Law reform agencies

Notes and References

  • [101] The Legal Profession Act, Statutes of Prince Edward Island, 1992, chapter 39.
  • [102] The Law Foundation of Prince Edward Island, like other provincial law foundations, is the recipient of the interest that banking institutions must pay on funds held in lawyers' general trust accounts. The interest is then made available to organisations engaged in specific legal activities.
  • [103] The Law Reform Commission Act, Statutes of Manitoba, 1970, chapter 95.
  • [104] The Law Reform Commission Act, Statutes of Manitoba, 1989-90, chapter 25.
  • [105] General information on the Manitoba Law Reform Commission can be found at www.gov.mb.ca/justice/mlrc
  • [106] The Manitoba Law Foundation, like other provincial law foundations, is the recipient of the interest that banking institutions must pay on funds held in lawyers' general trust accounts. The interest is then made available to organisations engaged in specific legal activities.
  • [107] The Law Reform Commission Act, Statutes of Manitoba, 1989-90, chapter 25, section 3(1).
  • [108]

    "Since our establishment in 1970 by an NDP [New Democratic Party] Government, it then attempted to abolish us seventeen years later only for us to be resurrected by the Conservatives in 1988, who later also tried to abolish us in 1997. We are now in our second resurrection. Although we are still struggling with our lack of staff and resources, our rapport with the current government is very good and we hope that in the not too distant future we might find ourselves on a more stable footing."

    Manitoba Law Reform Commission, Thirtieth annual report 2000-2001, page 3.
  • [109] According to its 2001-2002 annual report, the Commission had receipts of $143,000 and expenditures of $140,000. The corresponding figures for the 2000-2001 fiscal year were $138,000 and $121,000, respectively.
  • [110] The Law Reform Commission Act, 1971, Statutes of Saskatchewan, 1971, chapter 21.
  • [111] The Law Reform Commission Act, 1971, Statutes of Saskatchewan, 1971, chapter 21, section 6.
  • [112] The original governing legislation provided for five Commissioners. The Law Reform Commission Act, 1971, Statutes of Saskatchewan, 1971, chapter 21, section 3(1). This statute was amended in 1973 to include not less than three members. An Act to amend the Law Reform Commission Act, 1971, Statutes of Saskatchewan, 1973, chapter 54, section 1.
  • [113] The Saskatchewan Law Foundation, like other provincial law foundations, is the recipient of the interest that banking institutions must pay on funds held in lawyers' general trust accounts. The interest is then made available to organisations engaged in specific legal activities.
  • [114] These projects considered matters relating to powers of attorney ; liability of board members in the not-for-profit sector ; and partition and sale of real property in co-ownership.
  • [115] The Newfoundland Law Reform Commission Act, 1971, Statutes of Newfoundland, 1971, no. 38.
  • [116] Christopher Curran, Law reform in the lean, mean 90s, Atlantic Institute of Criminology, Federal Law Reform Conference : Final report, page 1.
  • [117] As well as carrying out law reform projects, the mandate of the Legislative Services Branch includes the provision of a centralised legislative drafting service to all departments or agencies of the New Brunswick government.
  • [118]

    "But the most important and most challenging objective of the Office of revision is the reexamination of the basic policies underlying the main institutions of the Civil Code. The Code is a little more than one hundred years old. And yet, in substance, it is much older. Indeed, in view of the fact that the Codification of 1866 was substantially a Redaction of the "Ancien Droit," the Civil Code of Quebec is in essence the product, in family law, of the moral authoritarianism, in the law of ownership, of the philosophical individualism, and, in the law of contract, of the economic liberalism of past centuries. And no one need here be reminded of the fact that (...) a number of things have happened in the world since 1866. Events both of local and of worldwide magnitude have considerably affected and modified our thinking and our values about many social, moral and economic problems."

    Paul-André Crépeau, Canada, droit civil, page 35.
  • [119]

    "The Draft was a model document for a Civil Code. As much by its ambitions as by its methodology, it reflected the great qualities of that form of enactment : rational, a priori, comprehensive, written in a clear and discursive style."

    John Brierley and Roderick Macdonald, Quebec Civil Law, page 89.
  • [120] The Institute's mission is to "submit proposals to the Minister concerning the reform and development of the law, through means which include adapting the judicial system to the needs of society, simplifying, codifying and seeking consistency among the rules of law and rendering more humane the institutions involved in the administration of justice."

