INTRODUCTION TO STATUTORY INTERPRETATION
Alvin Esau (1997)
Do not quote without attribution
I. HYPOTHETICAL
As we did with our introduction to common law (case based) reasoning, let’s start with a hypothetical. Suppose that the Church of the Second Chance has a membership meeting once a year, the purpose of which is to pass the annual budget for the upcoming year. Furthermore, for the sake of argument, suppose that because of difficulties in the past leading to conflict, the church has some rules about the budget process. One rule is that once the budget is passed for the year it cannot be modified during that year. There is a discretionary fund allocated to the Church Board to meet some minor unforeseen expenses, but the church does not want to get into a situation of calling membership meetings to adjust the budget during the course of the year. Furthermore, suppose that the church, again due to conflicts in the past, has adopted a rule that the budget shall be drafted in the form of rules directed to an independent treasurer in charge of implementing the rules. If a particular budget item does not cost as much as expected under a rule, the money is retained in trust by the treasurer for allocation next year. If a budget item like fuel to heat the church is more expensive, or if the congregation gives less than it needs to, the church has a line of credit at a bank, and the treasurer must borrow the money on behalf of the church to fulfill each budget allocation for the year without fail.
Drafting a budget in the form of rules as to who gets paid what, or what sums go where for certain purposes, is not exactly something you would expect a large group to do at a meeting from scratch. Rather the church has a budget committee which drafts a set of proposed rules to present to the annual meeting, and then as these proposals are discussed, various changes by way of amendments or deletions or even new proposals are drafted at the meeting and voted on, and all of this is done with perfectly proper “parliamentary procedure” at the budget meeting chaired by a fastidious lawyer who is a member of the congregation.
Suppose that around ten per cent of the annual budget is allocated for mission work outside the church itself. The church might, for example, approve a number of budget rules under this category like one that directs the treasurer to, “Pay $1000 a month to the Salvation Army.” Now suppose that the allocation of moneys to various missions is often one of the more controversial areas of the budget, as various members have their own favourite missions that they want the church to support.
Now suppose that the budget committee has drafted a list of 10 mission organizations that they suggest the church should allocate funds to in the budget for the upcoming year. Now suppose that at the annual meeting the following interchange takes place:
Mr. Talk Alot: (Member of the Church)
My question is related to the proposed rule that we pay $300 a month to Intervarsity Christian Fellowship. I don’t think we have supported them in the past. Frankly, I would rather support Youth for Christ because I think their mission methodology is more effective. Why are you proposing Intervarsity?
Ms. Power (Chair of the Budget Committee):
Yes, thank you for your question. We propose to support Intervarsity because Edith Jones has just accepted a full-time position with that organization but must raise her own support by way of various contributions pledged to Intervarsity so that Intervarsity can then pay her a modest salary. Edith just graduated from college, and as I’m sure you know, Edith, along with her parents, are long time and much-loved members of this church. (Applause) We want to support Edith Jones in her mission work. Does that answer your question?
Mr. Talk Alot: Yes. I am happy to support the proposal.
Now suppose at the end of the day, the congregation passes the budget as a set of rules and the following rule is included:
“Pay $300 a month to Intervarsity Christian Fellowship.”
Now suppose that after a few months into the operation of the budget, Ms. Power makes a phone call to Mr. Anal Retentive, the independent church treasurer. The following conversation takes place:
Ms. Power:
I want to inform you that Edith has resigned from Intervarsity Christian Fellowship as of the end of the month and will be taking up a position with Youth for Christ. I would request that instead of paying ICF the $300 a month, you should now pay Youth for Christ that amount for the support of Edith.
Mr. Anal Retentive:
Who’s Edith?
(Ms. Powers brings Anal Retentive up to speed):
Mr. Anal Retentive:
My task is to follow the rules. The rule in question plainly says that I am to pay $300 a month to Intervarsity Christian Fellowship. The rule does not include the words, “for the support of Edith Jones.” I will continue to pay Intervarsity the $300 a month for the rest of the year. If Intervarsity returns the money because they consider it conditional for support of Edith, they may do so, and I will hold it for next year’s budget. But as far as I am concerned, Intervarsity could use it however it thinks best because according to the rule I am paying them unconditionally.
Ms. Power:
But Anal, get real! The purpose of the rule was to support Edith, a member of our congregation in her mission work, rather than Intervarsity per se. I said as much at the meeting that passed the rule. I can provide a full transcript of the meeting to you as to my remarks about the purpose of the rule.
Mr. Anal Retentive:
Well, what you said at a meeting is not part of the rules. What you think you meant to say or achieve is irrelevant. What you say in the rules is what counts. Furthermore, how do I know that those who passed the rule agreed with you as to what you thought you were doing with this rule? Perhaps some members of your church voted in favour of the rule because they wanted to support Intervarsity whether Edith was working there or not. There may have been a variety of motives for support of the rules, or a number of intentions that people had in mind as to the meaning or aim of the rules when they voted in favour of them. Quite frankly, I don’t particularly care what you subjectively intended to say in your rule, nor what you thought you were trying to accomplish with your rule. What I do care about is what your rule objectively means to me as a reader who must interpret and obey it. I only look at the product of your meeting, namely the text, the written rules. This is what is authoritative. Your subjective intentions, what you thought you said, or what you intended to say, or failed to say, is irrelevant. Next year, you will be more careful to make sure your rules convey your intentions.
Ms. Power:
I think you should imply, “for the support of Edith”. You are not violating the rule to fill in a gap.
Mr. Anal Retentive:
Alright then, for the sake of argument suppose the rule now says, “Pay $300 to Intervarsity for the support of Edith.” The rule does not say, “Pay $300 to Youth for Christ for the support of Edith.” If Edith no longer works for Intervarsity and my payment to them under the rule is conditional for her support, then that line in the budget is no longer an expense that I need to pay for, and thus, under the rules, the money is cumulated and carried forward for next year. I certainly can’t pay it now to Youth for Christ.
Ms. Power:
Why can’t you read the rule with the real emphasis on the support for Edith as intended rather than the institution through which that support is channelled? Can’t you adjust the text to further the spirit? I suppose you think the text is plain and requires no interpretation, but I am curious as to what you would do if you had a rule you considered to be ambiguous or vague in some way. What would you do? Suppose that we had passed the rule, “Pay $300 a month to the mission organization Edith works for.” Now Edith resigns from Intervarsity, resigns from the church, renounces her faith and works for an organization called Pagans for the Advance of Hedonism, a group claiming to be a mission organization. What do you do now as an interpreter as to the scope of the term “mission organization”?
Mr. Anal Retentive:
Well, the term “mission organization” is a more general category that may indeed be vague as to what organizations fall within it. But the case is actually quite easy. In the budget you have nine rules directing me to pay money to mission organizations, and every organization mentioned is a Christian faith-based organization. If the tenth rule directs me to pay the mission organization that Edith works for, I may assume reasonably from the context of the whole Budget that when she works for Pagans for the Advance of Hedonism she is not entitled to support, even if that group claims to be a mission organization.
Ms. Power:
So, you are conceding that our intentions or purposes as a church are important, and that you are not just playing with words?
Mr. Anal Retentive:
All I am conceding is that interpretative difficulties do arise. You can’t foresee every contingency. But when there is a difficulty, I look at the intent manifest in the document itself, explicitly or implicitly. My job is not to add to the text or subtract from it, but rather give it a meaning that the words can bear.
Ms. Power:
Suppose you had a case where evidence from the text was lacking as to intent or purpose, and you had real interpretive difficulty with equally plausible but incompatible interpretations possible. Would you go back and listen to what I said at the meeting about that rule, or would you just choose your own preferred meaning? If the later, why are you as reader privileged over me as author?
Mr. Anal Retentive:
Because, until you write again, the final word is with me. Notice the ambiguity. The final word is with me. I both have the text, and the power to interpret and apply it. Good day.
II. A NOTE ON MODERN THEORIES OF INTERPRETATION: ESPECIALLY AMERICAN
1. Common Law (Dynamic-Flexible) v. Legislation (Static-Fixed)?
We may begin with an assumption that the interpretation and application of the law conveyed in legislative form may be distinguished from the interpretation and application of the law conveyed in common law (case law) form. We have already noted that even when we formulate holdings in the form of rules from past cases, the deductive application of the rules in new problem cases involves considerable flexibility. Even lower courts bound by higher court precedent may have flexibility to rework the rules by analogy in different circumstances. In a significant sense, the courts may rewrite common law rules in the process of application of them. But this is not what we expect courts to do with legislation. (Unless you are an extreme supporter of judicial activism.) As we hope to show, there are indeed issues of interpretation where courts may have a degree of flexibility to choose one plausible interpretation over another, but the basic attitude that we start from is that the text of the legislation is fixed and binding on the courts in a way that case law is not. We assume that legislation, with the legitimacy of democracy, must be applied by the courts, whether the courts like it or not. Legislation is paramount over common law, and can pre-empt common law, and legislation is proliferating to such a degree that it is arguably now the most important source of law, despite the bias of law school education to focus on case law.
This distinction between common law reasoning and reasoning with legislation may be overdrawn, however. For example, legislation may be passed that in effect delegates to the courts a kind of common law mandate to dynamically develop and rework the detailed rules in an area, because the legislation only provides some general guidelines or principles leaving the details to the courts. To a significant degree, much of Constitutional law is like this. There are some theorists who link constitutional interpretation with the interpretation of ordinary legislation. They want to be faithful to the words of the text and apply the meanings and purposes that they think the drafters ORIGINALLY intended the text to have and achieve. They think that they can avoid judicial activism by some notion that the meanings of the text are SET IN STONE. But given that the text is not drafted as a detailed rule at all, but rather gives us only a vague guideline, or an open-ended concept, that needs to be defined more particularly by the courts as particular circumstances arise, the process of constitutional decision making basically follows common law reasoning. Even before the Charter, we had the Privy Council in federalism cases laying down the concept of our constitution as a LIVING TREE, growing and changing to meet new circumstances and social conditions and normative understandings. That constitutional interpretation involves common law methods of reasoning means that the debate over judicial activism that we currently have was entirely predictable back in the early 80’s when the proposed Charter was being introduced, and I said back then repeatedly that the Charter was a massive anti-democratic transference of political power to the judiciary.
Aside from the area of constitutional texts, there may also be ordinary legislation enacted in the form of general guidelines where courts also by necessity must dynamically develop the details. However, even when we turn to ordinary legislation and regulation in the form of detailed rules, there are some who would argue that a kind of common law flexibility is used or ought to be used. Here we would note the book by William Eskridge, Dynamic Statutory Interpretation, Harvard U. Press, 1994. While not debating the reality that courts do apply legislation to circumstances never foreseen by the legislators, I would point out that some aspects of DYNAMISM have a peculiar American flavour arising out of the legislative process in that country. Take for example the idea that at some stage legislation has become petrified with age and that courts should be able to update statutes rather than follow faithfully what we reasonably might conclude was the original understanding of the meaning and purpose of the legislation. My impression is that in Canada we have long had Law Reform Commissions, (some of which have recently fallen on hard times) whose mandate has included the systematic review of existing legislation with a view to identifying outdated texts and recommending reform. Also, the fact that we have in Canada a convention of periodically consolidating our statutes so that the text of the legislation is officially found coherently in one document, rather than scattered in numerous amending statutes also helps to reveal problems of petrification that leads to prompt revisions. Furthermore, there is no indication in Canada that the legislative process, led by a cabinet style of government rather than the loose American committee system, has any problem revising legislation, especially of the “lawyer’s law” type.
