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STATUTES : THE MISCHIEVOUS LITERAL
GOLDEN RULE
E. A. DRIEDGER* Ottawa
All lawyers are familiar with the three alleged rules of interpretation, as laid down in Heydon's Case' (the mischief rule), the Sussex Peerage Case2 (the literal rule) and Grey v. Pearson3 (the golden rule). After struggling with these so-called rules for many years, I finally came to the conclusion that, although they might have been separate and distinct "rules" at one time, they have now been fused into one, which I have expressed as follows :' The words of an Act are to be read in their entire context in their grammatical and ordinary sense (1) harmoniously (2) with the scheme of the Act, the object of the Act (3) and the intention of Parliament (4). (1) Sussex Peerage and Grey v. Pearson (2) Grey v. Pearson (3) (^) Hevdon's Case (4) (^) Heydon's Case. Sussex Peerage and Grey v. Pearson. When I was teaching statutory construction at the Faculty of Law, Ottawa University, I began the first hour of the course with this sentence ; then I spent the rest of the term explaining what it meant. The essence of my lectures, and of my text,5 was that initially words are to be given their literal meaning unless that would lead to some disharmony, in which case the literal meaning might be departed from by giving the words a special, restricted or enlarged meaning or by adopting a less normal but permissible grammatical structure. I now ask myself, what is a literal meaning? I now believe that the adoption of a secondary meaning is not a departure from the literal meaning; the secondary meaning is the literal meaning in the context in which the words are used. I have come to the conclusion that, except where a mistake is corrected or a meaning is given to senseless words, there is no such thing as a literal meaning as distinguished from some other meaning.
E .A. Driedger. Professor of Law Emeritus. University of Ottawa. (1584). 3 Co. Rep. 7a. 76 E .R. 637. (^2) (1844), 11 Cl. & F. 85. 8 E .R. 1034. (1857). 6 H .L .C. 61. 10 E .R. 1216. ' Construction of Statutes (1974). p. 67. (^50) P. Cit ., ibid.
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Thus, if the question is whether a word should be given its full unrestricted meaning or a restricted meaning, and the context dictates a restricted meaning, then the restricted meaning is the literal meaning. If a sentence is ambiguous, there are two literal meanings, and the one chosen according to proper methods of construction is the literal meaning in the statute. If there is a conflict between two provisions and it is reconciled by giving a word a special meaning,' by adopting a permissible grammatical structure other than the perhaps more normal one, 8 by reading a special provision as an exception to a general provision or by subtracting the subject matter of one section out of another, the meaning found is the literal meaning. 9 Where a conflict between two statutes is resolved by the application of the principle leges posteriores priores contrarias abrogant, or generalia specialibus non derogant, there is really not a modification of the grammatical (^) and ordinary sense of the words of the statute; the grammatical and ordinary sense is the sense found after the conflict has been resolved. ° These processes are not departures from the literal meaning ; they are the steps taken to find the literal meaning. Situations where there is an actual departure from the literal meaning I have found to be rather rare, but they do occur. Thus, in Fleming v. Luxton, J 1 the court read ten as meaning forty; and in Queen v. Wilcock, 12 the court read "thirteen" George III as meaning "seventeen" George III. And there can also be said to be a departure from the "literal" meaning where words are ignored or changed or errors are corrected. 13 If a section is so garbled as to convey no
6 D .P .P. v. Schildkmnp, [19711 A .C. (^) 1, [196912 All E .R. 1640. 7 Ottawa v. Hunter (1900), 31 S .C .R. 7. s Caledonian Railira.v Cotnparty v. North British Railway Company (1881) .6 A .C.
" Re Assessment Equalization Act (1963). 44 W .W .R. 604 ; Pretty v. Soll_v (1859), 26 Beav. 606 ; R. v. Township ofNorth York (1965), 50 D .L .R. (2d) 31. "' Churchwardens of West Hain v. Fourth City Mutual Building Society, 118921 1 Q .B. 654; Ex parte Berne (1874), 15 N .B .R. 125 ; Seward v. Vera Cruz (1884), l0 A .C. 59; Re Steil's Prohibition Application (1964), 49 W .W .R. 371 ; R. v. Faulkner and McIntosh (1958). 24 W .W .R. 524 ; Bailey v. (^) Vancouver (1894), 4 B .C .R. 433 ; Gladyszv. Gross. 1194512 W .W .R. 266 ;R. v. Greening Industries Ltd, 119681 I O .R. 759 ; R. v. Deckert, 1 19581 O .W .N. 163 ; City of Ottativa v. Eastview, 119411 S .C .R.
" (1968), 63 W .W .R. 522. 1- (1845), 7 Q .B. 317. " Reference re Alberta Bills, 119381 S .C .R. 100 ; In re Sal/v Tovens (1942), 24 C .B .R. and the cases there cited ; Sale v. Wills, 119721 I W .W .R. 138 ; Wynn v. Skegness, 119671 I W .L .R. 52 ; The Queen v. McLaughlin, 118551 N .B .R. 159 ; Morris v. Structural Steel, 1191712 W .W .R. 749; Re Seizures Act (1955), 16 W .W .R. 283 ; R. v. Donald B. Allen Ltd (1975), (^11) O. R. (2d) 271.
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words are to the same effect as the, words of Tindal C.3. in the Sussex Peerage Case, where he said: 21
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. However, that eminent writer and scholar, Sir Rupert Cross, disagrees with my reformulation of Lord Wensleydalé's rule.22 I doubt that there is any difference of opinion between us. He poses the question "Does the word `absurdity' as used in various statements of the golden rule mean something wider than repugnance or incon- sistency with the rest of the instrument? "2' He says the answer is in the affirmative. I agree. In reformulating Lord Wensleydale's rule I was merely saying what I thought he meant; but his words as reformu- lated by me, as I have indicated, do not express what I consider to be the "rule". Our apparent disagreement appears to me to be purely semantic. He considers that words like "repugnance", "inconsistency", "absurdity", "anomaly" and "contradiction" are, for the purposes of brief exposition propery subsumed under the word "absurdity". 24 Depending on what the writer or speaker has in mind, I agree. The word "absurd" has many meanings. If, as I have indicated, it is used to mean unfair, harsh, unreasonable, inconvenient or unjust, I would say that is a subjective absurdity ; thus, I could say that the capital gains tax is absurd, but that feeling does not justify a departure from or a modification of the words of the statute. On the other hand, if there is a repugnance, incongruity or inconsistency within the statute or between two statutes or if one reading of the statute makes it sterile or unworkable, then a modification ofthe language ofthe statute or of its grammatical structure may be made to give effect to the obvious intention of Parliament, if the words of the statute are reasonably capable of supporting that construction. I call that objective absurdi- ty, or disharmony. Thus, in Barnard v. Gorman, 25 cited by Cross2' as an example of the application of an extended meaning in order to avoid an absurdity, the House of Lords held that the word "offender" included a person suspected on reasonable grounds to have committed an offence. To confine the word to a person who has in fact offended would, as stated.
2 ' Supra, footnote 2, at p ., 143. (^22) Statutory Interpretation (1976), pp. 82 and 169. (^23) Op. Cit., (^) ibid ., p. 81. (^24) Ibid. (^25) (19411 A .C. 378. 26 0p. Cit., (^) footnote 22, p. 77.
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by Lord Romer, 27 in an action for damages for wrongful arrest, "render the provision nonsensical". That would indeed be an absurdity ;but I would regard it as an objective absurdity ; it is there for all to see and does not rest on any one's sense of values. But the case could be decided the same way without mentioning absurdity. The courts must, ofcourse, lean against a construction that will reduce a statute to nonsense. The popular meaning of "offender" goes beyond the technical meaning of "person convicted". Thus, if I am standing at a street corner with a policeman and a car drives through an intersection against a red light, I might ask him "Did you see that offender?" The policeman surely would not say "you must not call the driver an offender; you can do that only after he has been convicted". Here we have two meanings; a technical legal meaning that would nullify the statute and a popular meaning that gives it effect. The choice is obvious. Obviously a word or group of words may have one "grammatical and ordinary sense" out of context, and a different one in context. And if the meaning in context is chosen, is that not then the "literal" meaning? Another case cited by Cross as an example of a construction to avoid an absurdity is Wiltshire v. Barrett .`$ That case dealt with an impaired driving section in a statute and provided that a police consta ble might arrest without warrant "a person committing an offence" under that section. A peace officer, having reasonable grounds for believing that a driver was through drink unfit to drive, stopped and arrested him. The driver was not charged, and he then brought an action claiming damages for assault. The Court of Appeal held that the arrest was lawful because "a person committing an offence" must be read as a person "apparently committing an offence". To confine the section to the arrest of a person while committing an offence makes nonsense of the statute. A peace officer obviously cannot take hold of a driver while he is driving, and once he stops, the words of the statute could be construed to mean that he ceases committing an offence and could not be arrested. That need not be called an absurdi- ty. I would say that such a construction makes nonsense of the statute and should be avoided. But if it is called an "absurdity" I would regard it as an objective absurdity, one that would entitle a court to read "committing" as meaning "apparently committing" in order to give effect to Parliament's obvious intention. 29
2' Supra, footnote 25. at p. 396. 2' [19661 1 Q. B. 312. (^29) See e.g. Salmon v. Duncombe. supra. footnote 20, where words were ignored and the grammar interpolated to give effect to Parliament's clear intention. Also
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sense, because the "less" grammatical and "less" ordinary meaning is the meaning within this statute, and is not a departure from some other "meaning" ; it is only a departure from another, perhaps a more obvious meaning, but the meaning as found is the "grammatical and ordinary" or the "literal" meaning ofthe statute. After all, "literal" means "not figurative or metaphorical". Statutes are not written in figures of speech or metaphors.
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