Criminal Law Notebook

Principles of Interpretation

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General Principles

The purpose of statutory interpretation is to "ascertain legislative intent".[1]

Original vs Purposive Meaning

The wording in a statute "must be construed as they would have been the day after the statute was passed".[2] This is because the words required context to understand and that context must be what existed at the time of the enactment.[3]

Where the wording is "scientific or technical" then broad interpretation would "do violence" to the intent of Parliament.[4]

However, not all terms in statutes are "confined to their original meanings" and may be "capable of growth and development to meet changing circumstances". "Statutory categories" will include things that are not known at the time of passing the law. Similarly, language that is "broad or open-textured" will also be capable of such changes.[5]

There are limitations to "purposive interpretation". Courts cannot choose to do what was not enacted. Bad or outdated policy is properly remedied by Parliament not the courts.[6]

Legislative Purpose

The objectives of an enactment are not permitted to shift over time and new objects cannot be introduced by courts after-the-fact.[7]

  1. ↑ R v Dineley, 2012 SCC 58 (CanLII), , [2012] 3 SCR 272, per Deschamps J (4:3), at para 44 ("Statutory interpretation aims to ascertain legislative intent, which is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used... . The courts ascertain legislative intent by reading legislative language in context and in its grammatical and ordinary sense, harmoniously with the scheme and purpose of the legislation at issue:..." [quotation marks and citations omitted])
  2. ↑ R v Perka, 1984 CanLII 23 (SCC), , [1984] 2 SCR 232, per Dickson J, at pp. 264 to 265 ("The doctrine of contemporanea expositio is well established in our law. “The words of a statute must be construed as they would have been the day after the statute was passed…")
    cf. R v Brady, 1998 ABCA 7 (CanLII), per Cote JA, at para 7 ("Courts should interpret legislation purposively and contextually. The court should look at their context, overall wording, apparent legislative scheme, and the evil aimed at (where the latter is admissible). For example, what if the wording of a statute is reasonably open to two interpretations, only one of which will advance the general legislative scheme, is workable, and will not cause any injustice? The court will probably choose the workable and fair interpretation.")
  3. ↑ Perka, ibid., at pp. 264 to 265 ("Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held")
    R v DWL, 2016 SCC 22 (CanLII), , [2016] 1 SCR 402, per Cromwell J
  4. ↑ DWL, ibid., at para 61
  5. ↑ DWML, ibid., at para 61 ("The Court noted that not all terms in all statutes must always be confined to their original meanings. Broad statutory categories are often held to include things unknown when the statute was enacted and words in constitutional documents must be capable of growth and development to meet changing circumstances. However, that interpretative approach is most often taken when the statutory language is broad or open-textured. ")
  6. ↑ Krayzel Corp. v Equitable Trust Co., 2016 SCC 18 (CanLII), , [2016] 1 SCR 273, per Brown J (6:3), at para 32 ("[Courts] cannot “do by ‘interpretation’ what Parliament chose not to do by enactment”: ... . But the converse is also true: courts may not undo by “interpretation” what Parliament chose to do by enactment. If s. 8 reflects bad or outdated public policy, the remedy lies with Parliament, not with the courts.")
    Paragon Capital Corporation Ltd v Starke Dominion Ltd, 2020 ABCA 216 (CanLII), per Antonio JA (dissenting), at para 101
  7. ↑ Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII), , [2013] 3 SCR 1101, per McLachlin CJ, at para 132
    This is referred to as the "doctrine against shifting objectives"

Fundamental Principle

The fundamental principle of statutory interpretation is that "the words of a statute 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 the legislature"[1]

This fundamental rule has been treated as effectively an amalgam of three "classic rules of interpretation":[2]

  1. the "Mischief Rule" that considers legislative intent;
  2. the "Literal Rule" that considers the "textual meaning"; and
  3. the "Golden Rule" that considers the "entire context" including established legal norms.

