Representative Labelling

AuthorMichael Plaxton
[ 334 ]
cha pter 9
The Supreme Court of Canada’s rulings in Vaillancourt and Martineau
are two of the most signicant — or at least prominent — Charter
decisions concerning the substantive criminal law. In Martineau, the
Court held that some criminal oences require proof of subjective
fault in order to comply with section  of the Charter. That decision
cemented the importance of subjective fault in the substantive crim-
inal law and might appear to stand for the proposition that the Charter
imposes limits on the content of criminal oences.
But not so fast. The Martineau/Vaillancourt line of authorities has
not had a profound impact on the courts’ interpretation of criminal
oences. When they are cited, it is generally for the relatively modest
proposition that subjective fault should be presumed in the absence
of other interpretive signals to the contrary — a proposition just as
easily supported by the (non-constitutional) decision in ADH. More-
over, the courts have never struck down a criminal oence simply
because the act it prohibits does not, in their view, warrant condem-
nation; in the absence of a discrete substantive constitutional right
R v Vaillancourt, []  SCR  [Vaillancourt]; R v Martineau, []  SCR 
[Martineau]; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
, being Schedule B to the Canada Act  (UK), , c  [Charter].
R v ADH,  SCC . See the discussion in Chapter .
[ 335 ]
Representative Labelling
(e.g., free expression) or a breakdown of instrumental rationality, the
Charter would appear to have nothing to say about what Parliament
may prohibit. As constitutional decisions, Martineau and Vaillancourt
have had an isolated impact at best. Indeed, as I hint in Chapter 
and in the nal section of this chapter, there is some reason to think
that section  of the Charter, particularly as it has been construed in
recent years, makes the more intrusive section- claim recognized in
Martineau all but superuous — even counter-productive.
But I do not want to let the matter rest there. Though I am skep-
tical of the constitutional claims made in Vaillancourt and Martineau,
the rulings both rest on an idea that has a great deal of intuitive
plausibility: the principle of representative (or “fair”) labelling.
Thoughtful commentators on the substantive criminal law have long
suggested that there are broad restrictions on how criminal conduct
can or should be labelled. The argument gained prominence aer
a paper by Andrew Ashworth in a volume celebrating the work of
Sir Rupert Cross. There, he made the case that the various forms of
culpable homicide should be dierentiated in such a way that they
reect the nature and magnitude of the actors’ respective wrongs.
Where “extenuating circumstances” exist, Ashworth claimed, it
would be wrong to label a given killing as “murder” rather than
“manslaughter,” since this would misrepresent the nature and scale
of the defendant’s wrongdoing. In particular, it is important that dis-
tinctions in the actors’ state of mind should aect how the wrong
is represented. Since Ashworth made this argument, it has become
widely accepted among academics. And the respective majorities in
Vaillancourt and Martineau made direct appeals to it.
Depending on whether one adopts the terminology used by Ashworth or Williams:
Andrew Ashworth, “The Elasticity of Mens Rea” in Colin Tapper, ed, Crime, Proof and Pun-
ishment: Essays in Memory of Sir Rupert Cross (London: Butterworths, ) [Ashworth,
“The Elasticity of Mens Rea”]; Glanville Williams, “Convictions and Fair Labelling” () 
Cambridge Law Journal  [Williams, “Convictions and Fair Labelling”].
See Rupe rt Cross, “The Mental Element in Crime” ()  Law Quarterly Review ;
Glanville Williams, The Mental Element in Crime (Jerusalem: Magnes Press, ).
Ashworth, “The Elasticity of Mens Rea,” above note .
See, amo ng many others , Williams, “Convictions and Fair Labelling,” above note ; CMV
Clarkson, “Context and Culpability in Involuntary Manslaughter” in Andrew Ashworth
& Barry Mitchell, eds, Rethinking English Homicide Law (Oxford: Oxford University
[ 336 ] , ,  
But the majorities’ reasoning distorts the principle of represent-
ative labelling, transforming an important but basically modest prin-
ciple into a basis for intruding upon the sovereignty of Parliament.
In this chapter, I use the decision in Martineau as a springboard for
a wider discussion of representative labelling. I argue that the prin-
ciple of representative (or “fair”) labelling is one that takes a number
of forms in a number of dierent contexts. Its power is mostly felt,
if at all, as an ethical principle imposing broad parameters on the
behaviour of legislatures and executive actors. Its impact in the court-
room will be far more circumscribed. But the principle gives expres-
sion to an intuitively attractive and important dimension of the idea
that the substantive criminal law is supposed to guide members of
the public. Here, I discuss what the principle entails, how it is con-
nected to guidance, and why it is signicant. My point of departure
is Martineau, but it will quickly become clear that the case is at least
as interesting for what it gets wrong about the idea of fair labelling
— at least, in any political community committed to the separation
of powers.
In Martineau, a majority of the Supreme Court struck down the con-
structive murder provisions contained in section  (now section
) of the Criminal Code, on the basis that they made it possible for a
defendant to be convicted of murder in the absence of proof of sub-
jective foresight of death. In reaching that conclusion, Lamer CJ stated:
The rationale underlying the principle that subjective foresight of
death is required before a person is labelled and punished as a murderer
is linked to the more general principle that criminal liability for a par-
ticular result is not justied except where the actor possesses a culp-
able mental state in respect of that result . . . . Murder has long been
recognized as the “worst” and most heinous of peace time crimes. It
Press, ) at –. But see James Chalmers & Fiona Leverick, “Fair Labelling in
Criminal Law” ()  Modern Law Review .
Criminal Code, RSC , c C- [Criminal Code].

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