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Statutory Interpretation - Criminal Ambiguity. R. v. Arapakota
In R. v. Arapakota (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here from an acquittal from a prosecution under "s. 3(1)(a) of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 (CFPOA), which criminalizes the offering or making of loan, reward, advantage or benefit to a foreign public official or for the benefit of an official, “in order to obtain or retain an advantage in the course of business”, and “as consideration for” an act or omission by that official in connection with the performance of the official’s duties or functions".
Here the court considers a statutory interpretation principle that crimes must be expressly stated in statute and avoid ambiguity:[68] A related principle is that, if the text of a penal statute contains real ambiguities, they should be resolved in favour of the person subject to prosecution. “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”: Marcotte v. Deputy Attorney General (Canada), 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, at p. 115; see also R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, at pp. 629-30; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 55.
[69] Third, Parliament is assumed to legislate coherently. “Statutes enacted by a legislature that deal with the same subject are presumed to be drafted with one another in mind, so as to offer a coherent and consistent treatment of the subject”: Ruth Sullivan, The Construction of Statutes, 7th ed. (Markham: LexisNexis Canada Inc., 2022), at § 13.04. Lamer C.J.C. referred to the presumption of coherence in Pointe-Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015, at para. 61, stating: “There is no doubt that the principle that statutes dealing with similar subjects must be presumed to be coherent means that interpretations favouring harmony among those statutes should prevail over discordant ones”.
[70] Accordingly, when interpreting provisions in penal statutes, “[r]eference to the language of other provisions which create closely related criminal offences can provide interpretative assistance”: R. v. Greenwood (1991), 1991 CanLII 2730 (ON CA), 5 O.R. (3d) 71 (C.A.), at p. 89, citing R. v. Buzzanga (1979), 1979 CanLII 1927 (ON CA), 25 O.R. (2d) 705, at pp. 715-21. A court may also consider other domestic laws on the same subject, particularly if they contain similar language, and weigh how this language has been interpreted.[4]
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