[Recorded by Electronic Apparatus]
Thursday, December 7, 1995
.1104 
[English]
The Chairman: Today we'll commence with Bill C-106, an act respecting the Law Commission of Canada.
Before us we have senior officials from the Department of Justice: Richard Mosley, David Paget, and Deborah McCorkell-Hoy.
Please proceed. I'm sure you're aware of the procedures here.
Mr. Richard Mosley (Assistant Deputy Minister, Criminal Policy, Department of Justice): Thank you, Mr. Chairman.
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Mr. Chairman and committee members, my colleagues and I are appearing today on behalf of the Department of Justice to provide information on the government's proposal to establish a new Law Reform Commission for Canada, further to the announcement made in the January 1994 Speech from the Throne.
The abolition in 1992 of the former Law Reform Commission of Canada provoked widespread criticism from the justice community, relating to the need for independent law reform advice to the government, Parliament, and the judiciary. Since then, extensive consultations by the Department of Justice have revealed strong and continuing support for a new commission to provide that independent advice.
[Translation]
The proposal is for a lean commission, flexible in form, multidisciplinary and inclusive in function, and with an emphasis on streamlining the legal system. To distinguish the new commission from the former, the name Law Commission of Canada would be adopted. A preamble at the outset of the legislation would provide a guiding framework, a philosophy by which the new commission would be governed. It would enunciate the principles which emerged from the consultations and signal a new approach to law reform, namely openness, inclusiveness, responsiveness; a multidisciplinary approach; along with innovation and cost effectiveness.
[English]
The mandate of the commission would be different from that of the former commission in its attention to the process of reform and the stakeholders that are involved. The purpose of the Law Commission of Canada would be as described in clause 3 of the bill, ``to study and keep under systematic review the law of Canada'', a law respecting both ``the concepts and institutions of the common law and civil law systems''.
The commission will provide the government with independent advice on improvements, modernization, and reform. It will examine measures to make the legal system more efficient, economical, and accessible. The new legislation also actively promotes the development of partnerships - for example, with the academic community - for achieving cooperation and efficiency.
An important consideration underlying this proposal is the particular balance that would be struck between the independence of the commission and the need for accountability. The commission would be an independent arm's-length body reporting through the Minister of Justice to Parliament and would set its own agenda. This independence would be balanced by a requirement in the legislation ensuring that the minister be consulted before the agenda is set.
The legislation would provide also for a ministerial reference power, but requires the minister to consult with the commission before making such a reference. The commission, through the minister, would table study reports, agendas, and annual reports before Parliament. Similarly, the minister would be required to respond to any report received from the commission.
[Translation]
The commission would receive independent advice on improvements, modernization, reform and development of new approaches to Canadian law addressing the changing needs of individuals and society. The commission will make the legal system more efficient, economic and accessible.
The organizational structure, with the new volunteer advisory council and subject panels, would ensure that the commission be inclusive and responsive to all Canadians. Furthermore, the commission would forge partnerships and stimulate critical debate, specially amongst stakeholders of particular issues.
Five commissioners are considered sufficient for diverse representation and small enough to be an effective decision-making body.
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They would be Governor-in-Council appointments, based on the recommendations of the Minister of Justice and served during pleasure for a maximum of five years. The Governor-in-Council would designate the president, a full-time commissioner, while the vice-president would be chosen by the commissioners amongst themselves.
Individually, the commissioners' qualifications would vary but they would be broadly representative of the socio-economic and cultural diversity in Canadian society. As the commission would be multidisciplinary in composition and approach, the qualifications for a commissioner would differ significantly from the former commission. For example there would be no requirement for one of the commissioners to be a judge. Selection processes would therefore have to consider candidates outside the legal field as well.
[English]
As an indication of the desire for the new institution to conduct business in an open and inclusive fashion, an advisory council would be established in legislation. The advisory council, composed of up to 25 volunteer members appointed by the commissioners, would represent a diverse set of perspectives and provide advice on the direction of the commission on strategic issues, annual reports, agenda setting, and performance review. The Department of Justice would have an ex officio seat on this council, through the deputy minister.
The legislation would also contain an enabling provision for the commission to create subject panels, each headed by a commissioner and made up of subject experts and representatives of the affected communities who would advise on specific law reform issues and act as a project steering committee. The members of the subject panels would also serve on a volunteer basis and would be appointed by the commissioners.
The advisory council and the subject panels would be a significant departure from the structure of the previous commission. It is through these groups that consultation and partnership would be institutionalized. The commissioners would be supported by a small permanent secretariat of about eight persons hired under the Public Service Employment Act and headed by an executive director. The executive director would act as a spokesperson and oversee the day-to-day operations of the commission, including the management of all contractual arrangements and partnerships for the provision of services and the conduct of law reform research.
