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

Docket Number:23843

R. v. McIntosh, [1995] 1 S.C.R.


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 available to the accused. It was an error for the trial judge to narrow the provision in order to preclude the accused from relying on it.

Where a provision is enacted by the legislature by the use of clear and unequivocal language capable of only one meaning, 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. 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. Further, even assuming that absurdity by itself is sufficient to create ambiguity, a literal interpretation of s. 34(2) is still to be preferred. The Criminal Code has a direct and potentially profound impact on the personal liberty of citizens, and thus requires an interpretive approach which is sensitive to liberty interests. An ambiguous penal provision must therefore 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. Here s. 34(2) applies on its face to initial aggressors, and is therefore open to such an interpretation. This interpretation is more favourable to accused persons than the alternative advanced by the Crown, and is consistent with the clear wording of s. 34(2), thus providing certainty for citizens.

While 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. Since the accused has been unable to advance a scenario under which s. 34 as interpreted here and s. 35 would not afford him a defence, there appears to be no room left for s. 37 in this case.

Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): The trial judge did not err in limiting s. 34(2) to unprovoked assaults in his instructions to the jury. The point of departure for statutory interpretation is not the "plain meaning" of the words, but the intention of the legislature. Since the words of s. 34(2), taken alone, do not provide a clear and conclusive indication of Parliament's intention, it is necessary to look further to the history of the section and the practical problems and absurdities which may result from interpreting the section one way or the other. Self-defence at common law rested on a fundamental distinction: where the killer had not provoked the aggression the homicide was called "justifiable homicide", and where he had provoked the aggression it was called "excusable homicide". In the case of justifiable homicide the killer could stand his ground and was not obliged to retreat in order to rely on the defence of self-defence. In the case of excusable homicide, on the other hand, the killer must have retreated as far as possible in attempting to escape the threat which necessitated homicide, before he could claim self-defence. These two situations were codified in the first Criminal Code in 1892. Under s. 45, the predecessor of s. 34, an accused who had not provoked the assault was a person "unlawfully assaulted"; he was entitled to stand his ground and need not retreat. This provision was later divided into two subsections and the phrase "so assaulted" in the second subsection, which had referred back to the phrase "unlawfully assaulted, not having provoked such assault", was subsequently replaced by "unlawfully assaulted". The need to insert the modifying phrase "not having provoked such assault" in the newly worded subsection was most likely overlooked. The marginal notes accompanying ss. 34 and 35, Parliament's retention of the phrase "unlawfully assaulted" in both s. 34(1) and s. 34(2) and the fact that neither s. 34(1) nor s. 34(2) imposes a duty to retreat support the view that the omission was inadvertent and that Parliament continued to intend that s. 34 would apply to unprovoked assaults and s. 35 to provoked assaults. If the word "unlawful" is given its proper meaning, it is unnecessary to read anything into s. 34(2) to conclude that it does not apply to provoked assaults. Alternatively, if it were necessary to read in the phrase "without having provoked the assault", this would be justified. Policy considerations support this interpretation. People who provoke attacks must know that a response, even if it is life-threatening, will not entitle them to stand their ground and kill. Rather, they must retreat.

Since ss. 34 and 35 exclusively dictate the application of the principles laid out in s. 37 where death or grievous bodily harm has occurred, the trial judge was correct in declining to leave s. 37 to the jury.

Cases Cited

By Lamer C.J.

Approved: R. v. Stubbs (1988), 28 O.A.C. 14; R. v. Nelson (1992), 71 C.C.C. (3d) 449; referred to: R. v. Baxter (1975), 27 C.C.C. (2d) 96; R. v. Bolyantu (1975), 29 C.C.C. (2d) 174; R. v. Merson (1983), 4 C.C.C. (3d) 251; R. v. Chamberland (1988), 96 A.R. 1; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201; Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379.

By McLachlin J. (dissenting)

Sussex Peerage Case (1844), 11 C. & F. 85, 8 E.R. 1034; R. v. Z. (D.A.), [1992] 2 S.C.R. 1025; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; R. v. Deruelle, [1992] 2 S.C.R. 663; R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Bolyantu (1975), 29 C.C.C. (2d) 174; R. v. Squire (1975), 26 C.C.C. (2d) 219; R. v. Merson (1983), 4 C.C.C. (3d) 251; R. v. Alkadri (1986), 29 C.C.C. (3d) 467; R. v. Stubbs (1988), 28 O.A.C. 14; R. v. Nelson (1992), 71 C.C.C. (3d) 449; Stock v. Frank Jones (Tipton) Ltd., [1978] 1 W.L.R. 231.

Statutes and Regulations Cited

Crimes Act 1961, S.N.Z. 1961, No. 43, s. 48(2) [rep. & sub. 1980, No. 63, s. 2].

Criminal Code, R.S.C. 1906, c. 146, s. 53(1), (2).

Criminal Code, R.S.C. 1927, c. 36, s. 53(1), (2).

Criminal Code, R.S.C., 1985, c. C-46, ss. 19, 34(1), (2), 35, 36, 37.

Criminal Code, S.C. 1892, c. 29, ss. 45, 46.

Criminal Code, S.C. 1953-54, c. 51, ss. 34, 35.

Authors Cited

Blackstone, William. Commentaries...

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