Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 8 - Evidence
Ottawa, Wednesday, May 1, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-9, respecting the Law Commission of Canada, met this day, at 3:30 p.m., to give consideration to the bill.
Senator Sharon Carstairs (Chairman) in the Chair.
[English]
The Chair: We begin our study today of Bill C-9, an act respecting the Law Commission of Canada. This legislation was formerly Bill C-106 in the First Session of the Thirty-fifth Parliament. However, it never arrived in this place. It has now arrived and I understand we will hear from officials from the Department of Justice.
We have appearing before us today David Paget, Senior General Counsel, Corporate Policy and Planning Directorate, and Deborah McCorkell-Hoy, Director, Law Reform Division.
Please proceed.
Mr. David Paget, Senior General Counsel, Corporate Policy and Planning Directorate, Department of Justice: Honourable senators, we are appearing today on behalf of the Department of Justice to provide information on the government's proposal to establish a new Law Commission of 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. Extensive consultations by the Department of Justice have revealed strong support for a new commission to provide just such independent advice.
The proposal before the committee today 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. The removal of the term "reform" is intended to signal that the commission will do more than reformulate existing legislation. The new commission is to consider new approaches to and new concepts of law.
[Translation]
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, namely: openness, inclusiveness, responsiveness; a multi- disciplinary approach; innovation and cost efficiency.
[English]
As set out in clause 3 of the bill, the purpose of the Law Commission of Canada is:
...to study and keep under systemic review, in a manner that reflects the concepts and institutions of the common law and civil law systems, the law of Canada and its effects with a view to providing independent advice on improvements, modernization and reform that will ensure a just legal system that meets the changing needs of Canadian society and of individuals in that society...
The "purpose" clause of the bill goes on to highlight a number of specific objectives, including the development of measures to make the legal system more efficient, economical and accessible, and the development of partnerships - for example, with the academic community - for achieving cooperation and coordination.
An important consideration underlying this proposal is the particular balance which would be struck between the independence of the commission and the need for accountability. This issue was raised during second reading debate in the Senate.
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 for a ministerial reference power but also requires the minister to consult with the commission before making any such reference.
The commission, through the minister, would table reports, agendas and its annual report to Parliament. Similarly, the minister would be required to respond to any report received from the commission.
The underlying concept behind the legislation is to ensure that the commission be held accountable to Parliament through the minister and at the same time be independent in the formulation of its advice.
[Translation]
The organizational structure, with the new volunteer advisory council and study panels, would ensure that the commission be inclusive and responsive to all Canadians. Furthermore, the commission would forge partnerships and stimulate critical debate, especially among stakeholders of particular issues.
Five commissioners are considered sufficient for diverse representation yet small enough to be an effective decision- making body. The president would be the only full-time commissioner.
Individually, commissioner's qualifications would vary but, as a group, they would be broadly representative of the socio- economic and cultural diversity in Canadian society, and would reflect knowledge of the common law and civil law systems. As the commission would be multi-disciplinary in composition and approach, the qualifications for commissioners would differ significantly from the former commission. For example, there would be no requirement for one of the commissioners to be a judge. The selection process would not be restricted to members of the legal community.
[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. The advisory council, composed of up to 24 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 advisory council.
The legislation would also contain an enabling provision for the commission to create study panels, each headed by a commissioner and made up of subject experts and representatives of communities affected who would advise on specific law reform issues and act as a project steering committee. The members would serve on a volunteer basis and be appointed by the commissioners. The advisory council and the study panels would be a significant departure from the structure of the previous commission. It is through these groups that consultation and partnerships would be institutionalized.
The commissioners would be supported by a small, permanent secretariat of about eight persons hired under the Public Service Act and headed by an executive director. The executive director would oversee the day-to-day operations, including the management of all contractual arrangements and partnerships for the provision of services and the conduct of research.
With a limited budget of $3 million rather than about $5 million for the former commission, a number of new administrative approaches are envisaged to streamline the operations and to reduce costs and generally improve effectiveness. These would include, as mentioned, voluntary membership on the advisory council and study panels; a streamlined secretariat and the use of outside contracted researchers; the use of modern information technologies to research 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, 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 envisaged by legislation before the committee represents a number of significant differences from the former Law Reform Commission of Canada. I will itemize just a few of these differences: a broadened approach to the process of law reform to be inclusive, multi-disciplinary and open to all sectors of Canadian society; greater emphasis on the efficiency and economy of the legal system itself; 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 where the advisory council and study panels are 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.
That concludes our formal remarks.
Senator Pearson: Several questions arose from the speech I gave to introduce the bill in the chamber. Why do you think people will volunteer to do this? I can understand a certain amount of clout for lawyers to be part of the advisory council. However, these study groups might demand a lot of work. Do you envisage problems in getting people to volunteer for this kind of thing? There is a cost saving, but what enticement will the law commission have to give them?
