the statute, so interpreted, since phonograph records are comprehended by the sense of hearing.17 From an interpretive perspective, the appeal court's application of ejusdem generis made a great deal of sense. Applying the presumption that legislative drafters write with precision and refrain from using extraneous language, the Court of Appeals determined that the phrase 'other matter of indecent character' could not be given its broadest possible meaning. If it were given its broadest possible meaning, specifying the items in the section would have served no purpose: all indecent matter would be caught without the need for a list of examples. The Court of Appeals reasoned that the listed items had been included for some purpose, and that the purpose was to narrow the class of 'indecent matter' to indecent matter perceived by the sense of sight. The Court of Appeals' decision in United States v. Alpers was a textbook ejusdem generis, but it did not impress the U.S. Supreme Court. Overturning the Court of Appeals' decision, a majority of the Court (per Minton J.) held: When properly applied, the rule of ejusdem generis is a useful canon of construction. But it is to be resorted to not to obscure and defeat the intent and purpose of Congress, but to elucidate its words and effectuate its intent ... We find nothing in the statute or its history to indicate that Congress intended to limit the applicable portion of the statute to such indecent matter as is comprehended through the sense of sight ... nor do we think that Congress intended that only visual obscene matter was within the prohibition of the statute.18 Of course, the Court provided no basis for its view of Congress' intent with respect to the meaning of the statute. No evidence of intent was provided apart from the language of the relevant provision. The effect of the Court's decision to ignore ejusdem generis was to render the statute's list of specific items purely extraneous: the phrase 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character' was effectively deleted from the statute, leaving only the general phrase 'any matter of indecent character'. This does not imply that the Court's decision was wrong. It merely suggests that, with respect, the Court ought to have provided a more compelling reason for ignoring ejusdem generis than an unsupported reference to Congressional intent. Dissenting in Alpers, Black J. did not specifically rely on ejusdem generis. He would, however, have upheld the acquittal of Mr. Alpers on the grounds that the prohibition found in the statute did not extend to includePage 7phonograph records. Black J.'s reasoning largely centred on the evils of censorship and the principle that 'criminal statutes shall be couched in language sufficiently clear to apprise people of the precise conduct that is prohibited'.19 Since Alpers' records were not clearly caught by the legislation, Black J. (together with Frankfurter and Jackson JJ.) would have upheld the acquittal. In order to do so, of course, they would have to have given a narrow reading to the phrase 'other matter' in the relevant legislation. The mechanism that would have permitted them to do so was the reasoning underlying ejusdem generis. The decision of the majority in Alpers is typical of the manner in which courts deal with inconvenient maxims. Where a maxim leads a court toward a decision of which the court does not approve, judges tend to claim that the maxim is often 'useful', but that resort to the maxim in the case at hand would 'defeat the intent and purpose' of the legislative author.20 In most of these cases, the court gives no support for its assertion that the author's intent or purpose was something different than the meaning that is supported by the maxim. The court merely notes that the maxim is sometimes useful, but (for unstated reasons) the application of the maxim in the case at hand would be unwise. Perhaps the judiciary's scepticism concerning ejusdem generis lies in the fact that the maxim is subject to a number of exceptions. Obviously, the maxim cannot apply in cases where the specifically listed items are incapable of forming a recognisable genus. Thus, in the example 'apples, trains, senior citizens, micro-processors, herring and other items shall be subject to this Act', the phrase 'other items' will probably not be read-down to conform to a genus implied by the listed items: the listed items seem to be unrelated, and do not readily lend themselves to the creation of a single class or genus. Similarly, ejusdem generis cannot apply in those rare cases in which the listed items exhaust the entire genus that they seem to have created. This second exception, known colloquially as 'exhausting the genus', could be seen in a passage that referred to 'minors, adults and other persons'. Applying ejusdem generis, one would be tempted to narrow the phrase 'other persons' to include only natural persons, excluding corporations or other non-human entities that may be considered 'persons' by the law. Minors and adults, both of which are specifically referred to in section, are types of natural person. Ejusdem generis seems to suggest that the phrase 'other persons' was intended to refer only to natural persons, as the genus of natural persons is suggested by the specifically listed types. This gives rise to an objection: if the phrase 'other persons' is limited to natural persons, the words 'other persons' in this passage are extraneous. Minors (which represent all natural persons under the age of majority) and adults (which include all natural persons over the age of majority) are the only kinds of 'natural persons' that exist. Since both minors and adults are already listed in the section, all forms of natural person are already accounted for without the need for the phrase 'other persons' at the end of the passage. As we have seen, statutory drafters are presumed not to include extraneous language in their drafting. This leads to a dilemma: either the words 'minors and adults' are extraneous, and the words 'other persons' should be interpreted in their broadest possible sense, or the words 'other persons' are extraneous, adding nothing to a section that already catches every kind of natural person through its specific application to minors and adults. In cases such as this, the court errs on the side of over-inclusiveness, giving the broad words their largest possible scope. Thus, in the example 'minors, adults and other persons', the phrase 'other persons' would not be restricted by reference to a genus that is created by minors and adults: the only genus that is suggested by those terms is exhausted by the listed items, and ejusdem generis will not apply where its effect would be to rob the general terms of their meaning. As a result, 'other persons' would be interpreted in a broader