Principles of Statutory Interpretation

cases studied here: Goulis (shoe hide), Pare (sexual assault of boy, single transaction?), Jobidon (consent to a fistfight), Cuerrier (consent to Sex with HIV+) -Statutory Interpretation the common law method of reasoning. -turn to statutory framework of criminal law and the constraints that the Constitution has put on the com law. -helps crim law develop and the way the crim code will be interpreted. -the issue of stat int arises because many of the provisions of the code are not self explanatory, so how do we interpret provisions in light oh such ambiguity? Things to look at when determining Parliaments intent: -in the context of the other words in the statute -do not attribute absurd (arbitrary, irrational) interpretations to Parliament Doctrine of Strict Construction: if the ambiguity can not be resolved by the statute, and where there are two plausible interpretations of the statute, you adopt the one more favorable to the accused. viz., the one which encompasses less conduct) Why? b/c if parl wants to deprive people of liberty it must do so in unambiguous language. This doctrine is used in Goulis (ON CA, 1981). where the bankrupt accused was charged with concealing property to defraud creditors contrary to the Code. Code says remove, conceal, dispose of property issue: does conceal have to be active or can it be passive (as it was here, with a failure to disclose). Ct. says we have to err on more lenient side. -here the ct does not use doctrine of strict construction, they say that there is a plausible, unambiguous meaning without resorting to this doctrine.

Charter Restraints on the Criminal Law

The main constraints that the charter put son the criminal law power are enumerated in the ss7-14 of the CCRF. These are legal rights, such as restraints against unreasonable search and seizure, right not to be arbitrarily detained, etc. Major Constraints are put on by CCRF : s.2(b): Freedom of Expression s.7: Life, liberty, security of the person, right not to be deprived except in acc. with principles of fundamental justice **** s.11d: innocent until proven guilty To show if the charter is violated: 1. show a substantive charter right is violated by the legn (ss 7-14, s2) 2. If there is a substantive charter right violated, then look to see if the leg. provision can be upheld by section 1: reasonable limits test...i.e. the Oakes test.

2 Oakes (1986, SCC) sets down the test to be applied to determine whether the law can be upheld under section 1. In Oakes, s(8), Narcotic Control Act says that once the accused is found guilty of possession, then unless they could establish that they were not in possession for the purposes of trafficking, they were assumed to be so. Reverse Onus. Oakes argues that this violates the right to be presumed innocent b/c it requires the accused to disprove guilt, on balance of probabilities. 1. SCC holds that it is in violation of s.11(d) -right to be presumed innocent- , and that the Crown has the onus to prove the guilt. 2. They then look to see if it can be upheld nonetheless under s.1 CCRF (justifiable in a free and demo society) Two basic steps to the Oakes test: 1. IS the objective of the legislation sufficiently important to override a constitutionally protected right or freedom? Criteria: -must be a pressing and substantial objective in a free and democratic society -in most cases, this leg. objectives have passed this part of the Oakes test. 2. (i) Rational Connection: Govt. must show that the means chosen are rationally connected to the objective of the legislation...they are designed to bring about an objective, can not be arbitrary, unfair or irrational The connection must be more obvious the greater the infringement. (ii) Minimal Impairment: Whether the means chosen by the legislation impair the right violated as little as possible. Parl. has to choose the least restrictive . (usually a battleground for charter challenges) (iii) Proportionality of effects: See whether the severity of the impact of the legislation matches the importance of the legislative objectives. i.e. if the infringement is great, the objectives better be really important...this part is vague, usually fudge this part of the test) Rationale in Oakes : Prevention of drug dealing was found to be pressing and substantial, however, it failed on the rational connection part of the test, found that there is not enough internal rationality between possession and trafficking, therefore it could not be justified in a free and democratic society. Section 7 Violations In the there is a section 7 challenge, because the BC MVA creates an absolute liability offense for driving without a license, on 2nd conviction, there is a possibility of imprisonment. This is one of the first Section 7 challenges. Facts: Section 94(2) creates abs. liability offense. IT is held that this is in violation of section 7, as the sanction was a penal one. The combo absolute liability+prison=s.7 violation Ratio: A principle of fundamental justice is that the morally innocent not be punished, abs. liability means that one may be morally innocent and will be punished. Court looks to see if it can be justified under s.1, it can not be. Wilson goes so far as to say that a law violating s.7 could never pass the s.1 test. ***makes unclear the relation btwn s.7 and s.1, most commentators agree with Wilson. Note:No law that has violated s.7 has ever been upheld by s.1 Test for determining if there is a s.7 violation: 1) When rights to life, liberty and security of the person are implicated by the law.

