[Recorded by Electronic Apparatus]
Tuesday, December 12, 1995
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[English]
The Chairman: We'll now start the meeting this morning.
Today we have the Canadian Bar Association with us. We're very pleased to have the Canadian Bar Association appear before us, as we are on all pieces of legislation.
Without my doing the introductions, I'll just introduce Joan Bercovitch, senior director of legal and governmental affairs, and she will introduce the other two speakers.
[Translation]
Ms Joan Bercovitch (Senior Director, Legal and Governmental Affairs, Canadian Bar Association): Ladies and gentlemen, committee members, my name is Joan Bercovitch, and I am the Senior Director of Legal and Governmental Affairs at the Canadian Bar Association.
The Canadian Bar Association is composed of over 34,000 lawyers, notaries, law students, law professors and judges. Making comments on improvements to the law and the administration of justice is part of our mandate. Our representation this morning will be made under this mandate.
[English]
Our submission this morning will be presented by Mr. Gordon Proudfoot, who practises law in Dartmouth, Nova Scotia, and is president of the Canadian Bar Association; and by Mr. Chris Curran, who practises in St. John's, Newfoundland, and is chair of the CBA's national legislation and law reform committee. I would ask Mr. Proudfoot to begin.
Mr. George Proudfoot (President, Canadian Bar Association): Good morning.
The Canadian Bar Association is pleased to be here this morning to support the re-creation of an independent law reform commission. This association played an active role in the creation of the original Law Reform Commission nearly 30 years ago; we opposed its abolition in 1992, and we have lent our voice to those calling for a replacement ever since.
Bill C-106's chief strength is that it creates an independent body, a commission free of any suggestion of government or interest group interference. This is, of course, the essential element of objective evaluation, analysis, recommendation and review. The CBA endorses this approach unequivocally.
We endorse as well the inclusive language of the bill's preamble and the recognition that the law must be responsive or sensitive to social and economic realities. An advisory committee, such as that envisaged in clause 18 of the bill, can only ensure greater sensitivity and inclusivity and, accordingly, the CBA approves of the establishment of a Law Commission of Canada Advisory Council.
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The Canadian Bar Association is also encouraged by the reporting and response provisions contained in Bill C-106. Subclause 5(2) and clauses 24 and 25, which require the Minister of Justice to respond to all commission reports, are appropriate guarantees of public notice, debate and involvement in the process of law-making and amendment. These, as I said, are elements of Bill C-106 to which the CBA is delighted to lend its voice in support.
There are, however, a number of areas, three in particular, where the association believes improvements could be made. I refer to commission staffing, commissioners themselves and the purpose and powers of the commission. Let me deal briefly with each in turn.
First, on the subject of support staff, the Canadian Bar Association is of the view that the structure envisaged by Bill C-106 places too high a reliance on outside or contract resources. We are aware of the realities of fiscal restraint, and we recognize the need to utilize outside resources as a means of bringing fresh insights and energies to any given research project. However, too small a permanent or in-house staff may give rise to problems that far outweigh the benefits of out-sourcing. I refer to the lack of in-house analytical expertise and policy-making ability. Too small a permanent staff may translate into a chasm between researchers and commissioners. The end result could easily be inconsistency in both overall direction and strategy. In time, this could open the work of the commission to legitimate criticism and complaint.
Accordingly, the Canadian Bar Association recommends that the staffing plan for the Law Commission of Canada include a commitment to a core permanent staff of law reform professionals to be complemented, as required, by full-time limited-term staff with particular subject matter expertise.
Second, I wish to share with you the Canadian Bar Association's view on the law commission model itself. As resources are scarce, we support the bill's establishment of a body comprising one full-time and four part-time members. However, we are concerned about clause 7, which allows for commissioners who are not legally trained.
The Canadian Bar Association understands the general intent of clause 7 and on the one hand applauds the bill's desire to popularize the law reform process. Lawyers do not have a monopoly on the law. We recognize, however, that understanding the complications inherent in legislative analysis requires a particular type of training and expertise. Put simply, too much non-legal input may lead to uninformed and counter-productive work. Accordingly, the Canadian Bar Association recommends that clause 7 be amended to provide that a majority of the commissioners have legal training.
At the same time, the CBA applauds subclause 7(3) of the bill, which envisages a commission that reflects the socio-economic and cultural diversity of Canada. We recommend that this reflective section, if I may coin a phrase, make specific reference as well to the gender make-up of Canada. The Canadian Bar Association recommends that the commissioners also reflect the civil law and common law tradition in this country.
Finally, the CBA has a number of recommendations touching the commission's powers and purpose. We applaud the broadening of the new commission's mandate, as compared to its now abolished predecessor. The previous commission was charged only with studying Canada's laws. The new one is directed to study the law of Canada and its effects. In other words, it will look not only at what the law says but also at what it does.
On its face, therefore, this new mandate is far broader than the old. Arguably, though, other provisions in other clauses of Bill C-106 may have quite the opposite effect.
Clause 3 and subclause 18(1), referring to the Department of Justice, could lead to an interpretation that only matters within the Department of Justice's purview are open to scrutiny by the new commission. Now, this would be an unfortunate limitation on the scope of the commission's purpose and powers, and we should learn a lesson from the former Law Reform Commission, which often faced intransigence from departments fearing an invasion of their turf.
Accordingly, we recommend that clause 3 be amended to provide specifically that the Law Commission is mandated to examine reform issues in all areas of federal responsibility and that the Law Commission is mandated to seek the cooperation and expertise of provincial and territorial law reform commissions and other agencies, particularly on issues that involve overlapping concerns at the federal, provincial, and territorial levels.