Having said that, we can still add the ideas of Eskridge and Dworkin and Calabresi to the Canadian context in terms of the argument that when choices do exist in terms of interpretation, the courts should consider which result is most harmonious with, or has the best fit with, the developing corpus juris as a whole. This idea that common law and legislation should be viewed in a more harmonious light is reciprocal. Just as legislation could be interpreted with an eye to how it might best fit with common law, so the common law might be interpreted with an eye as to how it fits with legislation. Legislation can provide a source of value beyond the terms of the legislation, even when it does not directly apply to the situation.
2. The Need for Interpretation and the Orthodoxy of Intention
Now having said that the role of the courts is to faithfully follow legislation, rather than to rewrite it or attempt to reach a result to avoid it, the next point to make is that problems of interpretation obviously arise. No matter how precise and careful one may be in drafting a rule, one cannot foresee every situation that might arise and thus a rule may be ambiguous or vague. The fact that people spend money litigating statutory interpretation cases all the way to the Supreme Court, indicates both what is at stake and that reasonable people may well disagree as to the meaning of the statutory text. What is the scope of “mission organization” as used in the rule in our hypothetical above?
We will hopefully spend some time in class talking about problems of interpretation, but an oft used example of one kind of problem was provided by the late and great, H.L.A. Hart, when he posited the hypothetical rule prohibiting any vehicles in the park. What is the scope of the “no vehicles in the park” rule? A boy or girl has an electrically powered toy car that they are “driving” in the park? Another child has a remote-control toy car that he is racing around the park? A teenager is on a skateboard? A mother or father is pushing a baby stroller? Someone is riding a bicycle in the park? An old man strolling in the park trips over the remote-control toy car and is injured and then an ambulance comes into the park to pick the old man up to take him to the hospital. Is the ambulance a prohibited vehicle in the park?
Whenever this hypothetical is raised in class, the discussion quickly moves to the issue of what the author or authors of the “no vehicle in the park” rule might have intended the rule to cover. In this context the discussion often moves to the purposes or aims that the author of the text had for the rule. Why are vehicles prohibited? If we have some confidence about what the purpose of the rule is, then even if the bike is technically a vehicle, we may have no violation of the rule if the bike is not one of the vehicles that causes the problem the rule is meant to prevent. But even with this hypothetical we find difficulties in finding and interpreting the purpose in the first place. If public safety, rather than noise, is the purpose, we might find various vehicles that were never intended by the maker of the rule, or contemplated by the maker of the rule, to be nevertheless covered by the rule?
While different approaches to statutory interpretation exist, as we will see, the orthodox starting point is INTENTIONALISM. Courts say that we are supposed to faithfully implement the intentions of the legislator. They disagree about the best way or method of doing that, but they commonly agree that this is the goal. Canadian courts regularly talk about the intention of parliament.
Intentionalism is under attack in America, but for now, let’s clarify a few points about this concept of author’s intent in the legislative context. One repeated difficulty is that the federal, provincial, or even municipal legislative assemblies are not ONE person, but rather a COLLECTIVE body. How do we realistically speak about what a collective body intended by the words that were passed? Let’s set aside this problem of aggregating intention in a collective setting, and just assume for the sake of argument that we do have an institutional intention, or even a sole legislator, a cabinet member in charge of the bill, who initiated the bill, supervised the drafting, and steered the bill through the house, and in the context of a cabinet government where party disciple dictates that the members vote for the legislation on the bases of what they are told it means, and they vote for it or against it by party decision even if they hate it or love it. Now a problem of interpretation arises. What do we mean by the intention of this legislator?
a. Actual subjective intent as to the meaning or scope of the words in the text. When a speaker says, “I have an apple,” the hearer may not know how to interpret the meaning to give to the word “apple”. Does the speaker mean that he has a fruit or that he has a particular kind of computer? Often the context of the conversation will provide the clue to that intention, but the point is that if we have no context clue, we want to know what the speaker intended by the use of the word “apple”. Thus, we may inquire about the intention of the author as to the meaning that he or she intended to be given to particular words or phrases or provisions of the legislation. Also, as in our hypothetical, Ms. Power may actually have in mind some concept of “mission organization” when using that term. Even without having every organization that she knows flash through her mind, she may certainly have in her mind that the organization would fall within the parameters of the faith of the church that is donating the money.
b. Actual subjective intent as to the aims or purposes of the text. It is crucial that you see the potential difference here. We are not asking what was in the mind of the legislator in terms of some specific words used, but rather we are asking about what the legislator thought was the purpose of the text. What did the legislator think would be accomplished by the rule? What does the rule aim at achieving? We have a kind of means and end reasoning here. In the first part, we were asking about the meaning of the actual text (means) and now we are looking at the goal of the text (the ends). In this regard we need to make another distinction commonly made in Criminal law. There is a difference between motive and mens rea (intention). So, in our context the legislator may have a motive to please a particular powerful interest group and that is why the bill was introduced. But this is not what we mean by intention as to purpose of the legislation. There may have been a multiple of motives to pass the legislation, but what was the legislation about in terms of purposes to be advanced in the world?
Now of course the means and ends discourse leads to all sorts of difficulty. It is precisely when we have problems of interpretation with the means (the text) that we turn to the purposes (the goals of the text) to help us. But some would argue, like Anal Retentive in our hypothetical, that if you have expressed the means in a way that do not accomplish your goals, it is not our job to twist the text to help you.
c. Manifest or Expressed Intent. As we saw in our hypothetical, those who want to be governed by the text do not necessarily deny the fundamental importance of intention. But they want that intention to be manifest or expressed in the text itself. Various “purpose” statements are often included in modern legislation today as aids to interpretation.
d. Imaginatively Reconstructed Intent. Sometimes a court might have no evidence of what the legislators intended, either with reference to meaning of the text or goal. In some cases it might be very apparent that there was just no way that the legislators could have even thought about the circumstances now facing the court. There was no actual intent because no one could have foreseen the developments that now might be caught by the rule. So sometimes a court might resort to a hypothetical reconstructed intent, where the court asks what the legislators would have thought had they had these circumstances in front of them. That this reconstruction may well reflect the court’s own values, rather than the legislator’s is obvious. Furthermore, which legislators are we talking about? The legislators that originally passed the legislation many years ago, or the current legislators?
3. Attack on Intentionalism
We might want to explore the contrary idea that the meaning of a text may sometimes be “disconnected” from the author’s intention. If I write a poem, or even a short story or novel, I may well have certain immediate semantic conventions in mind as I craft words and sentences. I may also have a particular idea of what my narrative is about. I have created a world with various characters who do and say certain things. As an author I have various ideas about the nature of life that I think I am conveying or suggesting in my narrative. Now I publish this novel. The text is supposedly read by many different readers. Of course, at one level there is a shared linguistic convention and context between author and reader that makes any meaning at all possible. If I look at a text written in a language that I do not know, all I can say is that the ink on the page is pretty or nice or rough or whatever. The words are just symbols, just scratches of ink on paper. They mean nothing in themselves without a shared convention between maker and consumer as to what the scratches refer to. But at another level, it is entirely possible that different readers, bringing their own worldviews to the reading, may see things in my created text that I did not ever intend or perceive in the creation of the work. This is how creative writing works, is it not? The text may take on a life of its own through reader’s interpretations, independently of the author’s intention.
By coincidence, just today as I am writing this, there was an announcement that several paintings done by Congo the Chimp were sold at an auction house in London. Astoundingly, the expectation was that the paintings, done years ago by a monkey, would sell for around $1,500, but in fact they sold for more than $26,000. Bidders apparently were not interested in paintings by Warhol or Renoir but were keenly interested in Congo the Chimp’s work. I found a picture of one of the paintings on the internet. I personally think it is a great painting. (Not that I have any credentials to judge such things, other than my own tastes).
What is my point in mentioning the painting by a monkey? Perhaps Congo had an aesthetic intent in creating his/her text that is akin to what we mean by human intent? One article noted that Congo stayed within the boundaries, did not spill paint, and seemed to “know” when the work was finished by refusing to add more paint, even when prompted. But just for the sake of argument, suppose that a painting is made by a mass of spiders who are thrown into cans of paint and then they crawl out across a canvas, and just suppose that the result is arguably a great painting. The painting by the spiders or the elephant or the chimp may be judged by the audience as meaningful to them, even if such a meaning was never intended by the author of the text.
The field of law however is a different terrain than the field of literature, or art, even if theories of literary interpretation may be helpful to our theory. But at another level there is a connection between the literary idea of a text taking on a life of its own and the legal idea of a text taking on a life of its own, disconnected from the intentions of the authors. The American literature on Statutory Interpretation has exploded in volume during the last decade. By ‘volume’ I mean both the amount written and the loudness of the debate between competing protagonists of various approaches. While I can hardly claim anything but a passing familiarity with the debates south of the border, I suggest that the American literature, as usual, is very illuminating and will undoubtedly affect our own practices, but at the same time, I also interject a note of caution. To a significant degree, various approaches to statutory interpretation are conditioned on the reality of the American legislative process, and that process is arguably very different from the cabinet style legislatures in Canada, as I already noted with regard to some aspects of dynamism and legislative petrification.
Both DYNAMISM at one end and TEXTUALISM at the other end of the spectrum reject orthodox reliance on evidence of authorial intent, particularly resort to extrinsic materials like committee reports and the transcripts of legislative proceedings. Prof. Peter Tiersma, writing in the Tulane Law Review, recently provided a wonderful image for us when he asked us to think about being stranded on an island and putting a message in a bottle and sending it out. When you send a message in a bottle, you need to write more than “help” if the message is going to achieve anything for you. While much can be said about this image, we may immediately think about treating legislation as a text that comes to us cut off from the maker. We can’t ask the maker to clarify. The maker is not, or should not be, available to give us extra-textual context. The maker must express completely and precisely what they want. Then, as to interpretation, the text is now in the hand of the readers. It can take on a life of its own. There are those who would dynamically develop it by making it the “best text it can be” in the light of their normative ideology or what how they think the text best fits with the developing contemporary jurisprudence, and there are those who would interpret the text in a way that limits the text to what it conveys to the ordinary reader. It does not matter what the author hoped to accomplish. What matters is what the message in the bottle says or can be made to say. Both dynamism and textualism seem to share the same premises about rejecting legislative history as evidence of intent.
One of the most debated approaches to Statutory Interpretation is called TEXTUALISM. Justice Anthony Scalia of the United States Supreme Court is a leading figure of this movement. (See his book, A Matter of Interpretation: Federal Courts and the Law--1997, Princeton University Press.) This approach is not the same as a literalist version of the traditional plain meaning approach that we will briefly examine below, but it might be called a more modern version of the traditional approach, with appropriate references to linguistic conventions, legal context and canons of construction and the like. One central feature of Textualism is the rejection of resort to legislative history in the form of looking at committee reports or legislative debates for purposes of providing evidence of what specific meaning the legislature intended to convey, or what purpose the legislature had in mind.
Not unlike the church treasurer in our hypothetical above, we are reminded that it is the text that constitutes the law. It is the text that is passed into law. The law is not what the author says during the process, or what individual legislators say in debate or think in their heads, but rather it is the end product that is the law. The intentionalist might reply that no one ever said that the legislative history as evidence of intent was anything other than a wider context to help you determine what the authoritative text means. We do not confuse context with text.
What seems to be at stake in the rejection of legislative history as evidence of intent is a particular view of how the legislative process operates and how unreliable and impossible it is to determine any actual legislative intent. The process appears to be dominated by various interest groups who may by a process of strategic bargaining gain or lose legislative norms. The end product of legislation is often not some grand public purpose, but rather is the product of some very private interested bargain that looks like a contract negotiated in a public forum. Legislation is less about purpose then it is about power. No wonder the courts are quite unwilling to do anything more than enforce the bare terms of the bargain. In addition, we have all the difficulties in identifying whose word in the process should be trusted as evidence of any intent.
