Courts Constraining Parliament? Restraint and De Minimis

• Author: Michael Plaxton
• Pages: 177-195

[ 177 ]

cha pter 4

COURTS CONSTRAINING

PARLIAMENT? RESTRAINT

AND DE MINIMIS

A. INTRODUCTION

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.

B. THE PRESUMPTION OF RESTRAINT

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 .