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The Canadian Bar recommends as well that clause 4 of Bill C-106 be amended to provide the Law Commission with the power to require federal departments, boards, and agencies to make available to the commission such information, documentation, advice, and assistance as may be necessary to enable the commission properly to discharge its functions.
Finally, the Canadian Bar Association recommends that the government consider appointing key deputy ministers to the Law Commission advisory council, in addition to the Deputy Minister of Justice.
In conclusion, the Canadian Bar Association reiterates its commitment to the establishment of an independent, accessible, permanent, and comprehensive law reform commission. The CBA generally endorses Bill C-106, which is a clear legislative attempt to attain such a goal. However, the association is of the view that the new commission can be made more effective and its goals more easily obtainable if the recommendations I've had the honour to outline on behalf of my association here this morning are included in this empowering legislation.
The Chairman: Thank you very much.
Mrs. Ablonczy, ten minutes.
Mrs. Ablonczy (Calgary North): Thank you for this presentation. I especially appreciate how succinct it was, because it gives us a good overview in a short period.
One of the questions I have for you is about your fourth recommendation, on the mandate of the commission. You are asking to have that expanded to examine law reform issues in all areas of federal responsibility. I assume that was as opposed to just having the recommendations able to be made in the justice area. Is that correct?
Okay. Then I would like for you to expand on your rationale for that recommendation.
Mr. Christopher Curran (Chair, Legislation and Law Reform Committee, Canadian Bar Association): A number of things could be said here, but one of the obvious examples would be in the area of health. We are living in a time when the entire health care system in Canada is under sweeping review, comprehensive review. The old federal Law Reform Commission and its protection of life project did have a particular interest in and did make outstanding contributions to the consideration of health-related issues. Health is an issue that clearly goes beyond the justice mandate the new Law Commission might be requested by government to study.
That is one example. Another example might be this. As we enter the 21st century, with new ways of delivering service, new technology, the way industry and business are conducted, it may very well be useful for the Law Commission to be able to look at industry-related issues that go beyond the justice portfolio but that would play a large role in the way Canada is competitive in the marketplace in the 21st century.
We need to give the Law Commission as broad a mandate as possible and not restrict it from the outset, so it can create an environment in Canada that enables us as a community, as a country, to meet the challenges of the 21st century.
Mrs. Ablonczy: Thank you for that explanation.
One of the things that come to my mind as you talk about this is the role of the commission in the context of other inputs into the legislative process. I wondered if you had given some thought to that issue and how you see the commission's role in that context.
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As you know, there are other inputs into the legislative process, including input from departmental officials, public input of course, and committee input, such as that of this committee. Have you given any consideration to the kind of balance that you think would be appropriate between the role of the commission, which you say would be staffed mostly by legal professionals, and other inputs?
Mr. Curran: I think one of the positive aspects of the present bill is that right in its preamble it emphasizes and places front and centre the notion of inclusiveness so that we have an attempt to create a Law Commission that embraces our country as a whole. I think the Law Commission advisory council is an attempt to have access to groups and professionals across the country who will help guide the mandate and set the direction for the new Law Commission.
So I think there will be ample opportunity under the model presented here for consultation, for input from the general public and for input from the Department of Justice, from this body and from other groups. In fact, the Canadian Bar Association's brief just presented to you suggests, I think, that we allow this commission to have access to information generated across government so the commission would be better able to do the job it is mandated to do in this legislation.
So there will be ample opportunity for inputs from the public, from legislative committees and from government. Indeed, I think this is one of the strong points of this present bill.
However, we are concerned that we make the bill as effective as possible by ensuring that there are staff members at the commission who are able to mediate between the information received from the general public and all these other groups, providing in a concise fashion the information options and the policy options to commissioners.
Mrs. Ablonczy: So you see the commission as being the gatherer of that kind of input and the arbitrator of how that is organized, as far as legislative proposals are concerned.
Mr. Curran: Yes. Obviously the commission needs to have access to as much information as possible. Obviously we don't need a law commission reinventing the wheel by conducting research that has already been conducted in other venues, but the commission would need access to that information so that it need not unnecessarily spend taxpayers' dollars doing work that has already been done.
We need to empower this commission to have access to as much information as is available and to have the resources to process that information so that cogent and salient options for reform are put before commissioners, which will result ultimately in recommendations to the Minister of Justice.
Mr. Proudfoot: The other thing, of course, is that this model provides independence from the government's agenda. It insulates it. That's very important and it's one of the things we applaud in this particular legislation. We don't want the commission to get caught up in trying to drive an agenda that is not as independent. We want an agenda that allows for the inputs of all Canadians.
Mrs. Ablonczy: Maybe I could follow that with my last question. If the commissioners are all appointed by the Minister of Justice, how does that ensure independence from the minister?
Mr. Proudfoot: I guess it would be better if a committee appointed them. We haven't addressed that in our brief. I guess there's always a better way to do things and we'd be pleased to consult on that.
Mr. Curran: We have to remember, though, that there is an attempt in the bill, I think, to obtain a balance here. And I think that possibly, when you look at the advisory committee, there is an opportunity in the advisory committee to have direct input into setting the agenda and into the direction the Law Commission will move in.
So I think there is some effort here being made to strike a balance. But as Gordon has said, if this committee wants to have further input and consultation on that, we'd be only too happy to assist.
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The Chairman: Ms Torsney.
Ms Torsney (Burlington): Thank you.
