The International Cooperation Group

1

The Lord Chancellor is the nearest equivalent in the United Kingdom to a Minister of Justice. The Lord Chancellor is a Cabinet minister, acts as Speaker in the House of Lords (the Upper Chamber in Parliament) and sometimes sits as a judge in the House of Lords (the senior-most court in the United Kingdom).

2

John Farrar, Law reform and the law commission, page 9.

3

John Farrar, Law reform and the law commission, page 14.

4

The Home Secretary is the Secretary of State heading the Home Office. The Home Office is the British government department in charge of matters such as law and order and immigration in England and Wales.

5

John Farrar, Law reform and the law commission, page 14.

6

Information obtained from the secretary of the Law Commission for England and Wales, Michael Sayers, in correspondence dated 21 May 2003.

7

The following overview is based mainly on William Hurlburt's book, Law reform commissions in the United Kingdom, Australia and Canada, pages 173–178, which provides invaluable information on the early days of law reform in Canada.

8

One of its main accomplishments was the Certification of Titles Act of 1958. The Committee is also credited with bringing about amendments to a number of provincial statutes, including the Conditional Sales Act, the Coroners Act, the Deserted Wives' and Children's Maintenance Act, the Evidence Act and the Wills Act.
See Morgan Piper, Law reform in Ontario, Canadian Bar Journal, volume 2, number 1, 1959, pages 443–444.

9

The Nova Scotia Barristers' Society is the governing body for the legal profession in the province of Nova Scotia.

10

The Law Society of Alberta is the governing body for the legal profession in the province of Alberta.

11

The Royal Commission has also traditionally served as a mechanism for law reform. A Royal Commission is a commission of inquiry appointed by the government to investigate into an area of public concern and make recommendations in light of its investigation. But Royal Commissions suffer from the same fundamental weakness as law reform committees. Furthermore, Royal Commission proposals are kept secret until the publication of a final report, and their creation has sometimes been perceived as little more than a delaying tactic for the government to avoid taking serious and tangible reform action.
On the issue of Royal Commissions and law reform, see Ruth Deech, Law reform : The choice of method, Canadian Bar Review, volume XLVII, 1969, pages 401–402.

12

The terms "law reform commission", "law reform agency" and "law reform bodies" are used interchangeably throughout this book.

13

"A difficulty presents itself at the outset : it is that none of our existing institutions possesses, in itself, the blend of technical learning, social awareness, and power to get things done that are required. The courts have the technical learning most assuredly ; the social awareness perhaps ; but neither the opportunity nor the power to tackle the job systematically. The government, by its control of Parliament, has the power and the opportunity, but lacks the learning and, sometimes, the will. Parliament has the social awareness but, if one has to face realities, neither the learning nor the opportunity — though in theory sovereign, it is controlled not by itself, but by the government. And the government is, more often than not, overwhelmed by the tide of its own business.
If therefore law reform, in any worth-while sense, is to have a future in England, the ultimate problem can be seen to be one of the machinery of government."
Leslie Scarman, Law reform : The new pattern, page 8.

14

"What really sets us apart as a public legal reform agency is that we have distance from the day-to-day pressures of our elected masters. A government department quite properly has to be responsive to the imperatives of their political chief, while a Law Commission is established to have a bit of distance from those pressures, and as a result to be both more bold and more reflective."
Bruce Robertson, The potential for law reform agencies, page 3.

15

This list of advantages draws heavily on Annex E of a report on the Bangladesh Law Commission prepared by Michael Sayers, secretary of the Law Commission for England and Wales.
Michael Sayers, Law reform and the Bangladesh Law Commission, page 38.

16

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 2.

17

"The legislature will give the formal sanction. But someone must do the preliminary study, must perceive the leak to be stopped, must discover the anomaly to be pruned away, must find the directly advantageous practice to be extended, the conflicts to be abated, and inconsistencies to be reconciled. So long as this is everybody's business it is nobody's business, and so much of the pressure for legislation comes from purely selfish motives that one who essays a real improvement out of pure public spirit is not unlikely to be met with suspicion. Thus he becomes discouraged and, lacking any selfish motive for persistence, gives up where the advocate of legislation for some particular group or class continues the pressure and succeeds."
Roscoe Pound, Juristic problems of national progress, American Journal of Sociology, volume XXII, number 6, 1917, page 731.

18

"With respect to anachronisms in the substantive law, our path is not so clear. But we may say confidently that our present haphazard methods of legislation may not reasonably be expected to suffice. I submit that we require not merely legislative reference bureaus to deal with the forms of legislation, important as these are, but even more a ministry of justice, charged with the responsibility of making the legal system an effective instrument for justice. We need a body of men competent to study the law and its actual administration functionally, to ascertain the legal needs of the community and the defects in the administration of justice not academically or a priori, but in the light of everyday judicial experience and to work out definite, consistent, (...) programs of improvement."
Roscoe Pound, Anachronisms in law, Journal of the American Judicature Society, volume 3, number 5, 1920, page 146. [This article is the text of Pound's address before the Conference of Bar Association Delegates, American Bar Association, 3 September 1917.]

