Criminal Law Notebook

Statutory Interpretation of the Criminal Code

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This page was last substantively updated or reviewed January 2019. (Rev. # 96890)

General Principles

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 (CanLII), (DOJ)

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), 60 CCC (2d) 347, per Martin JA
    United States of America v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, per Cory and Iacobucci JJ, at p. 503
  4. ↑ R v St. Pierre, 1974 CanLII 874 (ON CA), 17 CCC (2d) 489, per Dubin JA
  5. ↑ eg. see R v JJR, 2003 CanLII 32169 (ON CA), 181 CCC (3d) 7, per MacPherson JA
  6. ↑ R v Pritchard, 2008 SCC 59 (CanLII), [2008] 3 SCR 195, 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), 363 CRR (2d) 177, 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), 38 CPC (6th) 26, 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), 277 CCC (3d) 557, 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), 235 CCC (3d) 319, 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 (CanLII), (DOJ)

Note up: 4(4)

Non-existent offences

A person cannot be convicted of an offence that was not in force at the time of the alleged commission.[9]

  1. ↑ R v Hutchinson, 2014 SCC 19 (CanLII), [2014] 1 SCR 346, per McLachlin CJ and Cromwell JJ, at para 18
  2. ↑ R v Canadian Broadcasting Corporation, 2018 ABCA 391 (CanLII), 77 Alta LR (6th) 232, 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), [2015] 3 SCR 754, per McLachlin CJ, at para 49
  5. ↑ R v Fong, 1994 ABCA 267 (CanLII), 92 CCC (3d) 171, per curiam, leave denied (1995), 94 CCC (3d) vii - in context of s. 152
  6. ↑ R v Beauchamp, 2009 CanLII 37720 (ON SC), 68 CR (6th) 293, 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), 1974 CanLII 1 (SCC), [1976] 1 SCR 108, per Dickson J
  9. ↑ R. v. Emisch, 1985 CanLII 2504 (SK KB), <https://canlii.ca/t/g8c96
    R. v. Jacobson, 1988 CanLII 5253 (SK CA), <https://canlii.ca/t/g8dl4 46 CCC (3d) 50
    Nelson, 1989 CanLII 7124 (ON SC), <https://canlii.ca/t/gdhmd
    R. v. Johnstone, Johnstone and Goler, 1986 CanLII 4631 (NS CA), <https://canlii.ca/t/gddtz 26 CCC (3d) 401

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 SCC 12 (CanLII), [2017] 1 SCR 170, per McLachlin CJ
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