R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 SCR 686

R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 SCR 686

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), 1992 CanLII 2782 (ON CA), 71 C.C.C. (3d) 449; referred to: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96; R. v. Bolyantu (1975), 1975 CanLII 1444 (ON CA), 29 C.C.C. (2d) 174; R. v. Merson (1983), 1983 CanLII 226 (BC CA), 4 C.C.C. (3d) 251; R. v. Chamberland (1988), 1988 ABCA 380, 96 A.R. 1; Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108; New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 1982 CanLII 3042 (NB CA), 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 CanLII 28 (SCC), [1992] 2 S.C.R. 1025; Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108; R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663; R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541; R. v. Bolyantu (1975), 1975 CanLII 1444 (ON CA), 29 C.C.C. (2d) 174; R. v. Squire (1975), 1975 CanLII 45 (ON CA), 26 C.C.C. (2d) 219; R. v. Merson (1983), 1983 CanLII 226 (BC CA), 4 C.C.C. (3d) 251; R. v. Alkadri (1986), 1986 ABCA 145, 29 C.C.C. (3d) 467; R. v. Stubbs (1988), 28 O.A.C. 14; R. v. Nelson (1992), 1992 CanLII 2782 (ON CA), 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 on the Laws of England, Book IV. Oxford: Clarendon Press, 1769.

Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Driedger, Elmer A. Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.

East, Sir Edward Hyde. A Treatise of the Pleas of the Crown, vol. 1. London: J. Butterworth, 1803.

Maxwell, Sir Peter Benson. Maxwell on the Interpretation of Statutes, 12th ed. By P. St. J. Langan. London: Sweet & Maxwell, 1969.

APPEAL from a judgment of the Ontario Court of Appeal (1993), 1993 CanLII 8651 (ON CA), 15 O.R. (3d) 450, 84 C.C.C. (3d) 473, 24 C.R. (4th) 265, 65 O.A.C. 199, allowing the accused's appeal from his conviction of manslaughter and ordering a new trial. Appeal dismissed, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.

Michael Bernstein and Alexander Alvaro, for the appellant.

Russell S. Silverstein and Michelle Levy, for the respondent.

The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by

Lamer C.J. --

I. Factual Background

1On February 7, 1991, Basile Hudson, who made his living repairing appliances and electronic equipment, was stabbed to death by the respondent. The circumstances surrounding Hudson's death arose during the summer of 1990 when the respondent, a 26-year-old man, was working as a disc jockey. He gave the deceased, who lived in the same neighbourhood, an amplifier and other equipment to repair. Over the next eight months, the respondent made several attempts to retrieve his equipment, but the deceased actively avoided him. On one occasion, the respondent, armed with a knife, confronted the deceased and told him he would "get him" if the equipment was not returned. On another occasion, the deceased fled through the back exit of his home when the respondent appeared at the front door.

2On the day of the killing, the respondent's girlfriend saw the deceased working outside and informed the respondent. The respondent obtained a kitchen knife and approached the deceased. Words were exchanged. The respondent testified that he told the deceased, "Get my fucking amp because I need it. Go suck your mother and bring my fucking amp." According to the respondent, the deceased pushed him, and a struggle ensued. Then the deceased picked up a dolly, raised it to head level, and came at the respondent. The respondent reacted by stabbing the deceased with the kitchen knife. He then threw the knife down and fled the scene. Later that day, after consulting with a lawyer, the respondent turned himself in.

3On November 25, 1991, the respondent appeared in the Ontario Court (General Division) before Moldaver J. and a jury on a charge of second degree murder. He entered a plea of not guilty, and took the position at trial that the stabbing of the deceased was an act of self-defence. The jury found the respondent guilty of the lesser and included offence of manslaughter. He was sentenced to two and one-half years' imprisonment.

4The respondent appealed his conviction to the Ontario Court of Appeal on the ground that the trial judge erred in instructing the jury that s. 34(2) of the Criminal Code, R.S.C., 1985, c. C-46, was not applicable in the event they found that the respondent had been the initial aggressor, having provoked the deceased. The Court of Appeal allowed the respondent's appeal, set aside the conviction and ordered a new trial: (1993), 1993 CanLII 8651 (ON CA), 15 O.R. (3d) 450, 84 C.C.C. (3d) 473, 24 C.R. (4th) 265, 65 O.A.C. 199.

5The Crown now appeals to this Court, arguing that the Ontario Court of Appeal erred when it reached the conclusion that self-defence as defined in s. 34(2) of the Criminal Code is available to accused persons who are initial aggressors.

II. Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46

Defence of Person

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

III. Decisions Below

A. Ontario Court, General Division

6Moldaver J. first charged the jury with respect to self-defence under s. 34(1), and then turned to the application of s. 34(2). The portion of the charge with respect to s. 34(2) which the Court of Appeal found to be in error is the following:

Moving on from there, you will notice, ladies and gentlemen, that the words "without having provoked the assault", which we saw in s. 34(1), do not appear in s. 34(2). If you take a look on your paper and you look at 34(1), you will see the words "without having provoked the assault". You will not see those words in s. 34(2).

However, as a matter of law, I direct you that those words are to be read into s. 34(2). You will see the reason for this when we deal with s. 35, but for the present time you must accept that the words "without having provoked the assault" are to be read into s. 34(2).

