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03/04/2001

Engaging Canadians in Law Reform

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.cdc.gc.ca

"Those who reform the law in Canada are, above all, the public. They renew the law by living it."

Law Commission of Canada - First Annual Report

In 1997, when it first started its work, the Law Commission of Canada 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.

Today, I propose to explain why "engaging Canadians" is essential to law reform. I will also discuss the way in which such a commitment of engaging citizens can be translated into action.

First. I would like to take a few minutes to talk about the Law Commission. The Law Commission is an independent federal agency whose mandate is to provide advice on improvements to, and modernization and reform, of the law of Canada. In the Preamble to its legislation, there are important principles which guide the work of the Commission:

·         its work must be open, inclusive, and accessible to all Canadians;

·         it must view the law and the legal system in a broad social and economic context;

·         it must be responsive and accountable by working in partnership with a wide range of interested groups and individuals;

·         it must be innovative in its research methods; and

·         it must take account of the impact of the law on different groups and individuals when making its recommendations.

Research Methodology

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, consisting of 24 volunteer members from across Canada, who bring a rich variety of experience and perspectives to the advice they offer 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 and regions, and points of view 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 of its work with a view to ensuring that it is multidisciplinary, and wherever 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.

Its work is also "consultative". This is an important aspect which I would like to address.

Why is engaging Canadians in law reform important, even essential, to law reform?

Engaging Canadians in deciding which issues need to be reformed

First, the Commission believes that consultation is key to identifying the topics which could form the basis for research and, perhaps, reform. It was therefore important to know which issues mattered to Canadians, where they thought there were problems, and which issues were, in their view, ripe for reform. Our initial approach was to engage Canadians in thinking about law reform, in providing us with ideas about what was wrong with the law.

This consultation, I believe, allowed us to measure the breadth of problems and the task to be undertaken. The most revealing element of this consultation was a sense of disengagement of Canadians toward law and institutions. It almost seemed that life, real life, was outside the scope of law and certainly, that law was not considered as contributing to the achievement of an improved quality of life, but rather as an impediment to fulfillment.

Not all Canadians were dissatisfied with the law, but there was a definite sense that past reforms had been only marginally helpful. For example, family law has seen several reforms in the last 30 years, but the problem of poverty of single mothers and their children appears to be just as acute. Were the reforms poorly conceived? Were they too narrow in scope? Did they presume a range of factors that proved difficult to achieve, such as access to legal aid? Perhaps the scope of societal transformations exceeded law reformers' predictions? Many reforms have proven to be helpful. Not having implemented them could very well have worsened the problem. Symbolically, some issues may have been helped by law reform, including family violence, child abuse, sexual assault, to name a few. But there is still work to be done. This initial engagement of Canadians in formulating issues for reform was indeed revealing. It suggested that an approach based on relationships and not premised on the current legal understandings may be helpful.

The Law Commission of Canada 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 first look 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 proceed 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 focus to approaching issues.

Engaging Canadians in the Research

What the attempts at reform in the 1960s and 1970s and their limited success can teach us is that it is dangerous to focus too much on the formal law if we fail to understand the reality that underlies it. Canadians and the reality that they live must be the starting point of law reform.

If we ignore the way in which law is lived, we engage in reform at our own risk.

One of the first challenges for sound law reform, therefore, is to question the reality. Consultation and engagement of Canadians in describing the problems that they experience is an essential part of this attempt.

One such example was identified in a recent study on financial exploitation of seniors. Financial exploitation is a serious social problem that many people have identified, including both the physical and psychological abuse of seniors that sometimes accompany financial exploitation.

It is a conditioned reflex for a teacher and a lawyer to look to comparative law to see whether other jurisdictions have something worthwhile to offer us: possibly the laws governing the protection of seniors that exist in some of the provinces and in the United States where some social workers identify as good examples.

An examination of the question shows that it is not so much the formal law that is sick, but rather the suppositions on which it is based. The Criminal Code is adequate in its present state to deal with the financial exploitation of seniors as well as physical abuse, but it is not used. Seniors do not lay complaint charges against members of their families who deprive them of their assets. They do not wish to complain. Perhaps it is the shame of having to admit publicly that their offspring have taken advantage of them. It may be because of the devastating effect criminal proceedings have on victims. (Who wants to go to Court and wait for hours simply to be told that the case has been adjourned to a later date?) It may be because they do not really understand their rights. It may possibly be our concept of the family which makes parents responsible for their children's failures that prevents them from complaining.

