The federal government reckons it needs to lean more heavily on evidence-based policy. Buried in the 2021 budget, there is a promise to revive the Law Commission of Canada, an independent body first created in 1971 to provide advice on law reform to the Canadian government. That commission was shuttered in 1992 as a cost-saving measure during the Mulroney government. It was revived with a new mandate in 1997 and then closed again in 2006 under Stephen Harper's reign.
Now Justin Trudeau's Liberals want to bring it back. “Independent expertise is critical if Canada’s legal system is to be responsive to the complex challenges of the day such as systemic racism in the justice system, legal issues around climate change, establishing a new relationship with Indigenous peoples, and rapid technological shifts in the world,” the text in the budget stated.
The government promises to allocate $18 million for the commission over five years, and "$4 million ongoing."
A spokesperson for Justice Minister David Lametti, David Taylor, says his boss "believes those funds will allow a reconstituted Law Commission to fulfill its legislated mandate to provide independent advice on improvements, modernization and reform that will ensure a just legal system.”
Because the Commission already exists in statute, the government expects it can quickly get it up and running. The next step involves hiring and appointing staff.
Its return is on balance well received in the legal community. “The CBA is certainly happy that there is a proposal to revive the law commission,” says CBA president Brad Regehr. “CBA has a history with this, in that we were involved in establishing the Commission way back in 1970.” In 1966, the CBA adopted a resolution calling for its creation.
“It’s important,” Regehr says, noting that the previous Law Commission’s report on Indigenous Legal Tradition in Canada has been useful in his practice. “They provide strategic, independent advice to government on a whole bunch of complex issues, both at the federal level, as well as provincial law commissions. They have made big contributions to law reform.”
He also hopes that the new Law Commission of Canada will be instrumental in continuing some of that work started by the CBA task force on justice issues arising from the pandemic. The CBA's report “No Turning Back calls on governments to build on the changes forced onto the justice system by COVID-19.
Michael Spratt, a partner at Abergel Goldstein & Partners in Ottawa, calls the revival of the Commission a wise policy choice. “It is a nominal investment when you consider the expense relative to the rest of the budget, and it is likely going to produce a good return on investment,” he says.
“It is safe to say that criminal law, but also other types of law – tax law, civil law, family law – are in need of modernization and recalibration,” says Spratt. “Those types of large-scale systemic reforms can take a while, and longer than any one government’s time in power. It’s important that we have an arm’s length expert panel to review those laws and make sure that they are modern, effective and efficient.”
For an example about how politics can produce bad laws, Spratt offers the example of legislating through criminal law, which has become the go-to solution for governments to address complex problems – from systemic racism in the justice system to the criminalization of mental health and addiction, as well as poverty. The trouble is that the sentencing principles that get applied often conflict with good criminological evidence.
“Reforming the Criminal Code in the ways that are needed could be really hard to do if it’s not detached from politics,” says Spratt. “For a long time, criminal justice has been used by politicians as a wedge issue, and we’ve seen a number of aspects of the Harper crime agenda [get] struck down because they’re not supported by the evidence.”
Spratt says that areas like sentencing reform must be studied in a way that is shielded from political manoeuvring. The new Law Commission could serve that purpose, even though governments will always be free to ignore reports and calls for reform. Nobody should be naïve enough to think otherwise. “But it does move the ball forward, and gives politicians who take these issues seriously the tools to advance that necessary reform,” says Spratt.
Pierre Noreau, president of Quebec's law commission, the Institut Québécois de réforme du droit et de la justice (IRQDJ), also welcomes news of a revived federal law commission. Too often laws are crafted to respond to narrow problems, as opposed to addressing broader societal questions and framing how "we want to live together" over the long term.
“To have a long-term approach for legislation, you need an interdisciplinary approach – not only to fix legal problems, but to solve some important collective issues, such as with environmental legislation.”
According to the government, the Commission will have a free hand, as the Justice Minister "has no intention of dictating priorities" though it "may ask for research on specific priority topics,” says Taylor.
According to Catherine Piché, the IRQDJ's scientific director, a federal law commission could help foster collaboration between and among other provincial counterparts. She hopes that a revived federal commission can get involved in some of the research projects undertaken at the provincial level, and make more data on justice issues available.
“It’s anticipated that they’ll act as a sort of leader in some ways on different projects,” says Piché, adding that the federal commission strengthens the role of provincial commissions like the IRQDJ.
Noreau also hopes that the federal body can help with legal harmonization, particularly between civil law and common law traditions.
“It’s an occasion to be sure that the law can evolve in the same direction in the two different traditions,” says Noreau, citing issues like the rules around class-action lawsuits.
Whether the allocated budget for the federal commission will be enough is another matter altogether, says Noreau. It depends on the strategy the commission decides to pursue, and whether it will rely on talent and keep the work in-house or reach out to existing university research networks.
“If the decision is to use the universities, the budget is enough to do something,” says Noreau. “It’s less expensive, you can get more people to work together, and it’s the best use of the money rather than paying each researcher on each topic.”
Working with the universities may be a way for the new Law Commission of Canada to grow roots and be less vulnerable to the whims of successive governments on the lookout to cut government programs.
“I will be harder to decide that it’s not just a bureau you have to close, it’s not just a budget – it’s a network,” says Noreau. “It would be a good idea for the first commissioner to create this important network, and to maybe institutionalize this relationship, and create a place where they can discuss with the commissioners where is the next priority. If you create this, you create the conditions of continuity.”