On several occasions, the Supreme Court of Canada has suggested that courts should apply what I have elsewhere described as a presumption of restraint<\/em> 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]<\/a> This presumption is often expressed as if it were simply an instantiation of the broader principle that legislation should not be interpreted in an \u201cabsurd\u201d fashion. Construed in such a way, however, the presumption is in grave tension\u2014or flatly inconsistent\u2014with 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<\/em> 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\u2014like the \u201crule\u201d of strict construction\u2014have largely fallen by the wayside.<\/p>\n 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<\/em> plays in modern legal systems. Given the legislature\u2019s intention to use general rules to guide citizens, Fuller suggests, it must be taken to have anticipated that\u2014in the absence of unequivocal language to the contrary\u2014they 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\u2019s 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.<\/p>\n 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 \u201cabsurd\u201d to suppose that Parliament intended to criminalize certain widely accepted practices or modes of interaction. In Munroe<\/em>, for example, the Ontario Court of Appeal gave a narrow reading of then paragraph 171(1)(c) of the Criminal Code<\/em>.[2]<\/a> That provision stated: \u201cEvery one who … (c) loiters in a public place and in any way obstructs persons who are there … [i]s guilty of an offence\u201d. The Crown urged a broad reading of \u201cloiters\u201d, as well as the phrase \u201cin any way obstructs\u201d. Justice Cory (then at the Ontario Court of Appeal) rejected that suggestion, arguing that the Crown\u2019s interpretation would mean that various ordinary courses of action, widely regarded as benign or harmless, were now criminal:<\/p>\n 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.<\/p>\n He continued:<\/p>\n 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 \u2014 all these would be caught under the Crown\u2019s interpretation of the section.[3]<\/a><\/p>\n The Supreme Court\u2019s decision in Skoke-Graham <\/em>is also instructive.[4]<\/a> There, the Court was confronted with then subsection 172(3) of the Criminal Code<\/em>, 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: \u201cParliament could not have intended that [the subsection] could be triggered by conduct which is not disorderly or productive of disorder.\u201d In ordinary usage, \u201cdisturbance\u201d has a potentially wide meaning. Nonetheless, Justice Dickson observed that, if the term \u201cdisturbance\u201d were given such a broad reading, \u201ca man might be convicted … for failing to take off his hat in a church, or failing to keep it on in a synagogue.\u201d[5]<\/a> He chiefly grounded his interpretation in textual considerations\u2014in particular, the heading for then sections 169 to 175 of the Criminal Code<\/em>.[6]<\/a> But his other remarks suggest that the presumption of restraint was also at work.<\/p>\n Later, in Hinchey<\/em>, the Supreme Court interpreted paragraph 121(1)(c) of the Criminal Code<\/em>.[7]<\/a> That provision states:<\/p>\n Every one commits an offence who …\u00a0being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind<\/em> 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]<\/a><\/p>\n The entire Court agreed that the emphasized portion of the provision seems<\/em> 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: \u201c[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.\u201d[9]<\/a> 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.<\/p>\n Finally, the Supreme Court has, on a number of occasions, construed the assault and sexual assault provisions of the Criminal Code<\/em> in a relatively narrow fashion. In Cuerrier<\/em>,[10]<\/a> a majority refused to read \u201cfraud\u201d in paragraph 265(3)(c) of the Criminal Code<\/em>\u2014a provision setting out the circumstances under which consent to applications of force is vitiated\u2014in such a way that it required proof of mere<\/em> deception. To adopt that reading, Justice Cory held, would effectively criminalize many acts of deception that \u201clack the reprehensible character of criminal acts.\u201d[11]<\/a> Lies about one\u2019s age, for example, would be criminal so long as they induced the complainant to give apparent consent to sexual acts. Justice Cory continued: \u201cThe same result would necessarily follow if the [defendant] lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess.\u201d He concluded with a rhetorical question: \u201cThe lies were immoral and reprehensible but should they result in a conviction for a serious criminal offence? I trust not.\u201d[12]<\/a><\/p>\n Justice McLachlin (as she then was) similarly observed that, if mere deception constituted \u201cfraud\u201d within the meaning of subsection 265(3), many quotidian acts of apparently<\/em> consensual touching, such as handshakes and back-slaps, would be assaults:<\/p>\n [T]his approach vastly extends the offence of assault. Henceforward, any deception or dishonesty intended to induce consent to touching, sexual or non-sexual, vitiates the consent and makes the touching a crime. Social touching hitherto rendered non-criminal by the implied consent inherent in the social occasion \u2014 the handshake or social buss \u2014 are transformed by fiat of judicial pen into crimes, provided it can be shown that the accused acted dishonestly in a manner designed to induce consent, and that the contact was, viewed objectively, induced by deception. No risk need be established, nor is there any qualifier on the nature of the deception. Will alluring make-up or a false moustache suffice to render the casual social act criminal? Will the false promise of a fur coat used to induce sexual intercourse render the resultant act a crime? The examples are not frivolous, given the absence of any qualifiers on deception.[13]<\/a><\/p>\n In the view of everyone on the Court, other than Justice L\u2019Heureux-Dub\u00e9, Parliament could not have intended to give the offence of assault such a wide ambit.[14]<\/a><\/p>\n Later, in JA<\/em>, Justice Fish articulated concerns similar to those animating the majority and concurring reasons in Cuerrier<\/em>.