Nathalie Des Rosiers

President, Law Commission of Canada

Remarks for a presentation to the Conference of Ontario Boards and Agencies, on November 17^th in Toronto.

The French version of this speech is available from the offices of the Law Commission of Canada, 473 Albert Street., 11^th floor, Ottawa, K1A 0H8, and will be available on the web site www.lcc.gc.ca.

The Law Commission of Canada is an independent federal agency whose mandate is to provide advice on improvements to, and modernization and reform of the law of Canada. It has defined its mission as a commitment to engaging Canadians in the renewal of the law to ensure that it is relevant, responsive, effective, equally accessible to all, and just.

In approaching its mandate, the Commission is guided by a number of important principles:

The Commission seeks innovation, both in the formulation of the issues it chooses to research and in the research methods it employs. In formulating issues for research, the Commission believes it must look first at social problems as they present themselves to Canadians, and not be limited by the traditional legal and jurisdictional boundaries. From an understanding of these "real world" problems, the Commission can then go on to examine how the law, understood broadly, is hindering or could facilitate their resolution. Consequently, the Commission has developed a research agenda based on four complementary themes: personal, social, economic and governance relationships. These themes are not meant to categorize discrete issues. Most issues could be examined from any one of these four relational perspectives. Rather, the themes represent a different emphasis in approaching issues.

To determine the specific issues it will examine, the Commission seeks the views of Canadians. Initially, it conducted a broad public consultation to develop its strategic agenda of research. It then established an Advisory Council -- 24 volunteer members from across Canada, who bring a rich variety of experience and perspectives to the advice they offer to the Commission. The Advisory Council meets twice a year to provide strategic guidance to the five Commissioners regarding the projects that the Commission is considering undertaking. Members of the Council serve as an important network for the Commission, connecting it to communities, regions and points of view to which it might not otherwise have regular access.

The Commission selects research topics that it believes are of fundamental concern to Canadians. It approaches all its work with a view to ensuring that it is multidisciplinary, consultative and, where possible, includes partnership. The Commission seeks to ensure a multidisciplinary perspective in a number of ways. It directs research contract opportunities to a variety of academic disciplines, such as sociology, economics, psychology, as well as to lawyers, notaries and legal scholars. It seeks partnerships with different policy research agencies, with community-based organizations and other groups whose expertise complements the work of the Commission.

Today, I will describe the Law Commission's approach on issues of governance and what it has in mind on this theme for the next few years. I have also invited two of our contract researchers to describe the research that they have done which I trust you will find as refreshing and interesting as I did.

The world of governance and of governing is changing. Questions are now being openly asked about the efficiency of our current governance mechanisms. Some are arguing that more and more citizens are disenchanted and indifferent, or even cynic and outright hostile. We have also seen a growth of consultation mechanisms, of citizen engagement models, and of an approach that seeks to involve the citizen in governance. We are also witnessing the emergence of self-governed units and communities who resist traditional and authoritarian forms of governance, i.e. the internet. In addition, there is more and more a devolution to community groups of sensitive and serious issues such as crime prevention or even, at times, health resources allocation. The community was also be more interested in taking charge of issues such as justice, environmental matters and even education.

The Law Commission is interested in a better understanding of new models of governance. It began its work by an analysis of a theory of governance that it described, for lack of a better word, as a citizen agency model. The Commission wanted to reinforce the idea that the citizen ought to be placed at the centre of governance and viewed as an active participant. He or she should not be the object of regulation or of governance but rather the subject, the maker of governance.

I say that the Commission is still searching for a better term because there are problems with the expression "citizens agency". First, the idea of citizen, although widespread, is exclusionary of people living on Canadian soil who participate and ought to participate in its governance but lack the necessary legal recognition of their role -- they are not yet citizens. It also seems to exclude persons from outside Canada, whereas their input is often felt (think multinationals) or seriously missing (think the impact of Canadian policies on developing countries).

It is therefore the word citizen, understood in its largest sense, that we want to use.

By "Agency", we want to evoke the active role of the citizen -- his or her involvement in the making of governance as opposed to being on the receiving end of it.

The idea of citizen agency is initially appealing in a pluralistic society. Starting from the citizens instead from the top, the governing elites, may allow for a better expression of all the cultural and background differences that exist. It may be that a greater variety of models of governance could be experienced and that they could better reflect the pluralism of our society.

