Law Reform Error: Retry or Abort?

Abstract

The demise of the Law Reform Commission of Canada (LRCC) presents an opportunity to rethink the scope and legitimacy of law reform as it has been conceptualized and practiced by academic lawyers. This article suggests that while the LRCC aspired to be a disinterested independent agency promoting a neutral brand of reform, it could not avoid behaving as a rational actor in the judicial/legislative political arena. Its conception of law reform and its proper institutional role could not but align with its own interests as a legal bureaucracy. The author considers the LRCC’s interpretation of ‘federal’, ‘law’ and ‘reform’ as formal and ultimately narrow in scope; however, this is not to suggest that the content of the LRCC’s proposals were conservative – quite the contrary.

The author recommends three steps for “reforming law reform.” The first is to avoid entrenching the interests of lawyers when considering what areas of law to reform, and instead invite submissions from public interest groups across Canada, with preference given to groups that have few resources with which to command the attention of Parliament. The second step is for lawyers to not merely consult with affected parties, but to work alongside them, taking instruction and advice from, and negotiating with them. The third step is to use a human metric in assessing the objectives and methods of law reform, rather than assessing success by means of abstract indicia such as the number of times a proposal has been cited in Supreme Court judgments. Such a methodology can avoid replicating the pitfalls of the LRCC’s approach to law reform. Its approach was both too modest and too grandiose: too modest in its understanding of what constitutes law and reform, and too grandiose about the value of pursuing this narrow vision. The challenge for lawyers post-LRCC is to avoid resurrecting this vision, and prevent their own legalism from ossifying any future attempts at constructive social law reform.

Keywords: Law Reform Commission of Canada, LRCC, law reform, independent agency, public interest group