With a limited budget of $3 million rather than the $5 million plus for the former commission, a number of other new administrative approaches are envisaged to streamline the operations, reduce costs, and improve effectiveness. These include voluntary membership on the advisory council and subject panels; a streamlined secretariat; the use of outside contract researchers; the use of modern information technologies to research the issues, share information, conduct commission meetings, and debate issues, thereby reducing travel and accommodation expenses, which consumed large amounts of the former commission's resources; and the sharing of services with other organizations, to the extent that this is cost-effective and does not jeopardize the independence or perceived independence of the commission.
[Translation]
In addition, the commission would be designated a departmental corporation to enable the contracting out of work, or the receipt of funds from outside sources such as the private and voluntary sectors, the generation of revenues through the sale of an annual report and other publications and the retention of these funds in its budget until the end of each fiscal year.
[English]
In conclusion, the commission envisioned by the legislation before the committee represents a number of significant differences from the former Law Reform Commission of Canada. These include a broadened approach to the process of law reform, to be inclusive, multidisciplinary, and open to all sectors of Canadian society; greater emphasis on the efficiency and economy of the legal system; a leaner budget and structure, employing part-time commissioners; a small secretariat and the use of outside researchers; optimizing joint arrangements, collaboration and partnerships, notably with the academic community; a more inclusive manner of operating; advisory council and subject panels reflective of the overall consultative approach of the commission at the strategic and working level; and finally, innovative approaches, including new information technologies to support a more cost-efficient operation of the commission.
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Mr. Chairman, that concludes the opening remarks on behalf of the Department of Justice. My colleagues and I would be pleased to respond to any questions you or members of the committee may have on the subject.
The Chairman: Thank you.
[Translation]
Ms Venne, you have ten minutes.
Ms Venne (Saint-Hubert): The Quebec Bar's brief referred to the absence of any guarantee relating to Quebec's representation on the commission, contrary to the practice of the previous Law Reform Commission Act which ensured that Quebec would have two commissioners out of five.
Clause 7 of the bill states only that:
- (3) As a group, the commissioners should be broadly representative of the
socio-economic and cultural diversity of Canada and represent various disciplines.
[English]
Mr. Mosley: Perhaps I could begin by simply noting that in the legislation authorizing the former commission there was a very clear and express reference to the requirement that there be at least two members from Quebec, one of whom had to be a member of the bench.
The approach with this bill has been to attempt to have a very broad statement of the need to reflect the diversity of Canada in all its respects, which would of course include recognizing the uniqueness of the civil law system as well as that of the common law provinces. For those reasons, it was not thought that an express requirement was necessary in order to address the role of the civil law system. It was felt the commission as a whole should respect the existence of the civil law system in Canada. Having said that, however, I'm going to also turn to my colleagues to add any remarks they may wish to on this point.
The question that has been raised by the hon. member is certainly a matter this committee may want to address in considering the bill on a clause-by-clause basis. Perhaps there may be some suggestions that the committee may wish to take into consideration in terms of how it may be strengthened in that regard.
The Chairman: Deborah.
Ms Deborah McCorkell-Hoy (Director, Law Reform Division, Department of Justice): I think the one thing I would like to add is that in the former legislation for the former Law Reform Commission of Canada the issue of bi-juridical representation was found in one of the subclauses of the mandate or purpose statement. It was just one of many considerations, activities, or purposes of the Law Reform Commission.
In this bill we have in fact taken the idea of the concept and institutions of the common law and civil law systems and given them prominence in the overall statement in the mandate so that it in effect has overriding consideration. It would therefore obviously be extremely important in consideration of any of the members who were appointed.
I think that's probably all I'd like to add.
[Translation]
Ms Venne: That doesn't really answer my question since as I mentioned, there were previously two people to represent Quebec. This is no longer the case. It is of little concern to us whether they are judges or someone else but we think that the distinctiveness of Quebec and its civil law must be taken into account, something which you failed to do in the bill.
This will certainly have to be drawn to the attention of the Minister of Justice in view of the desire to recognize the distinct society that we form, and our civil law.
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I have another question. The previous Law Reform Commission was a very expansive proposition. In the last year of its existence, the commission had a budget of 5 million dollars. In addition to the commissioners and staff, the commission hired a certain number of consultants. Salaries and professional services accounted for 82% of the commission's expenses. There were mainly researchers, academics and lawyers hired as consultants for short periods.
In such a setting, emphasis is put on research rather than efficient management. This unfortunately was what we observed at the time. It was also said that a number of the research programs had very little connection with reality and cost huge amounts. These were the two main reasons for abolishing the previous commission.
I'd like to know how you can guarantee to the committee that this experience will not be repeated.
[English]
Mr. Mosley: Perhaps I could begin by commenting that in the years when the commission was in existence, the later years, I spent a great deal of time working with members of that commission's staff. It is true that the approach the commission then adopted of having a large number of in-house experts was perceived by some to isolate the work that was being done from the concerns of the wider communities.
