Statute Law Review/2001/Issue 1, May/Articles/In Defence of Maxims - Stat Law 2001 22 (45)

Statute Law Review

Stat Law 2001 22 (45)

1 May 2001

In Defence of Maxims

R. N. Graham1

Assistant Professor, Faculty of Law, University of New Brunswick.© Oxford University Press 2001

STATUTES

It is unbecoming for young men to utter maxims.

--Aristotle, 384-322 B.C.

I. INTRODUCTION

Maxims have fallen victim to a lot of bad press. While ancient courts regarded maxims as shining beacons ofclarity in an otherwise murky legal world, the maxims of statutory construction appear to have very littleappeal for modern jurists. Cases that would once have been addressed through the invocation of pithy Latinmaxims now fall to be decided through appeals to public policy or equitable concerns. The fabled canons ofconstruction, useful guidelines that once directed courts toward a statute's meaning, now lie impotent andforgotten, visited only by eccentric legal scholars. When maxims are invoked by modern counsel, they aremet with scepticism or even scorn, often eliciting stern judicial warnings that maxims must be approached'with caution'2 lest they lead a hapless jurist to 'over-ride' the lawgiver's intention.3 The lowly maxim, onceregarded as a valued tool of legal interpretation, has been declared a 'dangerous master' that is perhapsbest left alone.4

Despite all of this bad publicity, the maxims of statutory interpretation continue to serve as valuable tools forthose interested in legislative language, and they can form an important component of a modern approach tostatutory language. The purpose of this article is to extol the many virtues of the maxims and to encouragetheir revival in modern jurisprudence. To that end, this article has three elements: (i) a discussion of thenature of the maxims together with descriptions of four specific maxims that may serve as useful examples;(ii) a consideration of the criticisms that have plagued the maxims, and (iii) an examination of the role thatmaxims can and should play in modern law.

II. WHAT ARE THE MAXIMS?

The maxims of statutory interpretation are handy interpretive guidelines that are usually expressed in Latinphrases. Each of these Latin phrases refers to a specific principle of statutory construction that can help thecourts interpret legislation. From a certain perspective, the maxims form a code of 'statutory grammar' thathelps us understand patterns of language found in legislative texts. The maxims are unlike many of thestandard rules of grammar, however, in that the maxims are not hard and fast rules of universal application.The maxims are more akin to rules of statistical probability than to prescriptive rules of grammar that apply in

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all cases. While maxims often describe the result that ought to be reached when particular problems ofinterpretation arise, they differ from true grammatical rules in that the court is free to ignore the maximswhenever it deems reliance on a maxim inappropriate. Rather than binding a court and forcing it to reach apre-ordained construction of a legislative passage, the maxims simply describe what drafters probably meantthrough the use of specific patterns of language. For this reason, it is best to regard the maxims as sourcesof argument rather than as binding rules that force the court to render particular decisions.

Used correctly, the maxims can provide creative counsel with a series of highly persuasive arguments thatare useful in cases involving legislation. Each of the maxims discussed here is linked to a particular patternof language that typically gives rise to the need for judicial construction. Where these patterns of languageoccur, the maxims lead directly to a set of logical inferences that explain why the relevant pattern oflanguage typically appears in legislation. The maxims are tied directly to the logic underlying linguisticpatterns. Maxims draws the courts' attention to this logic, allowing lawyers and judges to make extremelyuseful arguments and predictions concerning the meaning that may be attributed to legislative texts.

The best way to understand the maxims is through the use of examples; the next section accordinglypresents brief discussions of four of the more useful maxims of construction. They represent a small fractionof such maxims, but a study of their purpose and rationale will assist an understanding of the general natureof maxims.

III. SOME MAXIMS

(A) NOSCITUR A SOCIIS

Noscitur a sociis is the most basic of the maxims of construction and the source from which several othermaxims are derived. Translated literally, the phrase 'noscitur a sociis' means 'know a thing by its associates'.This maxim can be used in almost any problem of construction, for it applies wherever a statutory provisioncontains a word or phrase that is capable of bearing more than one meaning. The maxim works bycomparing the contentious word or phrase with other words or phrases that accompany the language beinginterpreted. So, standing alone, the word 'disability' is ambiguous. It may refer to (a) medical disabilities, (b)legal disabilities, or (c) any factor that renders the subject 'less able' to perform a particular task. If the word'disability' is associated with the words 'illness' and 'death', however, as in the phrase 'the insurer will pay theamount of $10 million in the event of the insured's illness, disability or death', we may be able to rule outsome of the meanings that 'disability' carries standing alone. The association of the word 'disability' with thewords 'death' and 'illness' makes us relatively confident that the disabilities with which we are concerned aremedical in nature. The word 'disability' is coloured by its association with 'death' and 'illness'. This form ofinterpretation, which is unconsciously performed by most competent users of the English language, is oftenreferred to as 'contextual construction', for it requires an examination of the context in which an ambiguousword or phrase is found before deciding on its interpretation.

Francis Bennion describes the operation of the maxim as follows:

Where words or phrases capable of different meanings are associated, they take colour from each other andthis may exclude meanings which would be possible if the words or phrases stood alone. Thus, where apower was given to 'break up the soil and pavement of roads, highways, footways, commons, streets, lanes,alleys, passages and public places' the court held 'construing the word 'footway' from the company in which itis found' that the power was limited to paved footways in towns and did not extend to a field footpath (Scalesv. Pickering (1828) 4 Bing 448).5

In Bennion's example, the word 'footway' is understood by reference to the reasoning embodied in meaningof its companion words and phrases. As highways, streets and the other listed items tend to refer todeveloped areas, 'footway' was understood in a similar sense, embracing paved footways but excludingundeveloped trails. The meaning of the term 'footway' was 'known' by its associates.

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Bourne v. Norwich Crematorium Ltd. (1967)6 provided a classic use of the noscitur a sociis. Bourne involvedthe taxation of a crematorium company under a UK Income Tax Act.7 The taxpayer, Norwich CrematoriumLtd., sought to deduct an annual amount in respect of expenditures it had incurred in the construction of afurnace that was used in its operations. The provision upon which the taxpayer relied for the deductionpermitted tax relief in respect of 'an industrial building or structure occupied for the purposes of a trade'. Thetax authorities had disallowed the taxpayer's deduction, suggesting that the facilities used by a crematoriumcould not be considered 'industrial' for the purposes of the relevant legislation. The taxpayer appealed,asking the Court to determine whether or not a crematorium's furnace could be considered an 'industrialbuilding or structure' for the purposes of an income tax statute. The Court addressed this question throughthe use of contextual interpretation.

'Industrial building or structure' was defined in the relevant statute as 'a building or structure in use ... for thepurposes of a trade which consists in the manufacture of goods or materials or the subjection of goods ormaterials to any process'. According to the taxpayer in Bourne, the cremation of human remains was 'aprocess' to which 'goods or materials' (namely, human bodies) were subjected. If the taxpayer was correct,the structure in which this process took place, the furnace of the Norwich Crematorium, would be an'industrial structure' for the purposes of the Act, and the taxpayer would be entitled to the deductions claimed.The characterisation of human remains as 'goods or materials' was one that caught the Court by surprise.According to Stamp J.:

I would say at once that my mind recoils as much by the description of the bodies of the dead as 'goods ormaterials' as it does from the idea that what is done in that crematorium can be described as 'the subjectionof' the human corpse to a 'process'. Nevertheless the taxpayer so contends, and I must examine thatcontention'.8

The Court went on to describe the taxpayer's argument as follows:

The argument, of course, goes on inevitably to this: that just as the phrase 'goods and materials' is wideenough to embrace, and does embrace, all things animate and inanimate, and so includes the dead humanbody, so the other words to which a meaning must be given, namely 'subjection' and 'process', are words ofthe widest import.9

