THE ATTORNEY-GENERAL OF CANADA v.
THE READER’S DIGEST ASSOCIATION (CANADA) LTD.,
SkLECTION DU READER’S DIGEST (CANADA) LTEE.
Mark Rosenstein*
The use of legislative history in statute interpretation has been the subject
of much controversy in both doctrine and jurisprudence.
In this recent deci-
sion,1 the Supreme Court held that evidence of the budget speech of the Minister
of Finance in the House of Commons is not admissible in determining the
intent of the legislature. It is submitted, however, that this judgment will
not be a bar to the admission of Parliamentary debates when introduced as
evidence of the circumstances surrounding the enactment of a statute.
The Reader’s Digest instituted proceedings attacking the validity of an
amendment to the Excise Tax Act which imposed a 20% tax on the value of
advertising material contained in special editions of non-Canadian periodicals.
It was contended that the statute was an attempt to enact, in the form of a
Federal taxing statute, legislation to regulate a kind of trade and commerce
which fell within the class of property and civil rights reserved exclusively
to provincial jurisdiction. The real object of the legislation, respondent
alleged, was to benefit one sector of the publishing industry in Canada at the
expense of another.
At the trial in the Quebec Superior Court, the respondent attempted to’
adduce evidence by the former Minister of Finance, the present Minister of
Finance, the Deputy Minister of National Revenue, the Clerk of the House of
Commons and a Press Gallery correspondent. Twenty-four questions were put
to these witnesses to show that the Minister of Finance had declared to Par-
liament the “true” object of the Government in promoting the impugned
legislation, and that the Government had given to the press, radio, and televi-
sion communication services a statement of the avowed objects of the legislation
which was published and broadcast throughout Canada. Counsel for respondent
conceded that such evidence would not ordinarily be proper but argued that
the well-known rule in that respect does not apply when the constitutional
validity of a statute is being attacked. The appellant objected to these questions
and the learned trial judge, then Associate Chief Justice Scott, maintained all
the objections.
*Of the Junior Board of Editors, McGill Law Journal; second year law student.
‘Not as yet reported.
No. 1]
CASE AND COMMENT
Appeals were entered in the Quebec Court of Queen’s Bench2 against all
twenty-four interlocutory judgments. A majority of three to two reversed the
Superior Court decision and held that extraneous evidence referring to the
budget speech in the House of Commons was admissible. The Court felt that
when the constitutional validity of a statute is involved, extraneous evidence
of this nature should be allowed by exception in order to ascertain the true
object or intent of the legislation.
When the case came before the Supreme Court, the sole issue was as it had
been in the court below; namely, whether or not to allow extrinsic evidence
with respect to a budget speech. All nine learned judges of the Supreme Court
chose to reverse the judgment of the Quebec Court of Appeal and to exclude
such extrinsic evidence. This impressive unanimity makes it strikingly clear
that Parliamentary debates are not to be used in determining the intent of the
legislature.
It is respectfully submitted, however, that despite this very
weighty judgment extrinsic evidence in general and Parliamentary debates in
particular may still be called upon in the future to play an important role in
statute interpretation.
The arguments both for and against the admissibility of Parliamentary
debates have been thoroughly discussed by a number of Canadian writers.’
Jurists on both sides seem to agree that the question relates more to weight
than to relevance. But the practical problem of determining the weight to be
accorded to any statement made in Parliament is formidable and would require
one to go outside the record, “an excursion from which everyone would
recoil”. 4
This case comment does not intend to discuss whether such extraneous
evidence should be admitted or not. It proposes merely to show that the
Reader’s Digest decision will not have the effect of completely excluding such
evidence.
Counsel for respondent put forth a logical argument based on a statement
of Lord Wright in Assam Railways and Trading Company, Limited v. Commissioners
of Inland Revenue5 :
… It is clear that the language of a Minister of the Crown in proposing in Parliament a
measure which eventually becomes law is inadmissible and the Report of Commissioners is
even more removed from value as evidence of intention, because it does not follow that their
recommendations were accepted.
It was contended that this implies that a Minister’s statement in introducing
a bill in Parliament would be more readily admitted than the report of a com-
missioner. But, respondent reasoned, since the Judicial Committee and the
2[1961] Q.B. 118.
3See Kilgour, D. C., “The Rule Against the Use of Legislative History: ‘Canon of Construction or
Counsel of Caution’?” (1952) 30 Can. Bar Rev. 769; Davis, K. C., “Legislative History and the
Wheat Board Case” (1953) 31 Can. Bar Rev. 1; Corry, J. A., “The Use of Legislative History in the
Interpretation of Statutes” (1954) 32 Can. Bar Rev. 624.
4Corry, J. A., Ibid., 636.
5[1935] A.C. 445, at 458.
McGILL LAW JOURNAL
[Vol. 8
Supreme Court from time to time in questions of constitutionality have ad-
mitted in evidence the reports of commissions, a fortiori a Minister’s statement
in introducing a bill is admissible in evidence in such cases.