It was La Sagouine, a fictitious character created by Antonine Maillet, who said in one of her monologues: "I don't come out of the confessional until I have finished confessing my sins, the sins of my husband and the sins of my children".

A reform of the law that was limited solely to recommending changes in the provisions of the Criminal Code to eliminate any uncertainty as to its application to the financial exploitation of seniors, or even to make the job of the prosecution easier, would be out of place.

Older adults had to be consulted to get a better appreciation of the way in which the problem was truly lived and to identify possible solutions. Legislative changes, changes in the formal law, cannot be recommended until we have properly interpreted the situation of seniors and until we have consulted the seniors themselves.

Proper research is not possible unless we talk to the people who are affected by the law and will be affected by the reform. They are the people who must live with such reform.

We have tried in our research methodology to build in mechanisms for consultation: we try to form study panels consisting of not only the experts but the people who will be affected and the representatives. We conducted community meetings, focus groups and a webcast consultation to hear stories of people dealing with the law on a specific subject. This experience is different from a consultation about what should be done about the law. It is done to better understand the reality of the law as it is lived, and not just to obtain the views of Canadians about a particular subject. I want to emphasize how research and researchers cannot shy away from consultation in the process of understanding law and its impact. Empirical research is needed and is essential, but it must be include involvement of the subjects. Statistics disembodied from context can be misleading. Referring to the subjects and the citizens to verify whether the research conclusions confirm their reality must become an essential step in research.

There is yet another way in which we ought to engage Canadians.

Engaging Canadians in proposing changes

Canadians have opinions about law reform. Divergent opinions, often. What should the Law Commission do with such a variety of points of view on a particular issue?

In my view, the idea of engagement implies that there is an invitation to participate in a reflection, in a deliberation about law. What we should aim to do is allow Canadians to better understand the research being done, and to assimilate its conclusions. An opinion, even forcefully put, is not a guarantee of truth - but as a result of exchanges and confrontations of opinions, one may get closer to the truth.

In that context, the Commission must develop better instruments to allow Canadians to exchange with one another and take stock of the research completed. For example, our discussion papers have to present options that Canadians can understand and identify truthfully the studies that support each option as well as the uncertainty that continues to exist. Acknowledging complexity is not a sin, it is often the beginning of wisdom.

Webcasting could lead to the support of discussion groups that include different points of view. Certainly, study panels and community activities must aim at exploring the differences in opinion and the underlying reasons for such differences.

We have used a methodology of a "safe forum" to better understand the root causes of a disagreement and which allows participants to explore alternatives to their strongly held views. Again, it is to better target the reform efforts.

Engaging Canadians in implementing changes

The aim of law reform is to see changes implemented for the better. Law reform agencies want to make sound recommendations, but they also want such recommendations implemented.

Consultations in the process may ensure greater ownership for the issues by citizens. Implementation is no longer an issue for the Law Commission, but the people who have been engaged in the process. It becomes their issue as well. This in fact may be the best guarantee of changes in the law. The law will not change if Canadians do not want it to change and it will evolve through their constant interaction with law. Canadians can demand change, but they can also effect change - in the way they use the law, in the way they interact with one another, in the way they instruct their lawyers and other representatives, in the way in which they write to editors, in the way in which they question their institutions and their politicians as well.

In conclusion, Engaging Canadians in Law Reform is at the heart of the enterprise. It is however a principle that needs constant reminding.

It is one of the temptations of all institutions to focus on itself in the accomplishment of its mission and to satisfy a perception which is more or less documented by the public. It must be noted that consultation is a double-edged sword. To seek Canadians' views on what they think of law is to raise their awareness and to invite them to criticize, at a later date, the strategic choices opted by the Commission. Consultation also raises the public's awareness about the continued participation in the law reform process. Once they have been consulted, they want to stay in touch with what is happening.

The Commission does not want to forget its mission. I know that you will not let it.

Thank you.