The federal government reckons it needs to lean more heavily on evidence-based policy. Buried in the 2021 budget, there is a promise to revive the Law Commission of Canada, an independent body first created in 1971 to provide advice on law reform to the Canadian government. That commission was shuttered in 1992 as a cost-saving measure during the Mulroney government. It was revived with a new mandate in 1997 and then closed again in 2006 under Stephen Harper’s reign.
Now Justin Trudeau’s Liberals want to bring it back. “Independent expertise is critical if Canada’s legal system is to be responsive to the complex challenges of the day such as systemic racism in the justice system, legal issues around climate change, establishing a new relationship with Indigenous peoples, and rapid technological shifts in the world,” the text in the budget stated.
The government promises to allocate $18 million for the commission over five years, and “$4 million ongoing.”
Michael Spratt, a partner at Abergel Goldstein & Partners in Ottawa, calls the revival of the Commission a wise policy choice. “It is a nominal investment when you consider the expense relative to the rest of the budget, and it is likely going to produce a good return on investment,” he says.
“It is safe to say that criminal law, but also other types of law – tax law, civil law, family law – are in need of modernization and recalibration,” says Spratt. “Those types of large-scale systemic reforms can take a while, and longer than any one government’s time in power. It’s important that we have an arm’s length expert panel to review those laws and make sure that they are modern, effective and efficient.”
For an example about how politics can produce bad laws, Spratt offers the example of legislating through criminal law, which has become the go-to solution for governments to address complex problems – from systemic racism in the justice system to the criminalization of mental health and addiction, as well as poverty. The trouble is that the sentencing principles that get applied often conflict with good criminological evidence.
“Reforming the Criminal Code in the ways that are needed could be really hard to do if it’s not detached from politics,” says Spratt. “For a long time, criminal justice has been used by politicians as a wedge issue, and we’ve seen a number of aspects of the Harper crime agenda [get] struck down because they’re not supported by the evidence.”
Spratt says that areas like sentencing reform must be studied in a way that is shielded from political manoeuvring. The new Law Commission could serve that purpose, even though governments will always be free to ignore reports and calls for reform. Nobody should be naïve enough to think otherwise. “But it does move the ball forward, and gives politicians who take these issues seriously the tools to advance that necessary reform,” says Spratt.
Read Dale Smith’s full article: CBA National