"Those who reform the law in Canada are, above all, the public. They renew the law by living it."
I would like to thank you for inviting me to the Canadian Congress on Criminal Justice.
In 1997, when it first started its work, the Law Commission of Canada defined its mission as a commitment to engaging Canadians in the renewal of the law to ensure that it is relevant, responsive, effective, equally accessible to all, and just.
Today, I propose to explain what it could mean to attempt to have law reform in a way that is just and to discuss what law reform ought to look like if one were serious about an equality framework.
I will divide my comments in three parts. First, I will put forward some of the philosophical underpinnings of the approach developed by the Law Commission on this question. I will then discuss the methodological implications of such an approach, and finally, explore with you how this has translated itself into some of our research projects.
The Law Commission's Approach
The Law Commission of Canada is an independent federal agency whose mandate is to provide advice on improvements to, and modernization and reform, of the law of Canada. In the Preamble to its legislation, there are important principles which guide the work of the Commission:
In my view, the approach of the Commission can be best summarized in two main points: Rights are not enough and Who is missing?
Rights are not enough
I believed in rights. In the late 70s and early 80s when I was in law school, I relied on, argued for and gave a great deal of thought to rights: rights for consumers against big business, rights for women to fight sexual harassment, linguistic rights, Aboriginal rights, rights of accused persons against possibly overzealous or abusive police officers, rights to maternity leave, rights to pay equity, environmental rights, and rights to equality. My LL.M. thesis aimed at recognizing and guaranteeing the health and safety rights of migrant agricultural workers in Canada and in the United States, did not get published, not to mention implemented.
Like many others, I was concerned about the inadequate wording of rights - wording that could minimize the rights granted. Whether in consumer protection, in Aboriginal issues, in human rights legislation, and in welfare reforms the wording had to be accurate. It had to provide protection without too many compromises. In consumer protection, we were concerned about the limitations on the right to return an unsatisfactory product; in Aboriginal rights, we were concerned about the protection of only the existing aboriginal rights; in human rights legislation and in welfare reform, we were concerned about too much discretion in the welfare worker who could deprive the person of his or her right to receive welfare; in linguistic rights, we worried about the fact that education rights apply only where numbers warrant.
Precise wording, strong wording of rights were victories: We applauded the inclusion of the ground of social condition in the Quebec Charter, sexual orientation, the equal pay for work of equal value legislation, the engaging and promising wording of the environmental bills of right were celebrated. The enactment of section 28 of the Charter was heralded as a big victory for women.
Once the wording was accurate, once the battle in the legislatures and Parliament had been won, the battle for interpretation began. We argued for purposive interpretations, for generous standing rules so that minority groups could access the courts. We supported a broadening of the possibility of intervention for interest groups to come and present a broader perspective to the courts. We invested in public interest litigation and strategized about which test case should be brought first and how to organize funding for such legal battles.
We argued for a representative judiciary - a judiciary who could deliver on the promises of the statutes, who would actualize the victories of the rights fought for and won. We argued for meaningful remedies to be granted by the courts.
I believed in rights... and I still do.
Rights matter. At the symbolic level, they represent statements about the direction in which a society wants to take, about its values and its identity. It makes us feel good. International human rights, freedom of expression, freedom of association, freedom of religion, the right to equality, to security of person, to be informed of one's rights upon arrest, to be free from cruel and unusual treatment, to be protected against unreasonable searches or seizures. All these statements impress upon our collective psyches what is good about humankind and what it ought to strive for.
And, the political battles to entrench rights, to lay them on the table, to convince others of their importance are contributions to a better public debate on the inequalities of our society. The process of getting a legislature or Parliament to enact an environmental Bill of Rights, human rights legislation or protection for tenants is an empowering experience: the way the public debate is focused on the questions of environmental problems, discrimination, poverty or inadequate housing. In addition, there are the issues of organizing public support for the idea, the gathering of groups which may include taking to the streets, and the media attention. All these aspects of speaking about rights are very worthwhile.
And for some people, those who possess sufficient stamina, sufficient fortitude, and sometimes, sufficient anger, rights-based litigation brings positive results. At the margins, rights do certainly matter.
Law reform was often about rights - about creating new ones, reforming old ones, expanding legislative remedies, removing exceptions, proposing better wording. Most attempts at law reform in the 1960s and 1970s placed a great deal of emphasis on statements of the law which were designed to correct injustices and give a voice to the weaker members of society. Much of the law reform was about creating « rights » .
