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29/06/2000

Reforming or rethinking the law? Canada's experience of law reform

Notes for a speech to be delivered at the
Rencontre internationale des juristes d'expression française
(Montpellier, June 29 to July 2, 2000)

By Nathalie Des Rosiers
Vice-President
Law Commission of Canada
(President designate)

June 25, 2000

In 1997, the government of Canada implemented the Law Commission of Canada Act,1 following consultations extending over several years.  It reiterated its support for the idea of an independent organization dedicated to law reform.  The idea of such an organization was very popular in the 1970s but suffered a number of setbacks as a result of the budget cuts made in the 1990s.2  Furthermore, a number organizations involved in law reform at the provincial level had disappeared and the federal Law Reform Commission itself had been abolished.

As a result, 1997 marked a new departure.  In fact, the federal government again picked up the idea of a law reform organization and on this occasion appeared to want to emphasize the need to devise new legal concepts.  It was not a question of simply keeping the law up to date; it was necessary to some extent to rethink it.3  Thus, according to section 3 of the Act, 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;⁴

(Emphasis added.)

It is the response to this imperative need for innovation that I shall attempt to describe to you today.  My remarks will be divided into two parts.  First of all, I shall describe how in the actual definition of its mission and research agenda, the Commission and especially its first President, Professor Roderick Macdonald, took an innovative approach.  Then I shall look at how the research methodology itself has also been imbued with a spirit of innovation if not of adventure.  The two processes are clearly "interdependent": it is impossible to rethink one's concept of research without making radical changes in methodology.  The process of defining and thinking about new concepts of law has been sustained by the results of a more adventurous methodology and vice versa.  It is this circular aspect of the exercise of reforming the law that seems important to me and that I shall attempt to bring out here.

Obviously, I must explain that what I say today is the product of my involvement in the Commission's work over the last three years but is not in any way binding on the other commissioners or the members of the staff.

I - A new concept of law reform

Since the invitation set out in the legislation could not be clearer, the Commission has, since the very beginning of its existence, had to question the ways in which it implements the idea of rethinking the law.  Two approaches, among others, have proved fruitful in generating a new understanding of the task of reforming the law.  First of all, the Commission decided to take as its starting point the reality facing those people who experience the law.  Second, it decided to question certain fundamental concepts that are present throughout the legislation and the case law.

A. Using reality as a starting point

In 1993, Audrey Macklin⁵ clearly pointed out that it was necessary to take into account the views of those who are subject to the law.⁶   Otherwise, law reform would become a "bureaucratic" (p. 395) or even a "myopic" (p. 400) exercise in dealing with the real problems.

This suggestion was then given much more tangible expression by the Commission, which took it as one of its starting points.  The Commission's first Annual Report was entitled "The Living Law" and it contained the following statement:

But law comprises more than the rules produced by public officials.  Most living law arises in everyday human interaction …  The official law of legislatures and courts and the informal law of everyday practice and usage are the legal reflection of our society's aspirations to justice.  Together, they give focus to the Mission of the Law Commission of Canada.

President Macdonald also explained: "Law is a way of thinking about how human beings interact, and ought to interact, in social settings.  This is the new approach to legal concepts and law reform to which we are committed."⁷

He also stated elsewhere: "Indeed, we consider that the living law generated by Canadians in their everyday interactions with each other is as much a part of our mandate as the official law made by Parliament and the courts."⁸