Let me say off the top that I thought recommendation 3 was a terrific recommendation. I'm pleased to see other people taking up the charge.
Mr. Curran: I might say on that point that I think if we were looking at subclause 7(3) of Bill C-106, and if we were looking for an amendment that could be very easily dropped into this clause to give effect to that, it would not be a very complicated matter to say the commissioners, as a group, should be broadly representative of the socio-economic and cultural diversity and gender make-up of Canada and represent various disciplines. We could add the gender component to subclause 7(3) very easily without it being a very complicated matter or taking a lot of the committee's time.
Ms Torsney: That would be terrific. We always appreciate it when people give us the exact wording and location, as well as the recommendation. I certainly will be working on that one.
I also wanted to ask you specifically about how you see the law reform commission working with another initiative that I think is important in terms of how governments conduct themselves and how the justice system works, that being the National Crime Prevention Council. To my way of thinking, hopefully when we reform laws we're also working on prevention while keeping in mind the idea of keeping costs under control by looking at the end-of-pipe solutions.
Are there specific issues that you could see the law reform commission targeting? Is there a way in which they should be working together on initiatives, such as improving the law so that fewer people get into conflict with it - of course, that doesn't mean making everything legal? How would you see that dovetailing together? Or do you?
Mr. Curran: I think we've said on a number of occasions that one of the driving, central ideas of this bill is obviously the whole notion of consultation. Clearly there is ample latitude here for broad consultation.
In terms of setting the agenda of the commission and in terms of determining what the initial mandate of the commission will be, this is something on which the commission can look to the advisory council. And remember, the advisory council is not just made up of only legally trained personnel. If you look at clause 18 of Bill C-106, you will see the advisory council comes from all sectors of Canadian society and from across the country. If one of the issues we want to give profile and attention to is the issue you've just identified, I think this bill is sufficiently open-textured to allow that.
Ms Torsney: Are there specific countries or provinces that have used a law reform commission or some other organization like this to try to -
Mr. Curran: If your question relates to violence and so on, I can tell you that we have an initiative now before the British Columbia Law Reform Commission and the Alberta Law Reform Institute dealing specifically with the question of domestic violence. We now have ground-breaking legislation in Saskatchewan dealing with domestic violence, or violence in the home. We also have before the Alberta Law Reform Institute and the British Columbia Law Reform Commission an initiative to take up this work and to bring it forward in a broader legislative context in Canada. And the Ontario Law Reform Commission and John McCamus are working in this area on domestic violence as well.
So when the Canadian Bar Association points out the necessity to have the new Law Commission working hand-in-glove with already-established law reform agencies, these are precisely the kinds of initiatives we have in mind. There is a lot of initiative, a lot of interest around these areas, and it is geared toward delivering an end-product that is meaningful to Canadians.
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Remember, this new bill asks itself not only what the law should be, but importantly, as Gordon has indicated, what the effects of these laws will be. So we're looking at the end-product of how these new laws will affect Canadians in their everyday lives. God knows, one of the principal problems we have, one of the burning issues we have across the country, is the issue of domestic violence, which we really need to address in a more comprehensive and settled way.
Ms Torsney: One of the things that I found particularly problematic for my constituents is that it sometimes seems as if the technicalities of the law are frustrating, as if some of the protections that are necessarily built into the law prevent people who have done wrong from being punished appropriately, or it's ``Don't frustrate me with the process. We know that guy's guilty. Convict him. I don't care how you do it.''
How can we communicate that the same protections that are there in the way the system works...? How can we communicate what the law really does and why and how important that is? Do you see the commission as having any role in educating the public and demonstrating that it isn't frustrating, or perhaps in removing some of the frustrations that exist?
Mr. Curran: One of the primary objectives of the old Law Reform Commission was obviously its educative function. In the work that the old Law Reform Commission did in areas of protection of life and administrative law, there was a great effort to educate Canadians as well.
The reports of the old Law Reform Commission were not always pitched at a level at which the average Canadian could read and understand. That's something that obviously needs to be taken up in the new commission. But that is a challenge that this legislative committee has as well. Is this bill drafted in language that is at a grade 8 reading level? Is it in plain language? That's a question that I'm sure this committee asks itself every time a bill comes before it.
Mr. Proudfoot: You need the resources to educate, and to allow that to happen needs bucks. You've got to put the dollars in it.
The model we're presently looking at doesn't look as if it has the ability to do the educative function.
The other thing, which is the big responsibility of the Canadian Bar Association, is to make sure that the working lawyers out there feed those bits of information - the aberrations, the problems, and the successes - back to government. We have a very strong connection and we're always here at various committees making suggestions on how things can be changed.
So there are avenues there already, but it would be even better if the Law Commission could take up the gauntlet as well. The more the merrier, really, because it is such an important aspect of legislative improvement.
Ms Torsney: Especially when so much public attention is focused on our justice system right now, and vis-à-vis the United States system, which of course is just the product of all kinds of television shows that people are consuming in Canada.
What's your wish list? If you had one or two recommendations to make, what are the top two issues, perhaps on a personal basis or a professional basis?
Mr. Curran: There are two issues at the top of our list.
The first thing need not find its way into the legislation. We recommend that attention should be given to ensuring that there is a core of professional law reform staff in the commission to do the necessary synthesis of all this information that comes forward.
Second, we want to make sure that the bill will be amended to give the Law Commission access to the great wealth of information that government has at its disposal so that the commission won't have to re-collect and reinvent all the information that is already there.
Ms Torsney: You've mentioned health as an issue. What are the conditions you want them to grab?
