Law reform agencies

Notes and References

  • [201]

    "Another obstacle to law reform is the governmental departments responsible for law reform. When we make recommendations to Parliament, Parliament does not automatically respond. Parliament does not have the machinery to do so in our system of government. It is the Cabinet which initiates legislation. The members of the Cabinet rely upon their departmental officials to advise them. In order to accomplish change, one must galvanize the department into action. There are many outstanding dedicated people working in the legal departments of government but they have a great deal to do. They are not idly awaiting recommendations from a law reform body or from any other group in society. They are doing the work that they believe is important, serving Canadians to the best of their ability. Hence, when a law reform group makes a recommendation, it is necessary to convince those responsible in the department to take up those suggestions and to advance them through the departmental machinery to the deputy minister and the minister, so that he will ultimately recommend to Cabinet the changes that are proposed. There are many issues crying out for attention these days, but there is only limited staff and circumscribed budgets. Even when these officials do their best, even when they agree totally with the recommendations, things still move very slowly."

    Law Reform Commission of Canada, A pragmatic dreamer, in Taking law reform seriously, pages 21-22.
  • [202] This dynamic has been superbly summarised by Mr. Justice Allen Linden, former President of the Law Reform Commission of Canada :

    "Each of these groups — law reformers, politicians and bureaucrats — has a distinct institutional role to play. As a result, their views, advice and conduct reflect differing institutional biases. Consequently, harmony is not easy to achieve.

    Institutionally, law reformers are dreamers, creators, thinkers, idealists, imaginers, and visionaries. Politicians are, by their very nature, decision-makers, doers, leaders, animators, instigators, sellers, energisers and persuaders. Bureaucrats are implementers, facilitators, stabilizers, adjusters, consensus-builders, warners, admonishers, consulters.

    These three roles are distinct. Reformers recommend. Politicians decide whether change is needed and, if so, what to do. Bureaucrats execute these changes. There is, of course, some blurring of functions around the edges, but these roles are substantially different.

    Viewed this way, it is easier to understand why law reformers always find fault with the legal system and propose changes ; why bureaucrats always see problems with these proposals and why politicians always seem to dither about adopting them. If a law reform commission proposes one hundred different things, all will give rise to some concern on the part of some bureaucrat. Not one idea is ever seized upon and exacted right away. Eventually, proposals may take hold and be implemented, but the time it takes seems interminable to reformers.

    It is easy to see why law reformers view bureaucrats as favourers of the status quo, lacking in vision and courage. Similarly, one understands why bureaucrats see law reformers as impractical, naïve academics, making wild suggestions that cannot be enacted. And one can appreciate why politicians sometimes despair of getting any real help from either of these groups.

    Our institutional response is always the same. Even if the players change, the game is played in the same way by the new players. Changing the singers does not change the songs that are being sung. We are captives of our institutional prisons. We rarely see a diffident reformer, or an audacious bureaucrat, or a decisive politician. It is necessary for us to be aware of that, for only then will we be able to break out of our cells and start afresh to rethink law reform and our reactions to it.

    The fact that these diverse groups view law reform in different ways is not necessarily a bad thing. It would be, though, if they constantly opposed and undercut one another. But if they understand and accept one another's different roles and respect them, much good can come from their differing approaches. Tension among the alternative viewpoints may lead to a better solution — but nasty rivalry will only impede progress."

    Law Reform Commission of Canada, Law reformers, bureaucrats and politicians, in Making law reform happen, pages 43-45.
  • [203]

    "Law should be a means to a social end based on justice, not an end in its own right to be grasped as a legitimate prize by a lawyer in a legal joust to be laid at the feet of his client for reward. A law reform commission cannot honestly shut its eyes to the true role of the profession. It must look at the profession through the eyes of the public, and not accept its own image of itself. The public knows only too well that laws are bent and manipulated by lawyers. It knows that a lawyer is used like a navigator to avoid collision with the law and bring the client safely to harbor, or to shipwreck his opponent. The greater the skills that are demanded of a lawyer, the higher will be his fees. The perils of the law are quite as great as the perils of wrongdoing. Indeed they are greater, unless there is expert guidance. With expert guidance almost everything is possible. Black can be turned into white, tax evasion into tax avoidance, fraud into legitimate enterprise. The free enterprise system not only allows, but promotes the exploitation of law for everybody with money to pay a lawyer. The adversarial system protects the individual in the jungle by its own methods."

    Robert Samek, The objects and limits of law reform, Unpublished paper prepared for the Law Reform Commission of Canada, 1975, pages 131-132.
  • [204] Robert Samek, A case for social law reform, Canadian Bar Review, volume LV, 1977, pages 411-412.
  • [205] The editor of the Canadian Bar Review stressed the importance of academic research in the law reform process nearly 50 years ago :

    "My own impression is that the law in Canada (and in some other countries too) is on balance becoming each year more confused — less certain — and more out of step with the requirements of the times.

    To say this is to imply no criticism of the bench of Canada. The task of rationalizing the vast bulk of modern law looks to be beyond its unaided efforts. The modern counsel, harried from client to client, cannot be as helpful to the courts as he was once ; the modern judge, very often overworked, no longer has time to fill in the gaps left by counsel or to go beyond the effects of his judgment on the parties and adequately consider its form or its long-term implications.

    The courts and counsel in all common-law countries will be forced to turn more and more to scholars for help. The trend, grudgingly enough in some quarters, is already under way. The countries of the civil law learned the lesson many generations ago — not the only respect in which the civil law has been ahead of the common law — and it never seems strange for a judge of a civil-law jurisdiction to acknowledge publicly his debt to juristic writing. Unfortunately you cannot wave a wand and produce a scholar overnight ; you cannot go out into the marketplace and buy scholarship just when you happen to want it.

    If the flame of legal research burns low in Canada today — and it does — the reason is at bottom that the atmosphere of the Canadian legal profession, reflecting perhaps the atmosphere of the country at large, is not sympathetic to research. This is not an indirect way of suggesting that every Canadian practitioner ought himself to be writing articles for the Canadian Bar Review! What I mean is that the prevailing indifference of a substantial part of the legal profession to research naturally inhibits effort by those whose interest and capacity lie in that direction."

    Excerpt from the editor's report to the thirty-sixth annual meeting of the Canadian Bar Association held in Winnipeg on 4 September 1954. Canadian Bar Review, volume XXXII, 1954, page 932.

    This point was also reiterated during the 1970 Parliamentary debates on the legislation to create a federal law reform commission :

    "I hope also that we will not forget about the academic people. For a long time in the legal profession there was sort of almost a contempt for those whose experience in law was largely academic. I would think the chairman of this commission should be a person who has had academic and judicial experience."

    Andrew Brewin, House of Commons Debates, Volume IV, 1970, page 3975.
  • [206] Comments received in a meeting with Antonio Lamer, former Chief Justice of Canada and former President of the Law Reform Commission of Canada, on 16 January 2003 in Ottawa.
  • [207]

    "The commission served very well the clientele of the 1970s and 1980s, but as we came into the 1990s, it was growing more and more distant from the relevant issues of the day."

    Deborah McCorkell-Hoy, former director of the law reform division of the Department of Justice, quoted in Reform commission is reborn, by Michael Fitz-James, The Financial Post, 21 November 1995, page 10.
  • [208]

    "I do not, for my part, think that it is useful either to seek to obtain or, indeed, to retain large programmes which can engage the attention of the Law Commission for as long as 20 years, as occurred with the law of contract."

    Sir Ralph Gibson, Machinery and responsibilities, in Graham Zellick, The law commission and law reform, page 50.
  • [209] S. M. Cretney, The programmes : Milestones or millstones?, in Graham Zellick, The law commission and law reform, page 9.
  • [210]

    "Since 1972 the Commission has not revised its original research program or submitted a supplementary or a second program, despite extensive changes in its work. For example, its current major projects of Protection of Life and Accelerated Criminal Law Review were not specifically identified in its 1972 research program. Also significant delays have occurred in carrying out its research program and significantly more resources have been committed to it than were envisaged in 1972. For example, none of the estimated completion dates was met, and many of the original projects are still in progress 10 years after their originally stated completion dates. The Commission maintains that a revised or second program was not necessary because all projects, including the current ones, were within the areas generally identified in the original research plan.

    In our view, the failure of the Commission to update and submit research programs periodically has been one of the reasons why its work so far has had a minor impact on legislation. Frequent updates and periodic submissions could have helped to improve the focus of the Commission's research efforts toward areas of legislative priority to the government. Only in recent years has the Commission concentrated its attention and resources on projects and mechanisms that would enable it to be more focused.

    (...)

    The Commission, however, is not satisfied with its impact on legislative changes and readily acknowledges its modest record in comparison with that of other law reform commissions both inside and outside Canada. It explains, however, that while other law reform commissions mostly do work referred to them by their attorneys general, the LRC, because of its statutory independence, establishes its own programs and has not been asked by the Minister of Justice to carry out specific research activities. Therefore, the Commission's areas of research and study often have not been high priority areas for government legislative agendas.

    (...)

    The absence of specific direction leads to inconsistencies and a lack of understanding by the co-ordinators as to what is expected of them. In general, we noted a lack of clear project management accountability. Examples of some of the most common deficiencies are :

    • Research objectives stated in contracts are vague ; for example, "legal research in the field of administrative law." The Commission explains that it is so by choice, because it gives the LRC more flexibility in respect of work assignments. In our opinion, vague research objectives and a lack of detailed workplans do not permit the Commission to monitor and control the work of consultants or evaluate their performance.
    • Workplans are not always prepared for sub-projects. This was especially the case in the Administrative Law Project. For the Criminal Law Review Projects, some were prepared, but they lacked detailed tasks and resource plans.
    • Individual sub-projects do not have budgets nor is a record maintained of the resources devoted to specific projects or sub-projects.
    • There is a lack of firm commitment to deadlines and no requirement to account for variations. Monthly schedules of deadlines have shown frequent changes."
    Auditor General of Canada, Report of the Auditor General of Canada to the House of Commons, Fiscal year ended 31 March 1985, paragraphs 10.13-10.14, 10.17, 10.24.
  • [211]

    "The Commission has acted on our 1985 recommendations and, in general, has implemented reasonable measures. However, further improvement is required. The Research Program should present better information on resource needs and on time frames for completing the suggested research projects ; the Commission is currently addressing this issue."

    Auditor General of Canada, Report of the Auditor General of Canada to the House of Commons, Fiscal year ended 31 March 1988, paragraph 20.70.
  • [212]

    "A reference could be seen as a sign of government's faith in the quality of the law reform body's work (...). Too close a relationship with government, though, could mean that a law reform body's independence, or at least its perceived independence, is undermined. Moreover, government tends to operate on a schedule dictated by current political issues. To ensure that its work is both comprehensive and detailed, a law reform body may not be able to comply with the time frames that are preferred by government."

    Law Reform Commission of Nova Scotia, A continuing need for law reform, page 21.
  • [213]

    "Guidelines might relate to such factors as the perceived need for reform, the possibility of completing a project in a timely and cost-effective fashion, the nature of prior law reform topics, and the potential for suggested reforms to be put into effect. A project topic which at first glance seems promising may upon closer analysis be seen as no longer appropriate. Project criteria must be viewed as a whole — depending on the circumstances, one factor might assume more importance than it ordinarily does. As a result, selection criteria provide guidance, but also allow flexibility."

    Law Reform Commission of Nova Scotia, A continuing need for law reform, page 22.
  • [214]

    "There was much consensus that law reform should be seen as 'a negotiated process' rather than 'consultation' as it presumably had been in the era of the LRCC. Consultation to most participants apparently implied that some group will lay out the menu for you and then you say what you want on the menu. The call for a negotiation process was really a call for more collaboration and participation on the part of interest groups and the public, for a more democratic agenda setting process."

    Atlantic Institute of Criminology, Federal Law Reform Conference : Final report, pages 19-20.
  • [215] These guiding principles are : inclusiveness, multidisciplinary approach, innovative practices, and partnerships and networks. Furthermore, initial Commission consultation suggests that a significant segment of the population lacks knowledge and understanding of the law. In an attempt to address these concerns, the Commission focuses its research activities and recommendations on three strategic objectives : creativity ; balance and responsiveness.
  • [216] Comments received in a meeting with Antonio Lamer, former Chief Justice of Canada and former President of the Law Reform Commission of Canada, on 16 January 2003 in Ottawa.
  • [217]

    "The method of work adopted by the Commission has been utilized by these temporary groups [legislative committees] with special jurisdiction : The identification of the problem is the first job ; the relation of the problem to existing law in New York is the second ; the various solutions to the problem disclosed by other experiences is the third ; the possibilities of solution which come from analogies, experience, imagination and creation is the fourth ; the testing of the solution by logic, experience and available data, legal or non-legal, is next ; the testing of the solution in the vast body of remaining law, written and unwritten, is the last. In the process, research in the library, by questionnaire, by factual investigation by qualified personnel and by voluntary conference and hearings are the only tools employed. A good filing system, cross-referencing and all the other periphery of research are required. The availability of excellent general and law library facilities are absolutely essential. The process differs from merely bill drafting as it is practiced by legislative draftsmen. It is drafting not to accomplish an already determined result. This is research to determine the result and drafting only to accomplish it. Has this kind of research been translated into legislative action? The result speaks for itself, for fundamentally research is the only real weapon in the armory of the Law Revision Commission. Other factors favorably influencing the long legislative record are themselves by-products of the quality of the research itself."

    John MacDonald, Legal research translated into legislative action, Cornell Law Quarterly, volume 48, number 3, 1963, page 454.
  • [218] Peter North, Law reform : Processes and problems, Law Quarterly Review, volume 101, 1985, pages 342-346.
  • [219]

    "Those whom law reformers consult are also often consulted by other bodies, ad hoc Commissions and committees and by Government itself. The regular recipients of this constant barrage of paper are showing signs of wilting under the burden. There is clear evidence of consultee resistance. It takes different forms — complaints about the size or complexity of consultation material, the fact that regular consultees take longer to comment than in the past, or the fact that their comments are less thorough or complete than used to be the case."

    Peter North, Law reform : Processes and problems, Law Quarterly Review, volume 101, 1985, pages 345-346.
  • [220] See also S. M. Cretney, The politics of law reform — a view from the inside, Modern Law Review, volume 48, 1985, pages 505-506, for similar sentiments regarding consultation.
  • [221] Michael Sayers, Law reform and the Bangladesh Law Commission, page 18.
  • [222] Law reform agencies are not limited to issuing reports. An agency might also produce other publications such as background or research papers.
  • [223]

    "Information is necessary with respect to the existence of a problem, the desirability of legislation as a solution as compared with other possible solutions, the alternative courses which the legislation might take, the experience acquired in other places and perhaps at other times, and the relative advantages and disadvantages of one decision over the other. Presumably, with this information, the legislature is ready to decide and to act."

    John MacDonald, Legal research translated into legislative action, Cornell Law Quarterly, volume 48, number 3, page 402.
  • [224]

    "Our Parliamentary Counsel prepare legislation in the form of draft Bills attached to most of our reports. This has enormous benefits : it provides an additional way of ensuring that the policy behind the recommendations is fully worked through and is focused in its practical implications ; and it ensures that draft legislation is ready for the Government to put to Parliament if it accepts our recommendations."

    Law Commission for England and Wales, Eighth programme of law reform, page 50.
  • [225] Comments received in a telephone conversation with commissioner Arleen Paris, on 5 February 2003 in Halifax.
  • [226] The only debate, it seems, revolves around the issue of whether the Law Commission for England and Wales should use its own drafters or drafters loaned by the government's central drafting body, the Parliamentary Counsel Office. Professor Graham Zellick stated :

    "One of the most notable features of the work of the Commission has been the appending to its reports of draft legislation implementing its proposals, but it must be questioned whether the secondment of draftsmen from the office of Parliamentary Counsel was the ideal way to proceed. The supreme irony has been that the body charged in particular with "the simplification (...) of the law" should have had to reduce its proposals to the prevailing language of the Parliamentary Counsel, so that reform, simplification and modernisation have been accomplished only in the arcane, opaque and rightly criticised language of the conventional statute. The style of parliamentary drafting in this country is widely regarded as one of the most serious reproaches to English law ; yet the law-reforming body itself has been unable to escape its reach.

    It would probably be said that to have gone about it in any other way would simply have reduced the prospects of any given set of proposals being adopted and of their successful passage through Parliament. But I am not convinced and had the Law Commission been able, by simple, straightforward and elegant drafting, to have brought some sense and dignity to the statute book, it may even have been an infectious move which would have had some influence in the office of Parliamentary Counsel."

    Graham Zellick, Additional comments, in Graham Zellick, The law commission and law reform, page 75.
  • [227] It was also recommended in 2000 that the government of New Zealand support efforts by its Parliamentary Counsel Office to provide a Parliamentary Counsel to draft bills on behalf of the New Zealand Law Commission.

    Sir Geoffrey Palmer, Evaluation of the Law Commission, page 16.
  • [228] In his 1998 consultant's report on the Bangladesh Law Commission, the secretary of the Law Commission for England and Wales stated :

    "All Law Commission reports should incorporate Bills, unless no Bill is necessary to implement the Commission's recommendations. There should in due course be a legislative draftsman employed at the BLC. Until that is possible, a specific legislative draftsman in the Law Ministry should have the drafting of Law Commission Bills among his duties."

    Michael Sayers, Law reform and the Bangladesh Law Commission, page 19.

    See also Francis Bennion, Additional comments, in Graham Zellick, The law commission and law reform, page 61.

  • [229] Lord Hunter, The meanings and the methods, proceedings and papers of the Fifth Commonwealth Law Conference, page 5.
  • [230]

    "The importance and urgency of law reform necessitates the provision of a Commission composed of men whose full-time task is law reform. Such a Commission must have its own cadre of legal draftsmen if reform legislation is to proceed apace. Sufficient emphasis on legal research must be made in the Law School so as to provide perchance a steady flow of graduates with a continuing flair for this kind of work. Government's reform objectives must be so locked into the activities of its law reform agencies as to give the latter a direct relevance in the eyes of other agencies and departments of Government. Only thus will a general institutional appreciation of the value of reform to progress and development be likely to flourish."

    Edwin Watkins, Law reform in Jamaica, proceedings and papers of the Fifth Commonwealth Law Conference, page 28.
  • [231] Comments received in a meeting with Gilles Létourneau, federal Court of Appeal judge and former President of the Law Reform Commission of Canada, on 27 January 2003 in Ottawa.
  • [232] Comments received in a telephone conversation with François Handfield, former secretary of the Law Reform Commission of Canada, on 23 January 2003.
  • [233]

    "Yet, ultimately, if the efforts of a Law Reform Commission are not to be wasted, its work must be conducted in such a way that it will eventually be reflected, with a minimum of amendment, in legislation. It is of great importance, then, that the activities of the Commission be related to the parliamentary process."

    Law Reform Commission of Canada, Federal law reform in Canada, in Manifesto for law reform, page 18.

    "Ultimately, the government's commitment to law reform will be tested in its willingness to facilitate the enactment into law of the Commission's proposals. It is a commitment which will have to find expression in action rather than rhetoric.

    The Commission is empowered to set forth its recommendations in such form as the Commission deems most appropriate to facilitate their explanation and comprehension and, one feels compelled to add, in such form as will facilitate their being passed into law in a form substantially in accord with those recommendations. In this regard, the desirability of these recommendations being reflected in a draft Bill which would accompany the report must be considered. Unless the Commission is able to formulate the draft Bill that it wants, many valuable proposals may never get on to the statute books. This is so because the Commission, not being a government department, will not be able to guide its own proposals through Parliament. The submission of a draft Bill with commentary on the principles and policies reflected in particular sections will form a distinct focus for further discussion of the Commission's recommendations. It will also remove an otherwise large lag between the time the recommendations are tabled and the time they are embodied in legislation. Such a hiatus could be fatal to the success of the Commission's efforts.

    The independent status and specialist standing of the Commission are vital to the success of its program. If the originating body is one which enjoys the confidence of Parliament, the legal profession and the public at large, then the process of enacting the legislation is likely to be that much smoother and less protracted. It is important, in this regard, that the Commission is directed, "to the extent that it deems it practicable to do so in the course of formulating its recommendations," to consult with the Minister of Justice, of the adequacy of legislative machinery. This timetable is, of course, in the control of the majority party which constitutes the government of the day. The whole thrust of the structuring of the Commission's relationship to Parliament is to ensure that time will be made available for consideration of its proposals. Thus, there is the requirement that the Report be tabled in Parliament within fifteen days of its receipt by the Minister, along with any comments he may wish to make on it. This procedure will ensure that the Commission's proposals will receive immediate airing and significant pressures for their being carried forward will be created. The Report will become public knowledge through its tabling before Parliament, and the Minister of Justice will become open to questioning concerning the government's intention in regard to the Commission's recommendations. If the government does not find time in the parliamentary timetable to deal with the Commission's recommendations for reform, then the government must bear the consequences. The thought that nothing will be done about the Commission's recommendations runs counter to its whole raison d'être. It is, after all, an advisory body which Parliament itself has created for the purpose off [sic] recommending changes in the law."

    Law Reform Commission of Canada, Federal law reform in Canada, in Manifesto for law reform, pages 22-24.
  • [234]

    "Initially I saw our responsibility solely in terms of legislative reform, that is, in rewriting the laws which we now have. We would improve and update the Criminal Code, add a chapter on general principles, eliminate obsolete provisions and include new sections to deal with new problems. Basically, this is an extension of "housecleaning," but such an extension that you would get a whole new house, replacing each section of each wall until eventually you've built yourself a new and better house. However, your new building is limited by the inherent plan and structure of the old one. The new code would possibly be much better than the present one with its many deficiencies, but it would be a code of the same type as the present one, subject to the same type of problems and drawbacks even though enjoying the same type of advantages.

    There are many reasons why law reform should be done this way. One is that, if we give ourselves this sort of limited objective, there is some hope we might finish and achieve something within a reasonable time span and come up with some acceptable amendments and proposals fairly soon. Another reason is that it would enable us to attack particular segments in a piece-meal but systematic manner. We could work on theft and fraud, for example, and come up with proposals which could be incorporated in the present Code ; then turn to, say, homicide and do the same with that, and so on. Bit by bit we could overhaul the whole Code.

    There's a lot to be said for this piece-meal approach. Not only is it the Common-Law approach and in line with our legal tradition, it also has the attraction of convenience. Those involved in applying the law in the courts would rather, I suspect, adapt bit by bit to new laws than have to adapt overnight to a whole new Code. So I think the step-by-step approach would be more convenient for practitioners and judges, more in line with the way legal reform has tended to be carried out in the past, and simpler for those doing it.

    It is indeed this view which is reflected in the format of the original research program of the Commission. But, speaking now solely for myself and not for the Commission, I have gradually become more and more dissatisfied with that concept. I began to see law reform not as providing a set of answers expected to have continuing validity, but as a process of successive approximation, a process whereby a society finds out about its laws and about itself, something much wider than, and fundamentally different from, a mere analysis of enacted legislation.

    Perhaps the laws we should aim for will be in no way like we ones we have ; and perhaps what we should be doing now is working out the principles and policies of the new criminal laws while not bothering yet about how they should actually be written. In other words, we would not rewrite the Criminal Code, but rather concentrate on the sort of things we would want the new Code to achieve and the values we would want it to reflect. Unfortunately, if we followed this format exclusively, there would be no recommendations to the Minister for a long time, and we would be accused of "not doing anything."

    But cannot "anything" cover things other than concrete proposals embodied in draft legislation? Suppose three years' attention to the criminal law resulted in no concrete proposals whatsoever, but did produce well-considered, well-argued, and well-articulated reflections on the limited use of the criminal law ; on the lack of moral justification for using it in certain areas of life ; on the need to get all those involved in its administration to attend to the fact that they are participants in an interracting system ; on the role and possible value of crime itself in society ; the importance of clarifying what, if any, our aims are in having a criminal law ; on the value of having criminal laws so written that the ordinary citizen can readily understand them ; and so on. And suppose working papers setting out well-reasoned views on all these matters were published. Would all this really add up to "nothing"? It would mean sorting out myth from reality and getting down to what the law is really all about.

    With this approach, suggested draft legislation would not be included as part of the working papers. Because although the form that the new legislation would take is uncertain, to me at least one thing is certain and that is that it shouldn't take the existing form. The one thing we do not want to do, surely, is arrive at conclusions on substance and principle and then turn the whole thing over to a professional draftsman to put it into law. For we should want the Code to be what we say it is, not what someone captivated by all the evils of the Common Law drafting tradition wants to say it is. Surely here is a marvelous opportunity to get away from the Common Law tradition that writing laws is a mystery that can only be learned by long experience in the draftsman's office, and move towards the Civil Law tradition which looks upon the writing of laws as being like writing anything else, i.e., basically a matter of grammar and style. In this way we might produce a Criminal Code that the ordinary man could understand and to which he could relate. We should be able to express the rules of law and the values underlying them in simple language so that ordinary citizens can understand them, criticize them, and participate in the process of changing them. Once the language of the law becomes specialized, law reform becomes the exclusive jurisdiction of experts.

    I think it is fair to say that my dilemma is shared to some degree at least by others at the Commission. We feel obligated to carry out the undertakings in our research program and as practical lawyers we would like to accomplish something useful in the law within a reasonable time. On the other hand, we would like to bring about a better understanding in ourselves and others of the whole criminal justice system. To me there is relatively little payoff if reform is confined solely to legislative change, while the wider approach presents interesting and exciting possibilities.

    I am convinced that the criminal law as a body of rules has little meaning to the average citizen. The rules are brought to life by the criminal process which may be defined as the activities of the police, of the courts and of correctional agencies. The ordinary citizen comes into contact with individuals who represent the law and with whom the law is identified, and it is from interaction with these individuals that most people learn about the law. By not limiting ourselves to the Criminal Code, we are saying that the men and women involved in the criminal justice system, the police, the lawyers, the judges, corrections people, victim and offender alike, are just as important to the process of law reform as are the statutory enactments ; and by focusing on the opinions, attitudes and preconceptions of the actors, by analysing and trying to understand what factors make the criminal justice system work and by communicating them to the public in language stripped of legal jargon, we will reach a point where the recommendations can be understood and accepted.

    The real challenge of criminal law reform lies in becoming involved in doing law reform through innovation, experiment, and public education as opposed to merely making legislative recommendations to Parliament."

    Law Reform Commission of Canada, The limitations of legislative reform, in Manifesto for law reform, pages 169-173.
  • [235] Graham Zellick, The law commission and law reform, page 89.
  • [236] Comments received in a meeting with Gilles Létourneau, federal Court of Appeal judge and former President of the Law Reform Commission of Canada, on 27 January 2003 in Ottawa.
  • [237]

    "Law Reform Commissions are such institutions, ready to have their work tested by time, not immediate legislative response, and with the time to generate the menu of ideas from which generations of legislators, lawyers, academics, judges, journalists, civil servants, analysts, and thinkers — all members of the community — choose their policy nourishment. Their value lies in the public and private debate their work intellectually subsidizes, not only in the manner of statutes their formulations encourage. Their importance is in their capacity to broker and inspire and spotlight ideas of public value. And it is the quality of those ideas that should determine relevance, measured not against idiosyncratic or ideological or sectoral concerns, but against time and the public interest."

    Ontario Law Reform Commission, Annual report 1991-2, page 7.
  • [238]

    "As the Commission celebrates its 20th anniversary, it looks back on an impressive list of accomplishments not the least of which are legislative. But the Law Reform Commission of Canada is so much more than a body which has made a number of recommendations to Parliament to improve Canadian laws. It has undertaken a vast amount of research in a variety of areas related to law, and from this research it has generated 33 reports, 63 working papers, 78 published study papers and over 300 unpublished background papers. Lawyers, students and laypersons alike have used these documents for presentation of legal arguments, as learning tools and for the lucid and well-written explanations of complex concepts they contain. Some publications, such as Our Criminal Law, The Meaning of Guilt : Strict Liability, The Principles of Sentencing and Dispositions and the Report on Evidence have become classics in their fields. The Commission's legal research has been recognized for its excellence throughout the national and international legal communities and has stimulated scholars to write about its history, function and philosophy and to subject its work to critical analysis. Many of its papers have been translated into other languages and have served as models for law reform in other countries.

    In the legislative area, the Commission's work has helped to shape the section on evidence in the Canadian Charter of Rights and Freedoms. Its recommendations have been embodied in various substantive and procedural amendments to the Criminal Code of Canada including sexual assault laws, sentencing, the law of arson and vandalism, assistance to victims of crime, the law of search and seizure, and the law relating to pre-trial conferences and motions. Its recommendations have also been instrumental in changing federal expropriation and garnishment laws with respect to monies payable by the Crown. Its work has inspired changes in the Divorce Act, the Federal Court Act and has contributed to the drafting of certain sections of the Canadian Environment Protection Act.

    The Commission has also made a contribution to Canadian case law. Its reports, working papers and studies have been cited in over 255 cases, 48 of which are decisions of the Supreme Court of Canada. Courts have used these documents as sources for the history and rationale of particular laws and to assist them in their legal reasoning in areas such as family law, criminal law and procedure, evidentiary questions, administrative law and statutory interpretation. The contribution made by the Commission to the interpretation and application of the Charter to the criminal law is a particular source of pride.

    The Commission has influenced practical areas of the law as well. For example, in 1985, it assisted the Halton Regional Police Force with the establishment and evaluation of their Taped Interviewing Project (TIP), a pilot project designed to gather data on the taping of police interviews. Its work on discovery has helped to alter pre-trial disclosure practices, its work in family law has contributed to the creation of unified family courts in certain provinces and its work in administrative law has influenced the practices and operations of various federal agencies.

    The Commission has never lost sight of its obligation to engage in a dialogue with members of the public and to inform them on issues of law reform and they in turn assist the Commission in its work. Documents are distributed free of charge and the public is invited to comment on the recommendations contained therein. Over the years several informal public meetings have been held across the country. Information kiosks are set up at various conferences. The Commission has prepared videotapes, pamphlets, information sheets and questionnaires on law reform topics of interest, and members and research personnel undertake as many public speaking engagements as time and resources permit."

    Law Reform Commission of Canada, Twentieth Annual Report : 1990-1991, pages 3-5.
  • [239] Canada is a federal state. This means that the authority to make laws is divided between the Parliament of Canada and the provincial legislatures. Each exercises full legislative power over the matters within its jurisdiction. Constitutional law, as elaborated by court decisions, defines what these matters are as well as their limits. The provincial governments have the authority to make laws concerning specific subjects such as education, property rights, the administration of justice, hospitals, municipalities and other matters of a local or private nature. In addition, the provinces may create local or municipal governments that can deal with strictly local matters such as parking regulations or local building standards. The federal government deals with subjects that affect all of Canada, such as trade and commerce, national defence, criminal law and the post office. The courts have interpreted the Constitution to have distributed all possible legislative powers between the federal and provincial governments. The provincial list of powers is considered to be finite so that if a matter is not covered within a class of subject expressly given to the provinces, that matter will fall within the jurisdiction of the federal government. Needless to say, the practical implication of this division of powers is the source of endless debate and legal action.
  • [240] Audrey Macklin, Law reform error : Retry or abort?, Dalhousie Law Journal, volume 16, 1993, page 396.
  • [241] Audrey Macklin, Law reform error : Retry or abort?, Dalhousie Law Journal, volume 16, 1993, pages 399-400.
  • [242] Audrey Macklin, Law reform error : Retry or abort?, Dalhousie Law Journal, volume 16, 1993, page 396.

    An academic from the faculty of law at Dalhousie University in Halifax, Teresa Scassa, conducted a comprehensive review that demonstrates that reports and working papers on criminal law made up 71 percent of the Commission's output. Teresa Scassa, A critical overview of the work of the Law Reform Commission of Canada : Learning from the past, Atlantic Institute of Criminology, Federal Law Reform Conference : Final report, appendix C, page 4.

  • [243]

    "[T]he LRCC as a mechanism for sociopolitical reform is no longer a relevant part of the response of the Canadian state to the current social reality ; time has passed this strategy by. The LRCC was an ideal liberal response to the desire to open the political arena and to arbitrate issues of style more effectively. However, its very potential to transform the law makes it a risky proposition once the conflict leads to questioning the fundamental basis of our social organization. In plainer terms, the Canadian state is unlikely to want or tolerate much more from the LRCC than an exercise in technical reform."

    Ross Hastings and R. P. Saunders, Social control, state autonomy and legal reform : The Law Reform Commission of Canada, in State control : Criminal justice politics in Canada, page 142.
  • [244] Christine Boyle, Criminal law and procedure : Who needs tenure?, Osgoode Hall Law Journal, volume 23, number 3, 1985, pages 435-436.
  • [245] Audrey Macklin, Law reform error : Retry or abort?, Dalhousie Law Journal, volume 16, 1993, page 404.
  • [246] Audrey Macklin, Law reform error : Retry or abort?, Dalhousie Law Journal, volume 16, 1993, page 408.
  • [247] Audrey Macklin, Law reform error : Retry or abort?, Dalhousie Law Journal, volume 16, 1993, page 415.

    Along the same lines, Ross Hastings and R. P. Saunders observed :

    "Despite its high level of funding and its original intentions to engage in fundamental research and consult broadly during the process of legal reform, the LRCC is relatively little known outside the legal profession."

    Ross Hastings and R. P. Saunders, Social control, state autonomy and legal reform : The Law Reform Commission of Canada, in State control : Criminal justice politics in Canada, page 129.
  • [248] The synthesis of a consultation exercise held in Halifax in 1993 stated :

    "While there was much criticism of the LRCC procedure and emphasis and no widespread wish to see it resurrected, there was an appreciation of its output, both in the form of reports, discussion papers and consultation. The LRCC was deemed to be of great assistance to justice system officials (e.g., judges, bureaucrats) and to academics especially in the Atlantic region where the government bureaucracies are small and fiscal resources so limited. Certainly there was a widespread view that there is now a void to be filled."

    Atlantic Institute of Criminology, Federal Law Reform Conference : Final report, Federal law reform : An overview and synthesis of the Atlantic Region Consultation, page 6.
  • [249]

    "The task of a law reform commission is to make law reform happen. Some think that this means the only task of a commission is to get legislation enacted. This is not so. Although it is certainly an important goal, it is merely one of several facets of the law reform process. Enacting legislation in our modern society is a slow and cumbersome process. There are many interests competing for changes, improvements and the enactment of new laws. At times, despite its merits, a new law may not be adopted because it does not have as high a priority as other items on the legislative agenda. Parliament has only so much time to spend on legislative initiatives. Usually it gives its highest priority to controversial issues that the public and the media complain the loudest about, such as capital punishment, prostitution, pornography and — most recently — abortion. While these issues are no doubt important, there are many other laws which are in need of reform but remain low on the legislative priority list because they are less visible. It is unfair to measure the success of a law reform commission using the yardstick of enacted legislation alone."

    Law Reform Commission of Canada, Making law reform happen, in Making law reform happen, page 291.
  • [250]

    "The Law Reform Commission of Canada has contributed much in a non-legislative way. Research is the precursor of law reform. The heart of a law reform commission is the research it does leading up to the recommendations it offers. The publication and dissemination of this legal research acts as a catalyst, engaging Canadian legal scholars in further research and writing on matters in need of reform. It also subjects the commission's work to an objective critical analysis. Many articles have been written about our Commission, its history, function, philosophy and recommendations. All of this scholarly activity stimulates thinking about law reform, creates a deeper understanding of the issues involved and helps promote action by formal or informal implementation of the Commission's recommendations.

    The excellent quality of our Commission's research is universally recognized. Its reputation for excellence is firmly established both in Canada and abroad. (...) Requests for our publications come from all over the world and some of our work has been translated. Legal scholars from many different countries have relied on our work, praised it, and criticized it in their legal journals. In this way the Commission has acted as an important means of disseminating Canadian legal scholarship to other countries.

    In addition to stimulating scholarly research, the Commission provides excellent training for young legal scholars who have just completed their formal schooling. (...) After leaving, many Commission researchers have continued to engage in scholarship. Some have become law professors, government policy-makers or have been active practitioners working at the frontiers of law reform. We believe that through its legal research, the Commission has helped to foster, build and disseminate, nationally and internationally, a uniquely Canadian perspective on legal scholarship.

    Another function of a law reform commission is to educate the public. (...) There is no doubt that part of our effort to achieve better laws is carrying on a dialogue with the public. We want to find out what people feel about our present laws, how they think the laws can be improved and whether the Commission's recommendations can meet some of their concerns.

    The Commission carries on this dialogue in different ways. One way is through informal public meetings. Over the years the Commission has held public meetings in different cities in most provinces of Canada (...). The topics discussed have included corporal punishment, sports violence, wife battering, endangering, environmental pollution and criminal intoxication.

    Another way in which the Commission educates the public is through the free distribution of all our publications. The public is invited to comment on our recommendations. Their responses are recorded and their suggestions considered in the formulation of our final recommendations to Parliament. (...)

    A third contribution of the Commission has been the development of Canadian jurisprudence through court decisions which rely on our work. Our publications provide a body of independent and scholarly analysis that can be easily incorporated into reasons for judgment. More recently, with the enactment of the Canadian Charter of Rights and Freedoms, the Commission's recommendations, which are informed by fidelity to the principles contained in the Charter, have helped the judiciary in resolving certain legal issues arising in litigation. Our papers have been cited in 200 reported decisions, 30 of which were decisions of the Supreme Court of Canada."

    Law Reform Commission of Canada, Making law reform happen, in Making law reform happen, pages 292-295.
  • [251] Comments received in a meeting with Antonio Lamer, former Chief Justice of Canada and former President of the Law Reform Commission of Canada, on 16 January 2003 in Ottawa. Comments received in a telephone conversation with François Handfield, former secretary of the Law Reform Commission of Canada, on 23 January 2003.
  • [252]

    "Law Reform Commissions not only contribute to legislative reform, they also do research, they educate, they help the judiciary and they foster change in conduct. All of these are important activities that encourage law reform. They alter the climate of the legal system, facilitating changes in the laws. All of these accomplishments are important, in addition to legislative reform."

    Law Reform Commission of Canada, Making law reform happen, in Making law reform happen, pages 309-310.
  • [253]

    "The mandate and constituency of law reform agencies, at least as I see them, are generally broader than the mandate and constituency of government-based law reform machinery of whatever ilk, be it a policy development division or a law reform branch. Government law reform machinery invariably serves the government in power. The officials who prepare the proposals necessarily have a confidential relationship with their Minister which may obscure objectivity and place considerable constraints on free public discussion. An initiative may not be the subject of full and open public debate until it appears in the form of a Bill on the floor of the Legislative Assembly. This is not always a bad thing. Certainly arguments from efficiency and legitimacy can be mustered in support. However, one of the hallmarks of the work of the independent Canadian law reform agencies is full and wide consultation on all aspects of that work at all stages, whether the issues are technical law or issues of social policy and whether they are oriented to remedying a present ill or to anticipating a development five or ten years into the future. This no doubt related in part to the nature of the constituency served by such bodies ; this includes government but embraces also academics, lawyers, judges, other law reform agencies and the general public. The real milieu of these bodies is the marketplace of ideas. Implementation of their recommendations, while welcome, is not the only measuring stick of success. The generation of informed debate can itself often be genuinely useful."

    Christopher Curran, Law reform in the lean, mean '90s, Atlantic Institute of Criminology, Federal Law Reform Conference : Final report, pages 2-3.
  • [254]

    "The top of my list for non-criteria is implementation. If we accept (...) that much of what we research ought to have a focus aimed several years away, then clearly the highest goal we can aspire to is a major contribution to the clarification of the issues in a public debate we either inspire or expand through our work. (...) By providing good analysis, we assist not only the elected decision-makers, but those by whom they are importuned. With luck, timing and the persuasive content of the Reports, we may from time to time enjoy the satisfaction of seeing our work statutorily endorsed, but that alone can never be the exclusive measure of relevance or a successful mandate."

    Rosalie Abella, The role of law reform commissions, Report of a meeting of Commonwealth Law Reform Agencies held in Auckland, New Zealand, 1990, page 100.
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