It is understood that legislators choose to adopt “language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation”.[3]

Whenever possible, every part of a provision should be assigned meaning.[4]

The "modern" approach to statutory interpretation can be divided into a separate inquiry of "(a) the statute's textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established heal norms"[5]

"Ordinary meaning" refers "to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context".[6] It is the "natural meaning which appears when the provision is simply read through".[7]

Legislative intent is not to be considered "frozen in time". Its meaning will "respon[d] to the inevitability of changing circumstances".[8]

  1. ↑ Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, per Iacobucci J, at para 21
    R v Bell Expressive Limited Partnership v Rex, 2002 SCC 42 (CanLII), , [2002] 2 SCR 559, per Iacobucci J, at para 26
    Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), , [2004] 2 SCR 248, per Iacobucci and Arbour JJ, at para 34 ("The modern principle of statutory interpretation requires that the words of the legislation 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”: [citation omitted]. This is the prevailing and preferred approach to statutory interpretation: [citation omitted] The modern approach recognizes the multi‑faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms. ") R v Brode, 2012 ONCA 140 (CanLII), per Epstien JA, (“direct that the words of a statute 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 the legislature.”)
    British Columbia v Henfrey Samson Belair Ltd, 1989 CanLII 43 (SCC), , [1989] 2 SCR 24, per McLachlin J, at p. 31 ("the provisions of an enactment relevant to a particular case are to be read in the following way:... 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).... 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.")
    R v Rioux, 1969 CanLII 83 (CSC), , [1969] SCR 599, 8 C.R.N.S. 21, [1970] 3 CCC 149, 10 DLR (3d) 196, per Hall J, at p. 26 ("First, in criminal matters, the phraseology used by Parliament must be given its ordinary meaning; this is a fundamental rule of interpretation.")
    R v Barton, 2019 SCC 33 (CanLII)}, per Moldaver J, at paras 70 to 71
    R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 19
    R v Jarvis, 2019 SCC 10 (CanLII), per Wagner CJ, at para 24
    R v Carson, 2018 SCC 12 (CanLII), per Karakatsanis J, at para 32
    R v Canadian Broadcasting Corporation, 2018 ABCA 391 (CanLII), per Rowbotham JA, at para 18
    R v Paterson, 2017 SCC 15 (CanLII), per Brown J, at para 31
  2. ↑ Cape Breton (Regional Municipality) v Nova Scotia (Attorney General), 2009 NSCA 44 (CanLII), per Macdonald CJ, at paras 36 to 41
  3. ↑ Howard’s Criminal Law (5th ed. 1990), at p. 11
  4. ↑ R v AA, 2015 ONCA 558 (CanLII), per Watt JA, at para 67
    R v Hutchinson, 2014 SCC 19 (CanLII), per McLachlin CJ and Cromwell J, at para 16
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 210
  5. ↑ Capre Breton (Regional Municipality) v Nova Scotia (Attorney General), supra, at paras 36 to 38
  6. ↑ Pharmascience Inc. v Binet, 2006 SCC 48 (CanLII), , [2006] 2 SCR 513, per LeBel J, at para 30
    R v Wookey, 2016 ONCA 611 (CanLII), per Tulloch JA, at para 25
  7. ↑ Canadian Pacific Air Lines Ltd. v Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 SCR 724, per Gonthier J, at p. 735
    Pharmascience Inc v Binet, supra, at para 30
    Wookey, supra, at para 25
  8. ↑ R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), per McLachlin CJ, at para 38 (" The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute’s enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances. Instead, we recognize that the law speaks continually once adopted")

Ambiguity

Where there is no ambiguity the fundamental principle of interpretation is the only principle that applies. The other principles only apply where there is "ambiguity".[1]

Ambiguity exists where the provision is "reasonably capable of more than one meaning".[2] The ambiguity must be "real".[3] Two or more interpretations must be "each equally in accordance with the intentions of the statute".[4]

Ambiguity does not exist merely where courts or other writers disagree on interpretation.[5]

Ambiguity in the wording of one language may be resolved by considering whether the other language wording provides clarity before considering other principles of interpretation.[6]

Where the meaning of the English and French versions diverge, the proper interpretation should be the lowest common denominator.[7]