sense, to include, for example, companies.21 Such considerations may explain judicial reluctance to invoke ejusdem generis. It is seen as exceedingly technical in nature, subject to countless technical qualifications and exceptions. This problem arises due to the failure of counsel to refer to the rationale of ejusdem generis (or any maxim, for that matter) when presenting the relevant maxim to the court. If a maxim is seen as an arbitrary rule with little or not logical basis, it seems perfectly reasonable to reject the rule for arbitrary reasons. Thus, in cases such as National Bank of Greece v. Katsikonouris,22 learned judges rely on unsupportable reasons for rejecting a maxim. In National Bank of Greece, the Supreme Court of Canada refused to apply ejusdem generis on the grounds that the general words in the relevant section preceded, rather than followed, the list of specific items. With respect, this makes no sense. The phrase 'animals such as lions, tigers and bears' (in which the general words precede the specific list) should attract the application of ejusdem generis no less than the phrase 'lions, tigers, bears or other animals' (in which the general words come last).23 The rationale that underlies ejusdem generis applies with equal force regardless of the order in which the general and specific words arePage 8arranged. The case demonstrates the danger of referring to a maxim without at the same time describing its rationale. Maxims should not be referred to as a collection of technical rules that are subject to a host of specific exceptions. Instead, much like the modern hearsay rule, maxims should be governed by a 'principled approach' that takes into account the logical basis for each maxim. Beyond the many exceptions and technicalities that have eaten away at ejusdem generis, the maxim is also subject to a number of criticisms. Perhaps the most important of these criticisms flows from the highly subjective manner in which ejusdem generis can sometimes be applied. Another animal-based example serves to demonstrate this point. Consider the phrase 'pigs, chickens, cows and other animals'. How would ejusdem generis cause the phrase 'other animals' to be narrowed in this passage? One might contend that pigs, chickens and cows are all animals consumed by humans, and that the phrase 'other animals' should be narrowed accordingly. This genus might only come to mind, however, if the reader is a member of a culture in which pigs, chickens and cows are consumed as food. Other cultures might regard one or more of these creatures as forbidden sources of food, as sacred animals, as spirit guides, as objects of experimentation or as creatures that have been enslaved by human oppressors. The genus lies in the eyes of the beholder, and a court's own cultural bias may shine through where ejusdem generis is applied. Any perception of commonality between specifically listed items will depend on the life experience of the interpreter. A member of a group that is over-represented in the judiciary, such as middle-aged white males, may have a skewed perception of the commonalities found within a list of specific items, and may rely on those perceptions when constructing a genus for the purpose of applying ejusdem generis. This is not a criticism of middle-aged white males, but an issue of human nature. There is something of the interpreter in every act of interpretation. When construing a written passage, an interpreter inevitably draws upon his or her own life experiences as a basis for understanding the relevant words. Because of the difficulty of defining any genus through the ejusdem generis maxim and the wide array of classes that may be constructed based on any series of specific items, ejusdem generis is particularly vulnerable to the 'subjective' nature of interpretation, and may serve to surreptitiously re-enforce cultural 'norms' that are imposed by a dominant social group. Despite its many difficulties, ejusdem generis has enjoyed a reasonably successful career and continues to be relied on as a maxim of interpretation, a luxury not enjoyed by the maxim 'reddendo singula singulis'.(C) REDDENDO SINGULA SINGULISLiterally translated, 'reddendo singula singulis' means 'referring each to each'. This rather cryptic translation does little to explain the workings of the maxim. The function of reddendo can best be explained through the use of examples. Consider the phrase 'Men and women may become members of fraternities and sororities'.24 This passage can be construed in several ways. On the one hand, perhaps it means that men may join both fraternities and sororities and that women may join fraternities and sororities as well. On the other hand, it could mean that men may become members of fraternities (but not sororities) and women may become members of sororities (but not fraternities). This latter construction, which makes intuitive sense given the etymology of the terms 'fraternities' and 'sororities', is arrived at through the application of reddendo. Reddendo suggests that 'men' should be matched with 'fraternities' and 'women' should be matched with 'sororities', not because of the meaning of those words, but merely because of their placement within the relevant passage. Each grammatical subject is 'referred' to its corresponding object. Thus, in the phrase 'police officers and judges must retire at the ages of 65 and 75', the word 'respectively' is effectively tacked on to the end of the passage by reddendo, matching the first case mentioned (namely, police officers) with the first retirement age (65), and the second case mentioned (namely, judges) with the second retirement age (75). The function of reddendo is difficult to describe with any degree of felicity. One of the best attempts was made by Reed Dickerson, who describes the maxim as follows: ... reddendo singula singulis in its legal form ... recognises that, context permitting, the reader may properly infer that the author has intended a distributive relationship between two juxtaposed series of ideas.25 Thus, where a text exhibits the pattern 'A and B are Y and Z', reddendo suggests that A should be matchedPage 9with Y and B should be matched with Z, achieving a rough sort of symmetry in the passage. The logic of reddendo lies in the simple observation that people sometimes do combine multiple series of ideas in a distributive manner. While the logic of the drafting practice itself may be elusive, it is certainly logical to make oneself aware of this practice when interpreting legislation. A failure to understand reddendo may leave interpretive possibilities undiscovered, diminishing our ability to understand the language patterns that may be used by statutory drafters. The role of context is exceedingly important where reddendo singula singulis is concerned. Obviously, a provision