Cinderella at the ball: legislative intent in Canadian Courts.

• Author: Barker, Susan
• Position: Essay

This article explores a very specific kind of legal research--finding the intent of a legislature or parliament. Following a review of the history of legislative intent in Canadian courts, the exclusionary rule and an important Canadian case, Rizzo & Rizzo Shoes Ltd, the authors explore what developments in this area of law, statutory interpretation and, legislative intent research, might mean for parliamentary and legislative libraries in Canada. Based on research for their forthcoming Irwin Law book Researching Legislative Intent: A Practical Guide, this revised article was first presented to the Association of Parliamentary Libraries in Canada/ L'Association des bibliotheques parlementaires au Canada (APLIC/ABPAC) on July 4, 2013, in Ottawa, Ontario.

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American statutory interpretation guru William Eskridge once referred to statutory interpretration as "the Cinderella of legal scholarship. Once scorned and neglected, confined to the kitchen, it now dances in the ballroom." (2) Cited in a 1999 article by Stephen Ross, an American law professor who encourages Canadian legal scholars to devote more time to teaching statutory interpretation, (3) this quote perfectly captures the explosion of statutory interpretation scholarship that Ross sees happening in Canada. A fascinating area of legal research--which includes legislative intent--statutory interpretation also has a very important and practical use in courts. When the outcome of a case hinges on the meaning of a few words in a statute, interpreting the meaning of those few words will affect someone's life and rights, one way or another.

What is legislative intent research?

Our interest in legislative intent stems from our experience in law and legislative libraries. In our law and legislative libraries finding the intent behind a statute it is a source of many substantial research questions. Let's look at an example of a question often posed to legislative researchers:

Question: I would like you to search Hansard, policy papers, and committee Hansard for all discussion surrounding the Act X dating all the way back in time when the predecessor of this legislation was introduced which I believe was prior to 1900. We are interested in determining the meaning of "Y" and if it includes "A and B."

The kinds of questions that law librarians get that require researching legislative intent include: Can I have the Hansard and committee debate on this bill and the predecessor bills? What did the legislature mean by this phrase? Why and when was this section added to the statute?

These questions can be time consuming and finding the answers can be like finding a needle in a haystack. Discovering the intent of a legislature involves piecing together how the legislation evolved over time, if and how the enactment changed, and what legislators said about this change in Hansard and committee. It can also involve material that inspired the legislation such as reports from law commissions, government policy papers, or Commissions of Inquiry.

Researching legislative intent can feel like Cinderella, pre-ball--all work, confined to the stacks in the library. Paul Michel, writing about statutory interpretation in the McGill Law Journal in 1996, agrees; he said that "the process of statutory interpretation is the unsung workhorse of the law. All but ignored by the law schools, lacking the high profile of constitutional interpretation, the interpretation of statutes is, nevertheless, the most common task of the courts and administrative tribunals. Common, yes; but essential, too." (4)

Parliamentary, law firm and academic law libraries all get these questions and provide the materials to help with this research. In parliamentary libraries, librarians have to be careful to find out if the question is part of a legal matter before court. In these cases we cannot assist with it, so it is often a delicate dance deciding what information we can provide. Still, even in that context we may be able to point clients in the right direction by providing bill reading dates and Hansard materials without any analysis of a particular phrase.

There are many terms used to describe this type of research and it helps to define some terms we use in researching legislative intent. Librarians, judges and lawyers all use the term legislative history, but they use it to mean different things. People also use the term "backtracking" to describe the research process. Relying on the definitions that Ruth Sullivan uses in her book, The Construction of Statutes, legislative evolution

consists of successive enacted versions from inception to current formulation or to its displacement or repeal. (5) Legislative History

includes everything that relates to [a statute's] conception, preparation and passage ... from the earliest proposals to royal assent. This includes reports of law reform commissions, ...; departmental and committee studies and recommendations; proposals and memoranda submitted to Cabinet; the remarks of the minister responsible for the bill; materials tabled or otherwise brought to the attention of the legislature during the legislative process including explanatory notes; materials published by the government during the legislative process, such as explanatory papers or press releases; legislative committee hearings and reports; debates...; the records of motions to amend the bill; regulatory impact analysis statements; and more. (6) Put simply, legislative evolution is the statute and its changes. Legislative history is...