Law reform agencies
1 - The Emergence of an Idea
The law must be stable, yet it cannot be static. The challenge is to ensure that the legal system remains responsive to society's changing needs. One of the most effective ways to bring about legal change is arguably the specialised law reform agency.
While limited efforts to reform specific aspects of the law in the United Kingdom go back to the fifteenth century, measures to systematically review the whole body of domestic law were first undertaken when the Lord Chancellor established a Law Revision Committee in January 1934. This committee was dissolved in 1939 as a result of the outbreak of the Second World War, and no permanent law reform body was created to take its place until 1952. In June 1952 the Lord Chancellor established the Law Reform Committee, which was constructed largely along the same lines as the Law Revision Committee. The Law Reform Committee continued to exist after the creation in 1965 of two separate law commissions, one for England and Wales and the other for Scotland. The Lord Chancellor also established a Private International Law Committee in 1952. It was reported in 1980 that this committee had not met in a number of years and was abolished. The Home Secretary established the Criminal Law Revision Committee in 1959. This committee has not produced any work for many years, and for all practical purposes it is no longer in existence.
Following the establishment of the Law Revision Committee and the Law Reform Committee in the United Kingdom, similar bodies were created in Canada.
In the province of Ontario, a Law Revision Committee was established in 1941 by order of the provincial Attorney General. However, there is no evidence that the committee produced any work. The Ontario Attorney General created in 1956 a second committee called the Advisory Committee on the Administration of Justice. Participation was voluntary and broadly based. The committee produced a significant body of work, mostly on technical issues. Its recommendations were frequently adopted by the Attorney General. It survived for a time alongside the Ontario Law Reform Commission, the latter being created by statute in 1964. But the committee was eventually disbanded.
In 1954, the Nova Scotia Barristers' Society organised a Board of Legal Research composed of practising and academic lawyers. After operating for about 20 years, the board became inactive in the early 1970s.
The province of Saskatchewan established a Law Reform Committee in 1958. The committee was made up of judges, practitioners and a staff secretary from the Attorney General's department. Following an initial five-year period of high activity, this body's work became less regular until the committee was effectively defunct by 1966, although it continued to exist beyond that date.
The Attorney General of Manitoba set up a provincial Law Reform Committee in 1962. The committee was essentially an advisory body to the Attorney General, and most of the matters it considered were referred to it by the latter. The committee was voluntary and part-time. It met only three times a year. The committee closed in 1970 with the creation of the province's law reform commission. In 1968, Manitoba also established a Legal Research Institute within the University of Manitoba's Faculty of Law in the provincial capital of Winnipeg. There was some initial thought that the Institute might become a permanent law reform agency, but it remains strictly a university-based research group.
The Law Society of Alberta established a Law Reform Committee in 1964. The government did not sponsor the Committee, although it supplied secretarial services.
The need for different mechanisms
All of these early reform committees were meant to keep the law under review. However, they proved insufficient in practice. They suffered from a number of limitations, including the lack of independence in the selection of the subjects for reform, the generally part-time nature of the work and their limited resources. As a result, the committees were effectively forced to concentrate chiefly on technical aspects of the law and to avoid more complex areas involving broader social issues.
The law reform bodies created from the 1960s onwards differ from their predecessors by their permanent and independent status as institutions, as well as by the systematic nature of their work methods and the scope of their mandates. These bodies were given their new, distinctive form in order to avoid the fragmentary approach that tended to characterise special advisory bodies and bureaucracies.
The establishment of law reform commissions stems from the realisation that it is virtually impossible for a legislative assembly alone to keep the law up to date. Furthermore, important public policy issues that are not on the government agenda may nevertheless require critical analysis and potential reform. These issues should be considered by institutions that are committed to improving the law but are relatively independent of government influence.
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.
Law reform has far better prospects of general acceptance if it is produced independently of the government and of all particular interest groups. At the same time, the body carrying out the work must establish and maintain full confidence in its authority. Within this perspective, a law commission has especial value because of its independence in making recommendations to reform the law. The establishment of law reform bodies distinct from the government apparatus is legitimately predicated on the assumption that good law reform must be the product of independent thinking. There are many things that governments need to be told that they will not hear from public servants.
A law commission uses its independence and stability to establish strong links with government ministries, the legislative assembly, the judiciary, the legal profession, legal academics and, more generally, with anyone interested in a given subject. It thereby obtains access to a large amount of theoretical and practical knowledge, which in turn allows it to develop thoroughly considered recommendations.
A law reform commission has a single, well-defined purpose and is therefore able to concentrate on this objective without the distractions faced by agencies with several aims and responsibilities. A law commission also provides a natural and conspicuous focal point for law reform activity. A body totally dedicated to law reform is able to undertake broader subjects than those that could be handled by others, such as judges, ministers and government departments. As one American scholar observed, as long as law reform is everyone's business, it is nobody's business.