stating that 'Infants and pets must be kept in strollers or on leashes' should be read in the manner suggested by reddendo (although a contrary construction is more amusing). The phrase 'men and women may become doctors and nurses', however, is probably not an appropriate case for reddendo. There is no sensible reason for associating 'men' exclusively with 'doctors' and 'women' exclusively with 'nurses'. Indeed, our ideas concerning gender equality provide us with evidence that the construction suggested by reddendo should be steadfastly avoided in this case, as a reddendo-based construction would conflict with important public policies. The most difficult reddendo problems are, of course, those in which no useful context is provided. The phrase 'dogs and cats shall be kept in cages or on leashes', for example, provides us with very few clues concerning the appropriateness of a reddendo-based construction. Although the application or non-application of reddendo depends on the context of a provision rather than a simple pattern of language, the importance of the maxim lies in the fact that it reminds us that an implicit 'distributive relationship' among two series of ideas was once a common feature of legislative language, and may still appear from time to time in modern statutes. It allows ambiguities to be identified in a text which contains multiple series of ideas, and thus enables a more focused inquiry into the meaning of such a text. Like other maxims, reddendo may never lead to a clear answer, but it often calls attention to some rather important questions. It may also serve to remind the drafter to avoid the use of language that might lead to reddendo problems; the liberal use of subsections and appropriate punctuation can pre-vent such problems before they arise. The maxim may also draw attention to several common problems of construction. While reddendo, strictly applied, refers only to those cases in which multiple series of ideas are linked together ('A and B are Y and Z'), a study of reddendo often alerts us to other 'quasi-reddendo' problems of construction. Consider the phrase 'men and women weighing more than 150 lbs may join the fire department'. Does the phrase 'weighing more than 150 lbs' refer only to women, or does this qualification apply to men as well? Similarly, the phrase 'professional conduct and ethics' is ambiguous, in that the word 'professional' may simply modify 'conduct', or it may refer to 'ethics' as well. Like true reddendo problems, these are typical problems of 'unclear distribution'. Passages of this nature do not truly call for the application of reddendo, but a thorough study of the maxim may lead us to understand the nature of distributive relationships in legislative drafting, alerting us to the ambiguities inherent in passages that exhibit this typical drafting problem. Bishop v. Deakin26 provides an interesting example of the judicial use of the reddendo maxim. The defendant had been convicted of perjury on July 6th, 1932 and sentenced to six months imprisonment, without the option of a fine; she was subsequently elected as a councillor on November 1st, 1934. Almost a year after the election, a writ was issued claiming that the councillor was disqualified from holding public office as a result of her conviction. The statutory provision on which the writ was based provided: A person shall be disqualified for being elected or being a member of a local authority if he ... has within five years before the day of election or since his election been convicted in the United Kingdom ... of any offence and ordered to be imprisoned for a period of not less than three months, without the option of a fine. (emphasis added) On the basis of this provision, the defendant was disqualified from being elected to any local authority until five years had elapsed since the date of her conviction. However, the difficulty in Bishop v. Deakin arose from a limitation period in the relevant legislation which created a six-month limitation period for challenging elections. As the defendant had been in office for almost a full year before the writ challenging her election was issued, the writ was outside the limitation period. The plaintiffs consequently sought to challenge the defendant's right to continue holding office as a councillor. Recall that the relevant legislation containedPage 10language stating that a person 'shall be disqualified for being elected or being a member of a local authority'. The plaintiffs argued that the words 'being a member' allowed the defendant's right to continue holding office to be challenged, despite the fact that the election itself was protected by the limitation period. The defendant argued that the relevant words only related to offences that were committed by elected officials after the relevant official had taken office: in the defendant's view, the remedy for pre-election offences was to challenge the election, while the remedy of removal from office was intended only for those officials who committed offences after being elected. Relying on reddendo, Clauson J. accepted the arguments of the defendant. Although the relevant section did provide a mechanism for removing officials from public office, that particular remedy was permitted only in cases in which the official had broken the law after having been elected. In Clauson J.'s opinion: The relevant words of the section are as follows: 'A person shall be disqualified for being elected or being a member of a local authority if he has, within five years before the day of election, or since his election, been convicted of any offence, and ordered to be imprisoned for a period of not less than three months, without the option of a fine' ... The section provides for two matters: first, what is to be the disqualification for election; and, secondly, what is to be the disqualification for being a member after election; and it provides for two disqualifications: first, conviction within five years before the day of election; and, secondly, conviction since election. It is obvious that the second disqualification mentioned does not fit the first case mentioned, namely, that of election, but it does fit the second case, and the second case only. It is also obvious that the first disqualification mentioned fits the first case, and it does not seem at all apt to fit the second case ... All difficulty can be avoided by applying the well-known method of construction commonly known as reddendo singula singulis, and applying the first disqualification mentioned to the first case dealt with, and the second disqualification to the second case dealt with, a construction which, so far as I can see, infringes no rule of syntax or grammar. The result reached seems to be quite sensible--namely, that conviction within five years before the day of election