7Moldaver J. then charged the jury with respect to s. 35. After reading s. 35 to the jury, Moldaver J. stated:

Now, for the purposes of this case, ladies and gentlemen, this section relates to a situation where the accused has, without justification, provoked an assault upon himself. It defines the nature and scope of the force which a person may use to defend himself after he has provoked an assault upon himself and the steps he must take before the force used in response can be justified.

B. Ontario Court of Appeal

8Austin J.A. (Goodman and McKinlay JJ.A. concurring) considered two issues: (1) was the trial judge in error in reading the words "without having provoked the assault" into s. 34(2) of the Criminal Code?; and (2) was the trial judge in error in not leaving s. 37 to the jury as a basis on which they could have found that the respondent was acting in self-defence?

9In resolving the first issue, Austin J.A. felt that it was unnecessary to consider the history of s. 34, principles of statutory interpretation, the law in other jurisdictions, and the views of academics. Instead, the focus should be on the structure of s. 34, and Canadian jurisprudence. In Austin J.A.'s view, the problem with s. 34(2) (i.e., that it does not include the words "without having provoked the assault", whereas s. 34(1) does) has been apparent from the very first Criminal Code provisions dating from 1892. For this reason, legislative history did not resolve the problem.

10Austin J.A. then considered the relevant case law. The Crown relied on the following cases for the proposition that "without having provoked the assault" should be read into the provision: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.); R. v. Bolyantu (1975), 1975 CanLII 1444 (ON CA), 29 C.C.C. (2d) 174 (Ont. C.A.); R. v. Merson (1983), 1983 CanLII 226 (BC CA), 4 C.C.C. (3d) 251 (B.C.C.A.); R. v. Chamberland (1988), 1988 ABCA 380, 96 A.R. 1 (C.A.). The respondent relied on the following cases to support his position that provocation is irrelevant to s. 34(2): R. v. Stubbs (1988), 28 O.A.C. 14 (C.A.); R. v. Nelson (1992), 1992 CanLII 2782 (ON CA), 71 C.C.C. (3d) 449 (Ont. C.A.).

11Austin J.A. determined that the cases relied on by the Crown did not directly confront the issue he had to consider, and were "broad brush" statements concerning the interrelationship between ss. 34 and 35 of the Criminal Code. In contrast, the issue was addressed in the two cases on which the respondent relied. In both of those cases, the Ontario Court of Appeal had concluded that provocation is not relevant to s. 34(2). These cases, in his opinion, were conclusive.

12Austin J.A. then turned to the second issue. He disagreed with the respondent that s. 37 of the Criminal Code should be put to the jury in every case where self-defence might arise. He noted that counsel for the respondent had been invited to suggest a scenario which would not be covered by ss. 34 and 35, and which might therefore be covered by s. 37. No scenario was put forward. There was therefore no basis on which s. 37 could have been put to the jury.

13As a result, the court set aside the respondent's conviction and ordered a new trial.

IV. Analysis

A. Introduction

14This case raises a question of pure statutory interpretation: Is the self-defence justification in s. 34(2) of the Criminal Code available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself? The trial judge, Moldaver J., construed s. 34(2) as not applying in such a circumstance. The Ontario Court of Appeal disagreed.

15The conflict between ss. 34 and 35 is obvious on the face of the provisions. Section 34(1) begins with the statement, "Every one who is unlawfully assaulted without having provoked the assault . . .". In contrast, s. 34(2) begins, "Every one who is unlawfully assaulted . . .". Missing from s. 34(2) is any reference to the condition, "without having provoked the assault". The fact that there is no non-provocation requirement in s. 34(2) becomes important when one refers to s. 35, which explicitly applies where an accused has "without justification provoked an assault . . .". Therefore, both ss. 34(2) and 35 appear to be available to initial aggressors. Hence, the issue arises in this case of whether the respondent, as an initial aggressor raising self-defence, may avail himself of s. 34(2), or should be required instead to meet the more onerous conditions of s. 35.

16As a preliminary comment, I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects. Moreover, their relationship to s. 37 (as discussed below) is unclear. It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing. The case at bar demonstrates this. During counsel's objections to his charge on ss. 34 and 35, the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation.

17Despite the best efforts of counsel in the case at bar to reconcile ss. 34 and 35 in a coherent manner, I am of the view that any interpretation which attempts to make sense of the provisions will have some undesirable or illogical results. It is clear that legislative action is required to clarify the Criminal Code's self-defence regime.

B. Did the trial judge err in charging the jury that s. 34(2) of the Criminal Code is not available to an initial aggressor?

(i) Section 34(2) is not ambiguous

18In resolving the interpretive issue raised by the Crown, I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This is another way of asserting what is sometimes referred to as the "golden rule" of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise (Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 29).

19While s. 34(1) includes the statement "without having provoked the assault", s. 34(2) does not. Section 34(2) is clear, and I fail to see how anyone could conclude that it is, on its face, ambiguous in any way. Therefore, taking s. 34(2) in isolation, it is clearly available to an initial aggressor.

20The Crown has asked this Court to read into s. 34(2) the words "without having provoked the assault". The Crown submits that by taking into consideration the common law of self-defence, legislative history, related Criminal Code provisions, margin notes, and public policy, it becomes clear that Parliament could not have intended s. 34(2) to be available to initial aggressors. Parliament's failure to include the words "without having provoked the assault" in s. 34(2) was an oversight, which the Crown is asking this Court to correct.

