This article documents the increased use of long and
substantive preambles in federal legislation from 1985 to
2000. Only nine statutes had such preambles in the first
five years of this study, while in the last five years, twenty-
nine statutes did. Preambles were most frequently included
in legislation arising from intergovernmental agreements,
symbolic legislation, ideologically charged amendments of
criminal and environmental laws, and legislation enacted in
reply to court decisions.
Plato suggested that preambles should persuade citi-
zens to obey important laws by speaking to their hearts and
minds through both reason and poetry. The author contends
that this ideal is not met by contemporary preambles.
Though preambles are often included in important legisla-
tion, they rarely speak directly to citizens as they do not use
popular language or a persuasive voice.
Various political uses of preambles are examined and
the author concludes that contemporary preambles often
seek to establish legitimacy by providing a narrative of the
origins and purposes of the legislation. The professional
uses of preambles are also examined, particularly the role
of preambles in statutory and constitutional interpretation
and in dialogues between the legislature and courts. The
author concludes that while preambles have frequently
oversold legislation and have been excluded from working
versions of the law, they should still be included in impor-
tant laws to better outline the purposes and processes which
led to the enactment of the legislation and better communi-
cate with the multiple audiences of modem legislation.
Cet article documente l’emploi croissant de pr6am-
bules longs et substantiels dans la 16gislation fdddrale de
1985
2000. Dans les cinq premieres an6es de cette
dtude, seuls neufs statuts avaient de tels prdambules, alors
qu’au cours des cinq demiares anndes le nombre de statuts
passa ii vingt-neuf. Les prdambules 6taient fr6quemment
inclus dans la Idgislation provenant d’accords intergouver-
nementaux, dans la 16gislation symbolique, dans les amen-
dements de lois iddologiquement chargds tel que les lois de
droit pdnal et environnemental et dans la 16gislation adop-
t6e en r6ponse A des ddcisionsjurisprudentielles.
Platon suggdrait que les pr6ambules devaient persua-
der les citoyens d’obdir aux lois importantes en s’adressant
a leur coeur et leur esprit par la po6sie et la raison. L’auteur
conclut que les prambules contempomins ne satisfont pas
cet id6al. Bien que les prdambules soient inclus dans la Id-
gislation importante, rares sont ceux qui s’adressent direc-
tement aux citoyens car ils n’utilisent pas un langage cou-
rant ou une voix persuasive.
Aprds avoir examin6 divers emplois politiques des
prdambules, l’auteur conclut que les prdambules contempo-
rains recherchent souvent A 6tablir la 1dgitimit6 en prdsen-
tant une narration des origines et des objectifs de la I6gisla-
tion. Les emplois professionnels des prdambules sont 6ga-
lement 6tudi6s en portant une attention particulidre an rle
des prdambules dans l’interpr6tation ldgislative et constitu-
tionnelle ainsi que dans les dialogues entre le Idgislatif et
les cours. Mme si les pr6ambules ont souvent mis en avant
la 16gislation et ont did excIus des versions de travail des
lois, l’auteur conclut qu’ils devraient n6anmoins Etre inclus
dans les lois importantes afin de mieux d6terminer les ob-
jectifs et les proc~d6s ayant men6 A l’adoption de la 16gis-
lation ainsi que mieux communiquer avec les nombreux
auditoires de la I6gislation modeme.
. Professor of Law, University of Toronto. I thank the Law Commission of Canada for supporting
the research and writing of this paper.
McGill Law Journal 2001
Revue de droit de McGill 2001
To be cited as: (2001) 47 McGill LJ. 129
Mode de r6f&ence : (2001) 47 R.D. McGill 129
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
I. Patterns in the Use of Preambles in Recent Federal Legislation
I1. The Platonic Ideal: Preambles Persuade Citizens
I1l. Can Preambles Persuade Citizens Today?
IV. Political Uses of Preambles
A. Narrative Uses
B. Aspirational Uses
V. Professional Uses of Preambles
A. Preambles and Statutory Interpretation
B. Preambles and Constitutional Interpretation
K. ROACH – USES AND AUDIENCES OF PREAMBLES
An interesting new trend in federal legislation is the increased use of long and
substantive preambles. Writing in 1991, Pierre-Andr6 C6t6 remarked in his text on
statutory interpretation that “[tioday preambles rarely precede the provisions of a
public statute.” The next year, however, Parliament included a long preamble to its
comprehensive amendments of the law of sexual assault in response to the Supreme
Court of Canada’s decision in R. v. Seaboyer By 1994, Ruth Sullivan commented
that “[a]lthough for a time preambles were out of fashion, particularly at the federal
level, in recent years they appear to have enjoyed a revival'” Since then, Parliament
has continued to add preambles to federal legislation not only when it enacted legisla-
tive replies to the Supreme Court’s decisions in R. v. Daviault,4 R. v. O’Connor,’ R. v.
Feeney,’ and the Reference re Secession of Quebec,” but also in other amendments to
the Criminal Code,8 some federal statutes involving Aboriginal land claims,” environ-
Schabas (Cowansville, Qc.: Yvon Blais, 1991) at 53.
‘ P.-A. C6td, The Interpretation of Legislation in Canada, 2d ed., trans. K. Lippel, J. Philpot & W.
2 [1991] 2 S.C.R. 577, 83 D.L.R. (4th) 193 [hereinafter Seaboyer]. The legislative reply came inAn
Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38 [hereinafter Sexual Assault
Amendments].
3R. Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at
259.
4 [ 1994] 3 S.C.R. 63, 118 D.L.R. (4th) 469 [hereinafter Daviault]. Parliament replied with An Act to
amend the Criminal Code (self-induced intoxication), S.C. 1995, c. 32 [hereinafter Self-Induced In-
toxication Amendments].
‘ [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235 [hereinafter O’Connor]. Parliament replied with An Act
to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, c. 30
[hereinafter Production of Records Amendments].
6 [1997] 2 S.C.R. 13, 146 D.L.R. (4th) 609 [hereinafter Feeney]. Parliament replied with An Act to
amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), S.C.
1997, c. 39 [hereinafter Powers to Arrest Amendments].
7 [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 [hereinafter Secession Reference]. Parliament replied
with An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court
of Canada in the Quebec Secession Reference, S.C. 2000, c. 26 [hereinafter Clarity Act].
8 R.S.C. 1985, c. C-46. Amendments include: An Act to amend the Criminal Code (child prostitu-
tion, child sex tourism, criminal harassment and female genital mutilation), S.C. 1997, c. 16 [herein-
after FGM Amendrments]; An Act to amend the Criminal Code (criminal organizations) and to amend
other Acts in consequence, S.C. 1997, c. 23 [hereinafter Criminal Organizations Amendments]; An
Act to amend the Criminal Code (victims of crime), S.C. 1999, c. 25 [hereinafter Victims of Crime
Amendments]; An Act to amend the Criminal Code (impaired driving and related matters), S.C. 1999,
c. 32 [hereinafter Impaired Driving Amendments].
” Gwich’in Land Claim Settlement Act, S.C. 1992, c. 53; Saskatchewan Treaty Land Entitlement
Act, S.C. 1993, c. 11; NunavutLand Claims Agreement Act, S.C. 1993, c. 29; Sahtu Dene and Metis
Land Claim Settlement Act, S.C. 1994, c. 27; Yukon First Nations Land Claims Settlement Act, S.C.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
mental legislation,'” and legislation to honour certain events.” Even the legislation cre-
ating the Law Commission of Canada has its own preamble setting out Parliament’s
expectations for that body. For most legislation, however, substantive preambles are
not used, raising the question of why preambles are included in some laws and not in
others. In other words, what are the intended purposes of preambles and who are their
intended audiences?
A study of preambles may provide insight towards building a general theory of
legislation and in particular the fundamental issues of the purposes and audiences of
legislation. In the pursuit of multiple purposes, legislation speaks to multiple audi-
ences. The most idealistic purpose of legislation is to provide guidance to citizens
about their rights and duties. Since the discussion of the role of preambles in Plato’s
The Laws,’3 it has been recognized that preambles have the potential to do a better job
of communicating with citizens than the actual text of statutes. Preambles attempt to
explain and persuade before the text of the law commands.
The Platonic ideal of preambles, however, raises the larger question of the role of
politics in our modem age. Many no longer have faith in a politics that speaks to all
citizens and convinces them of the value, rationality, and importance of the laws.
Politics is more complex in modem multicultural societies than in the Athenian state.
Preambles can be a response to interest group politics that speak to only a subset of
the citizenry. Even when they speak more broadly, the poetic preambles of Plato may
have degenerated into a form of political advertising for statutes that promise much
more than they deliver. Preambles can make extravagant claims about what legislation
achieves or hopes to achieve that are not supported by the text of the law. The appeal
to the heart of the evocative narratives, aspirations, and symbols used in preambles
may also lead to legislation that is unreasonable and unbalanced in its passion. The
form of the preamble could shape the substance of the legislation and not always for
the better.
At the same time, the Platonic ideal of preambles can perhaps be reclaimed and
reshaped for the modem age. By including narratives about why laws have been en-
acted, preambles have the potential to educate the citizenry and policy-makers. They
1994, c. 34; Mackenzie Valley Resource Management Act, S.C. 1998, c. 25; First Nations Land Man-
agement Act, S.C. 1999, c. 24; Nisga’a Final Agreement Act, S.C. 2000, c. 7 [hereinafter Nisga’a
Agreement].