Efficient development and reform of the law can best be achieved by a continuing body. A specialised agency gains considerable experience and develops the professional culture necessary for the complex task of law reform. Projects are often linked by their subject matter, with the result that the knowledge and experience gained in one project often benefit another. Continuity in a law commission's operations ensures a consistent approach both to particular areas of the law and to the law reform process itself.
The call for a permanent reform body dates back to at least 1917 in the United States. Benjamin Cardozo, the distinguished American jurist, also endorsed the concept in an article written for the Harvard Law Review in 1921. He suggested that some agency (which he chose to refer to as a
"ministry of justice") be established to watch the law in action, see how effectively it functioned and report on any changes needed for improvement.
The first permanent law reform agency in North America was established in the state of New Jersey in 1925. The New Jersey Law Revision Commission produced the Revised Statutes of 1937. It was the intention of the state legislature that revision and codification of the law continue after the Revised Statutes were completed, so the Commission remained in operation. After 1939, its functions passed to a number of successor agencies. The New Jersey body was followed by the North Carolina Commission for Improvements of Laws in 1931, the New York State Law Revision Commission in 1934 and the Louisiana State Law Institute in 1938. The California Law Revision Commission was established in 1953.
Despite the example of American practice, the movement in the Commonwealth toward the creation of specialised law reform agencies was clearly triggered by the creation of similar bodies in the United Kingdom in 1965.
The establishment of law reform agencies in Canada occurred rather late compared to the United States. Nevertheless, as early as 1954, W. Kent Power, a prominent member of the legal profession from the province of Alberta, was urging the creation of permanent law reform bodies. This proposal did not initially win support from the federal Minister of Justice, but the call for change refused to die, and provincial law reform bodies were founded in the 1960s. A federal commission would eventually be set up in 1971.
Law Reform Commission of Canada (1971-1992)
The Canadian Bar Association was in the forefront in calling for a mechanism that could deal with law reform in a more orderly manner. At the annual meeting of the Association held in Winnipeg in 1955, the president appointed a special committee to look into the condition of legal research in Canada. The Committee on Legal Research, chaired by Professor Frank R. Scott, delivered its report the following year at the Association's annual meeting in Montreal.
The committee's report pointed out that rapid changes resulting from technological development confronted everyone and that decisions and choices could not be made intelligently unless supported by background investigation and analysis. Law was a field in which adequate research was especially needed, since it must deal with every new human activity. That said, the depth of legal research in Canada was judged wholly inadequate to meet these changes. The committee stated that some type of permanent body should be created to engage in continuing and systematic law reform.
It would be another decade before the Association returned to the subject of law reform. By then, a permanent law reform agency had already been established in Ontario. At its annual meeting in 1966, the Association passed a resolution calling for the creation of a federal law reform commission.
Pressure for the establishment of a federal law reform agency escalated in the middle and late 1960s, with leading legal academics joining the call for a federal law reform commission. One of these academics was Allen Linden, of the Osgoode Hall Law School in Toronto. He claimed in 1966 that the legal system had failed to keep up with changes in society and that some form of new and improved law reform machinery was needed. The primary challenge facing the law was to make it relevant in mirroring the collective sense of justice in society. Linden urged the federal government to create a national law reform commission and the provinces to establish law reform agencies. He further recommended the employment of salaried, full-time personnel, and promoted the involvement of commissioners and researchers with a non-legal background.
Another advocate was Martin Friedland of the University of Toronto. In 1969 he warned that great changes were expected in the criminal law field in the following decade, and that it was essential to have efficient legal machinery in place to bring about these changes. This action required a long-term commitment to law reform from the government. Like Linden, Friedland recommended the employment of full-time commissioners, saying there should be a small group of four to six primarily legally trained commissioners. But he warned of the dangers of making the commission too interdisciplinary and advocated a limited role for lay members. Friedland proposed that the federal Minister of Justice have the right to veto any part of the commission's research program. The commission should be independent of the Department of Justice and provided with secure funding, but the Minister of Justice should table the commission's reports in Parliament. Friedland stressed that the quality of criminal law would depend on the extent of the government's commitment to law reform.
Still in 1969, Richard Gosse, a professor of law at Queen's University in Kingston and counsel to the Ontario Law Reform Commission, reiterated these sentiments. He argued that the creation of law reform bodies in several provinces was implicit recognition that the judiciary and the legislatures are not always capable of keeping the law relevant and up to date in a modern society. They need the support of a permanent, independent and highly qualified body charged with the responsibility of reviewing the law and recommending reforms.