The commission at that time did attempt to respond to that concern by doing a lot of travel to reach out and consult. In fact they held townhall meetings in a number of locations across Canada. Nonetheless, there was this perception of a sort of ivory tower.
With the approach that is being proposed, the expertise would be sought from the broader communities. The commission would reach out to find experts who may be situated in academia or may be situated elsewhere, may be involved in the day-to-day operation of the law - may not in fact be lawyers but be individuals who have close connections with the practical application of the law and who are well situated within the community and have a good sense of where the problems in the operation and application of the law may arise.
We expect it will be a much more cost-effective way of operating. There will be no need to retain, in effect, a stable of experts on staff for the commission, but to select those experts who are the most highly qualified, best known, recognized across Canada, to contribute to a particular project, and also at the same time to rely to a great extent on volunteerism, to find people who are willing to give up pro bono their time and energies in order to contribute to the improvement of Canadian law.
[Translation]
Mr. David Paget (senior general counsel, corporate policy and planning directorate, Department of Justice): Perhaps another factor should be should also be noted, namely that there will be an advisory council which in theory will be representative of Canada. Part of its mandate, as in clause 19 for example, will surely be to advise the commission on its long-term program.
In theory, this should prevent the commission from becoming disconnected from reality, as you said.
[English]
The Chairman: Ms Ablonczy.
Mrs. Ablonczy (Calgary North): As you probably know from looking at the remarks I made in the House on second reading of the bill, the big concern I have is the independence of the commission. I wonder if, after considering that concern, you could suggest to the committee further measures that could be taken to ensure the independence of the commission. You know as well as or better than I do the very strong ties and close dependence of this commission on the Minister of Justice. How can we make that more independent?
.1125
Ms McCorkell-Hoy: I think one of the first things we saw with respect to the commission's independence is that in fact it would be designated as a departmental corporation rather than just a commission that would report directly to our minister. Instead, the commission reports through our minister to Parliament. Therefore the standing committee itself could have a say in any of the issues that are brought.
Mrs. Ablonczy: I'm sorry, I don't follow that. If the only voice of the commission is the minister, how is that independent?
Ms McCorkell-Hoy: It isn't the voice of the minister. On the tabling of reports, the minister has likened himself to a sort of conduit for the reports and the recommendations flowing from the commission. He doesn't see himself as a block or a filter on any of the reports and recommendations the commission would make to Parliament.
Mrs. Ablonczy: I'm sure, knowing the minister, that he would attempt to accurately reflect what the commission is saying, but the fact of the matter is it would be entirely within the discretion of the minister as to whether he did that or not. Is that not correct?
Ms McCorkell-Hoy: No, that's not correct. The minister is obliged to table all reports and recommendations that are passed to him by the commission.
Mrs. Ablonczy: Is that in the legislation?
Ms McCorkell-Hoy: Yes.
Mrs. Ablonczy: In which clause - probably clause 5?
Ms McCorkell-Hoy: No, it's towards the end.
Mr. Mosley: It's clause 24:
- The Minister of Justice shall cause a copy of any report of the Commission to be tabled in each
House of Parliament on any of the first fifteen days on which that House is sitting after the
Minister receives it.
Ms McCorkell-Hoy: There is another thing I'd like to add to the response about independence and its stature as a department corporation. It would be able to receive funds and expend funds during that fiscal year, which would allow it much more financial independence than the previous commission was able to have.
Also, it would be able to contract in its own name and consult and enter into partnerships on its own as a departmental corporation. So it is its own legal entity, and that in effect contributes to its independence.
Mrs. Ablonczy: The commission is appointed by the minister and holds office at the pleasure of the minister. The minister tables reports from the commission, but essentially there's a consultation process. The minister has a great deal of say into the agenda of the commission.
Even though reports are tabled, that doesn't mean independence. It simply means that reports are going to be tabled. Again, is there any mechanism whereby there can be a broader input and responsibility for the commission than just the minister?
Ms McCorkell-Hoy: There certainly is. One of the reasons the advisory council was created was that it could in fact be a representative body of the country that would oversee the business of the commission, and it would provide input into the agenda-setting, into the responses of the commission, and into what I would call the performance of the commission.
Having that body, not necessarily as a watchdog but certainly a second eye over the business of the commission, keeps it on track.
Mrs. Ablonczy: But the commission itself appoints the watchdog.
Ms McCorkell-Hoy: That's correct.
Mrs. Ablonczy: So the watchdog appointed by the commission that's going to be watched doesn't seem too independent to me.
.1130
Mr. Mosley: I would like to add to what Ms McCorkell-Hoy has said.
It's important to note that the minister is, of course, accountable to the House of Commons about the appointments to the commission. Members can ask questions about the commissioners: who they are, their antecedents, their qualifications, etc. That will be a very public process.
The fact that the commission themselves then -
Mr. Ablonczy: Where's the process set out?
Mr. Mosley: This is in the general rules and procedures of the House of Commons. When an announcement is made about the members of the commission, you of course can raise that, if you wish, in a public forum, including the House of Commons.