‘0 Canadian Environmental Protection Act, S.C. 1988, c. 22; Canadian Environmental Assessment
Act, S.C. 1992, c. 37; Alternative Fuels Act, S.C. 1995, c. 20; Oceans Act, S.C. 1996, c. 31; Canadian
Environmental Protection Act, 1999, S.C. 1999, c. 33 [hereinafter CEPA 1999].
” Workers Mourning Day Act, S.C. 1991, c. 15; National Day of Remembrance Act, S.C. 1991, c.
36; Child Day Act, S.C. 1993, c. 18.
‘2 Law Commission of Canada Act, S.C. 1996, c. 9.
‘3 Plato, The Laws of Plato, trans. T.L. Pangle (New York: Basic Books, 1980).
K ROACH – USES AND AUDIENCES OF PREAMBLES
can provide some of the narrative detail and storytelling often missing from legisla-
tion. They can also be used as a device of deliberative democracy as they can convey
some of the deliberations and accommodations that preceded the enactment of the
legislation. A preamble can thus signal the sometimes contradictory directions that
legislators have been pulled in before they have settled on the text of the law.” More
pluralism in the form of legislation may be necessary to better reflect the pluralism of
the society being governed.
Although there is a risk that a preamble will oversell the legislation, preambles
may also have a role in stating high aspirations, moral teachings, or “meta-legal mes-
that could not be realistically reduced to and enforced through the operative
sages”
text of the law in a society that is liberal and free.’6 Preambles may provide a means
for legislators to offer a somewhat more Romantic understanding of legislation, one
that is “less general, less canonical, less instrumentally prescriptive, more intuitive,
more aspirational, more narrative.”‘” Preambles may once again, as Plato imagined,
allow legislators to appeal to the heart as well as the mind and to persuade, explain,
and inspire as well as command. I will explore these optimistic possibilities for pre-
ambles, but also express some reservations about excessive romanticism in the move
towards preambles.
In addition to political and expressive purposes, preambles also serve professional
purposes by speaking to those who administer the law. Yet, it is unclear how impor-
tant preambles will be in the subsequent statutory or constitutional interpretation of
legislation. Judges may be skeptical about preambles that are not supported by the
law’s actual provisions. They may also conclude that in terms of the Canadian Char-
ter of Rights and Freedoms,8 preambles speak only to the importance of Parliament’s
objective, something accepted in the vast majority of cases, and not to the proportion-
ality of its means. Cynicism about the instrumental and professional value of pream-
bles is only promoted by the fact that preambles are excluded from many working
versions of the law, including the commercial criminal codes that sit on the desks of
” L.B. Tremblay, “La justification de la 16gislation comme jugement pratique” (2001) 47 McGill
” R. Sullivan, “Some Implications of Plain Language Drafting” (January 2000) [unpublished], es-
pecially Part 2, “The Meta-Legal Messages of R.S.C. 1985”.
16 As Nicholas Kasirer has observed, lawyers have not associated legislation “with the gentle art of
teaching” N. Kasirer, “Honour Bound” (2001) 47 McGill L.J. 237 at 252. The idea that all law must
be enforceable has “tended to limit the ambitions of legislatures which are shy to enact law which is
perceived to be neither duty nor sanction bound” (ibiL at 246).
” To paraphrase the new kind of statute suggested by R.A. Macdonald in “The Fridge-Door Stat-
ute” (2001) 47 McGill L.J. 11.
‘ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
lawyers across the country. A conclusion that preambles are often a form of sym-
bolic politics that are ignored by the professionals who administer the law would not
mean that preambles are unimportant, but it would complicate our understanding of
the multiple purposes and audiences of legislation.
This paper will first document the use of preambles in recent federal legislation
and attempt to assess the conditions under which preambles are likely to be used. A
sense of when Parliament uses preambles and when it does not is crucial to under-
standing the purposes and audiences of preambles. Second, I will examine the discus-
sion of preambles in Plato’s The Laws-in which it is suggested that poetic and at
times theoretical preambles can play an important role in persuading citizens to obey
some of the most important laws. Third, I will examine the text of some recent pre-
ambles to assess whether they follow the Platonic ideal of speaking to citizens. If pre-
ambles do not always attempt to persuade citizens, this raises the question of what
other political purposes they may serve. Fourth, I will examine and assess some of the
other political purposes served by preambles, including their use to demonstrate re-
spect for other nations and to provide symbolic gratification for interest groups. This
section will also explore the ways that the Platonic ideal of preambles might be up-
dated to move from an ancient age of poetry and a homogenous, engaged citizenry to
a modem age of advertising and a multicultural, disengaged citizenry. Preambles are
not only about politics, so in the final section I will examine some of their profes-
sional purposes with particular attention to preambles to Criminal Code amend-
ments.’ I will focus on what guidance preambles may give to those who interpret the
legislation and assess its constitutional validity. In the end, I hope that this study of pre-
ambles serves to illuminate some of the multiple purposes and audiences of legislation.
I. Patterns in the Use of Preambles in Recent Federal Legislation
For this study, I examined the statutes of Canada from 1985 to 2000 and pulled
those with preambles of any significant length. I then excluded pro forma or routine
‘9 The omission of preambles from commercially produced criminal codes is strange given the fo-
cus on “adding value” by providing not only copious case annotations but also synopses of the legis-
lation. Thus the Criminal Code now tries to explain the text of the legislation in simpler terms while
omitting the preamble. The implicit judgment, one that I do not share, is that the preambles are of no
relevance to the working professional or student of law. See e.g. E. Greenspan & M. Rosenberg, eds.,
Martin’s Annual Criminal Code 2002 (Aurora, Ont.: Canada Law Book, 2001); D. Watt & M. Fuerst,
eds., Tremeear’s Criminal Code (Toronto: Carswell, 2001). For an inclusion of preambles in teaching
materials, see M.L. Friedland & K. Roach, Cases and Materials on Criminal Law and Procedure, 8th
ed. (Toronto: Emond Montgomery, 1997) at 628, 727-28.
‘ Supra notes 2, 4, 5, 6, 8.
K. ROACH – USES AND AUDIENCES OF PREAMBLES
2001]
preambles that accompany acts to allow the government to spend more money ‘ as
well as preambles from statutes that were essentially private acts on the rationale that
such preambles did not involve public policy.’ What remained were the laws that
contained preambles that articulated their purposes and policies. The number of such
public policy preambles varied considerably in the years studied. For some years no
such preambles were found while as many as eight were found in one year. The fol-
lowing list indicates the number of public policy preambles found in a review of the
federal statute book from 1985-2000:
* Grassy Narrows and Islington Indian Bands Mercury Pollution Claims
SettlementAct, S.C. 1986, c. 23.
” Sechelt Indian Band Self-Government Act, S.C. 1986, c. 27.
1987(2)
* Canada-Ne wfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3.
” Revised Statutes of Canada, 1985 Act, R.S.C. 1985 (3d. Supp.), c. 40.
* Canadian Environmental Protection Act, S.C. 1988, c. 22.
* Canadian Multiculturalism Act, R.S.C. 1985 (4th Supp.), c. 24.
* Emergencies Act, S.C. 1988, c. 29.
* Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31.
* Canada-United States Free Trade Agreement Implementation Act, S.C.
* Canadian Race Relations Foundation Act, S.C. 1991, c. 8.
”
* National Day of Remembrance Act, S.C. 1991, c. 36.
brkersMoumingDayAct, S.C. 1991,c. 15.
21 See e.g. Appropriation Act No. 5, 1989-90, S.C. 1990, c. 11; Appropriation Act No. 1, 1990-91,
S.C. 1990, c. 12; Appropriation Act No. 2, 1990-91, S.C. 1990, c. 13.
‘ For example, legislation to amalgamate the Salvation Army, East with the Salvation Army, West
contained an eight paragraph preamble that simply explained the need for such legislation and was
excluded from my data set as not being a substantive public policy preamble. See Salvation Army Act,
1990, S.C. 1990, c. 49.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
o National Public Service Week: Serving Canadians Better Act, S.C. 1992, c.
o Canadian Environmental Assessment Act, S.C. 1992, c. 37.
o An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38.
o Gwich’in Land Claim SettlementAct, S.C. 1992, c. 53.
o Saskatchewan Treaty Land Entitlement Act, S.C. 1993, c. 11.
o Child Day Act, S.C. 1993, c. 18.
o Nunavut Land Claims Agreement Act, S.C. 1993, c. 29.
o North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44.
Income TaxAmendments Revision Act, S.C. 1994, c. 7.
o
o Sahtu Dene and Metis Land Claim Settlement Act, S.C. 1994, c. 27.
o Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34.
o World Trade Organization Agreement Implementation Act, S.C. 1994, c. 47.
o Alternative Fuels Act, S.C. 1995, c. 20.
o An Act to amend the Criminal Code (self-induced intoxication), S.C. 1995,
o Law Commission of Canada Act, S.C. 1996, c. 9.
o An Act to amend the Canadian Human Rights Act, S.C. 1996, c. 14.
o Agreement on Internal Trade Implementation Act, S.C. 1996, c. 17.
o An Act to amend the Judges Act and to make consequential amendments to
another Act, S.C. 1996, c. 30.
o Oceans Act, S.C. 1996, c. 31.
o Canada-Israel Free Trade Agreement Implementation Act, S.C. 1996, c. 33.
o National Organ Donor WeekAct, S.C. 1997, c. 4.
o Canadian Food Inspection Agency Act, S.C. 1997, c. 6.
o Nuclear Safety and Control Act, S.C. 1997, c. 9.
o Canada-Chile Free Trade Agreement Implementation Act, S.C. 1997, c. 14.
o An Act to amend the Criminal Code (child prostitution, child sex tourism,
criminal harassment and female genital mutilation), S.C. 1997, c. 16.
o An Act to amend the Criminal Code (criminal organizations) and to amend
otherActs in consequence, S.C. 1997, c. 23.
o An Act to amend the Criminal Code (production of records in sexual of-
fence proceedings), S.C. 1997, c. 30.
o An Act to amend the Criminal Code and the Interpretation Act (powers to
arrest and enter dwellings), S.C. 1997, c. 39.