The first move on the political front to establish a federal law reform commission was made in the form of a private member's bill in the House of Commons by Richard Bell, the deputy representing the electoral district of Carleton. Bell, a commissioner of the Ontario Law Reform Commission since its establishment in 1964, introduced his bill on 24 January 1966. Bill C-72 was only seven sections long. It proposed that the commission should consist of a chair and not more than four other members appointed by the Cabinet. All members were to have legal qualifications. As Bill C-72 was a private member's bill, no money was provided for the salaries and expenses of the members of the proposed commission. It was hoped that if the bill received widespread support in Parliament, the government would decide to introduce similar measures providing for such expenditures. But like most private member's bills, Bill C-72 did not receive the support of the government and never went beyond first reading.
Bell reintroduced his bill in 1967 as Bill C-85, but this version was also met with little enthusiasm. Nevertheless, Bell made sure that the federal Parliament took notice of the Canadian Bar Association's desire to see the creation of a reform agency.
Further attempts to create a Canadian law reform commission were made on 20 September 1968 when Stanley Schumacher, a Member of Parliament from Alberta, tabled Bill C-64, his own private member's bill. This bill was identical to those launched by Bell, who by then was no longer sitting in Parliament. But, like the previous two efforts, Bill C-64 proved unsuccessful.
While all three legislative initiatives failed to attract the support of the government, it was obvious that there was a fundamental desire for some permanent law reform machinery at the federal level. In fact, the Liberal Party, which was in power at the time, had already started to react. The genesis of the future Law Reform Commission of Canada can be traced back to a speech that Minister of Justice John Turner made at Toronto's Osgoode Hall Law School on 2 February 1967. Turner made a passionate plea for law reform and proposed the creation of a national legal research centre.
One might suppose that the creation of the Law Reform Commission of Canada was then the straightforward result of a neat process where well-articulated pleas for a different approach to law-making led seamlessly to universal agreement and swift implementation. But while the calls for a specialised reform body were necessary, gave legitimacy to the idea and indicated the path to follow, they by themselves were not sufficient. The reconstruction of the events clearly shows that the establishment of the Law Reform Commission of Canada owes as much, if not more, to the social and political climate prevailing at the time. The speeches and Parliamentary debates of the era leave no doubt that everyone was overwhelmed by the seemingly unstoppable and uncontrollable wave of changes affecting society. The late 1960s and early 1970s were in many respects a traumatic period. The post-war generation — the baby-boomers — was reaching its peak and challenging all institutions. Conventional views on issues such as the recreational use drugs, sexual freedom, technology, prostitution, gambling, abortion and homosexuality were being seriously challenged. Traditional structures were under siege. The deep anxiety of the time seems to have had more to do with the setting up of the federal law reform commission than any other factor. Reform seemed the only possible course of action. Calls for caution were rare and discreet. The Criminal Code not only had a direct impact on many contentious issues but also now seemed the very symbol of the outmoded past. It was therefore natural that it be identified as the first area to reform.
The federal Minister of Justice introduced Bill C-186 into Parliament on 16 February 1970, calling for the establishment of a national law reform agency. The bill had almost unanimous support from all Members of Parliament from both Houses, and it was promptly passed into law. In terms of character and relations to the machinery of government, the new federal agency had much in common with the British model. The Commission was an advisory body, and Parliament remained the source of any new legislation that may flow from proposals of the Commission. The theory behind the Act creating the Commission was simple. Law reform was a prerogative of the legislative power, but legislators needed specialised advice in the formulation of reforms, and this advice should be provided by a body that was permanent and enjoyed a fair degree of independence. The new body was seen as complementing the work of government, since the Minister of Justice also announced at the same time that he was about to set up in the Department of Justice a research branch that would also be responsible for law reform and statutory revision matters.
The objectives, as stated in section 11 of the Law Reform Commission Act, were to study and keep under review, on an ongoing basis, the laws of Canada, with a view to making recommendations for their improvement. The Commission was instructed to remove outdated language in the legislation and ensure that the law reflected the country's common law and civil law legal heritage. The Commission was also mandated to consider the elimination of obsolete laws and the development of new approaches to the law, while keeping in mind the changing needs of modern society. The Commission seemed to initially have a rather exalted view of its mandate. Its first president saw the law, and by implication the Commission, as powerful instruments of social change. But this self-image quickly disappeared from the public statements of the successive presidents of the Commission, as the difficulty of law reform became more apparent.
The Commission initially consisted of four full-time and two part-time commissioners selected by the Minister of Justice. From 1975 onwards only full-time appointments were made to the Commission. Two of its initial projects aimed at a complete revision of the Criminal Code and the Canada Evidence Act. Other programs included studies on family law, administrative law and land expropriation.
