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The Supreme Court of Canada, Parliament and the Charter: Exploring the Limits of the Judicial Function in Criminal Law

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The Supreme Court of Canada, Parliament and the Charter: Exploring the Limits of the Judicial Function in Criminal Law Schulich School of Law, Dalhousie University Schulich Law Scholars LLM Theses Theses and Dissertations 1998 The Supreme Court of Canada, Parliament and the Charter: Exploring the Limits of the Judicial Function in Criminal Law Patricia A. Fricker Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/llm_theses Part of the Constitutional Law Commons, and the Criminal Law Commons Recommended Citation Patricia A. Fricker, The Supreme Court of Canada, Parliament and the Charter: Exploring the Limits of the Judicial Function in Criminal Law (LLM Thesis, Dalhousie University, 1998) [unpublished]. This Thesis is brought to you for free and open access by the Theses and Dissertations at Schulich Law Scholars. It has been accepted for inclusion in LLM Theses by an authorized administrator of Schulich Law Scholars. For more information, please contact [email protected]. THE SUPREME COURT OF CANADA, PARLIAMENT AND TAE CR4RTER: EXPLORING 'THE LIMITS OF THE JUDICIAL FUNCTION EN CRIMINAL LAW Patricia A. Fncker Submitted in partial fulfiiment of the requirements for the degree of Master of Laws Dalhousie University Halifax, Nova Scotia August 1998 (9 CopHght by Patricia A. Fricker, 1998 National Librar y BWithèque nationale 1*1 ,-da du Canada Acquisions and Acquisitions et Bibliographie Senrices services bibliographiques 395 Wellington Street 395, nie Wellington OltawaON K1AW ûüawâON K1AW Canada canada The author has gmted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada ?O Bibliothèque nationale du Canada de reproduce, loan, distribute or sell reproduire, prêter, distribuer ou copies of this thesis in microfom, vendre des copies de cette thèse sous paper or electronic formats. la forme de rnicrofiche/film, de reproduction sur papier ou sur fonnat électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantid extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. TABLE OF CONTENTS Chapter One: Introduction The Supreme Court of Canada and the Adversarial System ............. 1 Chapter 2 The Supreme Court of Canada: Exploring the Operational Limits of Judicial Activity ................. 14 I. The Snpreme Court of Canada .................................. 18 II . Constitutional Supremacy in a Parliamentary Democrncy ........... 23 III . Liberalism. Democracy and the Role of the Supreme Court of Canada ................................... 33 NwThe Criminal Process and the Adjudicative Fnnction .............. 45 V. Subjectivity and the Judicial Process ............................. 49 A Judicial Independence ................................... 53 B. Judicial Impartiality ..................................... 56 VI . Summary ................................................... 78 Chapter 3 From Sadt Ste. Marie to Feeney: Following the Ebb and Flow of Legal Liberalism in the Law of Homicide ................................ 82 1. Criminal Liabiiity and its Pre-Charter Constitutional Context ........ 82 II . Ancio. Logan and Hibberk Attempted Murder-P~cipaland Party Liability ............... 89 KII .B . C Motor VehicieAct Reference. Vaillluncourt.Paré. Madneau and Coopec The Reqaisite Mental Element for Murder ..................... 95 IV . HiIll and Lavaiiee: Criminal Defences and The Objective Standard ............... 118 V . Hunter. Stillmn and Feeney: Characterization of the State in the Adversarial Context ........ 127 VI. Creighfm: Manslaughter. Pend Negligence and Criminal Liability ......... 136 M. R vaDuviauIk The Charter and the Adjndicative Function at Cornmon Law ......................................... 142 MI . Summary ............................................... 149 Chapter 4 Conclusion: Making Sense of the Changing RoIe of the Supreme Court of Canada in Post-Charter Criminal Law ....................................... 152 Bibliography ......................................................... 