The fact that the advisory council will be appointed by the members of the commission itself distances that body from the relationship between the commission and the minister.
There really is a need to have a relationship between the commission and the minister in order to ensure the relevance of the work the commission undertakes.
One of the concerns that arose in relation to the former commission is that that relevance was not apparent. In this bill there is a clear two-way street, in a sense: the minister may suggest subjects for the commission to study, and the commission, as required, may consult with the minister before they begin their work on other subjects that they may have identified themselves.
Mrs. Ablonczy: I have two suggestions for consideration, and I'd like your comments on them. First, would this committee, for example, be able to have an expanded role in the constitution of the commission? Second, could there be consideration of some kind of tenure for the committee, rather than holding office only at the pleasure of the minister, so there would be at least more comfort in the safety of exercising independence?
Ms McCorkell-Hoy: I would like to address the second issue, about pleasure, before the first.
The at-pleasure status of appointments is in fact consistent with what other law reform commissions across the country have. It is also the status that is given to chief executive officers of other types of departmental corporations. That is the standard practice with respect to departmental organizations. So this is not -
Mrs. Ablonczy: I understand that, but in this case is it appropriate to have a different standard, if in fact independence is the keynote here?
Mr. Mosley: Mr. Chairman, we're venturing into areas where we are being asked to comment on matters of policy that are probably beyond the scope of the views that we can express to the committee. We're here to assist with an understanding of the bill before you, but the decision as to how the commission members were to be appointed was one that was made by the government and is a question that I don't think we can respond to in terms of the merits of appointment in one way or another.
Mrs. Ablonczy: My other question was about the possible role of this committee in setting up the commission.
Mr. Mosley: I think that too is a matter of policy. It is not common for a committee of the House of Commons to participate in the selection and appointment of a commission or committee or special body of this nature. Normally, that is a matter of the machinery of government, which is a prerogative of the executive. The committee might wish to address that question, but I think it's not something on which we can be of any further assistance to you.
Mrs. Ablonczy: Thank you, Mr. Chairman.
Mr. Gallaway (Sarnia - Lambton): As I understand it, the last law commission was dissolved, ended, expired, in 1992. How has being without that commission affected either your life in the Department of Justice or law reform in this country?
.1135
Mr. Mosley: It has certainly detracted from the work we do in the Department of Justice, although we have been able to continue to draw on the huge body of work the former commission had created. It's often said the commission was not all that successful, in that few of its reports led directly to legislation. That's perhaps an unfortunate view, not entirely accurate, because very often we'd go back to the work of the commission years before and would draw from that the value of the research that was done for the commission. Many of the reports contained the best statement of the current law available in Canada, and often abroad, because many of those reports were highly valued outside the country as well. We also picked up ideas here and there. Much of the legislation in the area I'm most familiar with, criminal law, derived ultimately from recommendations the commission had made at an earlier date.
So it was a loss in general to the development of the law in Canada. We have not had the benefit of any work done since 1992 in that respect.
Ms McCorkell-Hoy: I would like to add one other point on that. When we did our consultations across the country, it was very much a consideration and a concern of all people interested in law reform that there wasn't an independent capacity to provide law reform advice to not just the Department of Justice but parliamentarians and the judiciary. We had a national consultation with the judiciary and that was one of the components that came out, that they had relied very heavily on that type of independent advice. As you know, they are very reluctant to listen to any type of government-produced research in that area.
Mr. Gallaway: I wonder if you could tell me - I'm shifting the focus slightly - what a ``departmental corporation'' is.
Ms McCorkell-Hoy: A departmental corporation, as one of our lawyers in the department said, is neither fish nor fowl. It's both a department and a corporation, in that it has characteristics of both. It has corporation status in its legal status. Therefore it can sue, be sued; it can receive money, generate revenues, and expend those revenues. On the other hand, it also has departmental status with respect to the Financial Administration Act and therefore has more accountability to the government in financial matters.
The type of business it does is of a nature that falls under the types of businesses a departmental corporation would conduct. That includes things such as advice to government, research, those sorts of government-related activities.
Mr. Gallaway: I'm assuming that's why the act spells out where the head office shall be.
Ms McCorkell-Hoy: That's right.
Mr. Gallaway: The other thing referred to is that the corporation can receive funds, you say in your presentation from the voluntary sector and I don't know who else. Who's going to give money to a government corporation?
Ms McCorkell-Hoy: It's interesting you should ask that, because I received a call just yesterday from Canada Trust in Toronto. They were quite interested in that concept. Of course it has many dimensions.
In Canada it isn't the practice for large amounts of money to be given over to a commission or an institute. Certainly in the United States that is more the practice.
It was never really seen that that would be the main way of receiving money. The purpose of allowing revenues to be received was for the purposes of being able to sell publications, host conferences, symposia; the type of mechanisms you would also use in the law reform process. It was really focused on allowing it to do that, although there certainly is the opportunity to receive moneys from other sources.
