BACKGROUNDER LAW COMMISSION OF CANADA

The Government of Canada first proposed the creation of the Law Commission of Canada in its platform document, "Creating Opportunity - The Liberal Plan for Canada". The Commission is being created to meet the needs of both government and Parliament for independent, broadly-based and strategic advice on legal policy and law reform issues. The Commission's structure and operations ensure that it provides a critical eye and a distinct perspective on modernizing the law that will be a valuable asset to the Government and the people of Canada.

1.The mandate of the Law Commission of Canada

The legislation establishing the Law Commission of Canada sets out several guiding principles which will govern the work of the Commission, including how it is organized, the selection of Commissioners and staff, agenda setting and law reform strategies.

These principles are:

multidisciplinary approach: the Commission will approach the law and the legal system as part of a broader social and economic environment -- an approach that will include contributions from individuals and groups with a wide range of legal and non-legal expertise and experience.

openness and inclusiveness: the Commission's work will involve a wide range of people affected by and concerned about law reform. The process and results of the Commission's work will also be more accessible and understandable to all Canadians.

innovation: the new Commission will be innovative in its research, consultations and management practices. This would include the use of new technologies, where appropriate, for information gathering, research, communications and consultation.

responsiveness: the Commission will be responsive and accountable to key groups affected by and concerned with law reform. This will be achieved by developing partnerships with a wide range of organizations from all parts of Canadian society, building on existing knowledge and expertise and working closely with academic and other communities to avoid duplication and to address areas of common concern.

cost-effectiveness: the Commission will be cost-effective, not only in its operations but also in how it approaches and provides advice and recommendations. Emphasis will be placed on improving Canada's legal system by developing recommendations to make it more efficient and economical.

Governed by these principles, the mandate of the Commission is to review the law of Canada and its effects, with a view to fostering improvements, modernization and reforms to address the changing needs of Canadian society and of its individual members. It will do this in a way that reflects the concepts and institutions of Canada's common law and civil law systems.

2. The Commission's structure

The structure of the Commission reflects its governing principles by focusing on meaningful consultation and partnerships with a broad network of advisory groups. The Commission's structure is also in keeping with the Government's policy to ensure that advisory organizations and agencies provide essential services to government and are cost-effective.

The Commission will be an arm's-length body that reports through the Minister of Justice to Parliament.

The Commission will be composed of five Commissioners -- one full-time commissioner who will act as the President and CEO of the Commission, and four part-time commissioners who may reside anywhere in Canada. This will allow for diverse representation but still ensure that the Commission is an effective decision-making body.

Commissioners will be selected to reflect a broad range of backgrounds and expertise. The legislation specifies that consideration of candidates shall not be restricted to the legal community.

To ensure that consultation and partnership are an integral part of the Commission's operations, Commissioners will be assisted by a permanent, 25-member Advisory Council. Study panels will also be appointed on an as-needed basis. Members of these groups will be volunteers and will, like the Commissioners, reflect a broad range of experience and expertise.

The Advisory Council will provide advice on the strategic direction of the Commission, including its long-term agenda, program of studies, and the review of its performance. Study panels, headed by a Commissioner and made up of subject matter experts and members of affected communities, will provide advice on specific research projects. The Department of Justice and other federal departments, where appropriate, would participate in these panels.

Research for the Commission will be conducted primarily by outside experts from the academic or private sector under contract.

The Commission will be supported by a small secretariat, headed by an Executive Director. The small staff will require that some central services, such as publishing or dissemination of information, while managed by secretariat employees, be contracted out.

The Law Commission would have a budget of $3 Million annually, which would cover all the operating costs of the Commission including personnel, research, and publications. This funding will come from a reallocation of existing government resources.

As a departmental corporation, the Commission will be able to receive funds from outside sources such as the private and voluntary sectors and to generate revenues through the sale of its annual reports, its study reports and other publications. These funds may be used to supplement its activities and to reduce its dependence on Government.

3.Independence and Accountability

The structure and mandate of the Commission ensure a balance between independence and accountability. Measures include:

The Commission's agenda: the Commission will have independence in finalizing its own agenda. This will be balanced by a legislated requirement to consult the Minister of Justice before the agenda is finally set.

Reference power: The Minister of Justice will have the power to refer issues to the Commission when necessary and appropriate. However, the Minister will be required to consult with the Commission before a reference is made.

Ministerial response to Commission work: The Minister of Justice will be required by legislation to respond to reports of the Commission, but will have flexibility in the nature of the response.

Appointments: Commissioner positions will be Governor-in-Council appointments, made following recommendations by the Minister of Justice. The position of President will also be a Governor-in-Council appointment.

The position of Vice-President will be chosen by the Commissioners themselves The Commissioners will also appoint the members of the Advisory Council and Study Panels.

Commissioners will be appointed for a maximum of five years, and appointments will be staggered to ensure continuity and corporate memory.

To ensure that the Commission is working well and achieving its mandate, it will be subject to a review of its performance after five years.

Department of Justice
October 1995