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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 Maxims
R. N. Graham1

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


It is unbecoming for young men to utter maxims.

--Aristotle, 384-322 B.C.


Maxims 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.


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

standing alone. highways. the maxims can provide creative counsel with a series of highly persuasive arguments that are useful in cases involving legislation. The maxims are tied directly to the logic underlying linguistic patterns. which is unconsciously performed by most competent users of the English language. streets and the other listed items tend to refer to developed areas. we may be able to rule out some of the meanings that 'disability' carries standing alone. For this reason. As highways. The meaning of the term 'footway' was 'known' by its associates. alleys. the maxims lead directly to a set of logical inferences that explain why the relevant pattern of language typically appears in legislation. lanes. however. disability or death'. Translated literally. for it applies wherever a statutory provision contains a word or phrase that is capable of bearing more than one meaning. They represent a small fraction of such maxims. Used correctly. Where these patterns of language occur. This maxim can be used in almost any problem of construction. (b) legal disabilities. Rather than binding a court and forcing it to reach a pre-ordained construction of a legislative passage. streets. it is best to regard the maxims as sources of argument rather than as binding rules that force the court to render particular decisions. . for it requires an examination of the context in which an ambiguous word or phrase is found before deciding on its interpretation. Page 2 all cases. the word 'disability' is ambiguous. The best way to understand the maxims is through the use of examples. the phrase 'noscitur a sociis' means 'know a thing by its associates'. as in the phrase 'the insurer will pay the amount of $10 million in the event of the insured's illness. they take colour from each other and this may exclude meanings which would be possible if the words or phrases stood alone. allowing lawyers and judges to make extremely useful arguments and predictions concerning the meaning that may be attributed to legislative texts. While maxims often describe the result that ought to be reached when particular problems of interpretation arise. 'footway' was understood in a similar sense. The word 'disability' is coloured by its association with 'death' and 'illness'. 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. This form of interpretation. they differ from true grammatical rules in that the court is free to ignore the maxims whenever it deems reliance on a maxim inappropriate. footways. SOME MAXIMS (A) NOSCITUR A SOCIIS Noscitur a sociis is the most basic of the maxims of construction and the source from which several other maxims are derived. Pickering (1828) 4 Bing 448). the next section accordingly presents brief discussions of four of the more useful maxims of construction.5 In Bennion's example. It may refer to (a) medical disabilities. where a power was given to 'break up the soil and pavement of roads. Thus. Maxims draws the courts' attention to this logic. If the word 'disability' is associated with the words 'illness' and 'death'. commons. Francis Bennion describes the operation of the maxim as follows: Where words or phrases capable of different meanings are associated. is often referred to as 'contextual construction'. III. but a study of their purpose and rationale will assist an understanding of the general nature of maxims. 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. So. The maxim works by comparing the contentious word or phrase with other words or phrases that accompany the language being interpreted. or (c) any factor that renders the subject 'less able' to perform a particular task. the maxims simply describe what drafters probably meant through the use of specific patterns of language. the word 'footway' is understood by reference to the reasoning embodied in meaning of its companion words and phrases. embracing paved footways but excluding undeveloped trails. Each of the maxims discussed here is linked to a particular pattern of language that typically gives rise to the need for judicial construction.

and does embrace. The taxpayer appealed. 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. Norwich Crematorium Ltd. so the other words to which a meaning must be given. Stamp J. 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. The human body is composed of 'materials'.. not extending to human corpses destined for a crematorium.10 Given the context in which the word 'materials' was found. held that the word encompassed only materials that were used in a manufacturing process. Stamp J.9 From a purely literal perspective.'s opinion: English words derive colour from those which surround them. the taxpayer's contention made a certain amount of sense.. defined separately by reference to the dictionary or decided cases. 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 tax authorities had disallowed the taxpayer's deduction. and I must examine that contention'. suggesting that the facilities used by a crematorium could not be considered 'industrial' for the purposes of the relevant legislation. the structure in which this process took place. however. As a result. Nevertheless the taxpayer so contends. and then put back again into the sentence with the meaning which you have assigned to them as separate words. is not in doubt. If the taxpayer was correct. would be an 'industrial structure' for the purposes of the Act. 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. Like most courts that use this .8 The Court went on to describe the taxpayer's argument as follows: The argument. all things animate and inanimate. and the taxpayer would be entitled to the deductions claimed. of course. It is 'material' in the sense that it has substance and forms a part of the material world. In Stamp J. Norwich Crematorium Ltd. the cremation of human remains was 'a process' to which 'goods or materials' (namely.11 The taxpayer's deduction was accordingly disallowed. did not appear in isolation in the relevant legislation. Applying noscitur a sociis.. if one will. 271(1)(c) of the Income Tax Act'. 'Industrial building or structure' was defined in the relevant statute as 'a building or structure in use . The mode of reasoning found in Bourne lies at the heart of noscitur a sociis. The word 'materials'. 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. namely 'subjection' and 'process'. 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.7 The taxpayer.: 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'. 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. Page 3 Bourne v. Bourne involved the taxation of a crematorium company under a UK Income Tax Act. from the dictionary. and so includes the dead human body. The Court addressed this question through the use of contextual interpretation. but having obtained all that assistance. Sentences are not mere collections of words to be taken out of the sentence. goes on inevitably to this: that just as the phrase 'goods and materials' is wide enough to embrace. The characterisation of human remains as 'goods or materials' was one that caught the Court by surprise. giving the word 'materials' a narrower definition that included only materials that were used in manufacturing. 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'. According to the taxpayer in Bourne. the furnace of the Norwich Crematorium. 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'. are words of the widest import. According to Stamp J. (1967)6 provided a classic use of the noscitur a sociis. one could interpret the word 'materials' by reference to the words and phrases with which it was associated. human bodies) were subjected.