19

"We shall reach the best results if we lodge power in a group, where there may be interchange of views, and where different types of thought and training will have a chance to have their say. I do not forget, of course, the work that is done by Bar Associations, state and national, as well as local, and other voluntary bodies. The work has not risen to the needs of the occasion. Much of it has been critical rather than constructive. Even when constructive, it has been desultory and sporadic. No attempt has been made to cover with systematic and comprehensive vision the entire field of law. Discharge of such a task requires an expenditure of time and energy, a single-hearted consecration, not reasonably to be expected of men in active practice. It exacts, too, a scholarship and a habit of research not often to be found in those immersed in varied duties. Even if these objections were inadequate, the task ought not to be left to a number of voluntary committees, working at cross-purposes. Recommendations would come with much greater authority, would command more general acquiescence on the part of legislative bodies, if those who made them were charged with the responsibilities of office. A single committee should be organized as a ministry of justice. Certain at least it is that we must come to some official agency unless the agencies that are voluntary give proof of their capacity and will to watch and warn and purge — unless the bar awakes to its opportunity and power.
How the committee should be constituted, is, of course, not of the essence of the project. My own notion is that the ministers should be not less than five in number. There should be representatives, not less than two, perhaps even as many as three, of the faculties of law or political science in institutes of learning. Hardly elsewhere shall we find the scholarship on which the ministry must be able to draw if its work is to stand the test. There should be, if possible, a representative of the bench ; and there should be a representative or representatives of the bar.
Such a board would not only observe for itself the workings of the law as administered day by day. It would enlighten itself constantly through all available sources of guidance and instruction ; through consultation with scholars ; through study of the law reviews, the journals of social science, the publications of the learned generally ; and through investigation of remedies and methods in other jurisdictions, foreign and domestic.
(...)
A ministry of justice will be in a position to gather these and like recommendations together, and report where change is needed. Reforms that now get themselves made by chance or after long and vexatious agitation, will have the assurance of considerate and speedy hearing. Scattered and uncoordinated forces will have a rallying point and focus. System and method will be substituted for favor and caprice. Doubtless, there will be need to guard against the twin dangers of overzeal on the one hand and of inertia on the other — of the attempt to do too much and of the willingness to do too little. In the end, of course, the recommendations of the ministry will be recommendations and nothing more. The public will be informed of them. The bar and others interested will debate them. The legislature may reject them. But at least the lines of communication will be open. The long silence will be broken. The spaces between the planets will at last be bridged."
Benjamin Cardozo, A ministry of justice, Harvard Law Review, volume XXXV, number 2, 1921, pages 123–125.

20

New Jersey Law Revision Commission, Overview of the commission and its work, page 1.

21

Law Reform Commission of Canada, The genesis of the Law Reform Commission of Canada, in Making law reform happen, page 3.
John MacDonald, Legal research translated into legislative action, Cornell Law Quarterly, volume 48, number 3, 1963, page 410.

22

In the vanguard of those who established the foundations for change in the United Kingdom were two practising barristers, Gerald Gardiner, a former member of the Law Reform Committee, and Andrew Martin. In 1963 they put forward their views on the legal areas that needed change in a famous book entitled Law Reform NOW. On the premise that "much of our English law is out of date, and some of it shockingly so", they held (page 1) that "the problem of bringing the law up to date and keeping it up to date is largely one of machinery ; and that if the machinery is to work efficiently at a time, such as ours, which is a time of thorough and rapid technological, economic and social change, it must be kept in continuous operation and minded by full-time personnel". Gardiner and Martin pointed out that neither of these requirements had ever been met in England. The machinery they proposed was a committee of full-time law commissioners who would have a high degree of independence from the government. Following his appointment as Lord Chancellor in 1964, Gardiner was the driving force behind the Proposals for English and Scottish Law Commissions, released in 1965, and the legislation establishing the two British law commissions submitted to Parliament that same year. One of the first appointments to the new Law Commission for England and Wales was Andrew Martin, Lord Gardiner's co-author.
The Law Commission for England and Wales and the Scottish Law Commission were established by statute under the Law Commissions Act 1965, (Statutes of the United Kingdom, 1965, chapter 22). Two separate commissions were established to address distinct legal systems. The law governing England and Wales is based on common law, while Scots law is rooted in a more civil law tradition. These bodies provided the framework for many Commonwealth states when establishing their own agencies.
The Law Commissions Act 1965 requires both the England and Wales and the Scottish Commissions to :
- keep the law under review, with a view to its systematic development and reform through codification, the elimination of anomalies, the repeal of obsolete legislation, the reduction of comparable statutes where appropriate and the modernisation of the law
- consider any proposals for law reform that may be referred to them
- prepare and submit programs to the Minister (Lord Chancellor in England and Wales and Secretary of State in Scotland) for the examination and reform of different branches of the law
- undertake the examination of the law and the drafting of proposed bills for reform
- prepare, at the Minister's request, programs of consolidation and statute law revision, and undertake the preparation of draft bills pursuant to any such programs
- obtain information on the legal systems of other countries if it will assist the Commissions in the performance of their duties.

23

This fact was pointed out by a Member of Parliament, John Gilbert, during the debates on the establishment of a federal law reform agency :
"In Canada we are not law pacers ; we are law followers. When we talk about the law reform commission we should remember that the State of New York set up its law reform commission in 1934. New Zealand established its law reform commission in 1937 ; California established its in 1953 ; Ontario established its commission in 1964, and England established its law reform commission in 1965. That is a clear indication that we are following the pattern set by other countries rather than setting the pace."
John Gilbert, House of Commons Debates, Volume VII, 1970, page 6857.

Furthermore, it should be added that the province of Quebec established a Civil Code Revision Office in 1955.

24

In a letter to the editor of the Canadian Bar Review, Power wrote :
"What seems to be needed in each province and, perhaps, at Ottawa is a permanent Law Revision Council whose duty will be (1) to collect such legal relics [Note : these are common law rules that are inconsistent with modern social conditions and ideas of justice.] ; (2) to hear representations from persons engaged in businesses and pursuits affected by them ; (3) to keep abreast of public opinion ; (4) to suggest, draft and urge the enactment of appropriate remedial legislation. Such a body should consist of legal scholars and practitioners whose minds are not hide-bound or literal, and should also, perhaps, include at least one layman, one person of experience in public life and one woman. A council of six or even five members would be large enough to be representative."
Canadian Bar Review, volume XXXII, 1954, pages 930–931.

25

Responding to Power's suggestion, the federal Minister of Justice expressed the view that the mechanisms already in place were sufficient to conduct reform. He added that, in any event, one could doubt that there were in Canada enough jurists with the necessary qualifications and time to staff the federal and provincial law revision councils whose creation was advocated.
Stuart Garson, Letter to the editor of the Canadian Bar Review, Canadian Bar Review, volume XXXIII, 1955, pages 129–132.

26

For example, see R. E. Megarry, Law reform, Canadian Bar Review, volume XXXIV, 1956, pages 691–712.

27

"The 1960s were a time of ferment. There was no reason to expect that the law would remain immune from the pressures for change. It became apparent that the law no longer performed its functions as effectively as it should. Certain legal scholars saw the creation of law reform commissions as an antidote to the problem of the laggard law."
Law Reform Commission of Canada, The genesis of the Law Reform Commission of Canada, in Making law reform happen, page 3.