160 The Supreme Court of Canada is the court of final appellate jmisdiction in this country. Its decisions govem the day-to-day legal discourse in Canadian society. Thejudicial hction has undergone a drarnatic change since the advent of the Canadian Chmter of Righrs and Freedoms, and the inauguration of constitutional supremacy in a country where, prior to 1982, judicial deference to the concept of parliamentary supremacy was the nom. Yet, these two coflstitutional principles-coasfitutionai supremacy and parliamentary suprernacy-should not be treated as antagonistic. Rather, they are both integral to the type of criminal justice system evolving in Canada The task for the Supreme Court of Canada since its elevation as constitutional arbiter has been to hdthe balance between these two constitutional doctrines. It must do so within the limits prescribed by the judicial function. What are those limits in the context of criminal law? The definitional elements of the offence; the political and legal theory of classical liberalism; the Charter's constitutionai, as opposed to statutory, character; the primacy of either crime control or due process values in judicid decision-making; the fluctuating balance in the criminal process between the influence of constitutional supremacy and parliamentary supremacy; the flexibility of the foundational principles of judicial independence and judicial impartiality; and, finally, prevailing societal nom. In this thesis it has been argued that there is a reciprocd normative relationship between the criminal process and society . Decision-making at the Supreme Court of Canada filters prevailing societai nomto conform to constitutional values-herein lies the process of readjustment between the criminal law and society at large. To explore the lllnits of the judicial function at work, an analysis of case law emanating fiom the Supreme Court of Canada, pdcularly, but not exclusively, in the law of homicide had been undertaken. It is a premise of this work that the professional and academic dimensions of the criminal law cannot be imderstood in isolation of each other. Rather than approach the judicid function in an abstract manner, its iirnits have been reveaied and expiored through case law analysis. This gives the analysis imrnediacy to both academics and practitioners in their attempts to understand the Supreme Court of Canada's approach to constitutional adjudication in the field of criminal law. ACKNOWLEDGEMENTS 1 wish to acknowledge my parents, Stuart O. Fricker and Patricia C. (Howfey) Fricker, who have been a constant source of support during my academic and professional Me. Chapter One: Introduction The Supreme Court of Canada and the Adversarial System Thuty years ago Professor Paul Weiler, writing about the process of judicial decision- making, observed: "The philosophy of the judicial process will soon be of great practicai significance for the Canadian legal scene. The traditional, inarticulate, legal positivism of Canadian lawyers and judges is rapidly becoming outmoded ..."' How prophetic his words seem in post-Charte9 criminal law where the judiciary and the judicial hction, especiaiiy at the Supreme Court of Canada level, are the subject of unpardeled scrutiny and cnticism. The adversarial system of criminal justice forms the background to the Supreme Court of Canada's new role as Guardian of the Constitution and, like the Court itself, has been the subject of extensive academic comment. The focus of this thesis will be the changing nature of the judicial function in the context of criminal law, particuiarly at the Supreme Court of Canada level; however, such an analysis neceuitates a basic understanding of the adversaial context in which that fuaction has evolved. In R. v. Swaid, Lamer C.J.C. found that the Supreme Court of Canada had, in past 'Paul Weiler "Two Models of Judiciai Decision-Making" (1968) 46 Can. Bar Rev. 406. 'Canadian Charter of Rights a& Freedm,, Part 1 of the Constitution Act, 1982, being Schedde B to the Canada Act 1982 (U.K.),1982, c. 11 [hereinafter the Chmter]. 3[1991] 1 S.C.R. 933,63 C.C.C. (3d) 481,5 C.R. (4th) 253 [hereinafter Swain cited to C.R.].See also R v. S-(RD.),[1997] 3 S.C.R 484. 118 C.C.C. (3d) 353,lO C.R. (5th) 1 [hereioafter S. (RD.) cited to C.C.C.] at 364 where Justice Major in dissent-Çhief Justice Lamer and Justice Sopinka concurring-writes: "The bedrock of our jurisprudence is the adversary system. Cruninal prosecutions are less adversarial because of the Crown's duty to decisions, "recognized the constn~ctsof the adversarial system as a bdamentd part of our legal system.'" He cited with approval Professor Weiler's characterization of the adversarial process: An adversary process is one which satisfies, more or less, this factual description: as a prelude to the dispute king solved, the interested parties have the opportunity of adducing evidence (or proof) and making arguments to a disinterested and impartial arbiter who decides the case on the basis of this evidence and these arguments. This is by con- with the public processes of decision by 'legitimated power' and 'mediation-agreement', where the guaranteed pnvate modes of participation are voting and negotiation respectively. Adjudication is distinctive because it guarantees to each of the parties who are af5ected the right
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