  1. ↑ Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 (CanLII), , [2002] 2 SCR 559, per Iacobucci J, at paras 26 to 28
  2. ↑ Bell ExpressVu, supra, at para 29 ("What, then, in law is an ambiguity? To answer, an ambiguity must be “real” [citation omitted]. The words of the provision must be “reasonably capable of more than one meaning” [citation omitted]. By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General) [citation omitted], is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.")
  3. ↑ Bell ExpressVu, supra, at para 29
  4. ↑ Bell ExpressVu, supra, at para 29
  5. ↑ Bell ExpressVu, supra, at para 30
  6. ↑ R v Mac, 2002 SCC 24 (CanLII), , [2002] 1 SCR 856, per Bastarache J, at paras 26 to 31
  7. ↑ R v Daoust, 2004 SCC 6 (CanLII), , [2004] 1 SCR 217, per Bastarache J (7:0), at para 2

Other Principles

Error or Omissions

The court has no authority to correct any errors or omissions in legislation where it is a "clearly drafted enactment".[1]

Principle of legality

The principle of legality requires that legislation provide a degree of certainty, and should reflect “the overall need to use the criminal law with restraint”[2]

No surplusage and presumption against tautology

No provision in an act "should be interpreted so as to render it mere surplusage.”[3] Stated differently there is a presumption against legislative bodies using "superfluous or meaningless words".[4]

It is a principle that "Parliament does not speak in vain".[5]

Parliament is presumed to have a purpose for each provision and avoids superfluous and meaningless language.[6]

There is a presumption against legislative drafters being redundant.[7]

Remedial Purpose

Under s. 12 of the Interpretation Act, "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."[8] This requires that the court examine what the problem the act is attempting to solve and interpret the meaning in that light.[9]

Constitutional Interpretation and Charter values

Where multiple interpretations exist the court should only consider those interpretations that are constitutional.[10]

A provision should be interpreted to conform with "Charter values".[11]

This principle only applies where there is ambiguity.[12]

International Law

It is presumed that all laws of Canada are to accord with international law.[13] Parliament is free to make laws that conflict, but it should do so "clearly and expressly".[14]

Presumption of Consistent or Uniform Expression (same words, same meaning)

Unless it appears otherwise, the same words used by the legislature have the same meaning within a statute, and different words have different meanings.[15]

"[A]bsent express language to the contrary, the same words in two subsections of the same provision should be treated alike... Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation".[16]

The principle of "uniformity of expression" states that a word or phrase should have one and only one meaning across the statute and enabled regulation. The opposite is also true, the use of different wording implies a different meaning.[17] The principles of uniformity of expression are not infallible.[18]

Amending the common law

There is a presumption against interpreting statutes as changing the common law, except where they "clearly and unambiguously" intend to do so.[19]

Avoiding absurdities

Where the language of a statue has multiple meanings, it must be interpreted to exclude absurd results. [20]

General wording

General wording of a statute is to provide the court with the responsibility to interpret in a prescriptive manner.[21]

Associated words rule

Terms associated with each other in the form of an enumeration linked by "and" or "or" are to "serve an analogous grammatical and logical function within a provision". The terms are to "draw colour" from each other through their commonality and differences. This is to be used to resolve ambiguity or limit the scope of the terms.[22]

Last Antecedents

When legislation lists a series of clauses, a "comma before a qualifying word ordinarily indicates that they are meant to apply to all antecedents while the absence of a comma indicates that they are meant to apply to the last antecedent alone."[23]

Relative words "must ordinarily be referred to the last antecedent" to give the words full meaning.[24] This rule should yield where the result "makes nonsense".[25]

Deference to Parliament

Deference must be given to the manner chosen to achieve its objectives.[26]

Legislative History

The history of legislation can be an important part of "the context" for statutory interpretation.[27] The history can sometimes provide insight into how to interpret the provision.[28]

House of Commons debates that indicate the object of the bill can regularly be relied upon as evidence for the legislative purpose.[29]

Legislative Headers and Marginal Notes

Marginal notes are of limited value.[30] However, they can be "relevant to interpreting the provisions arranged under it".[31]

