R. v. McIntosh (B.B.) (1995), 79 O.A.C. 81 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty The Queen (appellant) v. Bevin Bervmary McIntosh (respondent)
(No. 23843)
Indexed As: R. v. McIntosh (B.B.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
February 23, 1995.
Summary:
The accused was charged with second degree murder, but was convicted of manslaughter. He appealed, raising an issue respecting the interpretation of the self-defence provisions of the Criminal Code.
The Ontario Court of Appeal, in a decision reported 65 O.A.C. 199, allowed the appeal, set aside the conviction and ordered a new trial. The Crown appealed.
The Supreme Court of Canada, McLachlin, La Forest, L’Heureux-Dubé and Gonthier, JJ., dissenting, dismissed the appeal.
Criminal Law – Topic 13
General principles – Interpretation of criminal statutes – Interpretation in case of ambiguity – The Supreme Court of Canada stated that “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 certainty in the criminal law” – See paragraph 40.
Criminal Law – Topic 14
General principles – Interpretation of criminal statutes – Interpretation in favour of accused – [See
Criminal Law – Topic 13
].
Criminal Law – Topic 239
General principles – Statutory defences – Self-defence – The Supreme Court of Canada commented that “ss. 34 and 35 [the self-defence provisions] 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 … 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 … 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.” – See paragraphs 17 and 18.
Criminal Law – Topic 239
General principles – Statutory defences – Self-defence – The Criminal Code, s. 34(1), provided that “everyone who is unlawfully assaulted
without having provoked the assault
is justified in repelling force by force …” if he does not intend to cause death or grievous bodily harm and does not use excessive force – Section 34(2) provided that “every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified” in certain circumstances – The Supreme Court of Canada held that s. 34(2) was not an ambiguous provision and must be interpreted according to its plain terms – Section 34(2) is therefore available to an initial aggressor (i.e., the words “without having provoked the assault” should not be read into s. 34(2)) – See paragraphs 1 to 43.
Criminal Law – Topic 239
General principles – Statutory defences – Self-defence – The Criminal Code, s. 34(2), provided that “every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified” in certain circumstances – The Supreme Court of Canada held that s. 34(2) was unambiguous and must be interpreted according to its plain terms (i.e., s. 34(2) is available to an initial aggressor) – The Crown argued that this interpretation should not be adopted because it might lead to absurd results having regard to, inter alia, the relationship between ss. 34 and 35 of the Code – The court rejected the Crown’s argument – See paragraphs 32 to 43.
Criminal Law – Topic 239
General principles – Statutory defences – Self-defence – The Supreme Court of Canada stated that s. 37 of the Criminal Code contained a general statement of the principle of self-defence and was itself a distinct justification – The court stated that “s. 37 adds to the confusion surrounding ss. 34 and 35 [of the Code] … Although 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” – See paragraphs 44 to 46 – The court rejected the argument that s. 37 must be put to the jury in all cases because it outlines the basic principles of self-defence which would be helpful to the jury – “… A trial judge can explain these principles without resort to s. 37, since these principles form the foundation of ss. 34 and 35” – See paragraph 47.
Criminal Law – Topic 239
General principles – Statutory defences – Self-defence – The accused gave sound equipment to Hudson to repair – The accused could not get the equipment back – The accused, armed with a knife, ordered the equipment’s return – Hudson pushed the accused – They struggled – Hudson picked up a dolly, raised it to head level, and came after the accused – The accused stabbed Hudson and fled – Hudson died – The accused was charged with murder, but convicted of manslaughter – The trial judge instructed the jury that the self-defence provision in the Criminal Code, s. 34(2) was inapplicable to the initial aggressor – Rather, only s. 35 was available to an initial aggressor, but s. 35 contained a retreat provision – The Supreme Court of Canada affirmed that the judge erred in instructing the jury that s. 34(2) was not available to an initial aggressor.
Criminal Law – Topic 1293
Murder – Defences – Self-defence – General – [See fifth
Criminal Law – Topic 239
].
Criminal Law – Topic 1420
Assaults – Defence – Self-defence – [See second
Criminal Law – Topic 239
].
Statutes – Topic 501
Interpretation – Purpose of legislation – Duty to promote object of statute – The Supreme Court of Canada was called upon to interpret s. 34(2) of the Criminal Code which was part of the self-defence provisions – The Crown argued that the court should adopt a contextual approach to interpreting the provisions and read certain words into s. 34(2) – The Supreme Court of Canada rejected the contextual approach where given the confused nature of the Criminal Code self-defence provisions it is difficult to determine Parliament’s intention, the contextual approach does not provide a basis for a court to engage in legislative amendment by adding words to a statute, and doubt, if any, in interpreting a penal provision should be resolved in favour of the person against whom it is sought to be enforced – See paragraphs 21 to 30.
Statutes – Topic 516
Interpretation – Ordinary meaning of words – The Supreme Court of Canada was called upon to interpret s. 34(2) of the Criminal Code which was part of the self-defence provisions – Lamer, C.J.C., stated that “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 …” – See paragraph 19.
Statutes – Topic 516
Interpretation – Ordinary meaning of words – The Criminal Code, s. 34(2) provided that “every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified” in certain circumstances – The Supreme Court of Canada held that s. 34(2) was unambiguous and must be interpreted according to its plain terms (i.e., s. 34(2) is available to an initial aggressor) – See paragraphs 1 to 43.
Statutes – Topic 1201
Interpretation – Construction where meaning is plain – General principles – [See both
Statutes – Topic 516
].
Statutes – Topic 1207
Interpretation – Construction where meaning is plain – Where plain meaning absurd – The Supreme Court of Canada stated that “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 … 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” – See paragraph 35 – “… 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'” – See paragraph 37.