If the law as it is lived was to be the focus of law reform, it was necessary to embark on a process that would enable us to fully understand this living law.  It was accordingly necessary to seek out and ask the public to articulate its needs for reform.⁹  Following its first meeting, the Commission immediately invited Canadians to provide it with their views on the issues that needed to be studied.  Once their replies had been gathered, the Commission devised a Research Agenda.  This Strategic Agenda, to which I shall come back later, revolves around the concept of human relationships, personal relationships, social relationships, economic relationships and governance relationships rather than around criminal law, administrative law, social law or constitutional law.  From the beginning, therefore, an effort was made to conceptualize the mandate in a way that more closely reflected the way people see their own lives: not as a function of the criminal law but rather as a function of their economic and social relationships with others.  This exercise is extremely productive since it helps to ensure that we do not take for granted abstract legal categories that may obfuscate rather than clarify the resolution of a problem.  We shall not ask whether a problem falls within private or public law, civil or criminal law, but rather whether the conduct adopted reflects the desired social values.  For example, among personal relationships with potential for development, we shall devote our attention not only to the provisions of the criminal law but also to all professional, moral and legal standards that influence the behaviour of individuals.  We want to be sensitive to changes in these various standards in order to measure the true impact of the criminal standard with a view to determining whether it really needs to be changed.

The attempt to use people's experience as our starting point in reforming the law took on even more concrete form in the development of the research we undertook in preparation of our first report, Restoring Dignity.  This report was issued in response to a reference by the Minister of Justice.  Under the Law Commission of Canada Act, the Minister has the power to ask the Commission questions.  In December 1997, she asked the Commission to examine the mechanisms of providing relief for the victims of abuse in institutions, for example, the First Nations children who attended the residential schools during the 1960s, had been abused during their time there and were now suing the federal government and the churches involved.  The Commission decided to begin its research by asking the victims what they needed and asking them to assess the existing legal processes.  Rather than using the existing processes as the starting point, we began with the needs of the victims.  Our analysis was interesting because we quickly realized that the victims' financial needs, which were often identified as the main reason for their civil suits, were only a small fraction of their total needs.  The victims also needed their stories to be told and to ensure that it would not happen again.  The prevention of violence against children was thus an important part of the response to the victims' needs.  The approach of taking victims' needs as the starting point accordingly enabled us to broaden the concept of a government response to the problem of abuse in the institutions.  It is not merely a question of who pays the bill but this must also be done in a way that treats the victims with respect and meets their needs for prevention and participation in the process.  The debate on the cost of the lawsuits brought against the government by various victims groups had accordingly changed: it was not merely a question of money but a question of human dignity.

Using the reality of the law as it is experienced as our starting point also implies a recognition of what I might call the perverse effects of the law; secondary effects that were never contemplated by Parliament.  For example, and I now come back for a moment to the second project undertaken by the Commission concerning personal relationships between adults.  By defining legally recognized personal relationships such as marriage or filiation, does the law create distortions in the choices made by people?  For example, is an older mother directly encouraged by the law to live alone rather living with her divorced daughter because the law does not recognize this relationship from a taxation point of view in the same way as it recognizes marriage.  Law reform that starts with the law as it is experienced thus not only questions the effects that are desired by the standard but also the indirect effects that are less visible to lawyers but just as important for people generally.¹⁰

What has emerged from the law as it is experienced is the law as it has been rethought.

B. Questioning existing concepts

As we noted earlier, the Law Commission's Strategic Agenda¹¹ refers to four major themes: personal relationships, social relationships, economic relationships and governance relationships.  Very early in our work, we realized that the law used notions and concepts that were now in some cases out of date, often discriminatory or simply incorrect.  For example, it is a common knee-jerk reaction to use the concept of "marriage" to refer to a relationship of psychological or economic dependence.  Other concepts are often used ubiquitously without people ever stopping to think whether such use has perverse effects or is still effective.  Many statutes and social practices use the age of 60 or 65 as the yardstick to determine eligibility for benefits or privileges.  Is this appropriate?  Are the ages of 60 or 65 still appropriate when people are living longer?  Is a reference to age useful or necessary any more?  Could some other concept be used?  Would it be as effective?  Would it also be discriminatory?