K. ROACH – USES AND AUDIENCES OF PREAMBLES
* Canada Cooperatives Act, S.C. 1998, c. 1.
” Canada-Yukon Oil and GasAccordlmplementationAct, S.C. 1998, c. 5.
” An Act to amend the Canada Evidence Act, Criminal Code and Canadian
Human Rights Act, S.C. 1998, c. 9.
” Mackenzie Valley Resource ManagementAct, S.C. 1998, c. 25.
” Parks Canada Agency Act, S.C. 1998, c. 31.
* Preclearance Act, S.C. 1999, c. 20.
” First Nations Land ManagementAct, S.C. 1999, c. 24.
* An Act to amend the Criminal Code (victims of crime), S.C. 1999, c. 25.
” An Act to amend the Criminal Code (impaired driving and related matters),
” Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33.
2000 (5)
* Canadian Institutes of Health Research Act, S.C. 2000, c. 6.
” Nisga’a Final Agreement Act, S.C. 2000, c. 7.
” An Act to give effect to the requirement for clarity as set out in the opinion
of the Supreme Court of Canada in the Quebec Secession Reference, S.C.
2000, c. 26.
* Canadian Tourism Commission Act, S.C. 2000, c. 28.
* Canada Health Care, Early Childhood Development and Other Social
Services Funding Act, S.C. 2000, c. 35.
A number of patterns can be discerned from the above data. One is simply the in-
creasing use of preambles. In the first six years of the study (1985-1990) there were
only nine public policy preambles. In the next five years (1991-1995) there were sev-
enteen preambles, and in the final five years (1996-2000) there were twenty-nine pre-
ambles. Why has Parliament made increasing use of preambles through the 1990s?
One factor may simply be that the use of preambles created precedents that built on
themselves. Once the first preamble to Criminal Code amendments was used in 1992,
preambles became something of a status symbol for major amendments of the Crimi-
nal Code. Once departments and ministries saw their colleagues using preambles, this
created a demand for more preambles. There is some evidence that interest groups
may have demanded that their often high aspirations for law reform be reflected in
preambles.’
A second trend is the increased use of preambles with respect to Criminal Code
to controversial Supreme
in amendments responding
‘ S. McIntyre, “Redefining Reformism: The Consultations That Shaped Bill C-49″ in J.V Roberts
& R.M. Mohr, eds., Confronting Sexual Assault: A Decade of Legal and Social Change (Toronto:
University of Toronto Press, 1994) 293 at 306.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
Court decisions or on high visibility subjects such as crime victims, child prostitution,
or impaired driving. The first Criminal Code preamble came in 1992 as Parliament
responded to the Court’s decision in Seaboyer.” A second came in 1995 as Parliament
responded to the Court’s decision in Daviault.’ In 1997 four different Criminal Code
amendments contained preambles”6 and in 1999 two such amendments contained pre-
ambles.” During this period, the criminal law was the site of much ideological conflict
and change as the traditional liberal concern with the rights of the accused often ar-
ticulated by the courts was confronted by a greater concern with the rights of victims
and groups such as women and children. Preambles may be a product of both this
ideological conflict and the frequent use of legislation to reply to the Court’s Charter
decisions. Similarly, the use of preambles in environmental legislation may reflect
ideological conflict within the law, high levels of interest group engagement, frequent
litigation, and frequent law reform.’
A third pattern is the use of preambles in overtly symbolic legislation that de-
clares either a day or week of celebration to recognize some group such as public ser-
vants29 or a day of mourning to recognize a tragedy such as the massacre at the Ecole
Polytechnique.’ It is not surprising that preambles would be used for such overtly
symbolic legislation as they can be written in evocative language.
A fourth pattern is the use of preambles in “foundational” legislation that relates
to fundamental characteristics of the country. Thus the Canadian Multiculturalism
Act,” the Official Languages Act,32 the Emergencies Act,” the Canada-United States
Free Trade Agreement Implementation Act,’ the Agreement on Internal Trade Imple-
mentation Act,” the Clarity Act,”6 and various acts involving Aboriginal peoples” were
all accompanied by preambles. Again, if preambles are seen as an appeal to the heart as
well as the mind, one would expect them to be used in such foundational legislation.
2 4 Supra note 2.
Supra note 4.
26 FGM Amendments, supra note 8; Criminal Organizations Amendments, supra note 8; Production
of Records Amendments, supra note 5; Powers to Arrest Amendments, supra note 6.
27 Victims of Crime Amendments, supra note 8; Impaired Driving Amendments, supra note 8.
Supra note 10.
29 National Public Service Week: Serving Canadians Better Act, S.C. 1992, c. 15 [hereinafter Public
Servants Act].
National Day of Remembrance Act, supra note 11.
R.S.C. 1985 (4th Supp.), c. 31 [hereinafter Multiculturalism Act].
32S.C. 1988, c. 31.
33 S.C. 1988, c. 29.
34S.C. 1988, c. 65 [hereinafter PTA].
3 Supra note 7.
37Supra note 9.
K. ROACH – USES AND AUDIENCES OF PREAMBLES
A final pattern is the use of preambles with respect to legislation based on inter-
governmental agreements, whether these be agreements between the federal govern-
ment and Aboriginal bands or communities, agreements between the federal and pro-
vincial governments, or international agreements (such as various trade agreements).
It may be that with respect to intergovernmental agreements there is a particular need
to establish a narrative of the interaction that led to the legislation as well as the aspi-
rations that each government has for the legislation. Much international law is accom-
panied by lengthy preambles detailing the various aspirations of the parties and the
narrative that led to agreement among the parties about the content of the law.”3
Preambles have been used more frequently but not indiscriminately by Parlia-
ment. They are found in high-profile legislation that relates to fundamental or contro-
versial issues of public policy including criminal and environmental law, as well as in
foundational legislation governing bilingualism, multiculturalism, and national emer-
gencies. Preambles are also used for overtly symbolic legislation and legislation used
to implement various forms of intergovernmental agreements. Although no central
decision was made to add preambles to federal legislation, the increased use of pre-
ambles and the consistency of their use with respect to limited categories of legisla-
tion is quite striking.
II. The Platonic Ideal: Preambles Persuade Citizens
The idea that some laws should be accompanied by a prelude dates back to
Plato’s The Laws in which an old Athenian discusses his views about good politics.
The focus of The Laws is on providing advice to lawmakers that is both philosophic
and practical. The old Athenian suggests that the wise lawmaker will use preambles
because “[h]e doesn’t give orders until he has in some sense persuaded.’3” If the actual
law was a “tyrannical command”, the preamble or prelude to the law was included in
order to persuade so that “he who receives the law uttered by the legislator might re-
ceive the command-that is, the law-in a frame of mind more favorably disposed
and therefore more apt to learn something “‘ Preambles are akin to “warming-up ex-
ercises-which artfully attempt to promote what is to come “‘4’ They are supposed to
be more lyrical and poetic than the body of laws and as such appeal to the heart as
well as the mind.
‘ See e.g. International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S.
171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976, accession by Canada 19
May 1976); Universal Declaration of Hwnan Rights, GA Res. 217(m), UN GAOR, 3d. Sess., Supp.
No. 13, UN Doe. A/810 (1948).
Supra note 13 at 720d.
Ibid. at 723a-723b.
4 1 bid at 722d.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
The Laws provides a few examples of what a Platonic preamble would look like.
For example, a law against robbing temples would provide the prohibition and the
penalty, but the preamble would explain the evil of the offence and the steps that a
person who was tempted to commit the offence could take to avoid its commission.
To achieve its end, the preamble could be poetic and even melodramatic. The old
Athenian suggests that the preamble should tell a potential temple robber to seek the
company of good men, but if the temptation to rob the temple still prevailed to “look
to death as something nobler, and depart from life.”” A preamble to a law prohibiting
older people from assaulting others might warn that an offender would “be spoken of
as boorish, illiberal, and slavish” 3 to engage in violence. A successful preamble
would persuade people not to break the laws, but also to hate themselves for having
wanted to break them.”
The Laws does not suggest that all laws should have a preamble or that they
should all be in the same form. Only the most important or sacred laws such as those
against temple robbing should contain preambles. Controversial laws should also be
accompanied by a preamble because citizens will be most in need of persuasion to
agree to abide by such laws. The best preamble may resemble the dialogues them-
selves in their probing rationality, but the lawgiver may also resort to the more popular
forms of poetry and even theological orations in an attempt to persuade citizens to
obey the law.” The over-the-top instruction that a person would be better off commit-
ting suicide than robbing temples suggests that even Platonic preambles could de-
scend into less high-minded forms of communication. It also pulls out all the rhetori-
cal stops by overestimating the harm that may result from the crime. The preamble
against assault appeals to the potential offender’s sense of rationality and self-image
in dissuading the use of violence. Platonic preambles rely not only on reason to per-
suade the citizen to obey the law, but also on the arts of poetry, metaphor, symbols,
and evocative narratives. In short, they speak to the heart as well as the mind.