[15]<\/a> Justice Fish took issue with the JA<\/em> majority\u2019s conclusion that subsection 273.1(1), which sets out the circumstances under which there is consent to sexual touching, precludes advance consent. His objection was based, in large part, on the idea that the majority\u2019s interpretation would lead to \u201cabsurd\u201d results:<\/p>\n <\/p>\n <\/p>\n The approach advocated by the Chief Justice would … result in the criminalization of a broad range of conduct that Parliament cannot have intended to capture in its definition of the offence of sexual assault. Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately. The absence of contemporaneous consent, and therefore the\u00a0actus reus<\/em>, would be conclusively established by accepted evidence that the complainant was asleep at the time. Prior consent, or even an explicit request \u2014 \u201ckiss me before you leave for work\u201d \u2014 would not spare the accused from conviction.[16]<\/a><\/p>\n The majority rejected Justice Fish\u2019s analysis, for reasons we will see shortly. For now, it is enough to note that Justice Fish was drawing on an accepted line of reasoning. Indeed, we can see this argumentative strategy at work in unlikely places. The Supreme Court\u2019s decision in Jobidon<\/em>, for example, stands for the proposition that apparent consent to applications of force may be vitiated on public policy grounds.[17]<\/a> Yet, in the course of explaining how it could be open to the courts to effectively expand a criminal offence, Justice Gonthier observed that the reference to \u201cconsent\u201d in section 265 could not be taken at face value:<\/p>\n Assault has been given a very encompassing definition … If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault.\u00a0As just one of many possible examples, a father would assault his daughter if he attempted to place a scarf around her neck to protect her from the cold but she did not consent to that touching, thinking the scarf ugly or undesirable … That absurd consequence could not have been intended by Parliament.[18]<\/a><\/p>\n Moreover, Justice Gonthier\u2019s opinion consistently proceeded on the basis that consent to certain rough sporting activities\u2014for example, hockey\u2014would not<\/em> be vitiated on public policy grounds.[19]<\/a><\/p>\n Though a Charter<\/em> case, rather than a straightforward statutory interpretation decision, the Supreme Court\u2019s ruling in Canadian Foundation for Children, Youth, and the Law<\/em> is also instructive. There, the majority rejected suggestions that the corrective force defence should be struck down as incompatible with section 7 of the Charter<\/em>. Chief Justice McLachlin, writing for the majority, claimed that such an approach \u201cwould criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute \u2018time-out\u2019.\u201d[20]<\/a><\/p>\n Other examples abound. In Khawaja<\/em>,[21]<\/a> the Court construed section 83.18 of the Criminal Code<\/em>, which made it an offence to \u201cknowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group, for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity\u201d.[22]<\/a> On a plain reading, one could commit the offence by engaging in \u201cessentially harmless\u201d activities: \u201cFor example, a person who marches in a non-violent rally held by the charitable arm of a terrorist group, with the specific intention of lending credibility to the group and thereby enhancing the group\u2019s ability to carry out terrorist activities.\u201d[23]<\/a> The Court found that \u201cthe context makes clear that Parliament did not intend for the provision to capture conduct that creates no risk or a negligible risk of harm.\u201d[24]<\/a> In D\u00e9ry<\/em>, the Supreme Court took the view that subsection 24(1) of the Criminal Code<\/em> does not apply to the offence of conspiracy\u2014finding that there is no offence of \u201cattempted conspiracy\u201d\u2014on the basis that Parliament did not intend to create \u201cthought crimes.\u201d[25]<\/a> And though, in practice, little tends to turn on whether a causal contribution is \u201coutside the de minimis <\/em>range,\u201d the Smithers<\/em> test also reflects a concern that causation requirements should not be read in an over-expansive way.[26]<\/a><\/p>\n Whole criminal law doctrines arguably reflect a concern for the effect that a \u201cplain reading\u201d of criminal offences would have on practices and courses of action that are widely regarded as benign, salutary, or insufficiently blameworthy. For example, criminal offences are presumptively read in such a way that liability attaches to acts rather than (pure) omissions. Criminal Code<\/em> provisions imposing positive legal duties upon discrete groups have, by and large,[27]<\/a> been construed narrowly.[28]<\/a> Thus, in Browne<\/em>, Justice Abella (then at the Ontario Court of Appeal) interpreted the undertakings provision of the Code<\/em> in a narrow fashion, lest it be construed in such a way that mere promise breaking could give rise to criminal liability.[29]<\/a> There is a compelling argument that the basis for the courts\u2019 hesitation to construe positive legal duties in an expansive manner lies in the intuition that, all other things being equal, the mere failure to intervene on behalf of a third party is not per se regarded as blameworthy.[30]<\/a><\/p>\n Before moving on, it is worth taking a moment to distinguish the presumption of restraint from doctrines and cases that bear a superficial similarity. In particular, it might be thought that the \u201cdoctrine\u201d of de minimis non curat lex<\/em> provides a salient example of the presumption of restraint. According to that doctrine, trial judges may refuse to apply criminal offences where the conduct in issue amounts to a merely technical or \u201ctrifling\u201d violation.[31]<\/a> Thus, it has been applied in cases where the defendant stole goods of vanishingly little value or possessed trace amounts of narcotics.[32]<\/a> The de minimis<\/em> doctrine, however, even if it exists in Canada,[33]<\/a> is not a canon of statutory interpretation. It is invoked as a defence in cases where it is clear that the defendant\u2019s conduct falls within the ambit of the offence in question, but where the violation strikes the trial judge as no more than technical in nature.[34]<\/a> The presumption of restraint, by contrast, is used to interpret the offence by way of determining what its ambit is in the first place.