Lawyers laud Ottawa’s revival of Law Commission of Canada

Among the federal government’s announcements in its 2021 budget, handed down last week, was the reconstitution of the Law Commission of Canada. First created in 1971 as the Law Reform Commission of Canada, it was disbanded in 1992, re-established as the Law Commission of Canada in 1996, then scrapped by the last Conservative government in 2006.

The government has allocated $18 million for the commission over five years, beginning this year, 2021-2022.

Advocates had long called for re-establishing the commission, whose purpose is to provide independent, unbiased, and non-partisan advice on complex legal issues of national interest.

“The benefit of commissions, generally, is that they’re arms-length” from the profession, the government, and any economic interests, says Aneurin Thomas, executive director of the Law Commission of Ontario. “They provide non-partisan advice. I think every government can benefit from that.”

The budget hinted at what the reformed commission will focus on: “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.”

“Those are certainly issues with a federal or national element to them, that would be well-suited to work by a federal law reform agency,” says Leah Howie, president of the Federation of Law Reform Agencies of Canada.

FOLRAC sent a letter to Justice Minister David Lametti in the late winter stating “that we would love to see the Law Commission of Canada reconstituted, says Howie, who is also director of the Law Reform Commission of Saskatchewan.

“It’s nice to have that gap filled,” she says, as there is no independent law reform commission presently for federal laws under federal jurisdiction in Canada right now. The Uniform Law Conference of Canada works more on the criminal side, she adds.

FOLRAC, which comprises seven law reform agencies across Canada, from British Columbia to Nova Scotia, typically makes its recommendations to the minister of justice, says Howie. “Having a federal law reform agency is excellent in terms of both questions about national importance, or [for] those questions that are exclusively under federal jurisdiction that provincial law reform agencies don’t typically deal with.”

Irrespective of the topics they choose to examine, what’s important is that the work is independent, transparent, collaborative, and multidisciplinary, says Thomas. It is “not just writing to lawyers and people in the justice system, but really working out of the box and speaking to a much broader range of stakeholders and parties than in a typical justice system consultation.”

That work will be “forward-looking” rather than simply solving today’s problems, Thomas adds, looking at which legal issues the government should be responding to, such as technological changes to the justice system.

The four issues mentioned in the release are ones that the Law Society of Ontario is working on, he says, and are all “serious, important, big-ticket issues, not just Canada, but across the world.”

It’s been an interesting time for law reform in Canada in the last couple of years, says Howie. Quebec launched a law reform agency, the Institut Québécois de réforme du droit et de la justice​, in 2019, and the Access to Justice & Law Reform Institute of Nova Scotia, which had “wound down,” has been revitalized as well, she adds.

“FOLRAC is looking forward to potential opportunities to collaborate with new Law Commission of Canada, and excited to see what they start looking at, and recommendations flowing from their work in the next few years,” Howie says.

“It’s exciting … for us to see a bit of a renewal of interest and recognition of independent law reform in Canada. It’s a good news story for all of us.”