From a purely literal perspective, the taxpayer's contention made a certain amount of sense. The humanbody is composed of 'materials'. It is 'material' in the sense that it has substance and forms a part of thematerial world. The word 'materials', however, did not appear in isolation in the relevant legislation. It wasassociated with the word 'goods' and a host of other words that imported the notion of goods intended forsale and materials that were used in manufacturing. Applying noscitur a sociis, one could interpret the word'materials' by reference to the words and phrases with which it was associated, giving the word 'materials' anarrower definition that included only materials that were used in manufacturing. In Stamp J.'s opinion:

English words derive colour from those which surround them. Sentences are not mere collections of words tobe taken out of the sentence, defined separately by reference to the dictionary or decided cases, and thenput back again into the sentence with the meaning which you have assigned to them as separate words, soas to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortionof the English language. That one must construe a word or phrase in a section of an Act of Parliament withall the assistance one can from decided cases and, if one will, from the dictionary, is not in doubt; but havingobtained all that assistance, one must not at the end of the day distort that which has to be construed andgive it a meaning which in its context one does not think it can possibly bear.10

Given the context in which the word 'materials' was found, Stamp J. held that the word encompassed onlymaterials that were used in a manufacturing process, not extending to human corpses destined for acrematorium. As a result, Stamp J. held that 'the consumption by fire of the mortal remains of homo sapiensis not the subjection of goods or materials to a process within the definition of 'industrial building or structure'contained in s. 271(1)(c) of the Income Tax Act'.11 The taxpayer's deduction was accordingly disallowed.

The mode of reasoning found in Bourne lies at the heart of noscitur a sociis. Like most courts that use this

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form of reasoning, however, the Court in Bourne refrained from referring to this maxim by its traditional Latinname. However, in the more recent case of R v. Goulis,12 the Ontario Court of Appeal invoked the maxim byname, demonstrating that there is still some life remaining in this handy Latin phrase. In Goulis, the accusedhad been charged with hiding over 1000 pairs of shoes. Mr. Goulis was a bankrupt who was required, underthe relevant bankruptcy legislation, to disclose all of the assets that he owned. He failed to disclose over1000 pairs of shoes during his bankruptcy proceedings, and was accordingly charged with an offence undersection 350 of the Criminal Code,13 which provided that every one who 'removes, conceals or disposes ofany of his property [with intent to defraud his creditors] is guilty of an indictable offence'. The question beforethe Court was whether Mr Goulis had removed, concealed or disposed of his secret hoard of shoes.

The difficulty in Goulis was that the accused had taken no positive action to prevent the discovery of hisshoes. He had not 'removed' them from any location, nor had he 'disposed' of them by selling them orthrowing them away. As section 350 of the Code required proof that the accused had either removed,concealed or disposed of his assets, the Crown sought to prove that Goulis had 'concealed' his shoes withinthe meaning of the legislation.

The word 'conceal' is ambiguous in that it can refer to a positive physical act or, alternatively, to a simplerefusal to disclose. If the word 'conceal' in section 350 of the Criminal Code attracted the first meaning, Mr.Goulis had not committed the offence; if it attracted the second meaning, he had.

Writing for the unanimous Court of Appeal, Martin J. A. interpreted the relevant language by invokingnoscitur a sociis. His Lordship provided the following admirable summary of the maxim, together with hisreasons for acquitting the accused:

It is an ancient rule of statutory construction (commonly expressed by the Latin maxim, noscitur a sociis)that the meaning of a doubtful word may be ascertained by reference to the meaning of words associatedwith it ... When two or more words which are susceptible of analogous meanings are coupled together theyare understood to be used in their cognate sense. They take their colour from each other ... In this case, thewords which lend colour to the word 'conceals' are, first, the word 'removes', which clearly refers to a physicalremoval of property, and second, the words 'disposes of', which ... strongly suggests the kind of dispositionwhich results from a positive act taken by a person to physically part with his property. In my view theassociation of 'conceals' with the words 'removes' or 'disposes of' in s. 350(a)(ii) shows that the word'conceals' is there used by Parliament in a sense which contemplates a positive act of concealment.14

Because the word 'conceals' was capable of bearing more than one meaning, the meaning of that word inthe relevant statutory provision was selected by reference to the other words with which it was found. Since'removes' and 'disposes of' both referred to positive actions, the word 'conceals' was understood in a similarsense. Only 'positive acts' of concealment were captured by the relevant language. As Mr. Goulis had takenno positive action to conceal his hoard of shoes, he was acquitted of the offence with which he was charged.

The logical foundations of noscitur a sociis are relatively uncontroversial. Contextual interpretation comesnaturally to most readers. Without the aid of context, sentences would become mere collections of unrelated,ambiguous words, and communication would be virtually impossible. As a result, noscitur a sociis is easy tounderstand and equally easy to defend. It is also the source of several other maxims of statutoryconstruction, including 'ejusdem generis'.

(B) EJUSDEM GENERIS

Translated literally, 'ejusdem generis' means 'of the same genus' or 'of the same class'. Generally speaking,this maxim is used wherever a provision contains a list of specific items accompanied by general words thatembrace those specific items. Consider the phrase 'lions, tigers, bears and other animals'. This passagecould attract the application of ejusdem generis, as it contains a list of specific items (namely, lions, tigersand bears), as well as general words that embrace those specific items ('other animals'). Where the maximapplies, the general words may be read down to include only those items that are of the same class or genusas the specifically mentioned items. In the lions, tigers and bears passage, for example, we could safely

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read-down the phrase 'other animals' to exclude any animals that were essentially different from lions, tigersand bears. Single-celled organisms, such as paramecia or amoeba, could probably be excluded through theuse of the maxim without much controversy, as could human beings and imaginary animals such as unicornsor dragons. It is important to realise, however, that the phrase 'lions, tigers, bears and other animals',construed literally, would have embraced every member of the animal kingdom: paramecia, humans,cuttlefish and perhaps even imaginary creatures would be included. The literal meaning of the phrase 'otheranimals' is broad enough to capture any animal. It is the ejusdem generis maxim (or the logical inference thatejusdem generis represents) that instructs us not to give the general words their widest possible meaning,but to narrow them in such a way as to ensure that the general words capture only items that are of the sameclass or genus as the specifically listed items.

As noted above, ejusdem generis is a special form of noscitur a sociis. Noscitur a sociis instructs the readerto 'know a thing by its associates'--to give a word or phrase a meaning that agrees with the meaning of otherwords with which it is found. Similarly, ejusdem generis suggests that general words must be understood byreference to the specific terms with which they are associated. The general words are 'known' by referenceto their more specific associates. As a result, ejusdem generis is simply a specific application of thereasoning underlying noscitur a sociis.

The logical inference at the heart of ejusdem generis makes sense. Consider, once again, the exampledescribed above: 'Lions, tigers, bears and other animals'. If the author of that phrase had intended the words'other animals' to be read in their broadest possible sense, there would have been no reason to list the words'lions', 'tigers' and 'bears'. Lions, tigers and bears (being animals) would have been caught by the word'animals' without any need to be singled out by the sentence's author. One of the fundamental presumptionsof statutory construction is that there are no extraneous words in legislation. If the words 'lions', 'tigers' and'bears' are not merely excess verbiage, what is their role in the relevant text? The most logical answer is thatthey are examples of the kind (or genus) of animals captured by the general words at the end of thepassage. Had the author intended to capture all members of the animal kingdom, he or she could havesimply used the word 'animals' without providing us with a list. The author has provided us with a clue,however, suggesting that the general words 'other animals' are not to be read so broadly: the author hasgiven us a list of specific examples (namely, lions, tigers and bears) presumably for the purpose of guidingus to the proper construction of the general phrase.

