Michael Plaxton has written an insightful, informative piece on the Supreme Court of Canada’s recent decision in R. v. Safarzadeh‑Markhali. I have decided to write a crabby, unfocused one, in the spirit of an old codger shouting at squirrels from his porch. I recommend Plaxton’s post for its thoughtful commentary on the possible salutary effects of the Court’s recent judgment.
For my purpose here, I borrow from his description of the holding and logic:
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On April 15, the Supreme Court of Canada struck down provisions of the Truth in Sentencing Act that limited the ability of sentencing judges to award “enhanced credit” for pretrial time spent in jail. It did not do so on the basis that the provisions would lead to sentences that amount to cruel and unusual punishment under s. 12 of the Charter. Rather, the Court struck them down because they were “overbroad.” In light of the professed objectives that Parliament was pursuing when it enacted the legislation, it needlessly restricted the liberty of some offenders.
According to the reasoning used in the Court’s judgment, then, Parliament remains free to bar sentencing judges from awarding enhanced credit. But it can only do so for the “right” reasons.
Reasons matter. The idea that legislation can be unconstitutionally overbroad hangs on the premise that, if Parliament crafts a measure that puts the “life, liberty, or security of the person” at risk, it must do so for reasons that can be logically justified. The fact that it would be theoretically possible for someone to dream up a defensible rationale for the measure is not good enough; if Parliament’s rationale was inadequate, then the challenged provision will fall.
The Court’s definition of the purpose underlying the provision at issue in Safarzadeh-Markhali came almost entirely from the statements of a single — albeit relatively important — member of Parliament, the then minister of justice. As Plaxton points out, this analysis was largely dispositive of the case, as the Court found the law unconstitutional on the basis that it would capture more individuals than that (narrowly defined) purpose would suggest. (Notably, the minister did in fact articulate broader purposes that would have made the Court’s holding more difficult to maintain, however the Court did not find these purposes to be the real purposes (see paras 37-41)).
By proceeding in this manner, the Court was ostensibly not rejecting Parliament’s objectives as unconstitutional in and of themselves, but merely identifying a flaw in the implementation of Parliament’s own objectives, sort of like when my tech-support guy informs me that smashing my head on the keyboard will not actually fix my computer.
Judicial hostility to the use of legislative statements in the context of interpreting statutes has long standing in our common law tradition. To some extent, it stems from the fundamental notion that legislators do not bind us by their motivations, objectives or intentions, as such; they bind us by laws, which must be ascertainable to all, including those of us not privy to the inner thought process of legislators. Justice Antonin Scalia once put the point starkly (did he ever put a point otherwise?), arguing that a “legal system that determines the meaning of laws on the basis of what was meant rather than what was said” would be “tyrannical”; legislators “may intend what they will; but it is only the laws that they enact that bind us.” On the other hand, courts will, and always have, purported to rely on the legislature’s purposes or intentions. For instance, the “modern principle” of statutory interpretation describes the task this way: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (see, e.g., Rizzo & Rizzo’s Shoes at para 21, and every case since). However, this tends to be a sort of fictional or constructed legislative intention, rather than any actual objectives of legislators (or a critical mass thereof), as Lord Reid once explained:
We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.
Historically, legislative statements have been considered a particularly unreliable basis for identifying legislative purposes or intentions of this sort. Even leaving aside any natural propensity for politicians to indulge in “bulls**t,” to use Plaxton’s technical terminology, there are many reasons to be skeptical of the use of legislative statements as indicative of a legislative intention.
For instance, legislators may agree on a law, while having fundamentally different objectives or beliefs as to what the law will or should achieve. Or they may say they are trying to achieve one purpose, when actually they are seeking to achieve another. Some legislators may have nothing at all in their head at all other than “I would like to be in cabinet some day, and therefore, yea.” Their votes count all the same.
The use of legislative history can be all the more tenuous (or tendentious) when reliance is placed upon statements of a single or small number of parliamentarians. One can typically find support for most any legislative purpose or intention by trawling the legislative record, which has led some to describe the use of such materials as “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” (I should note in passing that it is hard to accuse the Court of this kind of “cherry-picking” in Safarzadeh-Markhali, or at least not in the most objectionable sense — they did not cite just any parliamentarian, but the statements of the minister responsible for the legislation in question, and to their credit, included statements that tended to contradict the purpose at which they eventually arrived.)
Indeed, so hostile have common law courts been to the potentially distracting and unavailing nature of legislative statements that, for a long time, they were deemed inadmissible for the purposes of interpretation. These concerns are helpfully explained in a case called BC Motor Vehicle Reference:
48. InReference re Upper Churchill Water Rights Reversion Act, supra, McIntyre J. wrote at p. 319;
… I would say that the speeches and public declarations by prominent figures in the public and political life of Newfoundland on this question should not be received as evidence. They represent, no doubt, the considered views of the speakers at the time they were made, but cannot be said to be expressions of the intent of the Legislative Assembly.
