A Treatise on Criminal Law as Applicable to the Dominion of Canada

CHAPTER VII.

ANNOTATIONS OF MISCELLANEOUS STATUTES.

Ir is a sound rule to construe a statute according to the common law rather than against it, except, when or so far as the Statute is plainly intended to alter the common law. (a)

Statutes are usually construed strictly in criminal cases, and no construction will be adopted, which the language of the Statute does not plainly authorize. (b)

But they are taken strictly, and literally only, in the point of defining and setting down the crime and the punishment, and not generally in words that are but circumstance and conveyance in putting the case. (c)

It has been laid down that the Court will construe a penal Statute according to its spirit, and the principles of natural justice; and cases may possibly arise in which, although a person, according to the letter of the Act, may be liable to the penalty; yet the Court will direct the jury to acquit him, he not having offended against its spirit and intention. (d)

By 31 Vic., c. 1, s. 6, thirty ninthly, every Act shall be deemed remedial, and shall be construed as such. In construing a remedial Statute, the substance of its provisions must be looked to, (e) and the Court will construe it liberally. (f)

(a) Reg. v. Morris. L. R. 1 C. C. R. 95, per Byles, J.

(b) See Reg. v. O'Brien, 13 U. C. Q. B. 436; see also Reg. v. Brown, 4 U. C. Q. B. 149, per Robinson, C. J.; Wilt v. Lai, 7 U. C. Q. B. 537, per Robinson, C. J.

(d) Atty. Genl. v. Mackingtosh, 2 U. C. Q. B. O. S. 497. (e) Reg. v. Proud, L. R. 1 C. C. R. 74, per Kelly, C. B. (f) M'Farlane v. Lindsay, Draper, 142; Dwarris. 614.

In construing the Consolidated Statutes of Canada, the Court may refer to the original enactments, in order to arrive at a right conclusion. (a) No man can be deprived of any right or privilege, under any statutory enactment, by mere inference, or by any reasons founded solely upon convenience or inconvenience. Statutes are to be construed in reference to the principles of the common law, or of the law in existence at the time of their enactment. It is not to be presumed that the Legislature intended to make any innovation upon the common or then existent law, further than the case absolutely required; and Judges must not put upon the provisions of a Statute a construction not supported by the words. (b)

The Court will not put an interpretation upon an Act to give it a retrospective effect, so as to deprive a man of his right. (c) In general, the Court will not ascribe retrospective force to new laws affecting rights, unless, by express words or necessary implication, it appears that such was the intention of the Legislature. (d)

But the Court cannot refuse to give effect to an ex post facto Statute, which is clearly so in its terms. (e) A prisoner is liable to be indicted, on the 29 & 30 Vic., c. 2 and 3, for unlawfully invading Quebec on a day antecedent to the passing of the Statute. (ƒ)

In construing an Act of Parliament, as in construing a deed or a contract, we must read the words in their ordinary sense, and not depart from it, unless it is perfectly clear, from the context, that a different sense ought to be put on them. (g) A Statute must be taken as it is,

(a) Whelan v. Reg, 28 U. C. Q. B. 108.

(b) Reg. v. Vonhoff, 10 L. C. J. 293, per Drummond, J.

(d) Phillips v. Eyre, L. R. 6 Q. B. 23, per Willes, J.

(e) Reg. v. Madden, 10 L. C. J. 342.

(ƒ) 16.

(g) Reg. v. Chandler, 1 Hannay, 551, per Ritchie, C. J.

and when its object is to protect public interests, its clauses must be received in that light. (a) A statutory enactment should be so construed as to make the remedy co-extensive with the mischief it is intended to prevent. (b)

Where two Statutes are in pari materia, and by the enactments of the latter Statute expressly connected together, they are to be taken as one Act. (c) And even when a Statute refers to another, which is repealed, the words of the latter Act must still be considered as if introduced into the former Statute. (d)

In general, an affirmative Statute does not alter the common law. (e)

Where general words follow particular ones, the rule is to construe them as applicable to persons ejusdem generis. (f) In accordance with this principle, the words "or other persons whatsoever," in the Con. Stats. U. C., c. 104, s. 1, cannot be taken to include all persons doing anything whatever on a Sunday, but must be taken to apply to persons following some particular calling of the same description as those mentioned. (g) There can be no estoppel against an Act of Parliament. If the transaction contravening the Act be in reality illegal, no writing or form of contract, or colour given, can prevent an inquiry into the actual facts. (h) It would seem that the principle of estoppel does not apply as against the public interest. (i)

(a) Reg. v. Patton, 13 L. C. R. 316, per Mondelet, J.