  1. ↑ R v Daoust, 2004 SCC 6 (CanLII), , [2004] 1 SCR 217, per Bastarache J (7:0), at para 45
  2. ↑ see D. Stuart, Criminal Law: A Treatise (5th ed. 2007), at p. 86
  3. ↑ R v Proulx, 2000 SCC 61 (CanLII), per Lamer CJ, at para 25
  4. ↑ R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA, at para 67 ("We presume that legislative bodies avoid superfluous or meaningless words. Every word and phrase used in a statute has a meaning and a function. Thus, we eschew interpretations that render any portion of a statute meaningless, pointless, or redundant")
    Winters v. Legal Services Society, 1999 CanLII 656 (SCC), , [1999] 3 SCR 160, per Binnie J, at para 48
    R v Katigbak, 2011 SCC 48 (CanLII), , [2011] 3 SCR 326, per McLachlin C.J. and Charron J, at para 59
  5. ↑ Attorney General of Quebec v Carrières Ste-Thérèse Ltée, 1985 CanLII 35 (SCC), [1985] 1 SCR 831, per curiam, at p. 838
  6. ↑ Medovarski v Canada, 2005 SCC 51 (CanLII), [2005] 2 SCR 539, [2005] S.C.J. No. 31 (QL), per McLachlin CJ, at paras 31 to 38
    R v Plummer, 2006 CanLII 38165 (ON CA), (2006), 214 CCC (3d) 84, [2006] OJ No 4530 (ONCA), per Rosenberg JA, at para 19
    R v Joncas, 2007 NBCA 28 (CanLII), [2007] NBJ No. 152, per Drapeau CJ, at para 17
  7. ↑ R v Shand, 2011 ONCA 5 (CanLII), per Rouleau JA, at para 107
    National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW - Canada) Local No. 27 v. London Machinery Inc., 2006 CanLII 8711 (ON CA), 79 O.R. (3d) 444 (C.A.), per Cronk JA, at para 7
  8. ↑ R.S., c. I-23, s. 11.
  9. ↑ R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ, at paras 31 to 34
    Canada 3000 Inc., Re; Inter‑Canadian (1991) Inc. (Trustee of), 2006 SCC 24 (CanLII), [2006] 1 SCR 865, per Binnie J, at para 36 ("the notion that a statute is to be interpreted in light of the problem it was intended to address is as old at least as the 16th century”)
  10. ↑ Slaight Communications v Davidson [1989] 1 SCR 1038, 1989 CanLII 92 (SCC), per Dickson CJ
    R v Canadian Pacific Ltd., [1995] 2 SCR 1031, 1995 CanLII 112 (SCC), per Gonthier J, at para 12
    R v Nickel City Transport (Sudbury) Ltd., Nickel City Transport (Sudbury) Ltd., 1993 CanLII 8483 (ON CA)
    R v Rube, [1992] 3 SCR 159, 1992 CanLII 34 (SCC), per Lamer CJ
  11. ↑ Bell ExpressVu, supra
    Hills v Canada (Attorney General), [1988] 1 SCR 513, 1988 CanLII 67 (SCC), per L'Heureux‑Dubé J, at para 93 ("Appellant ... urged that preference be given to Charter values in the interpretation of a statute, ... I agree that the values embodied in the Charter must be given preference over an interpretation which would run contrary to them... ")
    R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, 1992 CanLII 72 (SCC), per Gonthier J ("It must be remembered that if there are two possible interpretations of a statutory provision, one of which embodies the Charter values and the other does not, that which embodies the Charter values should be adopted.")
  12. ↑ Bell ExpressVu, supra
  13. ↑ R v Hape, 2007 SCC 26 (CanLII), [2007] 2 SCR 292, per LeBel J , at para 53
  14. ↑ R v Chowdhury, 2014 ONSC 2635 (CanLII), per Nordheimer J , at para 20
  15. ↑ R v AA, 2015 ONCA 558 (CanLII), per Watt JA (3:0), at para 68
    R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA, at para 68 ("We also presume the legislative body uses language in a careful and consistent manner. Thus, within a statute, the same words and phrases have the same meaning and different words and phrases have different meanings. Unless the context clearly indicates otherwise, words and phrases should be assigned the same meaning wherever they appear in a statute")
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at 214 to 215
    R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378, per Sopinka J (5:0), at p. 1387
    R v Bansal, 2017 BCCA 93 (CanLII), per Frankel JA (3:0), at para 41 (the principles "presumes that, unless the contrary appears, the same words will have the same meaning in a statute, particularly when they are used in close proximity")