My point is that we must indeed consider seriously the reliability and weight to be given to legislative history in Canada, but at the same time, I believe that our cabinet style of government allows us to speak about an institutional intent that is not purely mythical.
III. TRADITIONAL APPROACHES TO STATUTORY INTERPRETATION
When faced with an issue involving the interpretation and application of a legislative provision to a fact situation, common law courts have historically developed a number of approaches to this task. Which approach is utilized may make a fundamental difference to the results in the case. That there are several competing approaches illustrates that this topic involves fundamental disagreements about the nature of interpretation and the proper role of the judiciary in a democratic society.
The different approaches to the interpretation of legislation basically divide into the two camps of textualism on one hand and intentionalism-purposivism on the other. Textualism focuses on the symbols on the page- the written words that were officially passed into law by the legislature or by delegated authority of the legislature. Utilizing dictionaries and various maxims and presumptions, the court establishes what the text means to the reasonable reader of it. Purposivism, however, may go behind and beyond the text, and focus on establishing what the aim of the legislation is. What is the legislation trying to accomplish in the world? The text is then interpreted in a way that advances the purpose. Perhaps the court will even fill in gaps in the legislation to make the legislation achieve the purpose.
In examining the different approaches, consider how each approach deals with and utilizes or fails to utilize the following elements involved in any statutory interpretation case:
l. The Pre-Text Context: What social, political, factors led to the passing of the statutory text?
2. The Text Context: Both the particular rule or subsection in question, and generally the whole text.
3. The Application Context: What is the factual, historical and social context of the situation giving rise to the interpretative issue? What will be the effect in this and other cases of giving the text a particular meaning as opposed to a different meaning?
We will deal with contextual arguments and presumptions later, but for now, note that how these three segments will be used, and whether some of them will be used at all, depends on what basic approach to statutory interpretation is adopted in the first place.
Let's examine briefly the various traditional approaches.
1. Literal (Plain Meaning) Approach
The central idea here is that we should read statutes with an assumption that the authors and the readers share the same language and sufficient linguistic and cultural conventions so that the text should have a “plain meaning” that a competent user of the language would understand upon hearing or reading the words in their immediate context. The text should be given the meaning it has to an ORDINARY reader, and the meaning should be the ORIGINAL meaning of the words at the time the act was passed. If the scope of the original meaning applies to new circumstances as a matter of application, the original meaning still covers the new situation. Meanings are original, but applications of those meanings can change with new social conditions.
This approach might be thought of as having two stages:
Stage one: If the words in their immediate textual context are "plain" or "clear" you should apply the “ordinary” meanings to the situation without reference to the purposes of the legislation or consequences of so doing.
Stage two: If the words are not "plain" or "clear", but rather they are obscure or ambiguous, then you must interpret them using various textual maxims of interpretation (Canons of Construction) or by ascertaining legislative intent- purpose as found in the text. (But only in the text, not wider context). It is the purpose as given in, or implied by, the text itself that might help you, but you do not go to other sources.
The idea that we want to stick to the text as the authoritative product of the legislature and that it is the text that gives the rules of law that citizens are to obey and thus it is reasonable to look at the reasonable reader’s notion of what the text means rather than speculate about whether the text achieves some purpose or is poorly drafted makes sense to many jurists. The binding law is the meaning conveyed by the text alone, expressed in the text alone, and it is not the function of the courts to add to it, avoid it, subtract from it, but rather apply it, as a matter of certainty and predictability and legitimacy. If there is a problem with the text- in that it is over or under inclusive or whatever, that is up to the legislature to remedy, not the courts. These are the sorts of statements made by Anal Retentive in the hypothetical we started with.
However, at some basic level, the traditional 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.
Sometimes the courts turn to the dictionary to support some view about what the words mean. But dictionaries often provide multiple meanings for words- even multiple primary meanings as compared to what might be called secondary meanings. One can often turn to the dictionary to find the meaning you like rather than the meaning intended by the maker of the text.
It is also ironic to have two different camps of judges or litigants both saying that their reading of the text is plain. Clearly when a case is litigated, we usually have some problem of interpretation, so we are at stage two. The issue is usually what to do with something that is not clear. The essence of the so-called plain meaning approach is not stage one, but rather stage two. At this stage we are really talking about rules about the interpretation of rules. What kind of rules of interpretation serve to constrain the interpreter and as much as possible give primacy to the text?
Modern textualist approaches would agree that we do not label something as plain without first reading the whole act, looking to the text for whatever purpose is apparent, looking at all the provisions in context with other provisions and so forth. The idea that something is just plain on a first and isolated reading is a mischaracterization of modern textualism.
An example of the use of the traditional literal approach (there are many examples) is the case of Gibiino v. Barcellona (l973) 35 D.L.R. (3d) 477 (Man. Q.B.) involving the interpretation of the Limitation of Actions Act, which deals generally with the rules about time limits within which you have the right to sue. The basic rule for torts, for instance, was 2 years. But then you must ask - 2 years from the time the accident happened, or 2 years from the time when the damages were, or could have been, reasonably discovered?
There are lots of cases sorting this problem out. The rule appears to be that if the gist of the action is damages, like the tort of negligence, for example, then the time of reasonable discovery of damages may be the relevant time. Thus, in Long v. Western Propeller Co. (l968), 63 W.W.R. l46 (Man. C.A.) the defendants negligently overhauled an aeroplane and negligently certified it as airworthy in l960. The plane crashed in l964. Action was brought by the owner of the plane, the pilot, and the passenger in l966. It was held that the cause of action arose when the crash occurred.
Anyway, the facts of Gibiino involved a 2-year-old infant who was injured on June 2l of l969 when the porch of a home collapsed, and it was alleged that the collapse was due to the negligence of the defendant in effecting repairs to it earlier that year. Now the problem was that the Statement of Claim was not issued until July of l97l, slightly more than 2 years later. But, the Limitation of Actions Act had a special provision for people who have a "disability." "Disability" was defined in the Act as infancy or mental disorders.
Now what did the Act say was the limitation period for people with a disability, like infants? It stated:
"Where a person entitled to bring any action mentioned .... is under disability at the time the cause of action arises, he may bring the action
within the time hereinbefore limited with respect to such an action [i.e. within the normal 2 year period] OR
at any time within 2 years after he first ceased to be under disability."
Stop reading and decide when a child who has not met the normal 2-year requirement, may nevertheless bring an action. What is the "plain meaning?"
Mr. Justice Hunt in Barcellona said:
"It is unfortunate that the provisions of this section leaves a gap, substantial in this case. It appears that Antonio Gibiino can pursue his action, but not until he is l8 years of age, and therefore not until l6 years after the alleged injuries were sustained. It may be that this is a section which should attract the attention of the Legislature as it is unfortunate that the cause of action must stand for l6 years until it is capable of being pursued. In my opinion, the wording of the enactment is clear and the words used must be interpreted in their ordinary grammatical sense. There is nothing in the context to show that they are used in a special sense to enable another interpretation.
I must apply the clear meaning of the Act, and, in my opinion, the action is now barred until Antonio Gibiino attains the age of l8 years, unless changes in the legislation permit him to take action earlier.”
Here we have the parties ready to proceed, and the Judge interprets the statute to say that they have to wait l6 years when the defendant or plaintiff may well be dead, and after the plaintiff may have incurred lots of expense as a result of the accident for which he may in law be entitled to compensation from the defendant.
Justice Hunt could have taken the mischief approach (see below) and implied that the section meant that the infant could sue at any time and up to 2 years after ceasing to be under disability. Perhaps the draftsmen should have included the words "during disability and." But was it improper to imply them?
The plain meaning approach does allow courts to correct obvious drafting errors. If legislation mentions “cars” 10 times and then there is a section mentioning “carps” we may assume the provision still refers to cars and not fish. Thus, the Gibiino problem might have been viewed as a drafting error that the courts could correct without violating the plain meaning approach.
The formalist interpretation of this section continued to cause hardship with a number of cases, until finally overruled in Mumford v. Health Science Centre [l978] 6 W.W.R. 385. Monin J. for the court said:
... but the whole purpose of the legislation and of the modern limitation of actions legislation is to provide against the presentation of stale claims when evidence may no longer be available to the defendant litigants who came within the protection of the legislation. To determine that this infant has to wait until she attains the age of eighteen in l988 in order to start afresh, is to encourage stale litigation. There is a disability for infancy which the infant may make use of upon attaining majority, but in the meantime, courts should not tell her that she must wait until she has reached the age of majority, when, in effect, through her mother as next friend, she wishes to litigate the matter now and not later.
2. Golden Rule Approach
The "Golden Rule" Approach states that a "plain meaning" may be avoided only if necessary to avoid an absurdity. The Golden Rule Approach is sometimes called the "liberal" approach. The case most often cited as authority is Grey v. Pearson (l857) where Lord Wensleydale stated that, “... in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther."
Silence is Golden. On Golden Pond. The Manitoba Golden Boy. Sounds nice, but don't be misled by the word "golden" into thinking that this approach is necessary something marvellous if you are a judicial activist. A Solomon's tool. Must judges say that it is exactly like the literal approach, except when there is clearly a mistake in drafting, (as we noted above) or there is an inconsistency with the plain meaning of the rest of the Act. The use of the phrase "grammatical and ordinary sense of the words" indicates that the Golden Rule is tied to the Literal Rule. The idea that words have plain meanings is still affirmed, but if you have a plain meaning that is absurd in the context of the rest of the Act, you may modify it. That is, you may decide not to give the word a "plain meaning," but rather give it a "secondary" meaning.
The case of Grey does not necessarily say that the Judge can decide differently because of a perceived absurdity in consequences. You must still stay within the four corners of the Act. For example, Lord Blackburn said in River Wier Commissioners v. Adamson [l877] 2 A.C. 742 at 746:
"But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to say is right, namely that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when supplied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear."
It would be more "golden" (if you believe in judicial activism) to interpret the Golden Rule as including cases where you could interpret the statute so as to avoid absurdity of result in relationship to the perceived purpose of the legislation, not just absurdity in the sense that some internal disharmony in the text would occur by applying the "plain" meaning. Under the narrow view, even in Barcellona, the court could not apply the Golden Rule unless some other provisions in the Act dealing with limitation periods would be rendered inconsistent if you applied the plain meaning.
Professor Driedger, in his book The Construction of Statutes, l974 argued, “... that the cases show that departures from the plain meaning under the "golden rule" are justified only when …the plain meaning produces some disharmony in relation to the rest of the statute or to related statutes; such departures are not justified, it is said, when the literal meaning merely produces consequences thought by the court to be absurd.”
We can have what Driedger calls objective absurdity, that is, when there is inconsistency within the Act itself, or an obvious drafting error in the Act itself, and on the other hand, subjective absurdity, which is when the Judge looks at results in terms of the purpose of the Act, and avoids a "plain meaning" due to the absurdity of the result. When the Judge looks at absurd consequences outside the plain meaning of the rest of the statute, then the golden rule is closer to the traditional mischief rule which we will look at in a minute.
Driedger in his book, argues strongly against any "subjective" approach to the golden rule. He would confine the use of the approach to "objective" textual harmonization. This is understandable if you accept the view that the ascertainment of meaning in a text can by sharply distinguished from the assignment of meaning to a text, and that the "subjective" approach assigns rather than ascertains.
