THE PRESUMPTION OF RESTRAINT AND IMPLICIT LAW.

AuthorPlaxton, Michael

Appellate courts have frequently held that the ambit of criminal offences is more restricted than a plain reading of their text would suggest. In doing so, they have not relied on the canon of strict construction or the doctrine of de minimis non curat lex. They have instead applied what I have elsewhere called a "presumption of restraint"--a rebuttable presumption that offences provisions should not be read in such a way that they criminalize courses of action that are widely regarded by the public as benign or laudable.

Drawing on the work of Lon Fuller, I argue that the presumption of restraint is compatible with parliamentary sovereignty and purposive interpretation, and that it reflects ideas about the circumstances under which legislation is capable of providing guidance to the public.

Les tribunaux d'appel ont souvent juge que la portee des infractions criminelles est plus restreinte que ne le laisserait supposer une simple lecture de leur texte. Ce faisant, elles ne se sont pas appuyees sur le canon de l'interpretation stricte ou sur la doctrine de minimis non curat lex. Ils ont plutot applique ce que j'ai appele ailleurs une >--une presomption refutable voulant que les dispositions relatives aux infractions ne soient pas interpretees de maniere a criminaliser des actions qui sont largement considerees par le public comme benignes ou louables.

En m'appuyant sur les travaux de Lon Fuller, je soutiens que la presomption de retenue est compatible avec la souverainete parlementaire et l'interpretation teleologique, et qu'elle reflete une vision des circonstances dans lesquelles la legislation est capable de guider le public.

Introduction I. The Presumption of Restraint II. Strict Construction by Another Name? III. The Paradoxical Presumption IV. The Common Law Constitution? V. The Internal Morality of Criminal Offences A. Fuller and the Internal Morality of Self-Executing Guidance B. The Theoretical Shallowness of the Presumption C Fuller on the Significance of Interactional Expectancies Conclusion Introduction

On several occasions, the Supreme Court of Canada has suggested that courts should apply what I have elsewhere described as a presumption of restraint when interpreting criminal offences; that courts should presume that Parliament did not intend the offence in question to prohibit conduct that is widely accepted as benign or laudable. (1) This presumption is often expressed as if it were simply an instantiation of the broader principle that legislation should not be interpreted in an "absurd" fashion. Construed in such a way, however, the presumption is in grave tension--or flatly inconsistent--with other foundational separation of powers principles and canons of statutory interpretation. Chiefly, it might seem to suggest that it is open to the courts to narrow the scope of criminal offences simply on the basis that they regard them as overinclusive on policy grounds. Such an approach would be difficult to square with the notion of parliamentary sovereignty, or the idea that statutes should be interpreted in a purposive manner. Yet, in the modern era, the Supreme Court has consistently taken the view that criminal offences should be construed with ideas like parliamentary sovereignty front and center. This focus is difficult to reconcile with how the presumption of restraint is often expressed. Indeed, these ideas have been taken so seriously by the Supreme Court that competing canons--like the "rule" of strict construction--have largely fallen by the wayside.

In this paper, I set out to provide an account of the presumption of restraint that could sit comfortably in our constitutional system of arrangements. This account draws upon an underappreciated aspect of the work of Lon Fuller: in particular, his analysis of the role that customary law plays in modern legal systems. Given the legislature's intention to use general rules to guide citizens, Fuller suggests, it must be taken to have anticipated that--in the absence of unequivocal language to the contrary--they will construe those rules in a manner that is consistent with widely accepted practices and modes of interaction. As the parenthetical proviso suggests, the presumption can be rebutted with interpretive evidence suggesting a legislative intention to displace the practice. The fact that it is rebuttable, and exists in order to further the legislature's own intention to guide citizens, means that the presumption is compatible with both parliamentary sovereignty and the purposive approach to statutory interpretation. Relatedly, it accommodates widely shared intuitions that the substantive criminal law, at least sometimes, aims at transforming social norms, and not just reflecting them. Moreover, the considerations that have driven the canon of strict construction into disuse do not apply to the presumption of restraint.