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Mr. Curran: Health and technology are the two areas. If the old Law Reform Commission was associated with one issue, it was probably the Criminal Code, so it became the criminal law reform commission. We need to focus our attention not away from criminal issues but on other issues as well.
Ms Torsney: Right.
Mr. Curran: If there's one issue you ask Canadians if they think it is important today and is under assault, they will tell you it's health.
Mr. Proudfoot: Can we expand our wish list?
I would say that to limit the commission's work to Department of Justice product ignores the tremendous impact of other departments. It's a bit like having an appraiser come in to look at your home to put a value on it and say, you can look only at the living room, sorry. How can you really do that job?
The other issue is that not to give the power to collect the data and information means government isn't serious about the commission's ability to make a difference. It's like getting a boat without sails on it. It looks really good at the dock, but it's not going to take flight unless you get the motors on there.
So those are two other very important issues here. We hope those can be addressed in amendments.
The Chairman: Mr. Ramsay.
Mr. Ramsay (Crowfoot): Thank you for your presentation. I have lots of questions.
Would you tell the committee why the old Law Reform Commission was disbanded, in your opinion?
Mr. Curran: That is a piece of history that would probably take longer than five minutes. No doubt it had something to do with the fiscal environnment government found itself in in 1992. I don't think it had, as many people would say, a lot to do with the inadequacies of the old commission. Quite honestly, I think it was a fiscal decision government made at the time, looking to save some dollars.
I think the reality is that government has recognized that it needs an independent agency with roots in the community, which is what the new advisory council will do, and to bring forward an agenda that is important to Canadians.
Mr. Ramsay: I can't buy that. The Tory government spent like drunken sailors. They added $300 billion to the debt in nine years. So when you tell me the reason why the old Law Reform Commission was disbanded was because of fiscal concerns, I have difficulty accepting that.
I would like to know what the government and the people of Canada lost as a result of the disbandment of the old Law Reform Commission and what we're going to get back with the re-establishment of the Law Reform Commission in principle.
Mr. Curran: Obviously we at the Canadian Bar Association are not able to comment on government policy. We obviously don't know what drove the previous government when it made its decision -
Mr. Ramsay: Didn't you ask anyone? Didn't you ask the government why they were doing it?
Mr. Curran: They said it was money.
I think the important part of your question is what does the Canadian public get back in this new Law Commission; and I think it gets a very valuable agency, able to provide independent policy advice on matters of crucial concern to Canadians. Without that independent advice, that focused concern on issues that matter to Canadians, a great deal is lost. I think it is precisely because of the uproar across Canada, from many sectors of Canadian society, that we have seen the re-advent, the reinvention, of a leaner, meaner, but new Law Commission, able to provide independent advice on issues of concern to Canadians.
Mr. Ramsay: When the old Law Reform Commission was disbanded, I didn't feel a ripple of any effect.
Mr. Curran: I can tell you, sir, I was privileged to participate in fora that took place across this country - in Atlantic Canada, in the west, in central Canada - and I can tell you without any hesitation people from all sectors of Canadian society gathered, not in their own interest but in the interest of Canada, to say we need an independent agency, able to deliver this kind of advice to government to ensure that our laws are ready to meet the challenges of the 21st century. That's what we get from a law commission.
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Mr. Ramsay: Does the independent advice that you described represent and reflect public concerns in the area of justice?
Mr. Curran: I'm not sure now where your question is heading.
Mr. Ramsay: Then I'll ask it again. Does the independent advice that the Law Reform Commission, the old one as well as what you expect this new organization to provide, reflect public concerns regarding, particularly, the justice system?
Mr. Curran: First, I think we needn't dwell overly much on the sins, if there are sins, of the past Law Reform Commission. I think we're here today to oversee the birth of a new invigorated Law Commission. I think that what we have to do is to look forward with some hope and vision to create a body that is going to serve Canadians. So I will say to you -
Mr. Ramsay: Why aren't you answering my question?
Mr. Curran: I'm not sure what your question was.
Mr. Ramsay: I'll ask it the third time.
Mr. Curran: Ask it a third time.
Mr. Ramsay: You have described the independent advice that will come from the law reform commission. What I want to know is whether or not in your opinion that independent advice will reflect public concerns in the area of laws, and particularly the justice system.
Mr. Curran: Yes, there's ample opportunity in the new bill for input from Canadians. This is precisely the function of the law advisory council. It will reflect concerns that Canadians bring forward to the commission. Obviously, that's the intention. Can I throw in a supplementary answer, and that is -
Mr. Ramsay: Was my last question any clearer than the first?
Mr. Curran: I would say, let's hope so. Let's hope so - and the people, the players, all in goodwill, should be able to do what you're hoping it will do. Let's just wait in good faith, and I think it will happen that way; it will reflect the Canadian situation.
The Chairman: I have one last question. I realize you've indicated that you can't comment very much on government policy and that the arguments for the abolition of the old Law Reform Commission was a fiscal argument on the part of the government. However, isn't it true that the government of the day didn't like the advice it was getting from this independent body called the Law Reform Commission and that this was the primary factor in the abolition of the Law Reform Commission?
Mr. Proudfoot: I think so. There was a question of relevance there. As practising lawyers, we all subscribed to the free reports that the Law Reform Commission issued, and they are quoted extensively in various cases. The agendas developed by the Law Reform Commission of the day were becoming less and less relevant to the issues that were before the public. They had their own agenda that didn't really reflect what the public wanted addressed. I think that's one of the problems they found was their downfall in the end.