28

The Canadian Bar Association is an organisation representing a significant part of the legal profession in Canada. Its mandate is to enhance the administration of justice through the improvement and promotion of the knowledge, skills and ethical standards of lawyers.

29

"[L]egal research in Canada is wholly inadequate today in quantity and quality to enable the legal profession properly to fulfil its high social obligations, and that not only should the Canadian Bar Association, as the most representative organ of the profession, actively undertake a systematic programme for the promotion and development of research at the earliest possible moment, but every section and member of the legal profession should feel a new responsibility for the success of this endeavour."
Report of the Committee on Legal Research, Canadian Bar Review, volume XXXIV, 1956, pages 1000–1001.

30

"It is our opinion that the time is appropriate for the development of permanent law-reform machinery in Canada. We think that the Canadian Bar Association should take the initiative in setting up this machinery, in cooperation with the Minister of Justice, the Attorneys-General of the provinces, the provincial law societies and bodies like the Conference of Commissioners on Uniformity of Legislation in Canada."
Report of the Committee on Legal Research, Canadian Bar Review, volume XXXIV, 1956, page 1036.

31

Linden later became the fourth president of the Law Reform Commission of Canada.

32

"Although the profession may deserve some criticism for its lack of enthusiasm toward law reform, it is government that is the chief culprit. It has not granted the administration of justice the high priority that it should have and has permitted the machinery of law reform in Canada to become rusty and obsolete ; horse and buggy methods are being used in a jet age. This, then, is the challenge of law reform in our time — to create the mechanisms whereby the intelligent and steady modification of our law will be facilitated so that it will come to embody the aspirations of the majority of Canadians."
Allen Linden, The challenge of law reform, Canadian Bar Journal, volume 9, number 1, 1966, page 269.

33

"Similarly, it would not improve the functioning or output of the Commission to have "laymen" (whatever that should mean) on the Commission. The real "lay" control over the work of the Commission will come from the Cabinet and Parliament, through which the Commission's output must pass and which would test and perhaps modify the proposals."
Martin Friedland, The process of criminal law reform, Criminal Law Quarterly, volume 12, 1969–1970, page 160.

34

"The quality of our criminal law legislation will depend to a great extent on the machinery which is established to advise the Government. If the law reform body is part-time, with only a small staff and a low budget, the resulting product will reflect this lack of concern. On the other hand, if a substantial long-term commitment is made to the process of criminal law reform we will have the potential to develop a criminal justice system second to none."
Martin Friedland, The process of criminal law reform, Criminal Law Quarterly, volume 12, 1969–1970, page 165.

35

Bill C-72, An Act to establish the Canada Law Reform Commission, First session, twenty-seventh Parliament, 14 Elizabeth II, 1966.

36

Under the rules of Parliament, private members' bills cannot contain financial provisions. All money bills must be initiated by a Cabinet minister in the House of Commons.

37

In response to written questions posed by Bell, and answered by the Minister of Justice in Parliament on 7 July 1967 :

"Question No. 20 – Mr. Bell (Carleton) :
1. Has the government received any representations from (a) the Canadian Bar Association (b) other organizations or persons, advocating the establishment of a Canadian law reform commission?
2. If so, what consideration has been given to such representations?
3. If the answer to part 1 (b) is yes, from what organizations or persons?"

Hon. P.-E. Trudeau (Minister of Justice) :
1. The government has received representations on this matter from the Canadian Bar Association, based on a resolution passed at the annual meeting of the Canadian Bar Association (1966). Other representations have also been made.
2. The problems involved in establishing a Canadian law reform commission have been under study in the Department of Justice, but to date no formal recommendation has been made to the government.
3. Formal representations advocating the establishment of a national legal research institute, the functions of which might be comparable to those of the Canadian law reform commission, have been received from the faculty of law of the University of Saskatchewan."
House of Commons Debates, Volume II, 1967, pages 2388–2389.

38

Bill C-64, An Act to establish the Canada Law Reform Commission, First session, twenty-eighth Parliament, 17 Elizabeth II, 1968.

39

The essence of this speech can be found in Politics of Purpose, the book that Turner published in 1968 :
"Nowhere is the time-gap between our past and our present more evident than in the state of our laws. Some of our laws and legal procedures reflect conditions of the nineteenth century. Our collective conscience is beginning to accept the view that we should create for ourselves a community of equal opportunity. Yet nowhere is inequality more apparent than in our laws. I think it is fair to say that there is still one law for the rich and one law for the poor in this country : as we focus our attention on specific fields in the law, this becomes clearer, more defined — fields such as studies on bail, compensation in automobile accidents, and sentencing. This legal double-standard has not come about because of deliberate sins of commission, but because of sins of omission on the part of legislators and lawyers. We jointly share the burden of a legal system that calls for aggressive law reform.
Lawyers have held a central place in our society. In politics and in business, lawyers play a role quite out of proportion to their numbers. Lawyers are leaders of the community. They should be shaping events to improve life in Canada. But they have not done their job. They have fallen behind. Our legal system has failed to anticipate the sweeping movements in our society — forces that are transforming our very lives. Our society is changing, and we must ensure that it changes for the better. Old orders, old traditions, and old ways are crumbling. They must give way to improvements, not setbacks. The legal order has always been a yardstick to measure civilization ; laws have survived long after civilizations have disappeared. Just as ancient societies were judged by their ability to adapt to change in an orderly and just fashion, so will our society be judged by the same criterion.
The body of our laws has become voluminous — more complex, and more uncertain. We are using procedures and methods of research not too different from those we used a hundred years ago. Even more serious has been our distinct failure to incorporate our changing social attitudes and values into our legal system. Rather than become an agency for change, the law too often has become a barrier to change.
The technology of law reform in Canada is rusty and obsolescent. Efforts to keep the law responsive to the hopes and dreams of society are lagging behind because of small vision, limited resources, lack of desire for reform, overworked public officials, and — above all and most dangerous of all — complacency.
(...)
But do we really care about legal reform? Our national concern is shown by the dollars we spend on law reform, as compared to spending in other fields. How much is spent on law reform today? Do we spend over a million dollars, federally and provincially, a year? And how much do we spend on scientific research? Is $30 million a low figure? Obviously, if we are concerned with our society, we must spend more on legal research. Why not establish a national centre dedicated to legal research? A national research centre could engage in the housekeeping job of law reform and join with other disciplines to look to the social and economic questions necessary to make law responsive to our modern society. This centre could spearhead social engineering in law, not in isolation, but in partnership with other disciplines and other research programmes. A national research centre, with satellites in each law school each specializing in a given field of law, could move this work ahead. This could bring coordination of research on a national basis. At the University of Toronto, at Osgoode Hall, at McGill and other law schools, legal research centres in criminology, space, commercial law, and other areas have already been established. The framework is there."
John Turner, Politics of Purpose, pages 68–70, 75.