Statutes – Topic 1207
Interpretation – Construction where meaning is plain – Where plain meaning absurd – [See third
Criminal Law – Topic 239
].
Statutes – Topic 1403
Interpretation – Construction where meaning is not plain – Adoption of meaning which favours liberty and preservation of rights of subject – [See
Criminal Law – Topic 13
].
Statutes – Topic 2260
Interpretation – Presumptions and rules in aid – Against abridgment of individual rights – [See
Criminal Law – Topic 13
].
Statutes – Topic 2601
Interpretation – Interpretation of words and phrases – Interpretation by context – General principles – [See
Statutes – Topic 501
].
Statutes – Topic 8406
Penal statutes – Ambiguity resolved in favour of accused – [See
Criminal Law – Topic 13
].
Statutes – Topic 8410
Penal statutes – Interpretation of – [See
Criminal Law – Topic 13
].
Cases Noticed:
R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), refd to. [para. 11].
R. v. Bolyantu (1975), 29 C.C.C.(2d) 174 (Ont. C.A.), refd to. [paras. 11, 77].
R. v. Merson (1983), 4 C.C.C.(3d) 251 (B.C.C.A.), refd to. [paras. 11, 78].
R. v. Chamberland (1988), 96 A.R. 1 (C.A.), refd to. [para. 11].
R. v. Stubbs (1988), 28 O.A.C. 14 (C.A.), approved. [paras. 11, 31, 79].
R. v. Nelson (1992), 54 O.A.C. 14; 71 C.C.C.(3d) 449 (C.A.), approved. [paras. 11, 31, 79].
Marcotte v. Deputy Attorney General of Canada, [1976] 1 S.C.R. 108; 3 N.R. 613, refd to. [paras. 28, 61].
Estabrooks Pontiac Buick Ltd., Re: New Brunswick v. Estabrooks Pontiac Buick Ltd. Estabrooks and Wolfe (1982), 44 N.B.R.(2d) 201; 116 A.P.R. 201 (C.A.), refd to. [para. 29].
New Brunswick v. Estabrooks Pontiac Buick Ltd. – see Estabrooks Pontiac Buick Ltd., Re.
Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379 (H.L.), refd to. [para. 36].
Sussex Peerage Case (1844), 11 C. & F. 85; 8 E.R. 1034 (H.L.), refd to. [para. 60].
R. v. D.A.Z., [1992] 2 S.C.R. 1025; 140 N.R. 327; 131 A.R. 1; 25 W.A.C. 1, refd to. [para. 60].
R. v. Deruelle, [1992] 2 S.C.R. 663; 139 N.R. 56; 114 N.S.R.(2d) 1; 313 A.P.R. 1, refd to. [para. 61].
R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 45 D.L.R.(4th) 235; [1988] 1 W.W.R. 193; 60 C.R.(3d) 193; 28 Admin. L.R. 294; 32 C.R.R. 219; 37 C.C.C.(3d) 385, refd to. [para. 71].
R. v. Squire (1975), 26 C.C.C.(2d) 219 (Ont. C.A.), refd to. [para. 77].
R. v. Alkadri (1986), 70 A.R. 260; 29 C.C.C.(3d) 467 (C.A.), refd to. [para. 78].
Stock v. Jones (Frank) Tipton Ltd., [1978] 1 W.L.R. 231 (H.L.), refd to. [para. 82].
Statutes Noticed:
Crimes Act 1961, S.N.Z. 1961, No. 43, sect. 48(2) [para. 26].
Criminal Code, R.S.C. 1906, c. 146, sect. 53(1), sect. 53(2) [para. 67].
Criminal Code, R.S.C. 1927, c. 36, sect. 53(1) [para. 67].
Criminal Code, R.S.C. 1985, c. C-46, sect. 19 [para. 39]; sect. 34(1), sect. 34(2), sect. 35, sect. 36, sect. 37 [para. 6].
Criminal Code, S.C. 1892, c. 29, sect. 45 [paras. 25, 65]; sect. 46 [para. 65].
Criminal Code, S.C. 1953-54, c. 51, sect. 34 [para. 25].
Authors and Works Noticed:
Blackstone, William, Commentaries on the Laws of England (1769), Book IV, generally [para. 63].
Côté, Pierre-André, The Interpretation of Legislation in Canada (2nd Ed. 1991), pp. 231 [para. 27 (Eng.)]; 232 [para. 74 (Eng.)].
Côté, Pierre-André, Interprétation des lois, 2
e
éd., 1990, pp. 257, 258 [para. 27 (Fr.)]; 259 [para. 74 (Fr.)].
Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), pp. 87, 105 [para. 22].
Driedger, Elmer A., Driedger on the Construction of Statutes (3rd Ed. 1994), pp. 3 [para. 60]; 4 [para. 59]; 106, 108 [para. 74]; 450, 451 [para. 75].
East, Sir Edward Hyde, A Treatise of the Pleas of the Crown (1803), vol. 1, generally [para. 63].
Maxwell, Sir Peter Benson, Maxwell on the Interpretation of Statutes (12th Ed. 1969), p. 29 [paras. 19, 35].
Counsel:
Michael Berstein and Alexander Alvaro, for the appellant;
Russell S. Silverstein and Michelle Levy, for the respondent.
Solicitors of Record:
The Ministry of the Attorney General, Toronto, Ontario, for the appellant;
Pinkofsky, Lockyer, Kwinter, Toronto, Ontario, for the respondent.
This appeal was heard on November 28, 1994, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on February 23, 1995, including the following opinions:
Lamer, C.J.C. (Sopinka, Cory, Iacobucci and Major, JJ., concurring) – see paragraphs 1 to 48;
McLachlin, J., dissenting (La Forest, L’Heureux-Dubé and Gonthier, JJ., concurring) – see paragraphs 49 to 86.