The Chairman: What the public wanted addressed or what the government of the day wanted addressed? I won't argue about that one with you.
Thank you very much for appearing before us. We have to cut time a bit short and we have another group. If we can have maybe two minutes or so, then we'll start with the Barreau du Québec. Thank you very much for appearing before us.
Mr. Curran: Thank you for the opportunity.
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The Chairman: We'll start up the meeting again. We took about two minutes. That's quite good.
From le Barreau du Québec, we have Jocelyne Olivier and -
A voice: [Inaudible - Editor]
The Chairman: All right. I'll let him introduce himself, because he's not on my list. I'm sorry.
Perhaps you can proceed with whatever comments you have, and then after that we'll have questions and answers from both sides. Please proceed.
[Translation]
Ms Carole Brosseau (Secretary, Standing Committee on Criminal Law, Barreau du Québec): Good morning, I am from the Barreau du Québec. I would like to thank you for allowing us to make our presentation today before the Standing Committee on Justice.
My name is Carole Brosseau, and I am a lawyer with the research and legislation section of the Barreau du Québec. With me today is Mr. Claude Masse, who is Vice-President of the Barreau du Québec.
Mr. Masse will be presenting the Bar's position for and on behalf of the bâtonnière.
Mr. Clause Masse (Vice-President, Barreau du Québec): Mr. Chairman, committee members, the Barreau du Québec is very pleased that this bill on the Law Reform commission of Canada has been brought forward.
When the commission was abolished in 1992, we thought at the time that the government was making a mistake. We thought it would have been preferable to redirect some of the work methods of the commission, rather than abolishing it altogether.
We think that the Law Reform Commission, or a similar body, has a role to play in Canada, not only with respect to the Criminal Law, but also the civil law or civil penalties and administrative law. We believe that the multidisciplinary approach proposed in the working papers and in the bill is absolutely essential.
The fact that a commission deals with legal matters does not mean that its handling of them must be stictly from the legal persective, nor that the advisors, participants or researchers must be lawyers only.
Hence, we feel it is absolutely essential that the commission be reestablished and that it be given a purpose and a role.
The reason that the former Law Reform Commission of Canada disappeared in 1992 may be that its approach - and this is not a criticism - was too narrowly legal, too technical in some respects.
We think there is a role in Canada for an organization that researches and considers a number of social issues relating to the law. I'm thinking particularly of the effect of our charters of rights and freedoms on police powers, the role of judges in Canada and the foundations of civil liability. These issues are all both legal and social, and the multidisciplinary nature of the proposed commission seems crucial in our view.
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Our second comment concerns Quebec's representation on the commission.
You will no doubt recall that on the former commission two of the five commissioners had to be from Quebec. A similar provision does not appear in this bill.
We think that having two representatives from Quebec would make for a good representation of lawyers and non-lawyers, francophones and anglophones, and specialists in public and civil law. We think that the proposal in its present form is too vague regarding the need to ensure that the civil law side of Canada's two legal systems is represented. We think this is fundamental.
Our third comment relates to the links between the Minister of Justice and the Law Commission.
As we understand it, the bill requires the Minister to respond to recommendations made by the commission established under this bill.
We think clause 5 should state more clearly that the minister is required to respond to the substance of the commission's recommendations, and not just acknowledge receipt of them out of politeness.
There should be a follow up to the commission's recommendations by the Minister of Justice in particular in the form of specific positions. Of course, the minister would be free to accept or reject the recommendations, but he would have to give his reasons for doing so, and we think this could foster the political debate of certain issues in Canada.
Fourth, we think it's very important to accept and enhance the role of the advisory committee. I was a member of the advisory committee of the Department of Consumer affairs of Canada. It too was made up of about twenty members from across the country. Over the years, and this was some time ago, I realized how valuable this work was, and how important it was to have representatives from all regions of Canada, from a range of occupations and backgrounds.
We think the 24-member advisory committee would be extremely helpful in focussing the commission's research programs and recommendations in some cases. It would also give the commission direct contact with people's real problems.
We do not think it should meet more than once or twice a year, but we do think the advisory committee is a key part of this bill.
In this regard, we fail to see why the Deputy Minister of Justice, who's not really a committee representative, but is accountable to the Minister of Justice, would be an ex officio member of this 24-person committee. We see the deputy minister in the role of observer or guest, rather than member. We do not see why the Deputy Minister of Justice would necessarily be a full-fledged member of this advisory committee.
Those are the main points we raised in the letter we sent you on November 14, 1995.
We are very pleased that this bill has come forward. We think it was a mistake to abolish the Law Reform Commission in 1992. This bill corrects that error.
We think the former Law Reform Commission may have disappeared because its focus was a little too narrow, hence we are pleased about the multidisciplinary approach proposed for the new commission, provided its members have a fair say.
Thank you for your attention.
[English]
The Chairman: Thank you very much. We'll start with the first round of questions.
Mr. Ramsay, you have ten minutes.
Mr. Ramsay: Thank you, Mr. Chairman, and thank you for your presentation.
Let me ask you this: when the old Law Reform Commission was disbanded, what did the Canadian people lose?
[Translation]
Mr. Masse: Mr. Ramsay, they lost a unique opportunity for collective consideration of some very important social and legal issues.
At the moment, there are only two types of groups who think publicly about these matters. They are chiefly the political parties and political staff, and also lobby groups, made up in part of academics. Outside of these groups, there is no real debate about such important issues as prison sentences in Canada, and the ease with which inmates may be released from prison. We must have technical and legal discussions of these issues, but we need political discussions as well.