Like all maxims, ejusdem generis has its limits. The most important of these lies in the fact that ejusdemgeneris can rarely (or perhaps never) indicate the precise boundaries of a genus that it creates. Consider anexpanded version of the 'lions, tigers and bears' example noted above. A legislative passage might providethat 'Lions, tigers, bears and other animals must be housed in paddocks enclosing no less than one hectareper animal'. As noted above, the maxim reminds us that the phrase 'other animals' must not be interpreted inits broadest possible sense, for this would deprive the words 'lions', 'tigers' and 'bears' of any independentpurpose. Ejusdem generis instructs us to use the specifically listed items to narrow the class of 'otheranimals' to include only animals that are of the same class or genus as lions, tigers and bears. This raises acritical problem. No one knows, simply from the application of this maxim, the full extent of the class to bedefined by the phrase 'other animals'. The class could be made up of any group that shares thecharacteristics of lions, tigers and bears. But which characteristics are important? The class may include allmammals, all potentially dangerous mammals, all carnivores, all animals found at the Toronto Zoo, or allanimals mentioned in the Wizard of Oz. The maxim provides us with very little guidance as to the nature ofthe class that it defines. We are given some assistance by the remaining words found within the provision:the provision requires that certain animals be 'housed within paddocks enclosing no less than one hectareper animal'. Once again, we can safely exclude amoeba from the phrase 'other animals' in this passage, notonly because of ejusdem generis, but also because of the context that the remainder of our fictitious statuteprovides. It simply would not make any sense to enclose an amoeba in a one-hectare paddock. For similarreasons, house-cats can probably be excluded. Although a house-cat does bear certain things in commonwith the animals that are mentioned in the passage (especially lions and tigers), it would be silly to requirethat all house-cats be kept in enormous paddocks. This guidance comes from the context of the legislativepassage rather than from ejusdem generis. In this example, ejusdem generis simply tells us not to interpret'other animals' in its broadest possible sense, but to look for commonalities in the specifically listed items witha view to constructing a class that narrows the general terms. The usefulness of this maxim lies in its power

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to remind us of the interpretive possibilities that exist within a certain pattern of language, calling ourattention to important interpretive clues that have been left behind by statutory drafters.

Courts commonly invoke ejusdem generis. A typical example is the decision of the U.S. Supreme Court inUnited States v. Alpers.15 In that case, the Court was asked to interpret legislation that prohibited theinterstate shipment of any obscene 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print,or other matter of indecent character'. Mr. Alpers had been charged under the relevant legislation aftershipping phonograph records across state lines. Those records were 'impressed with recordings of obscene,lewd, lascivious and filthy language and obscene, lewd, lascivious and filthy stories'.16 Alpers conceded thatthe records were indecent. The only question that remained was whether the records constituted a 'book,pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character' forthe purposes of the relevant legislation.

Based on Alpers' concession that the records were indecent, the records clearly amounted to 'matter ofindecent character' if that phrase was given a literal construction. The records were clearly 'matter'. The'indecent character' of that matter was admitted by Mr. Alpers. However, the Court of Appeals had relied onejusdem generis for the purpose of reading-down the phrase 'other matter of indecent character' such thatthe phrase encompassed only items that were of the same class or genus as the items that were listed in theprovision. Minton J. of the Supreme Court described the Court of Appeals' reasoning as follows:

In interpreting the statute as applied to this case the Court of Appeals invoked the rule of ejusdem generis.Since the words 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print' appearing in thestatute refer to objects comprehensible by sight only, the court construed the general words 'other matter ofindecent character' to be limited to matter of the same genus. The Court of Appeals held phonograph recordswithout the statute, so interpreted, since phonograph records are comprehended by the sense of hearing.17

From an interpretive perspective, the appeal court's application of ejusdem generis made a great deal ofsense. Applying the presumption that legislative drafters write with precision and refrain from usingextraneous language, the Court of Appeals determined that the phrase 'other matter of indecent character'could not be given its broadest possible meaning. If it were given its broadest possible meaning, specifyingthe items in the section would have served no purpose: all indecent matter would be caught without the needfor a list of examples. The Court of Appeals reasoned that the listed items had been included for somepurpose, and that the purpose was to narrow the class of 'indecent matter' to indecent matter perceived bythe sense of sight.

The Court of Appeals' decision in United States v. Alpers was a textbook ejusdem generis, but it did notimpress the U.S. Supreme Court. Overturning the Court of Appeals' decision, a majority of the Court (perMinton J.) held:

When properly applied, the rule of ejusdem generis is a useful canon of construction. But it is to be resortedto not to obscure and defeat the intent and purpose of Congress, but to elucidate its words and effectuate itsintent ... We find nothing in the statute or its history to indicate that Congress intended to limit the applicableportion of the statute to such indecent matter as is comprehended through the sense of sight ... nor do wethink that Congress intended that only visual obscene matter was within the prohibition of the statute.18

Of course, the Court provided no basis for its view of Congress' intent with respect to the meaning of thestatute. No evidence of intent was provided apart from the language of the relevant provision. The effect ofthe Court's decision to ignore ejusdem generis was to render the statute's list of specific items purelyextraneous: the phrase 'book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or othermatter of indecent character' was effectively deleted from the statute, leaving only the general phrase 'anymatter of indecent character'. This does not imply that the Court's decision was wrong. It merely suggeststhat, with respect, the Court ought to have provided a more compelling reason for ignoring ejusdem generisthan an unsupported reference to Congressional intent.

Dissenting in Alpers, Black J. did not specifically rely on ejusdem generis. He would, however, have upheldthe acquittal of Mr. Alpers on the grounds that the prohibition found in the statute did not extend to include

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phonograph records. Black J.'s reasoning largely centred on the evils of censorship and the principle that'criminal statutes shall be couched in language sufficiently clear to apprise people of the precise conduct thatis prohibited'.19 Since Alpers' records were not clearly caught by the legislation, Black J. (together withFrankfurter and Jackson JJ.) would have upheld the acquittal. In order to do so, of course, they would haveto have given a narrow reading to the phrase 'other matter' in the relevant legislation. The mechanism thatwould have permitted them to do so was the reasoning underlying ejusdem generis.

The decision of the majority in Alpers is typical of the manner in which courts deal with inconvenient maxims.Where a maxim leads a court toward a decision of which the court does not approve, judges tend to claimthat the maxim is often 'useful', but that resort to the maxim in the case at hand would 'defeat the intent andpurpose' of the legislative author.20 In most of these cases, the court gives no support for its assertion thatthe author's intent or purpose was something different than the meaning that is supported by the maxim. Thecourt merely notes that the maxim is sometimes useful, but (for unstated reasons) the application of themaxim in the case at hand would be unwise.

Perhaps the judiciary's scepticism concerning ejusdem generis lies in the fact that the maxim is subject to anumber of exceptions. Obviously, the maxim cannot apply in cases where the specifically listed items areincapable of forming a recognisable genus. Thus, in the example 'apples, trains, senior citizens,micro-processors, herring and other items shall be subject to this Act', the phrase 'other items' will probablynot be read-down to conform to a genus implied by the listed items: the listed items seem to be unrelated,and do not readily lend themselves to the creation of a single class or genus. Similarly, ejusdem generiscannot apply in those rare cases in which the listed items exhaust the entire genus that they seem to havecreated. This second exception, known colloquially as 'exhausting the genus', could be seen in a passagethat referred to 'minors, adults and other persons'. Applying ejusdem generis, one would be tempted tonarrow the phrase 'other persons' to include only natural persons, excluding corporations or othernon-human entities that may be considered 'persons' by the law. Minors and adults, both of which arespecifically referred to in section, are types of natural person. Ejusdem generis seems to suggest that thephrase 'other persons' was intended to refer only to natural persons, as the genus of natural persons issuggested by the specifically listed types. This gives rise to an objection: if the phrase 'other persons' islimited to natural persons, the words 'other persons' in this passage are extraneous. Minors (which representall natural persons under the age of majority) and adults (which include all natural persons over the age ofmajority) are the only kinds of 'natural persons' that exist. Since both minors and adults are already listed inthe section, all forms of natural person are already accounted for without the need for the phrase 'otherpersons' at the end of the passage. As we have seen, statutory drafters are presumed not to includeextraneous language in their drafting. This leads to a dilemma: either the words 'minors and adults' areextraneous, and the words 'other persons' should be interpreted in their broadest possible sense, or thewords 'other persons' are extraneous, adding nothing to a section that already catches every kind of naturalperson through its specific application to minors and adults. In cases such as this, the court errs on the sideof over-inclusiveness, giving the broad words their largest possible scope. Thus, in the example 'minors,adults and other persons', the phrase 'other persons' would not be restricted by reference to a genus that iscreated by minors and adults: the only genus that is suggested by those terms is exhausted by the listeditems, and ejusdem generis will not apply where its effect would be to rob the general terms of their meaning.As a result, 'other persons' would be interpreted in a broader sense, to include, for example, companies.21

