Research Themes
Background
Canadians want their law to embody justice, and their legal system to support this ideal. They expect legal institutions to be accessible and accountable. They want the law to respect and promote the values of their democratic political tradition. At the same time, they desire law that is responsive to the emerging needs of society. The pace and depth of social change challenge the adequacy of contemporary law and legal institutions. The law is often outdated in its assumptions, its policies and its prescriptions. Some legal institutions, as well as some legal procedures and practices, have become obsolete or ineffective. Governments require independent, strategic and timely advice on legal policy to assist them in recognizing these deficiencies and finding appropriate remedies.
The LAW COMMISSION OF CANADA aims to provide such advice, informed by broad consultation, multidisciplinary expertise and innovative thinking. It offers Canadians a forum to present their concerns on issues of law and justice. With insight gained from public consultations, the Commission intends to develop a distinctive perspective from which to cast a critical eye on the law. Its ambition is to make recommendations to orient the law so that it contributes effectively to the collective and individual well-being of Canadians.
Mission
The mission of the LAW COMMISSION OF CANADA is to engage Canadians in the renewal of the law to ensure that it is relevant, responsive, effective, equally accessible to all, and just.
Guiding Principles
The following principles govern the manner in which the LAW COMMISSION OF CANADA pursues its mission: Inclusiveness
The procedures and practices of the Commission are open and inclusive. This involves providing information about the law that is understandable and that invites the active engagement of citizens. It requires canvassing a wide range of people affected by and concerned with law and justice, and giving a voice to those not ordinarily heard. The Commission is committed to making its work responsive and accessible to Canadians. Multidisciplinary Approach
The Commission understands the law as part of the broader social and economic environment. It will search for the underlying causes of inadequacies in the legal system from a multidisciplinary perspective. Examining, from different angles, how injustices arise offers greater insight into how genuine reform may be promoted. The Commission will draw on diverse sources of non-legal experience and expertise and will undertake empirical research to evaluate the law in its societal context. Innovative Practices
The Commission employs innovative research and management practices, and uses new technologies, where appropriate, for information gathering, evaluation, consultation and communication. It intends to document best practices and to adopt or adapt these for its work. The Commission follows the principles and practices of sustainable development and endeavours to be efficient in all aspects of its operations. Partnerships and Networks
The Commission builds partnerships with organizations from the public and private sectors and with governments. It works closely with academic and other communities, as well as with centres of research. To avoid duplication of effort and to benefit from existing knowledge and the capacity of others to address areas of common concern, it will forge dynamic and creative networks of persons and groups interested in improving the law.
Context
Initial consultations suggest that a large segment of the Canadian population lacks knowledge and understanding of the law. People feel disempowered and they are losing confidence in legal procedures and legal institutions. Many people question the way the law works. They feel uncomfortable in a legal system that, at times, appears overly adversarial, inaccessible, arbitrary and unfair. They do not see their concerns about justice reflected in the processes of and the results produced by the legal system. The impetus for change comes from, for example, victims, the elderly, and young people, many of whom feel that the assumptions currently underlying the law are outmoded or inappropriate. The different socio-economic circumstances of Canadians, a shift in the patterns of rural and urban life, and the country's multicultural social fabric highlight the need for new understandings of law and for approaches emphasizing restorative rather than retributive justice.
Institutions of public governance have not always kept up with changes in society. The evolution of common values, the introduction of new technologies and the globalization of the economy challenge the legitimacy of many institutions. Parliament, governments, the courts and the police are viewed with scepticism. Their decision-making is perceived to be distant, non-participatory and overly influenced by powerful voices. Participation in public life is declining as citizens increasingly feel that traditional institutions neither consult with nor listen to them.
Canadians are looking for new ways to recognize, shape and defuse conflict. Many question whether the inevitable conflicts in social living, in matters of family, consumer relations, employment and the environment need always be addressed by going to court. They see benefits in alternative ways of resolving disputes that focus on prevention. Canadians wonder if the criminal justice system is effective in preventing people who have been convicted from becoming repeat offenders. Different options in the administration of criminal justice, such as greater involvement of victims and their communities and addressing underlying socio-economic conditions are viewed as better policies.
Strategic Direction
The Commission will strive to address the concerns of Canadians about the law, legal process and legal institutions by focusing its research activities and recommendations on the following strategic objectives: Creativity
The Commission will identify new concepts of and new approaches to law. Commission studies will explore why principles of law, legal procedures and legal institutions may have become inadequate or outmoded. They will focus on uncovering, elaborating and recommending creative solutions such as the identification and promotion of best practices. New approaches like preventative law, restorative justice, and taking account of the victim's perspective will inform the Commission's research. Balance
The Commission will address questions of law through the lens of justice. It will research equal access to and treatment by the law and legal system to see where they do not produce in practice the equality that they proclaim in principle. In seeking to understand the causes of injustice, the Commission will consider the role of disparities in information, in resources and in power. It will advance proposals intended to ensure that the law serves the interests of all Canadians and strives to meet their aspirations for achieving justice. Responsiveness
The Commission will examine how to enhance the engagement of Canadians with the law and public institutions. Studies will investigate measures to make legal institutions more open and accessible, to reduce the cost of justice and improve the responsiveness of administrative agencies and courts. A focus on where the law succeeds in contributing to individual and social well-being will indicate where a lack of responsiveness undermines social trust and citizen involvement. The Commission will make recommendations about governance intended to renew the faith of Canadians in the law and public institutions.