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I think the people of Canada lost the benefit of the high-quality reflection of a specialized, independent body on issues such as those I mentioned.
For example, now that the Charter has been in effect for 13 or 14 years, it's very important that we have a public discussion of the role of political staff as compared to the role of the courts. It would not be easy to hold such a debate within political parties, but it could very well be part of the work of the Law Commission of Canada.
A commission that can stand back and look at these issues in the light of public concerns, would be an excellent forum for some extremely important debates for the future of the country.
[English]
Mr. Ramsay: Do you foresee this new commission being set up through this bill reaching out to the public for input? Do you see that happening; and if you do, how?
[Translation]
Mr. Masse: These are complex issues. Questions such as capital punishment or the imprisonment of sexual offenders raise strong feelings in people and must be discussed.
What puts people off about this type of debate conducted by a research body is the rather neutral or technical nature of the discussions. If the commission plays its role, if it tries to function as a sort of think tank, it will call upon journalists, the media, television and radio in the performance of its role.
These are public debates that must be held periodically on certain matters. The link between the public and the commission depends to a large extent on the media, but I do acknowledge that this is a difficult job.
[English]
Mr. Ramsay: If I were to ask my constituents if they knew anything about the old Law Reform Commission, what role it played, and what it did, I suggest that the vast majority of people would say they don't know a thing about what it did and how it benefited them or about what role it played in society and how society benefited from what it did.
Of course, your recommendations will be made to those charged with reforming legislation, to the government. Unless you have the support of the people behind your recommendations, those recommendations can simply gather dust like the Auditor General's reports. I've read some of them about the old Law Reform Commission and very few of those recommendations really were expressed through the reforms in legislation.
First, I would like to know whether you agree with that assessment by the Auditor General in some of the reports. It's perhaps not in all of them. I've read the 1986 and 1993 reports. How does the Law Reform Commission anticipate impressing the government of the day with recommendations and reforms that you feel are necessary if you do not have the support of the people and if it isn't representative of the will of the people, which has to be represented and expressed through our democratic institutions?
[Translation]
Mr. Masse: I think your question is composed of three separate questions. Is the Law Commission of Canada required to be known, accepted and supported by Canadians generally? Yes, but the fact that a vital body is not well known and does not have people's approval does not mean that it is not essential.
A body of this type often shows how essential and necessary it is during times of crisis. Little is known about a vaccination program until an epidemic comes along. That's when safety precautions are useful.
A body such as the commission could be particularly useful in the case of issues fundamental to the future of a country, such as justice in the criminal or administrative law, or the equality of citizens before the law.
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A commission such as this would seek to be known by Canadians generally. That could be done if it had a good communication strategy. I suspect that the former commission had a political or research program that was somewhat out of step with people's concerns at the time.
I'm not saying that this is the only criterion, but it is one of them. Among the issues a commission of this type looks at must be those that are of concern to people.
My second point is a criticism that must be made of the governments that were in power over the last 20 years the commission existed. The reason the commission had very little impact is that the government did not attach much importance to its proposals.
Let me give you an example. In the case of criminal law reform and the distinction between the three foundations of criminal liability, the Supreme Court, in the Sault-Sainte-Marie affair, accepted the Law Reform Commission's recommendations, even before political people were interested in them.
Things had gone so far at a certain time that the political staff of the Department of Justice was not very interested in recommendations put forward by the commission.
Your second question dealt with the commission's role in the future. Once again, the independent nature of the commission is essential. If we do not have a competent research body that is independent of the government, as a society, we will be missing an opportunity to get serious, well-documented information about issues for only three million dollars a year. In dealing with issues of the sort, the danger lies in prejudices and preconceived ideas. We at the Quebec Bar think than an independent commission of the type proposed in the bill is a tool to promote public debate on the legal issues facing our society.
[English]
Mr. Ramsay: I thank you for your answer.
I wonder if you feel that the Law Commission, by your recommendations, intends to influence the government or the people who the government is supposed to serve ? In other words, is your view of the role of the commission to reflect the will of the people and their concerns about the need to reform law or is the Law Commission more of a technical body dealing specifically with the technicalities of the law that the average citizen has no interest in or understanding of?
[Translation]
Mr. Masse: The main audience for a law commission of Canada is the people of Canada. There is no way to encourage reflection about changes to the law if the people of Canada are not made aware of them and do not make their MPs aware of them. I think that is the route we must take. The people, not the government, are the commission's audience.
However, we must be careful here! The commission is a sort of think tank. It does not have to represent all the views to be found in society. It must take them into account, but it is a body that is supposed to think about issues and go beyond prejudices and preconceived ideas.
The commission is not an organization for democratic debate. It is one that should encourage critical reflection about the social meaning and utility of the rules, rather than claiming to represent prejudices, which sometimes change periodically.
[English]
Mr. Ramsay: How am I doing for time, Mr. Chairman?
The Chairman: You're just over.
Mr. Ramsay: See how well I keep track of you?
The Chairman: You keep better track than I do.
[Translation]
Ms Brosseau: With your permission, Mr. Chairman, I would like to add something toMr. Masse's answer.
The bill provides for the creation of an advisory council. Since the beginning of your questioning, I think I have understood you to say that the commission would be self-sufficient. I don't think this is the case.
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The role of the advisory council will be very important. We're saying that the commission will have a link to the people. I think the council will also play a role in this regard. Various organizations will be called upon. I think the discussions and consideration of these issues will take very much into account the fact that the focus is not just on the legal aspect, but also on the socio-economic aspects.
