In Defence of Maxims

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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 MaximsR. N. Graham1 Assistant Professor, Faculty of Law, University of New Brunswick. Oxford University Press 2001 STATUTES It is unbecoming for young men to utter maxims. --Aristotle, 384-322 B.C.

I. INTRODUCTIONMaxims have fallen victim to a lot of bad press. While ancient courts regarded maxims as shining beacons of clarity in an otherwise murky legal world, the maxims of statutory construction appear to have very little appeal for modern jurists. Cases that would once have been addressed through the invocation of pithy Latin maxims now fall to be decided through appeals to public policy or equitable concerns. The fabled canons of construction, useful guidelines that once directed courts toward a statute's meaning, now lie impotent and forgotten, visited only by eccentric legal scholars. When maxims are invoked by modern counsel, they are met with scepticism or even scorn, often eliciting stern judicial warnings that maxims must be approached 'with caution'2 lest they lead a hapless jurist to 'over-ride' the lawgiver's intention.3 The lowly maxim, once regarded as a valued tool of legal interpretation, has been declared a 'dangerous master' that is perhaps best left alone.4 Despite all of this bad publicity, the maxims of statutory interpretation continue to serve as valuable tools for those interested in legislative language, and they can form an important component of a modern approach to statutory language. The purpose of this article is to extol the many virtues of the maxims and to encourage their revival in modern jurisprudence. To that end, this article has three elements: (i) a discussion of the nature of the maxims together with descriptions of four specific maxims that may serve as useful examples; (ii) a consideration of the criticisms that have plagued the maxims, and (iii) an examination of the role that maxims can and should play in modern law.

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

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all cases. While maxims often describe the result that ought to be reached when particular problems of interpretation arise, they differ from true grammatical rules in that the court is free to ignore the maxims whenever it deems reliance on a maxim inappropriate. Rather than binding a court and forcing it to reach a pre-ordained construction of a legislative passage, the maxims simply describe what drafters probably meant through the use of specific patterns of language. For this reason, it is best to regard the maxims as sources of argument rather than as binding rules that force the court to render particular decisions. Used correctly, the maxims can provide creative counsel with a series of highly persuasive arguments that are useful in cases involving legislation. Each of the maxims discussed here is linked to a particular pattern of language that typically gives rise to the need for judicial construction. Where these patterns of language occur, the maxims lead directly to a set of logical inferences that explain why the relevant pattern of language typically appears in legislation. The maxims are tied directly to the logic underlying linguistic patterns. Maxims draws the courts' attention to this logic, allowing lawyers and judges to make extremely useful arguments and predictions concerning the meaning that may be attributed to legislative texts. The best way to understand the maxims is through the use of examples; the next section accordingly presents brief discussions of four of the more useful maxims of construction. They represent a small fraction of such maxims, but a study of their purpose and rationale will assist an understanding of the general nature of maxims.

III. SOME MAXIMS(A) NOSCITUR A SOCIISNoscitur a sociis is the most basic of the maxims of construction and the source from which several other maxims are derived. Translated literally, the phrase 'noscitur a sociis' means 'know a thing by its associates'. This maxim can be used in almost any problem of construction, for it applies wherever a statutory provision contains a word or phrase that is capable of bearing more than one meaning. The maxim works by comparing the contentious word or phrase with other words or phrases that accompany the language being interpreted. So, standing alone, the word 'disability' is ambiguous. It may refer to (a) medical disabilities, (b) legal disabilities, or (c) any factor that renders the subject 'less able' to perform a particular task. If the word 'disability' is associated with the words 'illness' and 'death', however, as in the phrase 'the insurer will pay the amount of $10 million in the event of the insured's illness, disability or death', we may be able to rule out some of the meanings that 'disability' carries standing alone. The association of the word 'disability' with the words 'death' and 'illness' makes us relatively confident that the disabilities with which we are concerned are medical in nature. The word 'disability' is coloured by its association with 'death' and 'illness'. This form of interpretation, which is unconsciously performed by most competent users of the English language, is often referred to as 'contextual construction', for it requires an examination of the context in which an ambiguous word or phrase is found before deciding on its interpretation. Francis Bennion describes the operation of the maxim as follows: Where words or phrases capable of different meanings are associated, they take colour from each other and this may exclude meanings which would be possible if the words or phrases stood alone. Thus, where a power was given to 'break up the soil and pavement of roads, highways, footways, commons, streets, lanes, alleys, passages and public places' the court held 'construing the word 'footway' from the company in which it is found' that the power was limited to paved footways in towns and did not extend to a field footpath (Scales v. Pickering (1828) 4 Bing 448).5 In Bennion's example, the word 'footway' is understood by reference to the reasoning embodied in meaning of its companion words and phrases. As highways, streets and the other listed items tend to refer to developed areas, 'footway' was understood in a similar sense, embracing paved footways but excluding undeveloped trails. The meaning of the term 'footway' was 'known' by its associates.

