R. v. McIntosh

R. v. McIntosh
Collection
Supreme Court Judgments
Date
1995-02-23
Report
[1995] 1 SCR 686
Case number
23843
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 23843
Decision Content
R. v. McIntosh, [1995] 1 S.C.R. 686
Her Majesty The Queen Appellant
v.
Bevin Bervmary McIntosh Respondent
Indexed as: R. v. McIntosh
File No.: 23843.
1994: November 28; 1995: February 23.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Defences ‑‑ Self‑defence ‑‑ Accused charged with second degree murder after stabbing deceased in what he claimed was an act of self‑defence ‑‑ Trial judge instructing jury that words "without having provoked the assault" should be read into s. 34(2) of Criminal Code ‑‑ Whether self‑defence as defined in s. 34(2) is available to initial aggressors ‑‑ Whether s. 37 outlining basic principles of self‑defence should have been put to jury ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 34(1) , (2) , 35 , 37 .
The accused, a disc jockey, had given the deceased, who lived in the same neighbourhood, some sound equipment to repair. Over the next eight months the accused made several attempts to retrieve his equipment, but the deceased actively avoided him. On the day of the killing, the accused's girlfriend saw the deceased working outside and informed the accused. The accused obtained a kitchen knife and approached the deceased. Words were exchanged. According to the accused, the deceased pushed him, and a struggle ensued. Then the deceased picked up a dolly, raised it to head level, and came at the accused. The accused reacted by stabbing the deceased with the kitchen knife. At his trial on a charge of second degree murder the accused took the position that the stabbing of the deceased was an act of self‑defence. The trial judge instructed the jury, however, that the words "without having provoked the assault", which appear in the self‑defence provision in s. 34(1) of the Criminal Code , should be read into s. 34(2) , which provides for a self‑defence justification for an aggressor who causes death or grievous bodily harm. The accused was convicted of manslaughter. The Court of Appeal set aside the conviction and ordered a new trial. This appeal is to determine (1) whether the trial judge erred in holding that the self‑defence justification in s. 34(2) is not available where an accused is an initial aggressor, and (2) whether he should have left s. 37 , which contains a general statement of the principle of self‑defence, with the jury.
Held (La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: Section 34(2) is clear on its face and is available to an initial aggressor. While s. 34(1) includes the statement "without having provoked the assault", s. 34(2) does not. A contextual approach to statutory interpretation lends no support to the position that these words should be read into s. 34(2) . If Parliament's intention is to be implied from its legislative actions, then there is a compelling argument that Parliament intended s. 34(2) to be available to initial aggressors, since it could have included a non‑provocation requirement in the provision. As well, the contextual approach does not generally mandate the courts to read words into a statutory provision. To do so would be tantamount to amending the provision, which is a legislative and not a judicial function. Finally, it is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. Section 34(2) , on its face, is available to the accused. It was an error for the trial judge to narrow the provision in order to preclude the accused from relying on it.
Where a provision is enacted by the legislature by the use of clear and unequivocal language capable of only one meaning, it must be enforced however harsh or absurd or contrary to common sense the result may be. The fact that a provision gives rise to absurd results is not sufficient to declare it ambiguous and then embark upon a broad‑ranging interpretive analysis. Only where a statutory provision is ambiguous, and therefore reasonably open to two interpretations, will the absurd results flowing from one of the available interpretations justify rejecting it in favour of the other. Further, even assuming that absurdity by itself is sufficient to create ambiguity, a literal interpretation of s. 34(2) is still to be preferred. The Criminal Code has a direct and potentially profound impact on the personal liberty of citizens, and thus requires an interpretive approach which is sensitive to liberty interests. An ambiguous penal provision must therefore be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law. Here s. 34(2) applies on its face to initial aggressors, and is therefore open to such an interpretation. This interpretation is more favourable to accused persons than the alternative advanced by the Crown, and is consistent with the clear wording of s. 34(2) , thus providing certainty for citizens.
While Parliament's intention in enacting s. 37 is unclear, at the very least the provision must serve a gap‑filling role, providing the basis for self‑defence where ss. 34 and 35 are not applicable. Since the accused has been unable to advance a scenario under which s. 34 as interpreted here and s. 35 would not afford him a defence, there appears to be no room left for s. 37 in this case.
Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The trial judge did not err in limiting s. 34(2) to unprovoked assaults in his instructions to the jury. The point of departure for statutory interpretation is not the "plain meaning" of the words, but the intention of the legislature. Since the words of s. 34(2), taken alone, do not provide a clear and conclusive indication of Parliament's intention, it is necessary to look further to the history of the section and the practical problems and absurdities which may result from interpreting the section one way or the other. Self‑defence at common law rested on a fundamental distinction: where the killer had not provoked the aggression the homicide was called "justifiable homicide", and where he had provoked the aggression it was called "excusable homicide". In the case of justifiable homicide the killer could stand his ground and was not obliged to retreat in order to rely on the defence of self‑defence. In the case of excusable homicide, on the other hand, the killer must have retreated as far as possible in attempting to escape the threat which necessitated homicide, before he could claim self‑defence. These two situations were codified in the first Criminal Code in 1892. Under s. 45, the predecessor of s. 34 , an accused who had not provoked the assault was a person "unlawfully assaulted"; he was entitled to stand his ground and need not retreat. This provision was later divided into two subsections and the phrase "so assaulted" in the second subsection, which had referred back to the phrase "unlawfully assaulted, not having provoked such assault", was subsequently replaced by "unlawfully assaulted". The need to insert the modifying phrase "not having provoked such assault" in the newly worded subsection was most likely overlooked. The marginal notes accompanying ss. 34 and 35 , Parliament's retention of the phrase "unlawfully assaulted" in both s. 34(1) and s. 34(2) and the fact that neither s. 34(1) nor s. 34(2) imposes a duty to retreat support the view that the omission was inadvertent and that Parliament continued to intend that s. 34 would apply to unprovoked assaults and s. 35 to provoked assaults. If the word "unlawful" is given its proper meaning, it is unnecessary to read anything into s. 34(2) to conclude that it does not apply to provoked assaults. Alternatively, if it were necessary to read in the phrase "without having provoked the assault", this would be justified. Policy considerations support this interpretation. People who provoke attacks must know that a response, even if it is life‑threatening, will not entitle them to stand their ground and kill. Rather, they must retreat.
Since ss. 34 and 35 exclusively dictate the application of the principles laid out in s. 37 where death or grievous bodily harm has occurred, the trial judge was correct in declining to leave s. 37 to the jury.
Cases Cited
By Lamer C.J.
Approved: R. v. Stubbs (1988), 28 O.A.C. 14; R. v. Nelson (1992), 71 C.C.C. (3d) 449; referred to: R. v. Baxter (1975), 27 C.C.C. (2d) 96; R. v. Bolyantu (1975), 29 C.C.C. (2d) 174; R. v. Merson (1983), 4 C.C.C. (3d) 251; R. v. Chamberland (1988), 96 A.R. 1; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201; Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379.
By McLachlin J. (dissenting)
Sussex Peerage Case (1844), 11 C. & F. 85, 8 E.R. 1034; R. v. Z. (D.A.), [1992] 2 S.C.R. 1025; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; R. v. Deruelle, [1992] 2 S.C.R. 663; R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Bolyantu (1975), 29 C.C.C. (2d) 174; R. v. Squire (1975), 26 C.C.C. (2d) 219; R. v. Merson (1983), 4 C.C.C. (3d) 251; R. v. Alkadri (1986), 29 C.C.C. (3d) 467; R. v. Stubbs (1988), 28 O.A.C. 14; R. v. Nelson (1992), 71 C.C.C. (3d) 449; Stock v. Frank Jones (Tipton) Ltd., [1978] 1 W.L.R. 231.
Statutes and Regulations Cited
Crimes Act 1961, S.N.Z. 1961, No. 43, s. 48(2) [rep. & sub. 1980, No. 63, s. 2].
Criminal Code, R.S.C. 1906, c. 146, s. 53(1), (2).
Criminal Code, R.S.C. 1927, c. 36, s. 53(1), (2).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 19 , 34(1) , (2) , 35 , 36 , 37 .
Criminal Code, S.C. 1892, c. 29, ss. 45, 46.
Criminal Code, S.C. 1953‑54, c. 51, ss. 34, 35.
Authors Cited
Blackstone, William. Commentaries on the Laws of England, Book IV. Oxford: Clarendon Press, 1769.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger, Elmer A. Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
East, Sir Edward Hyde. A Treatise of the Pleas of the Crown, vol. 1. London: J. Butterworth, 1803.
Maxwell, Sir Peter Benson. Maxwell on the Interpretation of Statutes, 12th ed. By P. St. J. Langan. London: Sweet & Maxwell, 1969.