An attempt has accordingly been made to rethink the problems: the aim was to gain a better understanding of the law in terms of its impact on society.  Questioning the role of criminal law in society and its ability to influence the conduct of people is certainly a good first step toward reform.  However, it is intriguing to start with social relationships and then to measure the impact of the criminal law.  It may be possible to discern other cultural, religious or economic mechanisms that will have just as great an impact on social relationships.  What can be said about taking relationships of a personal nature as the starting point: how are possibilities of exploitation controlled by the law?  Or by the possibility of being better informed, having choices or even by a certain equality of power?

Other examples could also be given in the area of economic and governance relationships.  As far as economic relationships are concerned, we are interested, among other things, in the concept of workplace: if legislation uses the concept of workplace to define the protection it provides for workers, what happens when the physical workplace disappears?  When it is combined with a dwelling house, for example?  Finally, in terms of governance relationships, we have attempted to determine how people's capacity to play a significant part in the decision-making process that affects them is reflected in the administrative traditions and the government apparatus.  What needs to be done to enable people to trust their institutions, to see themselves in them and to participate in them?

These two strategies, taking people's experience as the starting point and questioning existing concepts, have generated some very interesting questions for law reform.  It is quite likely that we are now better able to understand the impact of the law in all its subtlety rather than assuming that it is effective if we take real-life experience as our starting point and question the ubiquitous fundamental concepts of our law.  Ideally, these two strategies should also enable us to meet one of the ultimate objectives of a law reform body, as it was so well expressed by the late Justice Beetz:

If the present resources of the law are applied to such new circumstances, and the nature of the adjustments they would require can be perceived ahead of time, perhaps then the law can be changed in time and preserve the dignity of man permitting the satisfaction of basic human needs: security, order, freedom and diversity.¹²

However, these strategies must be accompanied by an appropriate methodology.  It would not be enough merely to carry out research in the legal writings on the subject tofulfil our mandate.  The methodology also needs to change.

II - A new methodology of law reform

The Law Commission of Canada Act isvery clear: the approach must be multidisciplinary in nature.¹³    The approach must also involve consultation.¹⁴   I shall look briefly at our experience in both these areas.

A. A multidisciplinary approach

A multidisciplinary approach is essential if we are fully to understand the living law.  One of the criticisms often made of the traditional Anglo-Saxon model of law reform commissions was that they did not make sufficient use of the findings of other disciplines.¹⁵    Not only is it necessary to invite psychologists, sociologists, anthropologists, political scientists, economists and industrial relations specialists to contribute, but it is also necessary to promote a climate in which differences of views are accepted and valued.  The Commission has accordingly attempted to promote a pluralist and multidisciplinary approach.  In its Strategic Agenda, the Commission states that it "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."¹⁶

Thus, in our work concerning seniors study groups brought together gerontologists, sociologists and lawyers.  It was not possible to understand how the abuse suffered in institutional settings could be remedied unless psychologists, specialists in aboriginal law and philosophers also looked at the issue.

However, a genuine contextual approach must seek something more than just the opinions of experts.  It must also involve those people who experience the law in their everyday lives.  It is essential therefore, and this is, in my view, the truly revolutionary aspect of our approach, to involve and to consult the public.  Seniors have something to say on the concept of age and victims know what they want from the judicial process.  No doubt the general public understands the importance of redefining the concepts of spouse or marriage.  With all the challenges it poses, consultation has become an integral part of the Commission's research.

B. Consultation

Consultation must be dynamic and well thought out.  It must imbue the whole process, not only the contents of the conclusions.  An attempt must therefore be made to consult when the research is being planned, in the conduct of the research, in the distribution of the results and in any follow-up to the research.

The structure of the Commission already permits a certain openness to other views.  The five commissioners, of whom only the President is employed on a full-time basis, are not necessarily lawyers.  An advisory council created under the Act allows for in-depth consultation with well-informed individuals representing various areas of activity in Canadian society.  This is a privileged body because it educates itself and is constantly involved in the consultation process.  Our advisory council has provided us withmarvelloussuggestions that have enabled us to consult the public in a more appropriate manner, because a small budget makes it impossible to take the pulse of a large segment of the population.