3. Mischief Approach
Mischief Approach: - the "plain meaning" may be avoided in order to give effect to the purpose or object of the legislation so as to suppress the mischief sought to be remedied by the statute and to advance the remedy. Additionally, when there is no plain meaning, we assume that the legislation has one or more goals or purposes or objects. We assume that the legislation aims to accomplish something in the world. The interpretation that we give to the legislative text with reference to the application situation, should be one that advances the purpose- aim- object- reasons for the legislative rule. Radical purposivism would even allow the court to go beyond the text and fill in gaps or even set aside parts of the text to advance the perceived purpose. Moderate purposivism would interpret the text so as to advance the purpose but only to the degree that the text could bear such an interpretation.
This approach finds its historical roots way back prior to the formalist period, just as the more flexible conventions of precedent may be seen as being as much a return to the past as they are a modern phenomenon. The classic statement of the Mischief Rule is that given by the Barons of the Court of Exchequer in Heydon's Case (l584) 3 Co. Rep. 7a; 76 E.R. 637:
It was there laid down:
"that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
lst. What was the common law before the making of the Act?
2nd. What was the mischief and defect for which the common law did not provide?
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.?
And 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief…
The approach in Heydon's case, emphasizing as it does the need to find the purpose or object or spirit of the statute and to advance that object in interpretation, nevertheless is expressed in the somewhat archaic language reflecting the view that statutes were a mere appendix to the common law. Today the tables are reversed, and common law is increasingly being swallowed up by an orgy of legislation. Thus, the modern rule in Heydon's case might be expressed better as to the first four points, this way:
1. What was the state of the law, if any, on the relevant subject matter before the legislation in question was passed?
2. What was the social, political, economic or other problem that gave rise to the need for the statute?
3. What was the solution that was to be embodied in the statute?
4. What was the purpose aimed at by this solution?
The mischief approach embodies a purposive interpretation of the text. Utilizing a much wider context for the text of the statute, we interpret the statute to advance the purpose. We all know that lawyers are "loophole hunters." The literal approach allows us to get around the purpose or spirit of the law by narrow construction. At other times, however, a plain reading may apply wider provisions of the statute to circumstances that arguably shouldn't be governed by the statute. The purposive approach would allow for a narrow reading of a wide provision, or a wider reading of a narrow provision, but only if the purpose of the statute demanded such a reading.
The mischief approach might be seen as an improvement over the literal and golden approach in that it acknowledges that we give meaning to words by supplying the context and that rules in statutory form are more than ends in themselves. Rules are a means to an end. However, the use of the purposive approach has difficulties associated with it.
One difficulty that is often raised deals with the concept of "legislative intent" which we mentioned earlier. I would argue that the purposivist approach does not require us to believe that "legislative intent" can be found and "exists" in some of the senses that this term is used. Rather the point could be made that the judiciary should be trying to establish what the goal(s) of the legislation is (are). In finding evidence for or against various proposed goals, the court might turn to materials associated with "legislative intent" as used in other senses, but these are not definitive in and of themselves. Rather than trying to get into the head of some mythic legislature as a corporate body to find specific answers to what meaning to give a phrase, we should rather be thinking about using evidence from the context of the making of the legislation to help us establish what the legislation was meant to accomplish. Ironically when we turn to the developments in the law as to the use of legislative material, we see that courts in England are prone to do exactly the opposite. They might allow evidence of specific intent as to what the legislator thought the text meant in a particular circumstance, but they would exclude evidence of the more general question of what the legislation was attempting to accomplish. That is, they open the door to intention as to meaning, but close the door as to intention as to goals.
A second difficulty with the purposive approach is how much constraint nevertheless is placed on any interpretation by the text itself. Can you give the text a meaning to advance the purpose that the words of the text simply cannot bear (because the purpose and the text may in fact not coincide)? For example, Driedger doesn't like this approach. He says, "Having found the mischief, the common law judges proceeded to make mischief with the words of the statute."
During the pre-formalist time when common law judges were talking about “the equity of the statute” they were actually treating legislation in the same dynamic way that they were treating case law. Just as we talk about the ratio decidendi of cases and having flexibility to rework the ratio from case to case, so we might talk about the ratio legis of legislation. At this point in legal thought, the words of the statute were not treated as written in stone, but rather judges looked to the spirit of the statute, and they had the flexibility to rework the legislative rule as it is applied to various circumstances. But with the rise of formalism, this kind of flexibility with the text was seen as a violation of parliamentary supremacy. Today we might argue that the purposive approach might act like a pen, but not like an eraser. Perhaps it can fill in gaps in the text, but it cannot erase the text that is there. The interpretation should be one the text can bear.
A third difficulty is how do you find and interpret the so-called purpose? What materials can you look at? We will see in our discussion of contextual matters next class, that one of the severe limitations in the use of the purposive approach has been the judicial unwillingness to expand the use of so-called "extrinsic materials" like records of legislative debates etc. Furthermore, is there one purpose, or a host of purposes for a particular statutory provision? In other words, if you have trouble interpreting the words of a text, are you in worse trouble when you attempt to interpret the purpose, an even vaguer and more ambiguous matter than the words themselves?
A fourth difficulty relates to the overall justification of the approach in terms of the role of the judiciary. Does the approach lead to undemocratic judicial legislation? Does a judge simply advance his or her own idiosyncratic and undemocratic views under the guise of "purpose"? On the other hand, we might argue that harmonizing text and purpose involves being more faithful and obedient to the legislative branch than some formalist textual approach that may involve loopholes for those who should be caught by the text and lassoes for those who should escape it.
Both the promise and the pitfalls of the purposive approach are raised and elaborated very well in Twining & Myers, How To Do Things With Rules.
An example of the use of the Mischief Approach is the case of Smith v. Hughes [l960] l W.L.R. at 830. The case deals with the statute passed in England in l959 called the Street Offenses Act, which states: "It shall be an offence for a common prostitute to loiter or solicit in a street ... for the purpose of prostitution." Now look at the phrase "in a street." The word "street" may be vague as to whether it includes the road and the sidewalk, or just the road, but the word may also be ambiguous if you stretch it. The word "street" means a public way or a thoroughfare, but sometimes we use it to mean people living in an area, such as when you say, "the whole street protested the new regulation about burning garbage." In this case, the Street Offenses Act says, "in a street" and more obviously refers to a street as a place, not a people. But the vagueness of "in the street" formed the problem in the Smith case.
First, there was a “common prostitute” [don’t even go there] in this situation. She stood on the balcony of her apartment which was 8-l0 feet above street level. To attract the attention of men on the street she tapped on the balcony railings with some metal object and then she hissed at them as they passed. If the man paid attention, she invited him to come up, indicating the correct door of the premises. She was arrested and found guilty and fined 5 pounds and 5 guineas for soliciting in the street.
Second, there was a common prostitute who solicited from a closed ground floor window 3 or 4 feet off the street. She tapped on the windowpane with some metal object, and having attracted a man's attention, she extended 3 fingers to indicate the price. She too was arrested for, and found guilty of soliciting in the street.
They both appealed, saying they were not “in the street.” Chief Justice Lord Parker said he wasn't much concerned about whether they were or were not technically "in the street." He stated at 832:
"For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half-open; in each case her solicitation is projected to and addressed to someone walking in the street."
4. Fusion (Modern) Approach?
Fusion Approach: -aspects of the Literal, Golden and Mischief approaches are fused into one, more modern, approach.
The essence of the Willis article (l938), noted earlier, is that different judges use different judicial techniques and approaches to achieve desired results. If words are precise and narrow the judge can interpret them narrowly, or can widen them to include the case, depending on the desired result. If on the other hand, the words are wide and general the judges can narrow them to avoid the case, or keep them wide to include the case, again depending on the desired result. Professor Wolfgang Friedman in an article in the Canadian Bar Review in l949 also concluded, "All of these approaches and techniques are just pseudo-logical, they conceal the choice being made by the courts between opposing conclusions of equal logical validity." We have diversity, vacillation, and confusion. Professor Kernochan, writing in the Dalhousie Law Journal stated: "Looking at these rules and approaches today one finds a maze of conflicting, mutually inconsistent prescriptions, a veritable jungle."
In the l970's, certain scholars attempted to show that the Willis thesis was no longer correct. Both Professor Driedger in Canada and Professor Rupert Cross in the United Kingdom, in their books on Statutory Interpretation argued that we now have only one correct approach to statutory interpretation. Their thesis was that the three approaches have been modified by the courts and merged into one.
The question is, are they speaking normatively or are they speaking descriptively? I suspect the former. They are saying "Here is the approach that ought to be used." They have not established that in fact there is one approach consistently used.
Briefly, the first argument they make, is that the literal rule, no longer stands for the proposition that a word ever has a plain meaning in isolation from other words. You must read the whole statute, and then within the context of the whole statute the words in question may be labelled plain or ambiguous as the case may be. -So you add textual context to the literal rule.
Next you modify the Golden Rule, by saying that so-called "objective" absurdity allows the judge to set aside a plain meaning and adopt a different meaning. Objective absurdity is when you have an inconsistency with the rest of the Act. You can interpret the statute so that it works harmoniously. But, says Driedger, the golden rule does not allow you to look at the results of the case and subjectively decide if the results are absurd in terms of some object behind the Act, derived from wider contextual analysis.
Next, we modify the Mischief Rule, by saying that the judge can indeed look at the object of the Act, but only the object that is ascertained from reading the statute as a whole. In conclusion, what we have argues Driedger, is one approach called the "literal approach in total context." But this word "total" is very misleading, I think, as you will see when we talk about contextual matters.
Cross and Driedger's fusion approaches are not exactly the same, but the central point of their approach, in my view, is the attempt to affirm the importance of trying to establish the purpose of the legislation, and yet limit the finding of the purpose and the interpretation of the purpose to essential textualism. It is the text which one goes to for the context, not outside the text to legislative history or socioeconomic background on the subject and so forth. Thus, one could agree that the text should be respected in at least the sense mentioned by both Cross and Driedger - you shouldn't give a meaning to the words that they can't reasonably bear.
Yet at the same time, if you support more judicial activism, you can argue that the Mischief Approach allows for a wider context to find the purpose, and it is the purpose which should guide interpretation of the text. The Fusion Approach attempts to preserve the idea that interpretation can largely be rational, "objective," predictable, rather than idiosyncratic and subjective. Is this possible? Would rationality be better achieved by wider contextual focus on the purpose as being primary over the text?
The most recent, and more satisfactory, outline of what might be called a fusion approach is given by Professor Sullivan in rewriting Driedger's book. Prof. Sullivan does not use the term fusion approach but rather the term "modern interpretation." Sullivan argues that we should admit a wide variety of materials as evidence in establishing the context and possible meaning of the legislative text. There is no formalistic process for how the various indicators of context and meaning can be factored to give a particular outcome, but there are three broad criteria which control the process: -Plausibility (does the interpretation comply with the text?) -Efficacy (does the interpretation promote the goal of the legislation?) -Acceptability (does the interpretation achieve a just and reasonable outcome?)
At some stage Sullivan rescued Driedger from textualism and suggested that his approach could be summarized as follows:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object (purpose) of the Act, and the intention of Parliament.
This is like throwing everything into the soup, when in fact we have fundamental disagreements about how words mean, about what levels of context are permissible, how to identify purposes, and we may not even believe that anything like actual legislative intent exists.
It would be helpful to both authors of legislation and ordinary citizens who must follow legislation if the courts did have one approach to statutory interpretation. However, the reality is that different approaches do exist because judges come to the task with different ATTITUDES as to how legislation should be interpreted. In this context, law students must look at a problem of interpretation and analyse the arguments for or against a particular interpretation by going through all the approaches. Whatever approach is used, there are a variety of doctrines and disputes as to contextual matters that we need to outline.
