Pinpointing Parliament: Supreme Court Citation of Parliamentary Evidence, 2010-2020
Charlie Feldman
Charlie Feldman is President of the Canadian Study of Parliament Group. The views herein are not those of any employer. He would like to thank more people than space permits for their assistance and comments.
The legislative and judicial branches of government are closely linked. Legislation that is passed by parliament becomes the very laws the judiciary must interpret as it rules on criminal and civil matters. But how often does Canada’s highest court cite parliamentary debates and documents in its decisions? In this article, the author examines a 10-year period of Supreme Court of Canada (SCC) decisions that cite at least one parliamentary document. Of the 720 SCC judgments from this period, 96 cited a parliamentary document (13.33 per cent). He provides a discussion of which types of documents are cited and also notes the complexities when counting citations and understanding how they might have been used by judges. He concludes with questions for future researchers to consider.
Introduction
How often does the Supreme Court of Canada (SCC) cite parliamentary debates and documents? Do certain parliamentary publications attract more judicial attention than others? This particular intersection between the legal and judicial branches appears largely unexplored, though studying judicial citation – and what is viewed as “authority”1 – remains as important as ever. Indeed, just this past fall the Alberta Law Review published a work entitled “The Most-Cited Law Review Articles of All Time by The Supreme Court of Canada”.2
Legal citation has a long history,3 and law is said to be the “birthplace of citation study”.4 That said, legal citation practice is not without its critiques5 – including those particular to the Canadian context6 – and citation study has its challenges.7 Nonetheless, judicial citation practices can and should be examined. And, they may be the subject of quite legitimate critique – a matter vividly illustrated in recent scholarship about judicial citation of Wikipedia pages.8 Faults, failures, or foibles of citations (and the study of them) aside, understanding how courts decide cases – as viewed through their citations – warrants consideration.
This research finds the average annual percentage of SCC decisions citing parliamentary documents increased from 2010-2020.
If this trend continues, it will become increasingly important to pay attention to what parliamentary evidence is being cited to monitor shifts in court behaviour (or, potentially, changes in parliamentary practices as reflected in court decisions).
This article begins with a historical note regarding Hansard use by courts. Next, the methodology is presented in two parts – the first describing parliamentary evidence and the second detailing how citations were identified. Finally, it presents analysis and findings alongside questions for future research and a short conclusion.
Historical Note
Hansard and other parliamentary documents were inadmissible evidence in judicial proceedings until fairly recently.9 Though the precise origin of this practice in English law is contested,10 scholars agree that Hansard was generally excluded by Canadian courts until the 1970s.11 Expanded Hansard use by the Court has generated limited legal academic interest,12 mostly focused on questions of statutory interpretation.
Generally speaking, parliamentary evidence was not viewed as reliable in part because debates tell of the “views and understanding of certain participants in the legislative process” rather than “the views and understandings of Parliament itself”.13 In relaxing its approach to the admissibility of parliamentary evidence, the SCC has explained: “Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation”.14
An early parliamentary perspective on this question may surprise those who cling to the traditional exclusionary position. One of only a few individuals to serve both in parliament and on the Supreme Court of Canada, Charles Fitzpatrick (who served as Solicitor-General and later SCC Chief Justice 1906-1918) is reported to have said in the House of Commons in 1899 that:
We make laws here, and naturally our intention and our desire must be that the laws we make should be thoroughly understood, especially by the judges who are called upon to administer the laws and by the lawyers who take part in their administration.
If we want the laws which are passed here to be properly understood, it seems to me of the first importance that the reasons and explanations given in this House when the Bills are introduced and discussed on both sides should be accessible to those who are called upon to administer the laws.15
While this sentiment might be read narrowly in its framing of the issue as being ‘accessibility,’ presumably Fitzpatrick intended for judges not merely to have access to Hansard but also to make use of it. In that regard, it is important to consider that the accessibility of parliamentary documents has only increased with time, particularly in recent years as a result of digitization projects for historical parliamentary records.16 At the same time, judicial attitudes toward the admissibility of parliamentary evidence have evolved.17
Whether parliamentarians view themselves as “speaking to the court” is beyond the scope of this work. Hansard contains expressions from parliamentarians such as “I hope that, if judges read what the politicians and lawmakers have said while studying a bill, they will understand”,18 indicating a desire for Courts to read their remarks. The corollary appears in critiques for Courts ignoring Parliament: “Had that judge read the debates in Hansard he would surely have come to another conclusion”.19 Certainly, one can query whether judges and parliamentarians have shared expectations of how they engage with one another.
For their part, parliamentarians have offered perspectives on what the court sees of Parliament. In 2010, a senator declared in the Upper House that “What they say in the Senate is often quoted in our courts”, and “What they say in the House of Commons is never quoted; but what we say in the Senate is often quoted”.20 In 1983, an MP – and tax lawyer by trade – offered a similar view, expressed in the Commons as an undisputed fact: “We know the courts pay absolutely no attention to what is said in this House, either by Members of the Opposition or by Members of the Government.”21
Perhaps these views could be statistically supported at one time; however, this research paints a very different picture of contemporary court practice. For example, of the 221 parliamentary documents cited by the SCC between 2010-2020 (inclusive), over two-thirds were from the House of Commons. As indicated in Figure 1 above, the Court routinely looks to parliamentary evidence and the exclusionary era is clearly behind us. But, what parliamentary evidence is the Court citing and how can this be measured?
Methodology Part I: Defining Parliamentary Evidence
This article will use “parliamentary evidence” to refer to written records22 of discussions in, and decisions taken by, the Senate and House of Commons or a parliamentary committee.23 It includes – by extension – documents published by decisions or practices of either House (including sessional papers) but it does not include bills.
In a broad sense, the goal is to capture documents that are subject to parliamentary privilege. Legislative texts are certainly looked at by Courts, though there are other challenges and questions with respect to Court references to legislation – particularly when it is under consideration by Parliament and not enacted.24 However, the focus of this particular inquiry is not on legislation but on parliamentary evidence, much of which is wrapped up with the consideration of legislation.
For purposes of this work, parliamentary evidence refers specifically to:
- Transcripts of Debates from the Senate or House of Commons (known as “Hansard”, published as the “Debates”)
- Transcripts from committees of the Senate or House of Commons – or of both Houses (published as “Evidence” or “Proceedings”)
- Records of decisions from the Senate or House of Commons (published as the “Journals”)
- Records of minutes from committee meetings (published as “Minutes”)
- Sessional Papers (broadly, documents tabled in the Senate or House of Commons)
- Committee reports (traditionally these were printed in the Journals, but are now often recorded as sessional papers)
- Compilations or restatements of any elements of the above from a parliamentary source (except for procedural manuals).25
Item seven contemplates previous publications of the Senate and House of Commons such as Votes and Proceedings (a House of Commons publication from 1868-1994) and Minutes of the Proceedings of the Senate (published 1868-1996).26 It also captures committee Evidence and Minutes that are cited to a bound volume with a title starting “Minutes of Proceedings and Evidence” followed by the name of the committee. Simply put, the goal is to capture every publication – other than legislation – of the Senate, House of Commons, or a joint committee of both Houses, regardless of what it may have been termed at the time.
Additionally, item seven captures the Rules of the Senate, Standing Orders of the House of Commons, the “Status of House Business” and “Progress of Legislation” documents, as well as the Order Paper and Notice Paper. None of these appear to have been cited by the Court in the last 15 years, though it is perhaps worth noting that several Supreme Court of Canada cases mention (without citation) that a particular bill “died on the Order Paper”.
Of note, publications written by the staff of the Library of Parliament – such as legislative summaries and background papers – are also excluded, though these have been cited by the SCC on several occasions.27 As well, items from officers and agents of Parliament are excluded, except if cited in a parliamentary document.28
Importantly, the same parliamentary evidence might be found in multiple places – for example, minutes from a committee meeting might be found on their own online, found as part of a published volume of Minutes of Proceedings and Evidence, or included in a committee’s report that itself is tabled as a sessional paper. This research follows the Court’s lead, even if the document could be cited in a different source.
Methodology Part II: Identifying SCC Citations
Researching court citations for this work began with cataloguing every entry from the SCC’s website listed under “Supreme Court Judgments” for 2010-2020 inclusive. Information was collected for each case and whether any parliamentary documents appeared among the Court’s listing of “Authors Cited”.
Using the Court’s own “Authors Cited” lists resolves counting conundrums that would otherwise exist given certain SCC practice inconsistencies. For example, all Hansards for a session may be bound into one work and thus could be cited to one source with many page pinpoints. However, each sitting day could be cited separately as it results in a distinct document. In almost all instances, the Court uses a unique citation for each parliamentary sitting day. But, where multiple days are cited to a single work by the Court, this work will treat it as one entry to follow the Court’s lead.
There is significant frailty to this approach; the “Authors Cited” section does not provide a complete representation of SCC reference to parliamentary materials. Indeed, there may be in-text references to parliamentary actions or documents that are not accompanied by an explicit citation from the Court. Further, as one legal scholar observed in the context of the Australian High Court: “There is a big difference between what the court reads and is possibly influenced by, and what the court deigns to cite”.29
No literature could be found explaining why the Court chooses to reference materials without providing a citation.30 Further, there is no accounting for an instance where a citation is to something that could also be cited to a parliamentary document.31
Detailed analysis of each parliamentary document cited listed under “Authors Cited” proved challenging given the way in which materials are sometimes presented by the Court, reflective of broader challenges with parliamentary citation styles.32
For example, the 2021 case R. v. Khill, 2021 SCC 37 includes the following entries under “Authors Cited”:
Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights, No. 25, 1st Sess., 41st Parl., March 8, 2012.
Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 18, 1st Sess., 41st Parl., February 7, 2012, pp. 2, 9.
Based on the judgment’s use of them, the first and second reference are both to the same type of document – committee evidence (a transcript) – from the same committee, one month apart. These documents are available online (perhaps the source of the second reference) but have been printed into a larger collection whose title (“Minutes of Proceeding and Evidence”) seems reflected in the first citation.
From the first citation alone, it’s impossible to discern whether the minutes of the meeting or the evidence (testimony) is being cited. The absence of page pinpoints also means that the text of the judgment must be used more extensively in conjunction with the citation to identify if the whole document is relevant or only a portion (e.g., certain interventions, a record that is ‘minutes’ or a record that is ‘evidence’).
Keeping this in mind, consider the paragraph of the judgment that references the document:
At third reading, the Parliamentary Secretary to the Minister of Justice explained that the jurisprudence under the old regime would continue to be relevant, but also stated that the changes to the law of self- defence are “fundamental in that they completely replace the existing legal provisions with new and simpler ones” (House of Commons Debates, vol. 146, No. 109, at p. 7064 (Robert Goguen)). Further, the question of whether “role in the incident” represented too great a departure from the previous law was addressed at second reading and in committee (House of Commons Debates, vol. 146, No. 58, at p. 3841 (Hon. Irwin Cotler); see also House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Human Rights, No. 25, 1st Sess., 41st Parl., March 8, 2012). Concerns about the breadth of the phrase were before Parliament, but it chose not to act on them.33
While the individual speakers for the citations to House of Commons Debates are mentioned (note that the parliament and session indications are not included), this is not the case for the committee document referenced. The meeting in question lasted just over two hours and is indicated on the House of Commons website as having 324 interventions from 12 committee members and 32 interventions from two technical witnesses who were present from the Department of Justice. Notably, the phrase mentioned in the paragraph – “role in the incident” – does not appear anywhere in the transcript.
Similarly, the phrase does not appear in the minutes of that meeting. This constellation of information does not allow one to confirm with certainty what the court is citing. In a case such as this, the phrasing of “addressed […] in committee” is being interpreted as referring to the discussions of the committee as recorded in its evidence rather than the minutes.
General Findings: Parliamentary Citations
Table 1 provides information on parliamentary document citations by the SCC for the years 2010-2020. Where rounding occurs, averages and per cent are shown to two decimal places.
Of the 720 SCC judgments from this period, 96 cited a parliamentary document (13.33 per cent). In total, there were 221 parliamentary document citations. In a given year, between 6.15 and 22.39 per cent of judgments cited a parliamentary document, with an average of 13.56 parliamentary document citations annually.
Chamber of Origin
Figure 2 (below) depicts the bicameral breakdown of parliamentary documents cited by the SCC between 2010-2020 inclusive:
As noted in the introduction, the vast majority of parliamentary documents cited from the SCC originated in the House of Commons (75.57 per cent) compared to the Senate (21.72 per cent). Joint committees account for the remainder (2.71 per cent).
Type of Document
Excluding joint committee documents and any document type cited fewer than three times,34 the largest portion of the citations to parliamentary documents were chamber debates followed by committee evidence. While documents from the House of Commons are cited more often than their Senate counterparts for transcripts, Senate committee reports are cited nearly on par with House committee reports.
It should be recalled that the same document may be cited by more than one judgment, though this appears exceedingly rare for anything other than a committee report. The most cited committee report (mentioned in six judgments in this period) is “Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act”, a study completed by the Senate’s Banking, Trade and Commerce committee in 2003.
As well, it should be noted that the same document can be cited in more than one set of reasons within a judgment. A shining example is from just beyond the study period: R. v. Chouhan, 2021 SCC 26. Chouhan has five sets of reasons. A single page of Hansard is cited in four of those reasons; eight different paragraphs of the judgement cite the same page of Hansard.35
Document Year
Though more recent parliamentary documents were cited in greater numbers than historical documents, the Court cited parliamentary evidence from throughout Canada’s history in decisions rendered between 2010 and 2020 (inclusive). (See Figure 4 below).
Challenges and Critiques
Missing Citations
The focus of this work is SCC citation of parliamentary evidence. Yet, there are instances where parliamentary evidence appears to be consulted without an associated SCC citation. In one particular instance, the parliamentary ‘fact’ referenced coupled with the lack of explicit citation raises questions and concerns about the Court’s use of parliamentary evidence.
In Manitoba Metis Federation Inc. v. Canada (Attorney General), the Court’s majority writes that “On March 1, 1871, Parliament passed an Order in Council declaring that all Métis had a right to a share in the 1.4 million acres promised in s. 31 of the Manitoba Act”.36 The problem? Parliament does not pass an Order in Council; these are passed by the Governor in Council. Further, there is no mention of this order in any of the parliamentary records for March 1, 1871.
Whether this sentence is an error of the Court or a mistake in a source relied on by the Court is a mystery from looking at the judgment alone: The Court’s statement contains no citation. Further, the Court does not include the Order in Council under the ‘Statutes and Regulations Cited’ for the case, nor does it include any parliamentary documents under the decision’s ‘Authors Cited’ listing.
Research reveals that an Order in Council on this subject dated March 1, 1871, was made by the Governor in Council.37 The House of Commons – not to be conflated with Parliament38 – was informed the next day by its Speaker and this is recorded in the Journals of the House of Commons. The House considered the order (and related questions) on April 6, 1871, (as reflected in the Debates), and the Order itself was published as a sessional paper the following year.39 As reflected in that sessional paper, the Order begins “The Governor General transmits, for the information of the House of Commons the accompanying Order in Council and Memorandum establishing […] Regulations respecting the Public Lands in the Province of Manitoba.”
In sum, the correct information could have been found by verifying one of three sources of parliamentary evidence: The Journals, the Debates, and a sessional paper. It is unclear from the reasons alone – given the lack of citation – whether the Court consulted any of these or whether it was led astray by one or more of the parties or perhaps one of the courts below. Moreover, the error could also have been avoided by examining the Order in Council itself. This is to set aside the broader question of why the Court would not know that an Order in Council is not a parliamentary instrument.
While mistakes happen (and can happen to anyone), written reasons (and citations) do not exist in a vacuum. As expressed by scholars studying citation practices before Australia’s High Court:
Written reasons, together with citation to authority, provides the best record we have of the thought process underpinning how judges decided a case. When these reasons and the authorities that are cited are examined for an appellate court over a considerable period of time, this exercise can provide insights not only into the major influences on the evolution of the common law in a given country, but also into trends in what the judges consider to be legitimate legal reasoning.40
Examining citations also affords an understanding of whether a particular court is aware of certain sources and able to pinpoint particular types of information or analysis.
Use of Early Materials
Citations to parliamentary evidence may be misleading as to whether the source is truly of parliamentary province. Consider the citation in Caron v. Alberta, 2015 SCC 56 to the following:
Canada. House of Commons. House of Commons Debates, 1st Sess., 1st Parl., December 4, 5, 6, 9 and 11, 1867, pp. 181, 183, 194- 96, 200, 203, 205, 208, 222- 25, 244, 254.
Setting aside the multiple days issue raised earlier in the work (that is, whether this should be treated as a citation to one document or five given that Hansard is a distinct document each sitting day), this citation is to early parliamentary evidence. The problem? While it appears to be a traditional Hansard citation, there was no official authorized reporting of the House of Commons in 1867. In fact, Parliament decided explicitly not to have word-for-word reporting in the early years to save costs.41
In Parliament’s earliest days, newspapers reported on the debates in Parliament. Many years later, a project was undertaken to compile these clippings into reconstituted debates.42 As explained by one of the leading scholars in this area:
The newspaper reports were not verbatim accounts but usually comprised about a third of what was said in the chambers. Reporters were responsible for compressing the material they took down; who could be sure they did this fairly? Even Prime Minister Macdonald who was, on the whole, happy with the newspaper reports, occasionally worried about distortions they might contain. Quebec members complained that the English-speaking reporters would not (or could not) report their speeches given in French.43
Unfortunately, the Court’s specific reference to this document leaves the impression that it is a verbatim record of Parliament:
The Minister’s understanding of “legal rights” was shared by other members of Parliament: see e.g. Debates, December 4, 5, 6, 9 and 11, 1867, at pp. 181, 183, 194-96, 200, 203, 205, 208, 222-25, 244 and 254.
The Court does not appear to acknowledge that it is referring to – and citing – a well-curated collection of newspaper reports about the debates in the House, some of which may not have been reflective of what was being said in one language. This is particularly concerning given that Caron itself was concerned with language rights.
Parliamentary Provenance
It is sometimes unclear whether the Court is always fully aware that it is citing a parliamentary document. The Caron decision also includes citations to the following two items:
Canada. Sessional Papers, vol. V, 3rd Sess., 1st Parl., 1870, No. 12.
Canada. Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70. Report of the Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70. Ottawa: I. B. Taylor, 1874.
Regarding the first, the text contains multiple references to these “Sessional Papers” but no explicit acknowledgement that they were documents tabled in the House of Commons and published under parliamentary practices.
Similarly, the “Select Committee” was a committee of the House of Commons and its report is found in the Journals of the House of Commons for the 3rd Parliament, 1st Session (Vol. 8). The textual reference to this citation in the judgment does not give a sense of whether the Court was aware of it being a parliamentary document.
It could be that the appearance of an external printer’s mark on the cover and reflected in the citation (I. B. Taylor) may be slightly to blame for any confusion as to its provenance. Isaac Boulton Taylor was the printer contracted in the early years by Parliament; his billing practices led to scandal and an eventual lawsuit.44
As a question of future research design, should one count an item that is treated as a parliamentary document when it is not truly one? Should one count a parliamentary document that is treated as though it is from some other source?
Though the Caron case is raised here for the questions above, it also contains one particularly notable parliamentary document reference: a single-language version citation. That is, the English version of the reasons state in paragraph 11 that in “the Journaux de la Chambre des communes de la Puissance du Canada the phrase ‘legal rights’ is translated as ‘droits acquis.’” In no other case did it appear that only one language version of a parliamentary document was being cited by the Court.45
Reference Cases
As a question for future scholarship in this area, it is unclear whether reference judgments should be considered alongside judgments in traditional litigation. To begin, references do not necessarily arrive at the Court with the extensive evidentiary record as a case heard initially by a court of first instance and considered by a court of appeal. A reference means that the SCC does not necessarily benefit from the reasons of lower courts,46 including those in respect of parliamentary documents. Finally, the questions the government puts to the Court in the reference may require referring to parliamentary documents in ways that might not arise in traditional litigation.47
For its part, the Reference re Genetic Non-Discrimination Act, 2020 SCC 17 is a reference from the Governor in Council concerning the constitutionality of a Senate public bill and is believed to be the first Governor in Council reference in history regarding a non-government federal bill; it is unique for that reason alone. As it relates to the data, this one case is responsible for more than double the number of citations to Senate documents than any other case. Extraordinarily, it cites 17 parliamentary documents whereas the average judgment citing any parliamentary document cites 2.2 parliamentary documents
Had litigation about this legislation come to the court in the usual course, the judgment’s use of parliamentary documents may very well have been different. For this work, this case is included in the analysis. However, it may be that reference cases (which are atypical) should be treated separately in future consideration of court citations to parliamentary evidence.
The Most-Cited Award
As research for this article progressed, many inquiring minds wanted to know who was the most cited parliamentarian and which debates were most cited. Answering this with quantitative certainty is impossible, particularly as some citations do not indicate which speaker on the page is the one whose remarks were being considered. As well, classifying speakers becomes problematic when roles change over time – for example, the Postmaster General of Canada was a position before it became the Minister responsible for Canada Post Corporation, which in some recent ministries has been the Minister of Public Works and Government Services or Minister for Transport. The identification in Hansard may not always be helpful for identifying the capacity in which one speaks at a given moment – for example, Thomas Crerer was an MP who served as three different ministers simultaneously.48
All that considered, as an anecdotal observation (nonetheless informed by the data collected): Where a single speaker can be identified, it is most often a Minister. Of Ministers, those associated with a Justice portfolio are most cited (whether to Minister of Justice, Attorney General, or Solicitor General). The same holds for when parliamentary secretaries are cited – in most cases it is a parliamentary secretary to a Justice role. Generally, the speeches being cited by these actors are their second reading speeches but quantifying interventions would be misleading given changing parliamentary practices over time, particularly as it relates to the use of committee of the whole in the House of Commons.
When parliamentary actors who are not Ministers or Parliamentary Secretaries are cited, it is most often the sponsor of a bill whose remarks are being considered. In committees, both departmental and non-departmental witnesses are cited at similar rates.
Questions for Future Research
This article focuses solely on questions of citation: What does the court cite? How often is it citing parliamentary materials? Though important, the connected questions of why the court turns to parliamentary materials and whether it should it cite them were beyond the scope of this particular work.
Much more research and writing are needed in this field. The aim of this article is simply to provide a framework for analysis and to document current practices. It offers an open invitation to others to contribute to our collective understanding of the impact of Parliament’s work on the SCC’s consideration of the matters before it. To that end, here are some proposed questions for future research.
How does the SCC use the parliamentary documents it cites?
This question has innumerable sub-questions. For example, does the SCC use parliamentary sources in conjunction with other sources for particular points or does it rely entirely on parliamentary documents for some matters? Are documents used for legislative intent/legislative history purposes or are certain documents (such as committee reports) used primarily to establish social or historical facts? In what circumstances are external witnesses cited? And, would a parliamentary document be the only way to obtain that information?
Do parliamentarians believe that they are “speaking to the Courts”?
The perspectives of parliamentarians – particularly those sponsoring government legislation – would be useful to survey. Are there particular contexts in which parliamentarians seek to attract the court’s attention? If so, how do they signal this intention? The corollary research would be to establish whether parliamentarians read judicial decisions and interpret the Courts as speaking to them in some contexts.
What can be said (if anything) of the parliamentary documents that the court references but does not cite?
As an illustration, R v. Poulin (2019 SCC 47) notes that “The House of Commons debates from 1980 to 1983 similarly do not reflect any consideration of this question” (para 79). The only parliamentary document cited in the case is a joint committee transcript. Is this an indication that the Court is actively conducting extensive searches of Hansard in other cases? Should the Court disclose when it has done so and not found any relevant materials? Should there be an expectation that the Court is aware of and has canvased the parliamentary record?
What explains the differences between Senate and House citation frequency?
Do the statistics reflect bicameral preferences on the part of the SCC or can differences in chamber and committee citations be explained by other factors such as the relative number of sitting days or hours of debate? Does one chamber produce more committee reports than the other? Is there anything about how studies are conducted in one House or the other to which the difference in Court approach can be attributed?
Do the cases themselves reveal anything about the Court’s attitudes toward parliamentary document use?
Do certain judges appear more likely to cite parliamentary documents? How do the various reasons in a single judgment engage with one another on Hansard matters? For example, one dissent noted that “This portion of the Hansard record weakens the majority’s conclusion”.49 What is the Court saying (if anything) about the use of Hansard generally as opposed to focusing on the specific parliamentary record in a case?
Does the Court treat parliamentary documents and evidence in the same way as lower courts in the same matter?
To illustrate the question: The SCC in Carter v. Canada (Attorney General), 2015 SCC 5 writes that “Between 1991 and 2010, the House of Commons and its committees debated no less than six private member’s bills seeking to decriminalize assisted suicide. None was passed.” The British Columbia Court of Appeal decision being appealed to the SCC makes no reference to these PMBs. However, the Supreme Court of British Columbia writes “Since 1991, nine private member’s bills have been introduced in the House of Commons seeking to amend the Criminal Code to decriminalize assisted suicide or euthanasia”.50 Whether the Court treats parliamentary evidence the same way as other courts in the same litigation may provide insight into strategies that could be effective on appeal.
How does the number of citations to parliamentary documents compare to the overall citation rate?
The research showed the per cent of cases each year citing a parliamentary document increasing on average; however, are the number of citations overall increasing such that only limited inferences can be drawn from more frequent parliamentary citation? Are other types of citations expanding at similar rates? Can factors beyond evidence admissibility be identified to explain the increase in citations to parliamentary documents?
Why do particular speakers attract citation?
Is there a connection between the Court’s typical case makeup and the Justice portfolio such as to explain citation preferences to Justice-associated actors in Parliament? More research would be needed to determine if other factors are instead at play. Are cases involving federal criminal law, for example, more likely to see the Court cite a Minister’s speech than, say, cases involving federal environmental statutes? More broadly, are the expressions of legally-trained parliamentarians cited more often than those without a legal background?
How do judges understand and view parliamentary documents?
Do judges and law clerks receive training on locating parliamentary sources? Do they find debates useful? Some judicial commentary on this point has been found51 but further research could be undertaken to establish judicial perspectives of the use and utility of parliamentary documents. Do the justices of the SCC cite different parliamentary documents (or use them in a different way) from other judicial actors?
While the foregoing items were presented to offer research directions, there is also a suggestion for a path to be avoided. Bibliometric analysis of court citations to parliamentary documents should not be used in some way to measure parliamentary performance akin to how bibliometrics are often used in the academic context to measure scholarly impact.52
Table 1: SCC Parliamentary Document Citation (2010-2020): Overview
| Year | SCC Judgments | Judgments Citing a Parliamentary Document | Other Judgements | % citing a Parliamentary Document | Number of Parliamentary Documents Cited (Total) |
|---|---|---|---|---|---|
| 2010 | 67 | 7 | 60 | 10.45 | 22 |
| 2011 | 65 | 8 | 57 | 12.31 | 8 |
| 2012 | 76 | 10 | 66 | 13.16 | 20 |
| 2013 | 73 | 6 | 67 | 8.22 | 6 |
| 2014 | 78 | 11 | 67 | 14.10 | 30 |
| 2015 | 69 | 12 | 57 | 17.39 | 49 |
| 2016 | 56 | 8 | 48 | 14.29 | 17 |
| 2017 | 65 | 4 | 61 | 6.15 | 6 |
| 2018 | 59 | 5 | 54 | 8.47 | 6 |
| 2019 | 67 | 15 | 52 | 22.39 | 24 |
| 2020 | 45 | 10 | 35 | 22.22 | 33 |
| TOTAL | 720 | 96 | 624 | 13.33 | 221 |
| AVERAGE (annual) | 65.45 | 8.72 | 56.72 | 13.56 | 20.09 |
Conclusion
As noted at the outset, the annual per cent of SCC cases citing parliamentary materials appears to be on the increase. What will the future hold? Trends and practices in this area will be important to monitor in the years to come for both legal and political science scholars, and the future research directions in this area are seemingly limitless. Why is the Court increasingly turning to the parliamentary record? Is parliamentary evidence guiding the court in a novel way? Should parliamentarians prepare their remarks with a judicial audience in mind? Only time may reveal the answers to these significant and weighty questions at the intersection of our branches of government.
Notes
1 Peter J McCormick, “Judicial Citation, the Supreme Court of Canada, and the Lower Courts: The Case of Alberta”, 1996 34-4 Alberta Law Review 871. See also Peter J McCormick, “Second Thoughts: Supreme Court Citation of Dissents & Separate Concurrences, 1949-1996”, 2002 81-2 Canadian Bar Review 369. John Henry Merryman, “The Authority of Authority: What the California Supreme Court Cited in 1950” Stanford Law Review, vol. 6, no. 4, 1954, pp. 613–73.
2 Yan Campagnolo and Camille Andrzejewski, (2022) 60:1.
3 R. Shapiro, “Origins of bibliometrics, citation indexing and citation analysis: The neglected legal literature”, JASIS 43 (1992) 337-339.
4 Shapiro, F. R. (1992). Origins of bibliometrics, citation indexing, and citation analysis: The neglected legal literature. Journal of the American Society for Information Science, 43(5), 337–339.
5 Christopher A. Cotropia; Lee Petherbridge, “Gender Disparity in Law Review Citation Rates,” William & Mary Law Review 59, no. 3 (February 2018): 771-812.
6 Danielle Lussier and Steven Stechly, “Other Materials” – Traitorous Love and Decolonizing the Canadian Guide to Uniform Legal Citation, 2022 53-2 Ottawa Law Review 301.
7 Mary Whisner, “My Year of Citation Studies”, Part 1, 110 Law Libr. J. 167 (2018)
8 Peoples, Lee F. “The citation of Wikipedia in judicial opinions” Yale Journal of Law & Technology, vol. 12, annual 2009, pp. 1. Jodi L. Wilson, “Proceed With Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies”, 16 Vanderbilt Journal of Entertainment and Technology Law 857 (2020)
9 Graham Steele. (2017). Who Speaks for Parliament?: Hansard, the Courts and Legislative Intent. Canadian Parliamentary Review, 40(1), 6–10. Magyar, J. J. (2021). The slow death of a dogma? The prohibition of legislative history in the 20th century. Common Law World Review, 50(2–3), 120–154.
10 Magyar, J. J. (2020). Debunking Millar v. Taylor: The History of the Prohibition of Legislative History. Statute Law Review, 41(1), 32–58.
11 There are, of course, exceptions. See John J. Magyar, “Hansard as an Aid to Statutory Interpretation in Canadian Courts from 1999 to 2010” LLM Thesis, University of Western Ontario (2011) at FN 111. Online: Magyar, John James, Hansard as an Aid to Statutory Interpretation in Canadian Courts from 1999 to 2010 (August 30, 2011). Available on SSRN: https://ssrn.com/abstract=2233370 or http://dx.doi.org/10.2139/ssrn.2233370
12 Beaulac, S. (1998). Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight? McGill Law Journal = Revue de Droit de McGill, 43, 287–324.
13 Ruth Sullivan, “Construction of Statutes” (Irwin Law, 2016, 3rd Ed), page 262.
14 Rizzo & Rizzo Shoes Ltd. (rd) [1998] 1 SCR 27 at 35.
15 Debates of the House of Commons, June 21, 1899, 8th Parl, 4th Sess, Vol XLIX at 5470
16 See Beelen, K., Thijm, T. A., Cochrane, C., Halvemaan, K., Hirst, G., Kimmins, M., Lijbrink, S., Marx, M., Naderi, N., Rheault, L., Polyanovsky, R., & Whyte, T. (2017). Digitization of the Canadian Parliamentary Debates. Canadian Journal of Political Science/Revue Canadienne de Science Politique, 50(3), 849–864.
17 See discussion in R. v. Morgentaler, [1993] 3 S.C.R. 463.
18 Evidence, Standing Committee on Justice and Human Rights, 44-1, No. 66, 25 March 2013.
19 Debates of the House of Commons (Hansard), 37-2, No. 120, 16 September 2003.
20 Debates of the Senate (Hansard), 3rd Session, 40th Parliament, Volume 147, Issue 77, 13 December 2010.
21 House of Commons Debates, 32nd Parliament, 1st Session, Vol. 20, March 3, 1983 at p 32431.
22 In theory, video or audio recordings of parliamentary activities could be used by the Court but it does not appear that this has ever happened.
23 Committee of the Senate, House of Commons, or of both Houses.
24 Practices surrounding Court mentions of bills that did not become law is something canvassed in part in Feldman, C. (2021). (Examen judiciaire des dispositions en cours de révision par le législateur. Revue générale de droit, 51, 15–46.)
25 Various editions of the classic House of Commons Procedure and Practice have been cited by the SCC (e.g., 2018 SCC 26 at 18). For purposes of this work, it is being excluded though it is certainly an extremely important document in the parliamentary context.
26 According to the Library of Parliament catalogue and with great appreciation for the assistance of the Library of Parliament for assistance in identifying types of parliamentary documents.
27 See e.g., Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621
28 For example, an Auditor General’s report on its own can be cited to the Office of the Auditor General. However, if the report is tabled in parliament and cited by the Court to that sessional paper, it will count as a cited parliamentary document for this work.
29 Esau, A. J. (2014). Measuring Judicial Performance, Power, and Precedent: Some Reflections on the Empirical Studies of Peter McCormick on the Occasion of His Retirement. Manitoba Law Journal, 38(1), 191 at 210.
30 For general discussion of the importance of reference and citation in the legal context, see Jeffrey Barnes, “Cite Seeing: Citation in Legal Writing” 16 Law Context: A Socio-Legal J. 144 (1998-1999)
31 For example, a copy of the Convention on the Rights of Persons with Disabilities was tabled as part of Sessional Paper No. 8532-402-57 but in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 the Court (quite understandably) cites to the treaty as part of the Canada Treaty Series.
32 As a present to the punctilious pendants and to provide further fodder for fans of the abstruse and arcane, it is noted that during this period the Canadian Guide to Uniform Legal Citation (McGill Guide) was modified (in the 9th Edition) to provide revised citation styles for parliamentary sources. The Court appears yet to embrace the simplified and improved citation style for parliamentary sources. One notable improvement is that for most types of sources, the relative location of the parliament and session number is consistent whereas in prior editions for bills the McGill Guide style was to put the parliament and then the session number but for citations to parliamentary debates the order was reversed such that the session appeared first.
33 R. v. Khill, 2021 SCC 37 at 110.
34 In the period observed there was one reference each to a Senate sessional paper, a House of Commons sessional paper, a record of House of Commons committee minutes, House of Commons Journals and an edition of the Votes and Proceedings of the House of Commons. There were three citations to Journals of the Senate.
35 Canada. House of Commons. House of Commons Debates, vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, p. 19605 is cited in paragraphs 26, 27, 106, 108, 156, 162, 163 and 287 of R. v. Chouhan, 2021 SCC 26.
36 2013 SCC 14 at 33.
37 Order in Council 1871-0708.
38 Section 17 of the Constitution Act, 1867: “There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.”
39 Sessional Paper No 20 in Sessional Papers, 1st Parliament, 4th Session, Vol V.
40 Smyth, R., & Nielsen, I. (2019). The Citation Practices of the High Court of Australia, 1905–2015. Federal Law Review, 47(4), 655–695.
41 See Library of Parliament online: https://bdp.parl.ca/sites/PublicWebsite/default/en_CA/HistoricalInformation/TheScrapbookDebatesoftheParliamentofCanada_fr?
42 For detailed discussion see David Farr. (1992). “Reconstituting the Early Debates of the Parliament of Canada.” Canadian Parliamentary Review, 15(1), 26–32.
43 Ibid.
44 Hana K. Aach. “Impressions: Stories of the Nation’s Printer, Early Years to 1900”. Ottawa: Canadian Government Publishing Centre, Supply and Services Canada, 1990.
45 The English document title is the Journals of the House of Commons of the Dominion of Canada.
46 A reference before the Court may be an appeal of a provincial court reference, as is the case for the Reference re Genetic Non-Discrimination Act, which began as a reference in Quebec (In the matter of the: Reference of the Government of Quebec concerning the constitutionality of the Genetic Non-Discrimination Act enacted by Sections 1 to 7 of the Act to prohibit and prevent genetic discrimination, 2018 QCCA 219). Even still, this means the SCC has one judgment of a lower court before it and not two as it would typically in a matter that went through the traditional litigation process.
47 A notable example here is a provincial reference that Alberta’s government sent to its provincial Court of Appeal that asked it to apply facts to a proposed ways and means motion that was then before the House of Commons. Alberta Order in Council No. 1079/80.
48 He served as Minister of Immigration and Colonization, Minister of Mines, and Minister of the Interior and Superintendent-General of Indian Affairs from October 1935 to November 1936.
49 2016 SCC 29 at 124.
50 Carter v. Canada (Attorney General), 2012 BCSC 886 at 109.
51 “I do not mean by these comments to be in any way disrespectful of members of Parliament or of politicians generally. However, in my view, when one reads the Parliamentary Debates, one can discern the biases of the speaker, including biases dependent upon whether the speaker is a member of Government or of the Opposition. This, in my view, is doubtless one of the several reasons for judicial decisions which allow for the admissibility of such debates into evidence at trial, but caution as to the degree of weight to be given to such debates.” Manitoba Metis Federation Inc. et al. v. Attorney General of Canada et al., 2007 MBQB 293 at 22.
52 See Rafael Ball, “An Introduction to Bibliometrics: New Development and Trends” Chandos Publishing (2018) Chapters 1 and 2.