21The Crown labels its approach "contextual". There is certainly support for a "contextual approach" to statutory interpretation. Driedger, in Construction of Statutes (2nd ed. 1983), has stated the modern principle of contextual construction as follows (at p. 87):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. . . . Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island, 1921 CanLII 568 (UK JCPC), [1921] 2 A.C. 384,^* at p. 387, put it this way:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.

Driedger then reduces the principle to five steps of construction (at p. 105):

1. The Act as a whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedly enacted by the words), the object of the Act (the ends sought to be achieved), and the scheme of the Act (the relation between the individual provisions of the Act).

2. The words of the individual provisions to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the general body of the law, that is the end.

3. If the words are apparently obscure or ambiguous, then a meaning that best accords with the intention of Parliament, the object of the Act and the scheme of the Act, but one that the words are reasonably capable of bearing, is to be given them.

4. If, notwithstanding that the words are clear and unambiguous when read in their grammatical and ordinary sense, there is disharmony within the statute, statutes in pari materia, or the general law, then an unordinary meaning that will produce harmony is to be given the words, if they are reasonably capable of bearing that meaning.

5. If obscurity, ambiguity or disharmony cannot be resolved objectively by reference to the intention of Parliament, the object of the Act or the scheme of the Act, then a meaning that appears to be the most reasonable may be selected. [Emphasis added.]

22Certainly, interpreting statutory provisions in context is a reasonable approach. However, a "contextual approach" lends no support to the Crown's position. First, the contextual approach takes as its starting point the intention of the legislature. However, given the confused nature of the Criminal Code provisions related to self-defence, I cannot imagine how one could determine what Parliament's intention was in enacting the provisions. Therefore, it seems to me that in this case one is prevented from embarking on a contextual analysis ab initio.

23The Crown argues that it was Parliament's intention that neither s. 34(1) nor s. 34(2) be available to initial aggressors, and that it was a mere oversight that the words chosen in s. 34(2) do not give effect to this intention. I would have thought it would be equally persuasive to argue that Parliament intended both ss. 34(1) and (2) to be available to initial aggressors, and that Parliament's mistake was in including the words "without having provoked the assault" in s. 34(1).

24Parliament's intention becomes even more cloudy when one refers to s. 45 of the 1892 Criminal Code, S.C. 1892, c. 29, which was the forerunner of ss. 34(1) and 34(2):

45. Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [Emphasis added.]

There is a clear ambiguity in this provision. Does the expression "every one so assaulted" refer to "[e]very one unlawfully assaulted", or to "[e]very one unlawfully assaulted, not having provoked such assault"? This question is academic, since Parliament appears to have resolved the ambiguity in its 1955 revision of the Criminal Code, S.C. 1953-54, c. 51. The first part of the former s. 45 was renumbered s. 34(1), and the second part became s. 34(2). The new s. 34(2) omitted any reference to a non-provocation requirement.

25If 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. When Parliament revised the Criminal Code in 1955, it could have included a provocation requirement in s. 34(2). The result would then be similar to s. 48(2) of the New Zealand Crimes Act 1961, S.N.Z. 1961, No. 43 (repealed and substituted 1980, No. 63, s. 2) which was virtually identical to s. 34(2) save that it included an express non-provocation requirement:

48. . . .

(2) Every one unlawfully assaulted, not having provoked the assault, is justified in repelling force by force although in so doing he causes death or grievous bodily harm, if . . . [Emphasis added.]

The fact that Parliament did not choose this route is the best and only evidence we have of legislative intention, and this evidence certainly does not support the Crown's position.

26Second, the contextual approach allows the courts to depart from the common grammatical meaning of words where this is required by a particular context, but it does not generally mandate the courts to read words into a statutory provision. It is only when words are "reasonably capable of bearing" a particular meaning that they may be interpreted contextually. I would agree with Pierre-André Côté's observation in his book The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 231, that:

Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say. . . .

The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment.

27Third, in this case we cannot lose sight of the overriding principle governing the interpretation of penal provisions. In Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle as follows, at p. 115:

Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal . . . I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if 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.

Section 34(2), as a defence, acts as a "subtraction" from the liability which would otherwise flow from the criminal offences contained in the Criminal Code. Criminal Code provisions concerning offences and defences both serve to define criminal culpability, and for this reason they must receive similar interpretive treatment.

28This principle was eloquently stated by La Forest J.A. (as he then was) in New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 1982 CanLII 3042 (NB CA), 44 N.B.R. (2d) 201, at p. 210:

There is no doubt that the duty of the courts is to give effect to the intention of the Legislature as expressed in the words of the statute. And however reprehensible the result may appear, it is our duty if the words are clear to give them effect. This follows from the constitutional doctrine of the supremacy of the Legislature when acting within its legislative powers. The fact that the words as interpreted would give an unreasonable result, however, is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation. For it should not be readily assumed that the Legislature intends an unreasonable result or to perpetrate an injustice or absurdity.

This scarcely means that the courts should attempt to reframe statutes to suit their own individual notions of what is just or reasonable.

29It 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. By this same reasoning, where such a provision is, on its face, favourable to an accused, then I do not think that a court should engage in the interpretive process advocated by the Crown for the sole purpose of narrowing the provision and making it less favourable to the accused. Section 34(2), on its face, is available to the respondent. It was, with respect, an error for the trial judge to narrow the provision in order to preclude the respondent from relying on it.