  16. ↑ R v Charette, 2009 ONCA 310 (CanLII), per Moldaver JA (3:0), at para 38 citing Zeolkowski, supra, at p. 1387
  17. ↑ see Maurice v Priel, 1987 CanLII 207 (SK CA), per Bayda CJ, at pp. 20-21
  18. ↑ R v Trang, 2001 ABQB 106 (CanLII), per Binder J, at para 21
  19. ↑ R v Goleski, 2014 BCCA 80 (CanLII), per Frankel JA (3:0), at para 77
    Slaight Communications Inc. v Davidson, 1989 CanLII 92 (SCC), [1989] 1 SCR 1038, per Dickson CJ, at p. 1077
    Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII), [2003] 2 SCR 157, per Iacobucci J, at para 39
    Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19 (CanLII), [2016] 1 SCR 306, per Gascon and Côté JJ (9:0), at paras 29 to 30
  20. ↑ R v Canadian Pacific Ltd., 1995 CanLII 112 (SCC), (1995), 99 CCC (3d) 97 (SCC), per Gonthier J, at para 65
    R v Hinchey, 1996 CanLII 157 (SCC), per L’Heureux-Dubé J
    Rizzo, supra, at para 27
    Ali, supra, at para 71 ("An interpretation that leads to an absurdity may be rejected in favour of a plausible alternative that avoids the absurdity.")
    R v McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, per Lamer CJ, at p. 722 (SCR)
    Morgentaler v. The Queen, 1975 CanLII 8 (SCC), [1976] 1 S.C.R. 616, per Pigeon J, at p. 676
  21. ↑ R v Beauchamp, 2009 CanLII 37720 (ON SC), per Smith J, at paras 40 to 41
  22. ↑ R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA, at para 69 ("The associated words rule may be invoked when two or more terms, linked by “and” or “or”, serve an analogous grammatical and logical function within a provision. The terms draw their colour from each other. We look to a common feature among the terms and rely on that common feature to resolve ambiguity or limit the scope of the terms")
    R v Goulis, 1981 CanLII 1642 (ON CA), 60 CCC (2d) 348 (Ont. C.A.), per Martin JA, at pp. 352-353
    See also, Ontario v Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 SCR 1031, per Gonthier J, at para 64
    R v Daoust, 2004 SCC 6 (CanLII), , [2004] 1 SCR 217, per Bastarache J, at paras 49 to 51
    Opitz v Wrzesnewskvj, 2012 SCC 55 (CanLII), [2012] 3 SCR 76, per Rothstein and Moldaver JJ, at paras 40 to 43
  23. ↑ R v CL, 2005 NSFC 21 (CanLII), per Comeau J, at para 7 citing Dreidger, "Construction of Statutes (3rd Ed.), at p. 277
  24. ↑ Re Hinton Avenue, Ottawa, 1920 CanLII 443 (ON CA), per Sutherland JA
  25. ↑ R v Frank, [1978] 1 SCR 95, 1977 CanLII 152 (SCC), per Dickson J (9:0)
  26. ↑ Beauchamp, ibid., at paras 42 to 44
  27. ↑ R v ADH, 2013 SCC 28 (CanLII), per Cromwell J, at para 30
    Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 (CanLII), [2011] 3 SCR 471, per LeBel and Cromwell JJ, at para 43
  28. ↑ Goleski, ibid., at para 31
    R v Ulybel Enterprises Ltd., 2001 SCC 56 (CanLII), per Iacobucci J (7:0), at para 33
    Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), per Iacobucci J, at para 34
    Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 (CanLII), per McLachlin CJ and Deschamps J, at para 17
    McDiarmid Lumber Ltd. v God’s Lake First Nation, 2006 SCC 58 (CanLII), per McLachlin CJ, at para 46
  29. ↑ see e.g. Canadian National Railway Co v Canada (A.G.), 2014 SCC 40 (CanLII), [2014] 2 SCR 135, per Rothstein J (7:0), at para 47
  30. ↑ Interpretation Act, s. 14
    Imperial Oil Ltd. v Canada; Inco Ltd. v Canada, 2006 SCC 46 (CanLII), [2006] 2 SCR 447, per LeBel J (4:3), at para 57
    R v Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 SCR 541, [1987] S.C.J. No. 71 (QL), per Wilson J, at paras 18 to 19
    Skapinker v Law Society of Upper Canada, 1984 CanLII 3 (SCC), [1984] 1 SCR 357, [1984] S.C.J. No. 18 (QL), per Estey J, at para 25 - Charter interpretation, (“These headings in Part I appear to be integral to the Charter provisions and hence of more significance than the marginal notes and chapter headings sometimes appearing in the statutes.”)
  31. ↑ Ambrosi v. British Columbia (Attorney General), 2014 BCCA 123 (CanLII), per Bennett JA (3:0), at para 54
    Law Society of Upper Canada v Skapinker, supra