Such considerations may explain judicial reluctance to invoke ejusdem generis. It is seen as exceedinglytechnical in nature, subject to countless technical qualifications and exceptions. This problem arises due tothe failure of counsel to refer to the rationale of ejusdem generis (or any maxim, for that matter) whenpresenting the relevant maxim to the court. If a maxim is seen as an arbitrary rule with little or not logicalbasis, it seems perfectly reasonable to reject the rule for arbitrary reasons. Thus, in cases such as NationalBank of Greece v. Katsikonouris,22 learned judges rely on unsupportable reasons for rejecting a maxim. InNational Bank of Greece, the Supreme Court of Canada refused to apply ejusdem generis on the groundsthat the general words in the relevant section preceded, rather than followed, the list of specific items. Withrespect, this makes no sense. The phrase 'animals such as lions, tigers and bears' (in which the generalwords precede the specific list) should attract the application of ejusdem generis no less than the phrase'lions, tigers, bears or other animals' (in which the general words come last).23 The rationale that underliesejusdem generis applies with equal force regardless of the order in which the general and specific words are

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arranged. The case demonstrates the danger of referring to a maxim without at the same time describing itsrationale. Maxims should not be referred to as a collection of technical rules that are subject to a host ofspecific exceptions. Instead, much like the modern hearsay rule, maxims should be governed by a 'principledapproach' that takes into account the logical basis for each maxim.

Beyond the many exceptions and technicalities that have eaten away at ejusdem generis, the maxim is alsosubject to a number of criticisms. Perhaps the most important of these criticisms flows from the highlysubjective manner in which ejusdem generis can sometimes be applied. Another animal-based exampleserves to demonstrate this point. Consider the phrase 'pigs, chickens, cows and other animals'. How wouldejusdem generis cause the phrase 'other animals' to be narrowed in this passage? One might contend thatpigs, chickens and cows are all animals consumed by humans, and that the phrase 'other animals' should benarrowed accordingly. This genus might only come to mind, however, if the reader is a member of a culturein which pigs, chickens and cows are consumed as food. Other cultures might regard one or more of thesecreatures as forbidden sources of food, as sacred animals, as spirit guides, as objects of experimentation oras creatures that have been enslaved by human oppressors. The genus lies in the eyes of the beholder, anda court's own cultural bias may shine through where ejusdem generis is applied. Any perception ofcommonality between specifically listed items will depend on the life experience of the interpreter. A memberof a group that is over-represented in the judiciary, such as middle-aged white males, may have a skewedperception of the commonalities found within a list of specific items, and may rely on those perceptions whenconstructing a genus for the purpose of applying ejusdem generis. This is not a criticism of middle-agedwhite males, but an issue of human nature. There is something of the interpreter in every act ofinterpretation. When construing a written passage, an interpreter inevitably draws upon his or her own lifeexperiences as a basis for understanding the relevant words. Because of the difficulty of defining any genusthrough the ejusdem generis maxim and the wide array of classes that may be constructed based on anyseries of specific items, ejusdem generis is particularly vulnerable to the 'subjective' nature of interpretation,and may serve to surreptitiously re-enforce cultural 'norms' that are imposed by a dominant social group.

Despite its many difficulties, ejusdem generis has enjoyed a reasonably successful career and continues tobe relied on as a maxim of interpretation, a luxury not enjoyed by the maxim 'reddendo singula singulis'.

(C) REDDENDO SINGULA SINGULIS

Literally translated, 'reddendo singula singulis' means 'referring each to each'. This rather cryptic translationdoes little to explain the workings of the maxim. The function of reddendo can best be explained through theuse of examples. Consider the phrase 'Men and women may become members of fraternities andsororities'.24 This passage can be construed in several ways. On the one hand, perhaps it means that menmay join both fraternities and sororities and that women may join fraternities and sororities as well. On theother hand, it could mean that men may become members of fraternities (but not sororities) and women maybecome members of sororities (but not fraternities). This latter construction, which makes intuitive sensegiven the etymology of the terms 'fraternities' and 'sororities', is arrived at through the application ofreddendo. Reddendo suggests that 'men' should be matched with 'fraternities' and 'women' should bematched with 'sororities', not because of the meaning of those words, but merely because of their placementwithin the relevant passage. Each grammatical subject is 'referred' to its corresponding object. Thus, in thephrase 'police officers and judges must retire at the ages of 65 and 75', the word 'respectively' is effectivelytacked on to the end of the passage by reddendo, matching the first case mentioned (namely, police officers)with the first retirement age (65), and the second case mentioned (namely, judges) with the secondretirement age (75).

The function of reddendo is difficult to describe with any degree of felicity. One of the best attempts wasmade by Reed Dickerson, who describes the maxim as follows:

... reddendo singula singulis in its legal form ... recognises that, context permitting, the reader may properlyinfer that the author has intended a distributive relationship between two juxtaposed series of ideas.25

Thus, where a text exhibits the pattern 'A and B are Y and Z', reddendo suggests that A should be matched

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with Y and B should be matched with Z, achieving a rough sort of symmetry in the passage. The logic ofreddendo lies in the simple observation that people sometimes do combine multiple series of ideas in adistributive manner. While the logic of the drafting practice itself may be elusive, it is certainly logical to makeoneself aware of this practice when interpreting legislation. A failure to understand reddendo may leaveinterpretive possibilities undiscovered, diminishing our ability to understand the language patterns that maybe used by statutory drafters.

The role of context is exceedingly important where reddendo singula singulis is concerned. Obviously, aprovision stating that 'Infants and pets must be kept in strollers or on leashes' should be read in the mannersuggested by reddendo (although a contrary construction is more amusing). The phrase 'men and womenmay become doctors and nurses', however, is probably not an appropriate case for reddendo. There is nosensible reason for associating 'men' exclusively with 'doctors' and 'women' exclusively with 'nurses'. Indeed,our ideas concerning gender equality provide us with evidence that the construction suggested by reddendoshould be steadfastly avoided in this case, as a reddendo-based construction would conflict with importantpublic policies. The most difficult reddendo problems are, of course, those in which no useful context isprovided. The phrase 'dogs and cats shall be kept in cages or on leashes', for example, provides us with veryfew clues concerning the appropriateness of a reddendo-based construction.

Although the application or non-application of reddendo depends on the context of a provision rather than asimple pattern of language, the importance of the maxim lies in the fact that it reminds us that an implicit'distributive relationship' among two series of ideas was once a common feature of legislative language, andmay still appear from time to time in modern statutes. It allows ambiguities to be identified in a text whichcontains multiple series of ideas, and thus enables a more focused inquiry into the meaning of such a text.Like other maxims, reddendo may never lead to a clear answer, but it often calls attention to some ratherimportant questions. It may also serve to remind the drafter to avoid the use of language that might lead toreddendo problems; the liberal use of subsections and appropriate punctuation can pre-vent such problemsbefore they arise.