<\/p>\n It might seem that the Supreme Court of Canada\u2019s decision in Labaye<\/em> provides an illustration of the presumption at work.[35]<\/a> There, the majority purported to construe the offence of criminal indecency on the basis that it encompasses only \u201charmful\u201d acts, thereby reducing its ambit. But I would draw several distinctions between the reasoning in Labaye<\/em> and that used in the presumption-of-restraint line of authorities. First, the latter tends to invoke specific<\/em> courses of action<\/em>, which Parliament ostensibly \u201ccould not\u201d have intended to criminalize, by way of explaining why the offence in question must be understood more narrowly than its plain meaning would otherwise suggest. In Labaye<\/em>, by contrast, the majority purported to interpret the offence of criminal indecency in light of highly abstract notions of \u201charm\u201d and \u201cthe proper functioning of society\u201d that\u2014they freely acknowledged\u2014would need to be concretized and given content over a long series of cases \u201c[i]n the tradition of the common law.\u201d[36]<\/a> Second, and relatedly, it is not at all clear that the reasoning in Labaye<\/em> rests upon ordinary intuitions about the non-criminal nature of this or that course of action, so much as it rests upon constitutional norms and values.[37]<\/a> The emphasis in Labaye<\/em> is not on common sense, but on the \u201cfundamental value[s] reflected in\u201d positive laws, such as \u201cour society\u2019s Constitution or similar fundamental laws, like bills of rights.\u201d[38]<\/a><\/p>\n The reasoning in Labaye<\/em> arguably turns the presumption of restraint on its head. In Labaye<\/em>, the majority begins with the premise that the offence of criminal indecency can capture only<\/em> harmful conduct that is incompatible with the proper functioning of society, and then goes on to identify (in quite broad terms) circumstances under which that test may be satisfied. It proceeds, in other words, on the tacit basis that the offence captures nothing<\/em> unless and until one can show that it captures something<\/em>. The presumption-of-restraint line of authorities moves in the opposite direction: it proceeds on the basis that the offence in question would have an expansive<\/em> ambit, consistent with its plain language, but for the fact that Parliament could not have intended to criminalize this or that course of action.<\/p>\n For these reasons, I am uncomfortable with the suggestion that Labaye<\/em> is an illustration of the presumption of restraint. The two are loosely related. But the differences are significant enough that we should set Labaye<\/em> aside in the discussion that follows.<\/p>\n In a range of cases, then, appellate courts have interpreted criminal offence provisions in a manner more narrow than their plain language would seem to permit, on the basis that the plain reading would catch courses of action that Parliament could not have intended to target.[39]<\/a> How should we understand this line of authorities?<\/p>\n We should resist the temptation to read these cases as instances in which the courts have applied the canon of strict construction. The rule was described by Justice Dickson (as he then was) in Marcotte<\/em>:<\/p>\n It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.[40]<\/a><\/p>\n The canon is animated by two rationales. The first focuses on fairness to the criminal defendant. Insofar as one faces a deprivation of liberty, some suggest, it is important that the deprivation be traceable to a clear decision by Parliament<\/em> to impose it, and not to the ad hoc decision of a judge. As Justice Wilson put it, the \u201cseriousness of imposing criminal penalties of any sort demands that reasonable doubts [as to the scope of an offence] be resolved in favour of the accused.\u201d[41]<\/a> The second focuses on fairness to the citizen. To the extent that one wants to make plans, it is important to know in advance which courses of action are criminal and which are not. The canon of strict construction ostensibly guarantees fair notice by ensuring that only conduct falling squarely within the offence in issue may give rise to criminal sanctions.[42]<\/a><\/p>\n In some respects, the canon is linked to what I have called the presumption of restraint. The Supreme Court has sometimes linked the presumption of restraint to the need for certainty and fair notice.[43]<\/a> Moreover, the Court has sometimes tied the presumption to the need to ensure that the criminal sanction is applied only to truly \u201creprehensible conduct\u201d\u2014a rationale which might appear grounded in fairness considerations broadly resembling those underpinning the canon of strict construction.[44]<\/a> But the two interpretive techniques are distinct. Note, first, that the canon of strict construction applies only once the interpreting court has already concluded that the provision in issue is irreducibly ambiguous\u2014that is, that the ambit of the offence cannot be settled using ordinary textual and purposive analysis.[45]<\/a> Where the interpretive question can be resolved without looking to the canon of strict construction, the court will do so.[46]<\/a> In Hasselwander<\/em>, Justice Cory stated:<\/p>\n [T]he rule of strict construction becomes applicable only when attempts at the neutral interpretation suggested by\u00a0s.\u00a012\u00a0of the\u00a0Interpretation Act<\/em>\u00a0still leave reasonable doubt as to the meaning or scope of the text of the statute.\u00a0… [T]his means that even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goals applied.[47]<\/a><\/p>\n Likewise, in Bell ExpressVu<\/em>, the Court remarked that the canon \u201conly receive[s] application where there is ambiguity as to the meaning of a provision.\u201d[48]<\/a> Moreover, the Court has made it clear that, for an \u201cambiguity\u201d to exist, there must be \u201ctwo or more plausible readings, each equally in accordance with the intentions of the statute<\/em>\u201d\u2014emphasizing that a finding of ambiguity presupposes that the textual and purposive analysis has already taken place.[49]<\/a> In Bell ExpressVu<\/em>, the Court observed that a provision is not \u201cambiguous\u201d for the purposes of the canon merely because reasonable people disagree about the significance of the text and the precise nature and interpretive implications of the legislative purpose.