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Statutory Interpretation - 'Operative Interpretive Presumption'. R. v. Fox
In R. v. Fox (Ont CA, 2023) the Court of Appeal considers the statutory interpretation principle of 'operative interpretive presumptions', here in a criminal mens rea context:[19] Determining the mens rea as to age applicable to s. 172.1(1)(a) of the Criminal Code is a matter of statutory interpretation. The orthodox method of statutory interpretation was summarized by the Supreme Court in R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73, at para. 77: “one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the statute”. Distilled further, it is a matter of determining the intention of Parliament by reference to the “text, context, and purpose” of the statute: R. v. Basque, 2023 SCC 18, para. 63.
[20] In ascertaining the intention of Parliament, courts are assisted by reference to operative interpretive presumptions. One such presumption, applicable here, is that Parliament intends that true crimes have a subjective fault element, namely that criminal liability results only where an accused who committed a prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence or with wilful blindness towards them. See R. v. A.D.H., 2013 SCC 28, [2013] S.C.R. 269, at para. 23, and the cases cited therein.
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[22] As explained below, consideration of the text, context, and purpose of s. 172.1(1)(a) establishes that recklessness as to age is sufficient mens rea for a conviction under the provision’s first mode of offence where the Crown can prove the accused communicated with an actual child. I would therefore allow the appeal. However, because the trial judge did not make the necessary findings as to whether the respondent subjectively intended to communicate with the complainants for the purpose of facilitating the commission of the secondary offences alleged, I would order a new trial.
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