Loading presentation...

Present Remotely

Send the link below via email or IM

Copy

Present to your audience

Start remote presentation

  • Invited audience members will follow you as you navigate and present
  • People invited to a presentation do not need a Prezi account
  • This link expires 10 minutes after you close the presentation
  • A maximum of 30 users can follow your presentation
  • Learn more about this feature in our knowledge base article

Do you really want to delete this prezi?

Neither you, nor the coeditors you shared it with will be able to recover it again.

DeleteCancel

Make your likes visible on Facebook?

Connect your Facebook account to Prezi and let your likes appear on your timeline.
You can change this under Settings & Account at any time.

No, thanks

Researching Legislative Intent: Part II. Legislative History

No description
by

Susan Barker

on 22 November 2016

Comments (0)

Please log in to add your comment.

Report abuse

Transcript of Researching Legislative Intent: Part II. Legislative History

Researching Legislative Intent: Part II
Legislative Evolution and History
Locating the History of the Polygamy provisions of the Canadian Criminal Code
So what did we find out. The polygamy section of the Criminal Code evolved as follows:
An Act Relating to the Law of Marriage
, RSC 1886 c 161
No mention of polygamy in this statute.
An Act to Further Amend the Criminal Law
, SC 1890 c 37 s 11

Polygamy added to the
Act Relating to the Law of Marriage
.
This is the where you would start looking for House and Senate Debates to understand why this provision was added and what the intention of Parliament was when it added this section. If possible it might be a good idea to look at the different readings of the bills as well to see if there are any clues as to legislative intent
That here are two points in the evolution of the Criminal Code where the polygamy section has been either added or amended: 1890 and sometime in the early 1950's and so these are the points where it makes sense to go looking for evidence of legislative intent in the legislative history.
Since it has been explicitly stated in case law that Parliamentary Debates are admissible as evidence of legislative intent then it makes sense to start there.


So What has Tracing the Evolution of the Polygamy Section Shown Us?
Legislative Evolution and History
Recap
Susan Barker
Digital Services and Reference Librarian
Bora Laskin Law Library
University of Toronto
In part one of this session we traced the evolution of the polygamy section of the Criminal Code working backwards from the current version to the point in time when polygamy was first became a criminal offense in Canada
How did do that?
By following the "Source References" back to the previous versions as well as using indexes and tables when appropriated to ensure that we had done a thorough job.
Erica Anderson
Research Librarian
Legislative Library and Research Services Legislative Assembly of Ontario
Locating the Debates in the 1890 Hansard
Just to make sure we are in the right place, lets check out the first reading where the bill was introduced. When a Minister introduces a a bill at first reading he or she might provide some context or information that could be useful in discerning legislative intent.
The best place to start is the index. The 1890 Hansard has 2 indexes, one by speaker and one by subject, the subject index also includes bill by number. Since we don't know the bill number or any of the speakers, it is best to start with the subject index. The same index appears in both volumes.

