I.

INTRODUCTION

Legal Maxims have fallen down in the present setting of the legal environment. While ancient courts
regarded maxims as “shining beacons of clarity” in an otherwise dark legal world, the maxims of
statutory construction seems to have very little appeal for present legal personals. Cases that would
once have been addressed in the course of the invocation of brief Latin maxims now fall to be
decided through appeals to “public policy” or “equitable concerns”. These maxims which are useful
guidelines that once directed courts toward a statute's meaning, now lie impotent and forgotten,
visited and studied only by legal scholars and people like us - students. When maxims are invoked by
modern baristers, they are met with doubt or even disrespect, often eliciting strict judicial warnings
that maxims must be approached 'with caution'i in case they lead a unfortunate jurist to 'over-rideii'
parliament’s intention. The lowly maxim, once regarded as a valued tool of legal interpretation, has
been declared a 'dangerous master' that is perhaps best left aloneiii. Despite all of these criticisems
the maxims of statutory interpretation continue to serve as valuable tools for those interested in
legislative language, and they do really form an important part of a modern approach to statutory
language.

(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.

02. WHAT ARE THE MAXIMS?

The maxims of statutory interpretation are interpretive guidelines that are typically expressed in
Latin phrases. Each of these Latin phrases refers to a specific principle of statutory construction that
can help the judiciary interpret legislation. It creates us a statutory grammer. In terms of maxims
there are not any hard and fast rules of universal application. The maxims are more similar to rules
of arithmetic probability than to prescriptive rules of grammar that apply in 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 SOCIIS

Noscitur 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.
Page 3

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
Page 4

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 words with which it was found. Since
'removes' and 'disposes of' both referred to positive actions, the word 'conceals' was understood in
a similar sense. Only 'positive acts' of concealment were captured by the relevant language. As Mr.
Goulis had taken no positive action to conceal his hoard of shoes, he was acquitted of the offence
with which he was charged. The logical foundations of noscitur a sociis are relatively uncontroversial.
Contextual interpretation comes naturally to most readers. Without the aid of context, sentences
would become mere collections of unrelated, ambiguous words, and communication would be
virtually impossible. As a result, noscitur a sociis is easy to understand and equally easy to defend. It
is also the source of several other maxims of statutory construction, including 'ejusdem generis'.
(B) EJUSDEM GENERIS

Translated literally, 'ejusdem generis' means 'of the same genus' or 'of the same class'. Generally
speaking, this maxim is used wherever a provision contains a list of specific items accompanied by
general words that embrace those specific items. Consider the phrase 'lions, tigers, bears and other
animals'. This passage could attract the application of ejusdem generis, as it contains a list of specific
items (namely, lions, tigers and bears), as well as general words that embrace those specific items
('other animals'). Where the maxim applies, 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. In the lions,
tigers and bears passage, for example, we could safely
Page 5

read-down the phrase 'other animals' to exclude any animals that were essentially different from
lions, tigers and bears. Single-celled organisms, such as paramecia or amoeba, could probably be
excluded through the use of the maxim without much controversy, as could human beings and
imaginary animals such as unicorns or dragons. It is important to realise, however, that the phrase
'lions, tigers, bears and other animals', construed literally, would have embraced every member of
the animal kingdom: paramecia, humans, cuttlefish and perhaps even imaginary creatures would be
included. The literal meaning of the phrase 'other animals' is broad enough to capture any animal. 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, 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. As noted above, ejusdem generis is a special form of noscitur a sociis.
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. Similarly, ejusdem
generis suggests that general words must be understood by reference to the specific terms with
which they are associated. The general words are 'known' by reference to their more specific
associates. As a result, ejusdem generis is simply a specific application of the reasoning underlying
noscitur a sociis. The logical inference at the heart of ejusdem generis makes sense. Consider, once
again, the example described above: 'Lions, tigers, bears and other animals'. If the author of that
phrase had intended the words 'other animals' to be read in their broadest possible sense, there
would have been no reason to list the words 'lions', 'tigers' and 'bears'. Lions, tigers and bears (being
animals) would have been caught by the word 'animals' without any need to be singled out by the
sentence's author. One of the fundamental presumptions of statutory construction is that there are
no extraneous words in legislation. If the words 'lions', 'tigers' and 'bears' are not merely excess
verbiage, what is their role in the relevant text? The most logical answer is that they are examples of
the kind (or genus) of animals captured by the general words at the end of the passage. Had the
author intended to capture all members of the animal kingdom, he or she could have simply used
the word 'animals' without providing us with a list. The author has provided us with a clue, however,
suggesting that the general words 'other animals' are not to be read so broadly: the author has given
us a list of specific examples (namely, lions, tigers and bears) presumably for the purpose of guiding
us to the proper construction of the general phrase. Like all maxims, ejusdem generis has its limits.
The most important of these lies in the fact that ejusdem generis can rarely (or perhaps never)
indicate the precise boundaries of a genus that it creates. Consider an expanded version of the 'lions,
tigers and bears' example noted above. A legislative passage might provide that 'Lions, tigers, bears
and other animals must be housed in paddocks enclosing no less than one hectare per animal'. As
noted above, the maxim reminds us that the phrase 'other animals' must not be interpreted in its
broadest possible sense, for this would deprive the words 'lions', 'tigers' and 'bears' of any
independent purpose. 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, tigers and
bears. This raises a critical problem. No one knows, simply from the application of this maxim, the
full extent of the class to be defined by the phrase 'other animals'. The class could be made up of any
group that shares the characteristics of lions, tigers and bears. But which characteristics are
important? The class may include all mammals, all potentially dangerous mammals, all carnivores, all
animals found at the Toronto Zoo, or all animals mentioned in the Wizard of Oz. The maxim provides
us with very little guidance as to the nature of the class that it defines. We are given some assistance
by the remaining words found within the provision: the provision requires that certain animals be
'housed within paddocks enclosing no less than one hectare per animal'. Once again, we can safely
exclude amoeba from the phrase 'other animals' in this passage, not only because of ejusdem
generis, but also because of the context that the remainder of our fictitious statute provides. It
simply would not make any sense to enclose an amoeba in a one-hectare paddock. For similar
reasons, house-cats can probably be excluded. Although a house-cat does bear certain things in
common with the animals that are mentioned in the passage (especially lions and tigers), it would be
silly to require that all house-cats be kept in enormous paddocks. This guidance comes from the
context of the legislative passage rather than from ejusdem generis. In this example, ejusdem
generis simply tells us not to interpret 'other animals' in its broadest possible sense, but to look for
commonalities in the specifically listed items with a view to constructing a class that narrows the
general terms. The usefulness of this maxim lies in its power
Page 6

