Revived and reimagined

The revived Law Commission of Canada has just marked its second anniversary and tabled its second annual report to Parliament.

The original commission was disbanded in 2006, so once it returned, much of the first year was spent figuring out its purpose in the current legal landscape — a task President Shauna Van Praagh approached with a bit of humility.

“The fact is that Canadian law did not stop because there was no Law Commission for 17 years,” she says.

“It’s not a case of riding in and saying here we are, now we can start thinking about law reform. People are doing that, so we had to be very wary of duplicating, aware of what people are doing, and seeing where the Law Commission can support, facilitate, complement and figure out its own space.”

That meant starting with many “listen and learn” sessions, which led to the creation of the three main research spaces the Commission is currently focused on.

The first is a series of “Beyond Tomorrow” reports, pitched by established scholars on issues in law and justice — what people say Canada should be thinking about for the future. Those applications are reviewed quarterly, and one or two are selected to proceed.

The Commission has also created an emerging scholars program, which can offer $10,000 to doctoral students to encourage them to include a public engagement aspect linked to their research. Similarly, the scholars chosen for the “Beyond Tomorrow” reports must pitch public engagement modules as part of their projects to underscore the connection between scholarly inquiry and on-the-ground impact.

The second series is a collaborative research project commissioning papers on charity and law in Canada. Van Praagh said they identified this as an interesting area of inquiry because they were looking for something that affects everyone in the country, whether they give or benefit from it.

“Charity, traditionally, is tied up with justice,” she says.

“We imagined the first part of this project to be a small collection of papers tracing the significance of charity and the way in which law has affected charitable behaviour in the different legal traditions that co-exist in Canada.”

The Commission is also trying to find ways to include Indigenous legal traditions in its focus circles and to ensure that every project and program acknowledges the multiplicity of legal traditions in Canada.

The third series involves short, selected topic reports and discussion circles on prison law to gain insight and identify emerging issues in that field. Papers have been commissioned on internet access within prisons, on how prisoners play a role in creating rules and law within prisons, on mothers and children in prisons, and another from sociologists on challenges related to visiting.

Van Praagh says they chose the charity and prison series because neither is obvious. The Commission is already thinking about its next projects, trying to be ambitious while reinforcing the notion of thinking broadly about the rule of law and the importance of law and justice institutions.

The objective is to ensure there’s an ear to the ground about cutting-edge topics and questions on the horizon that require some attention.

“None of this is about taking a statute and saying what is tired about this statute and changing that,” she says.

“It’s not that that’s not valuable work, but there is a real potential here for reviving and reimagining the Law Commission as having a leadership role in showing how all Canadians, not just those involved in legislative drafting, should be able to see something in our work that resonates with them.”

The original Law Reform Commission of Canada was established in 1971 to provide expert advice on reforming legislation on an ongoing basis. The Mulroney government shuttered the organization in 1992 as a cost-saving measure. A new Law Commission of Canada was created in 1997, which aimed for a broader, more multidisciplinary approach than reforming existing legislation. It lasted until 2006, when the Harper government closed it under the rubric of cost-savings.

This new version of the Commission has a budget one-fifth the size of the original Law Reform Commission and half the size of the second iteration, so Van Praagh is conscious of what they’re able to offer. In addition to the emerging scholars program, the Commission takes on proposals for conference support that fit within its intersections framework.

The Commission has also started a fellows program, akin to the Supreme Court of Canada clerks, where recent graduates take up a position for a year. There is room for as many as four fellows per year.

“It’s exciting to have more heads and hands to help come up with more ideas, and then help execute them,” Van Praagh says.

“I think it’s crucial not to do all the writing and producing in-house. One of my ambitions is to keep growing that network and seeing who else is out there who could be doing some really high-quality, interesting work with the Law Commission.”

As part of her role, she’s also working to raise the Commission’s profile and get known again, given its long absence from the landscape.

“If I go to law faculties, a lot of the younger professors don’t have any experience of writing for the Law Commission,” Van Praagh says.

“It’s mostly people my age who might have written a chapter in a report, or a whole self-standing report in the past. We have to build that up again.”

The previous Commission did a mix of in-house reports and commissioned work from legal community members, says Hoi Kong, a professor at the Peter Allard School of Law at the University of British Columbia and the inaugural holder of the Rt. Hon. Beverley McLachlin, PC, UBC Professorship in Constitutional Law.

“One of the things the Commission took on, which was a reference from the minister of justice, was a report on restoring dignity in responding to child abuse,” he says.

“If you look at the report, it looks at a whole range of institutional and legal responses to the issue of institutional abuse of children.”

Other groundbreaking reports include “Beyond Conjugality,” which examined how to conceive of intimate relationships beyond the heterosexual “norms” of a marital relationship. This was an important step on the road to same-sex marriage in Canada, and the impetus for an academic conference on the topic at Queen’s University.

At the same time, some work was more in line with the Law Reform Commission, looking at specific pieces of legislation, such as secure transaction laws under the Bank Act.

To foster renewed outreach and engagement, the Commission has created a podcast called Obiter. Van Praagh says it explores the evolving nature of law and justice, and was given that name because sometimes the obiter can be the most interesting parts of a judgment.

“Those conversations are meant to shed light on inspiring individual stories on the engagement with the evolution of law, to show that participating in change takes so many different forms,” she says.

There is also a new journalism fellowship in partnership with the Canadian Bar Association. The inaugural fellowship was awarded to freelance journalist Linda Besner, who, in a series of articles, plans to explore lessons from the depopulation of jails during the pandemic, the codification of Indigenous family and child welfare legal traditions, the public’s role in shaping the adoption of AI tools within the justice system, and the impact of the demise of regional news on the open court principle.

Federal Justice Minister Sean Fraser says the Commission is important because the justice system hasn’t worked equally for everyone.

“The Law Commission of Canada was reinstated to provide independent, evidence-based advice to help modernize our laws and respond to the complex legal and social issues Canadians face,” he said in an emailed statement.

“There’s more to do to ensure the system serves all Canadians, and I’m firmly committed to making that a reality effectively and efficiently.”

While the minister can give reference to the Commission, that hasn’t happened yet. Van Praagh says that it has provided them with space to build and figure out their capacity and approach.

While she likes the idea of being in listen-and-learn mode forever, she has started transitioning to a talking-and-teaching mode, with invitations from universities to address the next generation of law students. She’s also thinking about creating a course on the foundational aspects of Canadian law for newcomers to Parliament Hill, whether they’re MPs or senators.

When it was released, Van Praagh also went through the prime minister’s general mandate letter.

“I took a moment and wrote to my staff, noticing some of the pieces that could resonate with some of the things we were doing, whether it was the intergenerational stuff, the national identity-building, or the fresh ideas and new energy,” she says.

Van Praagh, a long-time law professor at McGill University, notes that every president of previous iterations of the Commission has been an academic, which isn’t the case in every country. In England and Wales, the president of their Commission is a judge, which wouldn’t happen here, but there are different models. Nevertheless, she is trying to reclaim the notion that it’s always a professor.

“There’s automatically a connection between an academic network and the importance of research and scholarship, and making a link between that and the people responsible for policy-making,” Van Praagh says.

“One of the crucial pieces of being a professor—the engaging with others, listening, having hard conversations, constant learning—all of that is actually an asset for the Law Commission, I hope.”