III. Can Preambles Persuade Citizens Today?
Does Platonic learning about preambles have any relevance today? In one sense,
it does not. The old Athenian was able to construct preambles that appealed to a
common heritage among the privileged citizens of Athens. Preambles today cannot
42 Ibid. at 854c.
41 Ibid. at 880a.
” Ibid. at 445-49 (interpretative essay). As Professor Pangle writes, the Athenian makes clear that
“the true legislator must be a poet-or, in biblical language, a prophet-who not only creates a way
of life but who leaves behind a comprehensive justification of that life, viewed in the context of the
whole of human existence” (ibid. at 490).
K. ROACH – USES AND AUDIENCES OF PREAMBLES
appeal to such a common memory or even a common love for poetry. At the same
time, however, it may be possible to revive the Platonic ideal of having preambles ex-
plain to citizens the reasons why important, controversial, or symbolic laws have been
enacted. It may also be possible for preambles to persuade citizens to obey laws and
respect the aspirations behind the law. Although a return to poetry may be difficult,
preambles today could also be written in a form that is both more accessible and more
popular than the text of the law.
How do the preambles recently enacted in federal legislation hold up to the Pla-
tonic ideal of persuading citizens that they should understand, respect, and obey the
law? At first glance, these preambles relate well to the Platonic idea because they have
generally been used in important or symbolic pieces of legislation that should be rele-
vant to citizens.’ Parliament is not wasting preambles on trivial or technical pieces of
legislation that do not address important matters of concern to the citizens. Plato
would be pleased.
Actual examination of the preambles, however, suggests that they often do not
live up to the Platonic promise of communicating with citizens in an effective or in-
spiring manner. One feature of the Platonic preamble was its use of popular lan-
guage-which at the time was poetry. The preambles in recent federal legislation are
generally not poetic nor can they claim to be couched in popular or accessible lan-
guage. They often contain clumsy words such as “whereas” and make references to
technical provisions that would not be of significance to most citizens. Preambles also
are sometimes directed at governments and from the perspective of a citizen may
seem like insider backslapping or self-congratulation. ‘7 The length of preambles-of-
ten six paragraphs or more-may also lessen their accessibility and contribute to the
appearance that they generally do not speak directly to the citizens.
With some minor alterations, some preambles could speak more directly to citi-
zens. The Multiculturalism Act, for example, states that “the Government of Canada
recognizes the diversity of Canadians as regards race, national or ethnic origin, colour
and religion as a fundamental characteristic of Canadian society.’ This can be seen as
an appeal to citizens to embrace tolerance and diversity as part of what it means to be
Canadian. It is not quite “Joe’ in the Molson’s ad telling us what it means to be Cana-
dian, but it is moving in that direction. Unfortunately, this phrase is buried in the
eighth paragraph of the preamble and prefaced not with a plea to citizens, but the
” Thus preambles have been used with respect to important Criminal Code amendments, inter-
governmental treaties, international trade agreements, bilingualism and multiculturalism, and envi-
ronmental protection.
47 Supra notes 34, 35.
4S Supra note 31.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
standard clause “[a]nd whereas the Government of Canada recognizes.” 9 Clearly the
aspirations in this preamble could be more directly stated.
Some preambles already speak directly to citizens. The preamble to the National
Organ Donor Week Act provides: “And whereas it is desirable to encourage all Cana-
dians to pledge to organ donation .. ‘, Similarly, the CEPA 1999 declares that “the
protection of the environment is essential to the well-being of Canadians and that the
primary purpose of this Act is to contribute to sustainable development through pol-
lution prevention.'” Recent legislation relating to health research commences with a
preamble indicating that Parliament recognizes “that Canadians value health as central
to happiness and fulfilment, and aspire to be among the healthiest people in the
world” and that “investment in health and the health care system is part of the Cana-
dian vision of being a caring society.”‘ The legislation to give effect to the Nisga’a
Agreement starts with a praiseworthy preamble reminding the many citizens who op-
posed the agreement that “the reconciliation between the prior presence of aboriginal
peoples and the assertion of sovereignty by the Crown is of significant social and eco-
nomic importance to Canadians.”” To the extent that Parliament wants to use pream-
bles to educate the citizenry about the values and purposes of the law and attempt to
persuade them to respect and share the aspirations of the law, these sorts of preambles
stand out.
A paragraph in the preamble to Criminal Code amendments prohibiting female
genital mutilation directly contemplates education of the citizens by stating that Par-
liament “believes that a clear statement that the criminal law of Canada applies to the
practice of female genital mutilation will facilitate ongoing educational efforts in this
area.” ‘ Even this preamble, however, does not attempt directly to persuade a person
who may believe such practices to be acceptable not to engage in them. A Platonic
approach to such a preamble might attempt to speak directly to a person by persuad-
ing that person that female genital mutilation is not acceptable and-dare I say-un-
Canadian. One difficulty with this Platonic use of a preamble is the assumption that
citizens share common values and backgrounds. At the same time, preambles could
be used as a means to attempt to foster common values among an increasingly diverse
citizenry. The ideas in preambles, like the idea of rights, could be stated at the level of
49 Ibid.
“S.C. 1997, c. 4.
Supra note 10.
‘” Canadian Institutes of Health and Research Act, S.C. 2000, c. 6.
” Supra note 9. The next paragraph of the preamble proclaims that “reconciliation is best achieved
through negotiation and agreement, rather than through litigation or conflict.” The force of this im-
portant aspiration is somewhat diluted by the fact that it is not stated directly, but prefaced by the
phrase “Whereas Canadian courts have stated …”
‘ FGM Amendments, supra note 8.
K ROACH – USES AND AUDIENCES OF PREAMBLES
generality and aspiration so that they could be embraced more easily by a diverse citi-
zenry.” This might help forge consensus at an abstract level, but the consensus could
dissolve once the legislation was applied at a more concrete level.
With a few exceptions discussed above, most preambles in recent federal legisla-
tion seem to go out of their way not to address citizens. Thus a 1995 act to accelerate
the use of alternative fuels for motor vehicles does not urge citizens to take steps to
switch to greener technologies or reduce their use of cars, but rather states: “Whereas
the federal government is a major user of [internal combustion] engines; and whereas
government can lead the conversion to less harmful fuels by progressively replacing
its motor vehicles with others using alternative fuels .26 The self-reference to gov-
ernment may reflect the particular limitations of this piece of legislation, but it is also
found in other preambles. The Sexual Assault Amendments-which included the
much publicized “no means no” provisions defining consent for the purposes of sex-
ual assault–contains a six paragraph preamble indicating Parliament’s concerns
about sexual assault, various rights, and the likely effect of the law, but nowhere fea-
tures the educational and evocative phrase “no means no”, which is also not contained
in the text of the legislation. ‘ The failure to include “no means no” in the preamble
suggests a lost opportunity to convey the educational message behind this important
reform of the criminal law which should speak to male citizens. Some might deride
“no means no” as being more of an advertising slogan than a phrase worthy of being
incorporated in legislation. There is some truth to this, but in my view that does not
undercut the educational value of this phrase, as men need to understand that no really
does mean no. Parliamentarians used the phrase repeatedly during the legislative de-
bates yet it appears nowhere in the preamble or the text of the law. There is no reason
that the preamble could not have featured this phrase.
My conclusion-that preambles rarely make an effort to speak directly to citizens
and educate them-suggests something of a lost opportunity. At the same time, more
thought needs to be given to the type of language that will speak to citizens, the impli-
cations of a diverse citizenry, and the dangers, as well as the advantages, of preambles
becoming advertising slogans to sell legislation to citizens. These are issues that must
be confronted, but they do not lead to the conclusion that preambles should be aban-
” For an argument that rights could hold together an increasingly diverse citizenry that has little else
in common, see M. Ignatieff, The Rights Revolution (Toronto: Anansi, 2000). For a communitarian
argument that rights are too thin to hold a citizenry together, see M.A. Glendon, Rights Talk: The Im-
poverishment of Political Discourse (New York: Free Press, 1991).
SAlternative Fuels Act, supra note 10.
Supra note 2. The text, however, does honour the “no means no” message by indicating that no
consent is obtained where “the complainant, having consented to engage in sexual activity, expresses,
by words or conduct, a lack of agreement to continue to engage in the activity” (Criminal Code, supra
note 8 at s. 273.1(2)(e)).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
doned. The abandonment of preambles would only increase pessimism about citizens’
engagement with either politics or the laws.
IV. Political Uses of Preambles
Although existing preambles could be improved so as to speak to citizens more
directly and effectively, the process of crafting preambles in a diverse modem society
will clearly be more difficult than in Plato’s time. In this section, I will explore the
potential and pitfalls of using preambles to reflect the deliberations that led to legisla-
tion and to reflect the aspirations of legislation.
A. Narrative Uses
Preambles can provide a narrative about why particular legislation has been en-
acted and can even be used to reflect the process of deliberation that preceded the en-
actment of the legislation. This narrative and radically contextual use of preambles
could mark something of a return to the past-some thirteenth-century English stat-
utes featured narrative texts.”8 The move away from narrative and deliberation in mod-
em legislation may have reflected not only a quest for efficiency, but a positivistic
confidence that all that was required for obedience was command as opposed to per-
suasion. The subject of the legislation (who might not even have had the vote) could
be ordered around without persuasion. The move back to narrative in postmodem
legislation may suggest less confidence about governing a more diverse citizenry. In a
globalized and multicultural society, the legislator may once again be trying to per-
suade a subject who does not feel particularly obliged to obey. Preambles can allow
the legislature to explain the processes of deliberation, consultation, and accommoda-
tion that led to the enactment of legislation. Preambles that explain the consultation
process that has preceded the enactment of the legislation are an implicit concession
that in today’s society the legitimacy of legislation does not follow automatically from
three readings and promulgation. Thus, preambles can indicate some of the complex-
ity and dynamism of modem governance.