to remind us of the interpretive possibilities that exist within a certain pattern of language, calling
our attention to important interpretive clues that have been left behind by statutory drafters. Courts
commonly invoke ejusdem generis. A typical example is the decision of the U.S. Supreme Court in
United States v. Alpers.15 In that case, the Court was asked to interpret legislation that prohibited
the interstate shipment of any obscene 'book, pamphlet, picture, motion-picture film, paper, letter,
writing, print, or other matter of indecent character'. Mr. Alpers had been charged under the
relevant legislation after shipping phonograph records across state lines. Those records were
'impressed with recordings of obscene, lewd, lascivious and filthy language and obscene, lewd,
lascivious and filthy stories'.16 Alpers conceded that the records were indecent. The only question
that remained was whether the records constituted a 'book, pamphlet, picture, motion-picture film,
paper, letter, writing, print, or other matter of indecent character' for the purposes of the relevant
legislation. Based on Alpers' concession that the records were indecent, the records clearly
amounted to 'matter of indecent character' if that phrase was given a literal construction. The
records were clearly 'matter'. The 'indecent character' of that matter was admitted by Mr. Alpers.
However, the Court of Appeals had relied 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. Minton J. of the Supreme
Court described the Court of Appeals' reasoning as follows: In interpreting the statute as applied to
this case the Court of Appeals invoked the rule of ejusdem generis. Since the words 'book, pamphlet,
picture, motion-picture film, paper, letter, writing, print' appearing in the statute refer to objects
comprehensible by sight only, the court construed the general words 'other matter of indecent
character' to be limited to matter of the same genus. The Court of Appeals held phonograph records
without the statute, so interpreted, since phonograph records are comprehended by the sense of
hearing.17 From an interpretive perspective, the appeal court's application of ejusdem generis made
a great deal of sense. Applying the presumption that legislative drafters write with precision and
refrain from using extraneous language, the Court of Appeals determined that the phrase 'other
matter of indecent character' could not be given its broadest possible meaning. If it were given its
broadest possible meaning, 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. The Court of Appeals
reasoned that the listed items had been included for some purpose, and that the purpose was to
narrow the class of 'indecent matter' to indecent matter perceived by the sense of sight. The Court
of Appeals' decision in United States v. Alpers was a textbook ejusdem generis, but it did not impress
the U.S. Supreme Court. Overturning the Court of Appeals' decision, a majority of the Court (per
Minton J.) held: When properly applied, the rule of ejusdem generis is a useful canon of
construction. But it is to be resorted to not to obscure and defeat the intent and purpose of
Congress, 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 ... nor do we think that Congress
intended that only visual obscene matter was within the prohibition of the statute.18 Of course, the
Court provided no basis for its view of Congress' intent with respect to the meaning of the statute.
No evidence of intent was provided apart from the language of the relevant provision. 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, pamphlet, picture, motion-picture film, paper, letter, writing, print, or
other matter of indecent character' was effectively deleted from the statute, leaving only the
general phrase 'any matter of indecent character'. This does not imply that the Court's decision was
wrong. It merely suggests that, with respect, the Court ought to have provided a more compelling
reason for ignoring ejusdem generis than an unsupported reference to Congressional intent.
Dissenting in Alpers, Black J. did not specifically rely on ejusdem generis. He would, however, have
upheld the acquittal of Mr. Alpers on the grounds that the prohibition found in the statute did not
extend to include
Page 7