APPEAL from a judgment of the Ontario Court of Appeal (1993), 15 O.R. (3d) 450, 84 C.C.C. (3d) 473, 24 C.R. (4th) 265, 65 O.A.C. 199, allowing the accused's appeal from his conviction of manslaughter and ordering a new trial. Appeal dismissed, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Michael Bernstein and Alexander Alvaro, for the appellant.
Russell S. Silverstein and Michelle Levy, for the respondent.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
Lamer C.J. --
I. Factual Background
1 On February 7, 1991, Basile Hudson, who made his living repairing appliances and electronic equipment, was stabbed to death by the respondent. The circumstances surrounding Hudson's death arose during the summer of 1990 when the respondent, a 26-year-old man, was working as a disc jockey. He gave the deceased, who lived in the same neighbourhood, an amplifier and other equipment to repair. Over the next eight months, the respondent made several attempts to retrieve his equipment, but the deceased actively avoided him. On one occasion, the respondent, armed with a knife, confronted the deceased and told him he would "get him" if the equipment was not returned. On another occasion, the deceased fled through the back exit of his home when the respondent appeared at the front door.
2 On the day of the killing, the respondent's girlfriend saw the deceased working outside and informed the respondent. The respondent obtained a kitchen knife and approached the deceased. Words were exchanged. The respondent testified that he told the deceased, "Get my fucking amp because I need it. Go suck your mother and bring my fucking amp." According to the respondent, the deceased pushed him, and a struggle ensued. Then the deceased picked up a dolly, raised it to head level, and came at the respondent. The respondent reacted by stabbing the deceased with the kitchen knife. He then threw the knife down and fled the scene. Later that day, after consulting with a lawyer, the respondent turned himself in.
3 On November 25, 1991, the respondent appeared in the Ontario Court (General Division) before Moldaver J. and a jury on a charge of second degree murder. He entered a plea of not guilty, and took the position at trial that the stabbing of the deceased was an act of self-defence. The jury found the respondent guilty of the lesser and included offence of manslaughter. He was sentenced to two and one-half years' imprisonment.
4 The respondent appealed his conviction to the Ontario Court of Appeal on the ground that the trial judge erred in instructing the jury that s. 34(2) of the Criminal Code, R.S.C., 1985, c. C-46 , was not applicable in the event they found that the respondent had been the initial aggressor, having provoked the deceased. The Court of Appeal allowed the respondent's appeal, set aside the conviction and ordered a new trial: (1993), 15 O.R. (3d) 450, 84 C.C.C. (3d) 473, 24 C.R. (4th) 265, 65 O.A.C. 199.
5 The Crown now appeals to this Court, arguing that the Ontario Court of Appeal erred when it reached the conclusion that self-defence as defined in s. 34(2) of the Criminal Code is available to accused persons who are initial aggressors.
II. Relevant Statutory Provisions
Criminal Code, R.S.C., 1985, c. C-46
Defence of Person
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
36. Provocation includes, for the purposes of sections 34 and 35 , provocation by blows, words or gestures.
37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
III. Decisions Below
A. Ontario Court, General Division
6 Moldaver J. first charged the jury with respect to self-defence under s. 34(1) , and then turned to the application of s. 34(2) . The portion of the charge with respect to s. 34(2) which the Court of Appeal found to be in error is the following:
Moving on from there, you will notice, ladies and gentlemen, that the words "without having provoked the assault", which we saw in s. 34(1) , do not appear in s. 34(2) . If you take a look on your paper and you look at 34(1), you will see the words "without having provoked the assault". You will not see those words in s. 34(2) .
However, as a matter of law, I direct you that those words are to be read into s. 34(2) . You will see the reason for this when we deal with s. 35 , but for the present time you must accept that the words "without having provoked the assault" are to be read into s. 34(2) .
7 Moldaver J. then charged the jury with respect to s. 35 . After reading s. 35 to the jury, Moldaver J. stated:
Now, for the purposes of this case, ladies and gentlemen, this section relates to a situation where the accused has, without justification, provoked an assault upon himself. It defines the nature and scope of the force which a person may use to defend himself after he has provoked an assault upon himself and the steps he must take before the force used in response can be justified.
B. Ontario Court of Appeal
8 Austin J.A. (Goodman and McKinlay JJ.A. concurring) considered two issues: (1) was the trial judge in error in reading the words "without having provoked the assault" into s. 34(2) of the Criminal Code ?; and (2) was the trial judge in error in not leaving s. 37 to the jury as a basis on which they could have found that the respondent was acting in self-defence?