[50]<\/a> Over and over again, the Court has treated the canon as a rule of \u201clast resort.\u201d[51]<\/a> The practical effect of this approach has been to make the canon of strict construction all but irrelevant as courts attempt to make sense of criminal offence provisions.[52]<\/a><\/p>\n By contrast, the presumption of restraint is brought to bear as one aspect of purposive analysis. It is not invoked as a tiebreaker only once the interpreting court has already determined that the offence provision is ambiguous. Rather, it is invoked by way of discerning what conduct Parliament \u201ccould not\u201d or \u201cmust\u201d have intended to target when it enacted the offence. The presumption thus operates much (though not exactly)[53]<\/a> like the presumption of subjective fault, at the front end of the interpretive process.[54]<\/a> When deployed, the presumption of restraint relies on the notion that it would be absurd (not) to attribute certain intentions to Parliament, and not that a given construction should be imputed to the offence in question notwithstanding<\/em> legislative intent. Put another way, the presumption is invoked by way of explaining why, despite the plain meaning of the statutory text, Parliament cannot be taken to have intended to target as expansive a range of conduct as it would appear at first glance.<\/p>\n Second, and relatedly, the canon of strict construction is driven by fairness concerns vis-\u00e0-vis the defendant<\/em>. The rationale for the canon is that, faced with a genuinely ambiguous provision, a citizen is entitled to proceed on the basis of the narrower reading\u2014or at least that it would be unfair to punish her for having so proceeded. By contrast, the presumption of restraint is not animated by fairness considerations, but by the need to construe offence provisions in a manner consistent with Parliament\u2019s intentions. A court may apply the presumption, giving the offence in question a narrow interpretation, yet conclude that the defendant nonetheless falls within the ambit of the circumscribed offence. Thus, the presumption has been successfully invoked in a number of cases in which the Supreme Court either overturned the defendant\u2019s acquittal or upheld his or her conviction.[55]<\/a> Furthermore, the presumption is, as we will see, rebuttable. It is a defeasible<\/em> heuristic that ostensibly sheds light on Parliament\u2019s intentions, meaning that it may be invoked without necessarily leading to the conclusion that the offence in issue should be construed narrowly at all\u2014that is, so long as there is other interpretive evidence suggesting that Parliament intended the offence to have a broader scope.<\/p>\n As I hinted earlier, the canon of strict construction has largely fallen out of use. In part, this is because the underlying rationale for the rule has eroded. The canon was devised at a time when there were many capital crimes in English law. There is now less justification for giving offences a construction at odds with legislative intent.[56]<\/a> This development also reflects the now universal acceptance of the principle\u2014itself articulated by Parliament in section 11 of the Interpretation Act<\/em>\u2014that \u201c[e]very enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects\u201d.[57]<\/a> The courts have recognized that the canon of strict construction is consistent with purposive interpretation so long as it is applied only as a \u201clast resort.\u201d The practical effect of this move, however, has been to make the rule moribund (or all but).[58]<\/a> By contrast, the presumption of restraint has thrived, precisely because ostensibly it is not only consistent with the purposive approach, but part and parcel of it.<\/p>\n So far, I have emphasized remarks suggesting a presumption of restraint on the part of the Supreme Court and other appellate courts. But why only a presumption<\/em>? Why not say, instead, that the courts have, in the cases I have discussed, imposed a hard substantive constraint on Parliament\u2019s criminal law-making authority? One could, for example, draw upon some version of the harm principle (or other \u201cwrongness constraint\u201d) by way of claiming that there are moral[59]<\/a> and perhaps constitutional limits on that authority.[60]<\/a> Indeed, aspects of the Supreme Court\u2019s decisions in Butler<\/em> and Labaye<\/em>, as well as the Reference re Assisted Human Reproduction Act<\/em>,[61]<\/a> could be read as supporting the conclusion that such limits exist.[62]<\/a><\/p>\n My answer is threefold. First and foremost, such a conclusion would be utterly unsupported by the language used by the courts themselves. In the cases discussed in Part I, there is no suggestion whatsoever that Parliament could<\/em> not<\/em> criminalize the activities referenced therein\u2014that is, that Parliament could not criminalize mere lies, or the purchase of cups of coffee, etc. Indeed, in most of those cases, such remarks would be pure obiter<\/em>, since the constitutionality of the offences in question was not in issue, and there was no claim that the presumption of constitutionality should be applied by way of resolving an otherwise intractable interpretive dilemma.[63]<\/a> These were cases in which the courts were ostensibly engaging in ordinary purposive statutory interpretation.<\/p>\n Second, the Court has sometimes been explicit that it is open to Parliament to criminalize courses of action heretofore thought unobjectionable or insufficiently wrongful. This point was made, for example, by the majority in Hinchey<\/em>:<\/p>\n The notion of criminality\u00a0… is not a static one, but one which very much changes over time. As society changes, the conception of what types of conduct can properly be considered criminal also evolves. There are a myriad of different activities which at one point in time were considered legal, but which we now consider criminal. The offence of criminal harassment is one obvious example. For many years, it was not recognized as criminal to persistently follow someone and cause them to fear for their safety, so long as no contact was made. Now, that has distinctly changed with the addition of s. 264 of the Code, which makes this conduct a crime.