In considering this argument, Cartwright J., with the concurrence of Locke
In Ladore v. Bennett,0
J., examined some jurisprudence cited by respondent.
when a Royal Commission report was tendered in evidence in the Canadian
courts, it was objected to and the objection was upheld, but before the Judicial
Committee the objection was withdrawn, and, by consent of both parties, the
report was allowed. On the other hand, in Home Oil Distributors Ltd. v. Attorney-
General of B.C.7 the trial judge overruled an objection to the admission of a
commission report and this ruling was upheld by a majority of the Court of
Appeal. When the case reached the Supreme Court, Kerwin J. (as he then was),
with whom Rinfret J. (as he then was) agreed, admitted the report “as being
a recital of what was present to the mind of the legislature … as to what was
the existing law, the evil to be abated and the suggested remedy”. 8 Cartwright
J. makes no comment about this remark but simply concludes that the general
rule in the jurisprudence is that a commission report, if objected to, should be
excluded. This conclusion destroys the basis of respondent’s argument which
relied on the admissibility by exception of such reports.
RitchieJ., with Martland J. concurring, agrees that the evidence in question
should be excluded but proceeds to add some very interesting observations of
his own. Referring to the passage from Lord Wright’s decision to the effect
that a commission report is of even less value as evidence of intention than a
Minister’s statement, Mr. Justice Ritchie states:’
… when Lord Wright goes on to say, “the Report of Commissioners is even more removed
..” (the italics are mine), he seems to me to be limiting his
from value as evidence of intention.
observations to direct evidence of intention.
This is very significant, for Mr. Justice Ritchie seems to interpret Lord Wright’s
decision in such a way as to distinguish between direct evidence of Parliament’s
intention and evidence of the surrounding circumstances with regard to which
Parliament has used the words in a statute. The learned judge supports this
interpretation of Lord Wright’s decision by showing that Lord Wright himself
adopted the very same interpretation with respect to a decision of Lord
Halsbury’ to admit a report. Mr. Justice Ritchie points out that Lord Wright
explained this as follows:”
6[1939] A.C. 468.
7[1940] S.C.R. 444.
“Ibid., at p. 447.
Supra, unreported.
-Eastman Photographic Materials Company, Limited P. Comptroller-General of Patents, Deuigns, and
Trade-Marks [1898] A.C. 571.
11[1935] A.C. 445, at 458.
No. 1]
CASE AND COMMENT
. .
. Lord Halsbury refers to the Report not directly to ascertain the intention of the words
used in the Act, but because, as he says, “no more accurate source of information as to what
was the evil or defect which the Act of Parliament now under construction was intended to
remedy could be imagined than the report of that commission.” Lord Halsbury., it is clear,
was treating the Report as extraneous matter to show what were the surrounding circumstances
with reference to which the words were used…1
…
Mr. Justice Ritchie concludes by stating that when commission reports have
been admitted by the Supreme Court and the Privy Council in cases involving
constitutionality of a statute, they have been referred to “otherwise than as
direct evidence of intention”. 3 This distinction of using a commission report
not as direct evidence of the intention of Parliament but rather as evidence of
the surrounding circumstances at the time the statute was enacted is also
found in Ladore v. Bennett where the Judicial Committee cited a report merely
as indicating the materials which the Government of the Province had before them
before promoting in the Legislature the statute now impugned. 14
It is reasonable to ask exactly what is the difference between using a report
as direct evidence of Parliament’s intention and using it as evidence of the
circumstances surrounding the enactment of the statute. The difference is
very subtle and seems to relate to the directness of the means adopted to arrive
at the ultimate end which is the same in either case–to ascertain what Parlia-
ment really intended. A commission report may not be admissible as direct
evidence of what Parliament intended because there is no proof that Parliament
followed the recommendations of the report. It may be admissible, however,
as evidence of the general environment influencing Parliament at the time the
statute was enacted, and thus would help the court to decide what meaning
Parliament wished the words to have. But the same problem arises once
again: what proof is there that the environment, as depicted by the report,
actually did exercise an influence on Parliament?
At any rate the rules of statute interpretation do permit a certain amount
of recourse to extrinsic aids in determining the true object of legislation. 16 One
type of extrinsic aid is evidence of surrounding circumstances. It is respectfully
submitted that a judge will admit commission reports and Parliamentary
debates when they enable him to reach a decision which he considers most
appropriate on the basis of the facts of the case before him.’6 In such a situation,
he will simply allow the debates or report as evidence of surrounding circum-
stances and will support this by saying that such evidence is indicative not of
intention but of the materials which were before Parliament at the time the
statute was enacted. Some may criticize such a distinction as lacking in sub-
stance, but it has been made in the Supreme Court and may conceivably be of
great utility under certain conditions.
“Italics added by Mr. Justice Ritchie.
“Supra, unreported.