.1140
Mr. Gallaway: Carrying on in that vein, how much money will you generate, for example, from the sale of publications?
Ms McCorkell-Hoy: In terms of the sale of publications it would be a cost recovery for whatever the cost is to publish the working papers.
Mr. Gallaway: It's a break-even proposition.
Ms McCorkell-Hoy: We're hoping so.
Mr. Gallaway: Are conferences break-even propositions?
Ms McCorkell-Hoy: Certainly I haven't managed a lot of conferences, but from listening to a lot of groups I understand that conferences are actually moneymakers. That would not be the rationale for hosting conferences. The rationale would be to share the information and to stimulate critical debate certainly in the area. But as a side benefit, yes, there would be moneys coming into the coffers of the commission.
Mr. Gallaway: So any excess moneys are held until the end of year. Is that correct?
Ms McCorkell-Hoy: That's right, and then they have to be turned over to the government account. But they can be spent within that year. They provide a cashflow and funding so that if the commission had other initiatives it wished to undertake other than what was on its agenda, it would have the flexibility to be able to do that.
Mr. Gallaway: So if Canada Trust were to make a donation of $250,000 to this corporate entity that doesn't exist quite yet, you could actually spend it during the course of that year.
Ms McCorkell-Hoy: Certainly mechanisms have to be put in place to make sure there are no connections between institutions giving the funds and any of the results or work of the commission. The idea would be that the commission would in fact be able to draw on those dollars and spend them during that year.
The other thing the commission can do is acquire property, which is then put in the name of Her Majesty, and it can dispose of property. It just happens to be one of the particulars.
Mr. Gallaway: I want to talk about independent capacity, because it has been raised by the other side. The minister, as I understand it, can request that you carry out certain types of studies. What would happen, then, if the minister requested a large number of studies to be carried out in a year? How does that affect the decision-making power of the commission? Can you say, we can't do it or, we don't want to do any of these?
Ms McCorkell-Hoy: I think as we envisioned it and certainly as the minister would see it, any of the reference power, first of all, is not just something he would exercise indiscriminately. In fact there are mechanisms being set up in the department so that there would be a system of consultations with other ministers on particular topics that our minister would want to refer to the commission on behalf of the federal government itself.
Having said that, the commission would be able to enter into a discussion with the minister and the department as to the nature of the study, the timeframe for the study and the resources required for the study, and it would be able to negotiate if in fact it was to displace the existing program of study of the commission to look at how to accommodate that in a timeframe that was a legitimate one. Certainly it's not envisioned that the minister would be able to come along with half a dozen studies and say you're not doing your program of study this year; these are the studies I want, and I want them by March 31.
Mr. Mosley: Perhaps we could direct your attention to paragraph 5(1)(b) of the bill on page 3, which specifies that the commission shall ``prepare such reports as the Minister, after consultation with the Commission and taking into consideration the workload and resources of the Commission, may require''.
I guess in theory an unreasonable minister might impose an onerous workload on the commission, but I think we have to operate on the basis that ministers will act reasonably and responsibly in these circumstances, particularly when the act itself will direct the minister's attention to the workload and resources of the commission.
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The Chairman: Madam Venne.
[Translation]
Ms. Venne: Perhaps I did not catch the answer but I would like to know, concerning the departmental corporation mentioned by Mr. Gallaway, if there are any examples other than the commission.
[English]
Ms McCorkell-Hoy: I can give you just a few examples of which I am aware. The Canadian Polar Commission is one. The National Research Council, the Medical Research Council of Canada, and the Canadian Engineering Research Council, or whatever it's called, are others. So you can see that the type of function given to a lot of these agencies falls within the rubric of research and advice to the government.
[Translation]
Ms. Venne: The Law Reform Division decided, in May of 1994, if I'm not mistaken, to send out to about 900 groups or persons a questionnaire dealing with the creation of a new commission. I'd like to know whether the Law Reform Division did indeed receive 126 responses out of the 900 questionnaires distributed. Describing this as extensive consultation does not strike me as being appropriate with only 126 answers to 900 questionnaires.
I'd also like to know which people and organizations did send answers. If you don't have the information available immediately, could you send it to the committee? I don't want just a list of names - the names as such are not interesting - but rather information on the kinds of organizations or people that responded.
[English]
Ms McCorkell-Hoy: I do have the information here because we used it at one time when we produced a summary of the results of the law reform consultation. We listed at that time the characteristics or whatever of the respondents to that national consultation paper. Just before I do reflect on that, there was a parallel consultation also done with the judiciary at the same time and in addition to that national consultation paper.
When we talk about the 126 responses, those do not include individual letters, nor do they include any of the responses from the judiciary to the separate consultation that was done with them. It also does not include the three different regional sessions we had across the country or the special symposium we had in Ottawa, which was a focus group with law reform experts. The 126 responses only refer to those people who responded to the actual questionnaire that was sent out with the national consultation paper. By region of the country, the split was 7 in British Columbia, 33 on the prairies, 15 in Ontario, 26 in Quebec, 11 in the Atlantic provinces, and 3 for the territories.
