The federal government believes it needs to rely more on evidence-based policy. Buried in Budget 2021 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. This commission was closed in 1992 as a cost saving measure under the Mulroney government. It was relaunched with a new term in 1997, then closed again in 2006 during the reign of Stephen Harper.
Now Justin Trudeau’s Liberals want to bring him back. “Independent expertise is essential 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 related to climate change, building a new relationship. with indigenous peoples and rapid technological change in the world, ”the budget text reads.
The government promises to allocate $ 18 million to the commission over five years and “$ 4 million on an ongoing basis.”
A spokesperson for Justice Minister David Lametti, David Taylor, said his boss “believes these funds will enable a reconstituted Law Commission to fulfill its legislative mandate to provide independent advice on improvements, modernization and reform that will guarantee a fair legal system “.
Since the Commission already exists in law, the government expects it to be able to quickly put it in place and make it work. The next step is to hire and appoint staff.
His return is generally well received in the legal community. “The CBA is certainly happy that there is a proposal to revive the Law Commission,” CBA President Brad Regehr said. “CBA has a history with this, as we were involved in the creation of the Commission in 1970.” In 1966, the CBA passed a resolution calling for its creation.
“This is important,” says Regehr, noting that the Law Commission’s previous report on Indigenous legal tradition in Canada has been helpful in his practice. “They provide strategic and independent advice to government on a variety of complex issues, both at the federal level and at the level of provincial legal commissions. They have made a significant contribution to law reform.
He also hopes the new Law Commission of Canada will play a pivotal role in continuing some of the work started by the CBA task force on justice issues arising from the pandemic. The ABC report “No turning back calls on governments to take advantage of the changes imposed on the justice system by COVID-19.
Michael Spratt, partner at Abergel Goldstein & Partners in Ottawa, considers relaunching the Commission to be a wise political choice. “It’s a nominal investment when you consider the expenses against the rest of the budget, and it will likely produce a good return on the investment,” he says.
“It’s safe to say that criminal law, but also other types of law – tax law, civil law, family law – need to be modernized and recalibrated,” says Spratt. “These types of large-scale systemic reforms can take a while, and longer than any government in power. It is important that we have an independent panel of experts to review these laws and ensure that they are modern, effective and efficient.
For an example of how politics can produce bad laws, Spratt offers the example of legislation through criminal law, which has become the go-to solution for governments to solve complex problems – from systemic racism to politics. justice system to the criminalization of mental health and substance abuse, as well as poverty. The problem is that the sentencing principles that are applied often conflict with good criminological evidence.
“Reforming the Criminal Code in the way that is necessary could be very difficult to do if it is not detached from politics,” says Spratt. “For a long time criminal justice was used by politicians as a corner issue, and we have seen a number of aspects of Harper’s crime agenda. [get] written off because they are not supported by evidence.
Spratt says areas like sentencing reform need to be looked at in a way that is immune to political maneuvering. The new Law Commission could serve this purpose, although governments will always be free to ignore reports and calls for reform. No one should be naive enough to think otherwise. “But it gets the ball rolling and gives politicians who take these issues seriously the tools to push forward this needed reform,” Spratt said.
Pierre Noreau, president of the Quebec law commission, the Quebec Institute for Law and Justice Reform (IRQDJ), is also delighted with the announcement of a relaunched federal law commission. Too often, laws are designed to address specific issues, rather than addressing broader societal issues and defining how “we want to live together” over the long term.
“To have a long-term approach to legislation, you need an interdisciplinary approach – not only to solve legal problems, but also to solve some important collective problems, such as environmental legislation.”
According to the government, the Commission will have carte blanche, as the Minister of Justice “does not intend to dictate priorities” although he “may request research on specific priority subjects,” Taylor said.
According to Catherine Piché, scientific director of the IRQDJ, a federal law commission could help promote 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 available on justice issues.
“It is expected that they will act as a sort of leader in certain respects on different projects,” said Piché, adding that the federal commission is strengthening the role of provincial commissions like the IRQDJ.
Noreau also wants the federal body to be able to contribute to legal harmonization, in particular between the civil law and common law traditions.
“This is an opportunity to ensure that the law can evolve in the same direction in the two different traditions,” says Noreau, citing issues like the rules surrounding class actions.
Whether the budget allocated to the federal commission will be sufficient is a whole different matter, says Noreau. It depends on what strategy the commission decides to pursue, and whether it will draw on talent and keep the work in-house or target existing academic research networks.
“If the decision is to use the universities, the budget is enough to do something,” says Noreau. “It’s cheaper, 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 universities can be a way for the new Law Commission of Canada to take root and be less vulnerable to the whims of successive governments seeking to slash government programs.
“It will be harder for me to decide that it’s not just an office that you need 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 perhaps to institutionalize this relationship, and to create a place where they can discuss with the commissioners the next priority. If you create that, you create the conditions for continuity.
Dale Smith is an Ottawa-based contributor.