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Researching Legislative Intent: Part I. Legislative Evolution
Transcript of Researching Legislative Intent: Part I. Legislative Evolution
Researching Legislative Intent: Part I
Start by Tracing the Evolution of the Statute
Tracing the Evolution of the Polygamy provisions of the Canadian Criminal Code
Start by finding the current version of the section of the statute that you are researching.
These can be found:
on the goverment legislation websites, on CanLII or in the Westlaw Canada or Quicklaw/LexisNexis Databases
by using the indexes of the print statutes
or by using an annotated statute, e.g. Martin's Criminal Code
The logical place to look would be the previous revision RSC 1952 - one year prior to SC 1953-54.
Criminal Code, RSC 1906, c 146, ss 310 and 948
An Act Respecting Offenses Relating to the Law of Marriage, RSC 1886, c161.
53 V, c 37, s11
An Act to Further Amend the Criminal Law, SC 1890, c 37, s11
Reference to s. 293 of the current criminal code, which can be found in the Revised Statutes of Canada 1985, c C46 s 293
Criminal Code, RSC 1985 c C-46, s 293
Criminal Code, RSC, 1970, c C-34, s 257
Criminal Code, SC 1953-54, c 51, s 244
Hmm! Where did the source reference go? What should I do next? Don't assume that because the reference is not there that you have reached the end of your search
To Locate the Earlier Version of the Statute
Criminal Code, RSC 1927, c 36, ss 310 and 948
s 3 is a huge section that includes all the amendments and changes to all the other sections. So when you look at s. 278 you are still looking at a part of s. 3 which is why you
cite to s. 3 rather than s. 278
Notice the section number change
This statute adds the polygamy section
Where it all started
But wait, there's more!
So, now you have this information, what do you do with it? When researching legislative intent, you need to find out what the government was thinking about when it passed the legislation. To do this you would look at parliamentary debates and committee reports and other sources of legislative history.
Stay tuned for part II....
Legislative Evolution and History
Why is it important to know how to research legislative evolution and history?
Digital Services and Reference Librarian
Bora Laskin Law Library
University of Toronto
Locate the text of the act either online or in print.
Make note of the source reference listed below each section, use this reference to trace the legislation to the previous version
In 1998, the Supreme Court of Canada in Rizzo and Rizzo Shoes confirmed that Parliamentary materials can be used by the courts to understand and interpret a statute. The court relied on Elmer A. Driedger’s “modern principle”
“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament
Since this influential Supreme Court of Canada decision, knowing how to research legislative history and legislative intent has become more prevalent and more important to the legal profession.
293 (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Evidence in case of polygamy
(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.
R.S., c. C-34, s. 257.
The text here is identical to that of the the 1985 version
Legislative Library and Research Services Legislative Assembly of Ontario
Using The Table of History and Disposal of Acts
Since the Criminal Code is absent from the RSC 1952 the Table of the History and Disposal of Acts might give us some kind of explanantion.
Finding Polygamy in RSC 1927 c 36
Since it is not listed in the Table of Contents look at the
in order to find out where statutes relating criminal matters appear
To Locate the Earlier Version of the Statute
According to the Table of Contents, the Criminal Code does not appear in the 1952 Revision. Does this mean we have reached the end of the road? Maybe but it is best to confirm!
The Subject index is referring us to RSC 1927, c36.
So why isn't it in RSC 1952?
Not Repealed and Not Consolidated. So from this we know that the Criminal Code from 1927 in still in force in 1952 and that it doesn't appear because is wasn't consolidated. Mystery Solved.
Now that we know the Revison year and the chapter number where the Criminal Code last appeared we need to locate the section number. This is where the
is useful again.
Now we need to look at sections 978 and 310
Notice the wording is different from the later versions.
55-56 V, c 29, Criminal Code 1892 s 706
55-56 V, c 29, Criminal Code 1892 s 278
Notice that the source reference for both sections is now the same