    An Act respecting the Institut québécois de réforme du droit, Statutes of Quebec, 1992, chapter 43, section 2.
  • [121] An Act respecting the Institut québécois de réforme du droit, Statutes of Quebec, 1992, chapter 43, section 20.
  • [122] The Law Commission Act 1985, Statutes of New Zealand, 1985, No. 151. This Act came into force on 1 February 1986.
  • [123] The stated objectives of the Commission are to improve the content of the law, the law-making process, the administration of law, access to justice, and dispute resolution between individuals and between individuals and the state.
  • [124] A select committee is a Parliamentary committee appointed for a particular purpose.
  • [125] Norman Marsh, Agencies of law reform in the Commonwealth, proceedings and papers of the Fifth Commonwealth Law Conference, page 14.
  • [126] 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.
  • [127] Details received in correspondence with the secretary of the Law Commission for England and Wales, Michael Sayers, dated 15 April 2002.
  • [128] Bruce Robertson, The potential for law reform agencies, page 2.
  • [129] Total revenues from ordinary activities were actually $3.4 million (Australian). Additional sums were realised through the sale of goods and services, interest, grants from the Department of Health & Aged Care and Attorney General's Department, and other minor contributions. The corresponding figure for 2000-2001 was $3.3 million (Australian).

    Australian Law Reform Commission, Financial statements 2001-02.
  • [130]

    "The main source of operational funding for the Institute has been a grant from the British Columbia Law Foundation. [T]he Institute also receives funding to assist it in carrying out particular projects."

    British Columbia Law Institute, A report on year five : 2001-2002 annual report, page 3.
  • [131] Details provided in a telephone conversation with Arthur Close, current member of the British Columbia Law Institute and former chair of the British Columbia Law Reform Commission, on 7 August 2003.
  • [132] The National Association of Friendship Centres, established in 1972, is a non-profit organisation. It works to improve the quality of life for Canadian aboriginal people living in an urban environment.
  • [133] This partnering is not unique to the current Law Commission of Canada. The statute governing Canada's first Law Reform Commission stated that the Commission could enter into joint projects with other law reform commissions, and it had a duty to make use of available resources from other government departments or agencies. The cooperative approach has become more important in recent years because of the Law Commission of Canada's limited budget.
  • [134] Peter Gibson, The relationship between law reform agencies and the ministers or governments they advise, Report of a meeting of Commonwealth Law Reform Agencies held in Auckland, New Zealand, 1990, page 73.
  • [135] Both the provincial government and the Manitoba Law Foundation currently fund the Commission. The Law Foundation provided slightly over one third of its total funds in 2001.
  • [136] J. N. Lyon, Law reform needs reform, Osgoode Hall Law Journal, volume 12, 1974, pages 429-430.
  • [137] Comments received in a telephone conversation with François Handfield, former secretary of the Law Reform Commission of Canada, on 23 January 2003.
  • [138] 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 meeting with Gilles Létourneau, federal Court of Appeal judge and former President of the Law Reform Commission of Canada, on 27 January 2003.
  • [139] Appointments should be staggered to ensure maximum operational continuity and minimum disruption. It should be noted that the British Columbia Law Institute and the Albert Law Reform Institute have fourteen and thirteen members, respectively. Neither body is a law reform commission specifically established by statute.
  • [140] 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.
  • [141] Comments received in a meeting with John Briggs, executive director and general counsel of the Law Reform Commission of Nova Scotia, on 5 February 2003 in Halifax.
  • [142] The Law Commission Act 1985, Statutes of New Zealand, 1985, No. 151, section 9.
  • [143] Details obtained in a conversation with the President of the New Zealand Law Commission, Mr. Justice Bruce Robertson, on 14 June 2002 in Dhaka, Bangladesh.
  • [144] One Member of Parliament, worried about the risk of conservatism that this requirement entailed, urged the government to also appoint younger members to the Commission :

    "I see that the bill provides that a majority of the members should be persons who have been judges or lawyers with ten years' experience. I hope the minister will strive very hard to get younger people appointed to this commission, so that it will not be composed largely of senior people.