[64]<\/a><\/p>\n In Beatty<\/em>, too, a majority held that the actus reus of dangerous driving does not require proof that the defendant\u2019s driving was a \u201cmarked departure\u201d from standards of driving expected of reasonable people.[65]<\/a> This surely suggests that certain driving practices may be regarded as criminal, though they are common, perhaps even ubiquitous. Kent Roach, discussing Beatty<\/em>, observed: \u201c[T]his approach\u00a0… recognize[s] the traditionally dominant role accorded to the legislature in defining the criminal act. There is a danger that reading in a requirement of a marked departure into every criminal act will alter the clear intent of the legislature in defining the criminal act.\u201d[66]<\/a><\/p>\n The offence of sexual assault is also illustrative. In JA<\/em>, the defendant argued that the offence of sexual assault should not be construed in such a way that it would capture the ostensibly \u201cinnocent\u201d act of kissing one\u2019s sleeping spouse.[67]<\/a> The majority rejected that argument, largely on the basis that, even if an expansive understanding of the offence led to \u201cunrealistic\u201d results, that simply reflected legislative intent. Chief Justice McLachlin stated:<\/p>\n In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to \u201cthe sexual activity in question\u201d is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law\u2019s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament\u2019s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.[68]<\/a><\/p>\n In effect, the majority held that, barring a constitutional challenge, it is neither here nor there that the offence in question catches courses of action widely regarded as benign or blameless if, ultimately, one concludes that Parliament intended to target that sort of conduct.<\/p>\n My third point is that, from a separation of powers perspective, it would be strange if the courts could narrow the ambit of a criminal offence, irrespective of Parliament\u2019s intentions, solely on the basis that it would otherwise catch courses of action that judges<\/em> regarded as harmless or insufficiently blameworthy. Even in the Charter<\/em> context, the Supreme Court has never<\/em> struck down, or read down, a criminal offence simply on the basis that it targets a course of action\u2014that is, has an actus reus\u2014that is insufficiently wrongful.[69]<\/a> Where the Court has found actus reus elements unconstitutional, it is because they either infringed some discrete Charter<\/em> right (e.g., freedom of expression) or were contrary to section 7 principles of instrumental rationality.[70]<\/a> The majority in Malmo-Levine<\/em> expressly denied that criminal offences must target discernible other-regarding harms in order to pass constitutional muster. Insofar as the Court has suggested otherwise, it has adopted an extremely elastic vision of what constitutes harm.[71]<\/a> With all this in mind, it would be odd if judges regarded themselves as free, in non-constitutional cases, to rewrite criminal offences to fit their (possibly idiosyncratic) notions of what courses of action it would be absurd to criminalize.<\/p>\n The better reading of the cases discussed in Part I, then, is that the presumption of restraint is just that: a presumption. It is a heuristic device designed to shed light on what Parliament intended to criminalize, not a quasi- (or pseudo-) constitutional rule that constrains what Parliament can<\/em> criminalize. It is not, by itself, dispositive of the interpretive issue before the court. On the contrary, the presumption is a conversation starter rather than a stopper: by directing the decisionmaker to presume, in the absence of interpretive evidence to the contrary<\/em>, that Parliament did not intend to target this sort of conduct, the presumption effectively counsels her to ask whether such evidence exists, and how weighty it is. In this way, the presumption (again, like the presumption of subjective fault)[72]<\/a> helps to structure the inquiry into legislative intent, without foreclosing any particular outcomes.<\/p>\n What sort of interpretive evidence might rebut the presumption? Most obviously, we might look for express statutory provisions \u201cdeclaring\u201d that the conduct in question falls within the ambit of the offence in question.[73]<\/a> The wider context might also strongly suggest that the offence must encompass courses of action which we might otherwise regard as innocuous. For example, there may be other offences that clearly overlap with the offence in issue; since Parliament is presumed not to have intended to create a wholly redundant crime, the only reasonable conclusion may be that the legislature intended to target a different or broader range of activities.[74]<\/a> Alternatively, Parliament may have explicitly recognized discrete exemptions or immunities that only make sense if one supposes that the offence otherwise encompasses activities traditionally regarded as benign or insufficiently blameworthy. Looking beyond statutory text and context, it may be clear from preambles and the legislative history (including statements made by Members of Parliament) that there was an intention to reform societal attitudes to hitherto accepted activities\u2014or at least acceptance that those activities would be encompassed by the offence in question, if only as a foreseeable side effect of addressing the contemplated \u201cmischief.\u201d[75]<\/a> In short, we would look to the very sorts of interpretive evidence used in other statutory interpretation cases: text, context, and extrinsic evidence of legislative purpose.<\/p>\n To emphasize the modesty of the presumption of restraint is not (without more) to deny that it may reflect and, with important qualifications, protect fundamental values.[76]<\/a> It is only to stress that the presumption imposes \u201csoft\u201d rather than \u201chard\u201d barriers. Kent Roach has persuasively argued that interpretive canons and presumptions provide a means by which the courts can articulate foundational values\u2014throwing \u201cspeed bumps\u201d in the path of legislatures which might otherwise run roughshod over them\u2014while paying due fealty to the sovereignty of Parliament, which can always respond with a \u201cclear statement\u201d that it intends to override them.[77]<\/a> In this sense, Roach claimed, clear statement rules, such as the canon of strict construction, provided opportunities for \u201cdialogue\u201d between courts and legislatures long before the emergence of the Charter<\/em>.