By Canadian Press

Ottawa preparing to announce revival of federal body offering cabinet legal advice

Jan 27, 2023 | 1:02 AM

OTTAWA — The federal government is preparing to revive an independent commission that would offer advice to cabinet on reforming Canadian laws. 

Justice Minister David Lametti’s office says it is hoping to make an announcement about the commission “soon,” but has offered little detail — other than saying the minister is “eager to get it going again.” 

In the 2021 federal budget, Ottawa committed to spend $18 million over five years and $4 million in ongoing annual funding for a new Law Commission of Canada. Its last iteration had been shuttered by Stephen Harper’s Conservative government in 2006.

But nearly two years later, the only sign of movement on its creation is a job posting for a commissioner role that appears to have been online and accepting applications since January 2022.

Former Liberal attorney general Allan Rock says having a non-partisan, arm’s-length resource to critically examine Canadian laws for weaknesses is a valuable asset. 

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“I look at the Law Commission as a fabulous resource, which can be essential on behalf of the government and identify areas where reforms are needed,” said Rock, who later served as president of the University of Ottawa.

Despite operating and publishing reports as a non-partisan entity, the commission’s history has turned it into a bit of a political beach ball. 

It was first created in 1971 on the recommendation of the Canadian Bar Association and served without any apparent controversy until Brian Mulroney’s Progressive Conservative government closed it down in 1992. 

Rock brought it back in 1997 while serving as Liberal prime minister Jean Chrétien’s justice minister. 

Then the Conservatives closed it.

Now the Liberals are reopening it.

Rock says that while he was in office, the commission was adept at identifying weaknesses in the law that the government needed to update or reform. 

“Having that kind of commentary is so important. Once you’re actually in government, you’re so damn busy,” he said. 

“Once you get into office, the opportunity to look beyond the scope of your mandate and think and read and develop your own intellectual storehouse is about zero, given the overwhelming pressures on your time.”

Canadian Bar Association president Steeves Bujold said the existence of a Law Commission in a country like Canada is “extremely useful and needed.”

He pointed to recommendations that emerged from previous versions of the commission, including to create a unified family court, update the Bank Act and remove restrictions on same-sex marriage, as examples of its usefulness. 

“We need our laws to be effective to be up to date. We need to reduce as much as possible the inefficiencies, the conflicts,” he said. 

“Some of the laws in the books are really old and are not up to date.”

When in operation, the commission has typically been populated by legal experts, practising lawyers, former law enforcement officers and advocates sitting on an advisory council. It is expected to be led by a full-time president and four part-time commissioners. 

The online application for the commissioner role says the office “may consider important topics such as: systemic racism in the justice system, access to justice, legal issues around climate change, establishing a new relationship with Indigenous Peoples and rapid technological shifts in the world.”

The prospective commission would also be able to answer questions about the constitutionality of proposed legislation and how it could be affected by international laws, including trade agreements.

Ottawa also frequently finds itself pushing through legislation to address court rulings that identify gaps or strike down outdated or unconstitutional sections of law, such as on sex work, mandatory minimum sentencing and medical assistance in dying.

Rock said that the commission would have the capacity to identify those potential problems and help the government address them proactively before the courts do.

But he conceded that governments may still decide to avoid politically fraught areas of the law.

Following a landmark 1993 Supreme Court decision that challenged the prohibition on assisted dying and called on Ottawa to pass new laws, Rock admits his own government didn’t make it a priority.

It took another Supreme Court decision in 2015, which ruled that the ban on assisted dying for terminally-ill patients was outright unconstitutional ⁠ — and imposed a deadline for legislation ⁠ — before Prime Minister Justin Trudeau’s Liberals moved forward with a new law.

“The courts bristle at those cases in which legislators do not have the guts to undertake difficult subjects and pass it on to the court,” Rock said. 

“It’s not up to the Supreme Court of Canada to fill in gaps in the law in Canada. It’s up to the government to put laws before Parliament that will speak to those gaps. The courts are there to determine the validity of the law tested against the Constitution.”

This report by The Canadian Press was first published Jan. 27, 2023.

David Fraser, The Canadian Press