phonograph records. Black J.'s reasoning largely centred on the evils of censorship and the principle
that 'criminal statutes shall be couched in language sufficiently clear to apprise people of the precise
conduct that is prohibited'.19 Since Alpers' records were not clearly caught by the legislation, Black J.
(together with Frankfurter and Jackson JJ.) would have upheld the acquittal. In order to do so, of
course, they would have to have given a narrow reading to the phrase 'other matter' in the relevant
legislation. The mechanism that would have permitted them to do so was the reasoning underlying
ejusdem generis. The decision of the majority in Alpers is typical of the manner in which courts deal
with inconvenient maxims. Where a maxim leads a court toward a decision of which the court does
not approve, judges tend to claim that the maxim is often 'useful', but that resort to the maxim in
the case at hand would 'defeat the intent and purpose' of the legislative author.20 In most of these
cases, 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. The court merely notes that the maxim
is sometimes useful, but (for unstated reasons) the application of the maxim in the case at hand
would be unwise. Perhaps the judiciary's scepticism concerning ejusdem generis lies in the fact that
the maxim is subject to a number of exceptions. Obviously, the maxim cannot apply in cases where
the specifically listed items are incapable of forming a recognisable genus. Thus, in the example
'apples, trains, senior citizens, micro-processors, herring and other items shall be subject to this Act',
the phrase 'other items' will probably not be read-down to conform to a genus implied by the listed
items: the listed items seem to be unrelated, and do not readily lend themselves to the creation of a
single class or genus. Similarly, ejusdem generis cannot apply in those rare cases in which the listed
items exhaust the entire genus that they seem to have created. This second exception, known
colloquially as 'exhausting the genus', could be seen in a passage that referred to 'minors, adults and
other persons'. Applying ejusdem generis, one would be tempted to narrow the phrase 'other
persons' to include only natural persons, excluding corporations or other non-human entities that
may be considered 'persons' by the law. Minors and adults, both of which are specifically referred to
in section, are types of natural person. Ejusdem generis seems to suggest that the phrase 'other
persons' was intended to refer only to natural persons, as the genus of natural persons is suggested
by the specifically listed types. This gives rise to an objection: if the phrase 'other persons' is limited
to natural persons, the words 'other persons' in this passage are extraneous. 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. Since both minors and
adults are already listed in the section, all forms of natural person are already accounted for without
the need for the phrase 'other persons' at the end of the passage. As we have seen, statutory
drafters are presumed not to include extraneous language in their drafting. This leads to a dilemma:
either the words 'minors and adults' are extraneous, and the words 'other persons' should be
interpreted in their broadest possible sense, or the words 'other persons' are extraneous, adding
nothing to a section that already catches every kind of natural person through its specific application
to minors and adults. In cases such as this, the court errs on the side of over-inclusiveness, giving the
broad words their largest possible scope. Thus, in the example 'minors, adults and other persons',
the phrase 'other persons' would not be restricted by reference to a genus that is created by minors
and adults: the only genus that is suggested by those terms is exhausted by the listed items, and
ejusdem generis will not apply where its effect would be to rob the general terms of their meaning.
As a result, 'other persons' would be interpreted in a broader sense, to include, for example,
companies.21 Such considerations may explain judicial reluctance to invoke ejusdem generis. It is
seen as exceedingly technical in nature, subject to countless technical qualifications and exceptions.
This problem arises due to the failure of counsel to refer to the rationale of ejusdem generis (or any
maxim, for that matter) when presenting the relevant maxim to the court. If a maxim is seen as an
arbitrary rule with little or not logical basis, it seems perfectly reasonable to reject the rule for
arbitrary reasons. Thus, in cases such as National Bank of Greece v. Katsikonouris,22 learned judges
rely on unsupportable reasons for rejecting a maxim. In National Bank of Greece, the Supreme Court
of Canada refused to apply ejusdem generis on the grounds that the general words in the relevant
section preceded, rather than followed, the list of specific items. With respect, this makes no sense.
The phrase 'animals such as lions, 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, tigers, bears or
other animals' (in which the general words come last).23 The rationale that underlies ejusdem
generis applies with equal force regardless of the order in which the general and specific words are
Page 8

arranged. The case demonstrates the danger of referring to a maxim without at the same time
describing its rationale. Maxims should not be referred to as a collection of technical rules that are
subject to a host of specific exceptions. Instead, much like the modern hearsay rule, maxims should
be governed by a 'principled approach' that takes into account the logical basis for each maxim.
Beyond the many exceptions and technicalities that have eaten away at ejusdem generis, the maxim
is also subject to a number of criticisms. Perhaps the most important of these criticisms flows from
the highly subjective manner in which ejusdem generis can sometimes be applied. Another animal-
based example serves to demonstrate this point. Consider the phrase 'pigs, chickens, cows and other
animals'. How would ejusdem generis cause the phrase 'other animals' to be narrowed in this
passage? One might contend that pigs, chickens and cows are all animals consumed by humans, and
that the phrase 'other animals' should be narrowed accordingly. This genus might only come to
mind, however, if the reader is a member of a culture in which pigs, chickens and cows are
consumed as food. Other cultures might regard one or more of these creatures as forbidden sources
of food, as sacred animals, as spirit guides, as objects of experimentation or as creatures that have
been enslaved by human oppressors. The genus lies in the eyes of the beholder, and a court's own
cultural bias may shine through where ejusdem generis is applied. Any perception of commonality
between specifically listed items will depend on the life experience of the interpreter. A member of a
group that is over-represented in the judiciary, such as middle-aged white males, may have a skewed
perception of the commonalities found within a list of specific items, and may rely on those
perceptions when constructing a genus for the purpose of applying ejusdem generis. This is not a
criticism of middle-aged white males, but an issue of human nature. There is something of the
interpreter in every act of interpretation. When construing a written passage, an interpreter
inevitably draws upon his or her own life experiences as a basis for understanding the relevant
words. 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, ejusdem generis
is particularly vulnerable to the 'subjective' nature of interpretation, and may serve to surreptitiously
re-enforce cultural 'norms' that are imposed by a dominant social group. Despite its many
difficulties, ejusdem generis has enjoyed a reasonably successful career and continues to be relied
on as a maxim of interpretation, a luxury not enjoyed by the maxim 'reddendo singula singulis'.

(C) REDDENDO SINGULA SINGULIS

Literally translated, 'reddendo singula singulis' means 'referring each to each'. This rather cryptic
translation does little to explain the workings of the maxim. The function of reddendo can best be
explained through the use of examples. Consider the phrase 'Men and women may become
members of fraternities and sororities'.24 This passage can be construed in several ways. On the one
hand, perhaps it means that men may join both fraternities and sororities and that women may join
fraternities and sororities as well. On the other hand, it could mean that men may become members
of fraternities (but not sororities) and women may become members of sororities (but not
fraternities). This latter construction, which makes intuitive sense given the etymology of the terms
'fraternities' and 'sororities', is arrived at through the application of reddendo. Reddendo suggests
that 'men' should be matched with 'fraternities' and 'women' should be matched with 'sororities',
not because of the meaning of those words, but merely because of their placement within the
relevant passage. Each grammatical subject is 'referred' to its corresponding object. Thus, in the
phrase 'police officers and judges must retire at the ages of 65 and 75', the word 'respectively' is
effectively tacked on to the end of the passage by reddendo, matching the first case mentioned
(namely, police officers) with the first retirement age (65), and the second case mentioned (namely,
judges) with the second retirement age (75). The function of reddendo is difficult to describe with
any degree of felicity. One of the best attempts was made by Reed Dickerson, who describes the
maxim as follows: ... reddendo singula singulis in its legal form ... recognises that, context permitting,
the reader may properly infer that the author has intended a distributive relationship between two
juxtaposed series of ideas.25 Thus, where a text exhibits the pattern 'A and B are Y and Z', reddendo
suggests that A should be matched
Page 9