9 In resolving the first issue, Austin J.A. felt that it was unnecessary to consider the history of s. 34, principles of statutory interpretation, the law in other jurisdictions, and the views of academics. Instead, the focus should be on the structure of s. 34, and Canadian jurisprudence. In Austin J.A.'s view, the problem with s. 34(2) (i.e., that it does not include the words "without having provoked the assault", whereas s. 34(1) does) has been apparent from the very first Criminal Code provisions dating from 1892. For this reason, legislative history did not resolve the problem.
10 Austin J.A. then considered the relevant case law. The Crown relied on the following cases for the proposition that "without having provoked the assault" should be read into the provision: R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.); R. v. Bolyantu (1975), 29 C.C.C. (2d) 174 (Ont. C.A.); R. v. Merson (1983), 4 C.C.C. (3d) 251 (B.C.C.A.); R. v. Chamberland (1988), 96 A.R. 1 (C.A.). The respondent relied on the following cases to support his position that provocation is irrelevant to s. 34(2) : R. v. Stubbs (1988), 28 O.A.C. 14 (C.A.); R. v. Nelson (1992), 71 C.C.C. (3d) 449 (Ont. C.A.).
11 Austin J.A. determined that the cases relied on by the Crown did not directly confront the issue he had to consider, and were "broad brush" statements concerning the interrelationship between ss. 34 and 35 of the Criminal Code . In contrast, the issue was addressed in the two cases on which the respondent relied. In both of those cases, the Ontario Court of Appeal had concluded that provocation is not relevant to s. 34(2) . These cases, in his opinion, were conclusive.
12 Austin J.A. then turned to the second issue. He disagreed with the respondent that s. 37 of the Criminal Code should be put to the jury in every case where self-defence might arise. He noted that counsel for the respondent had been invited to suggest a scenario which would not be covered by ss. 34 and 35 , and which might therefore be covered by s. 37 . No scenario was put forward. There was therefore no basis on which s. 37 could have been put to the jury.
13 As a result, the court set aside the respondent's conviction and ordered a new trial.
IV. Analysis
A. Introduction
14 This case raises a question of pure statutory interpretation: Is the self-defence justification in s. 34(2) of the Criminal Code available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself? The trial judge, Moldaver J., construed s. 34(2) as not applying in such a circumstance. The Ontario Court of Appeal disagreed.
15 The conflict between ss. 34 and 35 is obvious on the face of the provisions. Section 34(1) begins with the statement, "Every one who is unlawfully assaulted without having provoked the assault . . .". In contrast, s. 34(2) begins, "Every one who is unlawfully assaulted . . .". Missing from s. 34(2) is any reference to the condition, "without having provoked the assault". The fact that there is no non-provocation requirement in s. 34(2) becomes important when one refers to s. 35 , which explicitly applies where an accused has "without justification provoked an assault . . .". Therefore, both ss. 34(2) and 35 appear to be available to initial aggressors. Hence, the issue arises in this case of whether the respondent, as an initial aggressor raising self-defence, may avail himself of s. 34(2) , or should be required instead to meet the more onerous conditions of s. 35 .
16 As a preliminary comment, I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects. Moreover, their relationship to s. 37 (as discussed below) is unclear. It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing. The case at bar demonstrates this. During counsel's objections to his charge on ss. 34 and 35 , the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation.
17 Despite the best efforts of counsel in the case at bar to reconcile ss. 34 and 35 in a coherent manner, I am of the view that any interpretation which attempts to make sense of the provisions will have some undesirable or illogical results. It is clear that legislative action is required to clarify the Criminal Code 's self-defence regime.
B. Did the trial judge err in charging the jury that s. 34(2) of the Criminal Code is not available to an initial aggressor?
(i) Section 34(2) is not ambiguous
18 In resolving the interpretive issue raised by the Crown, I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This is another way of asserting what is sometimes referred to as the "golden rule" of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise (Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 29).
19 While s. 34(1) includes the statement "without having provoked the assault", s. 34(2) does not. Section 34(2) is clear, and I fail to see how anyone could conclude that it is, on its face, ambiguous in any way. Therefore, taking s. 34(2) in isolation, it is clearly available to an initial aggressor.
20 The Crown has asked this Court to read into s. 34(2) the words "without having provoked the assault". The Crown submits that by taking into consideration the common law of self-defence, legislative history, related Criminal Code provisions, margin notes, and public policy, it becomes clear that Parliament could not have intended s. 34(2) to be available to initial aggressors. Parliament's failure to include the words "without having provoked the assault" in s. 34(2) was an oversight, which the Crown is asking this Court to correct.
