Researching Legislative Intent

• Author: Susan Barker, Erica Anderson
• Pages: 5-35

5

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chapter one

Researching Legislative Intent

A. WHY RESEARCH LEGISLATIVE INTENT?

Finding the intent behind a legislative provision is an important part

of the process of researching statutory interpretation. e judicial

interpretation of the meaning or intent of a few words in a statute

can change the outcome of a case and aect someone’s life and legal

rights.1 Knowing how to work with and research statutes and the

intent behind them wi help lawyers become beer in the courtroom

and help judges make appropriate decisions.

B. DEFINING TERMS IN LEGISLATIVE INTENT

Librarians, judges, and lawyers oen use the term “legislative history,”

but with very lile consistency. ey could be using one of three mean-

ings. e rst could be tracking a piece of legislation back in time to

nd when a section was added or amended and what those additions

or amendments looked like. e second could refer to a coection of

a the materials that surround the creation of a piece of legislation, for

example, debates and commiee reports. And the third could be using

1 Stephen F Ross, “Statutory Interpretation in the Courtroom, the Classroom,

and Canadian Legal Literature” (1999–2000) 31 Oawa Law Review 39.

6  Researching Legislative Intent

the term genericay to mean both tracing legislation back in tim e and

nding the materials surrounding its creation.

Peter Hogg describes the common understanding of the term

legislative history as

[t]he term “legislative history” does not have a precise meaning . . . .

I use the term to mean the documentary evidence of the events that

occurred during the draing and enactment of a statute. It may

include the foowing elements:

1. the report of a royal commission or law reform commission or par-

liamentary commiee recommending that a statute be enacted;

2. a government policy paper (whether caed a white paper, green

paper, budget paper or whatever) recommending that a statute

be enacted;

3. a report or study produced outside government which existed

at the time of the enactment of the statute and was relied upon

by the government that introduced the legislation;

4. earlier versions of the statute, either before or aer its introduc-

tion into Parliament or the Legislature;

5. statements by ministers or members of Parliament and testi-

mony of expert witnesses before a parliamentary commiee

charged with studying the bi; and

6. speeches in the Parliament or Legislature when the bi is being

debated.2

Using the term legislative history as an a-encompassing term to

describe both the evolution of a statute and the materials that went

into its draing can be confusing for legal researchers. In Suivan on

the Construction of Statutes, Ruth Suivan provides clear, authorita-

tive, and useful denitions that distinguish legislative evolution and

legislative history as separate terms, each with a precise meaning and

research process. It is these denitions that we wi be using as the

foundation for our discussion and that we wi rely on to describe the

process of researching legislative intent.

2 Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: omson Reuters,

2016) (loose-leaf updated 2016, release 1) at 60.1(b) 1–2.