20 Legislative Histories

Introduction

Completing a legislative history can have a variety of goals. Most commonly, you may wish to determine when was a particular change to a section of an act made, or when current language originated.

These questions about particular language and its origination is often in pursuit of determining legislative intent, usually for the purposes of statutory interpretation, by then going to look at the debates, reports, and other material produced at the time of the adoption of that language.

Other times, you may wish to trace the entire history of a particular act or section since its inception, to see how it evolved, and when each change to it was made (and perhaps, why).

The process of working through a legislative history can range from simple and easy (such as looking at a section of an Ontario act introduced last year) to the deeply complex (pre-Confederation Federal legislation, which may originate in England). Therefore, the goal of this section is not to create a researcher who is always able to complete even the most complicated, rule-breaking legislative histories. This is a research process which tends to involve an ever-evolving skill set, as more and more exceptions to the rules are discovered, and confidence is gained through completion of dozens if not hundreds of legislative histories. What we are going to address in this section is the shape of the basic process, and the availability about some useful tools. Of all the research tasks that we have and will discuss, this is probably the single task where getting help from a librarian is most likely to be a real time and frustration saver.

Starting the Process

Begin by determining

1. What the starting point is:
   1. Is the focus an act or regulation (understanding that debates for regulations are nearly non-existent)?
   2. Is the entire piece of legislation relevant, or can the research be focused on a particular section or sections?
   3. Is this a current piece of legislation that needs to be traced backwards, or an older piece of legislation that needs to be traced forwards?
2. What the end goal is:
   1. How something read at a certain point or points in time?
   2. When was something added/repealed/amended?
   3. Why something reads the way it does, or did?

Knowing where to start from, what direction to travel in, and what the end goal may look like is essential to a smooth, organized research process.

Going Backwards

At its most basic level, assuming we are tracing back one section of a current consolidation of an act to its inception, a legislative history involves following predecessor sections  back until there is nowhere further to go. This stopping point can be identified in different ways, depending on the jurisdiction and time period.

At certain points in the past, some legislative bodies helpfully included the notation New as a pseudo-predecessor section on new sections or clauses as they appeared in an amending or new act.

In the absence of this helpful notation, a bit more examination and creative research may be involved.

First, look for a) no predecessor section information on the section of interest and b) no repeal of an act or sections of an act that deals with similar material (usually found at the end of the act that contains the possible originating section).

Why is simply finding a section with no predecessor information insufficient? Sometimes, rather than making myriad piecemeal amendments to an existing piece of legislation, a jurisdiction will introduce a “new” version of the legislation, such as the Municipal Act, 2001, SO 2001, c 25. However, it is rare for these so-called new pieces of legislation to actually be wholly new/original. In the case of the Municipal Act, 2001, its long title even gives this away: An Act to revise the Municipal Act and to amend or repeal other Acts in relation to municipalities. Here, there are no predecessor section on any sections, but in section 484, the old Municipal Act, RSO 1990 c M.45 is repealed, and if we go look at that act, much of the language is substantially similar.

Often, language is recycled from the previous legislation that was repealed by the “new” legislation, although it may be re-arranged, re-ordered, or otherwise be somewhat different.

While this situation is not as common as the above, if you think you’ve tracing a section back as far as possible, but you’re in a revision, keep looking. In theory, a revision is nothing more than a massive housekeeping exercise, and therefore there should never be anything new in a revision, so it had to originate somewhere else. Talk to a librarian at this point.

As you go through this tracing procedure, if you trace a section back to before the current revisions (Federal: 1985, Ontario: 1990), expect the section number to change. As part of the revision process, acts are renumbered. Note this information as you go, for example with the previous example:

Once you’re back as far as you need to go, determine the bill number for your originating act. In both Ontario and Federal annual statutes volumes, the Table of Contents at the start of each annual volume (or in the annual statutes section of Justice Laws and E-laws) includes not just a list of the acts in the volume, but also their bill numbers, which is very helpful for legislative research.

Why is determining the bill number necessary, rather than just the chapter number of the act? It is as a bill that the legislation will make its way through the legislative process, and so that is how it will appear in the index of the Hansard. Simply knowing that it is “An Act to Amend the Criminal Code” from a particular year is insufficient, even where Hansard is indexed by bill name, as it is possible and sometimes probable that there may be two bills by that name in that year, and therefore it is essential to know that you are interested in the “An Act to Amend the Criminal Code” that is Bill C-55, not Bill C-101.

Also note the year that act was made, as you will have to map the year of the annual volume to the parliament and session, as that is how the debates are organized: One calendar year can be split over multiple parliaments and/or sessions, and one parliament/session can encompass multiple years. For example, Federal 40th Parliament, 2nd Session ran from January 26, 2009, to December 30, 2009, a rare example of congruence between parl/sess and year, while 2004 was split between the 38th parl, 1st Sess (October 4, 2004, to November 29, 2005) and the 37th Parl, 3rd Sess (February 2, 2004, to May 23, 2004). Lest we expect parl/sess to be in the one to two year size, also consider the 42nd Parl, 1st Sess, which spanned almost four years, from December 3, 2015, to September 11, 2019, and resulted in over 100 government bills.

Knowing not only the year, but also the parliament and session is essential, as every session starts with a new Bill 1. For example, if we only know we are interested in Bill C-4 from 2004, that leaves us wondering if we are looking at “An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence” (37th parl, 3rd sess) or “An Act to implement the Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment” (38th parl, 1st sess).

At this point, where we have a bill number, a year, and a parliament and session, we have enough information for the next step in a simple legislative history: We will be able to trace the bill that created what we are interested in through the legislative process, and find the relevant discussion around it, by reading Hansard around it. If any of this information isn’t findable, or the process becomes more complex, come talk to a librarian.

Tables of Disposition or Disposal of Acts

When we talk about legislative histories, the focus tends to be on tracing backwards, and indeed, that is the most common task. However, it is also possible to need to answer the question “what happened to this old act/regulation/section thereof?” It is usually easy enough to determine if the exact language in the relevant material is still around, via searching, but if it is not, and we need to know when it was repealed/amended out of existence, tools and techniques do exist to assist us with this process (although it can tend to be a bit less smooth than a regular, “backwards” legislative history).

Known by a number of names over the years and jurisdictions(Table of Disposition in the RSO 1990, a schedule “SHOWING ACTS AND PARTS OF ACTS REPEALED, SUPERSEDED AND CONSOLIDATED IN THE REVISED STATUTES OF ONTARIO, 1980” in the RSO 1980, Table of the History and Disposal of Acts in the RSC 1985), this table lists acts as they were cited before the revision (ie as made, or from an older revision), and then points the reader, section by section, to where this legislation now can be found.

This is a tool that lets a researcher answer the question “what happened to section X of the RSO 1960, c 123?” Was it repealed, did it get revised into the RSO 1970 (with a probable section number change), is it actually possibly still around, if slightly (or extensively!) amended?