Researching Legislation

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 66-93

66

CHAP TER 3

RESEARCHING

LEGISLATION

A. INTRODUCTION

Legislative materials, in the form of statutes, regulations, and statu-

tory instr uments, are an importa nt source of law. While some citizens

may not realize the power of judge-made case l aw to affect their rights,

most citizens do real ize that statutes and regulations have the power to

legally affect them. Created by or through elected politicians, legisla-

tion consists of wr itten rules that govern or pres cribe the conduct of

the citizens who elected the government off‌icia ls. Despite the import-

ance of legislation to our legal system and to legal research, very few

people enjoy conducting legislative research.

There are several reasons why legisl ative research can be a challenge:

Until recently, legislation was mired in 19th-century pr int technology, UÊ

replete with publishing delays, poor cons olidation of amended provi-

sions, and awkward “Tables” for updating changes to legislative text .

The legislative process is st ill somewhat mysterious to most people, UÊ

involving a sense of back-room lobbying and various technical leg is-

lative rules, such as t he need for bills to prog ress through three read-

ings before becoming law.

Legislation involves a fairly obscure vocabulary and literature un-UÊ

familiar to the uninitiated, including such concepts or terms as pro-

roguement, Royal Assent, proclamations, and Orders-in-Council

(these terms are explained below in t his chapter).

Researc hing Legislation 67

Fortunately, legislators are improving access to legi slation on their

websites. Although some governments have been slow to make their

online ver sions of legislation of f‌icial, t he federal,1 Ontario,2 and Qué-

bec3 governments have done so, and it is reasonable to assume that the

other Canadian jurisdictions w ill do so in the nea r future. The Can-

adian Legal Information Institute (CanLII) (www.canlii.org) is also

an excellent central “clearing house” for recent federal and provincial

legislat ion.

Although the emphasis in this chapter will be using online resour-

ces for legislative research, t here will also b e a brief review of print re-

sources. There are several occasions when there is no choice but to use

print resources: (i) since online legislative databases tend to emphasize

current content, it will still be necessary in most situations to conduct

print legislative res earch for historical research, such as needi ng to con-

f‌irm the state of the law at a pe riod of time in the past, and (ii) since not

all Canadian provincial juri sdictions have moved as quickly in making

the online versions of their legislation off‌icial, it may be necessary to

obtain print copies of legislat ion when off‌icial copies are needed for

court. In addition, learn ing how to conduct legislat ive research in print

can provide valuable context for understanding the legislative process

and what is being viewed online.

What, then, is the best way to learn how to research legislation?

This chapter proposes that most legi slative research ca n be successful-

ly, and somewhat enjoyably, undertaken usi ng the following f‌ive-step

legislative research checklist:

Legislative Research Checklist

Step 1: Identify which level of gover nment ha s juri sdiction over the

subject matter of your research.

Step 2: Identify and consult relevant statutes. If conducting historical

research, use pri nt resources. If researching current law, pre-

fer online to print resources.

1 By s. 31(1) of the Legislation R evision and Consolidation Act, R .S.C. 1985, c. S-20,

all consolid ated Acts and regulation s on the Justice Laws website are off‌ic ial, as

of 1 June 2009.

2 Section 35(1)(b) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, makes

legislation on e-L aws (www.e-laws.gov.on.ca) off‌icial, effective 30 November

2008.

3An Act respecting the Compilatio n of Québec Laws and Regulations, S.Q. 2009, c.

40, makes Québe c statutes published in print a nd online by Publications du

Québec off‌icia l as of 1 January 2010, with Québec regul ations to become off‌icial

by 1 January 2012 at the l atest.