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Statutory Interpretation - Rule Against Tautology. R. v. Fox
In R. v. Fox (Ont CA, 2023) the Court of Appeal considers the statutory interpretation principle of 'redundancy'(also 'tautology'), here in the context of interpreting the criminal law of child luring:[26] Is recklessness as to age sufficient mens rea when it comes to luring an actual child for the purpose of facilitating a sexual offence or any of the other offences incorporated by reference into s. 172.1(1)(a)? An important principle of statutory interpretation suggests that it is.
[27] There is a presumption against interpreting statutory language in a way that would create redundancy: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 85; R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, at para. 28. To construe the first mode of offence under s. 172.1(1)(a) as requiring belief, as the respondent urges, would render the first mode of committing the offence redundant. The second mode of offence applies so long as “the accused believes” that the complainant is under the age of 18. Nothing about this clause restricts its application to situations where there is no actual child complainant. On its face, then, the second mode applies where the accused believes that they are communicating with a child, regardless of whether the person with whom they are communicating is an actual child. Under the respondent’s interpretation, the first mode of committing the offence would capture only a subset of the conduct already captured by the second mode. This cannot be right. To adopt the respondent’s reading of s. 172.1(1)(a) would sap the first mode of offence of any independent meaning.
[28] Conversely, construing the first mode as requiring the presumptive mens rea of recklessness avoids redundancy. On this reading, where the Crown proves there is an actual child complainant and the accused is reckless as to their age, the accused’s conduct will fall within the first mode of offence under s. 172.1(1)(a) but not the second, which requires full belief. . Akinyimide v. Economical Mutual Insurance Company
In Akinyimide v. Economical Mutual Insurance Company (Div Court, 2023) the Divisional Court cites the statutory interpretation principle that no part of a statute shall be interpreted as meaningless:[22]Further, as was discussed during oral argument, if the LAT cannot apply s. 131, the purpose of the section is unclear. It is assumed that the legislature does not pass laws that have no purpose. As the Supreme Court held in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para 28, “[i]t is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage.” The courts do not require s. 131, as they have equitable jurisdiction, and if it is not able to be used by the LAT, then it appears that there is no need for it. Indeed, the finding of the LAT that it cannot award equitable relief appears to be precisely why s. 131 is in the Act – so that the same kind of relief can be applied by the LAT to protect insured persons in appropriate cases.[2] . Canada v. Canada North Group Inc.
In Canada v. Canada North Group Inc. (SCC, 2021) the Supreme Court of Canada sets out the statutory interpretation principle against tautology:[64] Using the list of specific examples to ascertain Parliament’s intent in this case is also consistent with the presumption against tautology. In McDiarmid Lumber Ltd. v. God’s Lake First Nation, 2006 SCC 58, [2006] 2 S.C.R. 846, McLachlin C.J. defined this presumption in the following way:It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain: Sullivan, at p. 158. Thus, “[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose” (p. 158). This principle is often invoked by courts to resolve ambiguity or to determine the scope of general words. (Para. 36, quoting R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 158; see also Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715, at para. 45.)
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