The effectiveness of preambles when they reflect the deliberations and consulta-
tions that have preceded the enactment of legislation will be tied up more generally in
the effectiveness of deliberative politics. Governmental departments often feel that
they create legitimacy by consulting “stakeholders” before they introduce legislation.”8
” D. Manderson, “Statuta v. Acts: Interpretation, Music, and Early English Legislation” (1995) 7
Yale J. L. & Human. 317 at 357; Macdonald, supra note 16 at 15, n. 9.
” Consultation as an inclusive process can be seen as good in itself regardless of its particular out-
come. On the other hand, consultations are sometimes viewed with suspicion. They can be seen as a
charade to the extent that those consulted may not have real power in shaping the legislation. They
K. ROACH- USES AND AUDIENCES OF PREAMBLES
If this is the case, a preamble that even briefly describes these efforts will make the
legislation more worthy of respect. Consultations with the provinces, the defence bar,
and women’s and victims’ groups routinely precede the enactment of criminal legisla-
tion. At various times, all of these stakeholders express concerns that they have no
real power in the process; at other times, all of these stakeholders express concern that
the government has been captured by some other stakeholder group. My point is only
that the effectiveness of using preambles to reflect the consultations that preceded the
enactment of legislation may vary depending on particular perceptions of the fairness
and outcome of the particular consultation process.
Narratives are a particularly effective means of describing the consultation proc-
ess and the events that precipitated legislation. Preambles are frequently used in leg-
islation that implements intergovernmental agreements. In these cases, the preambles
often refer to the process of treaty-making that led to the enactment of the legislation,
whether the agreement be an international trade agreement, an intergovernmental
agreement, or a treaty with Aboriginal groups. A description of the processes of con-
sultation can add legitimacy to the legislation and affirm to the relevant parties the im-
portant role that they played in the legislation. This in turn may give them a sense of
ownership and participation in the legislative process that might not otherwise be pre-
sent. The narrative preamble may also be an attempt to claim and create legitimacy
among a skeptical citizenry. It indicates that the legislation did not come out of the
blue but was a product of much deliberation both in government and in civil society.
If, however, the public feels it should have been included in intergovernmental con-
sultations, the preamble may do little to enhance respect for the law.
Narrative preambles can also explain the events that led to the enactment of leg-
islation. The first three paragraphs of the preamble to the 1997 anti-gang law explain
the political genesis of the law as a response to a well-publicized act of violence by
biker gangs:
Whereas the use of violence by organized criminal gangs has resulted in
death or injury to several persons, including innocent bystanders, and in serious
damage to property;
Whereas Canadians who have witnessed the extent and the indiscriminate
nature of that violence demand that means be taken to bring that violence and
destruction to an end;
Whereas the Parliament of Canada acknowledges the calls from those re-
sponsible for the administration of criminal justice to provide better means to
deal with gang-related violence and crime…’
can also be seen as a sign of government’s capture by powerful interest groups to the extent that the
government appears to be listening to some groups more than others.
0′ Criminal Organizations Amendments, supra note 8.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
This preamble documents the political background-what many criminologists would
call the moral panic-that led to the enactment of the law. On the one hand, this pro-
vides a valuable sense of context. The law did not descend out of the blue; it was en-
acted in response to a specific and horrific event. On the other hand, there are dangers
in legislating by narratives. One is that the attention to a horrific crime will make it
easier to go overboard and ignore more universal concerns such as the presumption of
innocence, the need to use the criminal law with restraint, and the existing laws that
already provide many tools to respond to the crime. Another danger is that relating
legislation to a particular narrative will oversell the legislation. The implicit promise
in the 1997 anti-gang law seems to be that a law enhancing penalties for gang crimes
will prevent more terrible deaths of innocent bystanders in wars between biker gangs.
Parliament has been inconsistent in its use of narrative preambles. Though it used
a narrative preamble to accompany the 1997 anti-gang amendments, new legislation
passed by the House of Commons in 2001 shortly after the gang-related shooting of
investigative journalist Michel Auger did not contain any preamble. There was thus
no narrative of the near murder of Mr. Auger even though this tragic event played an
important role in the formulation of the legislation and may explain some of its over-
reaching.” The Anti-terrorism Act contains a preamble proclaiming terrorism to be a
threat to Canada’s peace and security, but does not contain any mention of the Sep-
tember 11, 2001 terrorist attacks on the United States.’2 Sometimes narratives are so
overpowering that they need not even be stated.
Narratives can be so evocative that they can be overpowering. To say December 6,
1989 to a Canadian or November 22, 1963 to an American or September 11, 2001 to
almost any person will not only evoke horrible and painful collective memories, but
may also make many too willing to take drastic measures in the hope of preventing
the recurrence of a perhaps atypical tragedy. The increasing use of preambles and ti-
tles in legislation designed to recognize and memorialize the past suggests that law-
makers are increasingly comfortable with the idea that legislation to guide future be-
” An Act to amend the Criminal Code (organized crime and law enforcement) and to make conse-
quential amendments to other Acts, S.C. 2001, c. 32. The legislation arguably overreacts to the
shooting of Mr. Auger by making it a crime punishable by up to fourteen years to use or threaten to
use violence, destroy the property, or repeatedly follow, watch, or communicate with a journalist in
order to impede his or her reporting on a criminal organization. For an account of the political genesis
of the 1997 and 2001 organized crime amendments that is critical of the expediency of expanding the
criminal law in response to horrific and atypical crimes, see D. Stuart, “Politically Expedient but Po-
tentially Unjust Legislation Against Gangs” (1997) 2 Can. Crim. L. Rev. 207; D. Stuart, “Tune to Re-
codify Criminal Law and Rise Above Law and Order Expediency” (2001) 28 Man. L.J. 89.
62 S.C. 2001, c. 41. On the various connections between Bill C-36 and the horrible crimes of Sep-
tember 11, 2001, with arguments by many commentators that the bill, as originally introduced, was an
overreaction, see generally R.J. Daniels, P. Macklem & K. Roach, eds., The Security of Freedom: Es-
says on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001).
K. ROACH- USES AND AUDIENCES OF PREAMBLES
haviour can be a justified response to a specific prior event. This use of narrative is
politically powerful, but carries the danger of creating a dissonance between the text
of the law and the grand claim of memorializing a tragedy and preventing it in the
future. Criminal legislation named after a crime victim or with a preamble that in-
vokes an awful crime raises concerns about, on the one hand, exploiting the past and,
on the other hand, sacrificing basic principles of criminal justice. The narrative form
of legislation can influence its substance and for that reason should be used with care
and restraint.
The use of narrative is less dangerous and more appropriate in overtly symbolic
legislation that is simply designed to recognize the past by declaring times of recog-
nition or mourning. Such legislation generally makes no claim to prevent recurrence
of the past–only to remember it. When such legislation does look to the future, it is
through the expression of aspirations and not coercive laws. Some of the preambles to
overtly symbolic legislation seem designed to achieve something akin to restorative
justice or reparations for the past. For example, the preamble to the act establishing
the Canadian Race Relations Foundation provides that “in concluding the Japanese
Canadian Redress Agreement with the National Association of Japanese Canadians,
the Government of Canada has condemned the excesses of the past, [and] reaffirmed
the principles of justice and equality for all in Canada’ 3 The preamble to an act es-
tablishing a day of mourning for those killed on the job looks to the past, but also in-
dicates a hope for the future by stating that “Canadians seek earnestly to set an exam-
ple of their commitment to the issue of health and safety in the workplace ” ‘ Simi-
larly, legislation providing for a national day of remembrance and action on violence
against women looks to both the past—“whereas on December 6, 1989, fourteen
women died as a result of a massacre at the University of Montreal”–and to the fu-
ture–“the Canadian people wish to reflect on the event in the hope of preventing
further violence against women” The statute does not, however, create new offences
or increase punishment for existing crimes.’ Preambles can be important vehicles for
the expressive purposes of legislation. The value of expressive concerns as an instru-
ment of governance should not be underestimated. At the same time, however, the ex-
pressive task of the legislation may oversell its ability to achieve the instrumental
tasks that we usually associate with legislation.
When using preambles for expressive purposes, governments should be cautious
not to waste moral and symbolic capital. Thus a preamble providing “the people of
6 Canadian Race Relations Foundation Act, S.C. 1991, c. 8.
64Workers Mourning Day Act, supra note 11.
National Day of Remembrance Act, supra note 11.
‘6New offences-including mandatory minimum penalties of four years imprisonment-were,
however, created in the Firearms Act, S.C. 1995, c. 39, s. 149, which was enacted in part in response
to the Montreal massacre but without a narrative preamble.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
Canada recognize the value of the services rendered by federal public service em-
ployees”‘7 in an act providing for a public service week rings hollow compared to the
above uses of preambles to honour those who have died or suffered discrimination.
Similarly the frequent use of preambles to explain the history of specially constituted
organizations and corporations also falls short of the expressive and symbolic mean-
ing of legislation that honours national tragedies. More study of overtly symbolic
legislation will provide an interesting window on the multiple purposes of legislation.
B. Aspirational Uses
In addition to reflecting the narratives and deliberation that led to legislation, pre-
ambles are also often used to articulate the aspirations of legislation. The expression
of aspiration in a preamble can be defended as an extension of the purposive approach
to the interpretation of legislation and a candid recognition of the values and assump-
tions that led to the creation of the legislation.’ It can also be defended as a means for
legislatures to reflect the diversity of conflicting values often at stake in legislation.’
These are the optimistic accounts of the aspirational ambitions of preambles. The pes-
simistic ones see the expression of aspiration as a means of overselling the legislation
that will quickly generate disappointment and cynicism or as an attempt to achieve a
consensus at such a high level of abstraction that it will quickly break down when
anyone tries to apply the legislation.
The preambles to international trade legislation frequently include a laundry list
of hopes and aspirations for the future effects of the agreement. For example, the pre-
amble to the Canada-United States Free Trade Agreement indicates a desire “to
strengthen the unique and enduring friendship” between the two countries, as well as
the promotion of “productivity, employment, financial stability and the improvement
of living standards.””0 The preamble to this legislation is closer to a slick advertising
campaign than a serious attempt to outline the purposes of the legislation in a way that
reflects deliberation or that can assist those who must interpret the law. The preamble
to the act to implement free trade between Canada and Chile indicates a desire both to
“strengthen Canada’s national identity” and to “contribute to hemispheric integra-
tion.”‘ It also indicates a desire “to enhance the competitiveness of … firms in global
markets” and to “protect, enhance and enforce basic workers’ rights.”2 This last
phrase indicates another feature of preambles-the subtle truncation of goals by the
67 Public Servants Act, supra note 29.
Sullivan, supra note 15.
+ Tremblay, supra note 14.
70 Supra note 34.
” Canada-Chile Free Trade Agreement Implementation Act, S.C. 1997, c. 14.
72 Ibid.
K. ROACH – USES AND AUDIENCES OF PREAMBLES
insertion of qualifiers like the word “basic”. Similarly, the Official Languages Act
qualifies its commitment to achieving “full participation of English-speaking Canadi-
ans and French-speaking Canadians in its institutions” with the phrase “with due re-
gard to the principle of selection of personnel according to merit.’ Preambles can
express but also qualify a commitment to competing policies.
Preambles are used to provide a symbolic concession to values that are not really
advanced by the legislation and thus provide an attempt to assuage those who may be
concerned about the act. The Official Languages Act provides the following throw-
away phrase in its preamble: “[T]he Government of Canada recognizes the impor-
tance of preserving and enhancing the use of languages other than English and French
while strengthening the status and use of the official languages.”‘7 This paragraph in
fact combines the technique of recognizing competing policies and qualifying the
pursuit of one policy with another. The preamble to the Multiculturalism Act provides
recognition both of English and French as official languages and of Aboriginal rights
even though the idea of “founding nations” is not advanced in the act which focuses
on the subsequent cultures and languages that have been added to the Canadian mo-
saic. The symbolic nature of preambles means that they are often concerned with the
politics of recognition and preventing offence to groups that might feel insulted if they
were not mentioned.’6 The optimist would defend this use of preambles as an attempt
to respect differences among the population even when one group’s interests are not
really being addressed in the legislation. The pessimist would argue that acknow-
ledgement of a group in a preamble that is not supported in the text of legislation is a
recipe for disappointment and cynicism.
The objectives of modem legislation can be multiple and conflicting, and pream-
bles frequently recognize goals that are in some tension with each other. For example,
preambles in various Criminal Code amendments concerning sexual assault indicate a
desire by Parliament to respect both the rights of the accused and the rights of women
and children who are victimized by sexual violence. One preamble provided that “the
Parliament of Canada intends to promote and help to ensure the full protection of the
rights guaranteed by the Canadian Charter of Rights and Freedoms for all, including
those who are accused of, and those who are or may be victims of, sexual violence or
abuse:'” Many would argue that in difficult cases, there is a conflict between the com-
7″Supra note 32.
74Ibid.
7 Supra note 31.
76 Preambles reflect the new “language of shame, pride, dignity, insult, inclusion or exclusion, hu-
miliation or recognition” that Alan Cairns sees in recent constitutional politics. A.C. Cairns, Disrup-
tions: Constitutional Struggles, from the Charter to Meech Lake, ed. by D.E. Williams (Toronto:
McClelland & Stewart, 1991) at 174.
“Production of Records Amendments, supra note 5.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
peting rights of the accused to full answer and defence and of the complainant to pri-
vacy and equality. The “we can have it all” approach of the preamble has, however,
been followed by the Supreme Court in a subsequent case upholding the constitution-
ality of the legislation. In R. v. Mills,’8 the Court stressed that it would allow judges to
define rights relationally and the issue was not whether limitation on one of the com-
peting rights was justified. At the same time, however, there are parts of the judgment
that seem to hint that the rights identified by Parliament may in some cases conflict
and that the rights of the accused should prevail.” The preamble to the Anti-terrorism
Act similarly embraces a “we can have it all” approach by indicating that Parliament
recognizes terrorism “is a matter of national concern that affects the security of the
nation” and will take “comprehensive measures to protect Canadians against terrorist
activity while continuing to respect and promote the values reflected in, and the rights
and freedoms guaranteed by, the Canadian Charter of Rights of Freedoms.”‘ By pro-
claiming their commitment to conflicting values, these preambles obscure the trade-
off between respect for the rights of the accused and the equality and other rights of
potential victims of crime.
Criminal Code amendments that proclaim Parliament’s desire to reduce violence
against women and children are a good example of both the strengths and weaknesses
of using preambles to express aspirations for the law. By articulating Parliament’s
concern about violence against women and children, these preambles can inform the
subsequent application of the legislation. They also serve as a recognition of a prob-
lem and affirm the belonging of women and children as full citizens who should be
protected from crime. Aspirational preambles can respond to the concerns of various
groups who may, with legitimacy, believe they have been treated poorly by the law in
the past. Preambles can be a valuable form of recognition and may even help create
social capital and a sense of belonging.
At the same time preambles can oversell legislation. By definition, preambles will
be better in securing expressive as opposed to instrumental purposes because they do
not impose rights and duties. The instrumental claims made in various preambles to
Criminal Code amendments designed to respond to violence against women and chil-
78 [1999] 3 S.C.R. 668, 180 D.L.R. (4th) 1 [hereinafter Mills].
79 Ibid. at paras. 22, 118, 132.
” Supra note 62. For arguments that anti-terrorism laws should be seen as a means to promote the
human rights of potential victims of such crimes, see I. Cofler, “Towards a Counter-Terrorism Law
and Policy” (1998) 10:2 Terrorism & Pol. Violence 1. Professor Cotder has more recently argued that
while Bill C-36 “may be said to be inspired by, and anchored in, the principle of human security-
both domestic and international-and while the Bill was subjected to a rigorous Charter scrutiny, this
does not obviate civil libertarian concerns …” I. Cofler, “Thinking Outside the Box: Foundational
Principles for a Counter-Terrorism Law and Policy” in Daniels, Macklem & Roach, supra note 62,
111 at 121.
K. ROACH- USES AND AUDIENCES OF PREAMBLES
dren are dubious and border on being false promises. Given the low level of reporting
of violence against women and children, it is doubtful that amendments relating to the
trial process will significantly reduce such violence. Even the suggestion that the an-
swer to violence lies in criminal justice reform may direct attention away from other
factors that contribute to violence.
Preambles that indicate Parliament’s “grave concern” about crimes such as child
prostitution, impaired driving, crimes by criminal organizations, and terrorism can be
a vehicle for the criminalization of politics that occurs when amendments to the
criminal law are offered as the primary response to the larger social, economic, and
cultural determinants of crime.’ Preambles often seem designed to show that Parlia-
ment is concerned about and responding to a specific type of crime. Closer examina-
tion of the text, however, might create doubts about the ability of the law to curb the
mischief identified in the preamble. Thus a preamble to recent amendments relating to
impaired driving provides that Parliament “is committed to ensuring that the provi-
sions of the Criminal Code respecting impaired driving have a sufficient deterrent ef-
fect on potential offenders “‘ The preamble suggests that tinkering with the penalties
and offences for impaired driving can deter this harmful behaviour whereas the avail-
able empirical evidence suggests that criminal laws alone, without police enforcement
and other measures designed to curb the consumption of alcohol, cannot effectively
deter drunk driving.’ Preambles speak to a “culture of public problems” in which
simple and symbolic messages dominate and complex realities are often simplified. ‘
In summary, there are a variety of political uses for preambles in modem legisla-
tion that go beyond the Platonic ideal of persuading the citizenry to obey the law. Pre-
ambles can use narratives to explain how legislation came to be developed and pro-
vide a vehicle for linking the attempt of the law to guide the future with a recognition
of the past. The narrative uses of preambles are powerful and for better or worse can
influence the substance of legislation. Preambles can also express hopes and aspira-
tions for legislation, but there is a danger that they may overestimate what the legisla-
tion can achieve and even its actual text. Nevertheless, the symbolic, aspirational, and
expressive ordering that occurs in preambles can be an important instrument of gov-
ernance and in itself a form of legal pluralism that complements the usual instrumen-
tal ambitions of legislation. Preambles can provide a means to recognize the claims of
those who might otherwise feel excluded from the legislation and they can recognize
8 See K. Roach, Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice
(Toronto: University of Toronto Press, 1999).
Impaired Driving Amendments, supra note 8.
M. Friedland, M. Trebilcock & K. Roach, Regulating Traffic Safety (Toronto: University of To-
ronto Press, 1990).
‘ J.R. Gusfield, The Culture of Public Problems: Drinking-Driving and the Symbolic Order (Chi-
cago: University of Chicago Press, 1981).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
competing rights and policy aspirations. There is a risk, however, that the recognition
of competing goals can be unrealistic, at least at the instrumental level. The preambles
to sexual assault amendments, free trade agreements, and the proposed anti-terrorism
legislation suggest “we can have it all”. Such an inclusive approach may be politically
and symbolically useful, but it may also obscure or delegate a real choice that must be
made between competing policies.
V. Professional Uses of Preambles
Although preambles have a range of political purposes and audiences, many seem
designed to address those professionals who will administer the act or those who have
a particular interest in the act. Thus some preambles indicate that the statute is de-
signed to ensure compliance with some international or domestic instrument. For ex-
ample, the FTA provides in its preamble that it “build[s] on Canada’s rights and obli-
gations under the General Agreement on Tariffs and Trade and other multilateral and
bilateral instruments of cooperation.'”” The preamble links the act with Canada’s in-
ternational obligations in a way that would be of interest to international trade experts.
The preamble to legislation providing for warrants to search a house in order to make
an arrest speaks to police officers and courts by indicating that such warrants will not
be required in exceptional circumstances.’ Preambles can be designed to explain the
law to those who administer it and to explain some of Parliament’s expectations about
how the law will be administered and interpreted.
A. Preambles and Statutory Interpretation
Preambles may be used to advance an interpretation of the statute being enacted.
For example, the preamble to the FGM Amendments provided that “the criminal law
of Canada applies to the practice of female genital mutilation.” ‘ Again, when Parlia-
ment re-enacted the so-called “rape shield” law after it had been struck down by the
Supreme Court, the preamble provided that “the Parliament of Canada believes that at
trials of sexual offences, evidence of the complainant’s sexual history is rarely rele-
vant “‘8” This essentially amounted to a prediction or hope about how the courts would
interpret the new restrictions on admissibility of a complainant’s prior sexual conduct.
The law itself was more complex and ambiguous as judges were simply instructed to
balance a long list of factors in deciding whether sexual history evidence was relevant
and admissible in a criminal trial. 9 The fact that this preamble was not included in the
Supra note 34.
Powers to Arrest Amendments, supra note 6.
FGM Amendments, supra note 8.
Sexual Assault Amendments, supra note 2.
K. ROACH- USES AND AUDIENCES OF PREAMBLES
commercial criminal codes used by judges and lawyers, however, probably limited its
use by those professionals. Even the Supreme Court made no reference to the pream-
ble in its recent decision upholding the law from Charter challenge? Though pream-
bles may be used to provide courts with guidance about how they should interpret
statutes, there is no guarantee that courts will follow this guidance.
There is some support for the jurisprudential utility of preambles. Ruth Sullivan
has suggested that “[t]he primary function of a preamble is to recite the circumstances
and considerations that give rise to the need for legislation or the ‘mischief’ the legis-
lation is designed to cure.”‘” Preambles can also include “principles or policies which
In addition, the preamble can
it sought to implement or goals to which it aspired.”
speak to the legislative facts surrounding the law. ‘”By spelling out the assumptions the
legislature takes to be true, the policies and principles it wants to advance and the val-
ues to which it is committed, the preamble offers interpreters an authoritative form of
guidance “‘ At the same time, courts have frequently been reluctant to give great
weight to preambles. La Forest J. has stated that “it would seem odd if general words
in a preamble were to be given more weight than the specific provisions that deal with
the matter.” Similarly, a leading English case warns that although preambles may be
helpful in identifying the mischief of the act, they are no replacement for the precise
words of the enactment: ‘There may be no exact correspondence between preamble
and enactment, and the enactment may go beyond, or it may fall short of the indica-
tions that may be gathered from the preamble ” Courts are alive to the danger that pre-
ambles can oversell the fine print of the legislation.
The primary professional function of preambles is an articulation of the mischief
or purpose of the legislation. This is important in modem purposive approaches to
statutory interpretation, but it also supports the idea that the political purposes of pre-
ambles are primarily aspirational. Many of the mischiefs that are identified in modem
legislation are quite intractable and will persist and perhaps even grow despite the
legislation. The secondary professional function of preambles-to provide guidance
on statutory interpretation-suggests that Parliament can use preambles as a vehicle
to engage in an enterprise that is somewhat closer to adjudication than legislation.
Courts may, however, be reluctant to accept such guidance and pre-judgment.
R. v. Darrach, [2000] 2 S.C.R. 443, 191 D.L.R. (4th) 539, 2000 SCC 46 [hereinafter Darrach].
Sullivan, supra note 3 at 259.
2 Ibid.
9’ Ibid. at 261 [emphasis in original].
9 McVey v. United States of America, [1992] 3 S.C.R. 475 at 525, 97 D.L.R. (4th) 193.
“‘ Attorney-General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436 at 467 (H.L.), [1957]
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
B. Preambles and Constitutional Interpretation
Preambles can be used as a vehicle for the legislature to provide its own interpre-
tation of the law or the constitution.’ For example, a number of paragraphs in the pre-
amble to Parliament’s response to O’Connor seem designed to indicate that Parlia-
ment, contrary to the findings of the majority of the Court in that case, concluded that
the disclosure to the accused of the complainant’s private documents affected not only
the accused’s privacy rights, but also her equality rights, and that production to the
court also affected those rights. The preamble provides that Parliament
recognizes that violence has a particularly disadvantaging impact on … the
rights of women and children to security of the person, privacy and equal bene-
fit of the law as guaranteed by sections 7, 8, 15 and 28 [of the Charter, and]
that, while production to the court and to the accused of personal information
regarding any person may be necessary in order for an accused to make full an-
swer and defence, that production may breach the person’s right to privacy and
equality.’
Both of these clauses advance a proposition of constitutional law that, rightly or
wrongly, had been rejected by the majority of the Court in O’Connor, but accepted by
the minority.
In upholding the above amendment in Mills, the Supreme Court gave some re-
cognition to Parliament’s claim to interpret the constitution by indicating
that
“[c]ourts do not hold a monopoly on the protection and promotion of rights and free-
doms; Parliament also plays a role in this regard and is often able to act as a signifi-
cant ally for vulnerable groups.”‘8 To the extent that the Court will recognize that Par-
liament has a role in interpreting the constitution, preambles may be a vehicle for Par-
liament to express its own interpretation of the Charter. Preambles allow Parliament
to articulate the reasons for its interpretation of the Charter while the operative text
will often only assert the conclusions that Parliament has reached.
‘ In cases in which Parliament believes a Charter decision of the Court should not be the last word,
the preamble may engage in constitutional interpretation by asserting the relevance of other Charter
rights that the Court did not consider, such as the equality rights of women and children victimized by
crime. On the legislative replies to Charter decisions focusing on the rights of the accused, see text
accompanying notes 97-107. For support of the idea that legislatures should interpret and act on their
interpretation of the constitution in order to avoid judicial supremacy, see C.P. Manfredi, Judicial
Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2d ed. (Toronto: Ox-
ford University Press, 2001) c. 6, 7. For arguments that legislatures are not well-suited to interpreting
the constitution and that co-ordinate construction is not required to avoid judicial supremacy under the
Charter, see K. Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (To-
ronto: Irwin Law, 2001) c. 13, 14.
Production of Records Amendments, supra note 5.
9 Mills, supra note 78 at para. 58.
K. ROACH – USES AND AUDIENCES OF PREAMBLES
Preambles can be a vehicle for Parliament to conduct a dialogue with the Court
and to indicate its purposes in enacting legislation. It is noteworthy that the Court in
Mills paid attention to the preamble, even though it is nowhere in the commercial
criminal codes that sit on the justices’ desks. In explaining the purpose of Bill C-46,
the Court noted that
[t]he preamble to the Bill indicates that Parliament was concerned about the in-
cidence of sexual violence and abuse in Canadian society, its prevalence against
women and children, and its “particularly disadvantageous impact on the equal
participation of women and children in society and on the rights of women and
children to security of the person, privacy and equal benefit of the law as guar-
anteed by sections 7, 8, 15 and 28 of the [Charter].” The preamble expressly
declares that Parliament seeks to provide a framework of laws that are fair to
and protect the rights of both accused persons and complainants.9
In its decision to uphold the legislation, the Court accepted Parliament’s indication in
the preamble of the competing rights at stake, as well as Parliament’s statement of its
desire to respect both the rights of the accused and the complainant. The Court’s use
of preambles is not, however, consistent. A few months after Mills, the Court upheld
the legislative reply to Seaboyer without mention of a similar preamble used in that
reply and stressed that the legislation complied with its previous decision rather than
offering an alternative interpretation of the constitution.”
Parliament seems more consistent than the Court in its use of preambles. The pre-
ambles in legislation responding to Seaboyer, Daviault and O’Connor all indicated
Parliament’s view that both the accused and the complainant’s Charter rights were at
stake.” When first articulated by feminist criminal law scholars, the equality approach
to criminal law was controversial-even heretical.”‘2 In less than a decade, however, it
has been accepted-first by Parliament in preambles to Criminal Code amendments
and subsequently by the Supreme Court. Evidently, preambles can be an important
vehicle to introduce new ideas into the law and to contest existing ideas.
The preamble to the legislative reply to Daviault indicated Parliament’s view that
the factual and legal premises of the controversial extreme intoxication defence to
sexual assault were faulty-to the extent that the majority of the Court held that ex-
treme intoxication could produce involuntary conduct. The relevant paragraph in the
preamble provides that Parliament “is aware of scientific evidence that most intoxi-
cants, including alcohol, by themselves, will not cause a person to act involuntarily'””3
Ibid. at para. 48.
‘ Darrach, supra note 90.
‘O”Supra notes 2,4,5.
“” C.A. MacKinnon, Towards a Feminist Theory of the State (Cambridge, Mass.: Harvard Univer-
sity Press, 1989); C. Boyle, “Ihe Role of Equality in Criminal Law” (1994) 54 Sask. L. Rev. 203.