However, we have gone outside the advisory council to formulate the Research Agenda and to conduct the research as such.

(a) Consultation in preparing the Research Agenda

As long ago as 1972, Professor Beetz, who later became a judge of the Supreme Court of Canada, took aim at the lack of consultation in setting research priorities for the law reform organizations: He stated the following: "The order of priorities in law reform … should be considered a matter of the utmost importance, subject to public discussion and debate rather than to discreet gentlemen's agreements."¹⁷   This is in essence the idea behind the Commission's mission, which gives the public a predominant role to play.  In fact, the Commission's Mission reads as follows:

To engage Canadians in the renewal of the law to ensure that it is relevant, responsive, equally accessible to all, and just.

An initial letter-writing campaign asked various groups to express their views as to what they thought were the current problems facing the law.  From the replies received, the Commission devised a strategic Research Agenda focusing on the various relationships I mentioned earlier.  The imaginative effort of devising the Strategic Agenda in terms of relationships to some extent grew out of this exchange of views with Canadians.  Obviously, the President, Roderick Macdonald, is the author of this approach but his thinking was based on the openness of the process that enabled the Commission to hear how Canadians viewed the law and its impact on their lives.  This effort to democratize the development of the Strategic Agenda must continue.  Almost any institution is faced with the temptation to look inward upon itself in carrying out its mandate and to become satisfied with a view that is not necessarily well researched of the feelings of the public.  It needs to be said that consultation is a double-edged sword.  Asking Canadians what they think of the law is tantamount to making them aware of the Commission's strategic choices and inviting them to criticize them later.  A group must be expected to disagree with a decision not to invest sufficient resources in a problem that it has raised.  Such groups also become aware as a result of the need for ongoing participation in the process.  Once such groups have been consulted, they do not want to be forgotten.

(B) Consultation in the research process

The Act authorizes the creation of study panels.¹⁸  It is by creating such panels that the Commission has striven not only to include a broad range of experts on the questions but also representatives of groups that are directly affected by its research.  Their commitment and their contributions have been most stimulating.

In addition to these study panels, the Commission has created advisory groups on the Internet and held public meetings and distributed discussion papers to groups and individuals throughout Canada and has asked them to comment.  It produced a video to ensure wider distribution of the results of its research into the abuse suffered in institutions.

Finally, the Law Commission of Canada Act provides that the Commission may create partnerships in carrying on its activities.  Once again, this openness to others, whether they be research organizations, community groups or expert researchers again enables us to work within a limited budget while enriching the views expressed by the Commission.  It no longer has full control over its research methodology, which now has to reflect the views of the partner, but this exercise does make it possible to consult more Canadians.

To date, the Commission has concluded a large number of partnerships  that have proved to be very productive: partnerships with universities for the organization of conferences, community groups or research institutes.

All these initiatives are designed to broaden the Commission's perspective.  A multidisciplinary approach combined with consultation demand substantial effort: effort in disseminating, translating and attractive marketing of ideas and clarifying the message.  The approach is not altogether precise at times and we may experience some failures.  However, it is important never to lose sight of the importance of an open and dynamic methodology that changes to reflect the circumstances.  It will also be necessary to continue to develop methodologies to involve the public in disseminating the results of the research and following up on reports.  This may provide the only guarantee that we can truly understand the living law and genuinely innovate.

Conclusion

It has often been said that the important part of law reform is to ask the right questions.  "Why?" and "For whom?" have always seemed to me to be questions that are full of possibilities.  It is not always sufficient to understand the reasons why a standard was proposed or instituted.  It is also necessary to question its effects on the persons who benefit and those who are excluded.

This rigorous exercise in always identifying why and for whom must lie at the heart of the task of reforming the law.  It will be used to refine the multidisciplinary methodology of consultation.  That is perhaps the only way in which we can truly rethink the law.  Thank you for your attention.