[78]<\/a> Insofar as the courts can give effect to quasi-constitutional values without declaring any hard limits on legislative authority, ultimately leaving the difficult political choices to the elected branches, they may avoid (or at least mute) charges of judicial activism. Writing in the American context, Sunstein and Bickel likewise emphasized clear statement rules as a means by which judges may articulate values without shoving aside the elected branches.[79]<\/a><\/p>\n So it is possible to see common law presumptions as reflecting fundamental values \u201cimposed\u201d by the courts on legislative branches.[80]<\/a> And there is a temptation to understand the presumption of restraint in this way\u2014in particular, to view it as a means by which the courts may forestall the aggressive expansion of the substantive criminal law in an age of rampant over criminalization.[81]<\/a> As we have seen, the Supreme Court has often referenced the need to reserve the criminal law for truly \u201creprehensible\u201d conduct and linked the presumption of restraint to this goal.[82]<\/a><\/p>\n But I have misgivings about this reading of the authorities. In part, my concerns have to do with the Charter<\/em> case law I have mentioned. The Supreme Court has, by and large, refused to recognize hard constitutional limits on what<\/em> Parliament can criminalize, intervening only when a free-standing Charter<\/em> right has been infringed or when there has been an absence of means\u2013ends rationality.[83]<\/a> Otherwise, the Court has left Parliament a free hand to determine what courses of action warrant criminal condemnation and punishment.<\/p>\n Now, the fact that the Supreme Court has taken this approach in the Charter<\/em> context does not logically preclude it from imposing \u201crestraint\u201d on Parliament in the interpretation context. In the latter context, there is neither a threat of invalidation nor anything stopping Parliament from re-enacting the legislation (this time with a clear statement about its ambit). A court might well think itself freer to assert restraint-based values, in the course of interpretation, that it would hesitate to enforce by way of resolving a Charter<\/em> challenge.<\/p>\n We should not, however, understate the kind of damage that aggressive \u201cinterpretation\u201d of a statute can do to a government policy or legislative scheme, or minimize the separation of powers implications of that step. Requiring Parliament either to acquiesce to a statutory regime that fails to achieve its intended objectives, or else re-enact the statute, represents a significant intrusion on the legislative role.[84]<\/a> Indeed, a declaration of invalidity is modest by comparison, since it relieves Parliament of the burden of living with a statutory provision or scheme it may not have intended to make. For this very reason, the Court in Ferguson<\/em> observed that constitutional infirmities with a statutory scheme should be remedied with a declaration rather than by reading in or reading down.[85]<\/a><\/p>\n This sort of interference may be palatable when the interpreting court is faced with a genuinely ambiguous statutory provision. Where a person\u2019s liberty is at stake and there is no one interpretation that should clearly prevail over another, it is not obviously disrespectful to Parliament to give the benefit of the narrower reading to the defendant. Hence, it is no accident that the canon of strict construction is triggered only after the court has concluded that the offence in issue is ambiguous, having regard to the text and the legislative purpose. As we have seen, however, this reasoning has no application to the presumption of restraint as it has been deployed by the courts. The presumption is mobilized at the outset<\/em> of the interpretation process, driving the inquiry, ostensibly because it sheds light on what Parliament intended. If this is a judicial imposition of quasi-constitutional values, it is a particularly aggressive example.<\/p>\n That brings me to just what is being presumed here: \u201crestraint.\u201d The presumption has been invoked by way of construing offence provisions as narrower than their plain meaning might otherwise suggest. This can be a deeply controversial\u2014deeply political<\/em>\u2014approach to take.<\/p>\n When Parliament creates a criminal offence, it purports to set the basic terms of social interaction in the community; to draw lines between the permissible, the mandatory, and the forbidden. Sometimes, perhaps often, those lines reflect norms and values that are already dominant in the community as a whole; Parliament\u2019s aim, in those instances, is simply to reinforce those norms. But it may wish to assume a leadership role and use its criminal law power to change<\/em> existing social norms, practices, and values\u2014or to settle<\/em> widespread disagreements within the community as to the permissibility of a course of action. The presumption of restraint may undermine this sort of reformist agenda.<\/p>\n Consider the sexual fraud line of authorities I discussed in Part I. The majority in Cuerrier<\/em> construed \u201cfraud\u201d in subsection 265(3) in a narrow fashion, drawing on the presumption of restraint.[86]<\/a> Arguably, neither the presumption nor the resulting interpretation reflected Parliament\u2019s intention to transform social norms regarding how it is appropriate to obtain sexual consent. Certainly, L\u2019Heureux-Dub\u00e9\u2019s minority opinion in Cuerrier<\/em> was indignant, not least because she regarded the majority\u2019s \u201cinterpretation\u201d as out of step with the reformist objectives of Parliament.[87]<\/a> Likewise, the majority opinion in Hutchinson<\/em>, which implicitly proceeded on the same basis as Cuerrier<\/em>\u2014that Parliament did not intend to criminalize widely accepted tactics in sexual seduction\u2014was vigorously criticized by the concurring judges on the basis that subsection 273.1(1) was intended to give new recognition to women\u2019s sexual autonomy and, to that end, was intended to disrupt<\/em> existing social norms.[88]<\/a> Notably, the Court\u2019s decision in Ewanchuk<\/em> made no mention of the presumption of restraint,[89]<\/a> and the majority decision in JA<\/em> emphasized that the presumption had been rebutted.