demonstrating that there is still some life remaining in this handy Latin phrase.. A. and second.. His Lordship provided the following admirable summary of the maxim. as well as general words that embrace those specific items ('other animals'). which clearly refers to a physical removal of property. The word 'conceal' is ambiguous in that it can refer to a positive physical act or. In the lions. 350(a)(ii) shows that the word 'conceals' is there used by Parliament in a sense which contemplates a positive act of concealment. As section 350 of the Code required proof that the accused had either removed. alternatively. Martin J. interpreted the relevant language by invoking noscitur a sociis. In this case. the words 'disposes of'. in the more recent case of R v. If the word 'conceal' in section 350 of the Criminal Code attracted the first meaning.. As a result. Since 'removes' and 'disposes of' both referred to positive actions. if it attracted the second meaning. When two or more words which are susceptible of analogous meanings are coupled together they are understood to be used in their cognate sense.14 Because the word 'conceals' was capable of bearing more than one meaning. noscitur a sociis) that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it . together with his reasons for acquitting the accused: It is an ancient rule of statutory construction (commonly expressed by the Latin maxim. The logical foundations of noscitur a sociis are relatively uncontroversial. As Mr. noscitur a sociis is easy to understand and equally easy to defend. the Crown sought to prove that Goulis had 'concealed' his shoes within the meaning of the legislation. concealed or disposed of his secret hoard of shoes. concealed or disposed of his assets. strongly suggests the kind of disposition which results from a positive act taken by a person to physically part with his property. the Court in Bourne refrained from referring to this maxim by its traditional Latin name.12 the Ontario Court of Appeal invoked the maxim by name. It is also the source of several other maxims of statutory construction. 'ejusdem generis' means 'of the same genus' or 'of the same class'. tigers and bears passage. The question before the Court was whether Mr Goulis had removed. He had not 'removed' them from any location. first.. In Goulis. However. including 'ejusdem generis'. Mr. nor had he 'disposed' of them by selling them or throwing them away. and communication would be virtually impossible. Goulis had taken no positive action to conceal his hoard of shoes. Contextual interpretation comes naturally to most readers.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'. to a simple refusal to disclose. the word 'removes'. sentences would become mere collections of unrelated. the general words may be read down to include only those items that are of the same class or genus as the specifically mentioned items. Goulis had not committed the offence. to disclose all of the assets that he owned. Mr. They take their colour from each other . (B) EJUSDEM GENERIS Translated literally. the words which lend colour to the word 'conceals' are. he had. the accused had been charged with hiding over 1000 pairs of shoes. as it contains a list of specific items (namely. This passage could attract the application of ejusdem generis. Goulis was a bankrupt who was required. and was accordingly charged with an offence under section 350 of the Criminal Code. Consider the phrase 'lions. which . we could safely . Writing for the unanimous Court of Appeal. under the relevant bankruptcy legislation. In my view the association of 'conceals' with the words 'removes' or 'disposes of' in s. for example. Without the aid of context. Where the maxim applies. Goulis. however. this maxim is used wherever a provision contains a list of specific items accompanied by general words that embrace those specific items.. Page 4 form of reasoning. bears and other animals'.. tigers and bears). the word 'conceals' was understood in a similar sense. He failed to disclose over 1000 pairs of shoes during his bankruptcy proceedings. he was acquitted of the offence with which he was charged. ambiguous words. Generally speaking. tigers. The difficulty in Goulis was that the accused had taken no positive action to prevent the discovery of his shoes. the meaning of that word in the relevant statutory provision was selected by reference to the other words with which it was found. lions. Only 'positive acts' of concealment were captured by the relevant language.

tigers. This raises a critical problem. tigers and bears. tigers and bears' example noted above. ejusdem generis is simply a specific application of the reasoning underlying noscitur a sociis. but to narrow them in such a way as to ensure that the general words capture only items that are of the same class or genus as the specifically listed items. what is their role in the relevant text? The most logical answer is that they are examples of the kind (or genus) of animals captured by the general words at the end of the passage. bears and other animals must be housed in paddocks enclosing no less than one hectare per animal'. Had the author intended to capture all members of the animal kingdom. One of the fundamental presumptions of statutory construction is that there are no extraneous words in legislation. In this example. ejusdem generis simply tells us not to interpret 'other animals' in its broadest possible sense. The usefulness of this maxim lies in its power . As a result. cuttlefish and perhaps even imaginary creatures would be included. Single-celled organisms. would have embraced every member of the animal kingdom: paramecia. he or she could have simply used the word 'animals' without providing us with a list. 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. The maxim provides us with very little guidance as to the nature of the class that it defines. If the author of that phrase had intended the words 'other animals' to be read in their broadest possible sense. all animals found at the Toronto Zoo. house-cats can probably be excluded. As noted above. 'tigers' and 'bears'. 'tigers' and 'bears' of any independent purpose. humans. But which characteristics are important? The class may include all mammals. or all animals mentioned in the Wizard of Oz. all carnivores. construed literally. could probably be excluded through the use of the maxim without much controversy. The class could be made up of any group that shares the characteristics of lions. tigers and bears) presumably for the purpose of guiding us to the proper construction of the general phrase. For similar reasons. once again. Although a house-cat does bear certain things in common with the animals that are mentioned in the passage (especially lions and tigers). It simply would not make any sense to enclose an amoeba in a one-hectare paddock. ejusdem generis is a special form of noscitur a sociis. however. bears and other animals'. It is the ejusdem generis maxim (or the logical inference that ejusdem generis represents) that instructs us not to give the general words their widest possible meaning. tigers. lions. The general words are 'known' by reference to their more specific associates. No one knows. the full extent of the class to be defined by the phrase 'other animals'. Ejusdem generis instructs us to use the specifically listed items to narrow the class of 'other animals' to include only animals that are of the same class or genus as lions. Consider. 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 hectare per animal'. The author has provided us with a clue. This guidance comes from the context of the legislative passage rather than from ejusdem generis. it would be silly to require that all house-cats be kept in enormous paddocks. Like all maxims. 'tigers' and 'bears' are not merely excess verbiage. Similarly. The logical inference at the heart of ejusdem generis makes sense. Page 5 read-down the phrase 'other animals' to exclude any animals that were essentially different from lions. Noscitur a sociis instructs the reader to 'know a thing by its associates'--to give a word or phrase a meaning that agrees with the meaning of other words with which it is found. there would have been no reason to list the words 'lions'. the example described above: 'Lions. that the phrase 'lions. As noted above. suggesting that the general words 'other animals' are not to be read so broadly: the author has given us a list of specific examples (namely. the maxim reminds us that the phrase 'other animals' must not be interpreted in its broadest possible sense. bears and other animals'. all potentially dangerous mammals. we can safely exclude amoeba from the phrase 'other animals' in this passage. such as paramecia or amoeba. Once again. Consider an expanded version of the 'lions. tigers and bears. not only because of ejusdem generis. simply from the application of this maxim. If the words 'lions'. tigers and bears. but to look for commonalities in the specifically listed items with a view to constructing a class that narrows the general terms. tigers. as could human beings and imaginary animals such as unicorns or dragons. however. Lions. A legislative passage might provide that 'Lions. for this would deprive the words 'lions'. The most important of these lies in the fact that ejusdem generis can rarely (or perhaps never) indicate the precise boundaries of a genus that it creates. The literal meaning of the phrase 'other animals' is broad enough to capture any animal. but also because of the context that the remainder of our fictitious statute provides. ejusdem generis has its limits. It is important to realise. ejusdem generis suggests that general words must be understood by reference to the specific terms with which they are associated.