The maxim may also draw attention to several common problems of construction. While reddendo, strictlyapplied, refers only to those cases in which multiple series of ideas are linked together ('A and B are Y andZ'), a study of reddendo often alerts us to other 'quasi-reddendo' problems of construction. Consider thephrase 'men and women weighing more than 150 lbs may join the fire department'. Does the phrase'weighing more than 150 lbs' refer only to women, or does this qualification apply to men as well? Similarly,the phrase 'professional conduct and ethics' is ambiguous, in that the word 'professional' may simply modify'conduct', or it may refer to 'ethics' as well. Like true reddendo problems, these are typical problems of'unclear distribution'. Passages of this nature do not truly call for the application of reddendo, but a thoroughstudy of the maxim may lead us to understand the nature of distributive relationships in legislative drafting,alerting us to the ambiguities inherent in passages that exhibit this typical drafting problem.

Bishop v. Deakin26 provides an interesting example of the judicial use of the reddendo maxim. Thedefendant had been convicted of perjury on July 6th, 1932 and sentenced to six months imprisonment,without the option of a fine; she was subsequently elected as a councillor on November 1st, 1934. Almost ayear after the election, a writ was issued claiming that the councillor was disqualified from holding publicoffice as a result of her conviction. The statutory provision on which the writ was based provided:

A person shall be disqualified for being elected or being a member of a local authority if he ... has within fiveyears before the day of election or since his election been convicted in the United Kingdom ... of any offenceand ordered to be imprisoned for a period of not less than three months, without the option of a fine.(emphasis added)

On the basis of this provision, the defendant was disqualified from being elected to any local authority untilfive years had elapsed since the date of her conviction. However, the difficulty in Bishop v. Deakin arosefrom a limitation period in the relevant legislation which created a six-month limitation period for challengingelections. As the defendant had been in office for almost a full year before the writ challenging her electionwas issued, the writ was outside the limitation period. The plaintiffs consequently sought to challenge thedefendant's right to continue holding office as a councillor. Recall that the relevant legislation contained

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language stating that a person 'shall be disqualified for being elected or being a member of a local authority'.The plaintiffs argued that the words 'being a member' allowed the defendant's right to continue holding officeto be challenged, despite the fact that the election itself was protected by the limitation period. The defendantargued that the relevant words only related to offences that were committed by elected officials after therelevant official had taken office: in the defendant's view, the remedy for pre-election offences was tochallenge the election, while the remedy of removal from office was intended only for those officials whocommitted offences after being elected.

Relying on reddendo, Clauson J. accepted the arguments of the defendant. Although the relevant section didprovide a mechanism for removing officials from public office, that particular remedy was permitted only incases in which the official had broken the law after having been elected. In Clauson J.'s opinion:

The relevant words of the section are as follows: 'A person shall be disqualified for being elected or being amember of a local authority if he has, within five years before the day of election, or since his election, beenconvicted of any offence, and ordered to be imprisoned for a period of not less than three months, withoutthe option of a fine' ... The section provides for two matters: first, what is to be the disqualification for election;and, secondly, what is to be the disqualification for being a member after election; and it provides for twodisqualifications: first, conviction within five years before the day of election; and, secondly, conviction sinceelection. It is obvious that the second disqualification mentioned does not fit the first case mentioned,namely, that of election, but it does fit the second case, and the second case only. It is also obvious that thefirst disqualification mentioned fits the first case, and it does not seem at all apt to fit the second case ... Alldifficulty can be avoided by applying the well-known method of construction commonly known as reddendosingula singulis, and applying the first disqualification mentioned to the first case dealt with, and the seconddisqualification to the second case dealt with, a construction which, so far as I can see, infringes no rule ofsyntax or grammar. The result reached seems to be quite sensible--namely, that conviction within five yearsbefore the day of election disqualifies from election, and conviction after election disqualifies fromcontinuance in office.27

Based on Clauson J.'s reasoning, the relevant section could have been redrafted as follows: First, a personshall be disqualified from being elected if he has, within five years before the day of election, been convictedof any offence. Second, a person shall be disqualified from being a member of a local authority if he hasbeen convicted of any offence since his election. Unfortunately, the four main ideas of these sections(namely, disqualification from being elected, disqualification from continuing to hold office, offences beforeelections and offences after elections) were combined in a most unusual fashion, giving rise to a problemthat called for the invocation of reddendo. Happily, Clauson J. could be relatively confident in his use of themaxim. Clearly, offences committed after an election could not be grounds for going back in time andchallenging the election. Similarly, unusual results would have flowed from a decision that offences beforeelections could result in removal from office later on. Such a decision would have rendered the limitationperiod practically useless: if an attempt to challenge an election was barred by the limitation period, theperson seeking to challenge the election could achieve the desired result by simply using pre-electionoffences to instead challenge the office-holder's right to hold office, effectively performing an end-run aroundthe limitation period. Reddendo allowed to the Court to avoid this result. The Court accordingly accepted theinterpretation suggested by reddendo, holding that the two penalties provided for in the section (namely,disqualification from elections and disqualification from holding office) bore a 'distributive relationship' to thetwo types of offences that were listed in the section (namely, offences before elections and offences afterelections).

The decision of the Court in Bishop v. Deakin is difficult to follow. It makes much more sense, however, whenone divides the provision at issue in Bishop into its component parts and compares them to the 'fraternitiesand sororities' example. The four main ideas in that example (namely men, women, fraternities andsororities) can be symbolically replaced by the letters A, B, Y and Z. Rewritten using our symbols, the phrase'men and women can become members of fraternities and sororities' could appear as 'A and B can becomemembers of Y or Z'. Applying reddendo to this case, A matches with Y and B matches with Z. The samepattern holds in Bishop v. Deakin. The legislation at issue in Bishop provided that persons would bedisqualified from being elected (A) or continuing to hold office (B) where the person had committed anoffence within the five years preceding an election (Y) or at any time since that election (Z). Once again,

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applying reddendo, A matches with Y and B matches with Z. The pattern developed in the fraternity andsorority example holds true, and a rough symmetry is achieved.

The drafting style which leads to this type of problem is largely one of the past, but old statutes may still beextant and require interpretation. More importantly, a working knowledge of reddendo may remind moderndrafters to avoid the use of implicit distributive relationships in their drafting.

Given the vast improvements seen in legislative drafting over the last fifty years, it is not particularlysurprising that reddendo rarely makes appearances in modern court decisions. Reddendo accordinglyremains somewhere in the back of most interpretive arsenals, waiting to be used when ancient Acts becomeimportant, or where some quirky drafter's sentence structure creates unusual problems. However, the finalmaxim 'expressio unius est exclusio alterius' has a wider application and still appears regularly injudgements.

(D) EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

While there are frequent judicial references to 'expressio unius est exclusio alterius', many are crypticwarnings against the use of the maxim. In Turgeon v. Dominion Bank,28 for example, the Court enigmaticallywarned that while expressio unius certainly had 'its uses', it was nevertheless 'a dangerous master tofollow'.29 In Colquhoun v. Brooks,30 the Court went even further, noting that:

'... the method of construction summarised in the maxim 'Expressio Unius Est Exclusio Alterius' is one thatcertainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequentlymisapplied and stretched beyond their due limits ... the application of this and every other technical rule ofconstruction varies so much under differing circumstances, and is open to so many qualifications andexceptions, that it is rarely that such rules help to arrive at what is meant'.31

What is this 'dangerous master' which inspires judicial warnings? Translated literally, 'expressio unius estexclusio alterius' means 'the expression of one thing is the exclusion of another'. This sounds simple enough,but this 'important rule ... of frequent application'32 is more complex than it seems, and the judiciary's cautionregarding the reckless use of this maxim is well founded. Elmer Driedger describes the maxim's function asfollows:

One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to expressone thing is to exclude another. The maxim reflects a form of reasoning that is widespread and important ininterpretation. Coté refers to it as the a contrario argument. Dickerson refers to it as negative implication. Theterm 'implied exclusion' has been adopted here ... An implied exclusion argument lies whenever there isreason to believe that if the legislature had meant to include a particular thing within the ambit of itslegislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failureto mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is noexpress exclusion, exclusion is implied.33

In other words, where a statute fails to mention a specific case or item, we may have grounds to presumethat the case or item was excluded on purpose rather than through the drafter's inadvertence. In its simplestform, this maxim looks a great deal like another maxim of interpretation known as casus omissus ('a caseomitted'). This simple, watered-down version of expressio unius could be used (for example) in a statute thatprovided that 'pigs, chickens, cows and horses must be inspected by the agricultural bureau'. The sectiondoes not mention sheep, and none of the words listed in the section seem capable of bringing sheep withinthe section. Nor are there general words (such as 'or other animals') that could extend the reach of thesection to animals other than those listed. Because the drafter has taken the time to specify the types ofanimals that must be inspected annually, we can argue that sheep (and any other animals that have beenleft off the list) are not dealt with in this section. That is not to say, of course, that we can infer that sheepneed not be inspected. We have no indication of the manner in which sheep are treated at common law or insheep-related statutes. All that we know is that the provision being examined, which deals with only 'pigs,chickens, cows and horses', fails to embrace animals (such as sheep) that are not listed. The expression of

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pigs, chickens, cows and horses implied the exclusion of other non-listed animals.