No legislation based on recommendations of the Commission was enacted during the body's first ten years of existence, and the Commission did not issue a final report until its fifth year of operation. It was not until 1983 that the Commission was able to announce the enactment of legislation that specifically implemented one of its reports. The report in question considered the abolition of the long-standing immunity from garnishment of wages, salaries and other remuneration paid by the federal state to its employees.
The Commission's governing statute required it to consult widely. The Commission proposed to initially release study papers on topics under review, which would provide basic information and set out the issues but not the Commission's views. After receiving comment on the study papers, the Commission would then issue working papers. However, the release of study papers was eventually abandoned as being superfluous. To encourage maximum circulation and public discussion, the working papers and reports of the Commission had attractive layouts and were written in simple language without excessive legal jargon or Notes.
As the work of the Commission progressed, it generated more legislative reform during the 1980s. However, the federal government announced in February 1992 that it intended to close the Commission, along with five other organisations. In announcing these measures, the Conservative government said the cuts were designed to eliminate waste resulting from duplication. The abolition of the Commission was the result of broad political trends to reduce the government deficit. While some people had criticised the Commission for a number of real or alleged shortcomings, its dismantling appears to be essentially due to a desire to reduce the expenditures of the state. An objection that was held by a minority and high-handedly dismissed at the time of the Commission's establishment in 1969-1970, namely that of the agency's cost, would more than 20 years later cause its downfall.
Law Commission of Canada (1997)
Unlike the case with the former Law Reform Commission of Canada, the creation of a new law reform body at the federal level by a re-elected Liberal government did not generate a groundswell of all-party Parliamentary support. This point was made patently obvious by at least one British Columbia Member of Parliament during the debates on the 1994 Budget that first announced the formation of the new agency. Paul Forseth warned that the proposed agency would essentially be an unaccountable organisation that produced vague and worthless reports. Nevertheless, when Allan Rock, the Minister of Justice and Attorney General, moved on 17 October 1995 that Bill C-106, the proposed Act to establish the new Commission, be read a second time and referred to the Standing Committee on Justice and Legal Affairs for further study, he said that this new body would play a major role in fulfilling the obligation to keep federal law relevant. He also emphasised that the new commission would be unlike the former one. But criticism on the actual need for a new agency was also expressed during the second-reading debate.
When the bill (reintroduced as Bill C-9 as a new session of Parliament had commenced in 1996) was returned to the House of Commons following committee study, Gordon Kirkby, the Minister of Justice's Parliamentary Secretary, said the proposed legislation fulfilled an important obligation made by the government to restore an independent law reform agency at the national level. Reiterating the comments of the Minister, he stressed that the new agency was to be structured differently from the former Law Reform Commission of Canada.
Following approval in the House of Commons, Bill C-9 was referred to the Senate and passed on 14 May 1996, but not before the new commission's value was again questioned. The bill eventually received royal assent on 29 May 1996, and the provisions for the establishment of the new Law Commission of Canada came into force on 21 April 1997.
The Law Commission commenced operations during the summer of 1997, five years after the demise of the Law Reform Commission. The preamble to its governing statute, the Law Commission of Canada Act, sets out several guiding principles. It states that the Commission's work should be open to, and inclusive of, all Canadians. The results of its work should be accessible and understandable, and the Commission should adopt a multidisciplinary approach by viewing the law and the legal system in a broad social and economic context. As well, the Commission should be responsive and accountable by cooperating and forging partnerships with a wide range of interested groups and individuals, including the academic community. It should employ modern technology when appropriate and be innovative in its research methods, as well as in its consultation processes, management practices and communications. Finally, in formulating its recommendations the Commission should take into account the considerations of cost-effectiveness and the law's impact on different groups and individuals.
The Commission's mandate is set out in section 3 of the Act. The Commission is an independent law reform agency comprising five commissioners appointed by the Cabinet on the recommendation of the Minister of Justice. The president is a full-time commissioner. The other four commissioners, including the vice-president, serve on a part-time basis.
A volunteer advisory council, as provided for in section 18 of the Act, assists the commissioners. This body consists of up to 24 people who are appointed for a three-year term with the possibility of reappointment. The council advises on the Commission's strategic directions, its long-term program of studies and its annual performance. As a group, the advisory council should broadly represent the socio-economic and cultural diversity of the country, represent various disciplines and reflect knowledge of the common law and civil law systems. Members need not be drawn from the legal community. The advisory council meets twice a year.
For the purposes of providing assistance on any particular project, the Commission may also establish a study panel. Such a panel consists of persons who have specialised knowledge in the matter under review or who are particularly affected by it. There is no remuneration for serving on a study panel. A commissioner heads the study panels, and at least one member of the advisory council normally sits on each panel.
