The International Cooperation Group

Publications

LAW REFORM AGENCIES

Gavin Murphy

2.3   ASSESSMENT OF SUCCESS

A yardstick by which a law reform agency's success can be judged is the number of its reform proposals that have led to legislative action. But to apply this simplistic standard would be to misunderstand the nature of law reform work[235]. A former president of the first Law Reform Commission of Canada understands the success of a law reform agency to be best measured by the quality and soundness of its proposals and the relevancy of its recommendations to the existing needs of society. A law reform agency is not established to simply please the government of the day. Its role is to think into the future ahead of actual problems, and quick-fix solutions should be left for government departments[236].

Given the broad range of potential areas for reform, most would agree that a balance must be struck between what is desirable and what is feasible. A law reform agency will not be successful if it only focuses on small and immediate issues and does not take a broader view of reform. However, it will not survive for long by indulging in quests that are of purely theoretical interest. Real-life relevance and immediate practical value are objectives that must always be pursued. An agency must reject issues that may be academically stimulating but have no genuine consequence for legal reform. Law reform agencies have a mandate to advance ideas for improvement in the law. Ideally, they should place matters squarely within a broad social context, thereby generating widespread and lasting support for reform[237]. Their role is to offer a revised vision of the legal system. They are not in competition with the institutional framework of that system.

The lack of a clear understanding of the proper aims and functions of a law reform body can lead to widely divergent assessments of an agency's effectiveness. In its last annual report before its disbandment in 1992, the Law Reform Commission of Canada was able to judge its own performance in a favourable light[238]. Others held very different views. One critic felt that an obsession with the division between federal and provincial powers[239] generated several distortions, including the fact that issues that fell clearly within federal power dominated the Commission's agenda[240]. The Commission was also faulted for approaching reform on a too narrowly legal basis[241] and for focusing almost entirely on criminal law[242]. It was considered by some observers to be irrelevant by the mid-1980s[243]. Other criticisms levelled against the Commission were on specific points. One academic noted the failure of the Commission's report on Contempt of Court to consider gender bias among the judiciary and the impact of the report's recommendations with respect to it[244]. Some deplored the fact that the Commission had never undertaken any project that looked into judicial and administrative appointments with a view to promoting integrity in the selection process and equity in the outcome[245]. One author went as far as stating that the Commission predominantly served its own interests[246] and had become a rarefied lobby group for legal academics[247].

But despite these and other pointed observations, the majority view among those closely involved in law reform was that, while the Commission could perhaps be criticised in several regards, the quality of the work it had accomplished was beyond doubt[248]. One of the Commission's former presidents stressed that the task of a law reform commission is to make law reform happen, and that while the enactment of legislation remains an important goal, it is merely one of several aspects of the law reform process[249]. Viewed from this perspective, the achievement of the Law Reform Commission of Canada can be considered as remarkable. Among other things, the Commission generated extensive scholarly research, educated the public about the law and, by providing a body of independent analysis, indirectly helped the judiciary in resolving certain legal issues arising in court proceedings[250]. The Commission made the country think about — and discuss — fundamental legal issues. That was its true success[251].

Measuring the success of a law reform body thus neither begins nor ends with merely taking count of the number of recommendations implemented by the legislature[252]. The generation of an informed debate on a given legal matter is a major achievement in itself[253]. Indeed, making an important contribution to the public discussion of legal issues may well constitute the only realistic goal for law reform agencies[254].