Representative Labelling

• Author: Michael Plaxton
• Pages: 334-369

[ 334 ]

cha pter 9

REPRESENTATIVE LABELLING

A. INTRODUCTION

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 .

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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.

B. REPRESENTATIVE LABELLING IN MARTINEAU

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].