40

"I believe that in a changing world where there is a search for new relationships both between man and man and between man and his government, a law and order that is rigid and that reflects yesteryear will not do. I believe that the law must respond to change, to options, to movement and to the urge for reform. A law and order that reflects merely yesterday's priorities, and yesterday's priorities only, may become tomorrow's oppression. I do not believe that the law can afford to stand still. It is my hope that this commission will contribute to law in motion."
John Turner, House of Commons Debates, Volume IV, 1970, page 3996.

41

"In my recent reading I came across a book by Galsworthy, the well-known English author at the turn of the century, I think in a play called Windows, in which he said, "Public opinion is always in advance of the law." I think that is how it should be. Public opinion should always be in advance of the law ; the law should not be in a hurry, because if the law were in a hurry it would lead to disaster.
The Romans, who had an experience of law longer probably than any other nation as a polity, gave us that wonderful expression festina lente — hasten slowly. Therefore, this commission should not be regarded as one that will be a revolutionary instrument to bring about all the panaceas that impatient young minds, or even men in the academic sphere or in the ivory towers, may think absolutely essential in order to bring about salvation in Canada. I think it would be a mistake if we assigned such a responsibility to such a commission. Nor should we expect anything of that kind therefrom. In anticipation possibly of such impatience, I am glad to see that we have the corrective force of members of the judiciary and members of the legal profession as members of the commission, but at the same time two persons from outside the legal profession. Always wanting to be chivalrous, and remembering Senator Fergusson, I certainly plump for the concept that one of the two, if not of the lawyers or judges, should be a lady, having regard to the requirements of modern times."
Senator Lazarus Phillips, Debates of the Senate 1969–70, Volume II, page 1128.

"This commission could be set up in various ways. As the honourable Senator Thompson suggested, it could be composed of bright young men from the universities, and they could undoubtedly bring in reforms, but whether they would be workable is a risk I think we dare not take. The possibility of two or three really bright and able young people being on the commission is not excluded ; neither is the right of the commission to hire their services. However, I think it is absolutely vital, when we start to tinker with something as important as the law, whatever part of the law we may be dealing with, that before we start to change it, it should be subjected to the hard-eyed scrutiny of cold-blooded people who can appreciate what the practical effect of the changes will be and will not be blinded by some roseate and theoretical dream."
Senator J. Harper Prowse, Debates of the Senate 1969–70, Volume II, page 1130.

42

Patrick Hartt, President of the Law Reform Commission of Canada :
"Today nothing is sacrosanct — everything is being questioned. It is therefore necessary to begin by asking basic questions. What is the purpose of the criminal law? What goals are being sought? What values enforced? The fact that these and similar questions are already being asked constantly today is to me the most significant development in the whole field of the criminal law and its processes. What is called for, then, is a deep philosophical probe of the criminal law. This is something that has never previously been done in this country and its need at this time is obvious. Our Criminal Code is basically a nineteenth-century document reflecting nineteenth-century theories of human nature, psychology and philosophy. It has all the limitations that implies. There has been a veritable explosion of knowledge about human behaviour, especially as this relates to the psychology of groups and the nature of social mechanisms for maintaining cohesion. These important insights must be applied to a re-examination of the basic function of the criminal law in terms of modern mass society. It is in the area of criminal law that our attempt to establish a credible and compassionate law will meet its most important challenge. It is here that our most fundamental values of life and liberty and our deepest social needs receive expression and sanction."
Law Reform Commission of Canada, Federal law reform in Canada, in Manifesto for law reform, page 29.

43

The Law Reform Commission Act, Statutes of Canada, 1969–70, chapter 64. The Act received royal assent on 26 June 1970.

44

The Minister of Justice would explain quite clearly the features of the proposed new agency during the debates in the House of Commons :
"All appointments would be for a term not exceeding seven years for full-time members and not exceeding three years for part-time members. This would permit the commission to be renewed on a continuing basis. What we are attempting to institute here is a relatively small commission made up of personnel reflecting the priorities of law reform as they arise from time to time. I do not anticipate that the commission will provide a career. What we are looking for are men and women whose particular expertise and competences will reflect the priorities of law reform in the next five to seven years ; as these priorities are changed, the personnel of the commission will be rotated, and new men and women will be commissioned to meet the responsibilities and priorities of the next period of reform.
I said I wanted the best years of their lives — men and women, of legal competence primarily — though members could be drawn from other disciplines if that could be arranged to meet the priorities of law reform. At least four members of the commission must be from the legal profession, either barristers or judges, but, as I have said, there is room on the commission for others outside those professions. At least two members of the commission, including either the chairman or the vice-chairman, must represent and reflect the civil law system in Quebec.
The commission would have a permanent staff appointed under the Public Service Employment Act, and it would have power to contract out work for specific projects. It follows that the necessary specialized expertise would be available to it. We realize it would be impossible to incorporate within such a compact commission as is proposed, all the expertise, specialized legal knowledge and familiarity with allied disciplines necessary. So the commission will be empowered to employ on a relatively short-term basis, experts in particular fields under review.
The commission will enjoy a substantial degree of independence. For example, it will be able to receive proposals for law reform from any person ; and it will have power to initiate and carry out such studies as it deems necessary. However, it will be required to submit its program to the Attorney General of Canada, and the Attorney General, or the Minister of Justice, will have authority to insert any program for reform into the commission's program for study, should he deem it in the interest of Canada, and the commission will be bound to give such a program special priority when required. This provision has been inserted so as to ensure that the research program and undertakings of the commission will be related to the priorities in law reform as they appear relevant from time to time, having regard to the priorities of the people as reflected by the debates in Parliament and so on. It is essential to the credibility of the commission that its programs be directed toward reforms, the need for which is felt by the government and reflected in Parliament.
The commission will be independent in its methods of working, in the establishment of its programs and in the conclusions which it reaches. The bill does not permit the Minister of Justice to control how the commission will perform its work once its programs and priorities are set. It does not permit the Minister of Justice to determine how its research shall be conducted. It does not permit the government or the Minister of Justice in any way to determine the recommendations which will be forthcoming from the commission."
John Turner, House of Commons Debates, Volume IV, 1970, pages 3960–3961.

