La définition du mot violence

R. v. Callihoo, 2006 ABPC 347 (CanLII)

[46] “Violence” is not defined in the Code. The Supreme Court held that to determine an undefined term in a statute the words making up the term are 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”: see Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at para. 21.

[47] Recently, R. v. C.D.; R. v. C.D.K., 2005 SCC 78 (CanLII), [2005] 3 S.C.R. 668, (C.D.) the Supreme Court explored the meaning of the words “violence” and “violent offence.” In that case the Court was concerned about the meaning to be attributed to the word “violent offence” in s. 39(1) of the Youth Criminal Justice Act. That Act allows a judge to sentence a young person to custody in one of four situations. One of these gateways is where the young person commits a “violent offence. “ Bastarache J. wrote the majority decision. Bastarache J. felt it advisable to explore the meaning of the word “violence” in his analysis. He began with the dictionary meaning “violence” but expressed some reservations about the dictionary meaning being a complete answer. At paras. 29-30 he wrote:

“Turning first to dictionary definitions, according to the Oxford English Dictionary (2nd ed. 1989), at p. 656, when the word "violent" is used to describe actions, it means that the actions are "[c]haracterized by the doing of harm or injury" or are "accompanied by the exercise of violence." The primary meaning of "violence,” according to this dictionary, is "[t]he exercise of physical force so as to inflict injury on, or cause damage to, persons or property" (p. 654).

While the dictionary definition of "violence" focuses on the means employed to produce injury or damage (i.e. the exercise of physical force), one author argues that, ordinarily, the term "violence" is understood just in terms of its effects:

Violence is not an easy term to define. It is usually defined in terms of its effects. For most people, any act producing even a small amount of blood is violent. Sometimes damage to objects is accepted as a violent expression of anger or hostility against a person (as when someone vandalizes another's car or defaces the walls of a house with slogans).

It is significant that the Criminal Code, which one might assume to be the "bible" of the control of violence in society, offers no definition of violence. It is, surprisingly, perhaps the most "assumed" term within the entire Code. Offences which one might consider the most "violent" of all crimes, such as murder and assault, do not mention violence. Rather, they talk about concrete, measurable things like "death" and "bodily harm."

(T. Scassa, "Violence Against Women in Law Schools" (1992), 30 Alta. L. Rev. 809, at p. 816)”

[48] Bastarache J. concluded his analysis related to meaning of the word “violence” at para. 33:

“After examining these dictionary, ordinary and judicially constructed definitions of "violence," it can be said that "violence" is typically associated with either the application of force or the causation of harm or injury, but is also sometimes associated with both. Not only is it clear from these definitions that "violence" has a spectrum of meanings, it is also clear that "violence" can be applied to property as well as to persons. Nevertheless, while helpful, these particular definitions of "violence" are certainly not determinative of the meaning of the term "violent offence" for purposes of s. 39(1)(a) of the YCJA, because it is still necessary to examine this term in the context of the Act. Specifically, this term must be analysed in relation to the object of the YCJA, the scheme of the YCJA and the intention of Parliament. As I will demonstrate below, all three of these indicators of legislative meaning favour a narrow interpretation of the term "violent offence.”

[49] Bastarache J. continued his analysis in C.D. by examining the context of the act. At para. 87 he concluded:

“For all these reasons, I support extending the definition of "violent offence" to capture those offences in which bodily harm is threatened. Accordingly, I am of the view that, for purposes of s. 39(1)(a) of the YCJA, the term "violent offence" must be defined as an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm. Since the Alberta Court of Appeal defined this term differently, I must respectfully conclude that it erred in law in doing so.”

[50] Bastarache J. reviewed the record in relation to each accused. He concluded that the admitted facts did not prove that the offences for which either accused was charged constituted “violent offences”: see paras. 88-89; para: 92.

[51] Clearly, C.D. is applicable to s. 39(1) of YCJA. C.D. is based in large part in a contextual analysis of the YCJA. So, the conclusions of the Supreme Court as to the meaning of “violent” must be carefully scrutinized prior to any conclusion as to the meaning of the word to a Code provision. Nevertheless, the findings of the Supreme Court as to the meaning of a related word “violent offence” can hardly be easily ignored.

[52] The word “violence” obviously can give rise to a whole spectrum of meanings. The ordinary grammatical meaning of the term is to be garnered by reference to its primary dictionary meaning, i.e., “the exercise of physical force so as to inflict injury on, cause damage to, persons or property.” This ordinary meaning must be borne in mind in determining its meaning. A contextual examination of the legislation can often lead to a determination of the intent and object of parliament that can serve to discern the exact meaning of a term used in the legislation. Unfortunately examination of Code sections other than s. 343 is of little assistance in determining the meaning of violence in that section. Examination of the terminology within the section is of some limited assistance since the section makes a distinction between “assault” and “violence.” The examination of the jurisprudence defining that term in reference to ss. 343(a) and (b) is of assistance to illustrate the meaning of the word and how it has been applied.