In addition to my responsibilities as Robson Crim Student Editor, I have also been working as a research assistant this summer. The vast majority of that research has focused on case law. Usually, the cases that I deal with are rather straight forward. However, every once in a while, I stumble across jurisprudence that I find to be more thought provoking. In this post, I explore some of the thoughts that one such case provoked.
The case in question is a 2016 decision from the Supreme Court of Canada, R v DLW 1 [“DLW”]. I caution you now that DLW is a sordid case, involving child sexual abuse, and more notoriously, the definition of bestiality under the criminal law. For details of the case, read this earlier blawg.
Fortunately, my discussion does not rely on the facts raised in DLW, so I shall not elaborate on them. The central issue before the Supreme Court was one of statutory interpretation. In essence, the Court had to decide between two interpretations of the essential elements of a criminal offence. One was expansive and incorporated a wide range of conduct, including that of the accused. The other interpretation was much narrower. The majority of the Supreme Court adopted the narrower interpretation, acquitting the accused of the particular charge at issue (though he was still convicted on several other counts). The keystone principle supporting the majority’s reasons was that only Parliament, not the judiciary, may expand criminal liability [“the expansion principle”].2
This principle dates back to the English 1867 Draft Code, and was reiterated in the 1955 Criminal Code revisions. The aim was to eliminate common law offences, so that the only offences for which an accused could be prosecuted were those codified by statute.3 As a result, according to the Supreme Court, the judiciary may only conclude that a new crime has been created where statutory language used to do so is certain and definitive, with the exception of contempt.4
Courts are allowed to interpret broad or open-textured wordings in a modern context, even including things that were unknown at the time of enactment. However, where Parliament uses a specific scientific or technical term, its meaning is not open to expansion.5
The Supreme Court explains that the expansion principle “reflects the appropriate respective roles of Parliament and the courts, [and] the fundamental requirement of the criminal law that people must know what constitutes punishable conduct and what does not, especially when their liberty is at stake”.6
Only Parliament should be defining what conduct is to be considered criminal in society because parliament is both empowered by, and accountable to, the citizenry. As officials who derive power from appointment and lack the same accountability mechanisms, it would be inappropriate for judges to make such decisions. Additionally, fairness is implicated, since it would be unfair for someone to be deprived of liberty where the law does not clearly set out what conduct is criminal.
I can see the point of the majority. Checks and balances, and the distribution of power across the branches of government are crucial to a just and functional democracy. The expansion principle reflects and maintains this. However, I could not help but consider that there are disadvantages to such an approach as well. While the principle appears proper and necessary on its face, it should always be kept in mind that theory and reality often differ.
Allowing the judiciary to expand criminal liability, if kept within reason, could carry advantages. One of the major issues faced by the justice system is keeping up with the rapid pace of technological change. This was clearly illustrated by my previous blog regarding Nova Scotia’s cyber-bullying legislation. Permitting the judiciary to expand the scope of criminal liability in certain situations could allow the law to become more adaptive to the pace of change by enabling a more rapid legal response to new scenarios. None of this would take away from the ability of Parliament to negate expansions after. Furthermore, the judiciary has already demonstrated a willingness to expand areas of the criminal law other than situations of liability, without the input of Parliament. One example of this is ancillary police powers.
That example leads to the next point. At a fundamental level, part of the reasoning behind preventing the judiciary from expanding criminal liability is the belief that providing it with that kind of power would open the door for abuse. There was a dissent in DLW which adopted the stance that Parliament had demonstrated an intention to support a broader definition of the offence and that the narrower definition resulted in absurd consequences. On this view, the Court would not have been expanding the scope of criminal liability, because Parliament had already done so itself. Had enough of the other justices decided to approach the issue that way, the existence of the expansion principle would have been irrelevant.
The operation of a principle like this at law depends on how the issue is framed, which is in turn decided by lawyers and judges. In that sense, relying on principles such as the expansion principle is ineffective for maintaining the “appropriate” separation of parliamentary and judicial roles. Already, the judiciary is only bound by these principles insofar as it binds itself. Any member of it already willing to derogate from their appointed role may not be inhibited by the expansion principle. This is especially true considering that not everyone possesses the resources to sustain a case through to the Supreme Court.
Many people might also assert that Parliament is no better a custodian of the scope of criminal liability than a particular judge might be. Legislating is a political process that is no less malleable and vulnerable to bias than the decisions of a particular judge. Despite the fact that politicians in Parliament can always be voted out of office and are under higher levels of scrutiny, I doubt that anyone would seriously debate that they still manage to avoid accountability for many of their actions. Even if the heightened accountability of the Parliament relative to the judiciary is accepted, it might still be asserted that the judiciary is better suited to making minor alterations to the criminal law by virtue of its members’ legal education, experience and the selection process.
Thus, I think that much of the logic underlying the expansion principle, that expanding the scope of criminal liability is not a role for the judiciary, is subject to criticism. Allowing some power to expand liability could help the legal system to keep up with evolving technology. In other areas of criminal law the judiciary is already expanding the law without Parliamentary input. Reliance on such principles as a bulwark against abuse of power by members of the judiciary is really not effective, since the applicability of interpretive principles is, ironically, subject to interpretation. Furthermore, the underlying idea that Parliament is any less biased than a given judge is questionable. At least members of the judiciary are equipped to deal with legal issues.
Despite these criticisms, I personally believe that the majority in DLW was correct to emphasise the expansion principle, and that adherence to such principles is necessary. While allowing judges to expand the law in some circumstances might increase efficiency, it would impact the predictability and clarity of the law for citizens, which would raise a fundamental issue of fairness. As for bias, every legal system is going to afford opportunities for biased decision-making to occur because, at some stage, every system must rely on people making decisions.
Whether the judiciary is any better equipped to make legal decisions is also an open question on my view. There have certainly been judges in recent years who, for all their education and experience, made poor calls (for example, the misuse of language and sexist myths in sexual assault cases). On balance, I think that it is important to question these well established legal principles and their practical functioning. However, it is equally important to keep in mind that they exist for a reason, and nothing is perfect.
1 R v D.L.W., 2016 SCC 22,  1 S.C.R. 402 [DLW].
2 DLW at para 57.
3 DLW at para 58.
4 DLW at para 59.
5 DLW at para 61.
6 DLW at para 59.