A More Modest Principle of Voluntariness

AuthorMichael Plaxton
[ 309 ]
cha pter 8
It is widely accepted, across the common law world, that criminal
(and, indeed, regulatory) oences must be read in such a way that
only voluntary acts are included within their ambit. We are to be
condemned for engaging in wrongful actions, and not for muscular
spasms or our mere physical presence at the scene of an unhappy
incident. Indeed, as we saw in Chapter , the principle of voluntari-
ness has been elevated to one of constitutional signicance — one of
the few areas in which the Charter would seem to have had a direct
impact on the substantive criminal law. At the same time, it is a prin-
ciple that, many argue, has been applied inconsistently, frequently
sacriced for the sake of brute pragmatic considerations.
In this chapter, I want to challenge (or at least qualify) received
wisdom about the principle of voluntariness. Though the principle
of voluntariness has been recognized as constitutionally signicant,
it is a mistake to regard it as a limit imposed on Parliament by the courts
for the sake of protecting civil liberties. It is, rather, a limit built into
But see R v Larsonneur (),  Cr App R  (CCA) [Larsonneur]; O’Sullivan v Fisher,
[] SASR  (S Aust SC) [O’Sullivan].
R v Bouchard-Lebrun,  SCC  at para  [Bouchard-Lebrun].
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, , being
Schedule B to the Canada Act  (UK), , c  [Charter].
[ 310 ] , ,  
the very idea of guiding members of the public. Understood in this
way, the principle of voluntariness is not in tension with parliament-
ary sovereignty — and to some extent, actually ows from it. Indeed,
one can also explain the substantive criminal law’s deep and abiding
suspicion of status oences by drawing upon this principle.
Furthermore, application of the principle has not been quite
as inconsistent as it might seem at rst glance. Though it requires
us not to interpret criminal oences in such a way that they target
involuntary behaviour, the principle does not preclude Parliament
from condemning the decision to take conscious risks with one’s
own future capacity to exercise agency and control. Cases in which
the courts have attached criminal liability for seemingly involuntary
behaviour typically involve defendants who made an earlier decision
to put themselves in a position in which they would nd themselves
unable to comply with the law’s guidance. It may be reasonable to
criticize such decisions on the basis that they oend principles of
contemporaneity and fair labelling — but not because they straight-
forwardly oend the principle of voluntariness.
In short, I hope to show that the voluntariness principle is decid-
edly modest, both in its conceptual roots and its implications. Viewed
properly, it is not an outgrowth of the Charter era so much as a func-
tion of parliamentary sovereignty and the criminal law’s function as
a guide for citizens.
Throughout the Commonwealth, courts have long recognized that
a defendant cannot be condemned for involuntary behaviour. The
easiest examples of this principle can be found in cases where the
defendant was physically unable to control himself or a vehicle. Thus,
in Wolfe, the Ontario Court of Appeal suggested that a purely reexive
movement did not satisfy the actus reus of assault. Likewise, the failure
R v Wolfe (),  CCC (d)  (Ont CA). Many commentators regard the decision
as wrongly decided, but on the basis that, given the fact-ndings of the trial judge,
it seems highly unlikely that the defendant’s reaction was truly reexive. The legal
proposition that a pure reex movement of the body cannot constitute the actus reus

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