Research Themes
The Commission intends to pursue its strategic direction by structuring its research around four complementary themes: personal relationships; social relationships; economic relationships; and governance relationships. These Strategic Themes were distilled from ideas suggested by the broad spectrum of groups and individuals initially consulted by the Commission. They were then confirmed by the Advisory Council. Personal Relationships
Many of the basic building blocks of the law are institutions that regulate close and intimate personal relationships. Canadian law now rests on a number of assumptions about how people organize their private lives, and how they relate to their partners, parents and children. These assumptions are frequently out of touch with the facts. Consequently, the legal policies and procedures derived from them tend to be obsolete or counter-productive. Here the law is in need of comprehensive examination. Today, many social programmes do not reach their intended beneficiaries because of the evolution of different forms of family life and personal relationships. The socio-economic impact of an aging population requires adaptations to income-support programmes, and pension and housing policy. The possible correlations between early childhood conditions and encounters with the youth justice system will be explored. The impact of the law related to family breakdown on the economic and social security of children demands careful study. Canadian law seems inadequate to respond to physical, economic, psychological and sexual abuse in a wide variety of situations involving children, domestic partners and the elderly. This requires an understanding of how exploitation occurs in situations of unequal power.
The Commission will look closely at how the legal system deals with relationships of dependence and interdependence.
Social Relationships
Society is becoming more diverse in every socio-demographic dimension. Increasingly, Canadians are identifying themselves as members of multiple groups, yet the law currently is based on several unexamined and potentially questionable assumptions about which of these group identities are legitimate. Only rarely does it recognize group identity as an element of personal identity. The way the law addresses social relationships and organizes relationships between groups deserves close consideration. Many of these relationships have been influenced by a widening gap between rich and poor. The situation of First Nations peoples continues to challenge traditional conceptions of social justice. Not all Canadians have equal access to knowledge about the law or equal opportunity to benefit from its application. The conditions that have enabled certain persons and groups to succeed are not well understood. Some laws and institutions rest on values that are no longer widely shared. This is particularly true where new technologies challenge conventional understandings of how to protect human life and the environment. The capacity of the criminal justice system to express and reinforce shared values, to rebuild fragile communities, and to control international and Internet crime also requires re-assessment.
The Commission will undertake research on how the legal system recognizes diverse social relationships in a changing socio-demographic context.
Economic Relationships
The changing character of the workplace, the evolution of Canadian industry, the creation of new forms of property and wealth, the recognition of the significance of both paid and unpaid work, new methods of doing business, and the emergence of a knowledge-based economy have important consequences both for those entering the labour market, and for those whose current employment is threatened. The globalization of trade and developing arrangements of international commerce and finance have affected many of Canada's basic economic and social arrangements. Few legal institutions and regulatory practices are insulated from these currents. Technological innovations permit significant crossborder transactions which are facilitated by international agreements. These have an impact on business practices and on Canadian policy related to financial institutions, labour markets, pensions, bankruptcy, the environment, immigration and social welfare. This challenges the law to finds ways to regulate economic transactions fairly, to protect the value of a worker's labour, and to address disparities in market power without undermining Canada's international competitiveness or the efficiency of its capital markets. The increasing urbanization of Canada, the apparent depletion of certain natural resources and the vulnerability of communities dependent upon them, and the enormous power wielded by managers of capital pools and pension funds put into question the capacity and limits of the law in the economic sphere.
The Commission will explore how best to structure law to enhance the country's economic strength while protecting fundamental social values.
Governance Relationships
The capacity of citizens to participate meaningfully in the democratic process poses challenges for the design of public institutions. Canadians are disengaging from these institutions, are more sceptical about their capacity to respond to legitimate expectations, and have less confidence in their justice than they once had. The judicial and administrative systems are pressured to provide expedient, accessible and equal justice attuned to current social needs and are stretched to respond. But increased recourse to adversarial processes to solve interpersonal conflict and larger issues of social justice has contributed to a crisis of legitimacy. The framework of regulations and administrative agencies, the use of commissions of inquiry and the methods of appointing judges and other officials need to be assessed. Some Canadians hope that the law can be adjusted to give better expression to their aspirations for greater control over governance. Exploring the changing roles and responsibilities of non-governmental institutions and identifying best practices complements this inquiry.
The Commission will study public decision-making and governmental institutions and make proposals about optimal processes for effective governance in a framework of openness and accountability.
Evolution of the Agenda
The Commission acknowledges that its four Strategic Themes are closely intertwined. They offer complementary perspectives on the issues to be addressed. The Research Programmes that it undertakes within each theme will be linked with research in other Strategic Themes. The thematic focus is intended to permit the Commission to highlight certain relationships and to emphasize commonalities across its various studies with a view to drawing out the larger implications of its ongoing projects.
The Commission hopes and expects its activities will uncover further avenues for study that will lead to adjustments to its Research Programmes and even to the adoption of new Strategic Themes. As the Commission pursues its Research Agenda, it will focus especially on developing those aspects of its mandate that touch upon new approaches to law reform and the stimulation of critical debate about how the law operates in Canada today. To keep all aspects of its research endeavour under constant review is seen as necessary for ensuring the relevance of its work.
Generating among Canadians an enthusiasm for and a desire to participate in law reform is a priority for the LAW COMMISSION OF CANADA.
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