45

"Senator Aseltine also spoke of the fact that there was no time limit on the tenure of the commission as a whole — not on the office of the individual commissioners, but on the work of the commission. Perhaps the answer should be that we do not anticipate the day when the laws of our country will achieve perfection, and we may have to recognize that we have to follow what has been done in England and Scotland, in New Zealand, and in Ontario and what is now being considered in the United States, and allow this Commission to carry on its very important work of law reform for a considerable period."
Senator Paul Martin, Debates of the Senate 1969–70, Volume II, page 1189.

46

"Both of these features — permanence and independence — are vital to the effectiveness of the Commission. One without the other will not suffice ; permanence without independence would make the Commission akin to a main line government department ; independence without permanence would make the Commission akin to an ad hoc Royal Commission. Hence, the unique contribution of a Law Reform Commission is founded on the fact that it is both permanent and independent."
Law Reform Commission of Canada, Some thoughts about the future research of the Law Reform Commission of Canada, in Taking law reform seriously, page 679.

It is interesting to note, however, that there was some dissent on the issue of independence at the time the Law Reform Commission of Canada was created. One Member of Parliament was of the view that the government should retain the possibility to freely dismiss any member of the Commission :
"I think that if democracy has a meaning, members of the Commission should be appointed at the discretion of the government, so that if the latter changes, the new Minister of Justice will be completely free to appoint other members since there should be a community of thought between political parties, at least regarding the main objectives.
I do not see why some members of the commission should be irremovable for a period of years."
Pierre De Bané, House of Commons Debates, Volume IV, 1970, page 3974.

47

"Apart from the work of the department as I have described it, Mr. Chairman, the Department of Justice concerns itself with the subject of law reform. In the very near future I will be reintroducing a bill that will make extensive revisions in the Criminal Code, and I will also be introducing a completely revised and new Expropriation Act. We intend to set up a new research branch in the Department of Justice that will be charged with the reform of the law and the revision of statutes.
I mentioned when I spoke to the students at Osgoode Hall that we were going to set up within the next two years a national law reform commission charged with reviewing the entire area of federal statutes and the criminal law. I hope too that we will have a permanent statute revision next year. The purpose of the research branch of the department will be to co-ordinate and to liaise with the national law reform commission, with institutes of criminology across the country, with law faculties and, of course, the profession in general."
John Turner, House of Commons Debates, Volume III, 1968, page 2980.

"I have always felt that in looking at the Department of Justice, the Attorney General's side has been stronger than that of the Minister of Justice. That is to say, that part of the department which acts as lawyer to the government and to the various departments of government, and prosecutes on behalf of the people of Canada in the enforcement of federal statutes, has been a stronger branch of the Department of Justice than has been that of the reform and research side of the law. We hope we will be able in this new research section to promote that aspect of reform and thereby provide liaison between the Department of Justice on a daily, short-term policy basis with an overview, if I might use the words of the President of the Privy Council earlier this afternoon, of the federal statutes as represented by the Law Reform Commission.
So, the establishment of this law reform commission in no way will derogate from the responsibility of the federal Department of Justice to anticipate and meet the policy of law reform within federal jurisdiction."
John Turner, House of Commons Debates, Volume IV, 1970, page 3963.

48

"The law can and must be made more relevant. The double function of law has been too long overlooked. While law traditionally has reflected and confirmed the elements of stability in our society, in the future it must become a powerful as well as a peaceful instrument of social change. Superficially, it may seem that the functions of changing the law and guarding its stability are mutually repugnant. Yet, to any observer of the current scene it is becoming more and more obvious that an adequate accommodation by the law to changing values and mores may indeed be essential to the continuity of law itself. The more the law becomes out of step with reality, the more inappropriate are its responses to contemporary social problems. Laws which are anachronistic, which do not reflect the expectations and values of society, are a focus for attack. They provide an incentive to revolution rather than a foundation for stability."
Law Reform Commission of Canada, Federal law reform in Canada, in Manifesto for law reform, page 16.

49

This report, entitled The Exigibility to Attachment of Remuneration Payable by the Crown in Right of Canada, was actually presented to the Minister of Justice on 30 November 1977. It is a mere five pages long and does not include draft legislation. The report resulted in provisions in the Garnishment Attachment and Pension Diversion Act to protect the rights of certain judgment creditors. The House of Commons passed the bill on 18 June 1982. Part I of the Act was proclaimed into force on 11 March 1983.

50

The Law Reform Commission Act, Statutes of Canada, 1969–70, chapter 64, section 15.

51

"More recently, successive ministers have been able to give much more attention to law reform, and recent legislation giving effect to several of the Canada LRC's proposals reflects that attention. The greater specificity and pragmatism of the Commission's more recent proposals (...) have made them easier for government to accept and implement. Those factors have at least alleviated the legislative drought and may have brought it to an end."
William Hurlburt, Law reform commissions in the United Kingdom, Australia and Canada, page 204.

52

The Canada Employment and Immigration Advisory Council, the Canadian Institute for International Peace and Security, the Economic Council of Canada, the International Centre for Ocean Development and the Science Council of Canada.

