Presuming Restraint

AuthorMichael Plaxton
Pages196-234
[ 196 ]
cha pter 5
PRESUMING RESTR AINT
A. INTRODUCTION
Courts engaged in the interpretation of criminal oences presume,
in the absence of interpretive evidence to the contrary, that Parlia-
ment did not intend to target activities and social practices that are
widely regarded as benign or positive. In the last chapter, I refer-
enced a number of cases in which the courts applied what I have
described as the presumption of restraint, distinguishing it from the
so-called doctrine of de minimis non curat lex. In this chapter, I present
three broad areas of substantive criminal law in which the presump-
tion of restraint has exerted a powerful inuence. In Section B, I dis-
cuss the role of restraint in the courts’ approach to legal duties. In
a number of cases, I argue, courts have proceeded on the basis that
Parliament intended to confer positive duties to act on narrow and
discrete classes of individuals. This reects a reluctance on the part
of judges to construe criminal oences in such a way that they will
radically transform social practices and relationships. In Section C, I
argue that the presumption of restraint has likewise exerted a strong
pull on the courts’ approach to inchoate oences. In construing the
point at which a course of action amounts to an “attempt,” the courts
have consistently held that it must be more than merely preparatory.
This reects the presumption that Parliament did not intend to target
bad intentions as such — or “thought crimes.” Finally, in Section D,
[ 197 ]
Presuming Restraint
I argue that the courts’ approach to causation, specically in the law
of homicide, has been implicitly informed by the presumption of
restraint. For most types of homicide, the Supreme Court has estab-
lished that the question is whether the defendant’s wrongful act or
omission was a contributing cause of death outside the de minimis
range (or “signicant contributing cause”). This tacitly reects the
view that defendants should not have an outcome — particularly, a
death — attributed to them merely because they happened to par-
ticipate, however tenuously, in a causal chain in which death results.
My principal aim in this chapter is to show that the presumption
of restraint has played a signicant role in the development of the
substantive criminal law. It is, however, also important to keep in
mind two points that I raised in the previous chapter. First, the pre-
sumption serves as a heuristic device for determining the intentions
of Parliament — it does not provide a basis for narrowing the ambit
of an oence contrary to the intentions of the legislature. Thus, the
mere fact that an interpretation gives rise to civil liberties concerns
or would have radical or undesirable social policy implications does
not, in and of itself, mean that it should be rejected in favour of a
narrower construction. The central question, as always, is whether
the interpretation can reasonably be attributed to Parliament — if it
can, then the presumption of restraint loses traction.
Second, there are occasions when it is unclear how the presump-
tion of restraint should be given eect. The aim, in applying the
presumption of restraint, is to accurately convey the precise nature
and scope of the wrong that Parliament intended to target. There
may, however, be some diculty in articulating the elements of the
oence in such a way that they don’t catch an implausibly wide range
of conduct and they target the conduct that Parliament intended to
condemn. In such cases, the interpreting court is in a tough spot. It
may choose to build express de minimis conditions into the oence,
recognizing that the oence has limits not apparent from the text
alone, and thereby give eect to the presumption of restraint. In
taking that approach, though, the court eectively gives judges in
subsequent cases a considerable degree of discretion vis-à-vis applica-
tion. Alternatively, the court may articulate bright-line rules — what
[ 198 ] , ,  
I described as “proxy rules” — setting out the specic circumstances
under which a course of action is benign or only trivially wrongful. If
those rules successfully capture and delimit the targeted wrong, then
great. But the risk is that the bright-line rules will simply reect the
interpreting court’s own values, warping the message that Parliament
intended to convey. As I explained in the previous chapter, the rst
approach is probably superior as a matter of principle. Moreover,
that is the approach that courts have been more inclined to adopt
(though there have been exceptions).
These, then, are two qualications on the presumption of
restraint. Throughout this chapter, we can see each of them at work.
In Section B, we will see that, although the courts have hesitated to
recognize positive legal duties on citizens, such hesitation drops away
in the face of clear statutory language. Furthermore, the degree of
reluctance may depend on the circumstances in which the legal duty
arises: a statutory duty to neutralize the risks and dangers associated
with a positive act that the individual had no obligation to perform
is, all other things being equal, less intrusive than a duty to intervene
in dangerous states of aairs that were not created by the individual
herself. To this extent, the presumption of restraint has less applica-
tion to the former than the latter. In Sections C and D, dealing with
inchoate oences and causation, the presumption of restraint has
been given eect by relying on open-ended “qualitative” standards
rather than bright-line rules. In both instances, this reects a con-
cern that bright-line rules would fail to capture the range of circum-
stances in which the relevant oence provision applies, leading to
the possibility that Parliament’s guidance would be undermined in
some cases. One can clearly see this reasoning in play in the Supreme
Court’s decision in Maybin.
B. POSITIVE LEGAL DUTIES TO INTERVENE
It is oen observed by jurists and commentators that the substan-
tive criminal law tends to target acts rather than omissions. As a
R v Maybin,  SCC  [Maybin].

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