Courts Constraining Parliament? Restraint and De Minimis

AuthorMichael Plaxton
[ 177 ]
cha pter 4
In Chapter , I set out a range of canons and presumptions that are
oen brought to bear upon the interpretation of criminal oence
provisions. There is, however, a further interpretive presumption
that warrants its own chapter — what I will call “the presumption
of restraint.” I have set this apart from the rest of the discussion of
interpretation for two reasons. First, it has exerted a considerable
and conspicuous pull on a number of substantive areas of Canadian
criminal law; simply lumping it in with the other interpretive can-
ons and presumptions might seem misleadingly dismissive. Second,
and more importantly, it is a presumption that can easily be con-
fused with something more robust; something akin to a common
law power to rewrite statutory provisions where they oend judi-
cial sensibilities about the proper scope of the criminal law. Indeed,
commentators have sometimes appealed to the notion of restraint
in the course of arguing for the doctrine of de minimis. Understood
in this more muscular fashion, as a substantive principle rather than
an interpretive presumption, it would arguably be incompatible with
the separation-of-powers principles I described in Chapter . In this
chapter, I want to set out what the presumption of restraint does and
does not entail. As we will see, it has exerted a strong gravitational
pull on the interpretation of many oence provisions and areas of
[ 178 ] , ,  
substantive law. It is, however, only a presumption — one that can be
rebutted by other interpretive evidence to the contrary.
When interpreting oence provisions, courts presume that Parlia-
ment did not intend to target conduct that is widely believed to be
insuciently wrongful to warrant criminal sanctions. We have already
seen a number of cases in which the presumption of restraint has
been eectively applied. In Cuerrier, the majority’s interpretation of
“fraud” was driven by the conviction that Parliament could not have
intended to criminalize the sort of lies that are (rightly or wrongly)
commonplace tactics in sexual seduction. A similar rationale was
invoked by the majority in Hutchinson, in which the Court was asked
to interpret the meaning of section .() of the Criminal Code.
Likewise, in Hinchey, the Court unanimously took the view that
Parliament could not have intended to impose criminal liability on
those who buy government employees “a cup of coee.” The two fac-
tions on the Court split on how best to interpret section (c) of the
Code, so as to avoid such an absurd construction. It was unanimous
in supposing, however, that Parliament could not have intended the
oence to have such a broad scope. Ten years later, in Boulanger, the
Supreme Court narrowly construed section  of the Criminal Code,
nding that the oence of breach of trust by a public ocer does not
target mere lapses of errors of judgment. “[P]erfection,” McLachlin
CJ observed, “has never been the standard for criminal culpability in
this domain.” The mere fact that a public ocial has made a mistake
or error in judgment may be sucient basis for disciplining him or
her, or removing him or her from oce. But criminal sanctions are
R v Cuerrier, []  SCR  at paras – [Cuerrier]. See also R v Mabior, 
SCC  [Mabior].
R v Hutchinson,  SCC ; Criminal Code, RSC , c C- [Criminal Code].
R v Hinchey, []  SCR  [Hinchey].
R v Boulanger,  SCC  [Boulanger].
Ibid at para .

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