Reference Re: BC Motor Vehicles Act,

3 2) Principles of Fundamental justice are violated by the law in question. BOTH of these conditions must be satisfied. But when imprisonment is a potential sanction, there is always ground to show 1st part is satisfied. So, What are the principles of fundamental justice? -Are they procedural only, or substantive? Ct. in Canada can look not only at crim procedure but at the substantive law itself to see if I violates fundamental justice. --14 lay down some principles of fundamental justice (not exhaustive) -vagueness, overbreadth count Vagueness and Overbreadth The idea that a law should not be vague is a principle of fundamental justice (s.7). When do vagueness arguments arise? -Vagueness arguments arise in S.1 (because a limitation on a charter right must be prescribed by law, if it is too vague it is not prescribed), and other charter rights, particularly those which contain an internal limitation. Most frequently arise in S.7 and s.1. -also relevant to the minimal impairment test of Oakes...law can fail this part on the basis of vagueness if the law is so vague that it encompasses too much conduct b/c there is a less intrusive way of bringing about the objective Vagueness is also founded on the rule of law: must give fair notice to citizens about the law Limits the discretion of law in enforcement vague laws can be subject to abuse by law enforcement officers In R. v. Nova Scotia Pharmaceutical Co., the accused was charged with conspiring to prevent, or lessen, unduly, competition under the combines act. Found that although this act is overbroad, it is not unconstitutionally vague. Test for vagueness: Gonthier says that a vague provision: does not provide adequate basis for a legal debate, i.e. you can not reach a reasoned conclusion by applying legal criteria. Note: Shaffer says this is generally viewed as a bad law, because it recognizes vagueness but doesnt give it any teeth, Overbreadth: a law that tries to curtail a conduct that is drafted in too broad a way. It slips in other types of conduct that the law can not legitimately curtail. It is against the principles of fundamental justice. When will a law be found overbroad? When it infringes on life, liberty or security of the person (s.7 CCRF) in a manner that goes beyond what it would take to accomplish parliaments objectives. In Heywood (SCC, 1994), accused charged under 179.1(b) which makes it a crime for a sexual offender to be found loitering in public parks, schools, playgrounds, or bathing areas. If it restricts liberty in the name of public protection, if it restricts liberty beyond what public protection would require, it is overbroad. This law found to be too broad, because it encompasses too many activities in too many places (loitering is simply hanging around, and EVERY public park etc. limits liberty in a huge way), imposes a lifetime ban, does not allow fair notice to the offender at the time of sexual offence conviction,.

THE ACTUS REUS

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4 In combination with the mens rea,the actus reus is at the heart of the criminal law principle. 3 components to actus reus as developed through common law: 1. must be an act or an omission 2. the act or omission must be voluntary 3. the actus reus and the mens rea must coincide/be simultaneous Defining the Actus Reus -definition not hard if we are talking about acts, not omissions -we look to see if what the accused did falls within the scope of the provision -sometimes we need to look at judicial interpretation to define the provision (Goulis also a case of defining the actus reus) i.e. Sexual Assault The Code was amended in 1983 to change the categories of rape and indecent assault to sexual assault, there are 3 levels. Defining the actus reus of s.a. is open to the myths and misconceptions about sexual assault..rape myths etc. i.e. in Ewanchuck case., ct. splits (gender lines) because there is confusion about the nature of the incident. Parliament did not define the offence in the Code. The new s.a. provisions were piggybacked onto the assault provisions, so there is a problem of how to define sexual assault as opposed to assault...it is assault of a sexual nature but what does that mean? R.v.V.(K. B): the accused is charged w/s.a. because he grabbed his sons genitals in order to discipline him. Decided at SCC (iacobucci for maj.) that it was an assault that damaged to sexual integrity of the boy, -> therefore a sexual assault. Sopinka for dissent says that need to look at motive..is it for sexual gratification? Here it wasnt therefore not a sexual assault. Issue: do we look at the perspective of the complainant when defining the assault (doesnt this lead to uncertainty for accused?) Do we look at what a reasonable person would see, and if so, who is the reasonable person? reasonable women or reasonable man? Combo thereof? R.v.Chase (1987) SETS DOWN TEST FOR DEFINING SEXUAL ASSAULT Issue: is grabbing a womans breasts a sexual assault? At N.B C of A -> the answer was not obvious, and they find it is simple assault, because sexual has only to do with genitalia and grabbing a womans breasts is like grabbing mans beard, is. secondary sexual characteristics. Sexual gratification irrelevant. Shaffer says this is based on a misunderstanding of sexual assault. At SCC-> Disagree. doesnt want to define sexual assault but wants to lay down some principles: acts committed in circumstances of a sexual nature sexual integrity of victim is violated objective standard: court should ask->sexual or carnal aspect of the assault is visible to a reasonable observer in applying the test, ct. must consider all circumstances: part of body touched nature of contact situation in which it occurred words and gestures accompanying the act

i.e. Defining in assault and sexual assault as a part of the actus reus s.265(3) defines what consent isnt, no positive defn of consent given.: 4

