Reading Criminal Offences
| Author | Michael Plaxton |
| Pages | 84-133 |
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cha pter 2
READING CRIMINAL
OFFENCES
A. INTRODUCTION: NARROW AND WIDE
Any criminal oence will contain language that lends itself to a range
of meanings. Depending on the issues in play in a given case, the
defendant may have an interest in arguing that one or another term
in the provision should be narrowly construed, and that her own con-
duct does not fall within its ambit. The Crown, of course, may beg to
dier, urging a wider construction of the disputed term — one that
encompasses the course of action embarked upon by the defendant.
When there is such a dispute as to the meaning of a term or phrase,
we look to the canons of interpretation to help us resolve it.
Consider three cases in which such a dispute arose. The rst is
Goulis. There, the accused had failed to disclose to his creditors the
fact that he had a collection of almost , pairs of shoes. He was
charged under (then) section (a)(ii) of the Criminal Code, which
stated: “Every one who . . . with intent to defraud his creditors . . .
conceals . . . his property . . . is guilty of an indictable oence and is
liable to imprisonment for two years.” [emphasis added] But what
does “conceals” mean? The defendant had not taken any active steps
to hide his collection, but he did not disclose the fact either. On this
R v Goulis (), OR (d) (CA) [Goulis].
Criminal Code, RSC , c C-, s (a)(ii) [Criminal Code]. Now s (a)(ii).
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Reading Criminal Offences
basis, he argued that he had not “concealed” anything, and therefore
had not committed the oence. He urged, in short, a narrow read-
ing of the word “concealed.” The Crown, on the other hand, claimed
that “concealed” should be given a broader interpretation, such that
it encompassed the passive failure to disclose. Which should be pre-
ferred — the narrower or broader interpretation? Much turned
on the question. If read in its narrow, purely active sense, then the
accused was not guilty. If read in its broad sense, then the accused
could be regarded as having “concealed” his shoe collection, and so
could be convicted.
The second case is Mac. The accused was charged aer several
machines, suitable for making counterfeit credit cards, were found in
his possession. He was charged under section (b) of the Criminal
Code, which provided that everyone who “makes, oers or disposes
of or knowingly has in his possession any plate, die, machinery or
other writing or material that is adapted and intended to be used to
commit forgery” is guilty of an oence. The accused argued that the
machines in his possession had not been “adapted” within the mean-
ing of the section. He argued that “adapted” should be understood
as “altered.” The machines in his possession had not been altered in
any way, he claimed, and so (on his understanding of the section) he
could not be convicted of the oence. The Crown, for its part, argued
that “adapted” should be read in a broader sense — in the sense
of “t for purposes of forgery,” irrespective of how the machinery
in question came to be t for purpose. Again, the accused’s liability
turned in large part on whether the narrower or broader interpreta-
tion was used.
The third case is Hasselwander. The question in this case was
whether a Mini-Uzi submachine gun was a “prohibited weapon”
within the meaning of section ()(c) of the Criminal Code. That
subsection dened a “prohibited weapon” as “any rearm . . . that is
capable of ring bullets in rapid succession during one pressure of
the trigger.” If le unmodied, the accused’s Mini-Uzi wasn’t capable
R v Mac, SCC .
R v Hasselwander, [] SCR [Hasselwander].
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of ring bullets in rapid succession. But a quite small adjustment,
which an owner could easily make, would allow the rearm to do so.
The issue in Hasselwander was whether “capable” in section ()(c)
meant “presently capable” — in which case the rearm did not qual-
ify as a prohibited weapon — or “readily capable” — in which case it
does. We have a wider reading and a narrower reading. Which is the
correct one?
Students are sometimes tempted to resolve these questions by
looking to the defendant’s conduct and asking simply whether he or
she “deserves” to be punished for something. That is the wrong way to
approach the matter. A person may, as a matter of pure moral phil-
osophy, have engaged in wrongful behaviour. Unless that individual
has engaged in conduct that has been proscribed by Parliament, how-
ever, she has not done anything deserving legal opprobrium or sanc-
tions. To know whether or not her conduct has been prohibited by
Parliament, we must rst determine what it means to “conceal” prop-
erty, or “adapt” a machine, or possess a rearm “capable” of ring
bullets in rapid succession. Since the point is to determine whether
the defendant’s conduct was criminal at the time she engaged in it,
we cannot interpret those terms by looking to the defendant’s con-
duct and presupposing its legal permissibility or wrongfulness at the
outset. For the purposes of determining the meaning of those (and
other similarly ambiguous) terms, we must set aside the concrete
facts surrounding this or that defendant’s conduct (insofar as we
know them). That is a hard lesson, especially when one instinctively
wants to arrive at the “just” outcome. But it is essential.
A closely related mistake is believing that, when faced with this
sort of interpretive problem, it falls to judges simply to decide which
interpretation would be “best” as a matter of policy. As we will see,
it is entirely appropriate to keep policy considerations in mind
when engaging in interpretation. The point in doing so, though, is
Of course, the particular facts and evidence adduced by the Crown and defence in a
given case may well determine whether a court nds it necessary to decide a specic
interpretive question. That is not to say, however, that the manner in which that ques-
tion is resolved will be driven by the bare, moral intuition that the defendant at bar
should or should not be condemned for his or her conduct.
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