This is very important, and this is precisely why we were pleased about the role of the advisory council. I think the provisions regarding the establishment of the advisory council in the bill should alleviate your concerns.
The Chairman: Mr. Cauchon.
Mr. Cauchon (Outremont): I would like to thank my colleagues from the Barreau du Quebec, of which I'm also a member, for appearing before us today. You made a number of good points in your presentation, particularly regarding an issue that concerns me as well, namely the presence of two civil law commissioners. We have two systems of law in Canada - the common law and civil law. It is therefore important to recognize the uniqueness of the civil law by ensuring there are two civil-law commissioners on the commission.
The proposed advisory council will help the commission come up with recommendations geared to the real needs of society. In this respect, the commission will really be an avant-garde forum for Parliament. I think it's an excellent idea in all respects.
I have three questions for you. The first one is simple. You said a few moments ago that you were very much in favour of the idea underlying clause 7. It provides for a commission which would include some members who are not lawyers. If the idea is to reflect the thinking of people generally, the commission must include members from other walks of life.
The representatives of the Canadian Bar Association said they wanted lawyers to be in the majority on the commission. Would you agree, or would you prefer a broader representation?
Ms Brosseau: As we said in our letter, and in our presentation as well, getting rid of lawyers altogether would be as much a mistake as having only lawyers on the commission. Since we live in a society governed by the rule of law, it is unthinkable to have no lawyers at all on the commission. We have to find the proper balance - there's no advantage in going to one extreme or the other. We have to find a happy medium. So I think it would be a mistake to have no lawyers on the commission. That is what we said in our presentation.
Second, we said that we recognize the fact that Canada has two legal systems, one of which is the civil law. Consequently, we must have some civil law lawyers from Quebec on the commission. It's impossible to comment on the civil law without a background in it. It's very different from the common law, the system practised elsewhere in Canada. That is why there must be a Quebec representative on the commission.
Mr. Masse: Increasingly, particularly among the younger generation, there are very talented jurists with two or three areas of specialization such as political science and law, or economics and law. Can they be classified chiefly as humanities specialists or as jurists. I don't know the answer. An approach whereby lawyers would be the majority or the minority of the members of the board would not reflect reality, in my view.
There will be five members on the proposed commission. I have trouble imagining that issues will break down three against two, because there are three lawyers on one side, and two people with other backgrounds on the other side. That's not how things work out in real life.
Mr. Cauchon: One of the favourite hobby horses of the former Reform Commission, as exemplified by Mr. Handfield and other commissioners, was the standardization of the law. They did not talk about making it homogeneous, but rather about standardizing it. Do you think the Law Commission of Canada as established in the bill could also achieve the objective of standardizing the Canadian legal system?
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Mr. Masse: There's certainly a need for standardization in administrative law. The fact that there are so many rules governing all the various administrative boards and tribunals in Canada fosters a very scattered approach, makes it harder for people who have dealings with the courts to understand the rules of law, and makes the practice of the law more difficult as well.
In other areas, such as criminal law, there is quite a high degree of standardization. However, it would be desirable to reach agreement to simplify the bases of the law, particularly regarding administrative and criminal evidence, where necessary.
Mr. Cauchon: When we were law students, we read all the famous reports put out by the previous commission on criminal law, administrative law and so on. You raised an interesting point earlier when you said that officials in the Department of Justice did not take these reports into consideration often enough.
What procedure could we set up to ensure greater consideration for recommendations made by the future commission? Could we not organize debates on the commission's recommendations in the House of Commons? Have you thought of anything along these lines?
Mr. Masse: Sub-clause 5(2) reads as follows:
- (2) The Minister of Justice shall respond to the Commission with respect to any report that
the Minister receives from the Commission under this section.
Mr. Cauchon: In other words, you would clarify the provision.
Mr. Masse: In sub-clause 5(2).
[English]
The Chairman: Mr. Ramsay, have you anything further?
Mr. Ramsay: Yes, lots further. But we'll see how far we get, Mr. Chairman.
What I see in the Law Commission is the possibility that we will be creating the perception of an elite group of legal minds - mostly legal minds - that will not really be taking much cognizance of concerns from the public but will be working within the criminal justice system - I sometimes refer to it as ``an expanding industry'' - and they don't have to listen to the people. They make recommendations to those people who make the law, those charged with responsibility and authority to create laws and reform laws, and there is not very much resemblance between what the people are asking for or what the people are concerned about and what may be recommended to the justice minister for the reform of the law.
Do you see anything within this bill that will deal with my concern about that kind of a perception being created?
[Translation]
Mr. Masse: As Ms Brosseau mentioned earlier, we think there are three ways of ensuring that the commission's approach is relevant to people's concerns. First, there's the advisory council, whose members will be from all parts of Canada and of variety of a backgrounds. Second, the commission can accept any researcher's study proposed on specific topics from the public. Third, the Minister of Justice, as an individual required to take into account public priorities as he perceives them, can order the commission to conduct research in a number of areas.
I do agree with you when you say that a commission that focussed only on technical aspects of legal problems would not be playing its role, even if these aspects are sometimes important.
The challenge remains as to whether the commission can really deal with people's concerns with as much freedom as possible. Here again, the commission, as we see it, exists to provide material for people to think about. Sometimes it will have to run counter to some firmly held prejudices. There've been a number of important ones in our history. Capital punishment is a good example. Members of Parliament, and I'm not speaking of you personally, Mr. Ramsay, have not, as a group, accepted capital punishment for some 20 years. However, if a referendum were to be held on the issue in Canada, there is a good chance capital punishment would be approved.