Consent

5 no consent if: obtained because of force because of fear of force or b/c of threats of force if fraud induced consent obtained through exercise of authority i.e.R v. Jobidon (1991) (see full case brief, p.) issue: definition of the actus reus of simple assault. Is absence of consent a required element of assault, to are there situations in which a consented to touching is assault nonetheless. i.e. can you consent to a fistfight? Jobidon is charged with manslaughter (an offense for which there must be some underlying offense, i.e. assault, when the death occurred). Fist fight, dead guy consented to the fight, could accused be convicted of assault here? You have committed actus reus of murder if you have committed it, among other thing, by means of unlawful act, or criminal negligence. Does the victims consent extend to after the time which he fell unconscious? Can the consent be vitiated for policy grounds? Gonthier says that you cant consent to a fair fight: socially useless, dangerous activity, deterrence rationale, moral/sanctity of the human body. These are good policy reasons to vitiate consent. Sopinka really disagrees, says Gonthier is re-writing the law, creating a common law definitions of consent, this leads to uncertainty, as does the social utitlity argument. This is a hotly contested decision in which Gonthier makes some really tortured reasons, says Shaffer, but the upshot is policy reasons. Principle: you cant consent to non-trivial bodily harm, at least in the context of useless activity. Parliament can vitiate consent on policy grounds. NOTE TO SELF>>>Write up a long summary of Jobidon with all reasons to include with the summary somewhere just to have the tortured reasons etc.

EXPRESS AND IMPLIED CONSENT

R.v.CeyGeneral defences - consent assault lawful sport]
D inflicted injuries to the head of the victim during an ice-hockey game. V sustained a concussion and a whiplash, keeping him hospitalized for three days. The trial judge found that the accused had not intended to injure the complainant, nor had he intended to apply any greater force to the victim than was customary in the game. Since the complainant had continued to play the game after he received the injuries, the trial judge held that that willingness amounted to an implied consent to the bodily contact which had occurred, and used that finding as a basis for acquitting the accused. Held : The court attempted to clarify the approach by providing that in future the consent of sports participants should be recognised by reference to a number of specific factors such as the nature and standard of the game played, the nature of the act from the point of view of the degree of force and harm inflicted and the state of mind of the accused.

R.v.CC Rugby Manslaughter

A recent Canadian case, R v. CC 2009 ONCJ 249, has explained how unlawful act manslaughter can be committed by a participant in a rugby union game. The defendant performed an

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intentional spear tackle on the victim by driving his shoulder into the victims stomach, lifting him up and propelling him backwards and head first into the ground. The victim died later as a result of catastrophic injuries to his spinal cord. The trial judge found that a tackle performed in this way was not within the rules of the game, was unconnected with the playing of this particular game as it occurred behind the play, was not a mistimed attempt to get the ball and that there was no unwritten code of conduct that could justify conduct of this nature as being within its playing culture. Thus, the tackle was not within the implied consent of those playing rugby union and the offence of manslaughter was made out.

Consent Vitiated By Fraud

i.e.

R.v. Cuerrier (1997, SCC) (see full case brief , p.)

Issue: Does failure to disclose the presence of an STD constitute fraud that vitiates consent to sexual activity? This decision changes the law as to the actus reus of an assault. 1. Cory for majority: fraud that vitiates consent to sex should be given the same meaning as fraud in the commercial context. TEST: 1. Dishonesty=>deliberate deceit failure to disclose Consent not based on a knowledge of significant relevant factors is not valid. duty to disclose signif. rel. factors of risks associated with intercourse greater he potential harm or deprivation, the greater the duty to disclose. 2. Deprivation (caused by the dishonesty. Here it is under attack by McLach and LH-D) not every risk of harm will cause a deprivation. Where the activity in question would have been consensual but for the dishonesty crown must show that the dishonesty exposed a person to a significant risk of serious bodily harm. (here, risk of HIV is risk of serious bodily harm). Fraud vititates consent where: 1. accused has made a dishonest representation where the accused has exposed the person to a risk of serious bodily harm 2. consent would not have been obtained except for the dishonesty. Note: Shaffer wonders about the implications of this and Jobidons public policy...can anyone ever consent to sex with an HIV positive person?