Locating the Debates in the 1890 Hansard
The Subject index refers us to the
Criminal Law Amendment Bill No 65
. Since this is the only entry on the criminal law in this index we are likely in the right place. The index gives us some useful information; who introduced the bill, where to find each reading and the debates on the bill as well as to the citation to the final statute.
Recap
Legislative Evolution and History
Criminal Code
1892, SC 1982 c 29, ss 278 and 706
In 1892, all the criminal statutes in Canada were consolidated and amalgamated, resulting in the Criminal Code 1892. In the new code, the wording and meaning of the polygamy section was essentially the same as in the earlier version. The major difference being here being that the provision is split into two, Since no substantial changes have been made to the wording or meaning of the text then it may not be necessary to look at the debates or other sources of legislative intent for this time.
Recap
Legislative Evolution and History
Criminal Code Amendment Act 1900
, SC 1900 c 46 s 3.
Section 278 was amended by making minor changes to the wording and numbering of the provision but there were no substantive changes. Section 706 was not amended.
Criminal Code
, RSC 1906 c 146, ss 310 and 948
The text of the provision is the same, only the section numbers have changed
Criminal Code
, RSC 1927 RSC 1927 c 36, ss 310 and 948
This wording and section numbers are the same as in the 1906 Revision
RSC 1952
The Criminal Code was not included in the Revised Statutes of Canada 1952 but was still in force as it had not been repealed and had not been consolidated since the 1927 Revision.
Recap
Legislative Evolution and History
Why wasn't the Criminal Code included in the 1952 Revision?
Because a Royal Commission was appointed in 1951 to make recommendations for a complete overhaul of the Criminal Code.
Criminal Code
, SC 1953-1954 c 51 c 342
By 1954 this overhaul was completed and there were some substantial changes made to the wording of the polygamy section.
Criminal Code, RSC 1970 and RSC 1985 to present.
The text of the provision is unchanged
Recap
So, here we can see that this is the right bill but polygamy is only one issue that is being addressed. This means we will have to do a bit of digging to get to the important information about the polygamy section
House of Commons - First Reading
Locating the Debates in the 1890 Hansard
Second reading is when the bulk of the debate and discussion begins. Second reading and the subsequent committee discussion are likely to be the most fruitful in terms of locating any indication of what the intent of the legislature might be.
House of Commons - Second Reading
At this point second reading is completed and the discussion has moved on to the committee phase. There is not a separate committee, but instead the bill is being debated by the "Committee as a Whole" which essentially means a committee of all the sitting MPs.
Locating the Debates in the 1890 Hansard
Very often the Committee discussion includes a clause by clause analysis of the proposed legislation. The Committee will make recommendations for amendments which are reported to the house. At this point, if the bill is available it would be handy to take a look and see what each of the clauses looks like but locating historical bills can be tricky and you may not have the time to do so.
House of Commons - Committee Stage

Starting on at 3171 and ending at page 3181 the discussion of Clause 8 and clause 9 together was quite lengthy, and focused on polygamy and the marital practices of Mormons.
Locating the Debates in the 1890 Hansard
After voting on a variety of amendments to this bill, none of which related to the polygamy section the bill finally receives third reading.
House of Commons - Third Reading

Locating the Debates in the 1890 Hansard
After having been discussed and passed in the House of Commons the bill then goes through the same process in the Senate. Senate debates have equal weight as those of the House of Commons when it comes to discerning legislative intent.
As with the debates of the House the best way to locate the appropriate debates is through the subject index.
Senate

Locating the Debates in the 1890 Hansard
Not much to see here! The bill's sponsor has not provided any opening comments or remarks. The bill has simply been introduced and read.
Senate - First Reading

Locating the Debates in the 1890 Hansard
The bill's intention with respect to the polygamy sections is discussed at some length.
Senate - Second Reading

In addition to the discussion in the House of Commons there was also quite a bit of discussion on the polygamy sections at second reading in the Senate from pages 582 to 586
This in interesting. Apparently there was and earlier Senate Bill on polygamy. It might be useful to try to find that and see if there was any other discussion. We won't do this today but you would locate it via the subject index.
Locating the Debates in the 1890 Hansard
The text of Section 9 of the bill as prepared for discussion in the Committee as a Whole.
Taking a look at the Bill

The Bill is introduced and read but without comment.
Locating the Debates in the 1890 Hansard
After some procedural back and forth between the Commons and the Senate with respect to amendments to some sections of the bill, it is read for the third time in the Senate and then on May 16th 1890 receives Royal Assent.
Senate - Third Reading and Royal Assent

So What Should We Do Next?
We know from tracing the evolution of the statute that the only major changes that occurred in the polygamy section after 1890 occurred during the revision of the
Criminal Code
in 1953-1954.
Because the revision of the
Criminal Code
would be such a huge undertaking, I decided not to go directly to the Debates but instead to see if I could find any kind of history or background documents that would help me zero in on any relevant debates or discussion.
Through the magic of Google I was able to locate a chronology of the revision on the BC Courthouse Libraries website which was very helpful. There are often very useful resources like this available that you can use to start your research. This is a good tactic to consider when looking at the history or evolution of omnibus bills or any statute with a complex history.
Follow Through

