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27/10/2005

The Role of the Law Commission of Canada regarding Law Reform

Yves Le Bouthillier
President, Law Commission of Canada

30th Canadian Congress on Criminal Justice

Calgary, Alberta

I am delighted to be here in Calgary during Alberta’s centennial and on the occasion of the Canadian Congress on Criminal Justice’s 30th annual conference. Anniversaries and annual meetings are occasions to look back at the road travelled, as well as invitations to ponder what could lie ahead, bearing in mind what the Chief Justice told us this morning, that “Precedents alone do not solve future problems”. Therefore, I am pleased to be here to speak to you about how I see the role of the Law Commission of Canada regarding law reform and to reflect with you on the possibilities that the future offers from the Commission’s perspective.

It is an undeniable fact that law changes all the time. These changes are due to a multitude of factors and made possible through the efforts of many people and institutions. The Commission is only one of many actors on the often long road that leads to changes to the law.

First, let me talk to you about the process we follow to move law reform along before giving you a general idea of the Commission’s current and upcoming projects that will, I hope, translate into law in the future. I will conclude with some reflections on law reform in the coming years.

Our work starts by focussing on the role that law plays in personal, social, economic and governance relationships. Under each of these four themes, we identify specific issues for studies that can take up to three years, and in some cases, more. How do we identify these issues? There are many ways to do so. Shortly after its creation in 1997, the Law Commission, whose mandate is to engage Canadians, turned to them and, using various forms of communication, asked them what the pressing issues for law reform were. We received hundreds of suggestions. Given its limited resources, the Commission had to select the issues that were the most promising by doing some preliminary background research and by consulting with its Advisory Council. This Council is an inherent institution of the Commission. It is provided for in the Act to ensure that the Commission receives, on a regular basis, the input from Canadians who are representative of the diversity for which this country is known. Members of the Advisory Council serve as an important network for the Commission, connecting it to communities and regions, and points of view, or to use the terminology suggested earlier by Reuben Nelson, “perspectives”, which it might not otherwise have heard. Law reform of today, or of the future, is not an exclusive club for jurists and judges. In fact, they are a minority on the Council. The composition of the Council is a formal acknowledgement of something that has been known to be true for a long time: lawyers cannot by themselves resolve complex and multifaceted societal issues, nor can any other discipline on its own.

Certainly, one of my more pleasant duties as President of the Law Commission is to meet with this Council which is comprised of up to 24 volunteer individuals.

I will do so for the first time next week.

There is also no doubt that the Commission listens carefully to its staff of researchers, who themselves take into account the feedback of the Council, as well others, and take stock of the options available and the advice of the executive director, Bruno Bonneville. Bruno will be here tomorrow to chair a panel on Indigenous Legal Traditions to which you are all invited. Our team of researchers reflect the multidisciplinary approach of the Commission as two of them are lawyers and one a criminologist. You may be surprised to learn that we have such a small research staff, given, as I will explain to you later, our ambitious agenda. Fortunately, the Commission also relies on the scientific contribution of external experts from a variety of disciplines: economists, industrial relations specialists, philosophers, political scientists, ethicists, and yes, lawyers from all disciplines of law. All help us in our law reform efforts.

Ultimately, however, it is for the five commissioners, including myself, appointed by Order-in-Council, to set the agenda of the Commission. The other four are part-time commissioners but, in reality, are in regular contact with me and the staff and each of them is closely involved with at least one project. They do not have to be and are not all lawyers. One of our commissioners is the Dean of Arts and Sciences at Mount Saint Vincent University, in Halifax. The other commissioners, including myself, are from other regions of the country – British Columbia, Alberta, Ontario and Quebec.  We all have legal training and currently work in law, but in different settings and legal disciplines : two are academics - one an expert in private law, the other in public law; the other two are practitioners, one working on Aboriginal issues, the other one on trade.

Once a specific issue is identified, we prepare a list of questions, questions to which we do not know the answer. Of course, in many cases, we know that there is a range of possible answers, but the right one for Canadian society at a given time is rarely apparent at the beginning of the process. After all, ours is an organization of research of solutions by learning with and from others. In my opinion, the questioning at an early stage of any project is key. If we don’t take the time to list the right questions we can have a false start that could prove costly.