Most cases involving expressio unius are far more complicated than this. Often we are inclined to include anitem by implication and must rely on expressio unius to assist us in deciding whether to yield to thisinclination. Consider the following example. In a will, a testator decides to leave the following gifts to hercousin: 'my Toyota and my Cadillac, together with the tyres on my Cadillac'. Will the testator's cousin alsoreceive the tyres on the Toyota? We are inclined to say 'yes', because it seems sensible to convey avehicle's tyres along with the vehicle. Applying expressio unius, however, we may infer that the tyres on theToyota have not been given to the testator's cousin in this clause. The testator has specifically addressed theissue of the tyres on the two vehicles, and has explicitly stated that the tyres on the Cadillac should go to thebeneficiary. Had the intention been that the cousin have the Toyota's tyres as well, presumably the testatorwould have made it explicit. Had the intention been that the cousin would inherit the tyres on the two vehiclesby implication, the testator would not have made specific reference tot he tyres on the Cadillac: the tyreswould have passed to the cousin without need of explicit reference. By the specific reference to the Cadillactyres the testator indicates that she specifically refers to a vehicle's tyres when such tyres are intended toform a gift under the will. The failure to make such a provision for the Toyota tyres suggests that those tyresare supposed to be dealt with differently. The expression of one thing (i.e., the gift of the Cadillac tyres)implied exclusion of the other (a gift of the Toyota tyres). As a result, the testator's cousin is likely to receivea Toyota without tyres.34

The expressio unius maxim is most likely to apply where we have reasons for believing that an author turnedhis or her mind to the items that we seek to exclude by implication. Consider a statute that stated that 'noships, boats or jet-skis are permitted on the waterway during July'. One might be tempted to say that thispassage fails to catch hovercraft or other unusual water-borne vehicles that the drafter has failed to mention.'Had the author meant to have this statute apply to hovercraft', one might argue, 'the author would have saidso explicitly: expressio unius est exclusio alterius'. This is where judicial admonitions regarding the recklessapplication of this maxim come in handy. In a case such as this, the expressio unius argument is certainlyworth a try, but it wouldn't be particularly compelling. In the hovercraft example, we simply have no basis forpresuming that the legislative author turned his or her mind to hovercraft and excluded them on purpose.Perhaps the author had only a vague idea of what was meant by the term 'boats', and would have includedhovercraft under that term. A well-founded application of the expressio unius maxim calls for some additionalindication that the excluded case or item was omitted by the drafter on purpose. In the hypothetical waterwaystatute, for example, we would prefer to have some reason to think that the statute-drafter was aware ofhovercraft and considered them to be a separate subject worthy of specific attention. If our hypotheticalstatute had an additional, separate section stating that 'ships, boats, jet-skis and hovercraft shall beregistered with the registrar of recreational crafts', we would have a reasonably strong reason for arguing thatthe earlier section, barring 'ships, boats and jetskis' from the waterway in July did not apply to hovercraft. The'registration section' makes it clear that the legislative author is aware of hovercraft, and considers them to bea separate case from ships, boats and jet skis. In other words, when the author wished to catch the case ofhovercraft, he or she said so with explicit language. Where that language is absent, the exclusion ofhovercraft can likely be inferred.

In many cases, reliance on the expressio unius maxim rests on our acceptance of two importantpresumptions. First (as we saw in connection with ejusdem generis), we presume that legislative draftersnever use extraneous language. Recall the 'hovercraft' example developed above. In our hypothetical statutewe discovered two provisions. Section 1 provides that 'no ships, boats or jet-skis are permitted on thewaterway during July'. Section 2 provides that 'ships, boats, jet-skis and hovercraft shall be registered withthe registrar of recreational crafts'. Applying the 'no extraneous language' presumption to this fictitious Act,we know that the author did not regard hovercraft as a species of boat, ship or jet-ski. Section 2 makes thisclear, as hovercrafts are dealt with separately from each of the other vehicles. The word 'hovercraft' (insection 2) would have been extraneous had the concept of hovercraft been caught by one of the otherwords. The second important presumption is known as the presumption of consistent expression. Thispresumption suggests that the same word, used in different parts of the same statute, expresses preciselythe same idea. The word 'boat' (for example) in one part of the statute will carry the same meaning as theword 'boat' somewhere else in the same Act. If it does not include hovercraft in one section of the Act, it willnot include hovercraft later on. The presumption concerning extraneous language assured us that, for the

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purposes of section 2, the words 'ships, boats and jet-skis' did not include hovercraft, as hovercraft werelisted separately from the other items. The presumption of consistent expression informs us that the terms'ships, boats and jet-skis' are used in the same sense in sections 1 and 2. They do not include hovercraft insection 2, so they cannot include hovercraft in section 1. Since hovercraft are not mentioned in section 1, wecan infer (as a result of our presumptions) that the author's failure to include hovercraft in that section impliesthat hovercraft are beyond the reach of that particular provision. We are said to 'infer' or 'imply' this exclusion,as there is no explicit language telling us that hovercraft are excluded from the section. Taken together, thepresumption regarding extraneous language and the presumption of consistent expression allow us to useexpressio unius with a fair amount of confidence.

Courts commonly rely on the maxim expressio unius. A good illustration is Crease v. Board ofCommissioners of Police of the Municipality of Metropolitan Toronto (1976).35 In that case, George Creaseand several colleagues had, by virtue of section 26 of the Police Regulations36 been suspended from theirduties as police officers after they had been charged with violations of the Criminal Code. Section 26provided, inter alia, that where a police officer was charged with a Criminal Code offence the chief of policecould 'suspend [the officer] from duty'. The issue in Crease was whether the provision empoweredsuspension without pay; the enactment was silent on whether suspension as a result of an officer beingcharged with a violation of the Criminal Code was to be with or without pay.