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49. Professor J. E. Magnet has written in “The Presumption of Constitutionality” (1980), 18Osgoode Hall L.J. 87, at pp. 99‑100:
In the administrative law cases, the issue of intent concerns the intent of a specific person. In the constitutional cases, the issue of intent concerns the legislature, an incorporeal body made up of hundreds of persons. It may be said that such a body, like a corporation, is a legal fiction and has no intention in the relevant sense. It would follow that legislative intent, in the constitutional setting, is a hollow concept.
Largely in consideration of this argument, Canadian courts have developed the rule that, in scrutinizing legislative intent for the purpose of determining constitutional validity, statements by members of the legislature during passage of the challenged Act are irrelevant and inadmissible. Several explanations of the rule have been put forward. Strayer has argued that the rule is sound because legislative motive is irrelevant to constitutional validity: “The essential factual issue here is that of effect….” More convincingly, it has been argued that, considering the way in which the Canadian process of enactment differs from that of the United States, “Hansard gives no convincing proof of what the government intended….” Moreover, by allowing ambiguities in the statute to be resolved by statements in the legislature, ministers would be given power in effect to legislate indirectly by making such statements. “Cabinets already have powers enough without having this added unto them.
50. If speeches and declarations by prominent figures are inherently unreliable … and “speeches made in the legislature at the time of enactment of the measure are inadmissible as having little evidential weight” …, the Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight. The inherent unreliability of such statements and speeches is not altered by the mere fact that they pertain to the Charter rather than a statute.
In that case, the Court found that it should not give much weight at all to the legislative statements of certain senior civil servants, “however distinguished,” in the course of determining the meaning of the disputed term. Doing so would “be assuming a fact which is nearly impossible of proof, i.e., the intention of the legislative bodies which adopted the Charter.”
One could cite countless cases for similar statements, but I have of course chosen BC Motor Vehicles Reference advisedly. The “disputed term” in that case was “principles of fundamental justice,” and the Court found that these principles go beyond familiar natural justice concerns (i.e., procedural guarantees to a fair hearing, an impartial arbiter, and the like), to include substantive principles, for instance, “overbreadth,” upon which the Court hung its hat in Safarzadeh-Markhali.
As Peter Hogg has explained, the very question as to whether section 7 included substantive principles had been the subject of considerable testimony leading up to the enactment of the Charter, and “the witnesses, who included those responsible for drafting s. 7, all agreed that fundamental justice was procedural only.” As has been often narrated, the holding in BC Motor Vehicle Reference is therefore directly contrary to all available evidence as to the purposes or intentions of the lawmakers, at least as revealed in legislative statements of the drafters. Indeed, these statements reveal that the phrase “principles of fundamental justice” was deliberately chosen to avoid exactly that result (see, e.g., this piece by Grant Huscroft, at pp. 15-16).
So, if my math is right, the Court in BC Motor Vehicle Reference interpreted section 7 to contain what has turned out to be an enormously powerful substantive guarantee, contrary to the apparent intentions and purpose of the statements of its drafters, which it has most recently found to have been violated on the basis of a legislative purpose as evidenced primarily by some of the words spoken by a single parliamentarian.
I do not meant to make too much out of this seeming inconsistency, which may be more apparent than real. As Léonid Sirota and I have recently explained in the context of discussing “originalist” constitutional reasoning in Canada (see here at pp. 35-39), legislative purposes or intentions can be based on a range of different sources, and it is not easy to draw any hard and fast rules, even within a specific context. Even if we could agree upon what those purposes or intentions are in any given case, we might disagree on how they should be used; purposes or intentions can be helpful in some contexts and rather unhelpful in others, and there is no consensus on which uses fall into which category. I have written about one dimension of this issue here, while Plaxton and Mathen have looked at another in this piece (which was cited by the Supreme Court another recent and controversial decision, the Supreme Court Act Reference.) Suffice to say that the use of legislative “purposes” or “intentions” in the course of an interpretive analysis is not exactly a science; it’s barely even an art.
But Safarzadeh-Markhali helpfully highlights a fact that has been forever clear: the way the Court ascertains legislative intentions or purposes is of critical importance. Even if we limit ourselves to the interpretation of normal statutes, notions of legislative purpose or intention can be decisive in any range of cases, from ho-hum statutory interpretation cases, to administrative law decisions, to federalism cases (see especially the interesting discussion in cases like Morgentaler (1993)), to cases involving section 7, to the analysis under section 1, where the Court seeks to determine whether a Charter violation is nevertheless demonstrably justified in a free and democratic society. So it matters considerably how the Court goes about that task.
The more the Court seeks to rely on the statements of certain legislators, and indeed, only certain statements of those certain legislators, for these and other purposes, the more it will have to carefully grapple with the concerns it raised in the BC Motor Vehicle Reference.
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