Introduction: Three Pillars of Canadian Criminal Law

• Author: Michael Plaxton
• Pages: 1-39

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INTRODUC TION: THREE

PILL ARS OF CA NADIAN

CRIM I NAL L AW

A. THE BOOK

This is a book about Canadian criminal law. Its focus is the sub-

stantive law — that which concerns oences, defences, and incapac-

ity — as opposed to criminal procedure or the law of evidence. My

hope is that it will be of interest to those wishing to engage in more

advanced study of criminal law, as well as for judges, legislators, and

practitioners.

In understanding the substantive law of crimes, I argue, we must

take into account three ideas. First, judges and courts, as they construe

criminal oences, are engaged rst and foremost in an exercise of

statutory interpretation. Our focus must be on the text of the statutory

(typically, Criminal Code) provision that is the object of analysis, on its

legislative history, and on the mischief that the legislature sought to

address. The inquiry must, in short, generally dwell on text and legis-

lative purpose. Even when we are not straightforwardly concerned

with the interpretation of oences — when, say, we are confronted

with common law defences, common law incapacity, or the judicial

remedying of oences that suer from constitutional defects — we

must always keep in mind the fundamental role of Parliament in

setting social policy.

 RSC , c C- [Criminal Code].

[ 2 ] Sovereignty, reStraint, and guidance

Second, judges and courts engaging in statutory interpretation

presume, in the absence of interpretive evidence to the contrary, that

Parliament did not intend to make sweeping reforms to the social

fabric of the community. There is, I argue, a presumption of restraint.

Though Parliament is free to use its criminal law-making authority

to eect profound social changes, as it has done in the context of

impaired driving and sexual assault, the courts do not jump to the

conclusion that it intended to do so, even where statutory language

might in principle permit such a reading.

Finally, courts and judges have approached oence elements

relating to voluntariness and fault, defences, and claims of incapacity

with the tacit understanding that Parliament’s central aim in cra-

ing criminal oences is not simply to set out the conditions under

which legal ocials are authorized to administer punishment, but to

guide ordinary citizens as they decide how to act on a day-to-day basis.

The general presupposition is that Parliament respects its citizens as

choosing beings, and devises oence provisions in order to guide them

in the exercise of their powers of practical reason. Moreover, the

working interpretive assumption is that Parliament intends citizens

to respect themselves as choosing beings or fully edged agents. With

that in mind, the courts have approached voluntariness require-

ments, fault elements, excusatory defences, and claims of incapacity

in a manner designed to encourage ordinary citizens to make full use

of their reasoning powers, and to discourage them from voluntarily

or knowingly placing themselves into positions in which their rea-

soning powers are diminished or obliterated.

B. THE SCOPE OF THE PROJECT

In the sections that follow, I say more about the three theses

advanced by this book. Before doing so, however, it is worth noting

what this book is and isn’t. First and foremost, this book represents

an exercise in analysis rather than pure normative argumentation.

I am chiey concerned with presenting a plausible account of what

the law is, and what background legal ideas and constitutional prin-

ciples have helped to shape it, and not with presenting an account

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Introduction: Three Pillars of Canadian Criminal Law

of what the law — meaning either constitutional law or the sub-

stantive criminal law — would be if we were trying to devise the per-

fect legal system from scratch. This is emphatically a work about

Canadian law at this moment in history — not the law of the United

States, the United Kingdom, or Narnia.

At the same time, this is by no means an exercise in pure descrip-

tion. Any satisfactory interpretation of the law — as with any human

institution — must proceed on the charitable basis that it is broadly

rational and intended to serve some discernible function. The pur-

pose or underlying logic may be cognizable only within a set of

normative parameters that will not be shared by everyone — e.g.,

the separation of powers, or parliamentary sovereignty. Thus, I will

oen explain the reasoning in a decision or line of authorities by

appealing to arguments that are clearly not accepted by many com-

mentators, jurists, and practitioners. Without an appreciation of

those parameters, and the force a legal argument can have in light of

them, however, any analysis of the law can look mysterious, bizarre,

or incomprehensible.

Moreover, there will be many occasions when I adopt an overtly

critical attitude to some case (Jobidon; Cuerrier) or (proposed) doc-

trine (de minimis; symmetry) or emphasize the sheer state of confu-

sion surrounding an oence provision or line of judicial reasoning

(obscenity). In doing so, my point by and large is to show how the case

or doctrine in question cannot easily be reconciled with the implicit

“ground rules” of Canadian constitutional and criminal law; or that

the confusion has arisen because those rules do not admit a straight-

forward or elegant solution. Like other commentators on Canadian

criminal law, I take the view that the substantive criminal law is held

together by an internally coherent set of principles — even if these

 Donald Davidson, Inquiries into Truth and Interpretation (Oxford: Oxford University

Press, ) ch .

 Thus, Ronald Dworkin’s theory of law as integrity emphasizes that any satisfactory

interpretation of a legal order must understand it in its “best light”: Ronald Dworkin,

Law’s Empire (Cambridge, MA: Harvard University Press, ).

 R v Jobidon, []  SCR  [Jobidon].

 R v Cuerrier, []  SCR  [Cuerrier].