Interpreting the Criminal Code

The common law rules and principles can be used to explain the outlines and boundaries of a defence.[1]

Under s. 8(2) provides that the English criminal law as it existed immediately before April 1, 1955, are still applicable to Canada. This does not include the common law or statutory offences from Great Britain.[2]

If a penal provision is ambiguous as it has two reasonably capable interpretations, "that interpretation which is the more favourable to the accused must be adopted".[3]

Interpreting Terms Not Otherwise Defined

Where statute has not defined a term within the Criminal Code it is open to the judge to consult a dictionary to assist in defining its meaning.[4]

Cross-References

Interpretation of cross-referencing is addressed in s. 3 of the Interpretation Act:

Descriptive cross-references

3. Where, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parenthesis that are or purport to be descriptive of the subject-matter of the provision referred to, the words in parenthesis form no part of the provision in which they occur but shall be deemed to have been inserted for convenience of reference only.
1976-77, c. 53, s. 2.

– CCC

Note up: 3

Cross-references are not binding on interpretation and are effectively illustrative.[5]

Any parenthetical notes found in the criminal code are not operative and are inserted "only for ease of reference".[6]


  1. ↑ R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, per Gonthier J ("courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.")
  2. ↑ see s. 9
  3. ↑ Regina v Goulis, 1981 CanLII 1642 (ON CA), per Martin JA
    United States of America v Dynar, [1997] 2 SCR 462, 1997 CanLII 359 (SCC), per Cory and Iacobucci JJ, at p. 503
  4. ↑ R v St. Pierre, 1974 CanLII 874 (ON CA), per Dubin JA
  5. ↑ eg. see R v JJR, 2003 CanLII 32169 (ON CA), per MacPherson JA
  6. ↑ R v Pritchard, [2008] 3 SCR 195, 2008 SCC 59 (CanLII), per Binnie J (7:0), at para 25

Specific Wording

"means" vs "includes"

The word "means" when defining terms is means to be "explanatory and restrictive" in nature. While "includes" is "extensive" in nature.[1] "Means" "indicates that the definition is exhaustive".[2] An "exhaustive" term is one where the definition "completely displace[s] whatever meanings the defined term might otherwise bear in ordinary or technical usage".[3]

"appropriately"

The word "appropriately" connotes that the application judge retains "some degree of discretion considering and weighing relevant factors, not the mechanical application of a narrow jurisdictional test".[4]

Evidence to the Contrary

See Presumptions

Appellate Review

Interpretation of a section of the Criminal Code is a question of law and is reviewable on a standard of correctness.[5]

  1. ↑ R v Sheets, 1971 CanLII 130 (SCC), [1971] SCR 614, per Fauteux CJ, at pp. 619 to 620
  2. ↑ R v Wookey, 2016 ONCA 611 (CanLII), per Tulloch JA, at para 34
  3. ↑ Wookey, ibid., at para 34
    R v ADH, 2013 SCC 28 (CanLII), [2013] 2 SCR 269, per Cromwell J, at para 43
    Yellow Cab Ltd v Alberta (Industrial Relations Board), 1980 CanLII 228 (SCC), [1980] 2 SCR 761, per Ritchie J, at pp. 768-69
  4. ↑ Icecorp International v Nicolaus, 2007 BCCA 97 (CanLII), per Levine JA, at para 23
    see also R v Penney-Flynn, 2018 CanLII 116040 (NL PC), at paras 26 to 28
  5. ↑ R v Goulet, 2011 ABCA 230 (CanLII), per Slatter JA, at para 7
    R v Hubek, 2011 ABCA 254 (CanLII), 513 AR 194, per curiam, at para 6
    R v McColl, 2008 ABCA 287 (CanLII), per Hunt JA, at para 8