    In the legal profession I think the tendency to be concerned about reform in any way is apparent among the younger generation and not among the senior generation of lawyers, by and large. It would seem to me that on this commission we need people with radical ideas. A law reform commission could very easily turn its attention to the tidying up here and there of little details. The hon. member for Carleton (Mr. Blair) seems to believe it is an important function. I do not think it is an important function. I believe such a commission should come up with radical ideas in respect of making the law more just in its application."

    Andrew Brewin, House of Commons Debates, Volume IV, 1970, page 3975.
  • [145] The Law Reform Commission Act, Statutes of Canada, 1969-70, chapter 64, section 4(3).
  • [146] An Act to amend the Law Reform Commission Act, Statutes of Canada, 1974-75-76, chapter 40, sections 1 and 2.
  • [147] Norman Marsh, Agencies of law reform in the Commonwealth, proceedings and papers of the Fifth Commonwealth Law Conference, page 14.
  • [148] 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 meeting with Gilles Létourneau, federal Court of Appeal judge and former President of the Law Reform Commission of Canada, on 27 January 2003.
  • [149] Francis Bennion, Additional comments, in Graham Zellick, The law commission and law reform, page 60.
  • [150] 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.
  • [151] During the debates on the creation of the Commission, one Member of Parliament made the following comment :

    "The other aspect, and I am sure the minister will keep this in mind, is the need for the use of what I might call the cross-discipline aspect of law reform. For too long I think, lawyers have thought of the law as their preserve. This is by no means the case. I hope very much that when the minister gets around to amending the criminal law, for instance, a great deal of attention will be paid to the useful and perceptive suggestions of others in the community engaged with crime and its results."

    Gordon Fairweather, House of Commons Debates, Volume IV, 1970, page 3964.

    Another Member went even further, suggesting that the proposed legislation expressly require the appointment of non-jurists :

    "If the commission is to operate efficiently, it must be composed of qualified men. In order to obtain qualified barristers, we will have to pay them. Aside from that, it is possible that laymen could make a valuable contribution to the work of the commission. It states in the bill that four of the six commissioners must be lawyers or judges, but it does not say that the other two may be laymen. In the discretion of the minister, all six may be judges or lawyers. I suggest to the minister there should be a provision in the bill which would guarantee that at least a certain number of lay people would form part of the commission. It could be two or perhaps three, but let us make absolutely sure that laymen are included."

    Melvin McQuaid, House of Commons Debates, Volume IV, 1970, page 3988.
  • [152] The Law Commission Act of Canada, Statutes of Canada, 1996, chapter 9, sections 7(2) and 7(3).
  • [153]

    "The Law Commission lacks expertise in policy analysis and economic analysis, both of which are important to the development of modern legislative reform. Such analysis is particularly important for projects with a social policy content. Steps should be taken to remedy these deficiencies. It is recommended that the Law Commission bring greater interdisciplinary expertise to its deliberations than it has done so far. One Commissioner should come from a discipline outside the law. Some of the Commission's researchers should come from other disciplines as well."

    Sir Geoffrey Palmer, Evaluation of the Law Commission, page 19.
  • [154] J. N. Lyon, Law reform needs reform, Osgoode Hall Law Journal, volume 12, 1974, page 426.
  • [155] J. N. Lyon, Law reform needs reform, Osgoode Hall Law Journal, volume 12, 1974, page 426.
  • [156] J. N. Lyon, Law reform needs reform, Osgoode Hall Law Journal, volume 12, 1974, page 430.

    These sentiments were echoed a decade later by an Oxford University academic and former member of the Law Commission for England and Wales :

    "On significant issues of policy affecting the law, laymen ought to be as concerned as lawyers. Lawyers may be good conduit pipes for information as to the incidence of the breakdown of legal rules and, most certainly, for technical advice on repairs to the legal plumbing — but they have no more standing on issues of social policy than any other professional or interest group."

