A. Codification of the Criminal Act

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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The prohibited act, or actus reus, of an offence is a matter of statutory interpretation. Since 1953, section 9 of the Criminal Code has provided that no person shall be convicted of an offence at common law (judge-

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made law) except contempt of court. To be convicted of a criminal or regulatory offence in Canada, a person must do something that is prohibited by a valid statute or regulation. This requirement accords with the ideal that one should not be punished except in accordance with fixed, predetermined law.

The value of certainty and having a predefined criminal law is now supported by some Charter rights. As discussed in chapter 2, section 11(a) gives an accused the right to be informed without unreasonable delay of the specific offence charged; section 11(i) protects the accused against the burden of retroactive laws; and section 11(g) provides that the act or omission must, at the time it was committed, have been illegal under Canadian or international law. As will be discussed below, section 7 of the Charter has also been interpreted to prohibit criminal sanctions that are so vague or overbroad that they do not provide fair notice to the citizen or limit law enforcement discretion.

Even before the enactment of section 9 of the Criminal Code and the Charter, Canadian courts were reluctant to create common law or judge-made crimes on the basis that they would introduce great uncertainty into the administration of the criminal law, leaving it to the judicial officer trying any particular charge to decide that the acts proved constituted a crime or otherwise, not by reference to any defined standard to be found in the Code or in reported decisions, but according to his individual view as to whether such acts were a disturbance of the tranquillity of people tending to provoke physical reprisal.3The Court thus held that a common law charge of acting in a manner likely to cause a breach of the peace by being a "peeping tom" was not sustainable.4In contrast, courts in England continue to exercise "a residual power, where no statute has yet intervened to supersede the common law, to superintend those offenses which are prejudicial to the public welfare."5Crimes such as conspiracy to corrupt public morals or to outrage public decency have been created under this common law

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power. In Canada, a person can only be convicted for conspiring to commit an offence created by a legislature and defined in law.

The only remaining judge-made crime in Canada, contempt of court, has been upheld under the Charter on the basis that codification is not required as a principle of fundamental justice and that uncodified crimes can still be consistent with the principle of fixed, predetermined law. The Court stressed that an accused could predict in advance if conduct constituted contempt of court and that a prohibited act and fault must be proven beyond a reasonable doubt to result in a conviction for contempt of court.6Thus, there is no constitutional requirement under section 7 of the Charter that all crimes be codified by legislation. This does not, however, mean that the Charter cannot be applied to the exercise of the contempt power. Some attempts by judges to punish people for contempt of court have been found to violate Charter rights, such as the right to an impartial tribunal and to freedom of expression.7At the same time, the very concept of a judge-made or common law offence does not offend the principles of fundamental justice.

1) Strict and Purposive Construction of the Criminal Law

Another means of ensuring that the criminal law is fixed and predetermined is to apply the doctrine that it should be interpreted or construed strictly to the benefit of the accused. This doctrine has been defined by the Supreme Court as follows:

It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake . . . . [I]f real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.8

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This doctrine was used most extensively three hundred years ago when even comparatively minor criminal offences, such as theft, were subject to capital punishment. The Supreme Court has stated that "while the original justification for the doctrine has been substantially eroded, the seriousness of imposing criminal penalties of any sort demands that reasonable doubts be resolved in favour of the accused."9For example, the word "conceals" in the criminal offence of removing, concealing, or disposing of property with the intent to defraud creditors has been interpreted as requiring "a positive act done for the purpose of secreting the debtor’s property."10The accused would have concealed property if he had hidden it in a remote warehouse, but he did not conceal it simply because he failed to tell bankruptcy officials about its existence. Similarly, people would only be guilty of causing a public disturbance if their shouting, swearing, or singing caused a foreseeable interference with the use of a public place, not mere mental annoyance.11Strict construction in favour of the liberty of the accused suggests that offences, but not defences, should be given a restrictive reading. In R. v. MCINTOSH,12the Court invoked strict construction as a rationale for giving the statutory defence of self-defence a reading that favoured the liberty of the accused, as opposed to one that expanded the scope of criminal liability. Defences can also be expanded to favour the accused by giving them a broad and purposive reading.13Strict construction of offences in the criminal law is in some tension with modern purposive approaches to statutory interpretation. Purposive approaches acknowledge the limits of grammatical or dictionary-based interpretation of words and instruct courts to look at the broader purposes of a particular statute. For example, section 12 of the Interpretation Act,14which applies to all federal law including the Criminal Code,15states:

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Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

The purposive approach to statutory interpretation has been reconciled with the doctrine of strict construction by holding that the preference for the interpretation that most favours the accused applies only if, after consulting the purposes of a statute, reasonable ambiguities remain in its meaning. Thus, a criminal law should first be given a purposive reading and the doctrine of strict construction only applied if there are still reasonable ambiguities after such a broad interpretation.

There are several recent examples of courts interpreting criminal laws in a purposive manner, even though more restrictive interpretations were grammatically possible. For example, in Paré,16the Supreme Court recognized that while "it is clearly grammatically possible to construe the words ‘while committing’ . . . as requiring murder to be classified as first degree only if it is exactly coincidental" with the of-fences listed in section 231(5) of the Criminal Code, it was not reasonable to attribute such a restrictive meaning to the provision. The Court held that the purpose of section 231(5) is to punish, as more severe, murders that were committed while the victim was being unlawfully dominated by the commission of an underlying offence. In the result, the Court held that a murder committed two minutes after the accused had indecently assaulted the victim was indeed committed while the indecent assault took place. The murder was part of the same transaction and the same continuous sequence of events involving the illegal domination of the young victim. There was no resort to the doctrine of strict construction because, considering the purpose of the provision, there was no reasonable ambiguity in the provision. Similar purposive reasoning has been applied to hold that an accused murders a person "while committing" a sexual assault, even if the sexual assault takes place after the victim has died;17that a police officer is murdered "acting in the course of his duties" when on duty, but not actually enforcing the law;18and that a firearm is a prohibited weapon "capable of firing bullets in rapid succession" if it can readily be converted to do so.19

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In R. v. Russell,20the Supreme Court went beyond Paré to hold that first-degree murder can be committed even if the underlying offence was committed against a third party and not the person murdered. The Court stressed that strict construction was not relevant because the ordinary words of section 231(5) of the Criminal Code did not require that the underlying offence be committed against the victim. It dismissed the idea in Paré that first-degree murders were united by the unlawful domination of the murder victim as too narrow and restrictive given the wording of the statute. All that was necessary under section 231(5) was that the killing was "closely connected...

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