with Y and B should be matched with Z, achieving a rough sort of symmetry in the passage. The logic
of reddendo lies in the simple observation that people sometimes do combine multiple series of
ideas in a distributive manner. While the logic of the drafting practice itself may be elusive, it is
certainly logical to make oneself aware of this practice when interpreting legislation. A failure to
understand reddendo may leave interpretive possibilities undiscovered, diminishing our ability to
understand the language patterns that may be used by statutory drafters. The role of context is
exceedingly important where reddendo singula singulis is concerned. 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). The phrase 'men and
women may become doctors and nurses', however, is probably not an appropriate case for
reddendo. There is no sensible reason for associating 'men' exclusively with 'doctors' and 'women'
exclusively with 'nurses'. Indeed, our ideas concerning gender equality provide us with evidence that
the construction suggested by reddendo should be steadfastly avoided in this case, as a reddendo-
based construction would conflict with important public policies. The most difficult reddendo
problems are, of course, those in which no useful context is provided. The phrase 'dogs and cats shall
be kept in cages or on leashes', for example, provides us with very few clues concerning the
appropriateness of a reddendo-based construction. Although the application or non-application of
reddendo depends on the context of a provision rather than a simple pattern of language, the
importance of the maxim lies in the fact that it reminds us that an implicit 'distributive relationship'
among two series of ideas was once a common feature of legislative language, and may still appear
from time to time in modern statutes. It allows ambiguities to be identified in a text which contains
multiple series of ideas, and thus enables a more focused inquiry into the meaning of such a text.
Like other maxims, reddendo may never lead to a clear answer, but it often calls attention to some
rather important questions. It may also serve to remind the drafter to avoid the use of language that
might lead to reddendo problems; the liberal use of subsections and appropriate punctuation can
pre-vent such problems before they arise. The maxim may also draw attention to several common
problems of construction. While reddendo, strictly applied, refers only to those cases in which
multiple series of ideas are linked together ('A and B are Y and Z'), a study of reddendo often alerts
us to other 'quasi-reddendo' problems of construction. Consider the phrase 'men and women
weighing more than 150 lbs may join the fire department'. Does the phrase 'weighing more than 150
lbs' refer only to women, or does this qualification apply to men as well? Similarly, the phrase
'professional conduct and ethics' is ambiguous, in that the word 'professional' may simply modify
'conduct', or it may refer to 'ethics' as well. Like true reddendo problems, these are typical problems
of 'unclear distribution'. Passages of this nature do not truly call for the application of reddendo, but
a thorough study of the maxim may lead us to understand the nature of distributive relationships in
legislative drafting, alerting us to the ambiguities inherent in passages that exhibit this typical
drafting problem. Bishop v. Deakin26 provides an interesting example of the judicial use of the
reddendo maxim. The defendant had been convicted of perjury on July 6th, 1932 and sentenced to
six months imprisonment, without the option of a fine; she was subsequently elected as a councillor
on November 1st, 1934. Almost a year after the election, a writ was issued claiming that the
councillor was disqualified from holding public office as a result of her conviction. The statutory
provision on which the writ was based provided: A person shall be disqualified for being elected or
being a member of a local authority if he ... has within five years before the day of election or since
his election been convicted in the United Kingdom ... of any offence and ordered to be imprisoned
for a period of not less than three months, without the option of a fine. (emphasis added) On the
basis of this provision, the defendant was disqualified from being elected to any local authority until
five years had elapsed since the date of her conviction. However, the difficulty in Bishop v. Deakin
arose from a limitation period in the relevant legislation which created a six-month limitation period
for challenging elections. As the defendant had been in office for almost a full year before the writ
challenging her election was issued, the writ was outside the limitation period. The plaintiffs
consequently sought to challenge the defendant's right to continue holding office as a councillor.
Recall that the relevant legislation contained
Page 10

language stating that a person 'shall be disqualified for being elected or being a member of a local
authority'. The plaintiffs argued that the words 'being a member' allowed the defendant's right to
continue holding office to be challenged, despite the fact that the election itself was protected by
the limitation period. 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, the remedy for pre-election offences was to challenge the election, while the remedy of
removal from office was intended only for those officials who committed offences after being
elected. Relying on reddendo, Clauson J. accepted the arguments of the defendant. Although the
relevant section did provide a mechanism for removing officials from public office, that particular
remedy was permitted only in cases in which the official had broken the law after having been
elected. In Clauson J.'s opinion: The relevant words of the section are as follows: 'A person shall be
disqualified for being elected or being a member of a local authority if he has, within five years
before the day of election, or since his election, been convicted of any offence, and ordered to be
imprisoned for a period of not less than three months, without the option of a fine' ... The section
provides for two matters: first, what is to be the disqualification for election; and, secondly, what is
to be the disqualification for being a member after election; and it provides for two disqualifications:
first, conviction within five years before the day of election; and, secondly, conviction since election.
It is obvious that the second disqualification mentioned does not fit the first case mentioned,
namely, that of election, but it does fit the second case, and the second case only. It is also obvious
that the first disqualification mentioned fits the first case, and it does not seem at all apt to fit the
second case ... All difficulty can be avoided by applying the well-known method of construction
commonly known as reddendo singula singulis, and applying the first disqualification mentioned to
the first case dealt with, and the second disqualification to the second case dealt with, a
construction which, so far as I can see, infringes no rule of syntax or grammar. The result reached
seems to be quite sensible--namely, that conviction within five years before the day of election
disqualifies from election, and conviction after election disqualifies from continuance in office.27
Based on Clauson J.'s reasoning, the relevant section could have been redrafted as follows: First, a
person shall be disqualified from being elected if he has, within five years before the day of election,
been convicted of any offence. Second, a person shall be disqualified from being a member of a local
authority if he has been convicted of any offence since his election. Unfortunately, the four main
ideas of these sections (namely, disqualification from being elected, disqualification from continuing
to hold office, offences before elections and offences after elections) were combined in a most
unusual fashion, giving rise to a problem that called for the invocation of reddendo. Happily, Clauson
J. could be relatively confident in his use of the maxim. Clearly, offences committed after an election
could not be grounds for going back in time and challenging the election. Similarly, unusual results
would have flowed from a decision that offences before elections could result in removal from office
later on. Such a decision would have rendered the limitation period practically useless: if an attempt
to challenge an election was barred by the limitation period, 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, effectively performing an end-run around the limitation
period. Reddendo allowed to the Court to avoid this result. The Court accordingly accepted the
interpretation suggested by reddendo, holding that the two penalties provided for in the section
(namely, disqualification from elections and disqualification from holding office) bore a 'distributive
relationship' to the two types of offences that were listed in the section (namely, offences before
elections and offences after elections). The decision of the Court in Bishop v. Deakin is difficult to
follow. It makes much more sense, however, when one divides the provision at issue in Bishop into
its component parts and compares them to the 'fraternities and sororities' example. The four main
ideas in that example (namely men, women, fraternities and sororities) can be symbolically replaced
by the letters A, B, Y and Z. Rewritten using our symbols, the phrase 'men and women can become
members of fraternities and sororities' could appear as 'A and B can become members of Y or Z'.
Applying reddendo to this case, A matches with Y and B matches with Z. The same pattern holds in
Bishop v. Deakin. 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). Once again,
Page 11