    Peter North, Is law reform too important to be left to lawyers?, Legal Studies, volume 5, 1985, page 129.
  • [157] Law Reform Commission of Nova Scotia, Builders' liens in Nova Scotia : Reform of the Mechanics' Lien Act, Discussion paper, January 2003. This paper examines liens, or charges, on the property of another person held as security for the payment of a debt.
  • [158] Comments received in a telephone conversation with commissioner Arleen Paris, on 5 February 2003 in Halifax.
  • [159]

    "Significantly, the statute does not require the inclusion of a layman nor does it require the Commissioners to be representative of the different branches of the legal profession, and this reveals an English point of view concerning law reformers, one not shared by many other countries. This seems to be that lawyers, and lawyers alone, are the persons best equipped to deal with the technicalities of law reform and that consultation with outside experts can be relied upon to achieve an overall opinion. In addition, the criterion for selecting a Commissioner should always be his outstanding qualifications and not his leadership of any branch of the profession ; moreover, non-representative Commissioners may be more radical and more easily agreed in their proposals because they do not feel bound to represent the interests of their own branch of the profession."

    Ruth Deech, Law reform : The choice of method, Canadian Bar Review, volume XLVII, 1969, page 404.
  • [160] J. H. Farrar, Law reform and the law commission, page 122.
  • [161] During the House of Lords debate on the bill establishing the two Commissions, Lord Wilberforce argued that non-lawyers should have a role to play since law reform was "much too serious a matter to be entrusted to lawyers".

    J. H. Farrar, Law reform and the law commission, page 24.
  • [162] Stuart Garson, Canadian Bar Review, volume XXXIII, 1955, page 131.
  • [163]

    "[A] Law Commissioner must have a questioning, critical and original approach to the solution of legal problems. He must take nothing for granted and should not be easily persuaded either that all is well or that all is not well. He must be ingenious and determined in seeking changes, but should not support any change until he has looked all round the possible consequences of change, both direct and indirect, not only in the area of law immediately involved but also in all neighbouring areas which may be affected by such change. He must be at once radical and conservative, in the primary senses of these terms, and he must have a real understanding, based on experience, of the mores, customs, and attitudes of the society which he serves."

    Lord Hunter, The meanings and the methods, proceedings and papers of the Fifth Commonwealth Law Conference, page 5.
  • [164]

    "Should membership be a salaried appointment? The English Law Reform Committee employs the method, traditional in the country, of voluntary work. It is considered an honour to serve on such a committee, and each member works without remuneration. In contrast, the New York Law Revision Commission, constituted in 1934, is a salaried body ; and no doubt the payment of a salary encourages less diffidence in making claims on the time of the members. One possible answer, which seeks to get the best of all worlds, is that the members of the committee itself should be volunteers, but that there should be one or more salaried research workers attached to the secretariat of the committee who could save the members of the committee much time both in investigating the existing state of the law and in drafting the reports."

    R. E. Megarry, Law reform, Canadian Bar Review, volume XXXIV, 1956, pages 706-707.
  • [165]

    "In terms of linkages, government should look to ad hoc associations with researchers on discrete projects. It is not efficient to house law reform people in the public service. There are too many political and bureaucratic constraints on their freedom of action and thought. And the likelihood of their being productive over the full course of their public service employment is not great. It makes far more sense to engage experts and researchers on an ad hoc basis."

    Wade MacLauchlan, Canadian federal law reform for the 90's : Solvency, sovereignty, linkages and innovation. Paper presented at the Federal Law Reform Conference held in Halifax in 1993, page 12.
  • [166] Francis Bennion, Additional comments, in Graham Zellick, The law commission and law reform, page 61.
  • [167] Francis Bennion, Additional comments, in Graham Zellick, The law commission and law reform, page 61.
  • [168] Comments received in a telephone conversation with François Handfield, former secretary of the Law Reform Commission of Canada, on 23 January 2003.
  • [169] For example, the Law Commission of Canada has produced a stage play on personal relationships. This project involves the audience to assist in getting the Commission's message across. The Commission has also produced a short video presentation on restorative justice. Restorative justice is a creative approach to resolve conflict that brings victims, offenders and the community together to try to arrive at a just solution for all concerned.
  • [170]

    "I suggest that the problem is not as simple as it is thought to be, so that the law-versus-policy dichotomy does not lead to a satisfactory definition of law reform. What has happened is that the narrow and specialized conception of law that is quite properly imposed on lawyers for purposes of judicial decision and its attendant counsel function (...) has been applied in law reform to the larger legal process that is an integral part of the whole system of government. Legal process in this larger sense is, unlike judicial decision, loaded with policy matters, and they are matters on which the experience of lawyers is vital to good government and effective reform. In any case, one could easily demonstrate that almost every law reform Commission report ever published has at its heart the recommendation of one policy in preference to another, the legal research function having served to identify the key policy questions, to show which of the alternative policies is presently expressed in the law, and how well it is working. The key function of the Commission is to recommend one policy over another or to indicate the relative merits of feasible alternatives, and to defend its recommendations."