“03 Self-Induced Intoxication Amendments, supra note 4.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
Preambles to “in your face” legislative replies to controversial Charter decisions may
be used as a vehicle for Parliament to articulate an interpretation of the constitution
that is at odds with the Court’s interpretation. They may also be a vehicle in the real-
politik of institutional dialogue for Parliament to tell the Court why it and sometimes
the majority of Canadians found the Court’s decision to be unacceptable. Perhaps
more charitably, they may be a vehicle for Parliament to clarify its legislative objec-
tives and the alternative regulatory options that it considered and rejected. In all
events, preambles are used in a dialogic fashion by Parliament to send messages to the
Court.'”‘
The preamble to Parliament’s response to the Supreme Court’s controversial deci-
sion in Feeney also seems to engage in constitutional interpretation.”5 In that case, the
Court avoided addressing the question of whether circumstances other than hot pur-
suit would justify the warrantless entry into a person’s home in order to make an ar-
rest. The preamble to the reply legislation, however, made clear that Parliament be-
lieved such entries were authorized in a range of exigent circumstances beyond the
limited case of hot pursuit. The preamble proclaimed that warrantless entries were
permissible and authorized in a broad range of exigent circumstances “that justify en-
try into a dwelling house … in the absence of prior judicial authorization.”‘” Parlia-
ment was telling not only the police, but also the Court that in some cases it was per-
missible to enter a dwelling without a warrant in order to make an arrest. In this case,
the preamble was backed up by the text of the legislation which defined exigent cir-
cumstances to include a reasonable suspicion that entry is necessary to prevent immi-
nent death or bodily harm or a reasonable belief that entry is necessary to prevent the
imminent loss or destruction of evidence.”
The preamble to the Victims of Crime Amendments also suggests that Parliament
believes that victims’ rights are entitled to the same sort of balancing that the Supreme
Court has applied to competing Charter rights. One paragraph of the preamble at-
tempts to constitutionalize victims’ rights by providing that Parliament “recognizes
and is committed to ensuring that all persons have the full protection of the rights
guaranteed by the Canadian Charter of Rights and Freedoms and, in the event of a
conflict between the rights of accused persons and victims of and witnesses to of-
fences, that those rights are accommodated and reconciled to the greatest extent pos-
“o On the dialogue between courts and legislatures, see PW. Hogg & A.A. Bushell, “The Charter
Dialogue between Courts and Legislatures” (1997) 35 Osgoode Hall L.J. 75; K. Roach, “Constitu-
tional and Common Law Dialogues between the Supreme Court and Canadian Legislatures” (2001)
72 Can. Bar Rev. 481.
‘ Supra note 6.
’06 Powers to Arrest Amendments, supra note 6.
‘”‘ Criminal Code, supra note 8, s. 529.3.
K. ROACH – USES AND AUDIENCES OF PREAMBLES
2001]
sible.” ” As in the preambles to the legislation that responded to Seaboyer, Daviault,
and O’Connor, this preamble may be influential in persuading the Court to consider
the relevance of rights that it has previously not recognized. Preambles may be an im-
portant vehicle for Parliament to assert its own interpretation of the constitution or at
least to re-frame issues of constitutional interpretation.
Preambles that involve legislative interpretations of the constitution may not al-
ways push back judicial interpretations of the constitution; they may also confirm and
embrace such interpretations. The federal government followed up its Secession Ref-
erence” with its controversial Clarity Act'” providing for parliamentary review of
subsequent questions and votes on the separation of Quebec from Canada. Six of the
eight paragraphs in the preamble commence with the phrase “Whereas the Supreme
Court of Canada has determined” or words to similar effect. Parliament thus repeat-
edly stresses that the legislation follows from the Supreme Court’s decision. The pre-
amble to the Clarity Act, as well as its provisions, attempt to incorporate, affirm, and
elaborate on the Supreme Court’s judgment in the Secession Reference with regard to
the illegality of unilateral secession, the need for a clear expression of the democratic
will, and the role of legislatures in deciding whether a question and a majority vote
are sufficiently clear. The fact that this preamble embraces the Court’s constitutional
decision and attempts to trade on the Court’s prestige has not, however, made the leg-
islation less controversial.
All of the above preambles are examples of Parliament employing the language
and concepts used by the Supreme Court in interpreting the constitution. This sug-
gests that preambles may be used as a vehicle for what Michael Mandel has called the
‘legalization of politics”…. In contrast to narrative uses of preambles that relate the law
to the concrete, the use of preambles to articulate aspirations and interpretations of the
constitution tends to increase the level of abstraction in the legislation and may also
promise more than can be delivered in either an instrumental or a jurisprudential sense.
It remains to be seen how useful preambles will be in Charter litigation. Many of
the preambles speak to the importance of the objective, the rational connection of the
legislation to the objective, and perhaps the overall balance between the objective and
the right, but are frequently silent on the often crucial issue of whether there are less
drastic means by which the legislature could have pursued its objectives. The pream-
bles, however, may be more successful in encouraging the Court to frame a particular
criminal justice issue as one of competing rights to be resolved by a relational ap-
SVictims of Crime Amendments, supra note 8.
‘~’Supra note 7.
,oSupra note 7.
.. See M. Mandel, The Charter of Rights and the Legalization of Politics in Canada, rev. ed. (To-
ronto: Thompson, 1994).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
proach to rights. In Charter litigation this refraining of issues is often more than half
the battle because once the courts conceive the issue as one of competing rights, they
will pay significant deference to the balance that Parliament has set.
In summary, the professional uses of preambles can supplement, in certain cir-
cumstances, some of the political uses of preambles by setting out the mischief that
the legislation is intended to address. This is not only relevant to the public and those
who lobbied for the law, but also to the bureaucrats who administer the law and the
judges who interpret it. The exclusion of some preambles from official and unofficial
working versions of the law, however, raises real questions about whether preambles
will provide guidance to professionals who administer the law. The systematic exclu-
sion of preambles to Criminal Code amendments from both unofficial and official
consolidations of the law may suggest that preambles are mainly a form of political
theatre designed to recognize interest group contributions and express sentiments and
aspirations at the time that legislation is enacted, but that, like the minister’s press re-
lease, can be discarded from the “working law” after the legislation has been enacted.
This does not mean that preambles have no symbolic or normative importance, but it
does underline the variety of purposes legislation serves and the variety of audiences
it addresses.
The increased use of preambles since 1985 has not been indiscriminate. Pream-
bles are generally found in legislation that results from various intergovernmental
agreements on both the domestic and international levels, legislation that declares
fundamental and symbolic characteristics of Canada such as official languages and
multiculturalism, legislation in ideologically contentious areas like environmental and
criminal law, and legislation enacted in response to judicial decisions. What is to be
made of the increased use of preambles in federal legislation?
An optimist would argue that the Platonic ideal of using preambles to persuade
citizens is being reclaimed for a modem age. Preambles can introduce a more narra-
tive, deliberative, and aspirational tone to legislation that speaks to both the minds and
hearts of citizens. Preambles can also allow Parliament to explain its purposes, the
process of deliberation and consultation, and even the events that led to the enactment
of legislation. Preambles can speak to the interested citizen, the disappointed or the
satisfied lobbyist, and to those in the bureaucracy and the judiciary who will apply
and interpret the legislation in the future.
A pessimist would argue that the Platonic ideal of preambles cannot be re-
claimed in a less rational and more divided modem age. The ideas expressed in pre-
ambles may be closer to advertising slogans than rational appeals. Preambles can
oversell legislation either by expressing unrealistic hopes that are not always sup-
ported by the fine print or the text of the law or by suggesting that “we can have it
all”. The fact that preambles are not included in many working versions of the law,
K ROACH – USES AND AUDIENCES OF PREAMBLES
such as commercial criminal codes, only increases the risk of cynicism and disap-
pointment when the high hopes of the preamble are not achieved. When the narrative
and symbolic form of preambles actually does influence the substance of the law,
however, there is a danger that the legislation will be driven by horrific events and not
respect more universal principles, particularly in the criminal law.
The experience to date with the use of preambles in federal legislation lends
somewhat more support to the pessimist than the optimist. There have been too many
preambles that have oversold legislation and obscured conflicts of values. Preambles
have facilitated legislation by tragedy,1’2 obscuring the need to respect broader princi-
ples that transcend particular narratives. Preambles have too frequently been excluded
from working versions of legislation, especially the Criminal Code, not to produce con-
siderable cynicism about their professional and instrumental, as opposed to their politi-
cal and expressive, utility. On the one hand, lobbyists who have worked hard to include
preambles in legislation may fail to realize how little weight they may hold in the subse-
quent administration and interpretation of the law. On the other hand, they may simply
be more concerned with the political messages than the administration of legislation.
Despite these grounds for pessimism, the use of preambles in important legisla-
tion should not be abandoned. Preambles can be improved by being more consciously
directed at their intended audiences. They can play a valuable role in describing the
purposes of legislation and the deliberative processes and events that led to its enact-
ment. It is better to use a narrative preamble to acknowledge the origins of overly
broad criminal laws in tragic crimes than to pretend that the legislation came from
nowhere. Preambles can be a vehicle for both increased populism in legislation and
for legislatures to engage in dialogue with both courts and society.
Whether one leans towards optimism or pessimism about preambles, there should
be agreement that the increasing use of preambles in federal legislation is a significant
trend and one that provides a fascinating window on the multiple purposes and audi-
ences of modem legislation.
1 On “the criminalization of tragedy”, see K. Roach, ‘The Dangers of a Charter-Proof and Crime-
Based Response to Terrorism” in Daniels, Macklem & Roach, supra note 62, at 138-42.