Interpreting Criminal Offences

There are recognized limits on the ability of criminal law to fulfill its objectives. The criminal law must be restrained and avoid over-criminalizing peoples' activities. There must be a distinction made between true-crime deserving of "harsh sanctions" and conduct that is merely undesirable or unethical but "lacks the reprehensible character of criminal acts"[1]

The criminal nature of an offence is a key feature to the statutory construction analysis.[2]

The criminal law must provide "fair notice of what is prohibited and clear standards of enforcement".[3]

The "most direct and authoritative evidence" of a provision's legislative purpose is in the enacting legislation, including "the beginning of a statute, in the section in which a provision is found, or in sections providing interpretive guidelines".[4]

Offences should be interpreted purposively in a manner consistent with the philosophy and rationale of the legislative objectives.[5]

Offences should not be interpreted as penalizing trivial act.[6]

strict construction

The rule of strict construction does not apply when the Offence definition is resolved and not ambiguous.[7]

There must be "express" wording that indicates that penalties include incarceration. Incarceration by implication is not sufficient.[8]

wording across different acts

Also, under s. 4(4):

4.
[omitted (1), (2) and (3)]

Expressions taken from other Acts

(4) Where an offence that is dealt with in this Act relates to a subject that is dealt with in another Act, the words and expressions used in this Act with respect to that offence have, subject to this Act, the meaning assigned to them in that other Act.
[omitted (5), (6), (6.1), (7) and (8)]
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1.

– CCC

Note up: 4(4)

  1. ↑ R v Hutchinson, 2014 SCC 19 (CanLII), per McLachlin CJ and Cromwell JJ, at para 18
  2. ↑ R v Canadian Broadcasting Corporation, 2018 ABCA 391 (CanLII), per Rowbotham JA, at para 3 (the criminal nature is a "key feature to the statutory construction analysis which follows. Under the rule of law, prosecution for criminal conduct should never be on an uncertain legal footing."
  3. ↑ Hutchinson, ibid., at para 18
  4. ↑ R v Appulonappa, 2015 SCC 59 (CanLII), per McLachlin CJ, at para 49
  5. ↑ R v Fong, 1994 ABCA 267 (CanLII), (1994), 92 CCC (3d) 171 (C.A.), per curiam, leave denied (1995), 94 CCC (3d) vii - in context of s. 152
  6. ↑ R v Beauchamp, 2009 CanLII 37720 (ON SC), per R Smith J, at paras 38 to 39
  7. ↑ R v Mac, 2002 SCC 24 (CanLII), [2002] 1 SCR 856, per Bastarache J, at para 4
    R v Hasselwander, 1993 CanLII 90 (SCC), [1993] 2 SCR 398, per Cory J, at paras 27 to 31
    Canadian Broadcasting Corporation, supra, at paras 19 to 21
  8. ↑ Marcotte v Canada (Deputy Attorney General), [1976] 1 SCR 108, 1974 CanLII 1 (SCC), per Dickson J

Rules of Evidence

Parliament must be explicit if it seeks to remove the common law requirements for the qualification of experts.[1]

  1. ↑ R v Bingley, [2017] 1 SCR 170, 2017 SCC 12 (CanLII), per McLachlin CJ

Charter Interpretation

The goal of Charter interpretation to secure for all people "the full benefit of the Charter's protection".[1]

Purposive Interpretation

This requires a judge to interpret a Charter right using a "purposive approach"[2] (or sometimes called "purposive analysis").[3] This mean that a right is to be understood "in light of the interests it was meant to protect".[4] It should be interpreted in "a manner that best ensures the attainment of its objects".[5]

It is important that the right be "generous" and not "a legalistic one", while at the same time not to "overshoot" the "actual purpose" of the right.[6] The effect of a purposive interpretation should "normally ... be to narrow the scope of the right".[7]

Similarly the interpretation of any Charter right must not "second-guess" and instead should "respect proper choice[s]" of the government.[8]

The right must be "placed in its proper linguistic, philosophic and historical contexts".[9]

In interpreting the Charter judges must avoid "adjudicati[ng] the merits of public policy".[10]