[Translation]
Ms. Venne: I'm not interested in the names of respondents but in a more general description of their type or category.
[English]
Ms McCorkell-Hoy: Oh, okay. The general characteristics in terms of - These are the types of characteristics by which we characterized the respondents, based on other law reform type commissions. There were only two responses. Of course there are really only four other bodies. For other bodies with law reform focus, there were 2; academic legal groups, 14; academic non-legal, 12; government justice agencies, 34; other government agencies, 11; private law practices, 2; other private sectors, 13.
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[Translation]
Ms. Venne: For us to be able to analyze this information would it be possible for you to send the figures to the committee and they will then be distributed to the members? We will be in a better position to assess the type of groups that responded, since it's quite difficult to analyse just from listening to your answer.
Mr. Chairman, would it be possible to do this?
[English]
Ms McCorkell-Hoy: I gave a copy to the research clerk, who was going to append it, I understood, to the researcher's note that went to the committee.
The Chairman: The English clerk has it.
[Translation]
Ms. Mary Hurley (Committee Researcher): Ms. Venne, it's in the notes that were sent to you. There is a summary of these results on page 6, note 3.
Ms. Venne: Thank you. That's all.
[English]
The Chairman: Mr. Knutson.
Mr. Knutson (Elgin - Norfolk): I'd like to go to the part where you discuss the purpose of the bill. I note that it says ``the development of measures to make the legal system more efficient, economical and accessible''. Above that in paragraph 3(a) you talk about development of new concepts. I wonder whether it might have been a good idea to also put in a reference to making laws more just - swear to the Department of Justice and not the department of law in some place.
Ms McCorkell-Hoy: Maybe I can just mention that we changed one word. In the former legislation it talks about the laws of Canada. In our legislation now we talk about the ``law'' of Canada. The purpose of that was to broaden the concept and ensure that consideration would be given to the context of law-making, and therefore different aspects would be taken into consideration in the making of law.
Mr. Knutson: So in regard to my main point, do you think, within that list of describing the purpose, the word ``just'' or ``justice'' is an explosive word these days?
Mr. Mosley: It's certainly not a word we shrink from. It's one we use a great deal. But as my colleague was just reminding me, the opening words of that section in the reference to improvements of the law, particularly in the context of the changing needs of Canadian society and of individuals in that society, I would think by implication would include the notion of making the law more just. But if the statement can be improved in the view of the committee, it is not something that would be considered by the department to detract or deteriorate from this statement in any way, if that concept was made more explicit.
Mr. Knutson: Maybe I'll bring forth an amendment when we go to clause-by-clause this afternoon. Just kidding.
For my own money, the word ``justice'' is ambiguous enough, but ``changing needs'' is even more ambiguous. I'll see if I can recommend a place where it might be inserted.
The Chairman: Mr. Ramsay, five minutes.
Mr. Ramsay (Crowfoot): I wish to thank the assistant deputy minister and his colleagues for attending and presenting the brief to us.
On page 3 of your brief you state in the last sentence of the second-to-last paragraph, ``The Commission will make the legal system more efficient, economical and accessible''. That sounds great to me, but I want you to tell me how it's going to do that. How will it make the legal system more efficient, economical, and accessible? Did the old one do it? If it did, I'd sure like to know where, and if it didn't, then how is the new one going to accomplish what the old one didn't do?
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Mr. Paget: I think it's fair to say that those provisions were not in the mandate of the previous commission. They were not explicitly part of their mandate. Indeed, we think one of the innovations of the mandate for this commission is that they would be specifically charged with focusing their attentions on measures to make the legal system more efficient, economical, and accessible.
I think it would be hard for us today to answer the question in the abstract as to how they will go about doing that, but certainly we recognize that there are things that can be done to indeed make Canada's legal system more efficient. The very fact that this commission would have as part of its statutory mandate to focus their attention on ways of doing that is something we think would be very useful.
Mr. Ramsay: Maybe it's a matter of semantics, but you're not saying that here. You're saying that the commission will make the legal system number one, number two, and number three. That's what you're saying. You're not saying it will make recommendations to the justice department or to the justice minister that are designed to make the legal system more efficient, economical, and accessible. It's the justice minister who brings forward the changes in legislation.
So is this not suggesting to us on the committee that this commission really has - I don't know how they're going to do that. I'd sure like some specifics. You're not saying that will be the goal of the commission, you're saying that's what it's going to accomplish.
Mr. Paget: Perhaps I could address that by referring you, sir, to clause 3 of the bill, of which this provision in our brief is a generalized statement. Clause 3 of course deals with the purpose of the new commission, which is to study the law of Canada and put forward independent advice on improvements to better meet the changing needs of Canadian society, including, as it says in subclause 3(b), ``the development of measures to make the legal system more efficient, economical and accessible''. So they're charged with developing proposals to government and Parliament for measures to make the legal system more efficient.