disqualifies from election, and conviction after election disqualifies from continuance in office.27 Based on Clauson J.'s reasoning, the relevant section could have been redrafted as follows: First, a person shall be disqualified from being elected if he has, within five years before the day of election, been convicted of any offence. Second, a person shall be disqualified from being a member of a local authority if he has been convicted of any offence since his election. Unfortunately, the four main ideas of these sections (namely, disqualification from being elected, disqualification from continuing to hold office, offences before elections and offences after elections) were combined in a most unusual fashion, giving rise to a problem that called for the invocation of reddendo. Happily, Clauson J. could be relatively confident in his use of the maxim. Clearly, offences committed after an election could not be grounds for going back in time and challenging the election. Similarly, unusual results would have flowed from a decision that offences before elections could result in removal from office later on. Such a decision would have rendered the limitation period practically useless: if an attempt to challenge an election was barred by the limitation period, the person seeking to challenge the election could achieve the desired result by simply using pre-election offences to instead challenge the office-holder's right to hold office, effectively performing an end-run around the limitation period. Reddendo allowed to the Court to avoid this result. The Court accordingly accepted the interpretation suggested by reddendo, holding that the two penalties provided for in the section (namely, disqualification from elections and disqualification from holding office) bore a 'distributive relationship' to the two types of offences that were listed in the section (namely, offences before elections and offences after elections). The decision of the Court in Bishop v. Deakin is difficult to follow. It makes much more sense, however, when one divides the provision at issue in Bishop into its component parts and compares them to the 'fraternities and sororities' example. The four main ideas in that example (namely men, women, fraternities and sororities) can be symbolically replaced by the letters A, B, Y and Z. Rewritten using our symbols, the phrase 'men and women can become members of fraternities and sororities' could appear as 'A and B can become members of Y or Z'. Applying reddendo to this case, A matches with Y and B matches with Z. The same pattern holds in Bishop v. Deakin. The legislation at issue in Bishop provided that persons would be disqualified from being elected (A) or continuing to hold office (B) where the person had committed an offence within the five years preceding an election (Y) or at any time since that election (Z). Once again,Page 11applying reddendo, A matches with Y and B matches with Z. The pattern developed in the fraternity and sorority example holds true, and a rough symmetry is achieved. The drafting style which leads to this type of problem is largely one of the past, but old statutes may still be extant and require interpretation. More importantly, a working knowledge of reddendo may remind modern drafters to avoid the use of implicit distributive relationships in their drafting. Given the vast improvements seen in legislative drafting over the last fifty years, it is not particularly surprising that reddendo rarely makes appearances in modern court decisions. Reddendo accordingly remains somewhere in the back of most interpretive arsenals, waiting to be used when ancient Acts become important, or where some quirky drafter's sentence structure creates unusual problems. However, the final maxim 'expressio unius est exclusio alterius' has a wider application and still appears regularly in judgements.(D) EXPRESSIO UNIUS EST EXCLUSIO ALTERIUSWhile there are frequent judicial references to 'expressio unius est exclusio alterius', many are cryptic warnings against the use of the maxim. In Turgeon v. Dominion Bank,28 for example, the Court enigmatically warned that while expressio unius certainly had 'its uses', it was nevertheless 'a dangerous master to follow'.29 In Colquhoun v. Brooks,30 the Court went even further, noting that: '... the method of construction summarised in the maxim 'Expressio Unius Est Exclusio Alterius' is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits ... the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help to arrive at what is meant'.31 What is this 'dangerous master' which inspires judicial warnings? Translated literally, 'expressio unius est exclusio alterius' means 'the expression of one thing is the exclusion of another'. This sounds simple enough, but this 'important rule ... of frequent application'32 is more complex than it seems, and the judiciary's caution regarding the reckless use of this maxim is well founded. Elmer Driedger describes the maxim's function as follows: One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another. The maxim reflects a form of reasoning that is widespread and important in interpretation. Cot refers to it as the a contrario argument. Dickerson refers to it as negative implication. The term 'implied exclusion' has been adopted here ... An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied.33 In other words, where a statute fails to mention a specific case or item, we may have grounds to presume that the case or item was excluded on purpose rather than through the drafter's inadvertence. In its simplest form, this maxim looks a great deal like another maxim of interpretation known as casus omissus ('a case omitted'). This simple, watered-down version of expressio unius could be used (for example) in a statute that provided that 'pigs, chickens, cows and horses must be inspected by the agricultural bureau'. The section does not mention sheep, and none of the words listed in the section seem capable of bringing sheep within the section. Nor are there general words (such as 'or other animals') that could extend the reach of the section to animals other than those listed. Because the drafter has taken the time to specify the types of animals that must be inspected annually, we can argue that sheep (and any other animals that have been left off the list) are not dealt with in this section. That is not to say, of course, that we can infer that sheep need not be inspected. We have no indication of the manner in which sheep are treated at common law or in sheep-related statutes. All that we know is that the provision being examined, which deals with only 'pigs, chickens, cows and horses', fails to embrace animals (such as sheep) that are not listed. The expression ofPage 12pigs, chickens, cows and horses implied the exclusion of other non-listed animals. Most