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A. Placing the LCO in Context
Law reform as a limited activity goes back to the fifteenth century, but the modern notion of deliberative law reform began in the United States with the 1925 Law Revision Commission and in Britain with the establishment of the Law Revision Committee in 1934 which, with a break for World War II, was reestablished as the Law Reform Committee in 1952.[1] The Ontario attorney general established a Law Revision Committee in 1941 and an Advisory Committee on the Administration of Justice in 1956. According to Murphy, the latter body “produced a significant body of work, mostly on technical issues” and it was successful in having many of its recommendations adopted by the government.
In 1964, Ontario established the first “modern” law reform commission in Canada. The Ontario Law Reform Commission (“OLRC”) was created by statute and was required to look into any issue requested by the Attorney General, but it also had the freedom to study and make recommendations about any area it considered appropriate. Its personnel included one senior and four legal research officers and it otherwise relied on contract researchers drawn from the Ontario law schools. An advisory board, comprised of legal and non-legal members, was also established. The Ontario Law Reform Commission was abolished in 1996 after releasing a significant number of reports, a good number of which, as Hurlburt explains, influenced the development of law in Ontario and elsewhere.[2]
A little over a decade after the abolition of the OLRC, the Law Commission of Ontario was established on June 25, 2007. In November 2006, a group of individuals, including law school deans, members of the bar, members of the already appointed Board of Governors and the Research Advisory Board of the LCO and members of the Ministry of the Attorney General met in a “Creative Symposium” to discuss issues related to establishing a law reform commission in Ontario.
The LCO is a partnership among the Ministry of the Attorney General of Ontario, the Dean of Osgoode Hall Law School, the Law Deans of Ontario, the Law Foundation of Ontario and the Law Society of Upper Canada, with funding and in-kind contributions from MAG, the LFO, the LSUC and Osgoode Hall Law School for five years, beginning January 1, 2007. It is a not-for-profit unincorporated institution that finds its authority in the Foundation Agreement among the founding partners and not in statute. The LCO was officially launched in a public ceremony at Osgoode Hall Law School on September 7, 2007 and its Executive Director was appointed effective September 15, 2007.
The new Law Commission of Ontario joins sister provincial commissions in Nova Scotia, Manitoba, Saskatchewan, Alberta and British Columbia. These commissions vary in their origins, organizations and resources. The Law Reform Commission of Nova Scotia, the Manitoba Law Reform Commission and The Law Reform Commission of Saskatchewan were all created by specific provincial statute. The British Columbia Law Reform Institute was incorporated under the Provincial Society Act in 1997 and was a successor to the Law Reform Commission of British Columbia, established in 1969, from which the Ministry of the Attorney General had withdrawn funding. The Institute of Law Research and Reform was created by the Province of Alberta, the University of Alberta and the Law Society of Alberta in November 1967; it was renamed the Alberta Law Reform Institute in 1989. The Nova Scotia, Manitoba and Saskatchewan Commissions all receive funding from their provincial departments of justice and law foundations. The Alberta Institute is funded by the Department of Justice and the Alberta Law Foundation and it also receives in-kind contributions from the University of Alberta (the University of Calgary provides office space for two ALRI counsel) and the British Columbia Institute by the British Columbia Law Foundation and more recently, by the Notary and the Real Estate Foundations.
The Law Reform Commission of Canada was established by statute in 1971. It was closely tied with government and was given a legislative mandate heavily directed at maintaining currency in law, but it also was given responsibility for developing new approaches to law, a part of its mandate it took very seriously. Although slow to have recommendations acted upon by government (according to Hurlburt, this did not occur until 1983 with respect to a relatively narrow question, the abolition of the immunity of federal employees’ salaries from garnishment), the commission saw more recommendations translated into law during the next decade. It was abolished in 1993; revived in 1996 as the Law Commission of Canada, its funding was withdrawn again in 2006.
The LCO thus joins a mixed law reform commission landscape in Canada; although most provinces do have a law commission, they vary in resources and their capacity to study large topics and in the number of studies they are able to undertake at any one time.
Internationally, law reform as a deliberate activity has been recognized in countries around the world. Commissions in England and Wales, Scotland, Ireland, Australia (federal and state), New Zealand, South Africa, various states of the United States, Hong Kong, Fiji and Tanzania are among those whose discussion papers and reports are available on the web.
B. The LCO’s Approach
From an emphasis on the initial narrow, focused and often technical questions that were the concern of the first law commissions or specialized law reform bodies, law commissions evolved into bodies concerned with large social questions requiring multi/interdisciplinary and empirical research and non-legal expertise. Today law reform commissions are generally responsible for both kinds of “reform.” The Report from the Creative Symposium observed that the spectrum of approaches to law reform runs from “philosophy (informative, contemplative and foundational) and politics (immediately relevant and responsive).” Canadian commissions have tended to focus on areas of law or statutes, although the Law Commission of Canada may best be described as having conformed to the “philosophical” approach. The LCO has attempted to learn from the approaches and experiences of other commissions and takes a creative and visionary, yet pragmatic, approach to law reform, combining qualities of both approaches.