(b) Reg. v. Allen, L. R. 1 C. C. R. 375, per Cockburn, C. J.

(d) Dwarris, 571.

(e) Dwarris, 473-4, and see Levinger v. Reg. L. R. 3 P. C. App. 282.

(f) Sandiman v. Breach, 7 B. & C. 100.

(g) Hespeler and Shaw, 16 U. C. Q. B. 104, per Robinson, C. J.; see also Reg. v. Hynes, 13 U. C. Q. B. 194; Reg. v. Sylvester, 33 L. J. (M. C.) 79; Reg. v. Tinning, 11 U. C. Q. B. 636; Reg. v. Armstrong, 20 U. C. Q. B. 245; ante, p. 325-6.

(h) Battersbey v. Odell, 23 U. C. Q. B. 482. (i) See Reg. v. Ewing, 21 U. C. Q. B. 523.

It is a general rule, that subsequent Statutes, which add accumulative penalties, and institute new methods of proceeding, do not repeal former penalties and methods of proceeding, ordained by preceding Statutes, without negative words. Nor has a later Act of Parliament ever been construed to repeal a prior Act, unless there be a contrariety or repugnancy in them. (a)

In Foster's case, (b) it was held that the law does not favour a repeal by implication, unless the repugnance be very plain. A subsequent Act, which can be reconciled with a former Act, shall not be a repeal of it, though there be negative words. The 1 & 2 Ph. & M., c. 10, that all trials for treason shall be according to the course of the common law, and not otherwise, does not take away 35 Hy. 8, c. 2, for trial of treason beyond sea. (c)

The rule is, leges posteriores priores contrarias abrogant. If both Statutes be in the affirmative, they may both stand; but if the one be a negative, and the other an affirmative, or if they differ in matter, although affirmative, the last shall repeal the first. So, if there be a "contrariety in respect of the form prescribed," a repeal will also be affected. (d)

The 31 Vic., c. 14, seems now to be the governing enactment, protecting the inhabitants of Canada against lawless aggressions from subjects of foreign countries at peace with Her Majesty. It extends the 3 Vic., c. 12, (e) and the 29 & 30 Vic, cs. 2, 3, and 4, respectively, to the whole of Canada. (ƒ)

The Imp. Stat. 11 & 12 Vic., c. 12, did not override the

(a) Dwarris, 532-3.

(b) 11 Rep. 63.

(d) See O'Flagherty v. M'Dowell, 4 Jur. N. S. 33; Reg. v. Sherman, supra, 170, per A. Wilson, J.

(e) Con. Stats. U. C. C. 98.

(f) See also the 31 Vic., c. 16, and 33 Vic., c. 1.

3 Vic., c. 12, (a) for the latter was re-enacted by the consolidation of the Statutes, which took place in 1859, and is, therefore, later in point of time than the Imp. Statute. (b)

The prisoner was convicted, upon an indictment under Con Stats. U. C., c. 98, s. 1, containing three counts, each charging him as a citizen of the United States, the first count alleging that he unlawfully and feloniously entered Upper Canada, with intent to levy war against Her Majesty; the second, that he was in arms within Upper Canada, with the same intent; the third, that he committed an act of hostility therein, by assaulting certain of Her Majesty's subjects, with the same intent. The prisoner's own statement, on which the Crown rested, was, that he was a Roman Catholic priest, born in Ireland, and was a citizen of the United States. It was contended, on moving for a rule nisi for a new trial, that, on the prisoner's own statement, which the Crown had made their only evidence on the point, and were, therefore, bound to accept as true, he was a British subject; that the additional statement made by the prisoner, that he was a citizen of the United States, though equally true, could not affect the legal consequences of the first, for the native allegiance, of necessity, was the earliest attaching from his birth: that the prisoner could never relieve himself from the duties and obligations of native allegiance, and, therefore, he violated our laws as a British subject, and not as a "citizen or subject of any foreign state or country," and, consequently, was not liable to be convicted under the Statute. But it was held that, although he was born in the British dominions, he might become amenable to the provisions of

(a) Reg. v. School, 26 U. C. Q. B. 212. (b) Reg. v. Slavin, 17 U. C. C. P. 205.

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