Ms Deborah McCorkell-Hoy, Director, Law Reform Division, Department of Justice: We have already received letters and correspondence because, up to this point, we are the only people one can write to if one wishes to volunteer to serve in any capacity on the advisory council or the subject panels.
It is frequently of benefit to people interested in particular research fields to be part of the process of setting the terms of reference for those types of studies so that their universities, or whatever, may benefit from the work conducted. Already, we have had people step forward.
Senator Pearson: That is very encouraging.
My second question has to do with the transparency and accessibility issue. I had some thoughts about inclusive accessibility - that is, the using of new technology for greater transparency. I was not sure technically how you envisaged that would work. I can understand it being inclusive in that you will reach out to greater numbers of people to be on the panels. However, for the ordinary member of the public who wants access to what is going on, will you use the Internet or other things so that someone who is either following the evolution of a piece of legislation or wishes to input something would be able to say, "Why do we not look at this?"
Ms McCorkell-Hoy: I do not want to go back through the history of the former commission. The manner in which it consulted was that it would bring organized groups together in Ottawa. These tended to be definite groups of people - repetitive responders. The same group of people would comment on certain areas of law.
We envisage an ability to use video conferencing, which would provide us with the capacity to go into different regions of the country to host town hall meetings. I am sure you are familiar with that concept. For example, we could have a presentation from a group of people in Ottawa and also hear from people who have not been involved in those types of in-depth consultations before.
We have begun to do this. Instead of having just national consultations in the Ottawa area, we would go out to a region and involve people from all facets of the community who are interested in a particular issue. This does not mean, necessarily, that they all must have their own PCs. We would use and apply other technologies for the benefit of those who may not have their own PCs.
[Translation]
Senator Nolin: When you consulted and developped this bill, did you systematically interact with the various provincial justice ministers? I am referring specifically to Quebec because of our dual system. Were you in touch with the Justice Department or the Quebec Bar, with lawyers, civil law practitioners? Were you indeed?
[English]
Ms McCorkell-Hoy: With respect to the consultations we conducted across the country, we did include Quebec. We conducted a series of consultations, and I will explain some of the involvement. We conducted regional-level consultations where we invited academics and some practising bar members from Quebec to a meeting with the minister directly. It was a small meeting of key people in Toronto who had an interest in law reform. In addition, we also conducted a national consultation with all the groups on our mailing list interested in law reform across the country, and the Minister of Justice wrote to his provincial colleagues, sending them the consultation document and all of the information. Similarly, our deputy minister wrote to his provincial and territorial colleagues and sent them the consultation paper requesting their input. As well, we asked the Canadian Institute for the Administration of Justice, which operates out of Montreal, to host or sponsor a parallel consultation with the judiciary across the country. That included the judiciary in Quebec.
Senator Nolin: Is it possible for you to tell us if any concern was expressed by Quebec's Minister of Justice?
Ms McCorkell-Hoy: During the time of the first round of consultations, the letters we received provided no clear signals about the concern over "bi-juridic" at that time. However, following the House of Commons standing committee meetings around that time, a letter came to either our deputy minister or to the minister indicating a concern that the Law Reform Commission would be replicating work that would be undertaken by the provinces. In fact, we met with most of the provincial Law Reform Commissions in provinces which have them. Not every province has them. We have examined what areas are appropriate for provincial Law Reform Commissions. We do not intend to duplicate efforts that the provincial Law Reform Commissions would undertake. We are looking at the domain of federal law and the application of that.
Senator Nolin: I raise that question because in your mission statement you refer to the civil law. Of course, the civil law is part of our system of law, the laws of Canada, but everyone knows that the province of Quebec is responsible for the administration of this.
Ms McCorkell-Hoy: Absolutely.
Senator Nolin: When I read that in your mission statement, I was worried that there would be another problem with the province of Quebec. The idea may be perfect, but sometimes with good ideas, success depends on how you present them.
Ms McCorkell-Hoy: The intent certainly is not to review any of their laws. The intent is, rather, that the law -
Senator Nolin: Interact.
Ms McCorkell-Hoy: That is right, and that it be consistent. In fact, we heard from representatives of the Uniform Law Conference. They want to ensure that they have input into the agenda of the new commission. They see many issues that need to be addressed because there appear to be consistencies across the country.
Senator Lewis: I have a point for clarification with respect to the advisory body. Clause 18(1) provides that the members to be appointed by the commission through the advisory body will hold office "during pleasure." I presume that is the pleasure of the commission, is it not?
Senator Nolin: I am not sure that is exactly what it is.
Ms McCorkell-Hoy: Yes.
Senator Lewis: It is not the Governor in Council; it is the commission.
Ms McCorkell-Hoy: You are right, the commission makes the appointments. The subclause uses the same terminology used with respect to the commissioners' appointments, but it has an official status.