In developing issues for research, the Commission believes it should initially examine social problems as they present themselves to Canadians, disregarding traditional legal and jurisdictional boundaries. Consequently, the work of the Commission is structured around four concepts : personal relationships, social relationships, economic relationships and governance relationships.
Provincial agencies 
The Ontario Law Reform Commission was the first law reform commission in the sense understood within the Commonwealth, namely, a permanent body provided with stable human and financial resources. The Commission was created by statute in 1964, one year before its British counterparts and before any other continuing law reform institution in Canada. The Ontario Law Reform Commission Act, 1964 contains only five sections. Section 2 specified that it was the function of the Commission to inquire into reform of the law and consider any matter relating to it. The Commission's mandate included the examination of statute law, the common law, judicial decisions, the administration of justice, or any other subject referred to it by the Attorney General. There was no restriction regarding the number or qualifications of commissioners.
Unlike the British Commissions, the Ontario Law Reform Commission could initiate its own projects without obtaining prior approval. Nevertheless, it was obliged to report on its work periodically to the Attorney General of the province. At its funding high point in the early 1990s, the Commission had an annual budget of almost $1,700,000. By the time the Commission was closed, its financial resources had shrunk to $687,700. The following table shows the evolution of the budget of the Commission.
To be selected for study by the Commission in its later years of operation, a project had to demonstrate a need for law reform that could not be effectively addressed elsewhere. There had to be a likelihood that the Commission's proposals would address the needs and concerns of groups who would not otherwise have the resources or degree of organisation to make their voices effectively heard. The Commission had to have the available personnel and the financial resources to initiate the project, and the nature of the subject was required not to be under review by other government agencies. A project had to have a likelihood of completion in a reasonable period of time, be consistent with any Commission statement of current priorities and have the potential for collaboration with other law reform bodies, government ministries or non-governmental research groups. Finally, there had to be an absence of reports by law reform bodies or other agencies that rendered study on a particular subject necessary, and there had to be a reasonable expectation of implementation of proposals for reform.
In contrast to most other law reform agencies, the Ontario Law Reform Commission had a large part of its research work conducted by outside teams of academic lawyers. During the 1980s, the Commission consisted of one senior legal research officer and four legal research officers. Utilising outside expertise was possible because of the existence of a large number of academics at the province's six law schools.
A broad-based project advisory board was also set up. The board comprised practising lawyers, academics, representatives of appropriate interest groups and other interested parties who advised the Commission with respect to its projects. Once a draft report was completed, the commissioners reviewed it and the Commission's legal staff would make any necessary changes. A final report, which represented the Commission's views on a subject, was presented to the Attorney General. The final report sometimes included draft legislation.
The Commission was abolished in 1996, a victim of the government's policy to reduce the deficit and eliminate agencies considered non-essential.
The next province to establish a permanent law reform agency was Alberta, which proceeded differently from Ontario. As noted earlier, senior members of the provincial Law Society of Alberta had set up a Law Reform Committee in 1964. By the end of 1966, the Law Society realised that the task of law reform in the province could not depend on a voluntary and unpaid committee with no permanent staff. Discussions therefore began in early 1967 between the Law Society, the Attorney General's department and the University of Alberta's faculty of law to establish a commission or institute of law reform within the university. From the beginning, all concerned felt that the faculty of law should play a significant role in the proposed body, and members of the faculty enthusiastically supported the proposal. The provincial government, the Law Society of Alberta and the University of Alberta entered into an agreement in November 1967 to provide for the establishment of the Alberta Institute of Law Research and Reform. The objectives of the Institute are set out in the founding agreement and consist of four elements : conducting and directing research into law and the administration of justice, recommending ways in which the law may be made more effective, promoting legal research and reform, and working in cooperation with others, especially the faculties of law at the University of Alberta and the University of Calgary. The Institute has been given a broad mandate. It has the power to engage in anything that falls within the term "law reform", and it can propose anything that will make the law more effective. The Institute commenced operations on 1 January 1968.
Research is a separate element of the Institute's objectives, and as a result, several projects have been undertaken that have not led to actual reform proposals. The Institute's law reform reports have covered an extraordinary range of topics, from landlord and tenant law to compensation for victims of crime. The main criterion for the selection of a subject for consideration is its relevance to Alberta. Federal matters are not excluded, but they do not have a priority. Although the Institute has based some of its projects on government suggestions, it is not required to accept references from the government. The Institute is free to choose its own projects.
As of 1 January 2003, a board of thirteen members, including its director, who is also a member of the faculty of law at the University of Alberta, governed the Institute. The Institute is located at the university, and the government and university cover its operating expenses. The Institute is not statutorily protected, and its existence is dependent upon the continuing agreement of its three constituent bodies. The name Alberta Law Reform Institute was adopted in 1989.