Mr. Ramsay: Yes, they have the power to recommend, but they don't have the power to act.
Mr. Mosley: I think it's fair to say that our statement to the committee is perhaps couched in terms that assume the commission will have that effect. Clearly, as outlined in the bill, it is a goal of the commission. The opening words in clause 3 say ``with a view to providing independent advice on improvements, modernization and reform'', including ``the development of measures to make the legal system more efficient, economical and accessible''.
So if you'll excuse a bit of licence in our presentation, we did perhaps make the jump from the fact that the commission would have that as an objective in making its recommendations to the conclusion that it would have that effect. But you're quite right of course, Mr. Ramsay, that the ultimate proof of the pudding will be in the eating by Parliament of any legislation that may result from a commission recommendation.
Mr. Ramsay: I understand that, and perhaps whoever prepared the brief you presented -
Ms McCorkell-Hoy: I just wanted to add one point to that, which I think is fairly important. Our minister has undertaken a commitment that there will be an evaluation of the commission's work after the first five years on an independent basis, an independent performance review. In fact, what the evaluation will certainly focus on is whether there has been a measurable impact of the works and what the commission is required to do.
Mr. Ramsay: What do I have for time, Mr. Chairman?
The Chairman: You're out of time.
Mr. Ramsay: I'm out of time? You're always saying that.
The Chairman: Do you have a question you'd still like to ask?
Mr. Ramsay: Yes, I do.
The Chairman: Many questions?
Mr. Ramsay: Just one more.
The Chairman: I could go to Mr. Regan and then return to you for the final five minutes.
Mr. Ramsay: That would be fine.
The Chairman: Mr. Regan.
Mr. Regan (Halifax West): You'll be glad to know, Mr. Ramsay, that my question is very brief.
Mr. Ramsay: If it's my question, then we're home.
Mr. Regan: Right.
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I note that clause 21 of the bill provides that the commission is an agent of Her Majesty. I gather the Law Reform Commission was not an agency. Does that have something to do with the fact that it's a corporation? Is it similar reasoning? What are the implications of that?
Ms McCorkell-Hoy: Yes, it is an agent of Her Majesty, and as such it can contract, and under the Financial Administration Act the commission can also be held accountable.
I think the other commission was an unscheduled body under the Financial Administration Act, and I think in the 1990s the Department of Justice made the interpretation that that would allow the commission to not live up to the contracting regulations or requirements of the government. In this situation there is a much closer control over contracting.
Mr. Regan: Mr. Chairman, thank you. That's it for my questions.
The Chairman: Mr. Ramsay.
Mr. Ramsay: You didn't ask my question. If I can, I'll take my five minutes and go home.
The former Law Reform Commission was abolished. I'm very interested in why it was abolished and in why someone, obviously in government, felt it was not fulfilling its mandate or it was too expensive or whatever.
Again, it may be the person who prepared this, the way it's couched, but you state this on the front page:
- The abolition in 1992 of the former Law Reform Commission of Canada provoked
widespread criticism from the justice community relating to the need for independent law
reform advice to the government, Parliament and the judiciary. Extensive consultations by the
Department of Justice have revealed strong support for a new commission to provide
independent advice.
Ms McCorkell-Hoy: Yes. Maybe I'll just backtrack and let you know how the process went, because it built on itself rather than being parallel.
First of all, we had regional consultations with groups we had selected from different disciplines. We had one in the Atlantic region and one in the prairie region. These involved both the legal and non-legal communities, academics, women's groups and government representatives.
Based on that information, we then hosted an in-house in Ottawa, with all of the people we could find who were available around Ottawa and had former experience at either the Law Reform Commission of Canada or other law reform commissions. It was a focus group of experts, and they reviewed the results of our regional consultations.
Based on that, we prepared the national consultation paper, so in fact we were building on the experiences from across the country. We used a questionnaire to go out with it so that we would not just get back responses from the legal community. The department is very good and knows very well how to consult with its existing interest groups, but we wanted to reach beyond that, so we used a questionnaire.
It does say 800, but the consultation paper also went out to all parliamentarians and Senators. So in effect it went out to even more people than are listed. Actually 126 responses to a mail-back questionnaire is a very good return from a sampling point of view. Also, given the spread of the representation of the results, it was fairly indicative of the situation.
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It also aligned itself - There were no contradictions between what we had heard on the prairies and in the Atlantic in our focus groups. Everything was very similar.
Also, when we commissioned an independent consultation with the judiciary, conducted through the Canadian Institute for the Administration of Justice, their findings back from their members were very consistent. That was a follow-up phase.
The final phase of the consultation process was that after the national consultation results were in and the judicial consultation results were in, we hosted a session in Toronto made up of academics from the legal community in Quebec, Ontario, and British Columbia. They reviewed the results and commented on them. So there was a constant reviewing of what had been learned, and there was a building on that.