But rights are not enough. Three or four decades later, the results have proven to be mixed. There were some successes, but there were also some failures. As a rule, the failures resulted from the fact that it was impossible for the very poor and the highly vulnerable to assert their rights, to gain access to the courts or even know which laws existed to help them. Blame can be placed on the lack of adequate legal aid, the lateness of the judicial process, the lack of access to justice to explain how some social legislation seemed to have little impact on the people who needed it most. There are still door-to-door salespersons who sell overpriced vacuum cleaners. There are still some landlords who increase their tenants' rents without impunity and leave their premises in appalling conditions. There remain terrible conditions for Aboriginal peoples in Canada, they still account for the majority of the inmate population. Women still earn 60 cents on the dollar and racism still exists in our society. And since the criminal justice system will be examined during this conference, one can see that the poor make up the majority of inmates in our penitentiaries and prisons.
And this, after several "law reforms".
Nevertheless, we should not despair. Some people have benefited from the reforms. The changes in the law sometimes have had, as I mentioned earlier, a significant symbolic effect.
Moreover, we need to allow the reforms we make time to take effect and to make their way into how people think. Thirty or forty years may not be long enough to render a final judgement.
Despite everything, the attempts at reform in the 1960s and 1970s and their limited success teach us it that it is dangerous to focus too much on the formal law if we fail to understand the reality which underlies it.
If we ignore the way law is lived, we engage in reform at our own risk. Wanting to underline its efforts to see how law is lived - not just how it is written in the books - the Law Commission entitled its first report, the Living Law.
This questioning about reality is at the centre of our efforts. In my opinion, it is a first indicia of what an equality framework for law reform must be: it must reflect on how law is lived by the people affected. This reality check must constantly be at the forefront of our efforts.
But there is also a second question which must be asked if one wants to adopt an equality framework for law reform:
Who is missing?
In our law reform efforts, we are always concerned about the people affected by the possible reform. Who will benefit? Who will pay? This analysis of the effect of law on people is central to any law reform effort. Empirical research attempts to document such possible effects, or at least determine the extent of the problem.
However, the way in which data collection is framed is not neutral. It is trite to say that the way a question is asked often predetermines the answer. Therefore, attention must be paid to the manner in which the question is asked and from whom it attempts to elicit answers.
Who is missing from the data? This is a question which must be examined.
Often law reforms have had harmful effects on populations which may not have been anticipated : the extension of recognition to same-sex couples in tax law may mean that women sharing accommodations would lose their GST credits because they are deemed to be a couple, and their incomes are amalgamated for purposes of eligibility for the credit. These women may be poorer than before. So, searching for the living law is attempting to unearth the unexpected and the unintended effects of reforms.
How can we accurately predict the effects of law on people - particularly the people for whom the reform was not specifically intended? It is certainly a question which we must constantly have on our mind.
Very importantly, we must reflect on how our understanding of who will be affected, who will benefit is often stereotypical and ill informed. We approach research questions with certain predispositions - we may try to think broadly about the affected interests, but may miss the mark. We are, to a certain extent, dependent on the way data has been collected before - our understanding of social problems are often framed by the statistical information which has been collected - by the questions asked before. For example, in our restorative justice project, the success of restorative justice programs may have been assessed on the basis of certain criteria: the rate of recidivism or the cost of the program per offender. One must ask who is missing in the picture: has data been collected on the basis of the impact of the program on the community, on witnesses, on victims?
My point is this: the danger in reforming the law is to not know enough about how law is lived and to ask the wrong questions. An equality framework must be particularly sensitive to the question of who is missing because the poor and the vulnerable are not the ones whose stories are well-known, whose voices are heard regularly or whose data is collected. The poor and the vulnerable are often stereotyped. heir views are often ignored and misunderstood. We tend to assume homogeneity of the group.
Who is missing in the data? This a very serious question for law reformers concerned with the issue of equality.
How then to develop a methodology which can respond to questions such as: how do we understand the reality of the law as it is lived? and How do we reach the missing data?
The LCC ‘s Attempt to respond to these Challenges
The Law Commission defined its mission as "engaging Canadians". The mission was premised on the view that Law reform is not possible unless we talk to the people who will be affected by the reform. They are the people who make it and who will live with it. As stated in the Commission's first Annual Report, "Those who reform the law in Canada are, above all, the public. They renew the law by living it."
