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

Page 119

Legislative reform could clarify some of the ambiguities in determining the actus reus or prohibited act of offences. Although the common law crime of contempt of court survives and codification of all crimes is not required under section 7 of the Charter, Parliament could provide that federal laws are the sole source of criminal offences. Even this reform, however, would not truly make the criminal law accessible to most people who understandably do not have the time or inclination to read thick books of statutes. In order to provide fair notice to the accused and prevent unlimited law enforcement discretion, legislatures should ensure that every criminal act is defined in a manner that is neither excessively vague or overbroad. In reality, however, courts have been very reluctant to strike laws down under section 7 of the Charter on the basis that they are excessively vague.178They have also added interpretative glosses on offences and defences so that they diverge in significant ways from the words of the statute. The result is that even a conscientious citizen who reads the many pages of the Criminal Code will be unable to determine the extent of criminal liability.

Page 120

The present trend is towards broad legislative definitions of the prohibited act. There will always be a need for judicial interpretation, but controversial policy issues such as whether a person can consent to non-trivial bodily harm179and whether consent should be based on the subjective views of the complainant in a sexual assault case180should probably be specifically addressed by Parliament. A related issue is whether Parliament should provide new offences to deal with new problems such as accused who give blood or have sex without disclosing that they are HIV-positive or whether we should continue to rely on existing offences subject to judicial interpretation.181There is an emerging principle that involuntary actions may not constitute the prohibited act and this constitutes an important restraint on criminal law, particularly in those cases where there is no fault element. The courts have not always been consistent about whether the prohibited act should be interpreted subject to a marked departure standard.182The interpretation of the prohibited act should largely depend on the words used in the offence interpreted in a purposive manner. The doctrine of strict construction, which requires judges to give the criminal law a reasonable interpretation that favours the accused, only applies if there are reasonable ambiguities after the law has been given a purposive interpretation designed to achieve...

To continue reading