Mr. Ramsay: Were these original hearings in western Canada that you referred to initiated by the Department of Justice?
Ms McCorkell-Hoy: Yes.
Mr. Ramsay: As a result of what?
Ms McCorkell-Hoy: The original consultations that we began. When the commission was abolished, we were asked to take over responsibility for setting up a law reform program at the federal level. When we began, we decided what we would do, because we could not afford to go out to every region every year, was we would select regions. In the first year we were going to go to the Atlantic and the prairies. That is how we were starting the process.
Mr. Ramsay: You did that because the din of concern provoked by the abolition of the former Law Reform Commission was not subsiding.
Ms McCorkell-Hoy: That's very true. When we went out, most notably I remember a submission, for example, from the Canadian Bar Association. But this is consistent. They would say they were willing to comment on what we wanted to do in the department, but recognizing first and foremost that what they really want is the re-establishment of the commission. Having said that, they would put it aside and say okay, we will talk about how to make law reform work more effectively. But throughout that whole period we were informed the preference was for an independent commission.
Mr. Mosley: Perhaps I could add to that. The former government did get a strong and immediate reaction to the termination of the former commission and it decided to allocate a portion of the savings from that to the department for law reform activities. It was in the context of going out to consult on how we might best spend that money that we encountered these reactions to the effect that no matter how good a process you initiate within the department, it's not going to be as good as having an independent commission providing advice to government and Parliament.
Mr. Ramsay: I hope you don't duck behind the policy shield you raise from time to time. If the question is unfair, then of course do so.
For the first time since I've been a member of this committee, we had appointees by the government to the parole board appearing before the committee. I found that process very reassuring, in that the experience and credentials of the three people we talked to and who had been appointed to the parole board - I found it very reassuring when I left. I was very comfortable that at least two out of the three would do an excellent job.
The question I asked the two was whether or not they would have any reluctance about appearing before the committee before appointment - after selection of a short list, perhaps, but before appointment. They said they would have no reservations at all about appearing before the committee prior to appointment. Do you see a benefit in that?
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There are going to be appointments by the Minister of Justice to this Law Reform Commission. Do you feel it would benefit the cause and at least set members of the committee on all sides of the House at ease about the credentials and the worthiness of these people and their competence to do the job? The committee could ask them about what they think their mandate is, what they intend to look at and what they consider to be the pressing needs of their commission.
We are certainly not going to be able to stop the appointment, but we would be able to leave with a better understanding and so would they. As far as our questions to them, I think it would be an excellent exercise. I think it would enhance the whole process if it were done before appointment rather than after, even though the appointment is a foregone conclusion.
Mr. Mosley: Mr. Chairman, perhaps I could respond by saying that I think there is certainly merit in having a dialogue between this committee and the members of the commission, as there has been with other bodies that have a related interest or interests to the work of this committee. For example, under the previous government the National Crime Prevention Council and the former Advisory Council on Firearms met with the standing committee members and engaged in a discussion on topics of mutual interest. I think that type of relationship and dialogue is very constructive, but that's distinct from the question of whether the committee plays a role prior to the appointment of the members of such a body. On that matter I'm afraid I do have to seek the indulgence of the committee by not responding to a question that I think is very much a question of government policy in this area.
Mr. Ramsay: We shouldn't grant these witnesses vetoes like this, Mr. Chairman, but I'll accept his answer.
The Chairman: I just wish that when they put their statistics in they didn't lump the prairies together. I'm sure it's because Saskatchewan is so difficult to spell.
Thank you very much for appearing before the committee today.
I guarantee you that we're not going to clause-by-clause this afternoon.
Mr. MacLellan (Cape Breton - The Sydneys): May I ask what the schedule of the committee is for the rest of the year?
The Chairman: It's my understanding that on Tuesday we're dealing with three witnesses on this same bill. On Wednesday we go to clause-by-clause, and there will be a steering committee meeting held to discuss the Young Offenders Act for the period when we return after the Christmas break.
Mr. MacLellan: Will that steering committee meeting be on Thursday morning or Wednesday afternoon?
The Chairman: I was hoping to have the steering committee meeting before Thursday morning, either on Wednesday afternoon or on Tuesday.
Mr. MacLellan: All right.
Mrs. Ablonczy: Mr. Chairman, do we have a list of witnesses who will be appearing on this bill?
The Chairman: On Bill C-106?
Mrs. Ablonczy: Yes.
The Chairman: Yes. I'm sure the clerk can supply you with the witness list.
Mrs. Ablonczy: I'd like to have those names. I have a couple of names to suggest.
The Chairman: Okay.
Ms Hurley: The Auditor General, the Barreau du Québec, and the Canadian Bar Association are appearing.
Mrs. Ablonczy: Okay.
The Chairman: Thank you.
The meeting is adjourned.