Once we are sufficiently confident that we have the right questions, we talk to other law reformers who have done work on the issue previously. We also invite new people, creative thinkers to reflect on the key issues. At the same time, we engage with as many different groups as we can identify and through various means of communication across the country. At some point, we take the decision to start to draft a report which, after much redraft, will be approved by the commissioners. I am confident that early next year a report on Policing, dealing with the rise of private security guards and their relationship with public police, will be tabled.

This process (selection of an idea, questions, consultations, report) is our main contribution to an effort to reform law that still needs to be completed. Our report is an important, albeit interim phase, to bring about changes in the law.

I would now like to talk to you about certain concrete projects that are at different phases in the process of law reform. As you will see, they are all relevant to the future, given that none of them, with a few exceptions, have yet contributed to changing laws or, more positively, they all have the potential to contribute to significant changes in the law.

I would like to focus for a moment on two projects that have led to reports during what I would call Act I of the work conducted by the Commission in the course of this century. I call it Act I because the main player at the time was my predecessor, Nathalie Des Rosiers.

• In its 2002 report entitled Beyond Conjugality, the Commission indicated that Canadians are involved in many close personal relationships between adults and that these relationships have become even more diverse over the past 30 years. Many people live with a conjugal partner, others live with their parents, their brothers and sisters, their care providers, and so on. The Commission asked the following question: "Given the various types of personal relationships between adults, why does the law still focus almost exclusively on conjugal relationships?" Based on this question, the Commission proposed "to entirely rethink the way in which governments regulate relationships between adults." It recommended, among other things, that governments support relational equality. It proposed that a number of laws be amended to apply this approach. What is likely to lie ahead? Let me ask you: "Do you think that close personal relationships between adults will continue to change?” The population is aging, young adults are staying longer in their parents' home, and a considerable number of immigrants have come from countries where extended family is particularly important. In other words, I believe that all these factors point to support a law reform based on the Commission's recommendations.
• In its 2004 report on electoral reform entitled Voting Counts, the Commission concluded, after consulting extensively with Canadians, that electoral reform is perceived by many individuals as a good start to renewing a waning interest in democratic institutions. It recommended major changes to our electoral system by adding an element of proportionality. This proposal generated a lot of interest, not only at the federal level, but also at the provincial one. Not only did the Commission appear before the House of Commons Committee to present its report, but it was also invited by the Legislative Assembly of Ontario to explain the proposed system in detail. On November 28, 2005, PEI electors will be called to vote on a proposal for the reform of their provincial electoral system. This proposal is quite similar to the one put forward by the Commission for the federal electoral system. Moreover, a Parliamentary Committee proposed the implementation of a consultation process, on electoral reform, keeping this issue on the agenda at the federal level.

These are past initiatives of the Commission. What about Act II? Upon my arrival at the Commission, I picked up where Act I ended, pursuing the work on seven already existing projects that, I hope, will lead to reports during my tenure. Given the time constraints, I will only mention three projects to illustrate how they are intended to challenge the existing legal concepts:

• Our project on Indigenous Legal Traditions, of which you will hear more tomorrow, raises important questions that touch upon the relationship between Aboriginal Peoples and the rest of Canada as well as among themselves. What were Indigenous legal traditions in the past and what are they today? As Reuben Nelson said this morning, “How have they adapted?” What form do they take? How different is their content from one Aboriginal group to the next? How relevant are they today to Aboriginal groups? To what extent should they be reconciled with other existing legal norms? In fact, this project will give voice to those who believe that there is and has always been Indigenous laws in this country and that Canada can accommodate legal traditions other than civil and common law. A discussion paper will soon be released, where you will find a discussion of these issues as well as a series of insightful questions to stimulate the debate. Within the next few months, we will also launch a video to give forms and voices to these traditions.
• Another project is “Governance in the context of Globalization”. It is a truism to state that we live in an era of globalization. In a recent speech, Prime Minister Martin remarked that “Globalization is a buzzword of some maturity now”. In order to liberalize markets to an extent never seen since the rise of industrialized society, states have, through various trade-liberalizing agreements, limited their ability to control foreign competition in their respective domestic markets. Faced with an unprecedented expansion of the movement in and out of their territory of goods, services, investments, communications and people, each state is confident that its economy will overall benefit from the reduction of trade and investment barriers. This push for the creation of a more open world market has coincided with advances in technology and communications and has also encouraged the growth of the transportation industry, expanding dramatically our ability to communicate and travel over long distances. States are therefore faced with the challenge of managing a world more interconnected than ever and in constant movement, a “globalized” world. A growing interdependence can be seen at all levels. Individuals create personal and professional relationships with other individuals in various parts of the world; the success of multinational operations is premised on a vast web composed of subsidiaries, suppliers, purchasers and consumers in numerous countries; states enter into a number of international agreements to facilitate the market forces driving globalization and to address problems which they cannot resolve solely on their own - like climate change, the ozone layer, the protection of endangered species, terrorism and so on. Like any momentous changes throughout human history, this phenomenon brings with it both positive and negative consequences.