applying reddendo, A matches with Y and B matches with Z. The pattern developed in the fraternity
and sorority example holds true, and a rough symmetry is achieved. The drafting style which leads to
this type of problem is largely one of the past, but old statutes may still be extant and require
interpretation. More importantly, a working knowledge of reddendo may remind modern drafters to
avoid the use of implicit distributive relationships in their drafting. Given the vast improvements
seen in legislative drafting over the last fifty years, it is not particularly surprising that reddendo
rarely makes appearances in modern court decisions. Reddendo accordingly remains somewhere in
the back of most interpretive arsenals, waiting to be used when ancient Acts become important, or
where some quirky drafter's sentence structure creates unusual problems. However, the final maxim
'expressio unius est exclusio alterius' has a wider application and still appears regularly in
judgements.

(D) EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

While there are frequent judicial references to 'expressio unius est exclusio alterius', many are
cryptic warnings against the use of the maxim. In Turgeon v. Dominion Bank,28 for example, the
Court enigmatically warned that while expressio unius certainly had 'its uses', it was nevertheless 'a
dangerous master to follow'.29 In Colquhoun v. Brooks,30 the Court went even further, noting that:
'... the method of construction summarised in the maxim 'Expressio Unius Est Exclusio Alterius' is
one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been
more frequently misapplied and stretched beyond their due limits ... the application of this and
every other technical rule of construction varies so much under differing circumstances, and is open
to so many qualifications and exceptions, that it is rarely that such rules help to arrive at what is
meant'.31 What is this 'dangerous master' which inspires judicial warnings? Translated literally,
'expressio unius est exclusio alterius' means 'the expression of one thing is the exclusion of another'.
This sounds simple enough, but this 'important rule ... of frequent application'32 is more complex
than it seems, and the judiciary's caution regarding the reckless use of this maxim is well founded.
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. The
maxim reflects a form of reasoning that is widespread and important in interpretation. Coté refers to
it as the a contrario argument. Dickerson refers to it as negative implication. The term 'implied
exclusion' has been adopted here ... 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, it would have referred to that thing expressly. Because of this expectation, the
legislature's failure to mention the thing becomes grounds for inferring that it was deliberately
excluded. Although there is no express exclusion, exclusion is implied.33 In other words, where a
statute fails to mention a specific case or item, we may have grounds to presume that the case or
item was excluded on purpose rather than through the drafter's inadvertence. In its simplest form,
this maxim looks a great deal like another maxim of interpretation known as casus omissus ('a case
omitted'). This simple, watered-down version of expressio unius could be used (for example) in a
statute that provided that 'pigs, chickens, cows and horses must be inspected by the agricultural
bureau'. The section does not mention sheep, and none of the words listed in the section seem
capable of bringing sheep within the section. Nor are there general words (such as 'or other
animals') that could extend the reach of the section to animals other than those listed. Because the
drafter has taken the time to specify the types of animals that must be inspected annually, we can
argue that sheep (and any other animals that have been left off the list) are not dealt with in this
section. That is not to say, of course, that we can infer that sheep need not be inspected. We have
no indication of the manner in which sheep are treated at common law or in sheep-related statutes.
All that we know is that the provision being examined, which deals with only 'pigs, chickens, cows
and horses', fails to embrace animals (such as sheep) that are not listed. The expression of
Page 12