It merely suggests that. a majority of the Court (per Minton J. Alpers was a textbook ejusdem generis. Page 6 to remind us of the interpretive possibilities that exist within a certain pattern of language. Since the words 'book. Courts commonly invoke ejusdem generis. The Court of Appeals held phonograph records without the statute. however. Overturning the Court of Appeals' decision. paper.15 In that case. The 'indecent character' of that matter was admitted by Mr. since phonograph records are comprehended by the sense of hearing. but it did not impress the U. pamphlet. pamphlet. the Court ought to have provided a more compelling reason for ignoring ejusdem generis than an unsupported reference to Congressional intent. or other matter of indecent character' was effectively deleted from the statute. picture. Minton J. A typical example is the decision of the U. lascivious and filthy language and obscene. motion-picture film. and that the purpose was to narrow the class of 'indecent matter' to indecent matter perceived by the sense of sight. print. print. nor do we think that Congress intended that only visual obscene matter was within the prohibition of the statute. have upheld the acquittal of Mr. writing. writing. Alpers on the grounds that the prohibition found in the statute did not extend to include . pamphlet.S. motion-picture film. Supreme Court. He would. motion-picture film. so interpreted. But it is to be resorted to not to obscure and defeat the intent and purpose of Congress. paper. Alpers. However. print.. Alpers had been charged under the relevant legislation after shipping phonograph records across state lines.) held: When properly applied... Those records were 'impressed with recordings of obscene. the court construed the general words 'other matter of indecent character' to be limited to matter of the same genus.16 Alpers conceded that the records were indecent. Applying the presumption that legislative drafters write with precision and refrain from using extraneous language. with respect. Based on Alpers' concession that the records were indecent. The effect of the Court's decision to ignore ejusdem generis was to render the statute's list of specific items purely extraneous: the phrase 'book. the Court was asked to interpret legislation that prohibited the interstate shipment of any obscene 'book. did not specifically rely on ejusdem generis. the Court of Appeals had relied on ejusdem generis for the purpose of reading-down the phrase 'other matter of indecent character' such that the phrase encompassed only items that were of the same class or genus as the items that were listed in the provision. the Court provided no basis for its view of Congress' intent with respect to the meaning of the statute. or other matter of indecent character'. the rule of ejusdem generis is a useful canon of construction. Mr. picture. letter. lewd. paper. This does not imply that the Court's decision was wrong. Alpers. the Court of Appeals determined that the phrase 'other matter of indecent character' could not be given its broadest possible meaning. Supreme Court in United States v. motion-picture film. Dissenting in Alpers. The only question that remained was whether the records constituted a 'book. letter. If it were given its broadest possible meaning. No evidence of intent was provided apart from the language of the relevant provision. pamphlet.17 From an interpretive perspective.. picture.S. lewd. 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. the records clearly amounted to 'matter of indecent character' if that phrase was given a literal construction. writing. picture. specifying the items in the section would have served no purpose: all indecent matter would be caught without the need for a list of examples.18 Of course. The Court of Appeals' decision in United States v. print' appearing in the statute refer to objects comprehensible by sight only. paper. letter. lascivious and filthy stories'. the appeal court's application of ejusdem generis made a great deal of sense. The records were clearly 'matter'. letter. calling our attention to important interpretive clues that have been left behind by statutory drafters. or other matter of indecent character' for the purposes of the relevant legislation. writing. but to elucidate its words and effectuate its intent . We find nothing in the statute or its history to indicate that Congress intended to limit the applicable portion of the statute to such indecent matter as is comprehended through the sense of sight . The Court of Appeals reasoned that the listed items had been included for some purpose. Black J. leaving only the general phrase 'any matter of indecent character'.

the court errs on the side of over-inclusiveness. all forms of natural person are already accounted for without the need for the phrase 'other persons' at the end of the passage. Ejusdem generis seems to suggest that the phrase 'other persons' was intended to refer only to natural persons. this makes no sense. subject to countless technical qualifications and exceptions. excluding corporations or other non-human entities that may be considered 'persons' by the law. The court merely notes that the maxim is sometimes useful. as the genus of natural persons is suggested by the specifically listed types. In order to do so. tigers and bears' (in which the general words precede the specific list) should attract the application of ejusdem generis no less than the phrase 'lions. and do not readily lend themselves to the creation of a single class or genus. This problem arises due to the failure of counsel to refer to the rationale of ejusdem generis (or any maxim.19 Since Alpers' records were not clearly caught by the legislation.21 Such considerations may explain judicial reluctance to invoke ejusdem generis. adults and other persons'. the maxim cannot apply in cases where the specifically listed items are incapable of forming a recognisable genus. Thus. statutory drafters are presumed not to include extraneous language in their drafting. both of which are specifically referred to in section. or the words 'other persons' are extraneous. herring and other items shall be subject to this Act'. Obviously. and ejusdem generis will not apply where its effect would be to rob the general terms of their meaning. Black J. Minors and adults. Thus. they would have to have given a narrow reading to the phrase 'other matter' in the relevant legislation. bears or other animals' (in which the general words come last). but that resort to the maxim in the case at hand would 'defeat the intent and purpose' of the legislative author. Similarly. Minors (which represent all natural persons under the age of majority) and adults (which include all natural persons over the age of majority) are the only kinds of 'natural persons' that exist. Black J. It is seen as exceedingly technical in nature. 'other persons' would be interpreted in a broader sense.20 In most of these cases. but (for unstated reasons) the application of the maxim in the case at hand would be unwise. Page 7 phonograph records. judges tend to claim that the maxim is often 'useful'. (together with Frankfurter and Jackson JJ. tigers. With respect. Thus.'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 that is prohibited'. giving the broad words their largest possible scope. The phrase 'animals such as lions. the Supreme Court of Canada refused to apply ejusdem generis on the grounds that the general words in the relevant section preceded. This second exception. In cases such as this.23 The rationale that underlies ejusdem generis applies with equal force regardless of the order in which the general and specific words are . The mechanism that would have permitted them to do so was the reasoning underlying ejusdem generis. This leads to a dilemma: either the words 'minors and adults' are extraneous. adults and other persons'. The decision of the majority in Alpers is typical of the manner in which courts deal with inconvenient maxims. in the example 'minors. the list of specific items. Katsikonouris. This gives rise to an objection: if the phrase 'other persons' is limited to natural persons. rather than followed. one would be tempted to narrow the phrase 'other persons' to include only natural persons. could be seen in a passage that referred to 'minors. it seems perfectly reasonable to reject the rule for arbitrary reasons. Applying ejusdem generis. of course. for example. the court gives no support for its assertion that the author's intent or purpose was something different than the meaning that is supported by the maxim. in the example 'apples. micro-processors. ejusdem generis cannot apply in those rare cases in which the listed items exhaust the entire genus that they seem to have created. Perhaps the judiciary's scepticism concerning ejusdem generis lies in the fact that the maxim is subject to a number of exceptions. are types of natural person. As we have seen. In National Bank of Greece. As a result. Where a maxim leads a court toward a decision of which the court does not approve.22 learned judges rely on unsupportable reasons for rejecting a maxim. companies. adding nothing to a section that already catches every kind of natural person through its specific application to minors and adults. the words 'other persons' in this passage are extraneous. in cases such as National Bank of Greece v. known colloquially as 'exhausting the genus'. the phrase 'other items' will probably not be read-down to conform to a genus implied by the listed items: the listed items seem to be unrelated. and the words 'other persons' should be interpreted in their broadest possible sense. for that matter) when presenting the relevant maxim to the court. Since both minors and adults are already listed in the section. senior citizens.) would have upheld the acquittal. to include. the phrase 'other persons' would not be restricted by reference to a genus that is created by minors and adults: the only genus that is suggested by those terms is exhausted by the listed items. trains. If a maxim is seen as an arbitrary rule with little or not logical basis.

A member of a group that is over-represented in the judiciary. Thus. ejusdem generis has enjoyed a reasonably successful career and continues to be relied on as a maxim of interpretation. context permitting. Page 8 arranged. and may rely on those perceptions when constructing a genus for the purpose of applying ejusdem generis.25 Thus. Because of the difficulty of defining any genus through the ejusdem generis maxim and the wide array of classes that may be constructed based on any series of specific items. reddendo suggests that A should be matched . however. if the reader is a member of a culture in which pigs. and the second case mentioned (namely. chickens. The function of reddendo is difficult to describe with any degree of felicity. There is something of the interpreter in every act of interpretation. How would ejusdem generis cause the phrase 'other animals' to be narrowed in this passage? One might contend that pigs. much like the modern hearsay rule. which makes intuitive sense given the etymology of the terms 'fraternities' and 'sororities'. Consider the phrase 'pigs. who describes the maxim as follows: . reddendo singula singulis in its legal form . Another animal-based example serves to demonstrate this point. Despite its many difficulties. On the one hand. Consider the phrase 'Men and women may become members of fraternities and sororities'. maxims should be governed by a 'principled approach' that takes into account the logical basis for each maxim. The genus lies in the eyes of the beholder. This latter construction. ejusdem generis is particularly vulnerable to the 'subjective' nature of interpretation. (C) REDDENDO SINGULA SINGULIS Literally translated. recognises that. Instead. Any perception of commonality between specifically listed items will depend on the life experience of the interpreter. The case demonstrates the danger of referring to a maxim without at the same time describing its rationale. Reddendo suggests that 'men' should be matched with 'fraternities' and 'women' should be matched with 'sororities'. is arrived at through the application of reddendo. This is not a criticism of middle-aged white males.. Other cultures might regard one or more of these creatures as forbidden sources of food. it could mean that men may become members of fraternities (but not sororities) and women may become members of sororities (but not fraternities). The function of reddendo can best be explained through the use of examples. matching the first case mentioned (namely. and may serve to surreptitiously re-enforce cultural 'norms' that are imposed by a dominant social group. perhaps it means that men may join both fraternities and sororities and that women may join fraternities and sororities as well. an interpreter inevitably draws upon his or her own life experiences as a basis for understanding the relevant words. Perhaps the most important of these criticisms flows from the highly subjective manner in which ejusdem generis can sometimes be applied. Maxims should not be referred to as a collection of technical rules that are subject to a host of specific exceptions. On the other hand. such as middle-aged white males. a luxury not enjoyed by the maxim 'reddendo singula singulis'. not because of the meaning of those words. This genus might only come to mind. but an issue of human nature. but merely because of their placement within the relevant passage.. and that the phrase 'other animals' should be narrowed accordingly. This rather cryptic translation does little to explain the workings of the maxim. where a text exhibits the pattern 'A and B are Y and Z'. as spirit guides... cows and other animals'. and a court's own cultural bias may shine through where ejusdem generis is applied. One of the best attempts was made by Reed Dickerson. Beyond the many exceptions and technicalities that have eaten away at ejusdem generis. 'reddendo singula singulis' means 'referring each to each'. judges) with the second retirement age (75). the word 'respectively' is effectively tacked on to the end of the passage by reddendo. as objects of experimentation or as creatures that have been enslaved by human oppressors. Each grammatical subject is 'referred' to its corresponding object. chickens and cows are all animals consumed by humans.24 This passage can be construed in several ways. chickens and cows are consumed as food. may have a skewed perception of the commonalities found within a list of specific items. police officers) with the first retirement age (65). as sacred animals. When construing a written passage. the reader may properly infer that the author has intended a distributive relationship between two juxtaposed series of ideas. the maxim is also subject to a number of criticisms. in the phrase 'police officers and judges must retire at the ages of 65 and 75'.

Does the phrase 'weighing more than 150 lbs' refer only to women. but a thorough study of the maxim may lead us to understand the nature of distributive relationships in legislative drafting. without the option of a fine. the difficulty in Bishop v. and thus enables a more focused inquiry into the meaning of such a text. without the option of a fine. The logic of reddendo lies in the simple observation that people sometimes do combine multiple series of ideas in a distributive manner. The maxim may also draw attention to several common problems of construction. or it may refer to 'ethics' as well. Bishop v. in that the word 'professional' may simply modify 'conduct'. but it often calls attention to some rather important questions. Page 9 with Y and B should be matched with Z. The role of context is exceedingly important where reddendo singula singulis is concerned. Although the application or non-application of reddendo depends on the context of a provision rather than a simple pattern of language.. It may also serve to remind the drafter to avoid the use of language that might lead to reddendo problems. Like true reddendo problems. has within five years before the day of election or since his election been convicted in the United Kingdom . reddendo may never lead to a clear answer. strictly applied. A failure to understand reddendo may leave interpretive possibilities undiscovered. provides us with very few clues concerning the appropriateness of a reddendo-based construction. While the logic of the drafting practice itself may be elusive. Recall that the relevant legislation contained . the defendant was disqualified from being elected to any local authority until five years had elapsed since the date of her conviction. Obviously. a provision stating that 'Infants and pets must be kept in strollers or on leashes' should be read in the manner suggested by reddendo (although a contrary construction is more amusing). she was subsequently elected as a councillor on November 1st. or does this qualification apply to men as well? Similarly. alerting us to the ambiguities inherent in passages that exhibit this typical drafting problem.. Indeed. it is certainly logical to make oneself aware of this practice when interpreting legislation. 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 . the phrase 'professional conduct and ethics' is ambiguous. of course. for example. Deakin arose from a limitation period in the relevant legislation which created a six-month limitation period for challenging elections. While reddendo. of any offence and ordered to be imprisoned for a period of not less than three months. our ideas concerning gender equality provide us with evidence that the construction suggested by reddendo should be steadfastly avoided in this case. The phrase 'men and women may become doctors and nurses'. is probably not an appropriate case for reddendo. The defendant had been convicted of perjury on July 6th. Passages of this nature do not truly call for the application of reddendo. a study of reddendo often alerts us to other 'quasi-reddendo' problems of construction. (emphasis added) On the basis of this provision. The plaintiffs consequently sought to challenge the defendant's right to continue holding office as a councillor. those in which no useful context is provided.. a writ was issued claiming that the councillor was disqualified from holding public office as a result of her conviction. There is no sensible reason for associating 'men' exclusively with 'doctors' and 'women' exclusively with 'nurses'. refers only to those cases in which multiple series of ideas are linked together ('A and B are Y and Z'). However. achieving a rough sort of symmetry in the passage. The most difficult reddendo problems are. and may still appear from time to time in modern statutes. these are typical problems of 'unclear distribution'. Almost a year after the election. however. It allows ambiguities to be identified in a text which contains multiple series of ideas.. Consider the phrase 'men and women weighing more than 150 lbs may join the fire department'. 1932 and sentenced to six months imprisonment. Deakin26 provides an interesting example of the judicial use of the reddendo maxim. 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. diminishing our ability to understand the language patterns that may be used by statutory drafters. Like other maxims. the liberal use of subsections and appropriate punctuation can pre-vent such problems before they arise. 1934. as a reddendo-based construction would conflict with important public policies. As the defendant had been in office for almost a full year before the writ challenging her election was issued. The phrase 'dogs and cats shall be kept in cages or on leashes'. the writ was outside the limitation period.

Happily. what is to be the disqualification for being a member after election. women. Reddendo allowed to the Court to avoid this result. The four main ideas in that example (namely men. a person shall be disqualified from being a member of a local authority if he has been convicted of any offence since his election. secondly. Rewritten using our symbols. Such a decision would have rendered the limitation period practically useless: if an attempt to challenge an election was barred by the limitation period.'s opinion: The relevant words of the section are as follows: 'A person shall be disqualified for being elected or being a member of a local authority if he has. holding that the two penalties provided for in the section (namely. Y and Z. The same pattern holds in Bishop v. . Applying reddendo to this case. The result reached seems to be quite sensible--namely. the four main ideas of these sections (namely. disqualification from being elected. Deakin. namely. the remedy for pre-election offences was to challenge the election. In Clauson J. secondly. while the remedy of removal from office was intended only for those officials who committed offences after being elected. been convicted of any offence. disqualification from continuing to hold office. despite the fact that the election itself was protected by the limitation period. could be relatively confident in his use of the maxim. the person seeking to challenge the election could achieve the desired result by simply using pre-election offences to instead challenge the office-holder's right to hold office. so far as I can see. a person shall be disqualified from being elected if he has... the relevant section could have been redrafted as follows: First. Clauson J. conviction within five years before the day of election. The decision of the Court in Bishop v. A matches with Y and B matches with Z. It makes much more sense. and applying the first disqualification mentioned to the first case dealt with. what is to be the disqualification for election. conviction since election. The legislation at issue in Bishop provided that persons would be disqualified from being elected (A) or continuing to hold office (B) where the person had committed an offence within the five years preceding an election (Y) or at any time since that election (Z). Similarly. B. and ordered to be imprisoned for a period of not less than three months. It is also obvious that the first disqualification mentioned fits the first case. and. Once again. Clearly. offences before elections and offences after elections) were combined in a most unusual fashion. that of election.. within five years before the day of election. All difficulty can be avoided by applying the well-known method of construction commonly known as reddendo singula singulis. been convicted of any offence. the phrase 'men and women can become members of fraternities and sororities' could appear as 'A and B can become members of Y or Z'. fraternities and sororities) can be symbolically replaced by the letters A. and. and the second case only. a construction which. unusual results would have flowed from a decision that offences before elections could result in removal from office later on. within five years before the day of election. Deakin is difficult to follow. Page 10 language stating that a person 'shall be disqualified for being elected or being a member of a local authority'. without the option of a fine' . disqualification from elections and disqualification from holding office) bore a 'distributive relationship' to the two types of offences that were listed in the section (namely. offences committed after an election could not be grounds for going back in time and challenging the election. but it does fit the second case. effectively performing an end-run around the limitation period. It is obvious that the second disqualification mentioned does not fit the first case mentioned.27 Based on Clauson J. Relying on reddendo. and conviction after election disqualifies from continuance in office. and it provides for two disqualifications: first. The Court accordingly accepted the interpretation suggested by reddendo. infringes no rule of syntax or grammar.. and it does not seem at all apt to fit the second case . offences before elections and offences after elections). when one divides the provision at issue in Bishop into its component parts and compares them to the 'fraternities and sororities' example. giving rise to a problem that called for the invocation of reddendo. that conviction within five years before the day of election disqualifies from election. Second. however. Although the relevant section did provide a mechanism for removing officials from public office. The section provides for two matters: first. accepted the arguments of the defendant.'s reasoning. Clauson J. Unfortunately. that particular remedy was permitted only in cases in which the official had broken the law after having been elected. or since his election. The defendant argued that the relevant words only related to offences that were committed by elected officials after the relevant official had taken office: in the defendant's view. and the second disqualification to the second case dealt with. The plaintiffs argued that the words 'being a member' allowed the defendant's right to continue holding office to be challenged.

Dominion Bank. fails to embrace animals (such as sheep) that are not listed.. The expression of .. it is not particularly surprising that reddendo rarely makes appearances in modern court decisions. Elmer Driedger describes the maxim's function as follows: One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another. noting that: '. the application of this and every other technical rule of construction varies so much under differing circumstances. and the judiciary's caution regarding the reckless use of this maxim is well founded. we can argue that sheep (and any other animals that have been left off the list) are not dealt with in this section.. chickens. Page 11 applying reddendo. that we can infer that sheep need not be inspected. of frequent application'32 is more complex than it seems. watered-down version of expressio unius could be used (for example) in a statute that provided that 'pigs. cows and horses must be inspected by the agricultural bureau'. Nor are there general words (such as 'or other animals') that could extend the reach of the section to animals other than those listed. exclusion is implied. (D) EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS While there are frequent judicial references to 'expressio unius est exclusio alterius'. That is not to say. Brooks. the final maxim 'expressio unius est exclusio alterius' has a wider application and still appears regularly in judgements.. More importantly.33 In other words.. this maxim looks a great deal like another maxim of interpretation known as casus omissus ('a case omitted'). An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation. we may have grounds to presume that the case or item was excluded on purpose rather than through the drafter's inadvertence. it was nevertheless 'a dangerous master to follow'.. the Court enigmatically warned that while expressio unius certainly had 'its uses'. The term 'implied exclusion' has been adopted here .. and none of the words listed in the section seem capable of bringing sheep within the section. it would have referred to that thing expressly. A matches with Y and B matches with Z. waiting to be used when ancient Acts become important. In its simplest form.30 the Court went even further. All that we know is that the provision being examined..28 for example. which deals with only 'pigs. many are cryptic warnings against the use of the maxim. We have no indication of the manner in which sheep are treated at common law or in sheep-related statutes. a working knowledge of reddendo may remind modern drafters to avoid the use of implicit distributive relationships in their drafting. The maxim reflects a form of reasoning that is widespread and important in interpretation. 'expressio unius est exclusio alterius' means 'the expression of one thing is the exclusion of another'. but this 'important rule . Because the drafter has taken the time to specify the types of animals that must be inspected annually. However.31 What is this 'dangerous master' which inspires judicial warnings? Translated literally. The pattern developed in the fraternity and sorority example holds true. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits . cows and horses'. Although there is no express exclusion.29 In Colquhoun v. This simple. or where some quirky drafter's sentence structure creates unusual problems. the method of construction summarised in the maxim 'Expressio Unius Est Exclusio Alterius' is one that certainly requires to be watched. Reddendo accordingly remains somewhere in the back of most interpretive arsenals. The drafting style which leads to this type of problem is largely one of the past. chickens. the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Coté refers to it as the a contrario argument. Because of this expectation. In Turgeon v. This sounds simple enough. Dickerson refers to it as negative implication. and a rough symmetry is achieved. and is open to so many qualifications and exceptions. of course. but old statutes may still be extant and require interpretation. The section does not mention sheep. that it is rarely that such rules help to arrive at what is meant'. Given the vast improvements seen in legislative drafting over the last fifty years. where a statute fails to mention a specific case or item.

One might be tempted to say that this passage fails to catch hovercraft or other unusual water-borne vehicles that the drafter has failed to mention. the exclusion of hovercraft can likely be inferred. when the author wished to catch the case of hovercraft. used in different parts of the same statute. it will not include hovercraft later on. The testator has specifically addressed the issue of the tyres on the two vehicles. boats and jetskis' from the waterway in July did not apply to hovercraft. In a case such as this. but it wouldn't be particularly compelling. If it does not include hovercraft in one section of the Act. If our hypothetical statute had an additional. however. we presume that legislative drafters never use extraneous language. Often we are inclined to include an item by implication and must rely on expressio unius to assist us in deciding whether to yield to this inclination. By the specific reference to the Cadillac tyres the testator indicates that she specifically refers to a vehicle's tyres when such tyres are intended to form a gift under the will. 'the author would have said so explicitly: expressio unius est exclusio alterius'. the testator's cousin is likely to receive a Toyota without tyres. Most cases involving expressio unius are far more complicated than this. one might argue. Will the testator's cousin also receive the tyres on the Toyota? We are inclined to say 'yes'. Page 12 pigs. This is where judicial admonitions regarding the reckless application of this maxim come in handy. The word 'hovercraft' (in section 2) would have been extraneous had the concept of hovercraft been caught by one of the other words. Applying expressio unius. reliance on the expressio unius maxim rests on our acceptance of two important presumptions. Perhaps the author had only a vague idea of what was meant by the term 'boats'. Had the intention been that the cousin would inherit the tyres on the two vehicles by implication. boats or jet-skis are permitted on the waterway during July'. and would have included hovercraft under that term. separate section stating that 'ships.e. The expression of one thing (i. barring 'ships. This presumption suggests that the same word. we would have a reasonably strong reason for arguing that the earlier section. First (as we saw in connection with ejusdem generis). Section 2 provides that 'ships. In many cases. The failure to make such a provision for the Toyota tyres suggests that those tyres are supposed to be dealt with differently. Section 1 provides that 'no ships. The second important presumption is known as the presumption of consistent expression. and considers them to be a separate case from ships. Consider a statute that stated that 'no ships. The presumption concerning extraneous language assured us that. together with the tyres on my Cadillac'. In our hypothetical statute we discovered two provisions. boats or jet-skis are permitted on the waterway during July'. expresses precisely the same idea.34 The expressio unius maxim is most likely to apply where we have reasons for believing that an author turned his or her mind to the items that we seek to exclude by implication. Consider the following example. we know that the author did not regard hovercraft as a species of boat. In a will. the testator would not have made specific reference tot he tyres on the Cadillac: the tyres would have passed to the cousin without need of explicit reference. the gift of the Cadillac tyres) implied exclusion of the other (a gift of the Toyota tyres). the expressio unius argument is certainly worth a try. we would prefer to have some reason to think that the statute-drafter was aware of hovercraft and considered them to be a separate subject worthy of specific attention. a testator decides to leave the following gifts to her cousin: 'my Toyota and my Cadillac. as hovercrafts are dealt with separately from each of the other vehicles. 'Had the author meant to have this statute apply to hovercraft'. As a result. A well-founded application of the expressio unius maxim calls for some additional indication that the excluded case or item was omitted by the drafter on purpose. presumably the testator would have made it explicit. and has explicitly stated that the tyres on the Cadillac should go to the beneficiary.. boats and jet skis. cows and horses implied the exclusion of other non-listed animals. Recall the 'hovercraft' example developed above. for example. Had the intention been that the cousin have the Toyota's tyres as well. boats. we simply have no basis for presuming that the legislative author turned his or her mind to hovercraft and excluded them on purpose. because it seems sensible to convey a vehicle's tyres along with the vehicle. In other words. boats. he or she said so with explicit language. Where that language is absent. In the hovercraft example. chickens. In the hypothetical waterway statute. jet-skis and hovercraft shall be registered with the registrar of recreational crafts'. The 'registration section' makes it clear that the legislative author is aware of hovercraft. jet-skis and hovercraft shall be registered with the registrar of recreational crafts'. we may infer that the tyres on the Toyota have not been given to the testator's cousin in this clause. for the . Section 2 makes this clear. Applying the 'no extraneous language' presumption to this fictitious Act. The word 'boat' (for example) in one part of the statute will carry the same meaning as the word 'boat' somewhere else in the same Act. ship or jet-ski.

the words 'without pay' would have served no purpose in the section relating to suspensions flowing from criminal convictions. as there is no explicit language telling us that hovercraft are excluded from the section.35 In that case. by itself. boats and jet-skis' are used in the same sense in sections 1 and 2. Courts commonly rely on the maxim expressio unius. . We are said to 'infer' or 'imply' this exclusion. the absence of the words 'without pay' from the regulation pursuant to which Crease had been suspended was important. and penalty.38 In Scortini J. Counsel for the board of police commissioners argued that it was contrary to public policy for an officer suspended on such grounds to be in receipt of public funds while suspended. respectively. Scortini J. reflects the presumption of innocence and the suspension is.37 Scortini J. Equally. It is logical and reasonable to conclude that the absence of the words 'without pay' in conjunction with suspensions following suspension or charges of offences pursuant to s. boats and jet-skis' did not include hovercraft. was not enough to permit suspensions without pay. Section 26 provided. They do not include hovercraft in section 2. When certain persons or things are specified in a law. Had the word 'suspended' included the notion of 'suspended without pay'. contract or will. While the provision under which Crease and his colleagues were suspended did not address remuneration. The presumption of consistent expression informs us that the terms 'ships. When a suspension was to be without pay this was stated explicitly. implied that the suspended officer should be paid. As a result. These aids include the rules of statutory interpretation.. the words 'ships. Stated another way: mention of one thing implies exclusion of another. and that a person suspended under the provision would be unable to otherwise earn a living while awaiting trial. i. it was clear to the Court that the legislature had turned its collective mind to the issue of whether suspensions were to be with or without pay. inter alia.e. by virtue of section 26 of the Police Regulations36 been suspended from their duties as police officers after they had been charged with violations of the Criminal Code. Since the word 'suspended' in the convictions section needed the help of the words 'without pay' in order to permit unpaid suspensions.. buttressed this analysis by referring to the relevant public policy: Sections 26(3) and 27 of the Regulations are specific and require conviction and final disposition before suspension without pay. a later provision of the same Regulations clearly stated that where an officer was convicted of rather than simply charged with a criminal offence the officer could 'be suspended without pay'. A good illustration is Crease v. Those words had been included in a section dealing with officers who were convicted of a breach of the Criminal Code. This would violate the rule against extraneous language. The issue in Crease was whether the provision empowered suspension without pay. especially the rule expressio unius est exclusio alterius. Since hovercraft are not mentioned in section 1. without the use of the words 'without pay'. the presumption regarding extraneous language and the presumption of consistent expression allow us to use expressio unius with a fair amount of confidence. Page 13 purposes of section 2. Counsel for Crease argued that suspension without pay appeared to violate the presumption of innocence. the absence of those words in the criminal charge section meant that unpaid suspensions were not permitted by that provision. expression of one thing is the exclusion of another. The legislature's decision to refer to suspensions 'without pay' in certain instances made is possible to conclude that other references to suspensions.'s opinion. the presumption of consistent expression leads to the conclusion that 'suspended' in the section relating to criminal charges has the same meaning as in the section relating to convictions. held: When a statute is not precise and requires interpretation by a Judge he may avail himself of several aid in addition to common sense and his ability to read the plain words of the enactment. as hovercraft were listed separately from the other items. we can infer (as a result of our presumptions) that the author's failure to include hovercraft in that section implies that hovercraft are beyond the reach of that particular provision. This implied that the word 'suspended'. The Court in Crease resolved the issue by applying expressio unius. so they cannot include hovercraft in section 1. the enactment was silent on whether suspension as a result of an officer being charged with a violation of the Criminal Code was to be with or without pay. George Crease and several colleagues had. 26(1) of the Regulations. that where a police officer was charged with a Criminal Code offence the chief of police could 'suspend [the officer] from duty'. an intention to exclude all others from its operation may be inferred. Board of Commissioners of Police of the Municipality of Metropolitan Toronto (1976). Taken together.

the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act. namely. large and liberal' interpretation. the Court held that officer Crease and his colleagues were entitled to be paid while suspended from duty. Most of this criticism is misdirected. Indeed. One of the most common criticisms of maxims deals with the perceived 'technical' nature of anything referred to as a 'maxim'. Standing alone. maxims are treated as binding rules and reliance is placed on them without reference to their logical foundation. They commonly have a logical basis and can be helpful in resolving problems of interpretation. Page 14 therefore. Many critics of the maxims reject so-called technical rules and prefer to rely upon a more holistic approach to interpretation. the 'one principle' would have a comparable utility to a rule of ethics which declared that 'when selecting a course of action. designed to assist in providing an answer to such questions. always do the right thing' without providing guidance as to how the 'right thing' is to be identified. the 'one principle' by itself is of little utility. a suspension of a police officer from his duties with pay. Nevertheless maxims of interpretation have been the subject of substantial criticism during the last several decades.41 Driedger's 'one principle' appears to have laid the groundwork for an era of construction in which technical rules and Latin maxims have no place. Driedger's text on interpretation is replete with technical rules. IV. were born of observation of the manner in which language is used. Section 12 of the Canadian federal Interpretation Act42 provides: Every enactment is deemed remedial. the maxims seem to call for interpretations that are technical. large and liberal construction and interpretation as best ensures the attainment of its objects. and shall be given such fair. many of which have disregarded the maxims or other 'technical' forms of interpretation. 'rule' or 'canon' of construction. all of which form components of Driedger's 'one principle'. With respect. without the support of its technical components. rather than the maxims themselves. A further resistance to the use of maxims commonly stems from the language of interpretation statutes. . A rallying cry of the 'holistic interpreter' has been the words of Elmer Driedger: Today there is only one principle or approach. 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. CRITICISMS OF MAXIMS The maxims considered in this article. like most maxims of interpretation. This trend can be corrected by the adoption of a more principled approach to the use of maxims as tools of interpretation. Almost every argument against the use of maxims should be aimed at the users of maxims. however.43 While such interpretation statutes require 'fair. Frequently.39 As a result. If one ignores the role that these technical rules play in interpreting legislation. Simply saying that a statute must be read in 'context' and in an 'ordinary sense' that coincides with Parliament's 'intention' does little to assist interpretation of the legislative text. Latin maxims and other approaches to interpretation. How is one supposed to determine Parliament's intent? How is one supposed to determine which 'ordinary sense' of a given word or phrase is 'harmonious' with the statute as a whole? If one reads all of Driedger's text rather than emphasising in isolation the 'one principle' statement. including several maxims of interpretation. Driedger's oft-quoted 'one principle' statement appears to support a holistic form of interpretation that may have little use for Latin maxims.40 This 'one principle' has formed the basis of countless interpretive decisions. one indeed finds a host of tools and approaches. the object of the Act. Canadian provincial interpretation Acts contain similar provisions. most commentators and jurists have (somewhat ironically) ignored the general context in which the statement was made. and the intention of Parliament.

in choosing legislative language. They draw our attention to important presumptions (such as presumptions concerning extraneous language and consistent expression) and point to logical inferences that flow from those presumptions. Maxims of interpretation have a dual value here. Rather than relying on a simple Latin phrase these critics would prefer a form of construction that acknowledges the uncertain nature of language and the impossibility of unearthing the 'true meaning' of a legislative phrase. Secondly. They force the reader of statutes to take a careful look at statutory language. and accordingly draw us closer to an understanding of statutory language. rather than simply useful tools which are designed to unearth interpretive possibilities that inhabit typical statutory language. Our best evidence of the objects (or the purpose) of a statute is the language in which the relevant text is drafted. The form of interpretation required by interpretation statutes is premised upon our ability to determine the 'objects' of a legislative passage. The powerful logic underlying the maxims not only reveals these interpretive possibilities. uncovering a host of possible meanings that reside within the text. As observed above. One crucial element in determining the 'object' of a statute is to decide why the drafter chose particular language. the maxims help uncover competing interpretive possibilities that can be used to direct a court toward a logical construction of ambiguous legislation. They do not provide 'pat answers'. these inferences are often rooted in systematic observation of the manner in which language is used. we can generally assume that particular patterns of language were selected by the drafter for a reason. while mistakes sometimes occur. First. The maxims draw our attention to the reasons for which a drafter might choose a particular form of expression. It is far easier for a court to reject a simple Latin phrase than it is for the court to reject the logic that . Page 15 small and narrow-minded. the maxims are a valuable addition to their respective arsenals. the persuasive value of maxims holds only where maxims are used in the proper manner. Statutory language is often exceedingly technical and difficult to construe. The maxims point us toward logical inferences that can be drawn from the drafters' choice to use a particular pattern of language. not surprisingly. The handy Latin phrases in which the maxims are expressed should never end an interpretive inquiry. Obviously. they are vulnerable to unprincipled rejection. Maxims are neither arbitrary nor whimsical in nature. SOME BENEFITS OF MAXIMS Used correctly. they should add depth to an interpretive inquiry that takes into account all possible sources of legislative meaning. The logic of maxims is compelling. However. As we have seen. for example. Maxims seem far too formulaic and simplistic to those who have been schooled in complex theories of construction. but also serves as the basis for persuading any interpreter to adopt the most sensible of the competing interpretations. improving the quality of their arguments and increasing the chance that the court will render an interpretation that best serves the needs of logic and the demands of the language found in the legislation. Maxims are. the maxims of construction are persuasive. reflecting time-honoured arguments concerning the manner in which people write and interpret language. This criticism is answered in much the same way as that which flows from Driedger's 'one principle'. They force us to acknowledge the unconscious assumptions that are made when we interpret legislation. They were developed over countless generations. where maxims are invoked in an unprincipled manner. or any form of answers for that matter. such criticism flows from the fallacious vision that these maxims are rules. While there is arguably no 'true meaning' of a text. drafters will do so with an awareness of the maxims. and the foundation upon which a 'large and liberal' interpretation should be based. requires our 'fair. V. large and liberal' interpretation to be one that 'ensures the attainment of [the statute's] objects'. Where opposing counsel offer competing constructions of a legislative passage. Perhaps the most substantial criticism of maxims is that they merely provide unduly simplistic answers to the often complicated problems of statutory construction. A basic understanding of the logic underlying a drafter's choices is the first step toward an understanding of the objects of a statute. very useful for this purpose. Section 12 of the Canadian federal Act. To render a 'large and liberal' interpretation of statutory text we must first pay close attention to the language of the statute and search for interpretive clues left behind by the drafter. they raise questions. and can serve as the cornerstone of extremely powerful arguments concerning the meaning of statutory language.

however. this logic proves to be inescapable. and 'reddendo' don't come up all that often. sensitive to language usages and shared tacit assumptions. In short. Perhaps one of the greatest benefits of maxims lies not as interpretive aids or research tools. The terms 'ejusdem'. To take advantage of the persuasive power of maxims. encourage students to develop a healthy scepticism of language. CONCLUSION Reed Dickerson wrote: To do his cognitive job well. As the names of maxims are extremely specialised and couched in dead language. Maxims help lawyers and judges become sensitive to language usages as well as the tacit assumptions that permeate legislative texts. The more arguments that one has at one's disposal. Maxims help the student to understand the amorphous nature of legal language. maxims force us to take language seriously. serving as the basis for exceedingly potent arguments. One could construct a computerised search based in English terms and boolean logic in the hope of uncovering an appropriate series of cases. A holding that ejusdem generis does not apply. VI. In ejusdem generis cases. and that the 'true meaning' of any statute comes from carefully crafted arguments rather than from any pre-existing source such as legislative intent. the lawyer proffering the relevant Latin phrase must explicitly state the presumption and the logic that led courts to develop the relevant maxim. persuasive case that a particular meaning of an ambiguous word or phrase should be accepted. it is easier for the court to refuse to apply an unsupported Latin axiom than it is for the court to hold that a specific list of words within a legislative passage is irrelevant. 'noscitur'. the more likely one is to develop a clear. and generously endowed with good judgement. Finding such cases could be difficult without the structure provided by maxims. They provide stimulating intellectual puzzles that are interesting to dissect and apply. obliging counsel or the court to search for compelling justifications for any deviation from the construction suggested by a maxim. but as educational devices. capable of reasoning deductively. they inevitably relate to specific drafting problems that are dealt with by the maxims. Because the maxims can be used to uncover interpretive problems that might otherwise escape attention. When they do. 'expressio'. perceptive in combining relevant elements affecting meaning. involves an implicit holding that the general words of the passage are not narrowed by the specific terms that accompany them. Most maxims relate to specific patterns of language that give rise to interpretive problems. more importantly. the maxims are extremely useful as interpretive aids. A study of maxims enhances counsel's ability to launch creative arguments concerning the meaning of statutory language.45 This 'cognitive job' is more easily pursued by jurists armed with a thorough understanding of the maxims of construction. Used in this manner. a judge must be unbiased. Counsel must ensure that courts are aware of these logical implications by drawing the courts' attention to the rationale that underlies each maxim. also serve useful mnemonic devices and. A former student noted that the maxims had destroyed his ability to read any ostensibly simple passage without uncovering at least two conflicting interpretive possibilities. In many cases. and to adopt a practice of extremely careful reading. they oblige the interpreter to refuse to take language at face value. for example. A knowledge of maxims improves drafting and construction. A further advantage of the maxim is as a research tool. and allows the student to predict and evaluate the manner in which courts interpret language. Entering 'ejusdem generis' into a typical search engine is likely to uncover a series of cases in which a list of specific items accompanies general words. Together with their power as research tools and educational aids. it may be useful to review earlier cases in which a similar pattern of language was considered. they are unlikely to yield irrelevant results. but maxims are far more useful tools. and that the specific words accordingly have no role to play within the relevant statute. The modern jurist. allowing counsel to make persuasive arguments that might otherwise have escaped the courts' attention. the ability of maxims to clarify the meaning of ambiguous legislation makes it clear that maxims have a role to play in modern law. When faced with a specific problem of construction. equipped with the knowledge that maxims are not rigid rules .44 Maxims oblige us to address the fact that a wide array of meanings resides within any writing. Page 16 underlies the maxims. Many cases are won or lost on the ability of counsel to use the maxims in an effective manner.

3 Johnston v. I would also like to thank Professor Graham Parker.C. 219.L. England: Oyez Publishing Limited. the courts well may rediscover the inherent value of maxims and cease to reject them for incoherent reasons. 6 [1967] 2 All E.R. 11 Ibid.R. 4 Turgeon v. 84. 142-143. 680.C. whose notes on statutory interpretation drew my attention to several of the cases referred to in this paper.R. 1980). 10 Ibid. 12 (1981) 125 D. C-34. 67. 23. 15 (1950) 338 U. 14 (1981) 125 D. Statute Law (London.R. (3d) 137.S. 22.B. Dominion Bank [1930] S.C.R. 17 at 682. 8 [1967] 2 All E. 2000 (Osgoode Hall Law School. 16 at 681. 1952. 7 Income Tax Act.R.S. 576. 5 Francis Bennion. will use the maxims in a way that recognises the uncertainty inherent in written language and the ability of maxims to deconstruct the language of a statute. York University) for his helpful suggestions and encouragement during the preparation of this paper. LL. [1991] 2 S. 578. Page 17 but rather tools that raise and evaluate interpretive possibilities. 18 at 682-684. When lawyers learn to rely upon the logic underlying the maxims rather than simply invoking the Latin names by which they are known. 576. (3d) 137. . c. Canada (Employment & Immigration Commission). [1932] S.C. 2 Tétrault-Gadoury v. 19 at 684. 9 Ibid.R. 13 R. 1 I would like to thank Kenneth Landa. 1970. 220. 70-71.L. Canadian Men's Trust Association.

34 The situation could change. (3d) 403. 680. Brown and Company. . if the Cadillac tyres had some unusual properties that made it important for the testator to give them special attention. passed under the Police Act.J. 35 (1976) 66 D. Grini (1969) 5 D.L. 1975). 233. 29 at 71.R. 111 B.). 407. 28 [1930] S. See.L. Ontario: Butterworths. 4. op-cit. Reg. 27 at 257. 26 [1936] 1 All E.B. 255. 21 See Grini v.. 31 at 406. 33 Ruth Sullivan.R.C. 67. 233. (3d) 403. If they were worth more than the car. for example. c.O. 39 Id.D.R. British Columbia (Information and Privacy Commission) [1998] B. 400. 23 The decision in National Bank of Greece has been almost universally criticised as an unprincipled rejection of the ejusdem generis rule.C.C. R. Massachusetts: Little. (Toronto. Second Edition. 36 R. 87. 95. at 406.. (3d) 640 for an application of the 'exhausting the genus' exception to the ejusdem generis maxim. The Interpretation and Application of Statutes (Boston. Aquasource Ltd v. 84. 22 [1990] 2 S. 1970. of course. 30 19 Q.R. 1927 (Q. Ontario: Butterworths. 32 Bennion.C. 37 Police Regulations. it may have been prudent for the testator to indicate that the specific tyres on the Cadillac at the time of her death were supposed to be passed on to the beneficiary.R. 38 (1976) 66 D.. 25 Ibid. s. 40 Construction of Statutes. No. 24 Reed Dickerson.A. 351.L. Page 18 20 at 682. Driedger on the Construction of Statutes (Third Edition) (Toronto. for example. 1983).C. 1970. 1029.R.L.S. Id.O.R. 168 (citations omitted). n. 26(3).. 1994).

Page 19 41 See.B. LL. 2000 (Osgoode Hall Law School. 42 R.S. v. for example.R.O. I-21.S. 686. 44 I would like to thank Stuart Wright.10. R. R. 1990. for example. the Interpretation Act of Ontario. . McIntosh [1995] 1 S.C. 45 Dickerson. 236. s. 43 See. 1985. c. York University) for this observation.C.