Presuming Restraint

• Author: Michael Plaxton
• Pages: 196-234

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cha pter 5

PRESUMING RESTRAINT

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,

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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].