The Institute's board meets monthly to review the overall operations, approve all reports and consider the direction of research papers. Project funding for the Institute comes from the Alberta Law Foundation and the provincial Department of Justice.
The statute creating the Law Reform Commission in British Columbia came into force on 1 July 1969. The Commission began operations the following year. Its mandate and structure were similar to those of the Law Commission for England and Wales, including the requirement that the provincial Attorney General approve its research programs. The Commission's mandate was to recommend the examination of law needing reform and to suggest an agency, whether itself or another body, to carry out the review. The Commission was usually composed of practising and academic lawyers. Despite numerous changes in staff during its early years, the Commission managed to produce a high volume of work.
The Commission ceased to exist at the end of March 1997, when the provincial government cut its funding. Over its 27 years of existence, the Commission produced more than 140 reports on a wide variety of topics. It also initiated several Internet-based projects, including a law reform database and an index of its collection of law reform materials from throughout the Commonwealth.
Prior to the Commission's demise, the British Columbia Law Institute was created in January 1997 through incorporation under the province's Society Act. The Institute was formed in response to the decision by the Attorney General's department to withdraw funding for the Commission. At the time of the announced cuts, there was widespread concern that the disappearance of the Commission would create a void and result in the loss of tangible and intellectual assets.
Section 2 of a text, called its
"Constitution", creates the Institute. This section states that the purpose of the Institute is to promote the clarification and simplification of the law and its adaptation to modern social needs, to promote improvement of the administration of justice and respect for the rule of law, and to promote and carry out scholarly legal research. The internal rules of the Institute provide that it is to be composed of fourteen members. Of these fourteen members, two are appointed by the Attorney General, two by the executive committee of the Law Society of British Columbia, two by the executive committee of the British Columbia branch of the Canadian Bar Association and one each by the deans of the law faculties of the University of British Columbia (Vancouver) and the University of Victoria. Every member of the Institute is also a director. Membership is for a term of five years, with the possibility of reappointment.
The British Columbia Law Institute did not receive any funds from the provincial government for its regular operations until the spring of 2003. At that time, the province's Ministry of Attorney General committed to provide funding to the Institute over the next three years. Sources of funding in the past have included the Law Foundation of British Columbia, the Law Society of British Columbia, the Canadian Bar Association and the Vancouver Bar Association. Since 1998 the Institute has had charitable status, which means that any donation to the Institute can be used to reduce personal income tax. In 1999 it undertook a fundraising initiative, which proved successful. That same year, it received a grant from the federal Law Commission of Canada for the compilation of a database of federal legislative references to family-like relationships.
As of March 2003, the Institute had completed 24 reports. But efforts are not solely confined to law reform matters. The Institute is also mandated to prepare publications that will improve access to the law or provide a base from which reform work can be done. One example of the Institute's work that goes beyond law reform is a report on gender-neutral legal writing.
The province of Nova Scotia created the Law Reform Advisory Commission in 1969. The Commission began operations in 1972. It consisted of between five and ten members, all drawn from the legal community, and it could inquire into any matter relating to reform of the law. However, its activities could only be carried on with the support of the province's Attorney General. The Commission shared support staff with a senior provincial law officer known as the legislative counsel, who was to be appointed secretary and executive officer of the Commission. In 1976 the statute was amended to expand membership to between 10 and 15 members. Up to five non-legal commissioners were permitted, although none was ever appointed. Also around this time the Commission hired a full-time permanent legal research officer, having previously relied on external consultants working under contract and its own members serving as volunteers.
The Commission continued to exist in law until its governing statute was repealed in 1990. But it was not active after 1981, when the terms of all of its members expired and no reappointments were made. The Commission's demise appears to have been due to financial concerns, lack of a consistent approach to law reform and the view that the provincial Ministry of the Attorney General could as effectively develop any necessary changes.
The Commission examined 17 areas of the law during its lifetime, including matters such as mechanic's liens, matrimonial property, changes of name and reciprocal enforcement of judgments. Some of its recommendations were in the form of separate reports, while others were presented as draft bills sent to the Attorney General. Publication of both annual and law reform reports could only take place with the approval of the Attorney General.
With the closure of the Law Reform Advisory Commission came the creation in 1990 of a new body, the Law Reform Commission of Nova Scotia. The Commission acts as an independent advisor to the government, and this independence gives it the possibility to make recommendations on law reform in a non-partisan manner. The Commission reports to the public and elected representatives of Nova Scotia through the provincial Attorney General.
The Law Reform Commission of Nova Scotia consists of between five and seven full-time or part-time commissioners drawn from the community : one judge appointed by Cabinet who is selected by the judges of Nova Scotia, two community representatives selected by the Cabinet, two representatives appointed by the Nova Scotia Barristers' Society, one member from the Dalhousie University faculty of law and one commissioner who must not be a law school graduate.
