Common Law Expansions of Criminal Liability

• Author: Michael Plaxton
• Pages: 134-176

[ 134 ]

chapter 3

COMMON LAW EXPANSIONS

OF CRIMINAL LIABILITY

A. INTRODUCTION

Section  of the Criminal Code, as we have seen, denies that courts

can create new criminal oences at common law. But there is a catch.

Section () of the Criminal Code states [emphasis added]: “Every rule

and principle of the common law that renders any circumstance a

justication or excuse for an act or a defence to a charge continues in force

and applies in respect of proceedings for an oence under this Act or

any other Act of Parliament except in so far as they are altered by or

are inconsistent with this Act or any other Act of Parliament.”

In a straightforward sense, there is no conict between the two

provisions. Inasmuch as section () permits the courts only to apply

common law defences, it cannot lead to the sort of unfairness that

section  is intended to address — situations in which citizens are

given no warning that a course of action is wrongful, and yet are sub-

sequently prosecuted and punished for embarking upon it. At worst,

one might think, it means that some individuals who expected to be

punished for engaging in wrongdoing would enjoy the happy sur-

prise of an acquittal. That, to put it mildly, seems innocuous enough.

But matters are not so straightforward. This is, in part, because of

the unstable conceptual relationship between oences and defences;

 Criminal Code, RSC , c C-.

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Common Law Expansions of Criminal Liability

and, in part, because of the elasticity of the common law. With respect

to the rst point, it may be unclear whether proof of a given fact

negates an element of the oence in question or amounts to a posi-

tive defence. Thus, mistake of fact is sometimes treated as though it

excuses the commission of an oence, even though it ostensibly neg-

ates an essential element — fault. The Supreme Court has vacillated

as to whether duress operates as an excuse rather than a factor going

to subjective fault. And in Jobidon, as we will see, a majority of the

Supreme Court appeared to treat the presence of consent as a (pre-

sumably justicatory) defence to the oence of assault, rather than

its absence as an element of the oence. This conceptual instability

makes it possible for courts to recognize new defences (or preserve

old ones) in the face of legislative intentions to the contrary, notwith-

standing the qualifying language of section ().

Much of the heat has been taken out of this issue as a result of the

Supreme Court’s approach to defences. The Court has made it clear

in a range of cases that, notwithstanding the broad language of sec-

tion (), it is not open to the courts to create or expand justicatory

defences at common law. Indeed, it is not even open to the courts to

create or expand excusatory defences at common law, where doing

so would eectively undermine Parliament’s attempt to authori-

tatively declare that a course of action is impermissible. This still

leaves room for the courts to recognize or expand some excusatory

and institutional defences at common law, precisely because these

do not interfere with the guidance function of criminal oences.

But there is not as much room as is oen supposed. In taking this

approach, the Supreme Court has made it clear that, in determining

the scope of section (), nothing much should turn on whether a

given element should be characterized, in the abstract, as a “defence”

rather than an “oence.” That provision has been read in light of the

separation-of-powers considerations that informed section  of the

 See, for example, R v Perka, []  SCR  at –.

 See Don Stuart, Canadian Criminal Law, th ed (Toronto: Carswell, ) at –;

Kent Roach, Criminal Law, th ed (Toronto: Irwin Law, ) at .

 Compare R v Paquette, []  SCR  to R v Hibbert, []  SCR .

 R v Jobidon, []  SCR  [Jobidon].

[ 136 ] , ,  

Code, such that it is consistent with Parliament’s exclusive authority to

set social policy. (I explain each of these propositions in more detail

in Chapter .)

So even when it comes to reducing the ambit of criminal liability,

the courts’ authority to make use of the common law under section

() has been given a relatively narrow interpretation. With that in

mind, it would be surprising indeed if section () gave judges the

authority to use the common law to expand the ambit of criminal

oences. As we will see, the provision has not been construed in such

a way. The majority decision in Jobidon, which suggests that such

broad authority exists, is an outlier, and this aspect of the ruling has

been marginalized.

Claims that the common law can exert a pull on the content of

criminal oences exerts the strongest pull when Parliament intended

an oence provision to be construed in light of certain common law

rules and principles. It is uncontroversial, as we saw in Chapter ,

that oences should be interpreted in light of, among other things,

legislative evolution — including the common law history pre-dating

enactment. Parliament is presumed to know and appreciate the legal

landscape in which it is legislating. But there is an ambiguity here.

In suggesting that Parliament intended the provision in question to

be read in light of the common law, are we saying — or committed

to saying — that it intended to confer upon courts the authority to

expand criminal liability by abolishing or rolling back common law

“defences”? Or are we saying only that Parliament intended the provi-

sion to be read in light of the specic common law “defences” in place

at the time of enactment — to “freeze” them in that state — reserving

for itself alone the authority to abolish or restrict them? In several

cases, the Supreme Court took the former position. The better view,

however, gives a more restricted role to the courts, and recent deci-

sions indicate that the latter position has gained ascendance.

In this chapter, I look at a number of contexts in which the courts

have considered the appropriateness of using the common law as a

basis for expanding the breadth of a criminal oence. In only one

 R v DLW,  SCC  [DLW].