cases involving expressio unius are far more complicated than this. Often we are inclined to include an item by implication and must rely on expressio unius to assist us in deciding whether to yield to this inclination. Consider the following example. In a will, a testator decides to leave the following gifts to her cousin: 'my Toyota and my Cadillac, together with the tyres on my Cadillac'. Will the testator's cousin also receive the tyres on the Toyota? We are inclined to say 'yes', because it seems sensible to convey a vehicle's tyres along with the vehicle. Applying expressio unius, however, we may infer that the tyres on the Toyota have not been given to the testator's cousin in this clause. The testator has specifically addressed the issue of the tyres on the two vehicles, and has explicitly stated that the tyres on the Cadillac should go to the beneficiary. Had the intention been that the cousin have the Toyota's tyres as well, presumably the testator would have made it explicit. Had the intention been that the cousin would inherit the tyres on the two vehicles by implication, the testator would not have made specific reference tot he tyres on the Cadillac: the tyres would have passed to the cousin without need of explicit reference. By the specific reference to the Cadillac tyres the testator indicates that she specifically refers to a vehicle's tyres when such tyres are intended to form a gift under the will. The failure to make such a provision for the Toyota tyres suggests that those tyres are supposed to be dealt with differently. The expression of one thing (i.e., the gift of the Cadillac tyres) implied exclusion of the other (a gift of the Toyota tyres). As a result, the testator's cousin is likely to receive a Toyota without tyres.34 The expressio unius maxim is most likely to apply where we have reasons for believing that an author turned his or her mind to the items that we seek to exclude by implication. Consider a statute that stated that 'no ships, boats or jet-skis are permitted on the waterway during July'. One might be tempted to say that this passage fails to catch hovercraft or other unusual water-borne vehicles that the drafter has failed to mention. 'Had the author meant to have this statute apply to hovercraft', one might argue, 'the author would have said so explicitly: expressio unius est exclusio alterius'. This is where judicial admonitions regarding the reckless application of this maxim come in handy. In a case such as this, the expressio unius argument is certainly worth a try, but it wouldn't be particularly compelling. In the hovercraft example, we simply have no basis for presuming that the legislative author turned his or her mind to hovercraft and excluded them on purpose. Perhaps the author had only a vague idea of what was meant by the term 'boats', and would have included hovercraft under that term. A well-founded application of the expressio unius maxim calls for some additional indication that the excluded case or item was omitted by the drafter on purpose. In the hypothetical waterway statute, for example, we would prefer to have some reason to think that the statute-drafter was aware of hovercraft and considered them to be a separate subject worthy of specific attention. If our hypothetical statute had an additional, separate section stating that 'ships, boats, jet-skis and hovercraft shall be registered with the registrar of recreational crafts', we would have a reasonably strong reason for arguing that the earlier section, barring 'ships, boats and jetskis' from the waterway in July did not apply to hovercraft. The 'registration section' makes it clear that the legislative author is aware of hovercraft, and considers them to be a separate case from ships, boats and jet skis. In other words, when the author wished to catch the case of hovercraft, he or she said so with explicit language. Where that language is absent, the exclusion of hovercraft can likely be inferred. In many cases, reliance on the expressio unius maxim rests on our acceptance of two important presumptions. First (as we saw in connection with ejusdem generis), we presume that legislative drafters never use extraneous language. Recall the 'hovercraft' example developed above. In our hypothetical statute we discovered two provisions. Section 1 provides that 'no ships, boats or jet-skis are permitted on the waterway during July'. Section 2 provides that 'ships, boats, jet-skis and hovercraft shall be registered with the registrar of recreational crafts'. Applying the 'no extraneous language' presumption to this fictitious Act, we know that the author did not regard hovercraft as a species of boat, ship or jet-ski. Section 2 makes this clear, as hovercrafts are dealt with separately from each of the other vehicles. The word 'hovercraft' (in section 2) would have been extraneous had the concept of hovercraft been caught by one of the other words. The second important presumption is known as the presumption of consistent expression. This presumption suggests that the same word, used in different parts of the same statute, expresses precisely the same idea. The word 'boat' (for example) in one part of the statute will carry the same meaning as the word 'boat' somewhere else in the same Act. If it does not include hovercraft in one section of the Act, it will not include hovercraft later on. The presumption concerning extraneous language assured us that, for thePage 13purposes of section 2, the words 'ships, boats and jet-skis' did not include hovercraft, as hovercraft were listed separately from the other items. The presumption of consistent expression informs us that the terms 'ships, boats and jet-skis' are used in the same sense in sections 1 and 2. They do not include hovercraft in section 2, so they cannot include hovercraft in section 1. Since hovercraft are not mentioned in section 1, we can infer (as a result of our presumptions) that the author's failure to include hovercraft in that section implies that hovercraft are beyond the reach of that particular provision. We are said to 'infer' or 'imply' this exclusion, as there is no explicit language telling us that hovercraft are excluded from the section. Taken together, the presumption regarding extraneous language and the presumption of consistent expression allow us to use expressio unius with a fair amount of confidence. Courts commonly rely on the maxim expressio unius. A good illustration is Crease v. Board of Commissioners of Police of the Municipality of Metropolitan Toronto (1976).35 In that case, George Crease and several colleagues had, by virtue of section 26 of the Police Regulations36 been suspended from their duties as police officers after they had been charged with violations of the Criminal Code. Section 26 provided, inter alia, that where a police officer was