Under the provisions of the Law Reform Commission Act, the Commission reviews the laws of the province and makes recommendations for improvement. One of the Commission's priorities is to discuss law reform with the general public. These talks then form the basis on which the Commission determines if existing laws are adequately serving the people or whether legal reform is required. The Commission's projects cover an extensive range of social and legal issues. Judges, the legal community and the public suggest the majority of projects for review, while others have been references from the government of Nova Scotia.
The Commission's final reports and recommendations are formally presented to the Minister of Justice and Attorney General for Nova Scotia. These reports are available to the public without cost. Commission reports once included draft legislation, but this is no longer the case. The Commission has neither the resources nor the expertise to prepare draft legislation.
In April 2000 the Commission was advised that the provincial government would provide no further financial assistance after 2000-2001. From April 2001 the Law Foundation of Nova Scotia funded Commission activities in the entirety. However, discussions with the provincial Attorney General's office led to the restoration of government support in 2004.
Prince Edward Island
Prince Edward Island adopted a statute in 1970 establishing a law reform commission. The statute was modelled on the Ontario Law Reform Commission Act, 1964. The Prince Edward Island Law Reform Commission did not commence work until 1976. The chairman of the Commission was the Chief Justice of the province, and the other commissioners were prominent members of the legal profession. The Commission ceased to operate after the discontinuation of its budget in 1983. Throughout the Commission's existence, its staff consisted of only one lawyer. The Commission did not release formal reports or working papers. All recommendations were made briefly or in the form of draft legislation. The Commission evidently did not have strong support from the government or the legal community. The founding statute was repealed in 1989 by virtue of its omission from the 1988 Revised Statutes of Prince Edward Island. Through provisions found in the provincial Legal Profession Act, the Law Foundation of Prince Edward Island is now responsible for any law reform activities that may take place.
It was not until 1970 that the Manitoba legal community called for a full-time law reform agency patterned after the Ontario commission. Later that year, Manitoba enacted a statute establishing its own law reform commission, and membership of the Manitoba Law Reform Commission was completed in February 1971.
The first chairman of the Commission was Francis Muldoon, later to become the third president of the Law Reform Commission of Canada. Until 1979, three of the seven commissioners were non-lawyers, and since that time there has always been at least one non-lawyer commissioner. Non-lawyers were appointed to encourage a wide range of viewpoints, and their inclusion resulted in reports being drafted in simple and easy-to-read, non-legal language. Like most other commissions, the Manitoba Law Reform Commission was given a wide mandate. Its duties were to inquire into and consider any matter relating to law in Manitoba and to formulate recommendations for reform. The Commission had to accept references from the provincial Attorney General and give them priority, but its activities were not restricted to responding to such references.
While the Commission functioned effectively from 1970 to 1986, by 1987 the government clearly intended to abolish it. However, the Commission was soon restored by a new government, which regarded the agency's existence and independence as a matter of priority. A new Law Reform Commission Act was assented to by the provincial government on 8 March 1990.
The Manitoba Law Reform Commission is funded through grants from the provincial Department of Justice and the Manitoba Law Foundation. The Commission is composed of at least five, but not more than seven commissioners appointed by the provincial Cabinet. The membership must include a judge of the Court of Queen's Bench, a full-time member of the teaching staff of the University of Manitoba faculty of law, a lawyer entitled to practise in Manitoba who is not employed by the provincial government and a non-lawyer. One of the members is appointed president, and that person must be a lawyer.
In March 1997 the government announced its intention of finally eliminating the Commission. After protests, the government backed down and provided modest support to the Commission. As of 30 June 1997, all of the Commission's permanent staff were dismissed, and it operated with only a part-time administrator. There was no in-house legal research staff, and the Commission had to hire outside consultants to undertake projects on its behalf. The Commission even acknowledged in 2001 that it lacked staff and resources to be active. But with an increase in annual funding from the Manitoba Law Foundation from $50,000 to $65,000, it was able to hire a full-time legal researcher in August of that year. The law foundation increased its annual grant to $100,000 for financial year 2002-2003.
Since its inception in 1970, the Commission has issued over 100 formal papers, of which over 75 percent have been implemented. Some of the Commission's most important recommendations acted upon by the provincial legislature have been in the areas of the administration of justice, family law and municipal law.