pigs, chickens, cows and horses implied the exclusion of other non-listed animals. Most cases
involving expressio unius are far more complicated than this. Often we are inclined to include an
item by implication and must rely on expressio unius to assist us in deciding whether to yield to this
inclination. Consider the following example. In a will, a testator decides to leave the following gifts to
her cousin: 'my Toyota and my Cadillac, together with the tyres on my Cadillac'. Will the testator's
cousin also receive the tyres on the Toyota? We are inclined to say 'yes', because it seems sensible
to convey a vehicle's tyres along with the vehicle. Applying expressio unius, however, we may infer
that the tyres on the Toyota have not been given to the testator's cousin in this clause. The testator
has specifically addressed the issue of the tyres on the two vehicles, and has explicitly stated that the
tyres on the Cadillac should go to the beneficiary. Had the intention been that the cousin have the
Toyota's tyres as well, presumably the testator would have made it explicit. Had the intention been
that the cousin would inherit the tyres on the two vehicles by implication, 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. 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 failure to make such a provision for the Toyota tyres suggests that those tyres are
supposed to be dealt with differently. The expression of one thing (i.e., the gift of the Cadillac tyres)
implied exclusion of the other (a gift of the Toyota tyres). As a result, the testator's cousin is likely to
receive a Toyota without tyres.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 a statute that stated that 'no ships, boats or jet-skis are permitted on the
waterway during July'. 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. 'Had the author meant to
have this statute apply to hovercraft', one might argue, 'the author would have said so explicitly:
expressio unius est exclusio alterius'. This is where judicial admonitions regarding the reckless
application of this maxim come in handy. In a case such as this, the expressio unius argument is
certainly worth a try, but it wouldn't be particularly compelling. In the hovercraft example, we
simply have no basis for presuming that the legislative author turned his or her mind to hovercraft
and excluded them on purpose. Perhaps the author had only a vague idea of what was meant by the
term 'boats', and would have included hovercraft under that term. 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. In the hypothetical waterway statute, for example, 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. If our hypothetical statute had an
additional, separate section stating that 'ships, boats, jet-skis and hovercraft shall be registered with
the registrar of recreational crafts', we would have a reasonably strong reason for arguing that the
earlier section, barring 'ships, boats and jetskis' from the waterway in July did not apply to
hovercraft. The 'registration section' makes it clear that the legislative author is aware of hovercraft,
and considers them to be a separate case from ships, boats and jet skis. In other words, when the
author wished to catch the case of hovercraft, he or she said so with explicit language. Where that
language is absent, the exclusion of hovercraft can likely be inferred. In many cases, reliance on the
expressio unius maxim rests on our acceptance of two important presumptions. First (as we saw in
connection with ejusdem generis), we presume that legislative drafters never use extraneous
language. Recall the 'hovercraft' example developed above. In our hypothetical statute we
discovered two provisions. Section 1 provides that 'no ships, boats or jet-skis are permitted on the
waterway during July'. Section 2 provides that 'ships, boats, jet-skis and hovercraft shall be
registered with the registrar of recreational crafts'. Applying the 'no extraneous language'
presumption to this fictitious Act, we know that the author did not regard hovercraft as a species of
boat, ship or jet-ski. Section 2 makes this clear, as hovercrafts are dealt with separately from each of
the other vehicles. The word 'hovercraft' (in section 2) would have been extraneous had the concept
of hovercraft been caught by one of the other words. The second important presumption is known
as the presumption of consistent expression. This presumption suggests that the same word, used in
different parts of the same statute, expresses precisely the same idea. 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. If it does not include hovercraft in one section of the Act, it will not include hovercraft
later on. The presumption concerning extraneous language assured us that, for the
Page 13

purposes of section 2, the words 'ships, boats and jet-skis' did not include hovercraft, as hovercraft
were listed separately from the other items. The presumption of consistent expression informs us
that the terms 'ships, boats and jet-skis' are used in the same sense in sections 1 and 2. They do not
include hovercraft in section 2, so they cannot include hovercraft in section 1. Since hovercraft are
not mentioned in section 1, 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. We are said to 'infer' or 'imply' this exclusion, as there is no explicit language telling us
that hovercraft are excluded from the section. Taken together, the presumption regarding
extraneous language and the presumption of consistent expression allow us to use expressio unius
with a fair amount of confidence. Courts commonly rely on the maxim expressio unius. A good
illustration is Crease v. Board of Commissioners of Police of the Municipality of Metropolitan
Toronto (1976).35 In that case, George Crease and several colleagues had, 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. Section 26 provided, inter alia, that where a police
officer was charged with a Criminal Code offence the chief of police could 'suspend [the officer] from
duty'. The issue in Crease was whether the provision empowered suspension without pay; 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. 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. Counsel for Crease argued that suspension without pay appeared
to violate the presumption of innocence, and that a person suspended under the provision would be
unable to otherwise earn a living while awaiting trial. The Court in Crease resolved the issue by
applying expressio unius. While the provision under which Crease and his colleagues were
suspended did not address remuneration, 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'.37 Scortini J. 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. These aids include the rules of statutory
interpretation, especially the rule expressio unius est exclusio alterius, i.e., expression of one thing is
the exclusion of another. Stated another way: mention of one thing implies exclusion of another.
When certain persons or things are specified in a law, contract or will, an intention to exclude all
others from its operation may be inferred.38 In Scortini J.'s opinion, the absence of the words
'without pay' from the regulation pursuant to which Crease had been suspended was important.
Those words had been included in a section dealing with officers who were convicted of a breach of
the Criminal Code. As a result, 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. When a suspension was to
be without pay this was stated explicitly. This implied that the word 'suspended', by itself, was not
enough to permit suspensions without pay. Had the word 'suspended' included the notion of
'suspended without pay', the words 'without pay' would have served no purpose in the section
relating to suspensions flowing from criminal convictions. This would violate the rule against
extraneous language. Equally, the presumption of consistent expression leads to the conclusion that
'suspended' in the section relating to criminal charges has the same meaning as in the section
relating to convictions. Since the word 'suspended' in the convictions section needed the help of the
words 'without pay' in order to permit unpaid suspensions, the absence of those words in the
criminal charge section meant that unpaid suspensions were not permitted by that provision. The
legislature's decision to refer to suspensions 'without pay' in certain instances made is possible to
conclude that other references to suspensions, without the use of the words 'without pay', implied
that the suspended officer should be paid. Scortini J., buttressed this analysis 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, and penalty, respectively. 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. 26(1) of the Regulations, reflects the
presumption of innocence and the suspension is,
Page 14

therefore, a suspension of a police officer from his duties with pay.39 As a result, the Court held that
officer Crease and his colleagues were entitled to be paid while suspended from duty.

IV. CRITICISMS OF MAXIMS

The maxims considered in this article, like most maxims of interpretation, were born of observation
of the manner in which language is used. They commonly have a logical basis and can be helpful in
resolving problems of interpretation. Nevertheless maxims of interpretation have been the subject
of substantial criticism during the last several decades. Most of this criticism is misdirected. Almost
every argument against the use of maxims should be aimed at the users of maxims, rather than the
maxims themselves. Frequently, maxims are treated as binding rules and reliance is placed on them
without reference to their logical foundation. This trend can be corrected by the adoption of a more
principled approach to the use of maxims as tools of interpretation. One of the most common
criticisms of maxims deals with the perceived 'technical' nature of anything referred to as a 'maxim',
'rule' or 'canon' of construction. Many critics of the maxims reject so-called technical rules and
prefer to rely upon a more holistic approach to interpretation. A rallying cry of the 'holistic
interpreter' has been the words of Elmer Driedger: Today there is only one principle or approach,
namely, the words of an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of
Parliament.40 This 'one principle' has formed the basis of countless interpretive decisions, many of
which have disregarded the maxims or other 'technical' forms of interpretation.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. Standing alone, Driedger's oft-quoted 'one principle' statement
appears to support a holistic form of interpretation that may have little use for Latin maxims. With
respect, however, most commentators and jurists have (somewhat ironically) ignored the general
context in which the statement was made. Driedger's text on interpretation is replete with technical
rules, Latin maxims and other approaches to interpretation, all of which form components of
Driedger's 'one principle'. If one ignores the role that these technical rules play in interpreting
legislation, the 'one principle' by itself is of little utility. 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. Indeed, without the support of its technical components, the
'one principle' would have a comparable utility to a rule of ethics which declared that 'when
selecting a course of action, always do the right thing' without providing guidance as to how the
'right thing' is to be identified. The 'one principle' approach requires us to inquire into 'the intention
of Parliament' and to determine how the 'ordinary sense' of words can be incorporated
'harmoniously' into legislative language. How is one 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, one indeed finds a host of tools and approaches, including several
maxims of interpretation, designed to assist in providing an answer to such questions. A further
resistance to the use of maxims commonly stems from the language of interpretation statutes.
Section 12 of the Canadian federal Interpretation Act42 provides: Every enactment is deemed
remedial, and shall be given such fair, large and liberal construction and interpretation as best
ensures the attainment of its objects. Canadian provincial interpretation Acts contain similar
provisions.43 While such interpretation statutes require 'fair, large and liberal' interpretation, the
maxims seem to call for interpretations that are technical,
Page 15

small and narrow-minded. This criticism is answered in much the same way as that which flows from
Driedger's 'one principle'. The form of interpretation required by interpretation statutes is premised
upon our ability to determine the 'objects' of a legislative passage. Section 12 of the Canadian
federal Act, for example, requires our 'fair, large and liberal' interpretation to be one that 'ensures
the attainment of [the statute's] objects'. Our best evidence of the objects (or the purpose) of a
statute is the language in which the relevant text is drafted. Statutory language is often exceedingly
technical and difficult to construe. 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. Maxims are, not surprisingly, very useful for this purpose. The maxims point
us toward logical inferences that can be drawn from the drafters' choice to use a particular pattern
of language. As we have seen, these inferences are often rooted in systematic observation of the
manner in which language is used. One crucial element in determining the 'object' of a statute is to
decide why the drafter chose particular language. Maxims of interpretation have a dual value here.
First, while mistakes sometimes occur, we can generally assume that particular patterns of language
were selected by the drafter for a reason. The maxims draw our attention to the reasons for which a
drafter might choose a particular form of expression, and accordingly draw us closer to an
understanding of statutory language. Secondly, in choosing legislative language, drafters will do so
with an awareness of the maxims. A basic understanding of the logic underlying a drafter's choices is
the first step toward an understanding of the objects of a statute, and the foundation upon which a
'large and liberal' interpretation should be based. Perhaps the most substantial criticism of maxims is
that they merely provide unduly simplistic answers to the often complicated problems of statutory
construction. Maxims seem far too formulaic and simplistic to those who have been schooled in
complex theories of construction. 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. However, such criticism flows
from the fallacious vision that these maxims are rules, rather than simply useful tools which are
designed to unearth interpretive possibilities that inhabit typical statutory language.

V. SOME BENEFITS OF MAXIMS

Used correctly, the maxims of construction are persuasive. They do not provide 'pat answers', or any
form of answers for that matter; they raise questions. They force us to acknowledge the unconscious
assumptions that are made when we interpret legislation. 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. The handy Latin phrases in which
the maxims are expressed should never end an interpretive inquiry, they should add depth to an
interpretive inquiry that takes into account all possible sources of legislative meaning. Maxims are
neither arbitrary nor whimsical in nature. They were developed over countless generations,
reflecting time-honoured arguments concerning the manner in which people write and interpret
language. The logic of maxims is compelling, and can serve as the cornerstone of extremely powerful
arguments concerning the meaning of statutory language. While there is arguably no 'true meaning'
of a text, the maxims help uncover competing interpretive possibilities that can be used to direct a
court toward a logical construction of ambiguous legislation. They force the reader of statutes to
take a careful look at statutory language, uncovering a host of possible meanings that reside within
the text. The powerful logic underlying the maxims not only reveals these interpretive possibilities,
but also serves as the basis for persuading any interpreter to adopt the most sensible of the
competing interpretations. Where opposing counsel offer competing constructions of a legislative
passage, the maxims are a valuable addition to their respective arsenals, 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. Obviously, the
persuasive value of maxims holds only where maxims are used in the proper manner. As observed
above, where maxims are invoked in an unprincipled manner, they are vulnerable to unprincipled
rejection. It is far easier for a court to reject a simple Latin phrase than it is for the court to reject the
logic that
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underlies the maxims. In ejusdem generis cases, for example, it is easier for the court to refuse to
apply an unsupported Latin axiom than it is for the court to hold that a specific list of words within a
legislative passage is irrelevant. A holding that ejusdem generis does not apply, however, involves an
implicit holding that the general words of the passage are not narrowed by the specific terms that
accompany them, and that the specific words accordingly have no role to play within the relevant
statute. Counsel must ensure that courts are aware of these logical implications by drawing the
courts' attention to the rationale that underlies each maxim. In many cases, this logic proves to be
inescapable, obliging counsel or the court to search for compelling justifications for any deviation
from the construction suggested by a maxim. To take advantage of the persuasive power of maxims,
the lawyer proffering the relevant Latin phrase must explicitly state the presumption and the logic
that led courts to develop the relevant maxim. Used in this manner, the maxims are extremely useful
as interpretive aids, serving as the basis for exceedingly potent arguments. Many cases are won or
lost on the ability of counsel to use the maxims in an effective manner. A study of maxims enhances
counsel's ability to launch creative arguments concerning the meaning of statutory language,
allowing counsel to make persuasive arguments that might otherwise have escaped the courts'
attention. A further advantage of the maxim is as a research tool. Most maxims relate to specific
patterns of language that give rise to interpretive problems. When faced with a specific problem of
construction, it may be useful to review earlier cases in which a similar pattern of language was
considered. Finding such cases could be difficult without the structure provided by maxims. One
could construct a computerised search based in English terms and boolean logic in the hope of
uncovering an appropriate series of cases, but maxims are far more useful tools. 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. As the names of maxims are extremely specialised and couched
in dead language, they are unlikely to yield irrelevant results. The terms 'ejusdem', 'expressio',
'noscitur', and 'reddendo' don't come up all that often. When they do, they inevitably relate to
specific drafting problems that are dealt with by the maxims. Perhaps one of the greatest benefits of
maxims lies not as interpretive aids or research tools, but as educational devices. They provide
stimulating intellectual puzzles that are interesting to dissect and apply, also serve useful mnemonic
devices and, more importantly, encourage students to develop a healthy scepticism of language.
Because the maxims can be used to uncover interpretive problems that might otherwise escape
attention, they oblige the interpreter to refuse to take language at face value. 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.44 Maxims oblige us to address the fact
that a wide array of meanings resides within any writing, 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 more arguments that one has at one's disposal, the more likely one is to develop a clear,
persuasive case that a particular meaning of an ambiguous word or phrase should be accepted.
Maxims help the student to understand the amorphous nature of legal language, and to adopt a
practice of extremely careful reading. A knowledge of maxims improves drafting and construction,
and allows the student to predict and evaluate the manner in which courts interpret language. In
short, maxims force us to take language seriously.
VI. CONCLUSION

