Thursday, April 21, 2016

History of Hansard: non-historians actually read that thing?

There's a little essay at Policy Options musing on how the Supreme Court of Canada reads Hansard and uses what it finds there to determine the constitutionality of laws.

The court, it seems, struck down a law limiting judges' ability to give prisoners "enhanced credit" for time served pre-trial. It found the law limited individuals' rights without having sufficient grounds for doing so.  And it determined that by reading what Justice Minister Rob Nicholson had said about the grounds for the bill, when he was speaking in support of it in the Commons
What is interesting is that the Court does not treat these remarks as vacuous bafflegab. It proceeds on the basis that, when Nicholson said that limiting the availability of enhanced credit was intended to further public safety and confidence in the administration of justice, he meant it. Having identified the objective on this basis, the Court was then able to find that, in many cases, depriving individuals of access to enhanced credit would not advance public safety or confidence at all. The implicit message is that empty catch-phrases may help a government move its legislation through Parliament, but may also render that legislation more vulnerable to constitutional challenge if life, liberty, or security of the person are in play.
Is this a bit weird, for the court to read Nicholson as if he were Parliament speaking? It is not treating Nicholson's words as bafflegab, true, but it is taking them as if they alone determine what the law means -- which is worse. Mackenzie King's old saw, Parliament will decide, should still have some meaning. What Parliament decides is contained in the text of the law it finally passes, not what one or other politician said in the midst of the argument over the passage of the law.  Surely courts should interpret the constitutionality of laws, not of what someone once said about them before they became laws.

The author, Michael Plaxton, dodges the question of whether it can be appropriate for courts to "cherrypick," that is, to go behind laws to consider what some people may have said in debating the laws. But he does end with what seems like a sensible suggestion:
The Court was inclined to look to Hansard when divining the legislative objective because there were no other signals to be found in the text or context of the statute. This also sends a strong message to governments – namely, that it may be prudent to state their objectives (in “succinct and precise” terms) in the preamble of legislation, and thereby take a degree of control over the way in which Charter litigation unfolds later on.

Update, April 22:  Thanks to tweeters and retweeters who sent this far and wide along networks of legal scholars.  Some of it provoked by the click-baity headline, I fear. Of course Hansard is widely read by political observers and scholars of many kinds.
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