30I therefore conclude that s. 34(2) is not an ambiguous provision, and is available to an initial aggressor. I find myself in agreement with the Ontario Court of Appeal, which has reached a similar conclusion in its rulings in Stubbs, supra, and Nelson, supra, and in the case at bar.

(ii) Even though s. 34(2) may give rise to absurd results, the Crown's interpretation cannot be adopted

31It is important to reiterate that there is no ambiguity on the face of s. 34(2). The Crown's argument that the provision is ambiguous relies on legislative history, the common law, public policy, margin notes, and the relationship between ss. 34 and 35. The Crown alleges that it would be absurd to make s. 34(2) available to initial aggressors when s. 35 so clearly applies. Parliament, the Crown submits, could not have intended such an absurd result, and therefore the provision cannot mean what it says. Essentially, the Crown equates absurdity with ambiguity.

32The Crown asks this Court to resolve the absurdity/ambiguity by narrowing s. 34(2) so that it does not apply in the case of an initial aggressor. If the Crown is correct, then an initial aggressor could only rely on s. 35 of the Criminal Code, which imposes more onerous requirements. In particular, s. 35(c) only allows an initial aggressor to raise self-defence where

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

33The respondent takes the position that if there is ambiguity, it must be resolved in the manner most favourable to accused persons. As a result, s. 34(2) must be made available to initial aggressors.

34I am of the view that the Crown's argument linking absurdity to ambiguity cannot succeed. I would adopt the following proposition: where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis.

35In Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379 (H.L.), Lord Macmillan criticized the view that absurdity alone would justify the rejection of a literal interpretation of a statutory provision. He emphasized that an "absurdity approach" is generally unworkable because of the difficulty of developing criteria by which "to judge whether a particular enactment, if literally read, is so absurd that Parliament cannot have intended it to be so read . . ." (p. 388). He then proceeded, at p. 388, to outline what I believe to be the correct approach to statutory interpretation where absurdity is alleged:

. . . if the language of an enactment is ambiguous and susceptible of two meanings, one of which is consonant with justice and good sense while the other would lead to extravagant results, a court of law will incline to adopt the former and to reject the latter, even although the latter may correspond more closely with the literal reading of the words employed.

36Thus, 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. Absurdity is a factor to consider in the interpretation of ambiguous statutory provisions, but there is no distinct "absurdity approach".

37However, assuming for the moment that absurdity by itself is sufficient to create ambiguity, thus justifying the application of the contextual analysis proposed by the Crown, I would still prefer a literal interpretation of s. 34(2).

38As stated above, the overriding principle governing the interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons. Moreover, in choosing between two possible interpretations, a compelling consideration must be to give effect to the interpretation most consistent with the terms of the provision. As Dickson J. noted in Marcotte, supra, when freedom is at stake, clarity and certainty are of fundamental importance. He continued, at p. 115:

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.

Under s. 19 of the Criminal Code, ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law. Yet we can hardly sustain such a presumption if courts adopt interpretations of penal provisions which rely on the reading-in of words which do not appear on the face of the provisions. How can a citizen possibly know the law in such a circumstance?

39The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach which is sensitive to liberty interests. Therefore, an ambiguous penal provision must 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.

40I would agree that some absurdity flows from giving effect to the terms of s. 34(2). One is struck, for example, by the fact that if s. 34(2) is available to an initial aggressor who has killed or committed grievous bodily harm, then that accused may be in a better position to raise self-defence than an initial aggressor whose assault was less serious. This is because the less serious aggressor could not take advantage of the broader defence in s. 34(2), as that provision is only available to an accused who "causes death or grievous bodily harm". Section 34(1) would not be available since it is explicitly limited to those who have not provoked an assault. Therefore, the less serious aggressor could only have recourse to s. 35, which imposes a retreat requirement. It is, in my opinion, anomalous that an accused who commits the most serious act has the broadest defence.

41Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical in light of s. 35, and may lead to some absurdity, I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly.

42What is most important in this case is that 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. Moreover, this interpretation is consistent with the clear wording of s. 34(2), thus providing certainty for citizens. Although I appreciate the efforts of the Crown to underscore the problems with the Criminal Code's self-defence regime through a broad historical, academic and policy-based analysis, I suspect that very few citizens are equipped to engage in this kind of interpretive approach. Rare will be the citizen who will read ss. 34 and 35, and recognize the logical inconsistencies as between the two provisions. Rarer still will be the citizen who will read the provisions and conclude that they are inconsistent with the common law, or with Parliament's intention in 1892, or with margin notes. Given that citizens have to live with the Criminal Code, and with judicial interpretations of the provisions of the Code, I am of the view that s. 34(2) must be interpreted according to its plain terms. It is therefore available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself.

C. Section 37 of the Criminal Code

43Before concluding, I will briefly address the respondent's argument related to s. 37 of the Criminal Code. Section 37, itself a distinct justification, contains a general statement of the principle of self-defence:

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

44Section 37 adds to the confusion surrounding ss. 34 and 35, since it appears to make the self-defence justification available to an accused in any circumstance where the force used by that accused was (i) necessary, and (ii) proportionate. If s. 37 is available to an initial aggressor (and there is no indication that it is not), then it would appear to be in conflict with s. 35. Moreover, it is difficult to understand why Parliament would enact the specific and detailed justifications in ss. 34 and 35, yet then make available a broad justification in s. 37 which appears to render ss. 34 and 35 redundant.