charged with a Criminal Code offence the chief of police could 'suspend [the officer] from duty'. The issue in Crease was whether the provision empowered suspension without pay; the enactment was silent on whether suspension as a result of an officer being charged with a violation of the Criminal Code was to be with or without pay. Counsel for the board of police commissioners argued that it was contrary to public policy for an officer suspended on such grounds to be in receipt of public funds while suspended. Counsel for Crease argued that suspension without pay appeared to violate the presumption of innocence, and that a person suspended under the provision would be unable to otherwise earn a living while awaiting trial. The Court in Crease resolved the issue by applying expressio unius. While the provision under which Crease and his colleagues were suspended did not address remuneration, a later provision of the same Regulations clearly stated that where an officer was convicted of rather than simply charged with a criminal offence the officer could 'be suspended without pay'.37 Scortini J. held: When a statute is not precise and requires interpretation by a Judge he may avail himself of several aid in addition to common sense and his ability to read the plain words of the enactment. These aids include the rules of statutory interpretation, especially the rule expressio unius est exclusio alterius, i.e., expression of one thing is the exclusion of another. Stated another way: mention of one thing implies exclusion of another. When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred.38 In Scortini J.'s opinion, the absence of the words 'without pay' from the regulation pursuant to which Crease had been suspended was important. Those words had been included in a section dealing with officers who were convicted of a breach of the Criminal Code. As a result, it was clear to the Court that the legislature had turned its collective mind to the issue of whether suspensions were to be with or without pay. When a suspension was to be without pay this was stated explicitly. This implied that the word 'suspended', by itself, was not enough to permit suspensions without pay. Had the word 'suspended' included the notion of 'suspended without pay', the words 'without pay' would have served no purpose in the section relating to suspensions flowing from criminal convictions. This would violate the rule against extraneous language. Equally, the presumption of consistent expression leads to the conclusion that 'suspended' in the section relating to criminal charges has the same meaning as in the section relating to convictions. Since the word 'suspended' in the convictions section needed the help of the words 'without pay' in order to permit unpaid suspensions, the absence of those words in the criminal charge section meant that unpaid suspensions were not permitted by that provision. The legislature's decision to refer to suspensions 'without pay' in certain instances made is possible to conclude that other references to suspensions, without the use of the words 'without pay', implied that the suspended officer should be paid. Scortini J., buttressed this analysis by referring to the relevant public policy: Sections 26(3) and 27 of the Regulations are specific and require conviction and final disposition before suspension without pay, and penalty, respectively. It is logical and reasonable to conclude that the absence of the words 'without pay' in conjunction with suspensions following suspension or charges of offences pursuant to s. 26(1) of the Regulations, reflects the presumption of innocence and the suspension is,Page 14therefore, a suspension of a police officer from his duties with pay.39 As a result, the Court held that officer Crease and his colleagues were entitled to be paid while suspended from duty.IV. CRITICISMS OF MAXIMSThe maxims considered in this article, like most maxims of interpretation, were born of observation of the manner in which language is used. They commonly have a logical basis and can be helpful in resolving problems of interpretation. Nevertheless maxims of interpretation have been the subject of substantial criticism during the last several decades. Most of this criticism is misdirected. Almost every argument against the use of maxims should be aimed at the users of maxims, rather than the maxims themselves. Frequently, maxims are treated as binding rules and reliance is placed on them without reference to their logical foundation. This trend can be corrected by the adoption of a more principled approach to the use of maxims as tools of interpretation. One of the most common criticisms of maxims deals with the perceived 'technical' nature of anything referred to as a 'maxim', 'rule' or 'canon' of construction. Many critics of the maxims reject so-called technical rules and prefer to rely upon a more holistic approach to interpretation. A rallying cry of the 'holistic interpreter' has been the words of Elmer 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.40 This 'one principle' has formed the basis of countless interpretive decisions, many of which have disregarded the maxims or other 'technical' forms of interpretation.41 Driedger's 'one principle' appears to have laid the groundwork for an era of construction in which technical rules and Latin maxims have no place. Standing alone, Driedger's oft-quoted 'one principle' statement appears to support a holistic form of interpretation that may have little use for Latin maxims. With respect, however, most commentators and jurists have (somewhat ironically) ignored the general context in which the statement was made. Driedger's text on interpretation is replete with technical rules, Latin maxims and other approaches to interpretation, all of which form components of Driedger's 'one principle'. If one ignores the role that these technical rules play in interpreting legislation, the 'one principle' by itself is of little utility. Simply saying that a statute must be read in 'context' and in an 'ordinary sense' that coincides with Parliament's 'intention' does little to assist interpretation of the legislative text. Indeed, without the support of its technical components, the 'one principle' would have a comparable utility to a rule of ethics which declared that 'when selecting a course of action, always do the right thing' without providing guidance as to how the 'right thing' is to be identified. The 'one principle' approach requires us to inquire into 'the intention of Parliament' and to determine how the 'ordinary sense' of words can be incorporated 'harmoniously' into legislative language. How is one supposed to determine Parliament's intent? How is one supposed to determine which 'ordinary sense' of a given word or phrase is 'harmonious' with the statute as a whole? If