Alvin Esau (1997)
Do not quote without attribution
I. HYPOTHETICAL
As we did with our introduction to common law (case based) reasoning, let’s start with a hypothetical. Suppose that the Church of the Second Chance has a membership meeting once a year, the purpose of which is to pass the annual budget for the upcoming year. Furthermore, for the sake of argument, suppose that because of difficulties in the past leading to conflict, the church has some rules about the budget process. One rule is that once the budget is passed for the year it cannot be modified during that year. There is a discretionary fund allocated to the Church Board to meet some minor unforeseen expenses, but the church does not want to get into a situation of calling membership meetings to adjust the budget during the course of the year. Furthermore, suppose that the church, again due to conflicts in the past, has adopted a rule that the budget shall be drafted in the form of rules directed to an independent treasurer in charge of implementing the rules. If a particular budget item does not cost as much as expected under a rule, the money is retained in trust by the treasurer for allocation next year. If a budget item like fuel to heat the church is more expensive, or if the congregation gives less than it needs to, the church has a line of credit at a bank, and the treasurer must borrow the money on behalf of the church to fulfill each budget allocation for the year without fail.
Drafting a budget in the form of rules as to who gets paid what, or what sums go where for certain purposes, is not exactly something you would expect a large group to do at a meeting from scratch. Rather the church has a budget committee which drafts a set of proposed rules to present to the annual meeting, and then as these proposals are discussed, various changes by way of amendments or deletions or even new proposals are drafted at the meeting and voted on, and all of this is done with perfectly proper “parliamentary procedure” at the budget meeting chaired by a fastidious lawyer who is a member of the congregation.
Suppose that around ten per cent of the annual budget is allocated for mission work outside the church itself. The church might, for example, approve a number of budget rules under this category like one that directs the treasurer to, “Pay $1000 a month to the Salvation Army.” Now suppose that the allocation of moneys to various missions is often one of the more controversial areas of the budget, as various members have their own favourite missions that they want the church to support.
Now suppose that the budget committee has drafted a list of 10 mission organizations that they suggest the church should allocate funds to in the budget for the upcoming year. Now suppose that at the annual meeting the following interchange takes place:
Mr. Talk Alot: (Member of the Church)
My question is related to the proposed rule that we pay $300 a month to Intervarsity Christian Fellowship. I don’t think we have supported them in the past. Frankly, I would rather support Youth for Christ because I think their mission methodology is more effective. Why are you proposing Intervarsity?
Ms. Power (Chair of the Budget Committee):
Yes, thank you for your question. We propose to support Intervarsity because Edith Jones has just accepted a full-time position with that organization but must raise her own support by way of various contributions pledged to Intervarsity so that Intervarsity can then pay her a modest salary. Edith just graduated from college, and as I’m sure you know, Edith, along with her parents, are long time and much-loved members of this church. (Applause) We want to support Edith Jones in her mission work. Does that answer your question?
Mr. Talk Alot: Yes. I am happy to support the proposal.
Now suppose at the end of the day, the congregation passes the budget as a set of rules and the following rule is included:
“Pay $300 a month to Intervarsity Christian Fellowship.”
Now suppose that after a few months into the operation of the budget, Ms. Power makes a phone call to Mr. Anal Retentive, the independent church treasurer. The following conversation takes place:
Ms. Power:
I want to inform you that Edith has resigned from Intervarsity Christian Fellowship as of the end of the month and will be taking up a position with Youth for Christ. I would request that instead of paying ICF the $300 a month, you should now pay Youth for Christ that amount for the support of Edith.
Mr. Anal Retentive:
Who’s Edith?
(Ms. Powers brings Anal Retentive up to speed):
Mr. Anal Retentive:
My task is to follow the rules. The rule in question plainly says that I am to pay $300 a month to Intervarsity Christian Fellowship. The rule does not include the words, “for the support of Edith Jones.” I will continue to pay Intervarsity the $300 a month for the rest of the year. If Intervarsity returns the money because they consider it conditional for support of Edith, they may do so, and I will hold it for next year’s budget. But as far as I am concerned, Intervarsity could use it however it thinks best because according to the rule I am paying them unconditionally.
Ms. Power:
But Anal, get real! The purpose of the rule was to support Edith, a member of our congregation in her mission work, rather than Intervarsity per se. I said as much at the meeting that passed the rule. I can provide a full transcript of the meeting to you as to my remarks about the purpose of the rule.
Mr. Anal Retentive:
Well, what you said at a meeting is not part of the rules. What you think you meant to say or achieve is irrelevant. What you say in the rules is what counts. Furthermore, how do I know that those who passed the rule agreed with you as to what you thought you were doing with this rule? Perhaps some members of your church voted in favour of the rule because they wanted to support Intervarsity whether Edith was working there or not. There may have been a variety of motives for support of the rules, or a number of intentions that people had in mind as to the meaning or aim of the rules when they voted in favour of them. Quite frankly, I don’t particularly care what you subjectively intended to say in your rule, nor what you thought you were trying to accomplish with your rule. What I do care about is what your rule objectively means to me as a reader who must interpret and obey it. I only look at the product of your meeting, namely the text, the written rules. This is what is authoritative. Your subjective intentions, what you thought you said, or what you intended to say, or failed to say, is irrelevant. Next year, you will be more careful to make sure your rules convey your intentions.
Ms. Power:
I think you should imply, “for the support of Edith”. You are not violating the rule to fill in a gap.
Mr. Anal Retentive:
Alright then, for the sake of argument suppose the rule now says, “Pay $300 to Intervarsity for the support of Edith.” The rule does not say, “Pay $300 to Youth for Christ for the support of Edith.” If Edith no longer works for Intervarsity and my payment to them under the rule is conditional for her support, then that line in the budget is no longer an expense that I need to pay for, and thus, under the rules, the money is cumulated and carried forward for next year. I certainly can’t pay it now to Youth for Christ.
Ms. Power:
Why can’t you read the rule with the real emphasis on the support for Edith as intended rather than the institution through which that support is channelled? Can’t you adjust the text to further the spirit? I suppose you think the text is plain and requires no interpretation, but I am curious as to what you would do if you had a rule you considered to be ambiguous or vague in some way. What would you do? Suppose that we had passed the rule, “Pay $300 a month to the mission organization Edith works for.” Now Edith resigns from Intervarsity, resigns from the church, renounces her faith and works for an organization called Pagans for the Advance of Hedonism, a group claiming to be a mission organization. What do you do now as an interpreter as to the scope of the term “mission organization”?
Mr. Anal Retentive:
Well, the term “mission organization” is a more general category that may indeed be vague as to what organizations fall within it. But the case is actually quite easy. In the budget you have nine rules directing me to pay money to mission organizations, and every organization mentioned is a Christian faith-based organization. If the tenth rule directs me to pay the mission organization that Edith works for, I may assume reasonably from the context of the whole Budget that when she works for Pagans for the Advance of Hedonism she is not entitled to support, even if that group claims to be a mission organization.
Ms. Power:
So, you are conceding that our intentions or purposes as a church are important, and that you are not just playing with words?
Mr. Anal Retentive:
All I am conceding is that interpretative difficulties do arise. You can’t foresee every contingency. But when there is a difficulty, I look at the intent manifest in the document itself, explicitly or implicitly. My job is not to add to the text or subtract from it, but rather give it a meaning that the words can bear.
Ms. Power:
Suppose you had a case where evidence from the text was lacking as to intent or purpose, and you had real interpretive difficulty with equally plausible but incompatible interpretations possible. Would you go back and listen to what I said at the meeting about that rule, or would you just choose your own preferred meaning? If the later, why are you as reader privileged over me as author?
Mr. Anal Retentive:
Because, until you write again, the final word is with me. Notice the ambiguity. The final word is with me. I both have the text, and the power to interpret and apply it. Good day.
II. A NOTE ON MODERN THEORIES OF INTERPRETATION: ESPECIALLY AMERICAN
1. Common Law (Dynamic-Flexible) v. Legislation (Static-Fixed)?
We may begin with an assumption that the interpretation and application of the law conveyed in legislative form may be distinguished from the interpretation and application of the law conveyed in common law (case law) form. We have already noted that even when we formulate holdings in the form of rules from past cases, the deductive application of the rules in new problem cases involves considerable flexibility. Even lower courts bound by higher court precedent may have flexibility to rework the rules by analogy in different circumstances. In a significant sense, the courts may rewrite common law rules in the process of application of them. But this is not what we expect courts to do with legislation. (Unless you are an extreme supporter of judicial activism.) As we hope to show, there are indeed issues of interpretation where courts may have a degree of flexibility to choose one plausible interpretation over another, but the basic attitude that we start from is that the text of the legislation is fixed and binding on the courts in a way that case law is not. We assume that legislation, with the legitimacy of democracy, must be applied by the courts, whether the courts like it or not. Legislation is paramount over common law, and can pre-empt common law, and legislation is proliferating to such a degree that it is arguably now the most important source of law, despite the bias of law school education to focus on case law.
This distinction between common law reasoning and reasoning with legislation may be overdrawn, however. For example, legislation may be passed that in effect delegates to the courts a kind of common law mandate to dynamically develop and rework the detailed rules in an area, because the legislation only provides some general guidelines or principles leaving the details to the courts. To a significant degree, much of Constitutional law is like this. There are some theorists who link constitutional interpretation with the interpretation of ordinary legislation. They want to be faithful to the words of the text and apply the meanings and purposes that they think the drafters ORIGINALLY intended the text to have and achieve. They think that they can avoid judicial activism by some notion that the meanings of the text are SET IN STONE. But given that the text is not drafted as a detailed rule at all, but rather gives us only a vague guideline, or an open-ended concept, that needs to be defined more particularly by the courts as particular circumstances arise, the process of constitutional decision making basically follows common law reasoning. Even before the Charter, we had the Privy Council in federalism cases laying down the concept of our constitution as a LIVING TREE, growing and changing to meet new circumstances and social conditions and normative understandings. That constitutional interpretation involves common law methods of reasoning means that the debate over judicial activism that we currently have was entirely predictable back in the early 80’s when the proposed Charter was being introduced, and I said back then repeatedly that the Charter was a massive anti-democratic transference of political power to the judiciary.
Aside from the area of constitutional texts, there may also be ordinary legislation enacted in the form of general guidelines where courts also by necessity must dynamically develop the details. However, even when we turn to ordinary legislation and regulation in the form of detailed rules, there are some who would argue that a kind of common law flexibility is used or ought to be used. Here we would note the book by William Eskridge, Dynamic Statutory Interpretation, Harvard U. Press, 1994. While not debating the reality that courts do apply legislation to circumstances never foreseen by the legislators, I would point out that some aspects of DYNAMISM have a peculiar American flavour arising out of the legislative process in that country. Take for example the idea that at some stage legislation has become petrified with age and that courts should be able to update statutes rather than follow faithfully what we reasonably might conclude was the original understanding of the meaning and purpose of the legislation. My impression is that in Canada we have long had Law Reform Commissions, (some of which have recently fallen on hard times) whose mandate has included the systematic review of existing legislation with a view to identifying outdated texts and recommending reform. Also, the fact that we have in Canada a convention of periodically consolidating our statutes so that the text of the legislation is officially found coherently in one document, rather than scattered in numerous amending statutes also helps to reveal problems of petrification that leads to prompt revisions. Furthermore, there is no indication in Canada that the legislative process, led by a cabinet style of government rather than the loose American committee system, has any problem revising legislation, especially of the “lawyer’s law” type.