    J. N. Lyon, Law reform needs reform, Osgoode Hall Law Journal, volume 12, 1974, page 427.
  • [171]

    "I noted earlier the preponderance of criminal law and procedure as the law du jour on the LRCC menu. Why not unemployment insurance? Why not substantive immigration law, or labour law, or environmental law, or competition law? It is certainly the case that the Commission has historically been comprised of people with a criminal law slant, which quite naturally results in the identification of criminal law as the area most urgently in need of reform. Moreover, my hunch is that the Commission considered that resolution of the competing interests and concerns in these areas to belong more to the realm of "politics" than "hard law". Nothing supports such a distinction, except the self-interest of Commissioners in appearing to be non-partisan and non-political by confining themselves to a subject area where political choices can be buried in the abstraction of "general principles," precedent and hoary doctrines that have been around so long that they are treated as having spontaneously generated out of the word "justice.""

    Audrey Macklin, Law reform error : Retry or abort?, Dalhousie Law Journal, volume 16, 1993, pages 400-401.
  • [172] J. N. Lyon, Law reform needs reform, Osgoode Hall Law Journal, volume 12, 1974, page 430.
  • [173]

    "What I would also resist is the notion that our mandates be presumed to exclude broader policy questions. To restrict ourselves to the suggestion that law is a scientific rule-making discipline ignores the increasing understanding of the social and political components in any legal system. We are uniquely positioned to cross-fertilize with other disciplines and a wider public, and they, no less than the legal profession who translate law into rights and remedies, are entitled to assist in the determination not only of relevance but of 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.
  • [174]

    "Tied to process issues are requirements for substantive law reform research. In particular, there is a need for comparative study of regimes of employment law, environmental protection, human rights, consumer protection, supply management, and technological standards in other jurisdictions. The ultimate goal of trade liberalization is a common market. It would be very dangerous for Canada to enter into a common market without first knowing how its regulatory standards compare with those of its common market partners. Moreover, once an agreement is in place, there is endless potential for domestic reforms to be driven by the need for coordination and harmonization. Unless the process of harmonization is to devolve into a race to the bottom, there must be detailed understanding of the legal requirements, the underlying policy considerations, and the legal and political culture of Canada's trading partners. In an era of trade liberalization, Canadian sovereignty may ride as much on the technical competence and the sophistication of our research on comparative law and policy as it does on the political resolve of elected governments."

    Wade MacLauchlan, Canadian federal law reform for the 90's : Solvency, sovereignty, linkages and innovation. Paper presented at the Federal Law Reform Conference held in Halifax in 1993, page 8.
  • [175] Reports and working papers in the criminal law field made up more than 70 percent of the output of the former Law Reform Commission of Canada.
  • [176]

    "One of the principal strengths of free-standing law reform agencies separate from government is arguably their independence — their freedom to select a project agenda, to conduct dispassionate scholarly research, to consult widely and to arrive at recommendations for reform in a non-partisan fashion. One must be careful, of course, to understand this independence not as freedom to pursue the irrelevant, but rather as the capability and responsibility to pursue the important and not to have it displaced by the immediate or expedient, as is sometimes the case in government."

    Christopher Curran, Law reform in the lean, mean '90s, Atlantic Institute of Criminology, Federal Law Reform Conference : Final report, page 2.
  • [177] These comments on the Law Commission for England and Wales are based on the text of S. M. Cretney, The programmes : Milestones or millstones?, in Graham Zellick, The law commission and law reform, pages 4-8.
  • [178] John Turner, House of Commons Debates, Volume IV, 1970, pages 3995-3996.
  • [179]

    "I hope this new commission will not concern itself only with big matters. I hope it will not be over-impressed by the fact it has the capacity to solve some of the larger legal problems of this country. I hope it will direct its attention continuously and in detail to all the minor law reforms which it is necessary to make."