[90]<\/a><\/p>\n Beyond the sexual assault context, we can see other instances in which the presumption of restraint might appear to push against legislative attempts at social reform. Take, for example, the recent decision in Jarvis<\/em>, in which the Court interpreted the offence of voyeurism.[91]<\/a> The Court did not expressly reference the presumption of restraint, but the majority was clearly concerned that a narrow understanding of \u201creasonable expectation of privacy\u201d\u2014one reflecting only traditional conceptions of \u201ccriminal\u201d conduct\u2014would fail to give effect to Parliament\u2019s intention to protect sexual autonomy in an era of rapid technological change.<\/p>\n The mere fact that the presumption of restraint fails to reflect Parliament\u2019s intentions in some cases is not especially striking, or even interesting. Rules are, by definition, overinclusive,[92]<\/a> and the presumption is<\/em> rebuttable. For now, I only want to draw attention to the deeply political nature of the presumption, which is at odds with a widely held instinct about the modern role of Parliament and the criminal law\u2014namely, that it should not just reflect existing social norms, but actively seek to shape them.[93]<\/a><\/p>\n With all this in mind, we should hesitate to see the presumption of restraint as an exercise in which judges aggressively foist values upon an unwilling Parliament. Given the highly political nature of the presumption, and the fact that it is in grave tension with other strains of criminal and constitutional law over the last thirty years, I want to propose an alternative possibility. (I put it no more strongly than that.) Specifically, I suggest that the presumption finds its footing in the very idea of what it means to craft a criminal offence in the first place.<\/p>\n In The Morality of Law<\/em>, Lon Fuller claimed that any putative lawmaker must, logically, adhere to eight principles of legal \u201ccraftsmanship.\u201d[94]<\/a> Failure to abide by these principles does not merely mean that one has made \u201cbad law\u201d; it means that one has failed to make law, properly speaking, at all. After all, the law exists first and foremost to provide guidance for citizens, who by and large will be expected to follow and apply its directives themselves. When a putative law-maker fails to publicize the laws it purports to create, or makes them retroactive or incomprehensible, she has failed to create something that citizens are able to follow or apply, and which therefore fails as a guide. This is true, moreover, whether or not the law-maker\u2019s objectives are just or unjust\u2014that is whether or not the laws are intended to guide subjects in good or bad ways, or towards good or bad ends. Whatever the law-maker\u2019s intentions, if she resorts to law\u2014in the sense of general directives\u2014she must mean to guide citizens in some<\/em> way and, to the extent she has crafted putative laws that are incapable of discharging that function, has failed as<\/em> a law-maker. In this sense, Fuller claimed that there is an \u201cinternal morality\u201d of law: the very idea of law-making presupposes rules of craftsmanship that are responsive to the agency of subjects; that \u201cspeak\u201d to them as active law-users<\/em> rather than passive law-takers, and that respond to their needs as planning<\/em> agents.<\/p>\n How far Fuller\u2019s account actually goes in drawing a necessary connection between law and morality is a matter of debate.[95]<\/a> For my purposes here, it does not matter. It is enough to observe that, inasmuch as one proceeds on the basis that criminal offences are instruments intended to provide guidance to citizens, that modest starting point has implications for how courts ought to read them. It leads, for example, to the interpretive presumption that Parliament did not intend criminal offences to have retroactive effect, as well as the presumption that it intended the text of the offence to be given its ordinary meaning.[96]<\/a> More controversially, it also leads to the conclusive presumption that criminal offences do not purport to guide people under circumstances in which they are unable to control their actions, and to the rebuttable presumption that true crimes require proof of subjective fault.[97]<\/a> These interpretive presumptions follow from the basic idea that, when Parliament creates a criminal offence, it purports to craft directives that will be applied by the citizens themselves.<\/p>\n The presumption of restraint may also find its grounding in logical propositions about what it means for a criminal offence to offer guidance, and not<\/em> in moral propositions imposed by judges upon recalcitrant legislatures. Understood in this way, the presumption does not reflect any moral or political judgment about the sorts of conduct Parliament ought to criminalize; it reflects only the respectful judgment that, whatever Parliament intended to criminalize, it perforce intended to guide citizens in some fashion. It does not, to that extent, entail any separation of powers difficulties.<\/p>\n I begin with the observation that when courts rely upon the presumption of restraint, they do not tend to explain just what it is about this or that course of action that presumptively makes it an absurd target of criminalization. When the Supreme Court finds it absurd to suppose that Parliament intended to criminalize \u201cseductive\u201d lying, or buying cups of coffee for a friend, or putting a scarf around the neck of one\u2019s own child, it does not provide\u2014or purport to provide\u2014any kind of a priori moral argument that these courses of action are innocent or only trivially blameworthy. Nor does it draw upon any kind of political argument by way of explaining why these courses of action should be regarded as presumptively beyond the limits of the criminal law. Rather, the Court makes a bare appeal to the moral intuitions of its readers that these activities \u201cmust\u201d fall outside those boundaries, at least presumptively.<\/p>\n The temptation for many will be to see this preference for shallow\u2014in the sense of theoretically unambitious\u2014reasoning through a Sunsteinian lens.