one reads all of Driedger's text rather than emphasising in isolation the 'one principle' statement, one indeed finds a host of tools and approaches, including several maxims of interpretation, designed to assist in providing an answer to such questions. A further resistance to the use of maxims commonly stems from the language of interpretation statutes. Section 12 of the Canadian federal Interpretation Act42 provides: Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. Canadian provincial interpretation Acts contain similar provisions.43 While such interpretation statutes require 'fair, large and liberal' interpretation, the maxims seem to call for interpretations that are technical,Page 15small and narrow-minded. This criticism is answered in much the same way as that which flows from Driedger's 'one principle'. The form of interpretation required by interpretation statutes is premised upon our ability to determine the 'objects' of a legislative passage. Section 12 of the Canadian federal Act, for example, requires our 'fair, large and liberal' interpretation to be one that 'ensures the attainment of [the statute's] objects'. Our best evidence of the objects (or the purpose) of a statute is the language in which the relevant text is drafted. Statutory language is often exceedingly technical and difficult to construe. To render a 'large and liberal' interpretation of statutory text we must first pay close attention to the language of the statute and search for interpretive clues left behind by the drafter. Maxims are, not surprisingly, very useful for this purpose. The maxims point us toward logical inferences that can be drawn from the drafters' choice to use a particular pattern of language. As we have seen, these inferences are often rooted in systematic observation of the manner in which language is used. One crucial element in determining the 'object' of a statute is to decide why the drafter chose particular language. Maxims of interpretation have a dual value here. First, while mistakes sometimes occur, we can generally assume that particular patterns of language were selected by the drafter for a reason. The maxims draw our attention to the reasons for which a drafter might choose a particular form of expression, and accordingly draw us closer to an understanding of statutory language. Secondly, in choosing legislative language, drafters will do so with an awareness of the maxims. A basic understanding of the logic underlying a drafter's choices is the first step toward an understanding of the objects of a statute, and the foundation upon which a 'large and liberal' interpretation should be based. Perhaps the most substantial criticism of maxims is that they merely provide unduly simplistic answers to the often complicated problems of statutory construction. Maxims seem far too formulaic and simplistic to those who have been schooled in complex theories of construction. Rather than relying on a simple Latin phrase these critics would prefer a form of construction that acknowledges the uncertain nature of language and the impossibility of unearthing the 'true meaning' of a legislative phrase. However, such criticism flows from the fallacious vision that these maxims are rules, rather than simply useful tools which are designed to unearth interpretive possibilities that inhabit typical statutory language.V. SOME BENEFITS OF MAXIMSUsed correctly, the maxims of construction are persuasive. They do not provide 'pat answers', or any form of answers for that matter; they raise questions. They force us to acknowledge the unconscious assumptions that are made when we interpret legislation. They draw our attention to important presumptions (such as presumptions concerning extraneous language and consistent expression) and point to logical inferences that flow from those presumptions. The handy Latin phrases in which the maxims are expressed should never end an interpretive inquiry, they should add depth to an interpretive inquiry that takes into account all possible sources of legislative meaning. Maxims are neither arbitrary nor whimsical in nature. They were developed over countless generations, reflecting time-honoured arguments concerning the manner in which people write and interpret language. The logic of maxims is compelling, and can serve as the cornerstone of extremely powerful arguments concerning the meaning of statutory language. While there is arguably no 'true meaning' of a text, the maxims help uncover competing interpretive possibilities that can be used to direct a court toward a logical construction of ambiguous legislation. They force the reader of statutes to take a careful look at statutory language, uncovering a host of possible meanings that reside within the text. The powerful logic underlying the maxims not only reveals these interpretive possibilities, but also serves as the basis for persuading any interpreter to adopt the most sensible of the competing interpretations. Where opposing counsel offer competing constructions of a legislative passage, the maxims are a valuable addition to their respective arsenals, improving the quality of their arguments and increasing the chance that the court will render an interpretation that best serves the needs of logic and the demands of the language found in the legislation. Obviously, the persuasive value of maxims holds only where maxims are used in the proper manner. As observed above, where maxims are invoked in an unprincipled manner, they are vulnerable to unprincipled rejection. It is far easier for a court to reject a simple Latin phrase than it is for the court to reject the logic thatPage 16underlies the maxims. In ejusdem generis cases, for example, it is easier for the court to refuse to apply an unsupported Latin axiom than it is for the court to hold that a specific list of words within a legislative passage is irrelevant. A holding that ejusdem generis does not apply, however, involves an implicit holding that the general words of the passage are not narrowed by the specific terms that accompany them, and that the specific words accordingly have no role to play within the relevant statute. Counsel must ensure that courts are aware of these logical implications by drawing the courts' attention to the rationale that underlies each maxim. In many cases, this logic proves to be inescapable, obliging counsel or the court to search for compelling justifications for any deviation from the construction suggested by a maxim. To take advantage of the persuasive power of maxims, the lawyer proffering the relevant Latin phrase must explicitly state the presumption and the logic that led courts to develop the relevant maxim. Used in this manner, the maxims are extremely useful as interpretive aids, serving as the basis for exceedingly potent arguments. Many cases are won or lost