    Gordon Blair, House of Commons Debates, Volume IV, 1970, page 3970.
  • [180]

    "The Act makes it clear that more than a remedial role is contemplated for the Commission. While an important part of its function will be the removal of anachronisms and anomalies in the law and the elimination of obsolete laws, it is also directed to apply itself to a more fundamental and far-reaching endeavour, that of developing new approaches to and new concepts in Canadian law. It is basic to the role of the Commission that it build into the law the ability to anticipate and monitor social trends with which the law may eventually have to deal. This capacity to think ahead will be necessary to avoid needless confrontation between the legal system and the vanguard of social change. The Commission does not lose its flexibility once it has committed itself to a particular project. Its overriding duty to keep under review all the laws of Canada remains. This balance of program between major projects for reform and minor remedial response is, indeed, essential to a proper understanding of the institutional role of the Commission. It has a continuing responsibility of vigilance, and the duty, as well as the right, to bring isolated or minor defects to immediate notice, with a view to their correction."

    Law Reform Commission of Canada, Federal law reform in Canada, in Manifesto for law reform, page 21.
  • [181]

    "We labour under a dilemma of sorts in all of this. There are many who urge us to make dramatic recommendations for the future which are pure and perfect, and not to worry about small, practical suggestions. There are other people who would have us make pragmatic suggestions for improving little parts of the criminal law and to forgo purity and perfection. The former course may lead to a situation where very few, if any, of our recommendations would be enacted into law, at least in the near future. There may be some who would wonder whether the expenditure of public funds for this purpose would be justified. The latter approach would leave the Commission without a noble raison d'être. It would become merely an extension of the Department of Justice, making minor, everyday proposals which have a chance of quick passage. This strategy would disappoint those who conceived this Commission I am sure, even if our batting average were improved thereby.

    For me, neither of these options is entirely satisfactory. I believe the Commission ought to seek to do both of these things.

    I want to dream dreams. I want to think deeply about the criminal law in order to try and understand its role in our society and I want others to join us in this "deep, philosophical probe." This is a vital exercise for a young nation at this period of its history. The Law Reform Commission wants to be a stimulus to this enterprise.

    However, I feel that this is not enough for the Commission. I also want to be a pragmatist. I believe that, while continuing to dream, we can make sensible suggestions for immediate enactment that would improve the current system of criminal justice and move the law in the general direction that we wish to travel in pursuit of our dreams.

    As you will see, I want to be a dreamer as well as a pragmatist — a pragmatic dreamer or a dreaming pragmatist. I think we can do both of these things, and, in doing so, I believe we will best serve the Canadian public and also fulfill the hopes and expectations of those who gave birth to this institution."

    Law Reform Commission of Canada, A pragmatic dreamer, in Taking law reform seriously, pages 31-33.
  • [182]

    "The first few years of law reform in Canada found the commission dealing with law as if it was abstract rules and with reform as if it existed in a political vacuum. There was a clear tendency for them to try to appear as much like courts as possible, without embarrassing the governments that appointed them by discussions of the basic social and economic issues. Proposals for reform were based on lofty concepts of fundamental rights, fairness or the policy of justice instead of a candid identification of the social ends served by the present law and an argument for change based on the need for the law to serve different ends. Early reform proposals often tended to deal with minor areas that had troubled lawyers and academics but nobody else. Commissions reassured themselves that tidying up such matters was a central element of law reform, since if they didn't do so, nobody else ever would.

    Law reform commissions are not courts, however, and cannot successfully perform their necessary function if they adopt the supra-political posture afforded to the courts by our constitutional arrangements. Nor can they long get away with borrowing the technique from the courts of issuing fiats of "do this" or "stop doing that," supported only by some general invocation of justice. That is not good enough. I happen to agree with John Dewey's observation that : "Law is through and through a social phenomenon ; social in origin, in purpose or end, and in application (...) 'law' cannot be set up as if it were a separate entity, but can be discussed only in terms of the social conditions in which it arises and of what it concretely does there." For a law reformer to ignore this is to run the risk of making law reform proposals that will be nothing more than cosmetic exercises in which ponderous and exhaustive analysis of detail gives the convenient appearance of great forward motion, while leaving the fundamental matters that cry out for change — such as the distribution of rights, opportunities or power — safely untouched. Such a reformer could, I imagine, be suspected of placing the greatest emphasis on his fearless disregard of the political consequences of his proposals. Were this to occur, it would be difficult to say whether it is his principles or his proposals that are more insignificant. This is not to say, however, that a law reform commission cannot or should not be given the responsibility of "tidying up the law." But to limit a law reform commission's activities to such a task is to emasculate it of what makes it an essential component of our policies system. Now, to do the sort of law reform that is relevant to social needs requires more than a logical analysis of law as a set of verbal propositions. It requires an examination of law in its social context, and an evaluation of law in terms of values. It requires making the attempt to discover not just what lawyers think about the present law and lawyers' alternatives for change, but also to discover how the people perceive the law and the changes they would like to see. The Law Reform Commission of Canada accordingly adopted a two-step procedure in formulating recommendations. We decided to publish study papers and working papers as the first step in the law reform process. Only after learning as much as we could from the public response to them, would we then make our suggestions to Parliament.

    This takes time and it takes people. When the federal commission was first set up, we consulted with some of the established law reform bodies about their methods and reform techniques. Much of what we learned was helpful, but there was one bit of advice we rejected. We were advised that insurance for institutional success in law reform could be obtained by a series of minor reports on obscure and noncontroversial topics. Such reports would show everyone that we were keen and efficient law reformers without the time and effort that is involved in doing something of social significance — and without the slightest possibility of offending anyone. The law reform professionals even had a name for this sort of stuff : "Potboilers." They look impressive on the commission's scoreboard. They keep the Minister happy by making him look like the patron of legal progress, while at the same time, not subjecting him to the possibility of any criticism. We adopted a non-potboiler policy and we intend to stay with it. We conceive of our business as trying to come up with solutions to social problems caused by the retention of archaic laws. Somebody else can harpoon the beached whales."

    Law Reform Commission of Canada, Reformaction, pages 105-107.
  • [183] 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.
  • [184] Comments received in conversation with Mr. Justice Bruce Robertson, President of the New Zealand Law Commission on 14 June 2002 in Dhaka, Bangladesh.
  • [185]

    "If government is willing to adopt [Nova Scotia] Commission proposals, or at least to consider them seriously, then the Commission's profile and credibility with the public will also be enhanced."

    Law Reform Commission of Nova Scotia, A continuing need for law reform, page 20.
  • [186] Stuart Garson, Canadian Bar Review, volume XXXIII, 1955, page 131.
  • [187]

    "Regular, even automatic, examination of law reform proposals by Parliamentary committees prior to the introduction of legislation would, I believe, result in a better prospect of more substantial reform acceptable generally to Parliament being introduced. What this needs is a firm ministerial commitment to improvement of the Parliamentary machinery of law reform."

    Peter North, Is law reform too important to be left to lawyers?, Legal Studies, volume 5, 1985, page 131.
  • [188]

    "I see no reason to allow freedom to the Law Commission to spend the resources given to it on the carrying out of a full project of law reform either without first having to ask for consent or upon refusal of that consent. The power of the Law Commission to explain its proposals, and to report any reasons given for refusal, in the Annual Report is a sufficient method of ensuring that Parliament and the public know what has been proposed. It is then for others to persuade Government to take a different view, or for a later administration to take up the rejected proposal."

    Sir Ralph Gibson, Machinery and responsibilities, in Graham Zellick, The law commission and law reform, page 50.
  • [189]

    "Nor do I see any reason for the Law Commission as a matter of policy to eschew working with a Government department upon a particular project if so to do fits into the planned work of the Commission in some part of the law and if the value of the assistance which can thus be given appears to be greater than is likely to be derived from applying the time of the Commissioner and team members to other work. I do not think that the independence of the Law Commission is in any sense threatened by working closely with Government."

    Sir Ralph Gibson, Machinery and responsibilities, in Graham Zellick, The law commission and law reform, page 51.
  • [190]

    "Social and economic change is fast-paced. An independent agency is ideally suited to taking a longer-term and strategic look at these changes and anticipate the kinds of law, legislation, processes, institutions and policies necessary to respond to them. (...) Some of the most pressing of these problems do not easily lend themselves to immediate solutions through amendments to statutes. Broad research into underlying causes and comparative approaches is necessary to determine whether legislation might even be the most effective response. Contemporary legal problems typically cross ministerial boundaries and require cooperative action and joint sponsorship. The Law Commission's independence from the Department of Justice permits it to imagine, to undertake and to manage multi-departmental law reform projects that are not necessarily driven by the government's legislative agenda."

    Law Commission of Canada, Rationale, (link unavailable)
  • [191]

    "While being careful to preserve our independence, we have developed closer links with the main Government departments responsible for the legislation covered by our projects, both before and after publication of our reports. We have regular meetings with the departments, at Ministerial level and/or official level. We discuss a proposed project with the department in advance, to ensure that the department is fully committed to the project and to assist the department and the Ministerial Committee on Law Reform. Nowadays, we often seek financial assistance from the department to enable us to undertake a particular project. We also keep the department informed of progress during the project. This enables the Commission for example to be kept informed of relevant work planned by Government and of relevant research or other studies in which Government is involved."

    Law Commission for England and Wales, Eighth programme of law reform, page 51.
  • [192] Jeremy Mathews, The relationship between law reform agencies and the ministers or governments they advise : A Hong Kong perspective, Report of a meeting of Commonwealth Law Reform Agencies held in Auckland, New Zealand, 1990, pages 81-84.
  • [193] The Law Reform Commission Act, Statutes of Canada, 1970, chapter 64, section 16.
  • [194] The Law Reform Commission Act, Statutes of Canada, 1970, chapter 64, section 18(c).
  • [195] Bill No. 75, An Act to establish the Ontario Law Reform Commission, Second Session of the Twenty-seventh Legislature, 1964.
  • [196] The Attorney General, Fred Cass, had the following general comments about the law reform bill :

    "[T]he title to the proposed Act and the provisions of the bill amply demonstrate that this government is prepared to provide the vehicle for a proper study, by appropriate and competent people of stature, of our laws in Ontario. The bill further indicates that the government is prepared to support that in a financial way. But (...) it would be quite inappropriate (...) to endeavour to outline for the chairman and members of the Commission where they should start and in what area they should first go to work. (...) It will consist of people (...) from the legal teaching profession, from the bench, and from the legal profession. (...) [T]his is a new departure for English law of the provinces of Canada. It is one that we think is desirable, one that would bring tremendous results, but it is one that must be entered into with caution, and with care and with due thought."

    Legislature of Ontario Debates, 11 March 1964, page 1491.
  • [197]

    "[T]his Commission will report as required by the Act to the Attorney General and then those recommendations undoubtedly will be referred to the Attorney General's advisory committee, which is the operative committee and which advises as to legislation, and thereafter, as now, will come to this House.

    The reports of the Commission (...) would (...) be public reports and might well be tabled in the Legislature, but this is purposely not included in this bill at this time. (...) It could well be that those people we might have in mind to approach to be members of this Commission might well feel that their recommendations and reports to the Attorney General should be confidential reports until their recommendations had been considered by the government.

    It might well be that the Commission would consider that their reports might be public reports. So far as I am concerned, I see no reason why they should not be public reports and either tabled in the Legislature or released for the information of (...) the general public. I think that is a matter (...) which must be left until the personnel of the Commission are appointed."

    Legislature of Ontario Debates, 11 March 1964, page 1492.

    After further questions from the opposition concerning the reporting procedure for the Commission's reports, the Attorney General added :

    "It certainly is not the intention of (...) the government, to keep the reports of this Commission in any way secretive (...).

    There are (...) no restrictions on what the Commission may take as their area of inquiry or how they may proceed. In England, the Lord Chancellor's committee is appointed by the Lord Chancellor. It only looks into those matters that are referred to it by the Lord Chancellor, who is a semi-political judge, he is a member of the government. It reports confidentially to the Lord Chancellor who, if he wishes, may make it public (...).

    I think it is very advisable that the bill remain in its present form. I (...) have no objection to having the matter reconsidered when the Commission is set up, and we have a chance to ascertain how the chairman and members wish to operate, how they wish to report, and what they suggest should be done with their reports."

    Legislature of Ontario Debates, 11 March 1964, page 1493.
  • [198] Graham Zellick, Additional comments, in Graham Zellick, The law commission and law reform, page 74.
  • [199] The Law Reform Commission Act, Statutes of Canada, 1970, chapter 64, section 12(1)(c).
  • [200] The Law Reform Commission Act, Statutes of Canada, 1970, chapter 64, section 12(2).
Date modified: