The presumption of a restrictive interpretation of penal statutes

The recent Supreme Court of Canada decision in R. v. Jaw, 2009 SCC 42 deals mainly with the value of post offence conduct in determining intent.

In dealing with that issue the Court, in passing, suggests that the strict construction of penal statutes, and, more broadly, the resolution of ambiguity in favour of an accused, is not the current law.

The Court attributes the restrictive interpretation to historical factors and thereby holds the interpretation outdated.

This author is of the view that at least some strictness is appropriate in the enforcement of criminal law -- the State should be held to "dot the i's and cross the t's" -- but it seems that view is not good law.

The Supreme Court holds:

[37]                        Regarding the charge, I take issue with my colleague's statement that "any uncertainty as to [the charge's] meaning and effect would surely have to be resolved in the accused's favour" (para. 90). This is not a case in which the trial judge used a word or phrase that was reasonably capable of more than one meaning and the jury was left to discern which of the possible meanings was intended.  When read in the context of the entire charge and of the evidence and the trial as a whole, the impugned statement has only one reasonable meaning.  The possibility of an appellate court divining another interpretation of the trial judge's words does not mean that the charge created uncertainty for the jury.

 

[38]                        Furthermore, although I need not resolve the issue, I have reservations about the proposition that any uncertainty in a charge must, as a matter of course, be resolved in favour of the accused.  This proposition seems to be based on the strict constructionist approach to interpreting penal legislation that developed in the eighteenth century, when criminal law sanctions were especially severe.  By the mid-1980s, however, the presumption of a restrictive interpretation of penal statutes had started to wear thin (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 472-74).  A restrictive interpretation may be warranted where an ambiguity cannot be resolved by means of the usual principles of interpretation.  But it is a principle of last resort that does not supersede a purposive and contextual approach to interpretation (R. v. Paré, [1987] 2 S.C.R. 618; R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 881-82; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, at para. 4). Even if the impugned statement in the instant case did disclose a true ambiguity, an attempt would first have to be made to resolve it by resort to general principles and methods of interpretation. For the reasons I have given above, an ambiguity in the charge should not automatically be resolved in favour of the accused. 
James Morton
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