53

"We speak of the Government of Canada in the singular, but of course it actually consists of over 400 separate organizations and advisory bodies. These include not only 26 statutory government departments, but 80 departmental agencies, 56 Crown corporations and more than 200 boards, tribunals, councils and other advisory bodies.
The common denominator of these organizations is that they were all created to respond to what was perceived, at one time or another, as a particular public need. In more expansive times, the tendency was sometimes to create a new public body to meet new requirements, without necessarily examining whether these could be served within existing structures. Of course over time public needs have evolved and changed.
As a result of this process, some overlapping of functions and mandates has clearly occurred, but given our heavy national debt and the high taxes this brings with it, that is something Canada can no longer afford. Accordingly, the government is undertaking to reduce the number of agencies, boards, commissions and advisory bodies it maintains (...).
(...)
Let me point out that (...) the measures before us today are fully in keeping with the commitment to spending restraint, waste reduction and good fiscal management that our government has pursued since first coming to office. We have proved before, and are proving again, our willingness to take the tough decisions needed to ensure that taxpayers get the best value for their money.
(...)
The Law Reform Commission was created in 1971. It has played a useful role in conducting an ongoing review of the statutes of Canada, in co-ordinating non-governmental research on legal issues, and in providing independent advice to the Minister of Justice.
The government has concluded, however, that these functions can be fulfilled without maintaining a separate organization. Responsibility for commissioning outside research will be assigned to the Department of Justice, with the minister and the department seeking the views of researchers and practitioners in universities and elsewhere. The Law Reform Commission will accordingly be wound up and any necessary continuing resources transferred to the Department of Justice."
Gilles Loiselle, House of Commons Debates, Volume VIII, 1992, pages 9888–9889.

54

Christopher Curran, Law Reform in the lean, mean 90's, Atlantic Institute of Criminology, Federal Law Reform Conference : Final report, page 1.

55

During the Parliamentary debates on the proposed legislation to create the commission, very few people overtly opposed the measure for cost reasons. In the House of Commons, it appears only one Member of Parliament seemed to have expressed concerns in this regard :
"The bill provides, further, that the commission may receive and consider any proposals for the reform of the law. I only hope the commission will try to do this as closely as possible to its base. One thing that has astounded me is the tremendous amount of money involved in sending committees and commissions all over this country to study problems which in many instances could be studied just as carefully here in Ottawa."
Melvin McQuaid, House of Commons Debates, Volume IV, 1970, page 3987.

"In my opinion, honourable senators, a conservative estimate of the real cost of this commission would be in the neighbourhood of half a million dollars per annum ; and over the years the total cost would run to many millions of dollars, because, as I stated a moment ago, there is no time limit. The commission may go on indefinitely.
I should like now to give some other reasons why we should not pass this bill. As I have already stated, a great amount of money will be required to put this commission into operation and to maintain it. I suggest, therefore, that it would be a serious mistake for Parliament to pass and implement such a measure while we are desperately trying to carry on and win the battle against inflation. When the federal Government, the provincial governments and the municipal governments, as well as other spending bodies and institutions, are curtailing and cutting expenditures to the bone, for the federal Government to set a bad example by going ahead with this law reform legislation at this time is beyond my comprehension.
Moreover, in my opinion we have the best laws of any country in the world. Of course no one believes that our laws are perfect. But I have practised the profession of law for more than fifty years and have found our laws, both provincial and federal, generally satisfactory.
I am all for law reform when it is deemed to be necessary and urgent ; however, I am not in favour of spending the vast sums of money that will be required to implement the provisions of Bill C-186. I firmly believe that any urgent reforms can be dealt with by Parliament — including the revision of the Criminal Code mentioned by several speakers as being very important and more or less urgent. We revised the Criminal Code once before, and we can do it again. Not long ago Parliament dealt fully with the revision and redrafting of our divorce laws — something that no law reform commission or royal commission could have accomplished. A few years ago, Parliament also revised the shipping laws, and it is quite capable of dealing with any law reforms that require immediate attention."
Senator Walter Aseltine, Debates of the Senate 1969–70, Volume II, page 1136.

Another critic was Senator Jacques Flynn :
"First we may ask, as did Senator Aseltine, whether the cost of the commission may not be excessive, and whether it might not have been less costly to assign the task to a special or standing committee of the Senate. I realize, of course, that this task is a complex and permanent one, and that it needs great expertise, which may not be fully available in a Senate committee."
Senator Jacques Flynn, Debates of the Senate 1969–70, Volume II, page 1182.

The cost argument was summarily dismissed by the leader of the government in the Senate :
"Senator Flynn raised one or two questions this evening. He said that Senator Aseltine had remarked that the cost of this commission concerned him. In reply, I would simply say that, of course, it is difficult to predict the long-term annual cost of this or any other commission, but the Minister of Justice seriously questions the estimate of half a million dollars a year, at least as far as the immediately foreseeable future is concerned.
Perhaps the basic approach to this criticism, if I may say so with respect to Senator Aseltine, is that any money spent on law reform, so long as the amounts are kept within reasonable limits, is money well spent both in terms of effecting long term savings in the Government's costs of administration and in purely human terms."
Senator Paul Martin, Debates of the Senate 1969–70, Volume II, page 1189.

56

"The continued funding for special groups is incredible. For example, the Law Reform Commission which was reinstated in this budget had previous expenditures of $4.8 million in 1992–93, $4.9 million in 1991–92 and $5 million in 1990–91. All of this is for an unaccountable organization of academics who turned out obscure reports that were mostly forgotten the day after they were published.
The taxpayers are going to foot the bill for this Liberal academic think tank. It will clothe itself with credentials in the appearance of political neutrality while preaching Liberal dogma. Political parties have their own funding from their supporters. Now the taxpayers are going to fund a Liberal think tank. This is old Canada thinking of the Pearson-Trudeau era. We should support the legitimate academics in our universities to do research on legal public policy. We do not need the social engineering of a reconstituted Law Reform Commission."
Paul Forseth, House of Commons Debates, Volume 133, Number 034, 1994, page 2116.