Given that globalization can encompass so many phenomena, the challenge for the Commission has been to determine what to focus on. We decided to stay away from substantive legal issues as the list would be endless. We know that our study needs to address at least two issues: the relationship between international and domestic law and the concept of extraterritoriality. The first involves issues of democracy, transparency, participation and responsibility. Given that norms of international law are having an ever greater impact on the content of domestic laws, we will start with the three following questions:

1. What should be the respective roles of Parliament and parliamentarians, the executive, the provinces and civil society in the negotiation and ratification of treaties?
2. How can we achieve a more transparent and effective implementation of our international obligations?
3. What weight should courts and administrative tribunals give to international law? The answer to each of these questions could suggest changes in how we address the relationship between international and domestic law in Canada. A discussion paper on this issue will also be published in the coming months.

This project will also examine the application of extraterritoriality in various areas of law, including the regulation of the conduct of individuals and corporations abroad through criminal law. As you know, the geographical reach of Canada’s criminal law has been expanding over the years. This month, the first charges under the Crimes against Humanity and War Crimes Act were laid against an individual, including charges of genocide, crimes against humanity for sexual violence and murder, and war crimes. This is a significant development since no charges of this nature had been laid since the early 1990s. Last year, charges were laid for the first time under the Criminal Code’s child sex tourism offences. As you know, section 7(4.1) of the Code authorizes charges for sexual offences committed overseas against children.

What other conduct should lead to prosecution for actions committed abroad? Should we, for transplant purposes, criminalize the purchase of organs abroad by Canadians, that  would be illegal here? Should we criminalize the actions of Canadians working on illegal genetic modification in another country where it is legal? Should we criminalize the conduct of Canadians who go abroad and fight in an insurgency while here we refuse to admit immigrants who have used force to overthrow foreign governments? These are some of the issues that the Law Commission could examine when addressing extraterritoriality. There are others such as state immunity or the Charter application, for instance. We will also release a discussion paper on this issue in the near future.

• Another project concerns a fundamental question that I am certain you have wondered about, namely: What is a Crime? In 2004, we published a discussion paper on this project. Subsequently, we commissioned six case studies, which will be available shortly. A summary of each is posted on our web site. These case studies concern issues such as fraud of public money by health professionals, the legalization of gambling in Canada, social assistance fraud and what is incivility?

Currently, a researcher is working on this issue through our Virtual Scholar in Residence Program. The Commission could have focused on a single behaviour and written a report on whether or not it should be criminalized. Instead, it decided to examine this question under a wider scope. We would like to develop a framework for evaluating how these acts or omissions are regulated and by what means. The key question is: what we are trying to achieve when we deal with unwanted behaviour and why, in some cases, using strategies other than penal law allows us to realize our objectives.
By next year, I will be able to tell you more about this project, which is to say that I hope to be invited to your next meeting.

These are some of the projects. There are others, and I would be happy to discuss them during the question period. Will there be new projects appearing in Act II? Certainly. Through partnerships, we are already undertaking preliminary studies on "access to justice" and the consequences of recognizing "social and economic law" through legislation.

To conclude, my vision of the future of law reform is very much an amalgam of various elements that I have already mentioned:

• it is a complex exercise that does not have as its starting point a specific legislation, but rather a societal issue.
• all disciplines have worthwhile contributions to make to resolve societal issues. Law will be informed by and will inform other disciplines to find the best solutions.
• law reform should also show that everything is possible and that concepts and institutions are not sacred but human constructs and that everyone can contribute to it. This means that we need to make additional efforts to stimulate a broad-based engagement of Canadians in law reform. If we succeed, law reform will have contributed not only to change how we see the law but also, in the process, will empower those who contribute to this change.
• Finally, and this will betray my past academic experience in the field of international law, law reform will necessarily have to take into account external norms and realities. International agreements touch on virtually any imaginable field of human activity (from climate change to the human genome) and in doing so is globalizing somewhat law reform!