Counsel for the board of police commissioners argued that it was contrary to public policy for an officersuspended on such grounds to be in receipt of public funds while suspended. Counsel for Crease arguedthat suspension without pay appeared to violate the presumption of innocence, and that a person suspendedunder the provision would be unable to otherwise earn a living while awaiting trial. The Court in Creaseresolved the issue by applying expressio unius. While the provision under which Crease and his colleagueswere suspended did not address remuneration, a later provision of the same Regulations clearly stated thatwhere an officer was convicted of rather than simply charged with a criminal offence the officer could 'besuspended without pay'.37 Scortini J. held:

When a statute is not precise and requires interpretation by a Judge he may avail himself of several aid inaddition to common sense and his ability to read the plain words of the enactment. These aids include therules of statutory interpretation, especially the rule expressio unius est exclusio alterius, i.e., expression ofone thing is the exclusion of another. Stated another way: mention of one thing implies exclusion of another.When certain persons or things are specified in a law, contract or will, an intention to exclude all others fromits operation may be inferred.38

In Scortini J.'s opinion, the absence of the words 'without pay' from the regulation pursuant to which Creasehad been suspended was important. Those words had been included in a section dealing with officers whowere convicted of a breach of the Criminal Code. As a result, it was clear to the Court that the legislature hadturned its collective mind to the issue of whether suspensions were to be with or without pay. When asuspension was to be without pay this was stated explicitly. This implied that the word 'suspended', by itself,was not enough to permit suspensions without pay. Had the word 'suspended' included the notion of'suspended without pay', the words 'without pay' would have served no purpose in the section relating tosuspensions flowing from criminal convictions. This would violate the rule against extraneous language.Equally, the presumption of consistent expression leads to the conclusion that 'suspended' in the sectionrelating to criminal charges has the same meaning as in the section relating to convictions. Since the word'suspended' in the convictions section needed the help of the words 'without pay' in order to permit unpaidsuspensions, the absence of those words in the criminal charge section meant that unpaid suspensions werenot permitted by that provision. The legislature's decision to refer to suspensions 'without pay' in certaininstances made is possible to conclude that other references to suspensions, without the use of the words'without pay', implied that the suspended officer should be paid. Scortini J., buttressed this analysis byreferring to the relevant public policy:

Sections 26(3) and 27 of the Regulations are specific and require conviction and final disposition beforesuspension without pay, and penalty, respectively. It is logical and reasonable to conclude that the absenceof the words 'without pay' in conjunction with suspensions following suspension or charges of offencespursuant to s. 26(1) of the Regulations, reflects the presumption of innocence and the suspension is,

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therefore, a suspension of a police officer from his duties with pay.39

As a result, the Court held that officer Crease and his colleagues were entitled to be paid while suspendedfrom duty.

IV. CRITICISMS OF MAXIMS

The maxims considered in this article, like most maxims of interpretation, were born of observation of themanner in which language is used. They commonly have a logical basis and can be helpful in resolvingproblems of interpretation. Nevertheless maxims of interpretation have been the subject of substantialcriticism during the last several decades.

Most of this criticism is misdirected. Almost every argument against the use of maxims should be aimed atthe users of maxims, rather than the maxims themselves. Frequently, maxims are treated as binding rulesand reliance is placed on them without reference to their logical foundation. This trend can be corrected bythe adoption of a more principled approach to the use of maxims as tools of interpretation.

One of the most common criticisms of maxims deals with the perceived 'technical' nature of anything referredto as a 'maxim', 'rule' or 'canon' of construction. Many critics of the maxims reject so-called technical rulesand prefer to rely upon a more holistic approach to interpretation. A rallying cry of the 'holistic interpreter' hasbeen the words of Elmer Driedger:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object ofthe Act, and the intention of Parliament.40

This 'one principle' has formed the basis of countless interpretive decisions, many of which have disregardedthe maxims or other 'technical' forms of interpretation.41 Driedger's 'one principle' appears to have laid thegroundwork for an era of construction in which technical rules and Latin maxims have no place.

Standing alone, Driedger's oft-quoted 'one principle' statement appears to support a holistic form ofinterpretation that may have little use for Latin maxims. With respect, however, most commentators andjurists have (somewhat ironically) ignored the general context in which the statement was made. Driedger'stext on interpretation is replete with technical rules, Latin maxims and other approaches to interpretation, allof which form components of Driedger's 'one principle'. If one ignores the role that these technical rules playin interpreting legislation, the 'one principle' by itself is of little utility. Simply saying that a statute must beread in 'context' and in an 'ordinary sense' that coincides with Parliament's 'intention' does little to assistinterpretation of the legislative text. Indeed, without the support of its technical components, the 'oneprinciple' would have a comparable utility to a rule of ethics which declared that 'when selecting a course ofaction, always do the right thing' without providing guidance as to how the 'right thing' is to be identified. The'one principle' approach requires us to inquire into 'the intention of Parliament' and to determine how the'ordinary sense' of words can be incorporated 'harmoniously' into legislative language. How is one supposedto determine Parliament's intent? How is one supposed to determine which 'ordinary sense' of a given wordor phrase is 'harmonious' with the statute as a whole? If one reads all of Driedger's text rather thanemphasising in isolation the 'one principle' statement, one indeed finds a host of tools and approaches,including several maxims of interpretation, designed to assist in providing an answer to such questions.

A further resistance to the use of maxims commonly stems from the language of interpretation statutes.Section 12 of the Canadian federal Interpretation Act42 provides:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction andinterpretation as best ensures the attainment of its objects.

Canadian provincial interpretation Acts contain similar provisions.43 While such interpretation statutesrequire 'fair, large and liberal' interpretation, the maxims seem to call for interpretations that are technical,

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small and narrow-minded. This criticism is answered in much the same way as that which flows fromDriedger's 'one principle'. The form of interpretation required by interpretation statutes is premised upon ourability to determine the 'objects' of a legislative passage. Section 12 of the Canadian federal Act, forexample, requires our 'fair, large and liberal' interpretation to be one that 'ensures the attainment of [thestatute's] objects'. Our best evidence of the objects (or the purpose) of a statute is the language in which therelevant text is drafted. Statutory language is often exceedingly technical and difficult to construe. To rendera 'large and liberal' interpretation of statutory text we must first pay close attention to the language of thestatute and search for interpretive clues left behind by the drafter. Maxims are, not surprisingly, very usefulfor this purpose. The maxims point us toward logical inferences that can be drawn from the drafters' choiceto use a particular pattern of language. As we have seen, these inferences are often rooted in systematicobservation of the manner in which language is used. One crucial element in determining the 'object' of astatute is to decide why the drafter chose particular language. Maxims of interpretation have a dual valuehere. First, while mistakes sometimes occur, we can generally assume that particular patterns of languagewere selected by the drafter for a reason. The maxims draw our attention to the reasons for which a draftermight choose a particular form of expression, and accordingly draw us closer to an understanding ofstatutory language. Secondly, in choosing legislative language, drafters will do so with an awareness of themaxims. A basic understanding of the logic underlying a drafter's choices is the first step toward anunderstanding of the objects of a statute, and the foundation upon which a 'large and liberal' interpretationshould be based.

Perhaps the most substantial criticism of maxims is that they merely provide unduly simplistic answers to theoften complicated problems of statutory construction. Maxims seem far too formulaic and simplistic to thosewho have been schooled in complex theories of construction. Rather than relying on a simple Latin phrasethese critics would prefer a form of construction that acknowledges the uncertain nature of language and theimpossibility of unearthing the 'true meaning' of a legislative phrase. However, such criticism flows from thefallacious vision that these maxims are rules, rather than simply useful tools which are designed to unearthinterpretive possibilities that inhabit typical statutory language.

V. SOME BENEFITS OF MAXIMS

Used correctly, the maxims of construction are persuasive. They do not provide 'pat answers', or any form ofanswers for that matter; they raise questions. They force us to acknowledge the unconscious assumptionsthat are made when we interpret legislation. They draw our attention to important presumptions (such aspresumptions concerning extraneous language and consistent expression) and point to logical inferencesthat flow from those presumptions. The handy Latin phrases in which the maxims are expressed shouldnever end an interpretive inquiry, they should add depth to an interpretive inquiry that takes into account allpossible sources of legislative meaning. Maxims are neither arbitrary nor whimsical in nature. They weredeveloped over countless generations, reflecting time-honoured arguments concerning the manner in whichpeople write and interpret language.

The logic of maxims is compelling, and can serve as the cornerstone of extremely powerful argumentsconcerning the meaning of statutory language. While there is arguably no 'true meaning' of a text, themaxims help uncover competing interpretive possibilities that can be used to direct a court toward a logicalconstruction of ambiguous legislation. They force the reader of statutes to take a careful look at statutorylanguage, uncovering a host of possible meanings that reside within the text. The powerful logic underlyingthe maxims not only reveals these interpretive possibilities, but also serves as the basis for persuading anyinterpreter to adopt the most sensible of the competing interpretations. Where opposing counsel offercompeting constructions of a legislative passage, the maxims are a valuable addition to their respectivearsenals, improving the quality of their arguments and increasing the chance that the court will render aninterpretation that best serves the needs of logic and the demands of the language found in the legislation.