45Although 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. The respondent, though taking the position that Moldaver J. erred in not putting s. 37 to the jury at his trial, has been unable to advance a scenario under which ss. 34 (as interpreted above) and 35 would not afford him a defence. Therefore, there appears to be no room left for s. 37 in this case.

46The respondent has suggested that s. 37 should be put to the jury in all cases because it outlines the basic principles of self-defence, and this will be helpful to the jury. However, a trial judge can explain these principles without resort to s. 37, since these principles form the foundation of ss. 34 and 35.

D. Conclusion

47With respect, Moldaver J. erred in instructing the jury at the respondent's trial that s. 34(2) was not available to an initial aggressor. I therefore am in agreement with the Ontario Court of Appeal. The appeal is dismissed, the respondent's conviction set aside and a new trial.

The reasons of La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

McLachlin J. (dissenting) --

Introduction

48This case raises the issue of whether a person who provokes another person to assault him can rely on the defence of self-defence, notwithstanding the fact that he failed to retreat from the assault he provoked. The Chief Justice would answer this question in the affirmative. I, with respect, take a different view.

49The accused McIntosh was a disc jockey. He had given some sound equipment to the deceased to repair. Over the next eight months, McIntosh tried to get the equipment, without success. On one occasion, McIntosh told the deceased he would "get him" if the equipment were not returned. On another occasion, the deceased fled though the back door when McIntosh appeared at his front door. On the day of the killing, McIntosh, armed with a kitchen knife, ordered the deceased to return the equipment. According to McIntosh, the deceased responded by pushing him. They struggled. The deceased picked up a dolly, raised it to head level, and came at the respondent. McIntosh stabbed him, threw the knife down, and fled.

50It was open to the jury to find, in this scenario, that McIntosh had provoked the assault by threatening the deceased while armed with a knife. This raised the question of which of the self-defence provisions of the Criminal Code apply to a person who provokes the aggression that led to the killing. The answer depends on the interpretation accorded to ss. 34 and 35 of the Criminal Code, R.S.C., 1985, c. C-46, which codify self-defence in Canada. Section 35 clearly applies where the accused initiated the aggression; however, it contains a requirement that the accused have attempted to retreat, and might not have assisted McIntosh. Sections 34(1) and 34(2), on the other hand, contain no requirement to retreat. Section 34(1) clearly does not apply to the initial aggressor. The debate, in these circumstances, focused on s. 34(2). If McIntosh could avail himself of s. 34(2), he would be entitled to rely on self-defence, notwithstanding findings that he provoked the fight and did not retreat.

51The trial judge instructed the jury that s. 34(2) would not apply if they found that McIntosh had provoked the fight in which he killed the deceased. In his view, only s. 35 was available to an initial aggressor. The jury returned a verdict of guilty of manslaughter. McIntosh appealed on the ground that the trial judge erred in telling the jury that s. 34(2) did not apply to the initial aggressor. The Court of Appeal agreed and ordered a new trial: (1993), 1993 CanLII 8651 (ON CA), 15 O.R. (3d) 450, 84 C.C.C. (3d) 473, 24 C.R. (4th) 265, 65 O.A.C. 199. The Crown now appeals to this Court, arguing that the trial judge correctly instructed the jury that s. 34(2) is not available to persons who provoke the attack which led to the killing.

52A second issue arose with respect to s. 37 of the Criminal Code. The trial judge declined to put it to the jury, on the ground that counsel had not indicated how it could be applied to the evidence in the case. The Court of Appeal agreed.

Analysis

1. Does Section 34(2) of the Criminal Code Apply to a Person Who Provokes an Attack?

53McIntosh raises one main argument. It is this. Section 34(1) states expressly that it does not apply to people who have provoked the assault from which they defended themselves. Section 34(2), by contrast, does not expressly exclude provokers. Therefore, s. 34(2) must be read as applying to people who have provoked the assault from which they defended themselves. In order to prevent s. 34(2) from applying to initial aggressors, it would be necessary to "read in" to s. 34(2) the phrase found in s. 34(1): "without having provoked the assault". On this basis, it is argued that the provisions contain no ambiguity. It is further argued that even if they did contain an ambiguity, it must be resolved in favour of the accused, following the principle that an ambiguity in penal provisions should be resolved in the manner most favourable to accused persons.

54Section 34(1), as mentioned, contains the phrase "without having provoked the assault". It reads:

Self-defence against unprovoked assault

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

55Section 34(2), on the other hand, contains no such phrase. It reads:

Extent of justification

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

56Section 35 specifically refers to initial aggressors or provocateurs. It reads:

Self-defence in case of aggression

35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

57At first blush the argument seems attractive that the absence of the phrase "without having provoked the assault" in s. 34(2) makes it applicable to all cases of self-defence, even those where the accused provoked the attack. Yet, a closer look at the language, history and policy of ss. 34 and 35 of the Criminal Code suggests that this argument should not prevail.

58The Chief Justice starts from the premise that "the language of the statute is plain and admits of only one meaning" (p. 697). From this he concludes that "the task of interpretation does not arise" (p. 697). I cannot agree. First, the language is not, with respect, plain. The facial ambiguity of s. 34(2) is amply attested by the different interpretations which it has been given by different courts. But even if the words were plain, the task of interpretation cannot be avoided. As Driedger on the Construction of Statutes (3rd ed. 1994) puts it at p. 4, "no modern court would consider it appropriate to adopt that meaning, however "plain", without first going through the work of interpretation".