The Saskatchewan Law Reform Commission was established by law in 1971 . The statute came into effect in 1973, and the Commission began work in February 1974. The Commission's functions are described in section 6 of the Act. These provisions are almost identical to those for the former British Columbia Law Reform Commission, which themselves were inspired by the requirements found in the United Kingdom's Law Commissions Act 1965 and the Canadian Law Reform Commission Act of 1971. The Saskatchewan Law Reform Commission is primarily mandated to keep all the law of the province under review. This objective is achieved through the systematic development and reform of the law, including codification, elimination of anomalies, repeal of obsolete and unnecessary enactments and, more generally, simplification and modernisation of the law.
Since 1973 the Commission has consisted of at least three members who are appointed by Cabinet and hold office with Cabinet approval. As of February 2003, there were six members of the Commission. The chair, who is designated by Cabinet and acts as chief executive officer, is always a legal academic from the University of Saskatchewan. The governing statute allows the Commission to appoint committees to consider and report on any aspect of the Commission's work. Members of these committees need not be members of the Commission itself. Funding for the Commission comes from both the provincial government and the Saskatchewan Law Foundation.
Project suggestions can come from a number of sources, including the Minister of Justice, the Commission itself and its staff, the judiciary, the legal profession, professional organisations and the general public. After preliminary research, the Commission usually issues a background or consultation paper to facilitate public discussion. Tentative proposals may be released if the legal issues involved in the matter under review are complex. Upon completion of a project, the Commission's recommendations are submitted to the province's Minister of Justice as final proposals.
The Commission has made recommendations in a number of substantive areas over the years, including family law, commercial and contract law, insurance law, trust law, personal property security law and medical-legal law. The Commission completed three research projects during the 2001-2002 fiscal year. The June 2001 report on a proposed law for the division and sale of land among co-owners included draft legislation.
Legislation was enacted in 1971 to permit the creation of a law reform commission in Newfoundland. It was not until a decade later, in 1981, that the first commissioners were appointed and the Newfoundland Law Reform Commission commenced activities. The Commission was established to inquire into and consider matters relating to reform of the law in Newfoundland. Furthermore, the provincial Minister of Justice could refer any subject to the Commission.
The provincial Cabinet determined the number and names of Commission members, who were appointed for three-year, renewable terms. The Commission was not obliged to present an annual report to the government. Rather, it was required to report when it seemed advisable based on the progress of its work or when requested by the Minister of Justice. The Minister of Finance provided funding, on the request of the Minister of Justice, out of the provincial government revenues. Provision was made in 1991 for the Commission to receive funding from sources other than the government.
In the provincial Budget Speech of 1992, the Minister of Finance for Newfoundland announced that the government would no longer fund the Commission. The principal motivating factor behind the Commission's abolition was, as so often the case, fiscal restraint.
In 1971, New Brunswick established a Law Reform Branch within its Department of Justice, rather than creating a separate law reform agency. The Legal Research Section of the Law Reform Branch carried out the province's law reform work. In 1993, the Legal Research Section was closed and the Law Reform Branch was renamed the Legislative Services Branch.
Quebec established a Civil Code Revision Office in 1955 to work on reform of the entire field of private law in the province. The primary role of the Office was to assess the fundamental principles behind the Civil Code's institutions. From 1955 to 1960, the Office consisted of only one person. In 1960 it was expanded to four members and was asked to produce a new Civil Code.
The intensity of this undertaking increased significantly from 1966. Work was structured around 43 committees composed of between three and seven jurists, who were assisted by researchers and experts. Committee reports were prepared in both English and French, and each study was accompanied by a commentary. These reports were circulated among interested persons and groups for comments. A total of 64 reports were then compiled into one single document on the Civil Code, which was released in 1978. The 1978 draft Civil Code was never implemented as such. However, the revision exercise led to reforms on several issues, including parental authority, and provided the basis for the final effort that eventually led to the adoption in 1991 of an entirely updated Civil Code. The work in that last phase was conducted on a different basis, this time without a law commission-type formal structure.
In 1992, the province enacted legislation to create the Quebec Law Reform Institute (Institut québécois de réforme du droit). According to the statute, the mission of the Institute is essentially the same as that of law reform bodies in the other provinces of Canada. As with the federal Law Commission of Canada model, the Institute is required to consult the provincial Minister of Justice on its research programs and give priority to the Minister's requests for advice or research. Unlike the practice of the federal commission, the Quebec legislation provides that the majority of members, including the chair and vice-chair, are appointed on a full-time basis. Full-time members must be legally trained or have a long-standing interest in the law. They are appointed for a term of not more than five years. Part-time members, whose terms shall not exceed three years, must be knowledgeable in the Institute's research areas. The Institute is to fulfil its mission by conducting or commissioning research, and it is to receive initial funding from the provincial government alone. The bill creating the Institute was assented to in the province's National Assembly on 23 June 1992. It is to come into force on a date to be fixed by the government. As of March 2004, this statute had not been brought into force, so the proposed Institute has not yet come into existence.
- Date modified: