Professor of Law, University of Saskatchewan
Many thanks to Leonid for inviting me to participate. I have focused on a few cases drawn from the substantive criminal law canon, picking out those which I think raise special concerns about the relationship between the courts and Parliament. Fa-la-la-la-la….
Strictly speaking, the Supreme Court didn’t address any constitutional issues in Jobidon. This was a case concerning the circumstances under which consent to applications of force could be vitiated on public policy grounds, for the purposes of the offence of assault. But Jobidon raises huge questions about the respective roles of the courts and Parliament in determining what is a crime and what isn’t. The majority held that it was open to the courts to decide, on a case-by-case basis, that certain courses of action are so lacking in social value that any apparent consent by the putative victim is legally ineffective. In taking that approach, the majority failed to pay due regard to section 9 of the Criminal Code, which precludes the creation of new common law crimes. Perhaps more importantly, though, the reasoning of the majority runs directly contrary to the separation-of-powers considerations that underpinned Frey v Fedoruk, the landmark ruling that spurred Parliament to create section 9 in the first place. Jobidon has consistently taken a kicking from criminal law commentators since it was decided in 1991, and more recent authorities have rejected the reasoning it rests upon. The Supreme Court will have an opportunity to express its views on the case when it decides Barton in 2019.
R v Butler,  1 SCR 452 and R v Labaye, 2005 SCC 80,  3 SCR 728
Butler was a deeply problematic decision on a number of levels. In upholding the obscenity provisions of the Criminal Code, the majority effectively re-wrote them, construing section 163(8) in light of values and objectives that bore no resemblance to those of the Parliament that enacted it. To make that palatable, the majority invented the ‘permissible shift in emphasis’ – a murky notion that exists for no other reason than to allow the courts to repurpose legislation for its own preferred policy ends. Along the way, the majority waded into the Hart-Devlin debate, hinting that it might not be open to Parliament to criminalize activities on any basis other than harmfulness, while implicitly adopting a highly elastic conception of ‘harm’. In doing so, the majority neither acknowledged the vast scope of Parliament’s criminal law-making authority, nor articulated ascertainable limits on it.
Ten years later, in Malmo-Levine, the Court rejected the argument that John Stuart Mill’s harm principle is a principle of fundamental justice under section 7 of the Charter, in large part because it fails to articulate a “manageable standard” against which to measure the constitutionality of legislation. Indeed, the majority accepted that, in principle, Parliament could use the criminal law power to target courses of action that are not, strictly speaking, harmful at all, but wrongful on some other basis – citing remarks in Butler to that effect.
This set the stage for Labaye, in which the Court was called upon to interpret “acts of indecency” in section 197(1). Writing for the majority, McLachlin CJ observed that harm was an “essential ingredient of obscenity”, as well as for indecent assault. Even more significantly, she held that it was the role of the Court to refine what it means to cause harm in the first place – to produce a “workable theory of harm” over time, in the “tradition of the common law”. The majority never explained how this could possibly be appropriate in the substantive criminal law context, given the special need for clarity and certainty, and given that it falls to our elected representatives, not the courts, to tell us what courses of action are criminally wrongful.
R v Martineau,  2 SCR 633
The Travis Vader debacle sparked a great deal of discussion as to the need to clean up the Criminal Code. But it ought to have prompted more debate over the merits of Martineau, which was poorly reasoned and wrongly decided.
It is reasonable to think that people who engage in behavior that is only objectively dangerous, and cause death as a result, should never be called “murderers”. That claim, however, is by no means obvious. For more than 250 years, English and Canadian judges, commentators, and legislators took the view that subjective foresight of death was not a requirement for murder. There is nothing like a “societal consensus” to the contrary.
Much of the majority’s opinion is tacitly grounded in the idea of fair labelling, suggesting that it was open to Parliament to treat the conduct in issue as criminal ― and more blameworthy than mere manslaughter ― so long as it did not call the conduct “murder”. The dissenting judges were rightly dismissive of this argument. The labels applied by Parliament to criminal offences are, in the end, legal labels that need not perfectly track moral language. It is not the role of the courts to decide how Parliament can best articulate the wrongfulness of a given course of action.
In the end, the decision in Martineau rested on spurious claims that section 230 was inconsistent with the stigma and punishment associated with murder. The stigma argument is question-begging: the point of criminal offences is to express Parliament’s view that a given type of conduct is wrongful and deserving of censure. If Parliament regards the conduct in question as sufficiently wrongful to warrant being treated as ‘murder’, then it is unclear how or why the courts have any business second-guessing it.
There is a strong argument that the real problem with constructive murder was the mandatory minimum sentence for murder generally. If that’s the case, though, then the answer was to strike down the mandatory minimum, and not the substantive offence. Indeed, the practical effect of Martineau was to make it less likely that challenges to the mandatory minimum for murder would succeed, since it is unlikely that the sentence would be grossly disproportionate for anyone who could be convicted under the categories of murder that remain.
The poor reasoning on display in Martineau is reflected in the fact that, since the early-1990s, there has been little or no success in convincing appellate courts that an objective fault offence should be struck down by virtue of the stigma and punishment associated with it. Martineau is the product of a time when judges and commentators were far more skeptical of objective fault offences generally. It was wrong the day it was decided, but it looks more and more wrong with each passing day.
R v Carter #2, 2016 SCC 4,  1 SCR 13
A decision that took all of the confusion surrounding the remedy ordered in Carter #1, and made it worse. By the time the majority was done, we somehow had a declaration of unconstitutionality that applied only to some instances of physician-assisted suicide, a suspension of the declaration (for reasons that were dubious at best), and a holding that patients could seek exemptions during the period of the suspension. A low point in constitutional remedies.