21 The Crown labels its approach "contextual". There is certainly support for a "contextual approach" to statutory interpretation. Driedger, in Construction of Statutes (2nd ed. 1983), has stated the modern principle of contextual construction as follows (at p. 87):
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. . . . Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island, [1921] 2 A.C. 384,* at p. 387, put it this way:
In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.
Driedger then reduces the principle to five steps of construction (at p. 105):
1. The Act as a whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedly enacted by the words), the object of the Act (the ends sought to be achieved), and the scheme of the Act (the relation between the individual provisions of the Act).
2. The words of the individual provisions to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the general body of the law, that is the end.
3. If the words are apparently obscure or ambiguous, then a meaning that best accords with the intention of Parliament, the object of the Act and the scheme of the Act, but one that the words are reasonably capable of bearing, is to be given them.
4. If, notwithstanding that the words are clear and unambiguous when read in their grammatical and ordinary sense, there is disharmony within the statute, statutes in pari materia, or the general law, then an unordinary meaning that will produce harmony is to be given the words, if they are reasonably capable of bearing that meaning.
5. If obscurity, ambiguity or disharmony cannot be resolved objectively by reference to the intention of Parliament, the object of the Act or the scheme of the Act, then a meaning that appears to be the most reasonable may be selected. [Emphasis added.]
22 Certainly, interpreting statutory provisions in context is a reasonable approach. However, a "contextual approach" lends no support to the Crown's position. First, the contextual approach takes as its starting point the intention of the legislature. However, given the confused nature of the Criminal Code provisions related to self-defence, I cannot imagine how one could determine what Parliament's intention was in enacting the provisions. Therefore, it seems to me that in this case one is prevented from embarking on a contextual analysis ab initio.
23 The Crown argues that it was Parliament's intention that neither s. 34(1) nor s. 34(2) be available to initial aggressors, and that it was a mere oversight that the words chosen in s. 34(2) do not give effect to this intention. I would have thought it would be equally persuasive to argue that Parliament intended both ss. 34(1) and (2) to be available to initial aggressors, and that Parliament's mistake was in including the words "without having provoked the assault" in s. 34(1).
24 Parliament's intention becomes even more cloudy when one refers to s. 45 of the 1892 Criminal Code, S.C. 1892, c. 29, which was the forerunner of ss. 34(1) and 34(2) :
45. Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [Emphasis added.]
There is a clear ambiguity in this provision. Does the expression "every one so assaulted" refer to "[e]very one unlawfully assaulted", or to "[e]very one unlawfully assaulted, not having provoked such assault"? This question is academic, since Parliament appears to have resolved the ambiguity in its 1955 revision of the Criminal Code, S.C. 1953-54, c. 51. The first part of the former s. 45 was renumbered s. 34(1), and the second part became s. 34(2) . The new s. 34(2) omitted any reference to a non-provocation requirement.
25 If Parliament's intention is to be implied from its legislative actions, then there is a compelling argument that Parliament intended s. 34(2) to be available to initial aggressors. When Parliament revised the Criminal Code in 1955, it could have included a provocation requirement in s. 34(2) . The result would then be similar to s. 48(2) of the New Zealand Crimes Act 1961, S.N.Z. 1961, No. 43 (repealed and substituted 1980, No. 63, s. 2 ) which was virtually identical to s. 34(2) save that it included an express non-provocation requirement:
48. . . .
(2) Every one unlawfully assaulted, not having provoked the assault, is justified in repelling force by force although in so doing he causes death or grievous bodily harm, if . . . [Emphasis added.]
The fact that Parliament did not choose this route is the best and only evidence we have of legislative intention, and this evidence certainly does not support the Crown's position.
26 Second, the contextual approach allows the courts to depart from the common grammatical meaning of words where this is required by a particular context, but it does not generally mandate the courts to read words into a statutory provision. It is only when words are "reasonably capable of bearing" a particular meaning that they may be interpreted contextually. I would agree with Pierre-André Côté's observation in his book The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 231, that:
Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say. . . .
The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2) , which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment.
27 Third, in this case we cannot lose sight of the overriding principle governing the interpretation of penal provisions. In Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle as follows, at p. 115:
Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal . . . I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.
Section 34(2) , as a defence, acts as a "subtraction" from the liability which would otherwise flow from the criminal offences contained in the Criminal Code . Criminal Code provisions concerning offences and defences both serve to define criminal culpability, and for this reason they must receive similar interpretive treatment.
