The Presumption of Restraint and Implicit Law

Abstract

On several occasions, the Supreme Court of Canada has suggested that courts should apply a presumption of restraint when interpreting criminal offences – that they should presume that Parliament did not intend the offence in question to prohibit conduct that is widely accepted as benign or laudable. 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 over-inclusive 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 these ideas front-and-center. Indeed, they 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 may comfortably be accommodated in our constitutional system of arrangements. That 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 or necessary implication, they will construe those rules in a manner that is consistent with widely accepted practices and modes of interaction. As the proviso suggests, the presumption may be rebutted with interpretive evidence suggesting a legislative intention to displace the practice. Because it is rebuttable, the presumption is compatible with Parliamentary sovereignty, as well as the canon that we should look to the purposes and intentions animating the statutory provision in issue. Moreover, the considerations that have driven the canon of strict construction into disuse do not apply to the presumption of restraint. Finally, tying the presumption to a guidance-centered view of the criminal law is consistent with the broader direction of the Supreme Court over the last thirty years.

Keywords: Criminal Law, Statutory Interpretation, Lon Fuller, Implicit Law, Presumption of Restraint, Common Law Constitutionalism, Customary Law, Strict Construction