Living Tree Doctrine

The Charter is to be interpreted using the "living tree" doctrine, which requires the meaning of the text to be capable of "growth and expansion".[11]

"Historical materials" such as legislative history should not be used to "stunt [the Charter's] growth".[12]

Legislative History

Speeches and statements of public servants and minutes of the parliamentary committees who assisted in drafting the Constitution are of limited weight for reasons including that it would freeze the rights as they were at the time of drafting.[13]

Remedies

When applying purposive interpretation it requires that remedies be interpreted in a way to provide "a full effective and meaningful remedy for Charter violations".[14] A Charter remedy must crafted to be responsive and effective.[15]

United States

In the US constitutional interpretation of the Eighth Amendment (similar to our s. 8 of the Charter) the provision "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[16]

  1. ↑ R v Morgentaler, 1988 CanLII 90 (SCC), per Dickson CJ, at p. 51
    R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J, at p. 344
  2. ↑ R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, per Lamer J
  3. ↑ Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
    R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J
    R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J, at para 29 - re s. 11(i)
    R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J, at paras 61 and 63 - re s. 11(i)
  4. ↑ Big M Drug Mart, supra, at p. 344
    Morgentaler, supra, at p. 52
    Hunter v Southam, supra
    R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613
  5. ↑ R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), per McLachlin CJ (9:0), at para 18
  6. ↑ Big M Drug Mart, supra, at p. 117
  7. ↑ R v Stillman, 2019 SCC 40 (CanLII), per Moldaver and Brown JJ, at para 21
    Hogg, Peter W., Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2017, release 1) ("In the case of most rights ... the widest possible reading of the right, which is the most generous interpretation, will “overshoot” the purpose of the right, by including behaviour that is outside the purpose and unworthy of constitutional protection. The effect of a purposive approach is normally going to be to narrow the scope of the right. Generosity is a helpful idea as long as it is subordinate to purpose.")
  8. ↑ Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, per Cory and Iacobucci JJ, at para 136
  9. ↑ Big M Drug Mart, supra, at p. 117
  10. ↑ Re BC Motor Vehicles, ibid., at p. 499
    Morgentaler, supra, at p. 53
  11. ↑ Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC), per Lamer CJ, at para 53
    Law society of Upper Canada v Skapinker, [1984] 1 SCR 357, 1984 CanLII 3 (SCC), per Estey J
  12. ↑ Re B.C. Motor Vehicle Act, ibid., at para 53
  13. ↑ Re B.C. Motor Vehicle Act, ibid., at para {{{2}}}
  14. ↑ Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, per Iacobucci and Arbour JJ, at para 25
  15. ↑ Doucet-Boudreau, ibid., at para 25
  16. ↑ Trop v. Dulles 356 U.S. 86 (1958) [1]

Legislative Amendments

Stare Decisis

Interpreting Court Orders

Interpreting an order is a "question of law" and no deference is owed on review. It is an objective assessment on a standard of correctness.[1]

There is an exception where a judge's interpretation of his own orders is "entitled to considerable deference".[2]

Where record of the decision is available, it will be necessary to conform the order to the decision.[3]

In interpreting an order "a Court will use accepted principles of statutory and contractual interpretation to ascertain the intent of the ordering judge".[4]Those principles of statutory and contractual interpretation are "analogous" to the principles to be applied to looking at the "intent of the ordering judge"[5]

The "contextual approach to interpreting statutes ...with necessary modification, apply to the interpretation of orders."[6]

  1. ↑ Royal Bank of Canada v Robertson, 2016 NSSC 176 (CanLII), per Moir J, at para 11
  2. ↑ Boily v Carleton Condo. Corp., 2014 ONCA 574 (CanLII), per Epstein JA (2:1), at para 71
  3. ↑ Robertson, supra, at para 13
  4. ↑ Canadian National Railway v Holmes, 2015 ONSC 3038 (CanLII), per McEwan J, at para 18
    Robertson, supra, at para 14
  5. ↑ Robertson, supra, at para 15
    L’Homme v Pliskevicius Estate, 2011 ONSC 6102 (CanLII), per Crane J, at para 22
  6. ↑ Robertson, supra, at para 19

See Also

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