59The point of departure for interpretation is not the "plain meaning" of the words, but the intention of the legislature. The classic statement of the "plain meaning" rule, in the Sussex Peerage Case (1844), 11 C. & F. 85, 8 E.R. 1034 (H.L.), at p. 1057, makes this clear: "the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act". To quote Driedger, supra, at p. 3: "The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences." As Lamer C.J. put it in R. v. Z. (D.A.), 1992 CanLII 28 (SCC), [1992] 2 S.C.R. 1025, at p. 1042: "the express words used by Parliament must be interpreted not only in their ordinary sense but also in the context of the scheme and purpose of the legislation". The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator. If the words admit of only one meaning, they may indeed "best declare the intention of the lawgiver" as suggested in the Sussex Peerage Case at p. 1057, but even here it is the intention, and not the "plain meaning", which is conclusive. But if, as in the case of s. 34(2), the words permit of doubt as to the intention of Parliament, other matters must be looked to to determine that intention.

60I also depart from the Chief Justice on his application of the proposition 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" (p. 702). This Court in Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, at p. 115, made it clear that this rule of construction applies only where "real ambiguities are found, or doubts of substance arise" (per Dickson J. (as he then was)). If the intention of Parliament can be ascertained with reasonable precision, the rule has no place. As La Forest J. put it in R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663, at pp. 676-77:

In the court below, the majority suggested that any ambiguity in a penal provision should be resolved in favour of the accused. . . . While it is true that s. 254(3) is not a model of clarity, in this instance the intent of Parliament is sufficiently clear that there is no need for the aid of that canon of statutory construction.

61In summary, then, I take the view that this Court cannot evade the task of interpreting s. 34(2). The Court's task is to determine the intention of Parliament. The words of the section, taken alone, do not provide a clear and conclusive indication of Parliament's intention. It is therefore necessary to look further to determine Parliament's intention to the history of the section and the practical problems and absurdities which may result from interpreting the section one way or the other. These considerations lead, in my respectful view, to the inescapable conclusion that Parliament intended s. 34(2) to apply only to unprovoked assaults. This in turn leads to the conclusion that the trial judge was correct in declining to leave s. 34(2) with the jury.

The History of Section 34(2)

62Self-defence at common law rested on a fundamental distinction between cases where no fault was attributable to the killer, and cases where the killing was partly induced by some fault of the killer. Where the killer was not at fault -- that is where he had not provoked the aggression -- the homicide was called "justifiable homicide". Where blame could be laid on the killer, as where he had provoked the aggression, on the other hand, the homicide was called "excusable homicide". (See E. H. East, A Treatise of the Pleas of the Crown (1803), vol. 1; William Blackstone, Commentaries on the Laws of England (1769), Book IV.)

63Justifiable homicide and excusable homicide attracted different duties. In the case of justifiable homicide, or homicide in defending an unprovoked attack, 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. In other words, unprovoked attacks imposed no duty to retreat. Provoked attacks did impose a duty to retreat.

64The two situations recognized at common law -- justifiable homicide and excusable homicide -- were codified in the first Canadian Criminal Code in 1892, S.C. 1892, c. 29, in ss. 45 and 46. Section 45 when enacted in 1892 differed from its modern equivalent, s. 34, in that it was not divided into two subsections. Rather, it consisted of two parts divided by a semicolon. The wording too was slightly different. Its wording indicated that the phrase at the heart of this appeal -- "not having provoked the assault" -- was applicable to both halves of the section. Section 45 read:

Self-defence against unprovoked assault

45. Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

65The 1892 Code was clear and conformed to the common law on which it was based. An accused who had not provoked the assault was a person "unlawfully assaulted". He was entitled to stand his ground and need not retreat. An accused who had provoked the assault, on the other hand, was covered by s. 46 and could not claim to have acted in self-defence unless he retreated.

66In 1906 the Criminal Code underwent a general revision. One of the policies of the revision was to divide longer provisions into subsections. In accordance with this policy, s. 45 became s. 53(1) and (2). The wording, however, remained identical. The marginal note to s. 53(1) read "Self defence. Assault.", and the marginal note to s. 53(2) read "Extent justified.". In 1927, while the section remained identical in wording and numbering, the marginal note to s. 53(1) reverted to "Self-defence against unprovoked assault.".

67In 1955, in the course of another general revision, S.C. 1953-54, c. 51, s. 53 became s. 34. The words "Every one so assaulted is justified, though he causes" in the second subsection were removed, and the words "Every one who is unlawfully assaulted and who causes" were substituted. The second subsection was further divided into two paragraphs, but all else remained the same. Section 35, like the former s. 46, dealt with provoked assault. As might be expected, s. 34 imposed no requirement of retreat; s. 35 did. Thus the common law distinction between justifiable homicide and excusable homicide was carried forward.

68One incongruity, however, emerged with the 1955 revision. The phrase "so assaulted" in the second part of the old s. 45 had clearly referred back to the phrase in the first part "unlawfully assaulted, not having provoked such assault". In 1955, however, when "Every one so assaulted" was replaced in the severed subsection by "Every one who is unlawfully assaulted", the clear reference back that had been present in the older versions became less clear. The phrase "not having provoked such assault", which in the old s. 45 had modified or explained the term "unlawfully assaulted" in both the first and second part of the section, was thus effectively deleted from s. 34(2).

69History provides no explanation for why the explanatory phrase was omitted from s. 34(2). Certainly there is no suggestion that Parliament was attempting to change the law of self-defence. The more likely explanation, given the history of the changes, is inadvertence. In the process of breaking the old s. 45 into two subsections and later substituting new words for the old connector "so assaulted", and in the context of the significant task of a general revision of the entire Code, the need to insert the modifying phrase "not having provoked such assault" in the newly worded subsection was overlooked.

70The marginal notes accompanying ss. 34 and 35 support the view that the omission of the phrase "without having provoked the assault" in the 1955 Code was inadvertent and that Parliament continued to intend that s. 34 would apply to unprovoked assaults and s. 35 to provoked assaults. The note for s. 34 is "Self-defence against unprovoked assault/Extent of justification", for s. 35 "Self-defence in case of aggression", namely assault or provocation. While marginal notes are not part of the legislative act of Parliament, and hence are not conclusive support in interpretation, I agree with the view of Wilson J. in R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at pp. 556-58, that they may be of some limited use in gleaning the intention of the enactment. Inasmuch as they do indicate an intention, they clearly support the interpretation suggested by the above discussion.

71Parliament's retention of the phrase "unlawfully assaulted" in both s. 34(1) and s. 34(2) provides yet further confirmation of the view that Parliament did not intend to remove the long-standing distinction between provoked and unprovoked assault. The meaning of that phrase, in the context of the two sections, is indicated by its conjunction with the phrase "not having provoked such assault" which modified "unlawfully assaulted" in the 1892 codification. This phrase in the 1892 codification suggests that "unlawfully assaulted" in the context of that section meant "not having provoked such assault". There is no reason to suppose that the meaning of the phrase "unlawfully assaulted" changed in the intervening years. If so, then on its plain wording s. 34(2) applies only to an unprovoked assault, even in the absence of the phrase "without having provoked the assault".

72Parliament's intention to retain the long-standing distinction between provoked and unprovoked assault in the context of self-defence is also confirmed by the fact that neither s. 34(1) nor s. 34(2) imposes a duty to retreat, indicating that these provisions deal with the common law category of justifiable homicide, contrasted with the excusable homicide of s. 35.

73Taking all this into account, can it be said that Parliament intended to change the meaning of s. 34(2) in the 1955 codification, thus abrogating sixty years of statutory criminal law, based on hundreds of years of the common law? I suggest not. To effect such a significant change, Parliament would have made its intention clear. This it did not do. If the word "unlawful" is given its proper meaning, it is unnecessary to read anything into the section 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. Driedger, at p. 106, states that a court will be justified in making minor amendments or substituting one phrase for another where a drafting error is evidenced by the fact that the provision leads to a result that cannot have been intended. Redrafting a provision, it suggests at p. 108, is acceptable where the following three factors are present: (1) a manifest absurdity; (2) a traceable error; and (3) an obvious correction. All three conditions are filled in the case at bar. In a similar vein, Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), suggests that words may be read in to "express what is already implied by the statute" (p. 232). This condition too is met in the case of s. 34(2).

74The argument that Parliament intended to effect a change to the law of self-defence in 1955 rests finally on the presumption that a change in wording is intended to effect substantive change. But this presumption is weak and easily rebutted in Canada, where making formal improvements to the statute book is a minor industry. This is particularly the case where, as in this case, there is evidence of a drafting error: Driedger, at pp. 450-51.

75I conclude that the intention of Parliament is clear and that s. 34(2), read in its historical context, applies only to unprovoked assaults.

The Jurisprudence

76For many years after the 1955 amendments to the Criminal Code, ss. 34 and 35 were interpreted in the way that the history of the sections and the marginal notes suggest. In two 1975 cases, the Ontario Court of Appeal made broad statements to the effect that s. 34 was available only to the victims of unprovoked assaults. In R. v. Bolyantu (1975), 1975 CanLII 1444 (ON CA), 29 C.C.C. (2d) 174, at p. 176, the Ontario Court of Appeal (per Kelly, Lacourciere and Zuber JJ.A.) stated:

The trial Judge did not instruct the jury as to the effect of s. 35 of the Criminal Code and in our view, he should have so done. Section 34 entitles one to defend himself from an unlawful assault that he has not provoked. Section 35 deals with the right of a person to defend himself from an assault which he has provoked. Section 35 should have been left with the jury in the event that they were of the view that Bolyantu had provoked an assault (either actual or believed) by Stimac.

In R. v. Squire (1975), 1975 CanLII 45 (ON CA), 26 C.C.C. (2d) 219, at p. 233, Martin J.A. for the court distinguished between the situation where the deceased had been provoked and hence had a "legal right" to strike back, and a situation where he had not been provoked, in which case the deceased's strike would be "unlawful". In the former case, s. 35 governed, in the latter s. 34.

It is clear that a blow struck justifiably in self-defence by the deceased cannot afford provocation, since it is something that the deceased "had a legal right to do", within the proviso to s. 215(3) of the Code. In such circumstances the blow is not a wrongful act.

The case of a person who has willingly engaged in a fight without any necessity for defending himself falls within the provisions of s. 35 of the Code which establishes the conditions necessary to justify the subsequent use of force in self-defence by one who has without justification assaulted another or who has without justification provoked an assault upon himself. It is difficult to see how in such circumstances one who has actually and willingly begun to fight could be said to be the victim of an unprovoked assault under s. 34. [Underlining added; italics in original.]

77The British Columbia Court of Appeal has followed the same approach. In R. v. Merson (1983), 1983 CanLII 226 (BC CA), 4 C.C.C. (3d) 251, at p. 255, it stated, per Nemetz C.J.B.C. (in dissent, but not on this point):

Generally speaking, s. 34 provides a defence of self-defence to a victim. Section 35 provides such a defence to the aggressor.

And per Taggart J.A., at p. 266:

Unlike s. 34, s. 35 is available to an accused notwithstanding the fact that he initiates the conflict by assaulting, or by provoking an assault by, the other combatant.

The Alberta Court of Appeal has taken the same view in R. v. Alkadri (1986), 1986 ABCA 145, 29 C.C.C. (3d) 467, at p. 470, per Kerans J.A.:

If he did not provoke that assault, the killing is justified under s. 34(2) if the jury has a doubt whether the accused caused the death under reasonable apprehension of death and in the belief he had no choice. If, on the other hand, the jury views the accused as the original aggressor, he can only invoke s. 35 and the jury must additionally ask itself both whether he did not, before the threat to his life arose, himself try to kill and whether he had, after he started the fight, retreated from it as far as was feasible.

78More recently, the Ontario Court of Appeal in two cases, R. v. Stubbs (1988), 28 O.A.C. 14, and R. v. Nelson (1992), 1992 CanLII 2782 (ON CA), 71 C.C.C. (3d) 449, took the view that the court took in this case, that s. 34(2) is available to an aggressor. Viewed in the historical continuum, these decisions represent a departure from the settled view at common law and throughout most of the first century of the Canadian Criminal Code that both branches of s. 34 apply only in the situation of justifiable assault, that is where the accused did not provoke the fight that led to the killing.

Policy Considerations

79The interpretation of ss. 34 and 35 which I have suggested is supported by policy considerations. The Crown argues that it would be absurd to make s. 34(2) available to aggressors when s. 35 so clearly applies. Parliament, it argues, could not have intended such a result. More practically, as the Chief Justice notes, the sections read as McIntosh urges may lead to absurd results. If s. 34(2) is available to an initial aggressor who has killed or committed grievous bodily harm, then that accused may be in a better position to raise self-defence than an initial aggressor whose assault was less serious; since s. 34(2) is only available to an aggressor who "causes death or grievous bodily harm", the less serious aggressor would not fall under its ambit. The less serious aggressor, forced to rely on s. 35, would have no defence in the absence of retreat. It is anomalous, to use the Chief Justice's word, that an accused whose conduct is the more serious has the broader defence.

80Common sense suggests that ss. 34 and 35 set out two situations, each with its corresponding defence. The broader defence of s. 34, not requiring retreat, goes naturally with the less serious category of conduct by the accused, namely, the situation where the accused is unlawfully attacked, not having provoked the assault. The narrower defence of s. 35 similarly goes naturally with the more serious conduct by the accused, the situation where the accused as aggressor provoked the assault.

81While I agree with the Chief Justice that Parliament can legislate illogically if it so desires, I believe that the courts should not quickly make the assumption that it intends to do so. Absent a clear indication to the contrary, the courts must impute a rational intent to Parliament. As Lord Scarman put it in Stock v. Frank Jones (Tipton) Ltd., [1978] 1 W.L.R. 231 (H.L.), at p. 239: "If the words used by Parliament are plain, there is no room for the `anomalies' test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake." That, in my view, describes this case. Indeed, as noted earlier, the law goes so far as to permit a missing provision to be read in where absurdity, traceable error and obvious correction combine.

82Not only is the result McIntosh argues for anomalous; to my mind it is unwise and unjust. The common law has for centuries insisted that the person who provokes an assault and subsequently kills the person he attacks when that person responds to the assault must retreat if he wishes to plead self-defence. Otherwise, a person who wished to kill another and escape punishment might deliberately provoke an attack so that he might respond with a death blow. 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. The obligation to retreat from provoked assault has stood the test of time. It should not lightly be discarded. Life is precious; the justification for taking it must be defined with care and circumspection.

Conclusion on Section 34(2)

83In summary, the history, the wording and the policy underlying s. 34(2) all point to one conclusion: Parliament did not intend it to apply to provoked assault. It follows that the trial judge did not err in limiting s. 34(2) in this way in his instructions to the jury.

2. Should Section 37 of the Criminal Code Have Been Left with the Jury?

84Section 37 refers to two aspects of defence of the person: self-defence and defence of others. With respect to defence of others, the section is unique, and its meaning is therefore clear. I agree with the Chief Justice that the purpose of s. 37 in the self-defence context is not readily apparent and appears to conflict with s. 35, in so far as it applies to an initial aggressor. However, again the section must be viewed in keeping with the overall scheme of self-defence established by Parliament. Section 37 gives a broad overview of the principles of self-defence. Sections 34 and 35 deal with the common law of justifiable and excusable homicide. They thus deal with death and grievous bodily harm. It must therefore be assumed that ss. 34 and 35 exclusively dictate the application of the principles laid out in s. 37 where death or grievous bodily harm has occurred. Where death or grievous bodily harm has not occurred, the principles of s. 37 apply without the focus and direction provided by ss. 34 or 35. It follows that the trial judge was correct in declining to leave it to the jury.

Conclusion

85I would allow the appeal and restore the conviction.