R. v. McIntosh, [1995] 1 S.C.R. 686 (1995)

Supreme Court of Canada

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R. v. McIntosh, [1995] 1 S.C.R. 686 (1995)

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 availab...

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