Having said that, we can still add the ideas of Eskridge and Dworkin and Calabresi to the Canadian context in terms of the argument that when choices do exist in terms of interpretation, the courts should consider which result is most harmonious with, or has the best fit with, the developing corpus juris as a whole. This idea that common law and legislation should be viewed in a more harmonious light is reciprocal. Just as legislation could be interpreted with an eye to how it might best fit with common law, so the common law might be interpreted with an eye as to how it fits with legislation. Legislation can provide a source of value beyond the terms of the legislation, even when it does not directly apply to the situation.
2. The Need for Interpretation and the Orthodoxy of Intention
Now having said that the role of the courts is to faithfully follow legislation, rather than to rewrite it or attempt to reach a result to avoid it, the next point to make is that problems of interpretation obviously arise. No matter how precise and careful one may be in drafting a rule, one cannot foresee every situation that might arise and thus a rule may be ambiguous or vague. The fact that people spend money litigating statutory interpretation cases all the way to the Supreme Court, indicates both what is at stake and that reasonable people may well disagree as to the meaning of the statutory text. What is the scope of “mission organization” as used in the rule in our hypothetical above?
We will hopefully spend some time in class talking about problems of interpretation, but an oft used example of one kind of problem was provided by the late and great, H.L.A. Hart, when he posited the hypothetical rule prohibiting any vehicles in the park. What is the scope of the “no vehicles in the park” rule? A boy or girl has an electrically powered toy car that they are “driving” in the park? Another child has a remote-control toy car that he is racing around the park? A teenager is on a skateboard? A mother or father is pushing a baby stroller? Someone is riding a bicycle in the park? An old man strolling in the park trips over the remote-control toy car and is injured and then an ambulance comes into the park to pick the old man up to take him to the hospital. Is the ambulance a prohibited vehicle in the park?
Whenever this hypothetical is raised in class, the discussion quickly moves to the issue of what the author or authors of the “no vehicle in the park” rule might have intended the rule to cover. In this context the discussion often moves to the purposes or aims that the author of the text had for the rule. Why are vehicles prohibited? If we have some confidence about what the purpose of the rule is, then even if the bike is technically a vehicle, we may have no violation of the rule if the bike is not one of the vehicles that causes the problem the rule is meant to prevent. But even with this hypothetical we find difficulties in finding and interpreting the purpose in the first place. If public safety, rather than noise, is the purpose, we might find various vehicles that were never intended by the maker of the rule, or contemplated by the maker of the rule, to be nevertheless covered by the rule?
While different approaches to statutory interpretation exist, as we will see, the orthodox starting point is INTENTIONALISM. Courts say that we are supposed to faithfully implement the intentions of the legislator. They disagree about the best way or method of doing that, but they commonly agree that this is the goal. Canadian courts regularly talk about the intention of parliament.
Intentionalism is under attack in America, but for now, let’s clarify a few points about this concept of author’s intent in the legislative context. One repeated difficulty is that the federal, provincial, or even municipal legislative assemblies are not ONE person, but rather a COLLECTIVE body. How do we realistically speak about what a collective body intended by the words that were passed? Let’s set aside this problem of aggregating intention in a collective setting, and just assume for the sake of argument that we do have an institutional intention, or even a sole legislator, a cabinet member in charge of the bill, who initiated the bill, supervised the drafting, and steered the bill through the house, and in the context of a cabinet government where party disciple dictates that the members vote for the legislation on the bases of what they are told it means, and they vote for it or against it by party decision even if they hate it or love it. Now a problem of interpretation arises. What do we mean by the intention of this legislator?
a. Actual subjective intent as to the meaning or scope of the words in the text. When a speaker says, “I have an apple,” the hearer may not know how to interpret the meaning to give to the word “apple”. Does the speaker mean that he has a fruit or that he has a particular kind of computer? Often the context of the conversation will provide the clue to that intention, but the point is that if we have no context clue, we want to know what the speaker intended by the use of the word “apple”. Thus, we may inquire about the intention of the author as to the meaning that he or she intended to be given to particular words or phrases or provisions of the legislation. Also, as in our hypothetical, Ms. Power may actually have in mind some concept of “mission organization” when using that term. Even without having every organization that she knows flash through her mind, she may certainly have in her mind that the organization would fall within the parameters of the faith of the church that is donating the money.
b. Actual subjective intent as to the aims or purposes of the text. It is crucial that you see the potential difference here. We are not asking what was in the mind of the legislator in terms of some specific words used, but rather we are asking about what the legislator thought was the purpose of the text. What did the legislator think would be accomplished by the rule? What does the rule aim at achieving? We have a kind of means and end reasoning here. In the first part, we were asking about the meaning of the actual text (means) and now we are looking at the goal of the text (the ends). In this regard we need to make another distinction commonly made in Criminal law. There is a difference between motive and mens rea (intention). So, in our context the legislator may have a motive to please a particular powerful interest group and that is why the bill was introduced. But this is not what we mean by intention as to purpose of the legislation. There may have been a multiple of motives to pass the legislation, but what was the legislation about in terms of purposes to be advanced in the world?
Now of course the means and ends discourse leads to all sorts of difficulty. It is precisely when we have problems of interpretation with the means (the text) that we turn to the purposes (the goals of the text) to help us. But some would argue, like Anal Retentive in our hypothetical, that if you have expressed the means in a way that do not accomplish your goals, it is not our job to twist the text to help you.
c. Manifest or Expressed Intent. As we saw in our hypothetical, those who want to be governed by the text do not necessarily deny the fundamental importance of intention. But they want that intention to be manifest or expressed in the text itself. Various “purpose” statements are often included in modern legislation today as aids to interpretation.
d. Imaginatively Reconstructed Intent. Sometimes a court might have no evidence of what the legislators intended, either with reference to meaning of the text or goal. In some cases it might be very apparent that there was just no way that the legislators could have even thought about the circumstances now facing the court. There was no actual intent because no one could have foreseen the developments that now might be caught by the rule. So sometimes a court might resort to a hypothetical reconstructed intent, where the court asks what the legislators would have thought had they had these circumstances in front of them. That this reconstruction may well reflect the court’s own values, rather than the legislator’s is obvious. Furthermore, which legislators are we talking about? The legislators that originally passed the legislation many years ago, or the current legislators?
3. Attack on Intentionalism
We might want to explore the contrary idea that the meaning of a text may sometimes be “disconnected” from the author’s intention. If I write a poem, or even a short story or novel, I may well have certain immediate semantic conventions in mind as I craft words and sentences. I may also have a particular idea of what my narrative is about. I have created a world with various characters who do and say certain things. As an author I have various ideas about the nature of life that I think I am conveying or suggesting in my narrative. Now I publish this novel. The text is supposedly read by many different readers. Of course, at one level there is a shared linguistic convention and context between author and reader that makes any meaning at all possible. If I look at a text written in a language that I do not know, all I can say is that the ink on the page is pretty or nice or rough or whatever. The words are just symbols, just scratches of ink on paper. They mean nothing in themselves without a shared convention between maker and consumer as to what the scratches refer to. But at another level, it is entirely possible that different readers, bringing their own worldviews to the reading, may see things in my created text that I did not ever intend or perceive in the creation of the work. This is how creative writing works, is it not? The text may take on a life of its own through reader’s interpretations, independently of the author’s intention.
By coincidence, just today as I am writing this, there was an announcement that several paintings done by Congo the Chimp were sold at an auction house in London. Astoundingly, the expectation was that the paintings, done years ago by a monkey, would sell for around $1,500, but in fact they sold for more than $26,000. Bidders apparently were not interested in paintings by Warhol or Renoir but were keenly interested in Congo the Chimp’s work. I found a picture of one of the paintings on the internet. I personally think it is a great painting. (Not that I have any credentials to judge such things, other than my own tastes).
What is my point in mentioning the painting by a monkey? Perhaps Congo had an aesthetic intent in creating his/her text that is akin to what we mean by human intent? One article noted that Congo stayed within the boundaries, did not spill paint, and seemed to “know” when the work was finished by refusing to add more paint, even when prompted. But just for the sake of argument, suppose that a painting is made by a mass of spiders who are thrown into cans of paint and then they crawl out across a canvas, and just suppose that the result is arguably a great painting. The painting by the spiders or the elephant or the chimp may be judged by the audience as meaningful to them, even if such a meaning was never intended by the author of the text.
The field of law however is a different terrain than the field of literature, or art, even if theories of literary interpretation may be helpful to our theory. But at another level there is a connection between the literary idea of a text taking on a life of its own and the legal idea of a text taking on a life of its own, disconnected from the intentions of the authors. The American literature on Statutory Interpretation has exploded in volume during the last decade. By ‘volume’ I mean both the amount written and the loudness of the debate between competing protagonists of various approaches. While I can hardly claim anything but a passing familiarity with the debates south of the border, I suggest that the American literature, as usual, is very illuminating and will undoubtedly affect our own practices, but at the same time, I also interject a note of caution. To a significant degree, various approaches to statutory interpretation are conditioned on the reality of the American legislative process, and that process is arguably very different from the cabinet style legislatures in Canada, as I already noted with regard to some aspects of dynamism and legislative petrification.
Both DYNAMISM at one end and TEXTUALISM at the other end of the spectrum reject orthodox reliance on evidence of authorial intent, particularly resort to extrinsic materials like committee reports and the transcripts of legislative proceedings. Prof. Peter Tiersma, writing in the Tulane Law Review, recently provided a wonderful image for us when he asked us to think about being stranded on an island and putting a message in a bottle and sending it out. When you send a message in a bottle, you need to write more than “help” if the message is going to achieve anything for you. While much can be said about this image, we may immediately think about treating legislation as a text that comes to us cut off from the maker. We can’t ask the maker to clarify. The maker is not, or should not be, available to give us extra-textual context. The maker must express completely and precisely what they want. Then, as to interpretation, the text is now in the hand of the readers. It can take on a life of its own. There are those who would dynamically develop it by making it the “best text it can be” in the light of their normative ideology or what how they think the text best fits with the developing contemporary jurisprudence, and there are those who would interpret the text in a way that limits the text to what it conveys to the ordinary reader. It does not matter what the author hoped to accomplish. What matters is what the message in the bottle says or can be made to say. Both dynamism and textualism seem to share the same premises about rejecting legislative history as evidence of intent.
One of the most debated approaches to Statutory Interpretation is called TEXTUALISM. Justice Anthony Scalia of the United States Supreme Court is a leading figure of this movement. (See his book, A Matter of Interpretation: Federal Courts and the Law--1997, Princeton University Press.) This approach is not the same as a literalist version of the traditional plain meaning approach that we will briefly examine below, but it might be called a more modern version of the traditional approach, with appropriate references to linguistic conventions, legal context and canons of construction and the like. One central feature of Textualism is the rejection of resort to legislative history in the form of looking at committee reports or legislative debates for purposes of providing evidence of what specific meaning the legislature intended to convey, or what purpose the legislature had in mind.
Not unlike the church treasurer in our hypothetical above, we are reminded that it is the text that constitutes the law. It is the text that is passed into law. The law is not what the author says during the process, or what individual legislators say in debate or think in their heads, but rather it is the end product that is the law. The intentionalist might reply that no one ever said that the legislative history as evidence of intent was anything other than a wider context to help you determine what the authoritative text means. We do not confuse context with text.
What seems to be at stake in the rejection of legislative history as evidence of intent is a particular view of how the legislative process operates and how unreliable and impossible it is to determine any actual legislative intent. The process appears to be dominated by various interest groups who may by a process of strategic bargaining gain or lose legislative norms. The end product of legislation is often not some grand public purpose, but rather is the product of some very private interested bargain that looks like a contract negotiated in a public forum. Legislation is less about purpose then it is about power. No wonder the courts are quite unwilling to do anything more than enforce the bare terms of the bargain. In addition, we have all the difficulties in identifying whose word in the process should be trusted as evidence of any intent.
