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  • Lewis Waring

Moving in the Right Direction in the Wrong Way - Dane Kingdon

There is a fine line judges have to walk when interpreting statute. Their job is to interpret the law, not create it. It is the elected official’s job to actually create the law. In an ideal world this is simple, judges simply apply the rules as they are written. The problem is that often the laws are written with ambiguity, sometimes purposefully to allow them to be flexible and other times simply because of bad drafting. Whichever reason, the end result is the same: to a certain extent, judges must interpret the law how they see fit. This is particularly true for laws that are dealing with issues the public finds unpleasant. Laws that deal with sexual offences are particularly subject to judicial interpretation as seen in R v Sharpe. Recently, the Supreme Court of Canada (“the Court”) looked at R v Jarvis (“Jarvis”). Jarvis was a case of reasonable expectation of privacy and how far it should extend. In Jarvis, the Court took it upon itself to interpret the actus reus component of section 162(1) of the Criminal Code (“the Code”). This paper will discuss why the Court creating an actus reus is unusual as well as the benefits and the dangers.

Jarvis was a case where the accused was a teacher who was secretly taking photos of his students while at school. The accused was eventually charged with voyeurism. To make out a voyeurism charge, the Crown must be able to prove that the targets had a reasonable expectation of privacy and that videos were of a sexual nature. The Court in Jarvis had to decide whether the students had a reasonable expectation of privacy or if the public nature of where the photos were taken negated this. Ultimately, the Court found that the students did have a reasonable expectation of privacy and that a more nuanced approach was necessary. The minority believed this could be reached by simply interpreting the statute and applying it to the student’s situation. The minority felt the Code was broad enough to include the student’s situation. The majority felt that it was necessary to use the Canadian Charter of Rights and Freedoms (“the Charter”) to interpret what exactly a reasonable expectation of privacy was. Essentially, the majority used the Charter to flesh out what they believed the actus reus component of section 162 of the Code was. This is highly unusual for it is not the court’s job to create an actus reus that has always been left up to the elected officials.

As previously stated, often laws are drafted poorly, which can make it difficult for judges to interpret them. A reasonable expectation of privacy is one of those ambiguous laws. What exactly each person would consider reasonable will change. In Jarvis the Ontario Court of Appeal (“the ONCA”) had felt that the way the law was drafted meant Parliament did not intend to capture photos taken in a public place. This strict reading of the law by the ONCA created what many would feel was a wrong outcome. The Court’s approach of interpreting the law in a far more nuanced way allowed for what many would feel is a more just outcome. By having a more flexible approach the Court stopped someone getting off simply because the wording of a law was too ambiguous. As mentioned previously, Parliament is often reluctant to pass laws that can be seen as controversial. Controversial laws can be difficult for elected officials to pass because of the danger of angering the public. The result of Parliament’s reluctance is inadequate laws that can lead to either laws that are too strict or not strict enough. The Court’s new activist approach could fix this problem.

For all the benefits of the Court taking a more activist approach to cases in the future, there are also some serious dangers. The first and most obvious is that nine unelected individuals could start essentially creating the laws for the rest of the country. Our country prides itself on its democracy, and there is a real danger of it being eroded the more activist the Court gets. One of the problems I mentioned above is that politicians are worried about political backlash when passing controversial laws. While this is a negative, it can also be thought of as a positive. Essentially, it is the will of the people to have some sort of say in what laws are created. What might be most concerning about the majority decision in Jarvis is that the minority came to the same conclusion but in a less intrusive way. Clearly, this shows that the majority of the Court felt that a more activist approach was necessary. I applaud the outcome that the majority reached, and even feel that the precedent they set is fair. The problem is, I do not feel they got there the right way. One has to wonder whether the outcome being different in Jarvis would have led people to be less accepting. What if the majority had been more activist and used a Charter argument to show that the students did not have a reasonable expectation of privacy? One has to be careful not to just cheer the outcome and ignore the path the Court used. The dangers of a Court which can create the rubric for the mens rea and the actus reus cannot be ignored or understated. While in this case I may agree with the majority’s outcome, I may not in the future. Therefore, I find myself siding with the minority in Jarvis.

I think the saying “the path to hell is paved with good intentions” is most fitting for the Jarvis case.While there are many benefits to a more activist judiciary, I do not feel they outweigh the risks. While I respect the fact that the Courtis trying to fix problems that the elected officials create, to be frank, that is not their job. A judge’s job is to interpret the law, not create it.


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