Obviously, the persuasive value of maxims holds only where maxims are used in the proper manner. Asobserved above, where maxims are invoked in an unprincipled manner, they are vulnerable to unprincipledrejection. It is far easier for a court to reject a simple Latin phrase than it is for the court to reject the logic that

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underlies the maxims. In ejusdem generis cases, for example, it is easier for the court to refuse to apply anunsupported Latin axiom than it is for the court to hold that a specific list of words within a legislative passageis irrelevant. A holding that ejusdem generis does not apply, however, involves an implicit holding that thegeneral words of the passage are not narrowed by the specific terms that accompany them, and that thespecific words accordingly have no role to play within the relevant statute. Counsel must ensure that courtsare aware of these logical implications by drawing the courts' attention to the rationale that underlies eachmaxim. In many cases, this logic proves to be inescapable, obliging counsel or the court to search forcompelling justifications for any deviation from the construction suggested by a maxim. To take advantage ofthe persuasive power of maxims, the lawyer proffering the relevant Latin phrase must explicitly state thepresumption and the logic that led courts to develop the relevant maxim. Used in this manner, the maximsare extremely useful as interpretive aids, serving as the basis for exceedingly potent arguments. Many casesare won or lost on the ability of counsel to use the maxims in an effective manner. A study of maximsenhances counsel's ability to launch creative arguments concerning the meaning of statutory language,allowing counsel to make persuasive arguments that might otherwise have escaped the courts' attention.

A further advantage of the maxim is as a research tool. Most maxims relate to specific patterns of languagethat give rise to interpretive problems. When faced with a specific problem of construction, it may be useful toreview earlier cases in which a similar pattern of language was considered. Finding such cases could bedifficult without the structure provided by maxims. One could construct a computerised search based inEnglish terms and boolean logic in the hope of uncovering an appropriate series of cases, but maxims are farmore useful tools. Entering 'ejusdem generis' into a typical search engine is likely to uncover a series ofcases in which a list of specific items accompanies general words. As the names of maxims are extremelyspecialised and couched in dead language, they are unlikely to yield irrelevant results. The terms 'ejusdem','expressio', 'noscitur', and 'reddendo' don't come up all that often. When they do, they inevitably relate tospecific drafting problems that are dealt with by the maxims.

Perhaps one of the greatest benefits of maxims lies not as interpretive aids or research tools, but aseducational devices. They provide stimulating intellectual puzzles that are interesting to dissect and apply,also serve useful mnemonic devices and, more importantly, encourage students to develop a healthyscepticism of language. Because the maxims can be used to uncover interpretive problems that mightotherwise escape attention, they oblige the interpreter to refuse to take language at face value. A formerstudent noted that the maxims had destroyed his ability to read any ostensibly simple passage withoutuncovering at least two conflicting interpretive possibilities.44 Maxims oblige us to address the fact that awide array of meanings resides within any writing, and that the 'true meaning' of any statute comes fromcarefully crafted arguments rather than from any pre-existing source such as legislative intent. The morearguments that one has at one's disposal, the more likely one is to develop a clear, persuasive case that aparticular meaning of an ambiguous word or phrase should be accepted. Maxims help the student tounderstand the amorphous nature of legal language, and to adopt a practice of extremely careful reading. Aknowledge of maxims improves drafting and construction, and allows the student to predict and evaluate themanner in which courts interpret language. In short, maxims force us to take language seriously.

VI. CONCLUSION

Reed Dickerson wrote:

To do his cognitive job well, a judge must be unbiased, sensitive to language usages and shared tacitassumptions, perceptive in combining relevant elements affecting meaning, capable of reasoningdeductively, and generously endowed with good judgement.45

This 'cognitive job' is more easily pursued by jurists armed with a thorough understanding of the maxims ofconstruction. Maxims help lawyers and judges become sensitive to language usages as well as the tacitassumptions that permeate legislative texts. Together with their power as research tools and educationalaids, the ability of maxims to clarify the meaning of ambiguous legislation makes it clear that maxims have arole to play in modern law. The modern jurist, equipped with the knowledge that maxims are not rigid rules

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but rather tools that raise and evaluate interpretive possibilities, will use the maxims in a way that recognisesthe uncertainty inherent in written language and the ability of maxims to deconstruct the language of astatute. When lawyers learn to rely upon the logic underlying the maxims rather than simply invoking theLatin names by which they are known, the courts well may rediscover the inherent value of maxims andcease to reject them for incoherent reasons.

1 I would like to thank Kenneth Landa, LL.B. 2000 (Osgoode Hall Law School, York University) for his helpful suggestionsand encouragement during the preparation of this paper. I would also like to thank Professor Graham Parker, whose notes onstatutory interpretation drew my attention to several of the cases referred to in this paper.

2 Tétrault-Gadoury v. Canada (Employment & Immigration Commission), [1991] 2 S.C.R. 22, 23.

3 Johnston v. Canadian Men's Trust Association. [1932] S.C.R. 219, 220.

4 Turgeon v. Dominion Bank [1930] S.C.R. 67, 70-71.

5 Francis Bennion, Statute Law (London, England: Oyez Publishing Limited, 1980), 84.

6 [1967] 2 All E.R. 576.

7 Income Tax Act, 1952.

8 [1967] 2 All E.R. 576, 578.

9 Ibid.

10 Ibid.

11 Ibid.

12 (1981) 125 D.L.R. (3d) 137.

13 R.S.C. 1970, c. C-34.

14 (1981) 125 D.L.R. (3d) 137, 142-143.

15 (1950) 338 U.S. 680.

16 at 681.

17 at 682.

18 at 682-684.

19 at 684.

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20 at 682.

21 See Grini v. Grini (1969) 5 D.L.R. (3d) 640 for an application of the 'exhausting the genus' exception to the ejusdemgeneris maxim.

22 [1990] 2 S.C.R. 1029.

23 The decision in National Bank of Greece has been almost universally criticised as an unprincipled rejection of the ejusdemgeneris rule. See, for example, Aquasource Ltd v. British Columbia (Information and Privacy Commission) [1998] B.C.J. No.1927 (Q.L.), 111 B.C.A.C. 95.

24 Reed Dickerson, The Interpretation and Application of Statutes (Boston, Massachusetts: Little, Brown and Company,1975), 233.

25 Ibid., 233.

26 [1936] 1 All E.R. 255.

27 at 257.

28 [1930] S.C.R. 67.

29 at 71.

30 19 Q.B.D. 400.

31 at 406.

32 Bennion, op-cit., n. 4, 84.

33 Ruth Sullivan, Driedger on the Construction of Statutes (Third Edition) (Toronto, Ontario: Butterworths, 1994), 168(citations omitted).

34 The situation could change, of course, if the Cadillac tyres had some unusual properties that made it important for thetestator to give them special attention. If they were worth more than the car, for example, it may have been prudent for thetestator to indicate that the specific tyres on the Cadillac at the time of her death were supposed to be passed on to thebeneficiary.

35 (1976) 66 D.L.R. (3d) 403.

36 R.R.O. 1970, Reg. 680, passed under the Police Act, R.S.O. 1970, c. 351.

37 Police Regulations, Id., s. 26(3).

38 (1976) 66 D.L.R. (3d) 403, at 406.

39 Id., 407.

40 Construction of Statutes, Second Edition, (Toronto, Ontario: Butterworths, 1983), 87.

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41 See, for example, R. v. McIntosh [1995] 1 S.C.R. 686.

42 R.S.C. 1985, c. I-21.

43 See, for example, the Interpretation Act of Ontario, R.S.O. 1990, s.10.

44 I would like to thank Stuart Wright, LL.B. 2000 (Osgoode Hall Law School, York University) for this observation.

45 Dickerson, 236.

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