My point is that we must indeed consider seriously the reliability and weight to be given to legislative history in Canada, but at the same time, I believe that our cabinet style of government allows us to speak about an institutional intent that is not purely mythical.
III. TRADITIONAL APPROACHES TO STATUTORY INTERPRETATION
When faced with an issue involving the interpretation and application of a legislative provision to a fact situation, common law courts have historically developed a number of approaches to this task. Which approach is utilized may make a fundamental difference to the results in the case. That there are several competing approaches illustrates that this topic involves fundamental disagreements about the nature of interpretation and the proper role of the judiciary in a democratic society.
The different approaches to the interpretation of legislation basically divide into the two camps of textualism on one hand and intentionalism-purposivism on the other. Textualism focuses on the symbols on the page- the written words that were officially passed into law by the legislature or by delegated authority of the legislature. Utilizing dictionaries and various maxims and presumptions, the court establishes what the text means to the reasonable reader of it. Purposivism, however, may go behind and beyond the text, and focus on establishing what the aim of the legislation is. What is the legislation trying to accomplish in the world? The text is then interpreted in a way that advances the purpose. Perhaps the court will even fill in gaps in the legislation to make the legislation achieve the purpose.
In examining the different approaches, consider how each approach deals with and utilizes or fails to utilize the following elements involved in any statutory interpretation case:
l. The Pre-Text Context: What social, political, factors led to the passing of the statutory text?
2. The Text Context: Both the particular rule or subsection in question, and generally the whole text.
3. The Application Context: What is the factual, historical and social context of the situation giving rise to the interpretative issue? What will be the effect in this and other cases of giving the text a particular meaning as opposed to a different meaning?
We will deal with contextual arguments and presumptions later, but for now, note that how these three segments will be used, and whether some of them will be used at all, depends on what basic approach to statutory interpretation is adopted in the first place.
Let's examine briefly the various traditional approaches.
1. Literal (Plain Meaning) Approach
The central idea here is that we should read statutes with an assumption that the authors and the readers share the same language and sufficient linguistic and cultural conventions so that the text should have a “plain meaning” that a competent user of the language would understand upon hearing or reading the words in their immediate context. The text should be given the meaning it has to an ORDINARY reader, and the meaning should be the ORIGINAL meaning of the words at the time the act was passed. If the scope of the original meaning applies to new circumstances as a matter of application, the original meaning still covers the new situation. Meanings are original, but applications of those meanings can change with new social conditions.
This approach might be thought of as having two stages:
Stage one: If the words in their immediate textual context are "plain" or "clear" you should apply the “ordinary” meanings to the situation without reference to the purposes of the legislation or consequences of so doing.
Stage two: If the words are not "plain" or "clear", but rather they are obscure or ambiguous, then you must interpret them using various textual maxims of interpretation (Canons of Construction) or by ascertaining legislative intent- purpose as found in the text. (But only in the text, not wider context). It is the purpose as given in, or implied by, the text itself that might help you, but you do not go to other sources.
The idea that we want to stick to the text as the authoritative product of the legislature and that it is the text that gives the rules of law that citizens are to obey and thus it is reasonable to look at the reasonable reader’s notion of what the text means rather than speculate about whether the text achieves some purpose or is poorly drafted makes sense to many jurists. The binding law is the meaning conveyed by the text alone, expressed in the text alone, and it is not the function of the courts to add to it, avoid it, subtract from it, but rather apply it, as a matter of certainty and predictability and legitimacy. If there is a problem with the text- in that it is over or under inclusive or whatever, that is up to the legislature to remedy, not the courts. These are the sorts of statements made by Anal Retentive in the hypothetical we started with.
However, at some basic level, the traditional 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.
Sometimes the courts turn to the dictionary to support some view about what the words mean. But dictionaries often provide multiple meanings for words- even multiple primary meanings as compared to what might be called secondary meanings. One can often turn to the dictionary to find the meaning you like rather than the meaning intended by the maker of the text.
It is also ironic to have two different camps of judges or litigants both saying that their reading of the text is plain. Clearly when a case is litigated, we usually have some problem of interpretation, so we are at stage two. The issue is usually what to do with something that is not clear. The essence of the so-called plain meaning approach is not stage one, but rather stage two. At this stage we are really talking about rules about the interpretation of rules. What kind of rules of interpretation serve to constrain the interpreter and as much as possible give primacy to the text?
Modern textualist approaches would agree that we do not label something as plain without first reading the whole act, looking to the text for whatever purpose is apparent, looking at all the provisions in context with other provisions and so forth. The idea that something is just plain on a first and isolated reading is a mischaracterization of modern textualism.
An example of the use of the traditional literal approach (there are many examples) is the case of Gibiino v. Barcellona (l973) 35 D.L.R. (3d) 477 (Man. Q.B.) involving the interpretation of the Limitation of Actions Act, which deals generally with the rules about time limits within which you have the right to sue. The basic rule for torts, for instance, was 2 years. But then you must ask - 2 years from the time the accident happened, or 2 years from the time when the damages were, or could have been, reasonably discovered?
There are lots of cases sorting this problem out. The rule appears to be that if the gist of the action is damages, like the tort of negligence, for example, then the time of reasonable discovery of damages may be the relevant time. Thus, in Long v. Western Propeller Co. (l968), 63 W.W.R. l46 (Man. C.A.) the defendants negligently overhauled an aeroplane and negligently certified it as airworthy in l960. The plane crashed in l964. Action was brought by the owner of the plane, the pilot, and the passenger in l966. It was held that the cause of action arose when the crash occurred.
Anyway, the facts of Gibiino involved a 2-year-old infant who was injured on June 2l of l969 when the porch of a home collapsed, and it was alleged that the collapse was due to the negligence of the defendant in effecting repairs to it earlier that year. Now the problem was that the Statement of Claim was not issued until July of l97l, slightly more than 2 years later. But, the Limitation of Actions Act had a special provision for people who have a "disability." "Disability" was defined in the Act as infancy or mental disorders.
Now what did the Act say was the limitation period for people with a disability, like infants? It stated:
"Where a person entitled to bring any action mentioned .... is under disability at the time the cause of action arises, he may bring the action
within the time hereinbefore limited with respect to such an action [i.e. within the normal 2 year period] OR
at any time within 2 years after he first ceased to be under disability."
Stop reading and decide when a child who has not met the normal 2-year requirement, may nevertheless bring an action. What is the "plain meaning?"
Mr. Justice Hunt in Barcellona said:
"It is unfortunate that the provisions of this section leaves a gap, substantial in this case. It appears that Antonio Gibiino can pursue his action, but not until he is l8 years of age, and therefore not until l6 years after the alleged injuries were sustained. It may be that this is a section which should attract the attention of the Legislature as it is unfortunate that the cause of action must stand for l6 years until it is capable of being pursued. In my opinion, the wording of the enactment is clear and the words used must be interpreted in their ordinary grammatical sense. There is nothing in the context to show that they are used in a special sense to enable another interpretation.
I must apply the clear meaning of the Act, and, in my opinion, the action is now barred until Antonio Gibiino attains the age of l8 years, unless changes in the legislation permit him to take action earlier.”
Here we have the parties ready to proceed, and the Judge interprets the statute to say that they have to wait l6 years when the defendant or plaintiff may well be dead, and after the plaintiff may have incurred lots of expense as a result of the accident for which he may in law be entitled to compensation from the defendant.
Justice Hunt could have taken the mischief approach (see below) and implied that the section meant that the infant could sue at any time and up to 2 years after ceasing to be under disability. Perhaps the draftsmen should have included the words "during disability and." But was it improper to imply them?
The plain meaning approach does allow courts to correct obvious drafting errors. If legislation mentions “cars” 10 times and then there is a section mentioning “carps” we may assume the provision still refers to cars and not fish. Thus, the Gibiino problem might have been viewed as a drafting error that the courts could correct without violating the plain meaning approach.
The formalist interpretation of this section continued to cause hardship with a number of cases, until finally overruled in Mumford v. Health Science Centre [l978] 6 W.W.R. 385. Monin J. for the court said:
... but the whole purpose of the legislation and of the modern limitation of actions legislation is to provide against the presentation of stale claims when evidence may no longer be available to the defendant litigants who came within the protection of the legislation. To determine that this infant has to wait until she attains the age of eighteen in l988 in order to start afresh, is to encourage stale litigation. There is a disability for infancy which the infant may make use of upon attaining majority, but in the meantime, courts should not tell her that she must wait until she has reached the age of majority, when, in effect, through her mother as next friend, she wishes to litigate the matter now and not later.
2. Golden Rule Approach
The "Golden Rule" Approach states that a "plain meaning" may be avoided only if necessary to avoid an absurdity. The Golden Rule Approach is sometimes called the "liberal" approach. The case most often cited as authority is Grey v. Pearson (l857) where Lord Wensleydale stated that, “... in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther."
Silence is Golden. On Golden Pond. The Manitoba Golden Boy. Sounds nice, but don't be misled by the word "golden" into thinking that this approach is necessary something marvellous if you are a judicial activist. A Solomon's tool. Must judges say that it is exactly like the literal approach, except when there is clearly a mistake in drafting, (as we noted above) or there is an inconsistency with the plain meaning of the rest of the Act. The use of the phrase "grammatical and ordinary sense of the words" indicates that the Golden Rule is tied to the Literal Rule. The idea that words have plain meanings is still affirmed, but if you have a plain meaning that is absurd in the context of the rest of the Act, you may modify it. That is, you may decide not to give the word a "plain meaning," but rather give it a "secondary" meaning.
The case of Grey does not necessarily say that the Judge can decide differently because of a perceived absurdity in consequences. You must still stay within the four corners of the Act. For example, Lord Blackburn said in River Wier Commissioners v. Adamson [l877] 2 A.C. 742 at 746:
"But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to say is right, namely that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when supplied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear."
It would be more "golden" (if you believe in judicial activism) to interpret the Golden Rule as including cases where you could interpret the statute so as to avoid absurdity of result in relationship to the perceived purpose of the legislation, not just absurdity in the sense that some internal disharmony in the text would occur by applying the "plain" meaning. Under the narrow view, even in Barcellona, the court could not apply the Golden Rule unless some other provisions in the Act dealing with limitation periods would be rendered inconsistent if you applied the plain meaning.
Professor Driedger, in his book The Construction of Statutes, l974 argued, “... that the cases show that departures from the plain meaning under the "golden rule" are justified only when …the plain meaning produces some disharmony in relation to the rest of the statute or to related statutes; such departures are not justified, it is said, when the literal meaning merely produces consequences thought by the court to be absurd.”
We can have what Driedger calls objective absurdity, that is, when there is inconsistency within the Act itself, or an obvious drafting error in the Act itself, and on the other hand, subjective absurdity, which is when the Judge looks at results in terms of the purpose of the Act, and avoids a "plain meaning" due to the absurdity of the result. When the Judge looks at absurd consequences outside the plain meaning of the rest of the statute, then the golden rule is closer to the traditional mischief rule which we will look at in a minute.
Driedger in his book, argues strongly against any "subjective" approach to the golden rule. He would confine the use of the approach to "objective" textual harmonization. This is understandable if you accept the view that the ascertainment of meaning in a text can by sharply distinguished from the assignment of meaning to a text, and that the "subjective" approach assigns rather than ascertains.
3. Mischief Approach
Mischief Approach: - the "plain meaning" may be avoided in order to give effect to the purpose or object of the legislation so as to suppress the mischief sought to be remedied by the statute and to advance the remedy. Additionally, when there is no plain meaning, we assume that the legislation has one or more goals or purposes or objects. We assume that the legislation aims to accomplish something in the world. The interpretation that we give to the legislative text with reference to the application situation, should be one that advances the purpose- aim- object- reasons for the legislative rule. Radical purposivism would even allow the court to go beyond the text and fill in gaps or even set aside parts of the text to advance the perceived purpose. Moderate purposivism would interpret the text so as to advance the purpose but only to the degree that the text could bear such an interpretation.
This approach finds its historical roots way back prior to the formalist period, just as the more flexible conventions of precedent may be seen as being as much a return to the past as they are a modern phenomenon. The classic statement of the Mischief Rule is that given by the Barons of the Court of Exchequer in Heydon's Case (l584) 3 Co. Rep. 7a; 76 E.R. 637:
It was there laid down:
"that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
lst. What was the common law before the making of the Act?
2nd. What was the mischief and defect for which the common law did not provide?
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.?
And 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief…
The approach in Heydon's case, emphasizing as it does the need to find the purpose or object or spirit of the statute and to advance that object in interpretation, nevertheless is expressed in the somewhat archaic language reflecting the view that statutes were a mere appendix to the common law. Today the tables are reversed, and common law is increasingly being swallowed up by an orgy of legislation. Thus, the modern rule in Heydon's case might be expressed better as to the first four points, this way:
1. What was the state of the law, if any, on the relevant subject matter before the legislation in question was passed?
2. What was the social, political, economic or other problem that gave rise to the need for the statute?
3. What was the solution that was to be embodied in the statute?
4. What was the purpose aimed at by this solution?
The mischief approach embodies a purposive interpretation of the text. Utilizing a much wider context for the text of the statute, we interpret the statute to advance the purpose. We all know that lawyers are "loophole hunters." The literal approach allows us to get around the purpose or spirit of the law by narrow construction. At other times, however, a plain reading may apply wider provisions of the statute to circumstances that arguably shouldn't be governed by the statute. The purposive approach would allow for a narrow reading of a wide provision, or a wider reading of a narrow provision, but only if the purpose of the statute demanded such a reading.
The mischief approach might be seen as an improvement over the literal and golden approach in that it acknowledges that we give meaning to words by supplying the context and that rules in statutory form are more than ends in themselves. Rules are a means to an end. However, the use of the purposive approach has difficulties associated with it.
One difficulty that is often raised deals with the concept of "legislative intent" which we mentioned earlier. I would argue that the purposivist approach does not require us to believe that "legislative intent" can be found and "exists" in some of the senses that this term is used. Rather the point could be made that the judiciary should be trying to establish what the goal(s) of the legislation is (are). In finding evidence for or against various proposed goals, the court might turn to materials associated with "legislative intent" as used in other senses, but these are not definitive in and of themselves. Rather than trying to get into the head of some mythic legislature as a corporate body to find specific answers to what meaning to give a phrase, we should rather be thinking about using evidence from the context of the making of the legislation to help us establish what the legislation was meant to accomplish. Ironically when we turn to the developments in the law as to the use of legislative material, we see that courts in England are prone to do exactly the opposite. They might allow evidence of specific intent as to what the legislator thought the text meant in a particular circumstance, but they would exclude evidence of the more general question of what the legislation was attempting to accomplish. That is, they open the door to intention as to meaning, but close the door as to intention as to goals.
A second difficulty with the purposive approach is how much constraint nevertheless is placed on any interpretation by the text itself. Can you give the text a meaning to advance the purpose that the words of the text simply cannot bear (because the purpose and the text may in fact not coincide)? For example, Driedger doesn't like this approach. He says, "Having found the mischief, the common law judges proceeded to make mischief with the words of the statute."
During the pre-formalist time when common law judges were talking about “the equity of the statute” they were actually treating legislation in the same dynamic way that they were treating case law. Just as we talk about the ratio decidendi of cases and having flexibility to rework the ratio from case to case, so we might talk about the ratio legis of legislation. At this point in legal thought, the words of the statute were not treated as written in stone, but rather judges looked to the spirit of the statute, and they had the flexibility to rework the legislative rule as it is applied to various circumstances. But with the rise of formalism, this kind of flexibility with the text was seen as a violation of parliamentary supremacy. Today we might argue that the purposive approach might act like a pen, but not like an eraser. Perhaps it can fill in gaps in the text, but it cannot erase the text that is there. The interpretation should be one the text can bear.
A third difficulty is how do you find and interpret the so-called purpose? What materials can you look at? We will see in our discussion of contextual matters next class, that one of the severe limitations in the use of the purposive approach has been the judicial unwillingness to expand the use of so-called "extrinsic materials" like records of legislative debates etc. Furthermore, is there one purpose, or a host of purposes for a particular statutory provision? In other words, if you have trouble interpreting the words of a text, are you in worse trouble when you attempt to interpret the purpose, an even vaguer and more ambiguous matter than the words themselves?
A fourth difficulty relates to the overall justification of the approach in terms of the role of the judiciary. Does the approach lead to undemocratic judicial legislation? Does a judge simply advance his or her own idiosyncratic and undemocratic views under the guise of "purpose"? On the other hand, we might argue that harmonizing text and purpose involves being more faithful and obedient to the legislative branch than some formalist textual approach that may involve loopholes for those who should be caught by the text and lassoes for those who should escape it.
Both the promise and the pitfalls of the purposive approach are raised and elaborated very well in Twining & Myers, How To Do Things With Rules.
An example of the use of the Mischief Approach is the case of Smith v. Hughes [l960] l W.L.R. at 830. The case deals with the statute passed in England in l959 called the Street Offenses Act, which states: "It shall be an offence for a common prostitute to loiter or solicit in a street ... for the purpose of prostitution." Now look at the phrase "in a street." The word "street" may be vague as to whether it includes the road and the sidewalk, or just the road, but the word may also be ambiguous if you stretch it. The word "street" means a public way or a thoroughfare, but sometimes we use it to mean people living in an area, such as when you say, "the whole street protested the new regulation about burning garbage." In this case, the Street Offenses Act says, "in a street" and more obviously refers to a street as a place, not a people. But the vagueness of "in the street" formed the problem in the Smith case.
First, there was a “common prostitute” [don’t even go there] in this situation. She stood on the balcony of her apartment which was 8-l0 feet above street level. To attract the attention of men on the street she tapped on the balcony railings with some metal object and then she hissed at them as they passed. If the man paid attention, she invited him to come up, indicating the correct door of the premises. She was arrested and found guilty and fined 5 pounds and 5 guineas for soliciting in the street.
Second, there was a common prostitute who solicited from a closed ground floor window 3 or 4 feet off the street. She tapped on the windowpane with some metal object, and having attracted a man's attention, she extended 3 fingers to indicate the price. She too was arrested for, and found guilty of soliciting in the street.
They both appealed, saying they were not “in the street.” Chief Justice Lord Parker said he wasn't much concerned about whether they were or were not technically "in the street." He stated at 832:
"For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half-open; in each case her solicitation is projected to and addressed to someone walking in the street."
4. Fusion (Modern) Approach?
Fusion Approach: -aspects of the Literal, Golden and Mischief approaches are fused into one, more modern, approach.
The essence of the Willis article (l938), noted earlier, is that different judges use different judicial techniques and approaches to achieve desired results. If words are precise and narrow the judge can interpret them narrowly, or can widen them to include the case, depending on the desired result. If on the other hand, the words are wide and general the judges can narrow them to avoid the case, or keep them wide to include the case, again depending on the desired result. Professor Wolfgang Friedman in an article in the Canadian Bar Review in l949 also concluded, "All of these approaches and techniques are just pseudo-logical, they conceal the choice being made by the courts between opposing conclusions of equal logical validity." We have diversity, vacillation, and confusion. Professor Kernochan, writing in the Dalhousie Law Journal stated: "Looking at these rules and approaches today one finds a maze of conflicting, mutually inconsistent prescriptions, a veritable jungle."
In the l970's, certain scholars attempted to show that the Willis thesis was no longer correct. Both Professor Driedger in Canada and Professor Rupert Cross in the United Kingdom, in their books on Statutory Interpretation argued that we now have only one correct approach to statutory interpretation. Their thesis was that the three approaches have been modified by the courts and merged into one.
The question is, are they speaking normatively or are they speaking descriptively? I suspect the former. They are saying "Here is the approach that ought to be used." They have not established that in fact there is one approach consistently used.
Briefly, the first argument they make, is that the literal rule, no longer stands for the proposition that a word ever has a plain meaning in isolation from other words. You must read the whole statute, and then within the context of the whole statute the words in question may be labelled plain or ambiguous as the case may be. -So you add textual context to the literal rule.
Next you modify the Golden Rule, by saying that so-called "objective" absurdity allows the judge to set aside a plain meaning and adopt a different meaning. Objective absurdity is when you have an inconsistency with the rest of the Act. You can interpret the statute so that it works harmoniously. But, says Driedger, the golden rule does not allow you to look at the results of the case and subjectively decide if the results are absurd in terms of some object behind the Act, derived from wider contextual analysis.
Next, we modify the Mischief Rule, by saying that the judge can indeed look at the object of the Act, but only the object that is ascertained from reading the statute as a whole. In conclusion, what we have argues Driedger, is one approach called the "literal approach in total context." But this word "total" is very misleading, I think, as you will see when we talk about contextual matters.
Cross and Driedger's fusion approaches are not exactly the same, but the central point of their approach, in my view, is the attempt to affirm the importance of trying to establish the purpose of the legislation, and yet limit the finding of the purpose and the interpretation of the purpose to essential textualism. It is the text which one goes to for the context, not outside the text to legislative history or socioeconomic background on the subject and so forth. Thus, one could agree that the text should be respected in at least the sense mentioned by both Cross and Driedger - you shouldn't give a meaning to the words that they can't reasonably bear.
Yet at the same time, if you support more judicial activism, you can argue that the Mischief Approach allows for a wider context to find the purpose, and it is the purpose which should guide interpretation of the text. The Fusion Approach attempts to preserve the idea that interpretation can largely be rational, "objective," predictable, rather than idiosyncratic and subjective. Is this possible? Would rationality be better achieved by wider contextual focus on the purpose as being primary over the text?
The most recent, and more satisfactory, outline of what might be called a fusion approach is given by Professor Sullivan in rewriting Driedger's book. Prof. Sullivan does not use the term fusion approach but rather the term "modern interpretation." Sullivan argues that we should admit a wide variety of materials as evidence in establishing the context and possible meaning of the legislative text. There is no formalistic process for how the various indicators of context and meaning can be factored to give a particular outcome, but there are three broad criteria which control the process: -Plausibility (does the interpretation comply with the text?) -Efficacy (does the interpretation promote the goal of the legislation?) -Acceptability (does the interpretation achieve a just and reasonable outcome?)
At some stage Sullivan rescued Driedger from textualism and suggested that his approach could be summarized as follows:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object (purpose) of the Act, and the intention of Parliament.
This is like throwing everything into the soup, when in fact we have fundamental disagreements about how words mean, about what levels of context are permissible, how to identify purposes, and we may not even believe that anything like actual legislative intent exists.
It would be helpful to both authors of legislation and ordinary citizens who must follow legislation if the courts did have one approach to statutory interpretation. However, the reality is that different approaches do exist because judges come to the task with different ATTITUDES as to how legislation should be interpreted. In this context, law students must look at a problem of interpretation and analyse the arguments for or against a particular interpretation by going through all the approaches. Whatever approach is used, there are a variety of doctrines and disputes as to contextual matters that we need to outline.