  1. The Presumption of Restraint

    Appellate courts have frequently held that the ambit of criminal offences is more restricted than a plain reading of their text would suggest. They have done so, often, on the basis that it would be "absurd" to suppose that Parliament intended to criminalize certain widely accepted practices or modes of interaction. In Munroe, for example, the Ontario Court of Appeal gave a narrow reading of then paragraph 171(l)(c) of the Criminal Code. (2) That provision stated: "Every one who ... (c) loiters in a public place and in any way obstructs persons who are there ... [i]s guilty of an offence". The Crown urged a broad reading of "loiters", as well as the phrase "in any way obstructs". Justice Cory (then at the Ontario Court of Appeal) rejected that suggestion, arguing that the Crown's interpretation would mean that various ordinary courses of action, widely regarded as benign or harmless, were now criminal:

    If the Crown is correct in its contention a good many members of the community must have breached its provisions. For example, a spouse waiting for his or her tardy mate must, of necessity, loiter about the appointed meeting place and, in so doing, obstruct in some degree the passage of others. Indeed, one can well imagine that the appointed meeting place was the exit to the tunnel from Union Station to the Royal York Hotel. A missed GO train by one of the spouses may result in the other spouse waiting at least 20 minutes and perhaps an hour with nothing better to do than wander aimlessly about during that time span. He continued:

    The window-shopper, with time to kill, the devout member of a religious group earnestly seeking to proselytize by handing out pamphlets, the Salvation Army member charitably seeking funds for the welfare of the needy, the anxious and ambitious politician seeking to shake hands with passers-by and to press home his point of view--all these would be caught under the Crown's interpretation of the section. (3) The Supreme Court's decision in Skoke-Graham is also instructive. (4) There, the Court was confronted with then subsection 172(3) of the Criminal Code, which prohibited the willful disturbance of the order or solemnity of an assemblage of persons meeting for religious worship. Justice Dickson (as he then was) noted: "Parliament could not have intended that [the subsection] could be triggered by conduct which is not disorderly or productive of disorder." In ordinary usage, "disturbance" has a potentially wide meaning. Nonetheless, Justice Dickson observed that, if the term "disturbance" were given such a broad reading, "a man might be convicted ... for failing to take off his hat in a church, or failing to keep it on in a synagogue." (5) He chiefly grounded his interpretation in textual considerations--in particular, the heading for then sections 169 to 175 of the Criminal Code. (6) But his other remarks suggest that the presumption of restraint was also at work.

    Later, in Hinchey, the Supreme Court interpreted paragraph 121(l)(c) of the Criminal Code J That provision states:

    Every one commits an offence who ... being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has deahngs with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official... (8) The entire Court agreed that the emphasized portion of the provision seems to capture a quite broad range of conduct, including conduct which would strike many of us as relatively innocuous. Justice Cory, writing for three judges, observed: "[I]f a government employee accepts, on a rainy day, a ride downtown from a friend who does business with the government he has received a benefit. That could hold true as well for the cup of coffee or occasional lunch bought by the friend for the government employee." (9) Yet the whole panel agreed that it would be unacceptable to interpret paragraph 121 (1)(c) in such a way that it criminalized the acceptance of a cup of coffee. Partly on that basis, a narrower reading was preferred.

    Finally, the Supreme Court has, on a number of occasions, construed the assault and sexual assault provisions of the Criminal Code in a relatively narrow fashion. In Cuerrier, (10) a majority refused to read "fraud" in paragraph 265(3)(c) of the Criminal Code--a provision setting out the circumstances under which consent to applications of force is vitiated--in such a way that it required proof of mere deception. To adopt that reading, Justice Cory held, would effectively criminalize many acts of deception that "lack the reprehensible character of criminal acts." (11) Lies about one's age, for example, would be criminal so long as they induced the complainant to give apparent consent to sexual acts. Justice Cory continued: "The same result would necessarily follow if the [defendant] lied as to the position of responsibility held by him in...

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