The LCO also recognizes that law reform is not the sole purview of law reform commissions. Law is changed or “reformed” in a variety of ways. Law becomes outmoded and atrophied, not observed or enforced even though not repealed. Governments introduce and legislatures enact new laws, often explicitly replacing existing law in the process, but sometimes legislating in heretofore uncharted areas. Courts make law even as they interpret it. Law reform arises in response to many stimuli: spectacular incidents that dramatically reveal the need to develop or amend laws; scholarly articles that analyse the problems with existing law; lobbying by groups with particular interests; and societal or technological developments that warrant regulation, among others. It may be planned or responsive to immediate and unanticipated need.
Although law reform commissions constitute only one means by which law is reformed and even transformed, they do have a distinctive capacity to contribute to the process of law reform. They are able to engage in thorough analyses of difficult legal problems and propose innovative solutions that encompass recommendations in areas other than law, in addition to law. They are able to identify the advantages and disadvantages of different options, weighing them in the balance. They have more time for research than does either the government’s legislative or even policy development branches or the courts. While academics have the capacity to engage in major research, they do not often have the association with government and the explicit mandate to engage in law reform that characterizes law reform commissions.
While they do not by themselves have the political or legal authority of either government/legislature or the courts, law reform commissions with reputations for excellence and pragmatism may have a “moral” authority that transcends their legal status. Law reform bodies must acknowledge practical and political realities and must couple their high quality scholarship and philosophical contribution with pragmatism in their recommendations: their recommendations must be feasible, even if not popular with a particular government. To be most effective and obtain the trust of the public, law reform commissions must be independent and non-political and must be prepared to accept challenges and deal with difficult and controversial questions.
To achieve legitimacy and maintain it, law reform commissions must take a principled approach to law reform and as a result, commissions that determine their own research agendas may undertake projects that do not necessarily accord with the agenda of the government of the day, knowing that in this instance, at least, its study and recommendations may not have an impact until some time in the future. As suggested below, realization in legislation or even adoption by the government of its recommendations is not the only measure of success for a law commission: it also has a role in contributing to dialogue and education about reform and particular social issues.
Furthermore, a law reform body must be independent not only of government, but also of any particular interest group. Its legitimacy is grounded in the recognition that its work is independent, based on expertise and a culture that understands the process and implications of recommendations resulting from objective study of a particular problem. As the former Chairperson and the Executive Director of the New South Wales Law Reform Commission observe, “Policy analysis and development is something that law reform commissions do very well.”[3]
In short, as Murphy suggests,
A law reform commission must operate on a different level than legislators and judges, since it has to evaluate the repercussions of reforms objectively and without undue regard to short term political considerations. The benefits of a law commission include independence, expertise, focus and continuity.[4]
The contemporary model of law reform commissions has also been described by Adams and Hennessey of the NSW Commission as “uniquely placed to undertake detailed, principled research into areas of law…They are permanent, independent organizations, able to coordinate large research projects, engage in community consultation, and write detailed, reasoned arguments for their recommendations to government.”[5]
One informed commentator, a former Chair of the Australian State of Victoria Law Reform Commission, goes so far as to suggest that underlying “[t]he creation of standing law reform bodies was that the whole idea of law reform was reconceptualised.”[6] The first Law Reform Commission of Canada, particularly in its early days, considered its mandate to be addressing broad social questions and changing attitudes, not developing “technical” recommendations. Many of its reports were, to use William Hulburt’s phrase, “heavily philosophical.”[7] The later Law Commission of Canada jettisoned the usual categories of law, “categorizing” law instead as law relating to personal relationships, social relationships, economic relationships and governance relationships.
The LCO’s philosophy of law reform is to undertake both focused questions when there is a particular reason for doing so and the large social issues for which law commissions are particularly suited. It will, indeed, offer in appropriate cases, the “reconceptualization of law” which Neave considered signalled the purpose of a separate law reform body. It recognizes that while law may be the primary discipline as far as law reform is concerned, it must be viewed in the context of other disciplines and expertise, such as sociology, economics and psychology and the natural sciences, for example. It will employ the most modern research tools and both qualitative and quantitative analysis, as appropriate. Its researchers will consult both academic experts and those who have had real life experiences in order to form a picture of the topic at hand from a variety of perspectives. Law commissions today are “of the world,” legal and non-legal, and must, therefore, develop extensive consultation, collaboration and communication processes. A contemporary law reform commission must be concerned not only with the subjects it chooses to research, but also with its research, consultative and communicative processes.
In developing the values and principles that will govern its work, as set out above in section III and in its approach as described in this section, the LCO has positioned itself as a contemporary law reform commission, recognizing the need to place law in context and to benefit from the views and experiences of the various communities that interact with a particular area of law.
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