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ISBN: 9781552214992

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Sovereignty, Restraint, and Guidance

Canadian Criminal Law in the 21st Century

Students, academics, and lawyers often think of the substantive criminal law as if it were just another branch of the common law. On this understanding, it falls to the courts to decide on a case-by-case basis what conduct should and should not be criminal and which defendants deserve punishment. In Sovereignty, Restraint, and Guidance, Michael Plaxton argues that this model badly distorts both the role of the courts and the central purpose of criminal offences. In the course of a wide-ranging discussion, Plaxton presents an alternative and innovative vision – one that more accurately reflects Parliament’s constitutional position and more successfully explains the bulk of Canadian criminal law. Sovereignty, Restraint, and Guidance will provoke discussion and debate among practitioners, students, theorists, and anyone interested in reflecting upon the state of criminal law in Canada today.

Contributors

Michael Plaxton

Michael Plaxton is a professor of law at the University of Saskatchewan. He teaches and writes about criminal law, evidence, philosophy of law, statutory interpretation, and constitutional theory. He is the author of Implied Consent & Sexual Assault: Intimate Relationships, Autonomy, and Voice (McGill-Queen’s, 2015).

Chapter Title Contents Contributors Pages Year Price

Preview

 The introduction outlines the structure of the book as well as its three primary theses: the statutory interpretation thesis, the restraint thesis, and the guidance thesis. 39 $3.90

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 Chapter 1 considers the constitutional and statutory context within which criminal legislation is created and interpreted. It examines the boundaries placed on Parliament’s criminal … 44 $4.40

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 Chapter 2 concerns the rules that govern statutory interpretation. In interpreting criminal offences, courts are bound by the legislative purposes underpinning and animating the relevant … 50 $5.00

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 Chapter 3 considers the Supreme Court’s underdeveloped approach to section 8(3) of the Criminal Code, which preserves common law “justifications and excuses.” Although the … 43 $4.30

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 Chapter 4 explains the interpretive presumption that, in devising criminal offences, Parliament did not intend to target courses of action that are widely believed to be morally permissible or, … 19 $1.90

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 Chapter 5 looks at a number of substantive criminal law doctrines in which one can see the gravitational pull of the presumption of restraint. In particular, it considers the courts’ … 39 $3.90

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 Chapter 6 shows how differences in legislative purpose can transform the meaning of superficially similar concepts and language, and that the courts can sometimes struggle to cope with … 32 $3.20

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 Chapter 7 examines the judicial treatment of section 163(8) of the Criminal Code, which defines “obscenity.” We will see that the history of the Supreme Court’s approach to this … 42 $4.20

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 Chapter 8 argues that, in construing offence provisions, courts have proceeded on the basis that it would be absurd to attribute an intention, on the part of Parliament, to target involuntary … 25 $2.50

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 Chapter 9 examines a further implication of the guidance function, taking the Supreme Court’s majority decision in Martineau as its point of departure. In Martineau, the majority struck … 36 $3.60

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 Chapter 10 argues that, inasmuch as criminal offences are intended to guide the conduct of members of the public, there is no intrinsic need to set out express fault requirements. Moreover, … 35 $3.50

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 Chapter 11 both qualifies and advances the theme that courts have tended to interpret the fault requirement for criminal offences in a manner that resists an impact on guidance. Since the … 44 $4.40

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 Chapter 12 examines the doctrine that errors of law cannot excuse. The doctrine has sometimes been criticized as unfair to defendants. But from a guidance-centred perspective, it would be … 31 $3.10

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 Chapter 13 examines criminal defences. The courts play an expanded role in crafting and developing defences, particularly with respect to those classified as “excuses.” This chapter … 44 $4.40

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 Chapter 14 reflects on the common law approach to non-mental disorder automatism. Critics have complained that the scope of the “defence” has been inappropriately narrowed by the … 27 $2.70

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 Chapter 15 concludes the book, and provides an overview of the three theses explored in the text: the statutory interpretation thesis, the restraint thesis, and the guidance thesis. 11 $1.10