So, how do we create mechanisms that would allow and provide more space for governance by citizens? And what are the limits of the model, and its dangers?

These are the questions that the Law Commission is asking under its governance theme.

The Law Commission's approach has been to try to unpack this theoretical concept and explore when and how it apply. One of these sites of governance will be explored today by our next speaker.

First I want to explore briefly with you what a citizen agency model could mean for two aspects of governance which are particularly important to you: a) norm definition (legislation and regulation), and b) for conflict resolution (adjudication and enforcement) and norm application.

A) Norm definition

Adopting a citizen agency model in legislation may change the way in which categories of beneficiaries, for example, are defined. In our more traditional model, the legislature proposes and defines the list of persons eligible for a benefit. One example that affects several middle class families is the ability to contribute to someone else's RRSP and receive a favourable tax treatment. Currently, our tax system will say: you can do it for your "spouse", and not for anyone else. In other contexts, we see the same thing: in immigration, the government prescribes who one can bring over from abroad. A citizen agency model would ask what if one left the choice to the citizen? What if one allowed her to contribute to the RRSP of any person she chooses up to a maximum obviously, what if he could bring over the persons he chose, again up to a maximum?

The idea is to respect the choices that citizens will make. But the concern for fraud you will say.... What if someone organises with his or her neighbour that they will each contribute to the other's RRSP to avoid paying tax, what if the citizen contributes to his mistress' RRSP and not to his wife's, what if she contributes only to her children's RRSP and does not save enough for herself, what if the citizen makes the wrong choice...

Accepting that the citizen may make the wrong choice, or at least the choice that the governing authority did not wish to encourage, is difficult for public policy analysts. Accepting that the citizen may make choices that are detrimental to his or her own economic survival is even harder: if the citizen squanders her money, we will have to support her. Is there a way of creating choice for the citizens and respecting their sense of autonomy without creating inadequate risk? Is such a model relying too much on individuals and the private order? Is it leaving behind the most vulnerable?

In regulation, which is a model that is very familiar to you, we have witnessed more and more the emergence of negotiated norms with stakeholders with the hope that a self-imposed standard will be more likely to be respected. We have also witnessed more flexibility in norm setting, where a range of acceptable conduct is defined. The Law Commission is interested in exploring such changes in norm setting: Have the dangers of one powerful party dominating the negotiation been well addressed? Have the choices been available to all that should have choice or just to the influential few? How can we encourage flexibility and creativity in the experimentation of new models of governance in norm setting? How can we properly evaluate whether they work or not?

B) Conflict Resolution or norm application

In the context of conflict resolution, a citizen agency model may also suggest new avenues. The Law Commission has begun a project that seeks to apply the insights of restorative justice -- consensus based decision-making and involvement of the community -- to matters other than criminal law. Should it be applied in commercial matters, in landlord-tenant disputes? Is the community of citizens interested in these issues just as much as the individual tenant and the individual landlord? Are there limits to such community involvement -- will individuals tolerate such intrusiveness of community interests?

Our next two speakers will continue to explore subjects of interest in norm application and the relationship between the bureaucrat and the citizen. So I will not belabour the point and simply conclude by welcoming you to send in your comments: Do you have ideas about law reform that you would like to share with us? Do you have stories that illustrate the systemic inadequacies of our legal system to respond effectively to the concerns of Canadians. Share them with us. We have the mandate to suggest reform but we need the input of the people who are dealing with the problems on a daily basis, people who see the injustices. We need your input. And I invite you to visit our website and to send in your comments or to invite us to participate in your meetings and conferences.

After this brief introduction of some of the development of the Law Commission's research agenda on the issue of governance, I have asked two of our contract researchers to present the research that the Commission has funded. Professor Michael McDonald, Chair of Bioethics at the Centre for Applied Ethics at University of British Columbia headed a team of experts which looked at the governance of health research involving human subjects. Some of their conclusions are relevant not only to the internal "private" administrative boards but also to other administrative agencies such as the Ontario Boards and Agencies.

I have also invited Professor Lorne Sossin to come and present his research on the "personal relationship of dependence and interdependence between the bureaucrat and the citizen", again an issue that could be of interest to agencies and boards who often control and monitor the conduct of bureaucrats with the citizen, and may even engage themselves into relationships of dependency and interdependency with the citizens.