57

"[T]he government is not proposing in Bill C-106 a restoration of the last Law Reform Commission brick by brick. We propose the creation of an entirely new institution, a new kind of institution, to deal with new issues in new ways.
The law commission visualized in Bill C-106 will first of all be an independent and accountable body working at arm's length from government and operating in a mode that matches the challenges and the constraints of our time, that is to say, it will work with the windows open. It will make law reform a visible, understandable process in which not just legal professionals but Canadians in every walk of life can play their part.
Furthermore, because of its structure, the commission will not be remote or isolated. Last but not least, it will approach its task with a vigilant attention to cost.
The principles that will govern the make-up of a commission and guide it in its work are set out in the preamble of Bill C-106. The House should know that these principles were not developed in a theoretical test tube. They emerged in a rigorous nationwide consultation that preceded the drafting of the bill. They reflect the synthesized thinking of many disciplines, sectors and groups. These are the characteristics that Canadians tell us the process must embody if it is to work effectively.
The first principle is related to the unwritten goal of every aspect of this work, the building and the maintenance of confidence in our system of justice. To that end, this principle points to the need to democratize and demystify the making and remaking of the law.
It provides that the commission must be transparent, must involve disparate interests in its work. The door to the workshop of law reform must be open to all who want to watch or join in the process. The results of that work must be available for inspection by all in a form understandable by all.
The second principle is that the commission must not only have keen foresight, it must also have wide peripheral vision. It must see the challenges of law reform in their full social and economic context. To achieve this end, the commission will have to be multi-disciplinary in its approach. It will focus not just legal expertise on the issues, although that will be needed, but the talent and training of all the relevant disciplines — for example, in economics, in technology, in the social and natural sciences, in the field of law enforcement.
The third principle is that the commission should be responsive and accountable. Specifically, it should forge partnerships with a wide range of interested groups and in particular with the academic community. The law is never static. Only in this way can the commission keep ahead of endless change to avoid gaps or duplication in agendas and to make the most of limited resources.
The fourth principle is one that would have seemed odd in legislation drafted 25 years ago, but it seems perfectly natural in our time.
It is a requirement that the Commission, as it tackles today's tasks, employ today's technologies, wherever it is appropriate to do so. The Commission must take advantage of the capabilities of new tools and new methods, particularly in information technology. This is essential to success in every aspect of the Commission's operation — to its ability to share work with other groups and institutions — and to operate effectively on its modest budget.
The fifth principle relates to the overriding requirement that we arrive at solutions we can pay for. This principle requires that the commission in its deliberations must never fail to consider the elements of cost and economic impact. This too is a matter of relevance in the 1990s.
These then are the five principles as set forth in the preamble. There is a sixth, which may not be spelled out expressly but which hon. members will find implicit throughout the statute. That is to say, the requirement for balance, the need for the commission to be both independent of government in its decisions and accountable to the public for its actions. (...)
The executive branch of the Law Commission would be appointed by order in council. It would comprise five members, a full-time president and four part-time commissioners, who may all be drawn from different disciplines. In terms of size, it seems to me this is the balance we need : large enough to be diverse, but small enough to be decisive."
Allan Rock, House of Commons Debates, Volume 133, Number 241, 1995, pages 15500–15501.

58

"The Minister of Justice now wants to revive this useless creature, which cost taxpayers $105 million over its 20 years of existence and which made only a few recommendations that were adopted by Parliament.
The Law Reform Commission created in 1971 was responsible for reviewing Canada's laws on an on-going and systematic basis. The research work done by the former commission was divided into three main areas : substantive criminal law, criminal procedure, and administrative law. In its last year of existence, the commission had a budget of $5 million.
In addition to its members and employees, the commission hired a number of outside consultants.
The commission spent over 82 per cent of its budget on salaries and on special and professional services. This small organization was very costly. Most of its staff consisted of university researchers and lawyers hired as consultants for short periods. The emphasis was on research and not on efficient management. Research programs that were out of touch with reality and astronomical costs were the two main reasons why the government of the day pulled the plug on the old commission.
(...)
The reasons the previous government disbanded the former commission are essentially the ones for which the Bloc Quebecois cannot now support such a waste of public money. The previous government had come to the conclusion that the services provided by the former commission could be adequately obtained by transferring to the justice department the responsibility of commissioning research work from non-governmental organizations, under specific mandates. The Minister of Justice and his department were to seek the opinion of researchers and professionals on a factual basis. Consequently, the Law Reform Commission was disbanded and the resources to be kept were transferred to the justice department."
Pierrette Venne, House of Commons Debates, Volume 133, Number 243, 1995, pages 15564–15566.

"Bill C-106 reinstates a failed body, this law commission of five people and an additional 24 people to advise them. Apparently the idea of this is to provide "independent" advice on needed improvements, "modernization," and reform of Canadian law. Again, we need to make it abundantly clear that the people of Canada are not leaving the government in the dark about the improvements and reforms that are needed in Canadian law. Why they have to work hard to shell out another $3 million a year to have the obvious stated, if in fact it is stated, is beyond the comprehension of any hard-working and overtaxed Canadian I can think of."
Diane Ablonczy, House of Commons Debates, Volume 133, Number 243, 1995, page 15568.

"There is no compelling reason to re-establish the law commission. Law reform is possible without the creation of another government agency which will be supported by Canadian taxpayers. As I stated earlier, the commission will be nothing more than a mouthpiece for the Minister of Justice. No doubt he is desperately seeking some official body to back up his autocratic decisions on gun control and the death penalty. What better way to save his image than to spend $3 million a year to establish a panel of yes people beholden to the Minister of Justice, prepared to put forward or support his personal decisions?"
Dick Harris, House of Commons Debates, Volume 133, Number 243, 1995, page 15573.

59

"[T]he commission envisioned by the legislation represents and [sic] number of significant differences from the former Law Reform Commission of Canada. Its broadened approach to the process of law reform is to be inclusive, multi-disciplinary and open to all sectors of Canadian society. There will be greater emphasis on the efficiency and economy of the legal system. It will have a leaner budget and a structure employing part time commissioners, a small secretariat and the use of outside researchers optimizing joint arrangements, collaboration and partnerships, notably with the academic community. It will have a more inclusive manner of operating, using an advisory council and subject [sic] panels. Innovative approaches, including new information technologies, will support a commission which will approach its task with more vigilant attention to cost."
Gordon Kirkby, House of Commons Debates, Volume 133, Number 022, 1996, pages 1299–1300.