Senator Lewis: But the commission members are appointed by the Governor in Council at his pleasure.
Ms McCorkell-Hoy: Yes.
Senator Lewis: Under this subclause, the advisory body would be only at the pleasure of the commission itself.
Ms McCorkell-Hoy: That is right.
Senator Bryden: Is that usual terminology, that a commission or a commissioner would appoint at pleasure? I always thought that was reserved for Lieutenant Governor in Council or Governor General in Council appointments. Normally what would be said is "to serve for a term to be determined by the commission" or "for an indeterminate period." Maybe this is usual, but if it is not, I wonder if we want to set a precedent.
Senator Lewis: I have never seen it before.
Ms McCorkell-Hoy: This is the terminology used for this sort of body. The provincial law commissions also use the term "during pleasure" rather than "good behaviour." That is the alternative. "Good behaviour" is reserved for the judiciary and quasi-judicial bodies, but for an advisory board or commission of this sort, the standard terminology is "during pleasure."
The Chair: Perhaps we can come back to this point.
Senator MacDonald: Ms McCorkell-Hoy, how long have you been director of the Law Reform Division at the Department of Justice?
Ms McCorkell-Hoy: Since 1993 or 1992. My memory fails me. I think it was 1992.
Senator MacDonald: Senator Lewis will remember this particular quote. I am quoting my favourite author - myself - and asking you to agree with this.
Again, by eliminating the Law Reform Commission, the government is saying that the Department of Justice will assume the role of ensuring research in the area of law reform. One of the most important aspects of the Law Reform Commission, as I understood it, was its independence. It is precisely that independence that will be lacking in the Department of Justice, because that research will be influenced by government policies, immediate departmental priorities and the inevitable political considerations. There is nothing new about this. That is how things work in a department.
Given your experience as director of the Law Reform Division of the Department of Justice, would you agree with that statement?
Ms McCorkell-Hoy: We constantly received, right from the time I began my stint as director, letters asking for an independent commission. That was right from the time that the announcement was made originally to wind up the former commission. There has always been a call for an independent commission, and that has been consistent through the whole time that we were trying to establish a program in the department to take over the function. There was always a public commentary that there should continue to be an independent function of government.
Senator MacDonald: Are you suggesting that, since 1971, the Law Reform Commission lacked independence?
Ms McCorkell-Hoy: No. I am saying that when the commission was wound up in 1992, which is when I took the lead in law reform in the department, there was no commission. People were very unhappy with the abolishment of the commission, and they wished it to be resurrected or restored.
Senator MacDonald: Mr. J.J. Camp, who at that time was the president of the Canadian Bar Association, was quoted in The Ottawa Citizen of March 11, 1992, as saying:
I've had it reported to me by some sources that the Law Reform Commission was too independent...
Part of the reason I think those allegations were made is because the commission was writing papers and reports that weren't consonant with the department's image of what it should be doing. I think that is the strength of the Law Reform Commission, its distance between itself and government, not a weakness.
Do you agree with that?
Ms McCorkell-Hoy: I do not think I would take a position about the nature of the former commission. If you are asking me to comment on the former commission and its ability to work independently of the government, I would refer to the Auditor General's statement that the commission itself was not sufficiently accountable to government. Stronger accountability mechanisms needed to be built into the work and the management of the commission.
That goes back as far as 1985 and was reinforced again when they did a follow-up audit in 1988. It was viewed - not so much by the Department of Justice, but actually by the Auditor General - that there was a problem with the balance of accountability versus independence.
It was also a factor in how you measure the contribution of the former commission. Many people said that the commission did not have sufficient influence on the government when measured by the number of pieces of legislation that were enacted, but that is only one measure of its work and value.
There are other measures, one being that it provided a great emphasis to the whole area of public debate of issues and the involvement of mainstream society in the debate of issues. If you use that as a measuring stick, then it was very successful.
Senator MacDonald: On November 21, 1995, you made a comment about the old commission. You stated that during its 22-year life:
The commission served very well the clientele of the 1970s and the 1980s, but as we came into the 1990s, it was growing more and more distant from the relevant issues of the day...
Do you remember that? Could you elaborate on that?
Ms McCorkell-Hoy: Was this a statement in a newspaper?
Senator MacDonald: Yes.
Ms McCorkell-Hoy: Because I was not quoted correctly. What I said was that the nature of the times were changing and that, in fact, the work of the commission was not keeping pace with the changing needs of society. There is a nuance of difference there.
Senator Doyle: I want to continue with the line of questioning Senator MacDonald has been following.
You describe this as an independent, arm's-length body. I am looking for the areas of independence. As I understand it, the matters to be studied by the commission are to be referred to the minister in advance for approval. At least that is implicit approval.
Interrupt where you want here.
Ms McCorkell-Hoy: Did you refer to the agenda itself?
Senator Doyle: The breakdown on this is that the agency would be required to consult the minister prior to finalizing its annual report.
Ms McCorkell-Hoy: The key is that they would be required to consult the minister. They do not need his final approval or blessing on the agenda. There is a balance here between independence and accountability again.
We were always looking at this in terms of the structure and the mandate of the commission. The commission would have independence in setting its agenda, but it would be required to consult with the minister prior to finalizing its agenda.
Similarly, some of the principles governing the commission require it - or stipulate that it is in its best interests - to consult with as wide an array of interests as it can in setting its agenda. This was intended to be a form of independence, that it has final independence in setting its own agenda.
Senator Doyle: However, the people consulting with the minister would have been appointed by the minister.
Ms McCorkell-Hoy: They would be Governor-in-Council appointments at the recommendation of the minister.
Senator Doyle: You said you would have a staff of eight. Who will be hiring those people? Who will be choosing them?
Ms McCorkell-Hoy: I assume that the president, who will be the chief executive officer of the commission and will have responsibility for the day-to-day management, would be hiring the executive-director. That executive-director would take on the day-to-day running of the staff, the contracting and the actual running of the secretariat to the commission.
Senator Doyle: Would the director be appointed by the president?
Ms McCorkell-Hoy: The executive-director will be a Public Service Employment Act employee. It would not be a Governor-in-Council appointment.
Senator Doyle: No, but he will be hired.
Ms McCorkell-Hoy: Yes.
Senator Doyle: That authority goes back, again, to the minister. The person hired for that position would have to meet the approval of the minister.
Ms McCorkell-Hoy: Are you saying that the executive- director would have to meet the approval of the minister?
Senator Doyle: To seek the advice of the executive-director, yes.
Ms McCorkell-Hoy: The executive-director would be hired by the president. I assume that the president would have his choice in that matter.
Senator Doyle: From where does the president come?
Ms McCorkell-Hoy: The president is a Governor in Council appointment.
Senator Doyle: We are right back where we stand. Everyone here, all power, springs from the minister. When a minister comes here, I suppose we are consulting him and vice versa, but at least there are two groups approaching him. However, this would be a direct path from the minister to a much smaller and limited committee.
As I see it, the advisory council would be appointed by the ministry.
Ms McCorkell-Hoy: No.
Senator Doyle: Well, then, by people appointed by the minister.
Ms McCorkell-Hoy: The advisory council is appointed by the president and the other commissioners.
If we are drawing lines on organizational charts and showing relationships, the advisory relationship would be between the advisory council to the commissioners. They will not provide advice to the minister; they will provide advice to the commissioners.
Senator Doyle: With all due respect, I am attempting to find the one person who, in consultation with the minister, might say, "You may want it that way, but we will not do it that way; this is what we will do." Who will say "no" at any point?
Ms McCorkell-Hoy: Some of the checks and balances will come from the advisory council, which represents quite a diversity of interests across the country. It is one thing to have an advisory group appointed by the commissioners, but that kind of eclectic group does not mean that everyone will have identical views on any particular issue. In fact, the advisory council will act as a check on the work of the commission.
Senator Gigantès: In the former Law Reform Commission, who appointed the top person?
Ms McCorkell-Hoy: It was a Governor in Council appointment, but it was on "good behaviour" rather than "during pleasure."
Senator Gigantès: The only other alternative would be a national election, I suppose.
Senator Doyle: I have one comment. This was described to us as an independent, arm's-length body. That was the description used today. What I was looking for, senator, was some eminence of a new enlightenment.
Senator Gigantès: Do not look to me for that.
Ms McCorkell-Hoy: It is very important that the agenda and the issues pursued be consistent with the needs of the country and the concerns of the public. In that way, no, it is not independent; it is very dependent on the types of consultations and inputs provided to the commission itself. Where it needs to be independent is in its ability to research, to conduct and to formulate the regulations on those particular issues. The identification of the issues - and this is what we heard across the country when we went out and talked to people about this - must be linked to involvement and an inclusive process as much as possible. In that sense, that process itself is not independent. It is very dependent on public democracy.
Senator Jessiman: Will the secretariat be in Ottawa? Has that been decided?
Ms McCorkell-Hoy: In the act, it can be anywhere, but it will probably be in Ottawa.
Senator Jessiman: The commissioners can serve for up to five years. Do you know what they have in mind, or do you know the number of years they are thinking of appointing the people now? Will it be one year, three years or five years?
Ms McCorkell-Hoy: The act was worded to allow people to be appointed for different periods so that there would not be five new commissioners at the end of the five-year period. The purpose is to stagger the appointments.
Senator Jessiman: Eventually they will hold that position for five years. To start, some will be appointed for one year, some will be appointed for two, three, four or five years, and eventually they will be renewed for five years. I understand that they do not have to be lawyers.
Ms McCorkell-Hoy: That is right.
Senator Jessiman: Is it intended that a great number of them not be lawyers? We are talking about laws here. If we were talking about the medical profession, I should like to think that doctors would be involved.
Ms McCorkell-Hoy: That is interesting. Lawyers are viewed as the people who have studied law, interpret law and practise the law. However, when it comes to developing new laws, it is also recognized - especially by those people across the country to whom we talked - that many people and disciplines come to play in formulating laws and the nature and direction that laws should take.
By way of example, one thing has become very evident and clear in the legislation - that is, the emphasis on economic and efficient solutions to legal issues or problems. If you have two legal solutions, you look at which is the most efficient. You may want to appoint someone with an economics or costing background.
We did not intend to exclude lawyers. It was intended to open the doors to people with an interest in the law in terms of, for example, a criminologist, a medical ethicist, a chief of police or all of these different people. They do not have formal law degrees, but they are definitely involved in the practise of law.
Senator Jessiman: Are you speaking both of the commissioners as well as the advisory council, or are you speaking mainly about the commissioners?
Ms McCorkell-Hoy: I was directing the answer to the commission itself, but certainly the advisory council would have the same features.
Senator Jessiman: I will not address the four other part-time commissioners other than to ask you what is meant by "part time." Is it one week per month or one month per year? What is it?
Ms McCorkell-Hoy: In terms of overall work, it would probably be something in the order of one-quarter of one person year of work. It would not be structured so that it would be one week here and one week there. The intention is that the person works out of wherever they are located is and that they are able to continue in their career or profession. This would be an additional responsibility.
Senator Jessiman: Would the commissioners - that is, the five people, one of whom is the president - be from across the country? For example, will there be someone from Atlantic Canada, someone from Western Canada and someone from Quebec? Will there be a diversification in that respect?
Ms McCorkell-Hoy: That is the very reason why we looked at the concept of part time and allowing people to remain wherever they are located. In our consultations, we were told again that in order to attract the best and brightest, many of these people cannot uproot their families, move to Ottawa and dislocate themselves from wherever their careers and practices are located. They will be able to remain in their own communities.
As well, it allows the law commission to tap into a network of established colleagues or interests within that community. It also acts as a focus for a particular research issue or group of issues within a particular regional setting.
Senator Jessiman: Do you envision that the meetings of the five commissioners and perhaps the advisory boards to the commission will be done primarily by teleconferencing?
Ms McCorkell-Hoy: Teleconferencing, the Internet and audio conferencing.
Senator Jessiman: Have you done any teleconferencing across Canada?
Ms McCorkell-Hoy: We have done some. The department is not a flagship of innovative technology, but I think the law commission will be that type of flagship. It will show what can be done to bring this country together in terms of a national organization.
Senator MacDonald: It is a budget of $3 million, approximately. How does a president, four part-time commissioners, a staff of eight, rent, telephones, et cetera, fit within that budget?
Ms McCorkell-Hoy: The four part-time commissioners comprise only one full-time salary. The eight people at the secretariat are much fewer than the former Law Reform Commission had. It had approximately 25 permanent staff members plus another couple of dozen in-house contractors who were fairly permanently on staff, although they worked on a contract basis. They had a very large in-house capacity.
The law commission would contract out its research function. We have estimated that on a yearly basis there would be about $1.6 million available to conduct research into law reform.
Senator Bryden: I do not know that you answered our concern about an appointment "during pleasure." We understand that the commissioners would be appointed by the Governor in Council during pleasure. However, I find it strange that the appointments made by the commissioner, who I guess is the president, are made during pleasure as well. That is not a Governor-in-Council appointment normally.
Ms McCorkell-Hoy: No. Actually it is only a volunteer position. Are you talking about the advisory council?
Senator Bryden: Yes.
Ms McCorkell-Hoy: The advisory council is made up essentially of volunteer positions. Those appointments would be at the pleasure of the commissioners.
Senator Bryden: I will take one more shot. I am concerned about whether the phrases "during pleasure" and "during good behaviour" are not terms of art. They have a specific connotation, and I am concerned about whether using that terminology in relation to the appointment of volunteers detracts from what has become the usual use of those phrases.
Do you know of other situations where volunteers are appointed during pleasure instead of for an indefinite period or for a period to be determined by the president? Understand that I am just talking terminology here.
Ms McCorkell-Hoy: I believe that this is a legislative drafting issue. The term "during pleasure" is common legislative drafting terminology. This is standard phrasing.
Senator Bryden: It is standard phrasing in certain situations. However, I have been responsible for drafting legislation, having been a former deputy attorney general, and I cannot recall seeing a situation where a president, under a statute, made an appointment of a volunteer according to the statutory wording "during pleasure."
You are absolutely right that this is a drafting question, and I therefore hope that, if it is useful to change the wording, it could be changed as a drafting matter rather than necessitating amendments.
My concern is that certain levels of appointments are made. The Governor-in-Council appoints judges on good behaviour and you cannot blow them off the bench with a stick of dynamite. When appointments are made during pleasure, the appointment is gone when the government changes.
Ms McCorkell-Hoy: That is not what "during pleasure" is intended to mean at all.
Senator Bryden: I agree that that is not its intent here. My point is that if the appointment is meant to be for an indefinite period of time or for a term to be determined by the commissioner, that is what we should be saying here rather than using terminology which ordinarily would relate to a Governor-in-Council appointment or a Lieutenant Governor in Council appointment.
Senator Beaudoin, perhaps you can help me out here.
Senator Beaudoin: I have the same concern. In the Constitution, one will find the expressions "good behaviour" and "during pleasure." That pertains to judges. However, how can you be appointed during pleasure for five years? Does it mean that the appointment may end before the five-year period is up? I have never seen that before.
Senator Bryden: Perhaps I could have an undertaking that someone will determine whether this terminology would normally be used. I would like to see a couple of examples where "during pleasure" has been used. I have always considered these phrases to have distinctive meanings.
Mr. Paget: We will readily undertake to do that research on this point. If our research and consultation with our legislative drafters and the administrative law experts in our department confirms the concern, perhaps rather than sending the bill back, the concern may be addressed in a future miscellaneous statute law amendment bill.
Senator Bryden: Yes, as long as it is not six years from now.
As Senator Milne said, the terms "good behaviour" and "during pleasure" are normally reserved for the Crown's prerogative in legislation. That expresses my concern very well. If that is so, then let us find other words to use here.
Senator Lewis: We do not quarrel with the intent.
Senator Bryden: I want to comment on Senator Jessiman's concern about whether lawyers would be excluded. With the number of unemployed and underemployed lawyers in the country, you will find them lining up for these voluntary study panels just so they can list it on their résumés.
Senator Beaudoin: I must say that I am pleased to see a bill concerning this proposed law commission. However, I am worried about two or three things. First, funds may be received from the private sector. How will that affect the independence of the commissioners and those working for the commission? I can understand when it is the Crown's money because, after all, the state is above everything. Private enterprises will not pay money just for the advancement of the law. They will do so to further research in a particular sector. Why is that possibility contained in the bill?
Ms McCorkell-Hoy: One reason is to allow it to enter into types of partnerships and relationships where there will be a pooling of resources or an exchange for work received. However, with respect to the way a departmental corporation receives moneys, there are operational ways to arrange for the fact that moneys are received without the same people making decisions about how it is spent. That is the reason for the subject panels being set up to define the terms of reference. In this way, they are independent from the actual agency itself. This provides a check when the commission receives money, that it will not be making a decision that the money be spent on a certain subject, for example.
Senator Beaudoin: Let us assume that an enterprise offers $1 million and your whole budget is only $3 million. Let us assume further that the money is to be spent on constitutional law. Obviously, the enterprise which offers the money will want to find out about specific subjects. Will that not affect the independence of the researchers?
Ms McCorkell-Hoy: I do not think it will affect the manner and the methodology in which they look at the particular issue and the formulation of recommendations.
Senator Beaudoin: I have no doubt about that. They are professionals.
Ms McCorkell-Hoy: What you are getting at, I presume, is this: Can they influence, therefore, the agenda of the commission? Any group will have input into doing that. The intent is to have the capacity to receive funds that will go into a trust account that is not linked or tagged to a particular agenda item.
Senator Beaudoin: With respect to the question of "during pleasure," I agree entirely with my colleagues. There is a great deal of jurisprudence about the terms "good behaviour" and "during pleasure." Many illustrious trials have been held to determine those issues. It is something usually applied to the appointment of judges. This is the first time in my life that I have seen such an expression. What does it mean? Does it mean that before the term of five years is up, the organization appointing that person may change its mind?
Ms McCorkell-Hoy: It is in case of a performance problem - for example, if someone does not show up or participate in the advisory council meetings. These volunteers may change their minds about how much they want to volunteer after a period of time. This provision would enable them to be removed.
Senator Beaudoin: I agree with that.
Ms McCorkell-Hoy: That is the intention.
Senator Beaudoin: I have no problem with the intent. It is the terminology that I find surprising. It means that you may be removed if you do not perform adequately. If they want to change commissioners, then they will have to wait until the five-year term has expired.
The Chair: I have seen this term used in boards and commissions at the provincial level in Manitoba. It does not refer to anyone who is judicial. It merely refers to the agriculture board, for example, which serves "at pleasure." This is a situation in which we have a narrow look, perhaps, at the term "during pleasure" when in fact it has a broader meaning with respect to other boards and commissions that have been established.
Perhaps that is the kind of clarity we need. If we can get some assurance that this is standard terminology, then I do not think the committee will have any difficulty with it. Members of the committee want to ensure that it is a standard usage and not something rare.
Senator Beaudoin: I would like such an assurance.
In theory, could there be a law commission of Canada with no jurists as commissioners?
Ms McCorkell-Hoy: No, probably not. The president of the commission must have knowledge of both the common and civil law. Within the group of commissioners, the president is definitely included.
Senator Beaudoin: I am not convinced in that regard. A person may claim to have knowledge of civil law and common law when they do not.
Ms McCorkell-Hoy: That is misrepresentation.
Senator Beaudoin: If the person has a degree in law, then obviously he or she is supposed to know something about civil law or common law. However, if the person has no degree in law, then he or she may very well have some kind of knowledge of law nonetheless. Is there a reason why that has been changed from the previous legislation?
Ms McCorkell-Hoy: The previous legislation stated that there had to be individuals with a law degree from, I believe, the Quebec bar and one from another bar in Canada, plus a judge from the superior court of Quebec and a judge from another area in Canada.
There were very definite legal requirements. By the time you met those requirements, you had pretty well run out of people to appoint to the commission. The emphasis we are attempting to put into the new commission is that it will be an eclectic mix with a multi-disciplinary capacity.
Senator Beaudoin: I am in favour of the multi-disciplinary approach. However, I am concerned that we might be going to the extreme. It is very good to have a lawyer, a scientist, and an economist on the board; I agree with that. That is the perfect example of our society today. On the other hand, however, you need a minimum number of individuals who are learned in the law.
I have followed the works of the Law Reform Commission for many years. I probably know most of the people involved. I have always been impressed by them. Some were professors of law; some were lawyers; some were judges. They all have a knowledge of law. I agree with adding people who have experience in some other field, whether political science or economics. However, I wonder why they are going to such an extreme.
Ms McCorkell-Hoy: I do not think it is an extreme. This says merely that the minister shall not restrict himself to consideration of members of the legal community. That does not mean that they will not be considered. That is a very different thing.
There are two aspects here, one of which is the requirement for the president to have knowledge of both the common and civil law.
Senator Beaudoin: Is it mandatory for the president?
The Chair: Clause 7(3) states:
As a group, the Commissioners should be broadly representative of the socio-economic and cultural diversity of Canada, represent various disciplines and reflect knowledge of the common law and civil law systems.
Senator Beaudoin: As a group, as an entity. Thank you.
Senator Milne: On page 7 of your text, you talk about the sharing of services with other organizations to the extent that this is cost effective. What sort of safeguards have you in mind to ensure that there will not be some form of lobbying by the other organizations, whatever they may be, with which you happen to share services?
Ms McCorkell-Hoy: Are you thinking that they would provide services in lieu of favours?
Senator Milne: No, I am thinking they might provide services that might be one-sided on a particular issue.
Ms McCorkell-Hoy: When we talk about sharing services, we are talking about administrative services in terms of paying bills and that sort of thing, financial accounts and shared physical facilities. We are not talking about shared services for research or capacity to do research so that the commission's agenda could be taken over by a particular group.
Senator Milne: I am glad to hear that because it was not at all clear from your remarks.
Senator Gigantès: In the United States, I met professors of the history of law. They were very learned in the law, but they were not lawyers. You can get a Ph.D. in courses in the history of law.
Following up on Senator Beaudoin's questions, could someone like that be appointed on the grounds that he knows the law even though he is not a lawyer?
Senator Beaudoin: Madam Chair, on a point of order. When I spoke of lawyers, I was not referring specifically to lawyers; rather, I was referring to someone with a knowledge of the law. Some professors of law may be geniuses, but they are not lawyers. They are not members of the bar, but they are very brilliant in their knowledge of the law. The same thing applies to judges. Of course, a lawyer in private practice is a lawyer. Someone could be a great historian in the history of law without being a member of the bar. Many professors of law are not members of the bar.
Senator Gigantès: Without having gone to law school?
Senator Beaudoin: Well, the best place to learn law is still the law schools.
The Chair: We have one senator left who has agreed to ask his question both at pleasure and during his very good behaviour.
Senator Doyle: Good behaviour was a reference to the Chair.
You explained why the name was changed from the name of the commission's predecessor. It is no longer the Law Reform Commission. You explained that the word was taken out because it did not have enough meaning when the commission would be considering important new things that were not considered in the last commission, or at least that is the implication. I do not find that reassuring. I find it about as exciting as saying the "Bar Association." So what. Or the "Law Society." So what. Or the "Law Commission." What is the thrust?