[98]<\/a> It would be unwise for, say, the Supreme Court to expressly rely on deep theories of moral wrongfulness or criminalization, since this would embroil the judiciary in deeply contentious political questions it lacks the legitimacy or expertise to authoritatively settle. Better, the Sunsteinian might say, simply to gesture towards various courses of action that people of very different political orientations can agree are inappropriate targets of criminalization, leaving the basis for that conclusion unarticulated.[99]<\/a> Such an approach would be consistent with the Supreme Court\u2019s tendency not to wed itself to any particular theory of criminalization.[100]<\/a><\/p>\n The Sunsteinian lens, however, seems[101]<\/a> to treat the absence of abstract moral theorizing as itself a political strategy on the part of the courts\u2014a means of avoiding the controversy and censure which would (surely) result if judges overtly imposed their own theory of morality or criminalization upon the legislature by articulating the practical implications of that theory on a piecemeal basis. I want to propose a slightly different explanation; one that treats the decision not to articulate a deep moral or political theory as principled rather than purely pragmatic. On this view, courts should take into account the widespread acceptance or toleration of certain practices and courses of action, not because they could necessarily be defended if subjected to deep moral scrutiny, but because they are<\/em> widely accepted or tolerated.<\/p>\n To make sense of this idea, we need to keep in mind that rules can have normative force\u2014that is, they can function as rules[102]<\/a>\u2014without having been enacted (or \u201cmade\u201d) by an authoritative person or institution. They may, instead, draw their normative force from the sheer fact that a \u201cstable set of interactional expectancies\u201d or \u201cintermeshing anticipations\u201d has built up over time among the actors themselves in a given social situation.[103]<\/a> Such \u201cimplicit rules\u201d are not consciously created; on the contrary, they are typically by-products of sustained patterns of interaction which have given rise to mutual expectations.[104]<\/a> It is the very fact that these mutual expectations already exist\u2014and are known to exist by the actors themselves\u2014<\/em>that gives them a reason to act in accordance with those expectations.[105]<\/a> As Postema puts it: \u201c[I]mplicit rules emerge as focal points around which persons who must coordinate[106]<\/a> their actions form reliable expectations of others knowing that their counterparts are doing the same thing.\u201d[107]<\/a><\/p>\n Fuller took the view that many of these implicit rules, conventions, customs, informal practices, and usages deserve to be characterized as law<\/em> precisely because, like enacted law, they structure interactional expectancies and therefore guide actors. On several occasions, Fuller lamented the lack of attention paid by legal philosophers and scholars to implicit law.[108]<\/a> This is not just because we can learn something about the nature of law generally by bringing unwritten norms and customs into the frame.[109]<\/a> Fuller contended that it is impossible to understand enacted law in modern industrialized societies without referring to implicit law.[110]<\/a> For example, contracts create mutual expectations between parties, but the practical significance of the language can only be appreciated in light of unwritten commercial norms to which the parties are also expected to conform.[111]<\/a> Similarly, the Constitution creates mutual expectations for those in government, but again the written language can only be adequately understood if one reads it in light of a vast range of unwritten conventions and structural norms.[112]<\/a><\/p>\n For my purposes though, I am most interested in the suggestion that one cannot effectively interpret legislation without appreciating the unwritten customs and practices that structure the expectations of those the legislator intends to guide.[113]<\/a> If a norm or practice exists in the first place it is because participants expect one another to treat it as a reason for action, and each knows that the others have this expectation. In the absence of a clear legislative signal that the norm or practice is to cease, participants may hesitate to read a statute in that way, anticipating that others will assess the significance of their conduct according to the pre-existing norm and expect them to do so as well.[114]<\/a> Knowing this, a legislature that indeed seeks to dislodge or displace that norm or practice will provide a clear statement[115]<\/a> to that effect, given that the provision at issue may otherwise fail to discharge its guidance function. Postema remarks:<\/p>\n [W]e expect that citizens\u2019 understanding of what the law requires of them will determine at least in part their decisions and actions. But that understanding depends on their expectation of how lawmaking … officials are likely to understand it. Similarly, officials authorized to enact … the laws must anticipate how citizens will take up the laws they make … , that is, how the rules are likely to figure in the practical reasoning of citizens. Otherwise, they will not be able to direct or guide actions in such a way as to achieve the substantive aims of the law.[116]<\/a><\/p>\n One might ask how citizens\u2019 interactional expectations of one another could be displaced by criminal offences\u2014specifically, those offences that courts have interpreted using the presumption of restraint. Unfortunately, Fuller\u2019s own analysis of the role of implicit law in the criminal sphere is not crystal clear. I would note, however, that he took a quite broad view of \u201chuman interaction.\u201d He argued, for example, that offenses against deities and spirits\u2014though we might instinctively regard these as targeting \u201cprivate\u201d conduct\u2014affect interactional expectancies insofar as they go to the \u201csignificance one man\u2019s acts may have for his fellows.\u201dI.\u00a0 The Presumption of Restraint<\/h1>\n
II. Strict Construction by Another Name?<\/h1>\n
III. The Paradoxical Presumption<\/h1>\n
IV. The Common Law Constitution?<\/h1>\n
V. The Internal Morality of Criminal Offences<\/h1>\n
A. Fuller and the Internal Morality of Self-Executing Guidance<\/h2>\n
B. The Theoretical Shallowness of the Presumption<\/h2>\n
C. Fuller on the Significance of Interactional Expectancies<\/h2>\n