on the ability of counsel to use the maxims in an effective manner. A study of maxims enhances counsel's ability to launch creative arguments concerning the meaning of statutory language, allowing counsel to make persuasive arguments that might otherwise have escaped the courts' attention. A further advantage of the maxim is as a research tool. Most maxims relate to specific patterns of language that give rise to interpretive problems. When faced with a specific problem of construction, it may be useful to review earlier cases in which a similar pattern of language was considered. Finding such cases could be difficult without the structure provided by maxims. One could construct a computerised search based in English terms and boolean logic in the hope of uncovering an appropriate series of cases, but maxims are far more useful tools. Entering 'ejusdem generis' into a typical search engine is likely to uncover a series of cases in which a list of specific items accompanies general words. As the names of maxims are extremely specialised and couched in dead language, they are unlikely to yield irrelevant results. The terms 'ejusdem', 'expressio', 'noscitur', and 'reddendo' don't come up all that often. When they do, they inevitably relate to specific drafting problems that are dealt with by the maxims. Perhaps one of the greatest benefits of maxims lies not as interpretive aids or research tools, but as educational devices. They provide stimulating intellectual puzzles that are interesting to dissect and apply, also serve useful mnemonic devices and, more importantly, encourage students to develop a healthy scepticism of language. Because the maxims can be used to uncover interpretive problems that might otherwise escape attention, they oblige the interpreter to refuse to take language at face value. A former student noted that the maxims had destroyed his ability to read any ostensibly simple passage without uncovering at least two conflicting interpretive possibilities.44 Maxims oblige us to address the fact that a wide array of meanings resides within any writing, and that the 'true meaning' of any statute comes from carefully crafted arguments rather than from any pre-existing source such as legislative intent. The more arguments that one has at one's disposal, the more likely one is to develop a clear, persuasive case that a particular meaning of an ambiguous word or phrase should be accepted. Maxims help the student to understand the amorphous nature of legal language, and to adopt a practice of extremely careful reading. A knowledge of maxims improves drafting and construction, and allows the student to predict and evaluate the manner in which courts interpret language. In short, maxims force us to take language seriously.VI. CONCLUSIONReed Dickerson wrote: To do his cognitive job well, a judge must be unbiased, sensitive to language usages and shared tacit assumptions, perceptive in combining relevant elements affecting meaning, capable of reasoning deductively, and generously endowed with good judgement.45 This 'cognitive job' is more easily pursued by jurists armed with a thorough understanding of the maxims of construction. Maxims help lawyers and judges become sensitive to language usages as well as the tacit assumptions that permeate legislative texts. Together with their power as research tools and educational aids, the ability of maxims to clarify the meaning of ambiguous legislation makes it clear that maxims have a role to play in modern law. The modern jurist, equipped with the knowledge that maxims are not rigid rulesPage 17but rather tools that raise and evaluate interpretive possibilities, will use the maxims in a way that recognises the uncertainty inherent in written language and the ability of maxims to deconstruct the language of a statute. When lawyers learn to rely upon the logic underlying the maxims rather than simply invoking the Latin names by which they are known, the courts well may rediscover the inherent value of maxims and cease to reject them for incoherent reasons.1 I would like to thank Kenneth Landa, LL.B. 2000 (Osgoode Hall Law School, York University) for his helpful suggestions and encouragement during the preparation of this paper. I would also like to thank Professor Graham Parker, whose notes on statutory interpretation drew my attention to several of the cases referred to in this paper. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Ttrault-Gadoury v. Canada (Employment & Immigration Commission), [1991] 2 S.C.R. 22, 23. Johnston v. Canadian Men's Trust Association. [1932] S.C.R. 219, 220. Turgeon v. Dominion Bank [1930] S.C.R. 67, 70-71. Francis Bennion, Statute Law (London, England: Oyez Publishing Limited, 1980), 84. [1967] 2 All E.R. 576. Income Tax Act, 1952. [1967] 2 All E.R. 576, 578. Ibid. Ibid. Ibid. (1981) 125 D.L.R. (3d) 137. R.S.C. 1970, c. C-34. (1981) 125 D.L.R. (3d) 137, 142-143. (1950) 338 U.S. 680. at 681. at 682. at 682-684. at 684.Page 1820at 682.21 See Grini v. Grini (1969) 5 D.L.R. (3d) 640 for an application of the 'exhausting the genus' exception to the ejusdem generis maxim. 22 [1990] 2 S.C.R. 1029.23 The decision in National Bank of Greece has been almost universally criticised as an unprincipled rejection of the ejusdem generis rule. See, for example, Aquasource Ltd v. British Columbia (Information and Privacy Commission) [1998] B.C.J. No. 1927 (Q.L.), 111 B.C.A.C. 95. 24 Reed Dickerson, The Interpretation and Application of Statutes (Boston, Massachusetts: Little, Brown and Company, 1975), 233. 25 26 27 28 29 30 31 32 Ibid., 233. [1936] 1 All E.R. 255. at 257. [1930] S.C.R. 67. at 71. 19 Q.B.D. 400. at 406. Bennion, op-cit., n. 4, 84.33 Ruth Sullivan, Driedger on the Construction of Statutes (Third Edition) (Toronto, Ontario: Butterworths, 1994), 168 (citations omitted). 34 The situation could change, of course, if the Cadillac tyres had some unusual properties that made it important for the testator to give them special attention. If they were worth more than the car, for example, it may have been prudent for the testator to indicate that the specific tyres on the Cadillac at the time of her death were supposed to be passed on to the beneficiary. 35 36 37 38 39 40 (1976) 66 D.L.R. (3d) 403. R.R.O. 1970, Reg. 680, passed under the Police Act, R.S.O. 1970, c. 351. Police Regulations, Id., s. 26(3). (1976) 66 D.L.R. (3d) 403, at 406. Id., 407. Construction of Statutes, Second Edition, (Toronto, Ontario: Butterworths, 1983), 87.Page 1941 42 43 44 45See, for example, R. v. McIntosh [1995] 1 S.C.R. 686. R.S.C. 1985, c. I-21. See, for example, the Interpretation Act of Ontario, R.S.O. 1990, s.10. I would like to thank Stuart Wright, LL.B. 2000 (Osgoode Hall Law School, York University) for this observation. Dickerson, 236.


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