PARLIAMENTARY DEBATES AND STATUTORY INTERPRETATION

Abstract

Effective communication is context-dependent. Yet until recently the prevailing view was that courts could not use legislative debates to interpret a statute. This exclusionary or non-recourse rule diminished the competence of Canadian and British courts to construe statutes in accordance with the intent of the legislators. This article examines the frail roots of this purported rule and the undemocratic values that it espoused. Reasons for the longevity of the rule are discussed as are the reasons for its imminent demise. Once purposive construction superceded the literal or plain meaning rule, the non recourse rule became anomalous. This article contends that an 1849 statute of the former Province of Canada mandated purposive construction and that the exclusionary rule should have been rejected by our courts at that time or by 1880 when official verbatim reports of debates in the Canadian House of Commons began. The exclusionary rule survived but in recent years the Supreme Court of Canada has greatly eroded the rule in constitutional and to a lesser extent in criminal cases. The rejection of the exclusionary rule in Australia, New Zealand and now in Britain by the House of Lords in Pepper v. Hart, it is submitted will accelerate a definite erosion of the rule that was already well advanced in Canada. The article contends that there is an emerging convergence in the appropriate use of legislative history in statutory interpretation within the common law world which will also bring us closer to the approach of civil law jurisdictions.