28 This principle was eloquently stated by La Forest J.A. (as he then was) in New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201, at p. 210:
There is no doubt that the duty of the courts is to give effect to the intention of the Legislature as expressed in the words of the statute. And however reprehensible the result may appear, it is our duty if the words are clear to give them effect. This follows from the constitutional doctrine of the supremacy of the Legislature when acting within its legislative powers. The fact that the words as interpreted would give an unreasonable result, however, is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation. For it should not be readily assumed that the Legislature intends an unreasonable result or to perpetrate an injustice or absurdity.
This scarcely means that the courts should attempt to reframe statutes to suit their own individual notions of what is just or reasonable.
29 It is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. By this same reasoning, where such a provision is, on its face, favourable to an accused, then I do not think that a court should engage in the interpretive process advocated by the Crown for the sole purpose of narrowing the provision and making it less favourable to the accused. Section 34(2) , on its face, is available to the respondent. It was, with respect, an error for the trial judge to narrow the provision in order to preclude the respondent from relying on it.
30 I therefore conclude that s. 34(2) is not an ambiguous provision, and is available to an initial aggressor. I find myself in agreement with the Ontario Court of Appeal, which has reached a similar conclusion in its rulings in Stubbs, supra, and Nelson, supra, and in the case at bar.
(ii) Even though s. 34(2) may give rise to absurd results, the Crown's interpretation cannot be adopted
31 It is important to reiterate that there is no ambiguity on the face of s. 34(2) . The Crown's argument that the provision is ambiguous relies on legislative history, the common law, public policy, margin notes, and the relationship between ss. 34 and 35 . The Crown alleges that it would be absurd to make s. 34(2) available to initial aggressors when s. 35 so clearly applies. Parliament, the Crown submits, could not have intended such an absurd result, and therefore the provision cannot mean what it says. Essentially, the Crown equates absurdity with ambiguity.
32 The Crown asks this Court to resolve the absurdity/ambiguity by narrowing s. 34(2) so that it does not apply in the case of an initial aggressor. If the Crown is correct, then an initial aggressor could only rely on s. 35 of the Criminal Code , which imposes more onerous requirements. In particular, s. 35 (c) only allows an initial aggressor to raise self-defence where
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
33 The respondent takes the position that if there is ambiguity, it must be resolved in the manner most favourable to accused persons. As a result, s. 34(2) must be made available to initial aggressors.
34 I am of the view that the Crown's argument linking absurdity to ambiguity cannot succeed. I would adopt the following proposition: where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis.
35 In Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379 (H.L.), Lord Macmillan criticized the view that absurdity alone would justify the rejection of a literal interpretation of a statutory provision. He emphasized that an "absurdity approach" is generally unworkable because of the difficulty of developing criteria by which "to judge whether a particular enactment, if literally read, is so absurd that Parliament cannot have intended it to be so read . . ." (p. 388). He then proceeded, at p. 388, to outline what I believe to be the correct approach to statutory interpretation where absurdity is alleged:
. . . if the language of an enactment is ambiguous and susceptible of two meanings, one of which is consonant with justice and good sense while the other would lead to extravagant results, a court of law will incline to adopt the former and to reject the latter, even although the latter may correspond more closely with the literal reading of the words employed.
36 Thus, only where a statutory provision is ambiguous, and therefore reasonably open to two interpretations, will the absurd results flowing from one of the available interpretations justify rejecting it in favour of the other. Absurdity is a factor to consider in the interpretation of ambiguous statutory provisions, but there is no distinct "absurdity approach".
37 However, assuming for the moment that absurdity by itself is sufficient to create ambiguity, thus justifying the application of the contextual analysis proposed by the Crown, I would still prefer a literal interpretation of s. 34(2) .
38 As stated above, the overriding principle governing the interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons. Moreover, in choosing between two possible interpretations, a compelling consideration must be to give effect to the interpretation most consistent with the terms of the provision. As Dickson J. noted in Marcotte, supra, when freedom is at stake, clarity and certainty are of fundamental importance. He continued, at p. 115:
If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.
Under s. 19 of the Criminal Code , ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law. Yet we can hardly sustain such a presumption if courts adopt interpretations of penal provisions which rely on the reading-in of words which do not appear on the face of the provisions. How can a citizen possibly know the law in such a circumstance?
39 The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach which is sensitive to liberty interests. Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and cer