Revising the Criminal Code
Although the process of revision began in 1949 it wasn't until 1952 when things started to really get moving
May 1951 Royal Commission on the Revision of the Criminal Code was established
February 1952 report and draft bill tabled in the house
May 1952 Bill H-8 introduced and referred to the Senate Banking and Commerce Subcommittee for review
June 1952 Senate Report tabled
November 1952 (a new session) Bill H-8 was reintroduced in the Senate as Bill-O and once again referred to the Senate Banking and Commerce Subcommittee and passed on third reading with amendments in December
January 1953 Bill 93 introduced into the House of Commons (same text as Bill-O) and referred to a Special Committee
Between February and May the Committees' report was tabled and the bill underwent review and debate
May 1953 - an election was called and the bill died on the the order paper.
Key points in the Chronology

Looking at the Statute
The changes to the text of the act from the bill to the statute were minor. The length of the punishment was increased from two years to five. The section number was changed from s 9 to s 11 and there were some other textual changes. In this case the changes in the bill did not speak to legislative intent but in other cases they might have more significance.
An Act to Further Amend the Criminal Law
, SC 1890 c 37 s 11
Revising the Criminal Code
November 1953, the bill is reintroduced to the House as Bill 7 with the same text as the earlier bill with amendments recommended by the special committee.
Between December 1953 and June 1954 the bill passed through all readings in the House and Senate
June 1954 the bill receives Royal Assent
April 1 1955 Criminal Code, SC 1953-54, c 51 proclaimed into force.

What is important here?

Look at the Royal Commission and Committee reports as well as the Debates.
Key points in the Chronology

Revising the Criminal Code
The Royal Commission Report
The mandate for the Royal Commission was to revise the text, get rid of ambiguities and inconsistencies in the law. The report makes many recommendations but none have any real effect on the intent of polygamy provisions
The Debates
Althoughtthe revision of the Criminal Code was discussed in some detail, there is no indication in the debates that there were any changes to the original intention of Parliament with respect to polygamy. The removal of the clauses referring to Mormons received no discussion in Parliament.
A Practical Application
Reference re: Section 293 of the Criminal Code of Canada
, 2011 BCSC 1588
In this case the judge was asked to answer the following questions:
a) Is section 293 of the
Criminal Code of Canada
consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?
b) What are the necessary elements of the offence in section 293 of the
Criminal Code of Canada
? Without limiting this question, does section 293 require that the polygamy or conjugal union in question involved a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?


One of the briefs presented to the court was an extensive legal history compiled by the British Columbia and Federal, Attorneys General
The researchers who compiled this history did an extremely careful job of the research including looking at the National Archives for Committee working materials.
https://docs.google.com/file/d/0B-URIT52yhx4MzkxZDY2YTAtODkzNy00YjU3LTlkZDktOTdiMjQzMmExMzY2/edit?hl=en#
A Practical Application
Reference re: Section 293 of the Criminal Code of Canada
, 2011 BCSC 1588
Chief Justice Bauman of the British Columbia Supreme Court referred to this brief a number of times in his judgment and dedicated and entire section of his judgment to "The Purpose and Interpretation of Section 293"
http://canlii.ca/en/bc/bcsc/doc/2011/2011bcsc1588/2011bcsc1588.html#SCJTITLEBookMark2937
A Practical Application
Reference re: Section 293 of the Criminal Code of Canada
, 2011 BCSC 1588
The polygamy example focused on a section of the Criminal Code that has not been amended for quite some time and so concentrated on showing the use of print based resources to locate evidence of legislative intent.
For more recent pieces of Federal legislation, LegisInfo is the place to go. This database provides a wealth of information for tracing legislative evolution as well as legislative history. It provides:
the text of all iterations of a bill
status of the bill
Major speeches in Parliament
News releases and Backgrounders
Links to committee discussion and House and Senate debates and more....
What Else Do You Need to Know?
LegisInfo
Full transcript