60

"I have no objection to the government wishing to have advice on law reform that, to use this government's words, reflects openness, inclusiveness, responsiveness, a multidisciplinary approach and innovation. What I object to is the apparent assumption that this advice can only come from a new, independent organization even though that organization's real work will be done by contracting out with non-governmental experts.
(...)
Honourable senators, the Minister of Finance (...) has embarked on a process of tough fiscal management, reducing or abolishing programs, cutting back on transfer payments, reducing funding for research across the board, abolishing, merging or privatizing existing federal Crown corporations and agencies, moving activities from Crown corporations and agencies into departments, and so on. I think the Minister of Finance is on the right track and deserves our support and assistance. If that proposition is accepted, I am at a loss to understand why, in the face of the Minister of Finance's program of fiscal restraint, it makes sense to recreate the Law Commission of Canada. From what I have seen, there is no reason for turning back the clock and setting up another independent body. Unless the government supplies convincing evidence to the contrary, I honestly cannot see how this chamber can, in good faith, approve this bill."
Senator William Kelly, Debates of the Senate, Volume 135, Number 9, 1996, pages 194–195.

61

The Commission's Web site can be found at www.lcc.gc.ca

62

Law Commission of Canada Act, Statutes of Canada, 1996, chapter 9.

63

"[Section] 3. The purpose of the Commission is to study and keep under systematic review, in a manner that reflects the concepts and institutions of the common law and civil law systems, the law of Canada and its effects with a view to providing independent advice on improvements, modernization and reform that will ensure a just legal system that meets the changing needs of Canadian society and of individuals in that society, including
(a) the development of new approaches to, and new concepts of, law ;
(b) the development of measures to make the legal system more efficient, economical and accessible ;
(c) the stimulation of critical debate in, and the forging of productive networks among, academic and other communities in Canada in order to ensure cooperation and coordination ; and
(d) the elimination of obsolete laws and anomalies in the law."
Law Commission of Canada Act, Statutes of Canada, 1996, chapter 9, section 3.

64

Law Commission of Canada Act, Statutes of Canada, 1996, chapter 9, section 20.

65

There are no permanent law reform agencies in the three territories of Yukon, Northwest Territories and Nunavut.

66

The Ontario Law Reform Commission Act, 1964, Statutes of Ontario, 1964, chapter 78.

67

Although a minimum of three commissioners was required. In practice there were five commissioners, including a chair and vice-chair.

68

In practice, the Commission published annual reports and these reports were tabled in the legislature.

69

These figures come from Ontario Estimates from 1965–1966 to 1996–1997. The estimates are the proposed spending plans for all government departments.

70

William Hurlburt, Law reform commissions in the United Kingdom, Australia and Canada, pages 206–207.

71

These law schools were at the following universities : Ottawa, Queen's (Kingston), Toronto, York (Toronto), Western Ontario (London) and Windsor.

72

The inclusion of draft legislation was a frequent feature of Canada's early law reform agencies.

73

Ruth Deech, Law reform : The choice of method, Canadian Bar Review, volume XLVII, 1969, pages 414–415.
W. F. Bowker, Alberta's Institute of Law Research and Reform, Canadian Bar Journal, 1968, pages 341–347.

74

Alberta Law Reform Institute, Annual report July 2000 to June 2001 (no page reference given).

75

For example, in 1972 the Institute sponsored a series of lectures by Sir Victor Windeyer, at the time recently retired from the High Court of Australia. It also arranged for the publication of books and law review articles.

76

First signed in 1967, the founding agreement is renewable every five years.

77

For general information on the Institute see www.law.ualberta.ca/alri

78

The Alberta Law Foundation was established in 1973 and is the recipient of the interest that banking institutions must pay on funds held in lawyers' general trust accounts. The interest income is then made available to organisations engaged in specific legal activities. Conducting research into and recommending reform of the law and the administration of justice are examples of the stated objectives of the foundation.

79

The Law Reform Commission Act, Statutes of British Columbia, 1969, chapter 14.

80

All Commission reports, other than annual reports, are available online at www.bcli.org

81

Available at www.bcli.org/pages/about/constitution.html

82

Also available at www.bcli.org/pages/about/constitution.html

83

The Law Society of British Columbia is the governing body for the legal profession in the province of British Columbia.

84

The Law Foundation of British Columbia, 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.

85

The Vancouver Bar Association, a local and county bar association of the Canadian Bar Association, is a voluntary group consisting of Vancouver lawyers. It had approximately 2,600 members in 2002. The Vancouver Bar Association organises social and fundraising events throughout the year, and through its efforts provides bursaries and scholarships to law students at the University of Victoria and the University of British Columbia in Vancouver. It also funds other law-related activities.

86

The Law Reform Act, Statutes of Nova Scotia, 1969, chapter 14.

87

The inclusion of the word "advisory" in the Commission's formal name emphasised that it could only advise on law reform matters.

88

Another public servant appointed by order-in-council could also fulfil these roles.

89

An Act to Amend Chapter 14 of the Acts of 1969, the Law Reform Act, Statutes of Nova Scotia, 1976, chapter 37.

90

Law Reform Commission of Nova Scotia, A continuing need for law reform, page 5.

91

"The reasons for its de facto demise appear to have been financial stringency, lack of common approach to law reform between the Commission and the Attorney General, and the feeling of the Attorney General that he could effect through his department whatever law reform is necessary without being faced with reports from an entity which he did not control."
William Hurlburt, Law reform commissions in the United Kingdom, Australia and Canada, page 252.

92

Law Reform Commission of Nova Scotia, A continuing need for law reform, page 5.

The Law Reform Commission Act, Statutes of Nova Scotia, 1990, chapter 17.

General information on the Law Reform Commission of Nova Scotia is available at www.lawreform.ns.ca

For example, the Commission has published papers on enforcement of court-ordered family law obligations and the jury system.

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.

The Law Foundation of Nova Scotia, 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.

The government has committed to providing the Commission $125,000 per year for fiscal years 2004-2005 and 2005-2006.

The Law Reform Commission Act, Statutes of Prince Edward Island, 1970, chapter 32.

"The reason for the establishment of the Prince Edward Island LRC appears to have been a desire to conform to fashion and not pressure for law reform or enthusiasm for it. The government and the legal profession were not inspired by a feeling toward it which was stronger than apathy. When retrenchment became necessary its funding was terminated and the Commission ceased to exist."
William Hurlburt, Law reform commissions in the United Kingdom, Australia and Canada, pages 253–254.