Interpretation of ambiguous statutes
Interpretation of statutes in Canada has been influenced by the British traditional way of statutory interpretation, which is considered narrow as was developed right from the sixteenth century by the British judiciary. Boyd (2007, p. 76) found out that there are three simple grammatical principles as well rules that guide statutes construction. First, the statute should be read literally; it should be read in context and the statute should be read in harmony with its intentions. Boyd (2007, p. 76) states, “The grammatical principles are still expressed in the traditional Latin:
- expression unius est exclusio alterius;
- ejusdem generis; and
- noscitur a sociis“.
Like other rules, these principles emphasize the significance of implication as well as the context in a bid to interpret ambiguous language. In most cases, interpretation of statutes should flow from a logical and straightforward set of premises.
Boyd (2007, p. 76) argues that the statutory principles and rules of interpretation are simple but are never simplistic and they provide a steady analysis method. Boyd (2007, p. 76) by referring directly to Ruth Sullivan states, “To resolve statutory interpretation disputes, judges must analyze and integrate a variety of factors, including textual meaning, legislative purpose, acceptable consequences and presumptions of intent.
Attention paid to the factors and the amounts of emphasis each receives depend on…” Ruth Sullivan further argues that the attention should depend on the case’s circumstances, audience, subject matter, legislation type, duration since enactment and precision of language among others. Boyd (2007, p. 76) asserts that judges possess significant discretion on such an approach, however, the discretion should be constrained and structured by decision-making, which is principle-based practice. It is therefore significant to note that the principles should be used as the guidelines in accordance with details of a particular case. The variable mentioned by Ruth Sullivan are quite relevant and should be applied in the task of resolving any complex interpretation of the statute.
Rules of statutory Interpretation
The first rule that is important and should be applied in the statutory interpretation is the rule of reading the statute literally by taking the plain meaning of the statute (Boyd, 2007, p. 76). The appealing simplicity of this rule is based on the rule of plain meaning, which requires that the statute’s words should be read in harmony with the grammatical and literal sense of the words. Boyd (2007, p. 77) objects the likelihood of courts reading a statute loosely or even attempting to impose their different construction on any given statute.
Such attempts should be avoided at all costs even if a literal reading of the statute seems to lead to either incongruous or incorrect results. Boyd (2007, p. 77) states, “The courts cannot assume that the legislature has made either errors or omissions. Consider, for example, a statute that prohibits dogs from a city park unless they are on a leash”.
Boyd (2007, p. 77) argues that it should never be inferred or even assumed that by implication the statute was equally designed to apply to other animals or cats for instance. The second rule that is equally important is referred to as the golden rule, which requires the statute to be read in context. Boyd (2007, p. 76) explains that this particular rule is a softening of the second rule. The golden rule therefore advocates for remedy of absurdity, inconsistency and repugnancy whenever they occur due to statute wording, hence, the words of states must not be read literally all the time.
According to Boyd (2007, p. 77), the third rule for statutory interpretation is known as the “rule in Heydon’s case”, which advocates for reading of statutes in harmony with their intentions. This rule is also known as the mischief rule underlines a process suitable for the understanding of the intent of the legislature. Mischief in this case means not malicious conduct and not its contemporary meaning of troublesome. In real sense, the mischief rule refers to the limitation that the statute intended to address and correct in the legal control. This rule is known to have applied in the best in the Gorris V. Scott case in Scotland, where Gorris sued Scott in a bid to recover damages that the loss of his sheep caused.
Gorris’ sheep that were being transported by Scott’s boat drowned in the sea due to prevailing storm. Boyd (2007, p. 78) states that contrary to the requirements of the law, Scott did not provide the animals with pens and was the basis of Gorris’s reasoning. Nevertheless, the court ruled against Gorris and affirmed he was obliged to recover the damages from Scott because the pen were meant to prevent the spreading of contagious animal diseases and not prevent animals from being swept into the sea by storm and not to stop losses overboard. Due to the fact the law was not intended to contain such mischief, Gorris’ claim is considered not to fall in the mischief of the very act.
The case of Rizzo v. Rizzo shoes limited, R. v. Mac, Wesley and Fice were all concerned and were about the interpretation of statutes. The case of Rizzo v. Rizzo shoes limited for instance was concerned with the interpretation of the statutes by discussing the significance of legislative history, an instrument for establishing legislative intent. In addition, the case highlights a situation whether there is plain meaning of a statute or a law might be in conflict with intent of the very law (Boyd, 2007, p. 77).
According to Canadian Legal information institute (1998), about the case of Rizzo v. Rizzo shoes limited, the appellants that comprised of five employees namely Paul Creador, Lindy Wagner, Emilia, Berardi, Lorenzo Vasquez and Philippe Werte dismissed by Rizzo the firm for which they worked before being dismissed on the ground that the firm was bankrupt. The ministry presented the trustee with a proof of claim that the firm was not in order to dismiss the employees due to bankruptcy in accordance Employment standards Act, a claim that the trustee disallowed (Canadian Legal information institute, 1998). According to Canadian Legal Information institute (1998), trustee disallowed the claim by the ministry of labor that an employee has no right to dismiss employees based on bankruptcy and to offer the employee termination, severance as well as vacation pay under the same act of ESA.
The Rizzo v. Rizzo shoes limited case was a conflict of statutory interpretation, which according to Boyd should be based mainly on the three interpretation rules, which include the plain meaning rule, the golden rule and Heydon’s case (Boyd, 2007, p. 76 – 78). These principles when applied accordingly would enable the fair judgment of the case. Canadian Legal information institute (1998, p.1) states, “Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone”.
The act should be read in its whole context as well as normal and grammatical sense in harmony with the complete idea of the act. Canadian Legal information institute (1998, p.1) further states, “Interpretation Act provides that every Act …directs that every Act shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. A position, which is correct since it is bound to lead to the right interpretation of the statute in accordance with Boyd’s assertions.
Other principles that should be considered when interpreting statutes are grammatical principles of construction comprising of three main principles. According to Boyd (2007, p. 78 – 79) the three principles of grammatical construction include “Expressio unius est exclusio alterius, ejusdem generis and noscitur a sociis”. The first principle according Boyd (2007, p. 79) is “Expressio unius est exclusio alterius” literally means that one’s expression is another’s exclusion. In other words, the principle implies that expression of one particular thing or may be a group of things excludes the others.
For instance, in case a parliament imposes tax on building owners, it implies that landowner who do not have any structure are exempted from the tax and therefore should not be taxed. It further implies that the mentioning of structure that is constructed on the land and omission of mentioning of land suggests that the proposed tax is not applied to land but the structure built on the land (Boyd, 200, P. 78). Another example used to illustrate this principle is a notice of invitation at a university residence, which invites all graduates to the home of the university president to attend his/her reception.
At the bottom of the notice was a statement written, “Your thesis must be presented at the door” (Boyd, 200, P. 78). The first statements appears ambiguous because when read selectively, it implies that all students are welcome to attend the reception of the president of the university. However, the real position is presented by the last statement on the invitation, which mentions a thesis as a requirement, thereby defining the word graduate on the invitation. Hence, the graduates invited are those students in the academic programs that have a thesis as requirement and the students who must have done the thesis. Therefore, it narrows down to student in the programs with thesis, which consequently eliminates the baccalaureate and diploma students.
The ejusdem generis principle of grammatical construction literally means “of the same kind” (Boyd, 200, P. 78 – 79). This principle like other principles highlights the significance of interpreting statutes in context by dictating the need to derive meanings of ambiguous phrases from specific context where they appear. For instance, a statute or a law may prohibit citizens from carrying “knives, rifle, pistols, clubs, brass knuckles, or any other such implements on their person” (Boyd, 200, P. 79). If two citizens are caught one carrying a machine gun while the other one carrying a garden spade, even though both garden spade and machine gun are termed as implements, according to this statute, machine gun is the prohibited implement. However, carrying a garden spade is not a prohibited act because it does not fall within the definition of such implement.
The third and last principle of grammatical construction is noscitur a sociis, which literally means, “It is to be known by its associates” (Boyd, 200, P. 79). The noscitur a sociis is a variation on the other principle of ejusdem generis in that it dictates that if a statute uses a general word, which are ensued by specific words, then the statute will be defined in the context of specific words and not the general one. Boyd (2007, p. 79) states, “Instead of an ambiguous phrase taking its meaning from a series of specific words, an ambiguous word takes its meaning from the specific phrases that follow it”.
For instance, if a statute or law requires people to get a license to drive or operate any “vehicle, automobile, motorcycle, truck or machinery of similar kind”, whereby the term vehicle is the general term and is interpreted in relation to specific words that follow (Boyd, 200, P. 79). Trucks as well as motorcycle have a common characteristic of being driven by an engine as opposed to bicycle, which are driven by muscular power. Hence, according to this section of the law or statute, a bicycle is not referred to as a vehicle, consequently those who ride bicycles must not necessarily obtain a license to do so.
The second case that involved the queen as the appellant and Minh Mac as the respondent is one where there was a controversy on the definition of the term adapted. The statute prohibits being in possession of machines as well as materials adapted for use in credit card forgery. The accused was convicted of the crime of being in possession of materials adapted to be used in credit card forgery. The accused appealed to the court of appeal of Ontario basing his/her argument on the fact that the term adapted was misinterpreted during his judgment (Boyd, 200, P. 79). It was difficult to ascertain the intension of the legislature and reading the statute literally could not help either.
The court therefore decided to read the section in context and found out that it was ambiguous. They were right to apply the rules of statutory interpretation; however, they should also apply the three principles of grammatical construction. Boyd (200, P. 79) states, “The principles include expressio unius est exclusio alterius, ejusdem generis and noscitur a sociis”. The three principles especially “it is known by its associates” and “of the same kind” could be used to resolve the ambiguity arising from the interpretation of the term adapted (Boyd, 200, P. 79).
Concerning Wesley case where he was charged with drinking and driving and was released from custody under promise of appearing for three specific times appeared but he failed to appear for his judgment. There was ambiguity in the expression “failure to appear” which the judge decided to rule in favor of the accused, Wesley after reading the section of the statute in context, which is appropriate and was the right step towards resolving the dispute with regards to statute interpretation. Concerning R. v. Fice, which involved Lynn Fice as the respondent and the queen as the appellant, I find the position of the judgment more compelling because the judge took into consideration all the necessary principles of statutory interpretation that Boyd suggest.
Charter of Rights
The charter of Right of Canada is considered as one of the most important addition to the law of the land, which introduced what is viewed to have accorded the judiciary some power that initially belonged to the legislature (Boyd, 2007, p. 110). After the passage and adoption of the charter of rights, the judges assumed the duty of determining whether the legislation of the provincial and federal governments flouts the main values of the charter as well as that of the nation. The charter dictates that judges should set aside those legislations, which disregard protected rights.
The charter of right was not the first legislation that aimed at protecting the rights of Canadians. There already existed Canadian Bill of Rights, which were formulated to protect and ensure the civil rights of the people of Canada. However, the bill of rights were not entrenched in the constitution but existed as a federal statute, which applied to federal regulations and laws. The bill of rights acknowledge God’s supremacy as well as the worth and dignity of human person (Boyd, 2007, p. 111). Boyd (2007, p. 129) while explaining the remedies of the Charter states, “Section 24 of the charter is the enforcement mechanism that gives courts the power to exclude evidence if the admission of it in the proceedings would bring the administration of justice into disrepute”.
Taking into consideration the R. v. Sharpe case where the appellant is the queen and the respondent John Sharpe; the respondent was accused of being in possession of child pornography and being in possession of the child pornography with an intention of selling or distributing. Before the respondent could be tried, he introduced a introduction motion to dispute the constitutionality of the Criminal Code, which he claimed contravenes his expression liberty, which is ensured by the constitution.
The crown however admitted that section 2(b) was infringed by section 164.1(4) of Canadian Charter of Rights and Freedom. Nevertheless, the crown argued that the contravention as specified was permissible in the Charter under section 1. The trial judge as well as of the “British Columbia Court of appeal” passed their ruling by asserting that such prohibition was not justifiable in a democratic and a free society. In order to ascertain the constitutionality of the code, it is significant to examine the extent and the nature of contravention. In the process of ascertaining the constitutionality of the section in question, both the Charter and the Criminal code were deeply examined and it became apparent that the legislation does not protect the freedom of adults or adolescent at the expense of the children but it protects all accordingly.
The legislation does not encourage adults and adolescents to get self-satisfaction especially sexual pleasure from pornographic literature and graphics, which demean children. The law does not allow adults to engage in self-fulfillment that harm children, hence it was found out that the Charter support the fact that benefits derived from prohibiting the act of possessing child pornography prevails over the harmful effect as found in the right of expression. Therefore, the ban of pornographic literature and graphics is permitted by the charter and it protects the integrity of children as well. The Charter promotes and guards the pride of children and the legislature ratified a reasonable legislation, which is imperative in any liberated and independent society.
The issue whether the Charter permits possession of marijuana was put to test as evidenced in the cases of Makmo-Levine and Caine. David Malmo-Levine and Caine were the appellants and the Queen was the respondents. In the two appeal cases, the court was required to examine whether it is within the power of parliament to criminalize possession of marijuana. If parliament possesses such legislative authority, can it exercise the power in a way that it contradicts the Charter? The appellant Caine argues that it is improper for parliament to give a term of imprisonment on an issue, which neither harms nor poses the slightest harm to others while Malmo-Levine challenges the constitutionality of the prohibition of marijuana with an intention of trafficking it.
The appellants challenged a simple possession of marijuana and they marshaled evidence to back their argument, with Malmo-Levine referring to himself as a marihuana/freedom activist. He however does not deny that there are some dangers associated with the use of marihuana. The judgment was however passed in favor of the appellants on the basis that harm that the use of the herb brings does not justify the decision of the state to use imprisonment for being in possession of the marihuana.
The judgment of this case is not in order and it is not convincing enough to premise criminal law on proof of any harm. The spirit of the legislation is to protect the Canadian citizen and this judgment seems to work against the spirit. The health effect of marijuana is very great and when citizens are allowed to possess marijuana without prohibition, they may be in danger. Such judgment is therefore not in the best interest of the citizens because it is going to allow people to possess the drug, which they will obviously use to their own peril.
Concerning the subject of “why have a constitution at all?” Health (2003, p. 42) examines whether the claim that the judiciary has usurped power that is meant for the legitimately elected legislature is relevant. Health compares past and present governments and discusses the necessity of a constitution in a democratic society.
His reasoning boils down to the fact that the constitution is meant to control powers of the arms of the government and that those who enjoy the constitutional power should use it to the best interest of the society since the supreme authority and power rest with the people. Health arguments take into consideration the absolutist systems where the people in authority could do anything they desired without any restraint and the solution to such authority is offered by a democratic society. Constitution is therefore important because it checks the powers of the state to the benefit of the society.
References
Boyd, N. (2007). Canadian Law. USA: Nelson Education ltd.
Canadian, Legal Information Institute. (1998). Rizzo & Rizzo shoes ltd. (Re), [1998] 1S.C.R. 27. Web.
Health, J. (2003). Why have a constitution at all? Web.