These efforts at consultation are at the core of the reform. It has meant, in our case, that consultations must be done at all stages of law reform: prior, during and after. It has also meant creating a structure which welcomes challenges and seeks out diverse points of view.
First, the Law Commission statute mandates the establishment of an advisory council, consisting of 24 volunteer members from across Canada, who bring a rich variety of experience and perspectives to the advice they offer to the Commission. The Advisory Council meets twice a year to provide strategic guidance to the five commissioners on the projects that the Commission is considering undertaking. Members of the Council serve as an important network for the Commission, connecting it to communities and regions, and points of view which it might not otherwise have regular access.
Second, consultation and engagement of Canadians in researching and in describing the problems that they experience is an essential component of our methodology.
One such example was identified in a recent study on financial exploitation of seniors. Financial exploitation is a serious social problem that many people have identified, including both the physical and psychological abuse of seniors that sometimes accompany financial exploitation.
It is a conditioned reflex for a teacher and a lawyer to look to comparative law to see whether other jurisdictions have something worthwhile to offer us: possibly the laws governing the protection of seniors that exist in some of the provinces and in the United States where some social workers identify as good examples.
An examination of the question shows that it is not so much the formal law that is ailing, but rather the suppositions on which it is based. The Criminal Code is adequate, in its present state, to deal with the financial exploitation of seniors as well as physical abuse, but it is not used. Seniors do not lay charges against members of their families who deprive them of their assets. They do not wish to complain. Perhaps it is the shame of having to admit publicly that their children have taken advantage of them. It may be because of the devastating effect criminal proceedings have on victims. (Who wants to go to court and wait for hours simply to be told that the case has been adjourned to a later date?) It may be because they do not really understand their rights. It may be our concept of the family which makes parents responsible for their children's failures that prevents them from complaining.
It was La Sagouine, a fictional character created by Antonine Maillet, who said in one of her monologues, "I don't come out of the confessional until I have finished confessing my sins, the sins of my husband and the sins of my children".
A reform of the law that was limited solely to recommending changes in the provisions of the Criminal Code to eliminate any uncertainty as to its application to the financial exploitation of seniors, or even to make the job of the prosecution easier, would be out of place.
Older adults had to be consulted to get a better appreciation of the way in which the problem was truly lived and to identify possible solutions. Legislative changes, changes in the formal law, cannot be recommended until we have interpreted the situation of seniors properly and until we have consulted the seniors themselves.
Proper research is not possible unless we talk to the people who are affected by the law and who will be affected by the reform. They are the people who must live with such reform.
Our research methodology is therefore built around mechanisms for consultation: we try to form study panels consisting of not only the experts but also the people who will be affected, and the representatives. We conducted community meetings, focus groups and a webcast consultation to hear stories of people dealing with the law on a specific topic. We attend conferences, experimented with the "safe forum" concept, where people can relate their experience on a specific subject. I would like to emphasize how research and researchers cannot avoid consultation in the process of understanding law and its impact. Empirical research is needed and is essential, but it must include the involvement of the subjects. Statistics disembodied from context can be misleading. Referring to the subjects and the citizens to verify whether the research conclusions confirm their reality must be included as an essential step in research.
The research must be accessible to citizens as well. It is partly in this context that we decided to start with relationships as research themes as opposed to legal categories, to facilitate access to the experience of the lived law.
Our Research Projects
Under the theme of Personal Relationships, we examine whether conjugality should continue to be at the core of our public policies, particularly in income security. We are also concerned about older adults and how law affect their lives. In general, our concern was to get a better understanding of the way in which law interacts with relationships of dependency and interdependency.
Under the theme of Social Relationships, we are concerned about social conflicts and the potential of restorative justice. We want to understand the role of law in building or impinging the development of communities. The policing role in our society is another topic being explored.
We are studying the nature of work - unpaid, marginalized, illegal work as part of our economic relationships theme. Finally, we are also concerned about the role of citizens in governance: how do they govern themselves, how can such processes be improved to be more representative, fairer, more equality driven?
Law reform is too important not to be undertaken with the goal of equality in mind. It can be too damaging if it not done right.
© Copyright 2003 Internations' Justice Federation