Appendix A - Preamble to the Act

The Preamble is extremely ambitious.  It reads as follows:

WHEREAS, after extensive national consultations, the Government of Canada has determined that it is desirable to establish a commission to provide independent advice on improvements, modernization and reform of the law of Canada, which advice would be based on the knowledge and experience of a wide range of groups and individuals;

AND  WHEREAS, the Government adopted the recommendations arising from the consultations that the Commission should be guided by the following principles, namely

the Commission's work should be open to and inclusive of all Canadians and the results of that work should be accessible and understandable,

the Commission should adopt a multidisciplinary approach to its work that views the law and the legal system in a broad social and economic context,

the Commission should be responsive and accountable by co-operating and forging partnerships with a wide range of interested groups and individuals, including the academic community,

the Commission should employ modern technology when appropriate and be innovative in its research methods, its consultation processes, its management practices and its communications in order to achieve efficiency in its operations and effectiveness in its results, and

the Commission should take account of cost-effectiveness and the impact of the law on different groups and individuals in formulating its recommendations.

1  The Act respecting the Law Commission of Canada, R.S.C., c. L-6.7, received Royal assent on May 29, 1996 and came into force on July 1, 1997.

2  For an account of the fate of the various provincial commissions, see W.H. Hurlburt, The Origins and Nature of Law Reform Commissions in the Canadian Provinces: A Reply to "Recommissioning Law Reform" by Professor Roderick Macdonald (1997), 35 Alberta Law Review 880.

3For an eloquent explanation of  the need for creativity, see Roderick A. Macdonald, Recommissioning Law Reform (1997), 35 Alberta Law Review 831; "Access to Justice and Law Reform" (1990), 10 Windsor Yearbook of Access to Justice 289; "The Changing Dynamics of Law Reform", Proceedings of the Conference on Law Reform in the Year 2000 (Edmonton, March 25-27, 1998) and "In Search of Law", a speech given on October 1, 1998 to the Federal Court Seminar organized by the National Judicial Institute, available on the Internet at: http://www.lcc.gc.ca/en/pc/speeches/s011098.asp.

4. The section continues ...

(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 co-operation and co-ordination; and

(d) the elimination of obsolete laws and anomalies in the law.

The creation of new legal concepts is one of the main tasks of the Commission.  Compare this provision with the Law Reform Commission Act, R.S.C. 1970, c. 23 (1st. Supp.), as amended by S.C. 1974-1975, c. 40, s. 11(d).

5. See Law Reform Error: Retry or Abort? (1993), 16 Dal. L.J. 395.

6. Ibid., p. 399.

7. R. Macdonald, Law and Logos, available on the Internet at http://www.lcc.gc.ca/en/pc/message/logo.asp

8. In Search of Law, supra, note 3.

9. On this need to consult the public, see E. Ryan and A. Lamer, The Path of Law Reform (1977), 23 McGill L.J. 519, at p. 528.

by J.N. L10.   The risk of ignoring the real effects is clearly identified infra, note 15, where it is explained that: "We are expert at solving problems of the legal order in words, but rather inept at effecting real improvement at the human level" (p. 422).

11. The Strategic Agenda is also available on the Internet at http://www.cdc.gc.ca/fr/about/agenda.asp

12. J. Beetz, Reflections on Continuity and Change in Law Reform (1972), 22 U.T.L.J. 129, at p. 141.

13. Section 3,supra, note 1.

14. Ibid.

15. See J.N. Lyon, Law Reform Needs Reform (1974), 12 Osgoode Hall L.J. 421, where the author states: "when law reform is forced into the conventional mold of legal thinking it becomes cut off from the valuable experience and techniques of other disciplines" (p. 421).

16. Strategic Agenda, supra, note 11.

17. Beetz, supra, note 16, "Létablissement des priorités de réforme devraient être considéré comme un sujet de première importance, assujetti a un débat public et non simplement confiné à des accords confidentiels entre gentlemen" (P. 141).

18. Section 20.