Reed Dickerson wrote: To do his cognitive job well, a judge must be unbiased, sensitive to language
usages and shared tacit assumptions, perceptive in combining relevant elements affecting meaning,
capable of reasoning deductively, and generously endowed with good judgement.45 This 'cognitive
job' is more easily pursued by jurists armed with a thorough understanding of the maxims of
construction. Maxims help lawyers and judges become sensitive to language usages as well as the
tacit assumptions that permeate legislative texts. Together with their power as research tools and
educational aids, the ability of maxims to clarify the meaning of ambiguous legislation makes it clear
that maxims have a role to play in modern law. The modern jurist, equipped with the knowledge
that maxims are not rigid rules
Page 17

but rather tools that raise and evaluate interpretive possibilities, 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. When lawyers learn to rely upon the logic underlying the maxims rather than
simply invoking the Latin names by which they are known, the courts well may rediscover the
inherent value of maxims and cease to reject them for incoherent reasons.

1 I would like to thank Kenneth Landa, LL.B. 2000 (Osgoode Hall Law School, York University) for his
helpful suggestions and encouragement during the preparation of this paper. I would also like to
thank Professor Graham Parker, whose notes on statutory interpretation drew my attention to
several of the cases referred to in this paper. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Tétrault-
Gadoury v. Canada (Employment & Immigration Commission), [1991] 2 S.C.R. 22, 23. Johnston v.
Canadian Men's Trust Association. [1932] S.C.R. 219, 220. Turgeon v. Dominion Bank [1930] S.C.R.
67, 70-71. Francis Bennion, Statute Law (London, England: Oyez Publishing Limited, 1980), 84. [1967]
2 All E.R. 576. Income Tax Act, 1952. [1967] 2 All E.R. 576, 578. Ibid. Ibid. Ibid. (1981) 125 D.L.R. (3d)
137. R.S.C. 1970, c. C-34. (1981) 125 D.L.R. (3d) 137, 142-143. (1950) 338 U.S. 680. at 681. at 682. at
682-684. at 684.
Page 18

20

at 682.

21 See Grini v. Grini (1969) 5 D.L.R. (3d) 640 for an application of the 'exhausting the genus'
exception to the ejusdem generis maxim. 22 [1990] 2 S.C.R. 1029.

23 The decision in National Bank of Greece has been almost universally criticised as an unprincipled
rejection of the ejusdem generis rule. See, for example, Aquasource Ltd v. British Columbia
(Information and Privacy Commission) [1998] B.C.J. No. 1927 (Q.L.), 111 B.C.A.C. 95. 24 Reed
Dickerson, The Interpretation and Application of Statutes (Boston, Massachusetts: Little, Brown and
Company, 1975), 233. 25 26 27 28 29 30 31 32 Ibid., 233. [1936] 1 All E.R. 255. at 257. [1930] S.C.R.
67. at 71. 19 Q.B.D. 400. at 406. Bennion, op-cit., n. 4, 84.

33 Ruth Sullivan, Driedger on the Construction of Statutes (Third Edition) (Toronto, Ontario:
Butterworths, 1994), 168 (citations omitted). 34 The situation could change, of course, if the Cadillac
tyres had some unusual properties that made it important for the testator to give them special
attention. If they were worth more than the car, for example, 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. 35 36 37 38 39 40 (1976) 66 D.L.R. (3d) 403. R.R.O. 1970, Reg. 680,
passed under the Police Act, R.S.O. 1970, c. 351. Police Regulations, Id., s. 26(3). (1976) 66 D.L.R. (3d)
403, at 406. Id., 407. Construction of Statutes, Second Edition, (Toronto, Ontario: Butterworths,
1983), 87.
Page 19

41 42 43 44 45

See, for example, R. v. McIntosh [1995] 1 S.C.R. 686. R.S.C. 1985, c. I-21. See, for example, the
Interpretation Act of Ontario, R.S.O. 1990, s.10. I would like to thank Stuart Wright, LL.B. 2000
(Osgoode Hall Law School, York University) for this observation. Dickerson, 236.
i Tétrault-Gadoury v. Canada (Employment & Immigration Commission), [1991] 2 S.C.R. 22, 23
ii Johnston v. Canadian Men's Trust Association. [1932] S.C.R. 219, 220
iii
Turgeon v. Dominion Bank[1930] S.C.R. 67, 70-71