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Bourne v. Norwich Crematorium Ltd. (1967)6 provided a classic use of the noscitur a sociis. Bourne involved the taxation of a crematorium company under a UK Income Tax Act.7 The taxpayer, Norwich Crematorium Ltd., sought to deduct an annual amount in respect of expenditures it had incurred in the construction of a furnace that was used in its operations. The provision upon which the taxpayer relied for the deduction permitted tax relief in respect of 'an industrial building or structure occupied for the purposes of a trade'. The tax authorities had disallowed the taxpayer's deduction, suggesting that the facilities used by a crematorium could not be considered 'industrial' for the purposes of the relevant legislation. The taxpayer appealed, asking the Court to determine whether or not a crematorium's furnace could be considered an 'industrial building or structure' for the purposes of an income tax statute. The Court addressed this question through the use of contextual interpretation. 'Industrial building or structure' was defined in the relevant statute as 'a building or structure in use ... for the purposes of a trade which consists in the manufacture of goods or materials or the subjection of goods or materials to any process'. According to the taxpayer in Bourne, the cremation of human remains was 'a process' to which 'goods or materials' (namely, human bodies) were subjected. If the taxpayer was correct, the structure in which this process took place, the furnace of the Norwich Crematorium, would be an 'industrial structure' for the purposes of the Act, and the taxpayer would be entitled to the deductions claimed. The characterisation of human remains as 'goods or materials' was one that caught the Court by surprise. According to Stamp J.: I would say at once that my mind recoils as much by the description of the bodies of the dead as 'goods or materials' as it does from the idea that what is done in that crematorium can be described as 'the subjection of' the human corpse to a 'process'. Nevertheless the taxpayer so contends, and I must examine that contention'.8 The Court went on to describe the taxpayer's argument as follows: The argument, of course, goes on inevitably to this: that just as the phrase 'goods and materials' is wide enough to embrace, and does embrace, all things animate and inanimate, and so includes the dead human body, so the other words to which a meaning must be given, namely 'subjection' and 'process', are words of the widest import.9 From a purely literal perspective, the taxpayer's contention made a certain amount of sense. The human body is composed of 'materials'. It is 'material' in the sense that it has substance and forms a part of the material world. The word 'materials', however, did not appear in isolation in the relevant legislation. It was associated with the word 'goods' and a host of other words that imported the notion of goods intended for sale and materials that were used in manufacturing. Applying noscitur a sociis, one could interpret the word 'materials' by reference to the words and phrases with which it was associated, giving the word 'materials' a narrower definition that included only materials that were used in manufacturing. In Stamp J.'s opinion: English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. That one must construe a word or phrase in a section of an Act of Parliament with all the assistance one can from decided cases and, if one will, from the dictionary, is not in doubt; but having obtained all that assistance, one must not at the end of the day distort that which has to be construed and give it a meaning which in its context one does not think it can possibly bear.10 Given the context in which the word 'materials' was found, Stamp J. held that the word encompassed only materials that were used in a manufacturing process, not extending to human corpses destined for a crematorium. As a result, Stamp J. held that 'the consumption by fire of the mortal remains of homo sapiens is not the subjection of goods or materials to a process within the definition of 'industrial building or structure' contained in s. 271(1)(c) of the Income Tax Act'.11 The taxpayer's deduction was accordingly disallowed. The mode of reasoning found in Bourne lies at the heart of noscitur a sociis. Like most courts that use this

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form of reasoning, however, the Court in Bourne refrained from referring to this maxim by its traditional Latin name. However, in the more recent case of R v. Goulis,12 the Ontario Court of Appeal invoked the maxim by name, demonstrating that there is still some life remaining in this handy Latin phrase. In Goulis, the accused had been charged with hiding over 1000 pairs of shoes. Mr. Goulis was a bankrupt who was required, under the relevant bankruptcy legislation, to disclose all of the assets that he owned. He failed to disclose over 1000 pairs of shoes during his bankruptcy proceedings, and was accordingly charged with an offence under section 350 of the Criminal Code,13 which provided that every one who 'removes, conceals or disposes of any of his property [with intent to defraud his creditors] is guilty of an indictable offence'. The question before the Court was whether Mr Goulis had removed, concealed or disposed of his secret hoard of shoes. The difficulty in Goulis was that the accused had taken no positive action to prevent the discovery of his shoes. He had not 'removed' them from any location, nor had he 'disposed' of them by selling them or throwing them away. As section 350 of the Code required proof that the accused had either removed, concealed or disposed of his assets, the Crown sought to prove that Goulis had 'concealed' his shoes within the meaning of the legislation. The word 'conceal' is ambiguous in that it can refer to a positive physical act or, alternatively, to a simple refusal to disclose. If the word 'conceal' in section 350 of the Criminal Code attracted the first meaning, Mr. Goulis had not committed the offence; if it attracted the second meaning, he had. Writing for the unanimous Court of Appeal, Martin J. A. interpreted the relevant language by invoking noscitur a sociis. His Lordship provided the following admirable summary of the maxim, together with his reasons for acquitting the accused: It is an ancient rule of statutory construction (commonly expressed by the Latin maxim, noscitur a sociis) that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it ... When two or more words which are susceptible of analogous meanings are coupled together they are understood to be used in their cognate sense. They take their colour from each other ... In this case, the words which lend colour to the word 'conceals' are, first, the word 'removes', which clearly refers to a physical removal of property, and second, the words 'disposes of', which ... strongly suggests the kind of disposition which results from a positive act taken by a person to physically part with his property. In my view the association of 'conceals' with the words 'removes' or 'disposes of' in s. 350(a)(ii) shows that the word 'conceals' is there used by Parliament in a sense which contemplates a positive act of concealment.14 Because the word 'conceals' was capable of bearing more than one meaning, the meaning of that word in the relevant statutory provision was selected by reference to the other w...

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