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Why? Because people who are normally well informed and who think about issues sometimes have reactions after the fact that are different from those based on more emotional ideas.
I'm not saying that people do not think clearly in some cases. I'm saying that the role of this body is to encourage consideration of the issues brought forward by people. And that is a challenge; I believe you are right to insist on the need to move in this direction. However, not having a commission will not make the problem go away.
[English]
Mr. Ramsay: The recommendations that will flow from this new commission will, of course, go to the justice minister for consideration. However, there's nothing the Law Commission can do, and I think rightfully so, to compel the recommendations to be placed into legislation.
Since the last election, we've had the justice minister present a number of bills with very significant amendments to the law. We've had Bills C-68, C-41, C-37 and a number of others without the benefit of a law commission.
Now, I have some real concerns about some of that legislation, and I'm wondering if those concerns would have been alleviated at all had the Law Commission been in place and if we can look forward with anticipation that there will be any difference. In other words, I'm asking really what difference there is. If we never had another law commission at all, it wouldn't stop the reform of legislation or the creation of new legislation, as we've seen in the last two years.
Some of this law is pretty good law. I don't agree with it all. Our party has its opinions about the direction in which we're going. Some of it we've agreed with. We've sat as a Committee of the Whole and moved legislation through. The DNA bill was one. The response to the extreme drunkenness defence was another where all parties got together and moved quickly. So what are we missing? What could the Law Commission have added to these bills?
[Translation]
Mr. Masse: I've two comments to make. Mr. Chairman, we do not think that having a commission will mean that it will express a view on each and every bill that comes forward in Canada. I think that is too narrow a vision. From what we understand, the role of the commission - and we approve of it - is to reflect on the fundamental issues that may come up in the criminal law, administrative law, and, in some cases, civil law, to the extent that it involves federal legislation.
Hence, it could well happen that the commission may not provide any feedback on a particular bill. And this may not meet your expectations. We should not expect the commission to follow every move made by the minister or the members of Parliament and express views on all bills, whatever their subject. We think the commission should be focussing on fundamental issues.
Second, what impact would the commission's recommendations have? It all depends on their relevance and the quality of the research, and the Minister of Justice will play his or her role. We definitely do not think the Minister of Justice will be required to adopt a particular proposition automatically because the commission, an independent body, made a particular recommendation. Because of the minister's political role, he or she must respond to public opinion. We think that well-thought-out research and consideration and a well-presented range of possibilities will mean that the minister, in many cases, would have to take a stand and amend the existing legislation. But the minister is not required to do so, and it's not desirable that he or she be required to do so in all cases.
[English]
Mr. Ramsay: I think you've made my point, but the point I make is if the commission's work and recommendations, as good as they may be, are not reflected in the legislation of this country, then what's the purpose? We're setting up an organization about which many people will be asking me these questions: what is the Law Commission, what does it do, and how does it affect the laws we have to deal with on a day-to-day basis?
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From your answer, you indicate it may and it may not. It may impact some. You're looking at a broad, fundamental approach to the whole question of law reform, and I understand that. Again, it adds to that perception that I'm sure I'm going to be challenged with when I talk to some of my constituents, if they even hear about this bill. They are going to be asking me, are we not simply going back to the creation of an elitist organization that never touches base with us and whose impact upon the creation of law is limited at best?
[Translation]
Mr. Masse: Mr. Ramsay, a commission cannot be called ineffective because amendments to an act are not introduced within a few weeks or months following the presentation of a report. The important thing, in our view, is that the commission focus, stimulate and facilitate a public debate of these issues.
Let me give you an example. We've had the Charter of Rights in Canada for about 15 years. The first section of the Charter gives some very significant powers to judges. It could happen that after one or two years of research, following a report by the commission, the people of Canada would say that there's some problem with section 1, but that, in the end, they agree to be bound by it.
Will the effectiveness of the commission be determined by the amendments made to section 1? No. The important thing, as we see it, is quality and depth of the democratic debate that may result from the commission's work, regardless of any amendments that may be made. If the commission succeeds in encouraging in-depth thinking about the fundamental issues facing our country, it will have performed its role. In some cases, the result may be the status quo. In others, the result could be some very significant changes.
Mr. Regan (Halifax West): You recommended that 40% of the members of the commission be from Quebec, because Quebec has a distinct civil law system, as was recognized yesterday in the House of Commons.
Could you explain to me how Quebec's civil law is applied by federal legislation?
Mr. Masse: That's a very good question, Mr. Chairman. The civil law is not applicable to Canadian laws as such, nor is the common law, in fact. There is no federal common law in the strict sense of the term. However, the federal government and its agencies, in all their dealings with the people of Canada, are subject to the common law of the provinces and to the civil law of Quebec, depending on where the contract was signed and where the accident occurred or where the damage was caused.
So, civil law applies to the federal Crown in some cases, with such restrictions as provided for in the Crown Liability Act. Provincial legislation, be it civil law or common law, is therefore relevant to the federal government. The problem is that, historically, the federal State, strongly influenced in this by the British government, has given itself a range of immunities and responsibilities which are presently being challenged, but civil law does apply to the federal government as does common law.
[English]
The Chairman: Is that all, Mr. Regan?
Mr. Regan: Yes.
The Chairman: Thank you very much for appearing before us today and for your presentations. I must admit that last question on the civil law was quite an interesting one, along with the answer. I'm sure your comments will be taken seriously by the committee when we go to the clause-by-clause consideration. Again, thank you very much for appearing before us today.
The meeting is adjourned.