14[1939] A.C. 468, at p. 477.
“Odgers, Sir Charles E., editor, Craies on Statute Law (1952), 5th edition, London, 118 et sey.
“See Willis’ comment on “mischief rule” of Heydon’s Case. Willis, J., “Statute Interpretation in 2
Nutshell” (1938) 16 Can. Bar Rev. 1, at p. 14.
McGILL LAW JOURNAL
[NVol. 8
That this is what happened in the Home Oil case appears from the present
decision of Kerwin, C.J. when he explains,17
… I, with the concurrence of RinfretJ., as he then was, took into consideration a report
of a Commission under the circumstances there existing, but only for the purpose of showing
what was present to the mind of Parliament.
The words “under the circumstances there existing” suggest that the admission
of the report assisted the learned judge to arrive at a conclusion which he felt
warranted on the facts of that case, while the words, “but only for the purpose
of showing what was present to the mind of Parliament” serve to justify the
admission of such evidence.
Parliamentary debates have also been admitted in this way. The most
striking instance of this occurred in Toronto Railway Co. v. The Pueen.18 In
that case, the learned judge explicitly rejected as inadmissible what was said
in the debates or by the Minister of Finance in the House of Commons, but
later in the same paragraph he reasoned as follows :”
…
In construing a statute relating to the revenue, one must, I think, have regard to the
general fiscal policy of the country at the time when the statute was enacted. That may be a
matter of common knowledge, or of history; and if of history, he who seeks to know the
truth must go to the sources of history, and they, so far as the fiscal policy of a country is
concerned, are to be found not only in Acts of Parliament but in the proceedings of Parliament
and in the debates and discussions that take place there and elsewhere.
Thus the learned judge referred to Parliamentary debates as evidence of cir-
cumstances surrounding the enactment of the statute in question. It is important
to note, however, that he regarded this as distinct from direct evidence of
intention, for he continued :20
.. But that is a different matter from construing a particular clause or provision of a statute
by reference to the intention of the mover or promoter of it, expressed while the Bill or the
resolution on which it is founded was before the House. The latter course is one which under
the rules governing the construction of English statutes one may not adopt.
The admission of this evidence enabled the judge to satisfy his sense of justice,
for it became clear that the taxation statute in question was intended not to
raise revenue but to provide a protective tariff.
The experience of the Supreme Court of the United States is very pertinent
in this respect. In the nineteenth century, that court also applied the English-
inspired rule against legislative history. But when in 1911 Congressional
debates were admitted, the Court explained as follows:
Although debates may not be used as a means for interpreting a statute …
that rule, in
the nature of things, is not violated by resorting to debates as a means of ascertaining the
environment at the time of the enactment of a particular law, that is, the history of the period
when it was adopted. 21
27[1961] S.C.R.
18[1895] Ex. C.R. 262.
191bid., at p. 270.
29Ibid.,
at p. 270.
21Standard Oil v. United States (1911) 221 U.S. 1, at p. 50.
No. 1]
CASE AND COMMENT
The Court still claimed to restrict its use of legislative history as late as 1935:
While the general rule precludes the use of these debates to explain the meaning of the
words of the statute, they may be considered as reflecting light upon its general purposes and
the evils which it sought to remedy. 22
In analyzing this remark, Davis goes so far as to say:
… This statement, of course, is inherently contradictory, for considering the debates to find
is using the debates to explain the meaning of the words of the
the “‘general purposes”
statute . . .23
The United States Supreme Court employed, to say the least, a very subtle
refinement in these two cases, and the passages cited above from the decisions
of Kerwin, C. J. and Ritchie, J. in the Reader’s Digest case appear to prepare the
way for such refinements being made in the future in the Supreme Court of
Canada..2
1
This case comment has not purported to discuss whether Parliamentary
debates should or should not be admitted in evidence. But an attempt has
been made to show that the Reader’s Digest case does not have the effect of
completely excluding Parliamentary debates as evidence. Thus, it is respect-
fully submitted that the Supreme Court has closed the door to the admission
of Parliamentary debates as direct evidence of intention but seems to have left
open another door to the introduction of evidence of circumstances surrounding
the enactment of a statute. In this way, extraneous materials including Parlia-
mentary debates, Royal Commission reports, and any facts present to the mind
of Parliament, may be admitted by a trial judge, subject, of course, to his
discretionary power of self-instruction as to the probative value of such evidence.
2Humprey’s Exerutor v. United States (1935) 295 U.S. 602, at p. 625.
-3Davis, K. C., op. cit., at p. 14.
2’Congressional debates are now used extensively by the United States Supreme Court in statute
interpretation. This has been justified on several grounds, e.g. unique nature of Congress’ committee
system. See Corry, J. A., op. cit., at p. 633 et sey. The purpose of referring to the experience of the
United States Supreme Court is to show how that court rationalized the admission of Congressional
debates while evolving its present legislative history rule.