HARM R.v. Malmo-Levine

The decision involves two cases. The first was where David Malmo-Levine, a "marijuana/freedom activist", ran an organization in East Vancouver called the "Harm Reduction Club", which attempts to reduce the harm associated with marijuana use by educating users and the public about the drug and provide the drug at cost. In December of 1996 the police raided the Harm Reduction Club and seized 316 grams of marijuana charging Malmo-Levine with possession for the purpose of trafficking. The second case involved the 1993 arrest of Victor Caine for possession of marijuana. Caine was in his van by the ocean when two RCMP officers approached him. He was stopped and a roach (0.5 gram) was found on him.

Both Caine and Malmo-Levine challenged the constitutionality of the criminalization of marijuana under the Narcotics Control Act. Malmo-Levine's argument focused on whether there should be a requirement of harm for criminal law. He argued that the constitutional power to enact criminal law under section 91(27) of the Constitution Act, 1867 is limited to conduct that causes harm. He further argued that the "harm principle" should be a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms.
[edit] Opinion of the Court

Gonthier and Binnie JJ., writing the majority, rejected all the arguments for the requirements of harm under section 91(27) of the Constitution Act, 1867 and section 7 of the Charter. They held that Parliament need not establish harm but only a reasonable apprehension of harm.

Mens Rea
Mens rea is a requirement because the principles of fundamental justice require that there be no punishment of the morally innocent, and therefore the guilty mind is a requirement. Mens rea is not the motive for the crime, motive is not really an issue, Mens Rea is an awareness in the part of the accused of the risk of engaging in the prohibited conduct or the risk of bringing about the prohibited consequences. The mens rea must be related to the act, not just a guilty mind in general.

Levels of Mens Rea

Subjective Mental States: PURPOSE a desire on the part of the accused to engage in the prohibited conduct or to bring about the prohibited consequences (not motive. motive is to collect the insurance money, purpose is to bring about death) VERY RARELY REQUIRED MENTAL ELEMENT KNOWLEDGE awareness that this conduct will bring about the prohibited consequences and The accused does not desire to bring about the ends, but she has an actual that the prohibited consequences are substantially certain to follow from the actions. Also known as INTENT, MEANS TO, WILLFULLY Steane: unusual interpretation of mr, usually not used, meant as desire.

Mistake of fact/Mistake of Law

8 Mistake of Fact Mistake of Fact is a defence (not a true one) where the claim is that there is no mens rea. The claim is: there was no risk of harm occurring on the facts as I see them. If you can not perceive the risk of harm, then you cant have the mens rea level of recklessness.

General Rule:
The mistake must not be reasonable, so long as it is honestly held. This is the rule for most criminal offences where the mens rea is subjective. If there is an air of reality to the mistaken belief, then it is OK. Where the mens rea is OBJECTIVE (negligence), then the a reasonable person will make only reasonable mistakes. Mistake of fact is a defence because it negates the mental element of the offence. BUT where you are being willfully blind to the risk of prohibiting the CCC, b/c he knew he had to make an inquiry as to the consent but did not make it. So, the mistake must be reasonable when we expecting the accused to be reasonable. As a defence; Where at least reasonable mistake of fact is not a defence, there is a violation of s. 7 of the Charter. (R.v. Ngyuen and Hess) , because it amounts to absolute liability contra fund. just. This is a constitutional minimum. Case Law Ewanchuck at C of A (what we are resp for) says that mistaken belief is OK here (b/c it was either not sexual or b/c there was a mistaken belief). At SCC, though, they slammed him b/c she said no 3 times, as if she consented. Mistake of law Ignorance of the law is no excuse (s.19). Generally true, as a mistake of law does not amt. to a defence. We have this rule because it does not negate the mental element. Generally, your awareness that your conduct is against the law or tat the harm ensuing from it is against the law is not part of the mental element. 1. The justice system would not be able to work effectively if every time it had to inquire into the accuseds knowledge of the law. 2. Allowing mistake of law in cases would put a premium on ignorance. We want to assume that everyone knows or should know the law.

Difference between mistake of fact and mistake of law Mistake of Fact occurs when an accused is mistaken in her belief that facts exist when they do not, or that facts exist when they do.(i.e. whether the gun was loaded, whether she consented) Mistake of Law exists when the mistake is not to the actual facts, but to their legal relevance. (whether firing the gun is prohibited, think it is okay to have sex w/o consent)