Ms McCorkell-Hoy: That was done for a number of reasons. We thought it would be appropriate to signal that this is not just a restored commission in terms of dusting off the old Law Reform Commission and re-enacting the legislation that created it. Since we had re-thought the way the commission should be looked at, the way it should function and the philosophy by which it should operate, we needed to signal that change. One way of signalling that was to change the name.
"Reform" was deleted because it was felt to be restrictive in terms of implying that it was just reformatting or changing legislation that was already on the books. We wanted to highlight the fact that there was the possibility of looking at laws and remedies to legal problems in different ways, as well as the notion of looking at the issue of the economy of different alternatives and looking at alternatives to particular situations such as alternative dispute resolution.
Finally, the concept of "law commission" has been used in other Commonwealth countries. In the U.K., I believe they now call their reform-type commission the Law Commission as well. There are precedents for that. In combination, we felt that it was a good signal to send.
Senator Doyle: Perhaps some of us were mistaken when we assumed that the previous commission did not feel restricted by the word "reform." The commission wrote with great agility about eliminating laws, consolidating laws and creating new laws, but there is an absence of any word to suggest energy here.
I will just add that at the time of the formation of the old commission, I believe the minister was John Turner. His popular quotation on the subject when he was forming the commission was that he was looking for "young tigers" for the jobs he had available. Are you looking for young tigers?
That was intended as a question.
Ms McCorkell-Hoy: Tigers and tigresses.
Senator Beaudoin: Of course.
Senator Doyle: A tiger, like the modern actor, is not of either sex.
Ms McCorkell-Hoy: I think the commission will be looking for energetic, thought-provoking people from a variety of disciplines to challenge the existing laws, especially where there are weaknesses, and to probe those weaknesses and discover what underlie them. Are you applying for the job?
Senator Doyle: No, but I remember when the senior appointment was made for Mr. Turner's first Law Reform Commission, it was -
Senator Beaudoin: Justice Hart and Justice Lamer.
Senator Doyle: Justice Hart was perhaps even better known than the Chief Justice at that time. His independence could not be questioned, although he was later assailed for his work on the commission.
Senator Bryden: The appointment of a commissioner is an Order in Council appointment for a term not exceeding five years during pleasure. Does that mean if the government changes - and far be it from me to be against nice patronage appointments because I am the subject of one - these appointments at pleasure could be terminated at the end of two years?
Ms McCorkell-Hoy: I am sure Senator Beaudoin knows more about this than I, but my understanding is that the concept of "during pleasure" really pertains to the person's abilities and performance, not to the tenure of the party and the term of office.
Senator Bryden: That is exactly how I would frame it if I were changing this.
Senator Gigantès: I object.
Senator Bryden: I want to read it.
The Commissioners hold office during pleasure for such term, not exceeding five years, as the Governor in Council may fix so as to ensure...the expiration of not more than two terms...
The appointment is, first of all, during pleasure, and an appointment during pleasure by a cabinet can be terminated at any time. I may be wrong but the limitation is that you can make an appointment during pleasure not to exceed five years.
Let us assume that this cabinet makes an appointment today. Three months from now there is an election and a new government. Can, at pleasure, the new government then terminate that five-year appointment?
Senator Gigantès: Of course.
Senator Jessiman: The same government could if it changed its mind.
Senator Beaudoin: I would like the answer to come from the witnesses.
What is the answer to Senator Bryden's question?
Senator Lewis: They do not know because they are not knowledgeable on that subject.
Mr. Paget: I can give part of the answer, but it may not be the answer you are looking for.
It is my understanding that this is the standard approach to advisory commissions in the current federal legislation. However, I do not think we are in a position to give the precise legal opinion you are requesting.
Senator Gigantès: If the wording that Senator Bryden suggested were adopted, it might be very damaging for someone who is otherwise perfectly fine but not suitable for his role in the commission. You let him go, but you do not let him go on the grounds that he is not suitable or able and thereby put a black mark against that person who has another career and who might be damaged. The phrase "during pleasure" protects the reputation of someone who would serve on the commission and perhaps prove that he is not suitable for that kind of work, although he is perfectly worthy in all other aspects.
Senator Beaudoin: On that very point, Senator Bryden's objection is fundamental. If you appoint someone for five years, whether there is a change of government or not, that person should stay there for five years.
Senator Gigantès: What if he gets Alzheimer's disease and does not want to resign?
Senator Beaudoin: That is another point. If the person is not able to perform his functions, that is another story.
Senator Gigantès: We have had senators who were not able to perform their functions and stayed on the job. If they were on pleasure, they would be gone.
The Chair: Honourable senators, clearly this is a point of some dispute. We need to find out whether this is a drafting error or whether this is simply standard procedure.
I will add to the complication just a bit. I do not wish to do so, but I will do so anyway.
I understand that the phrase "during pleasure" traditionally refers to Order-in-Council appointments. What you have, however, in the president appointing members to the advisory body is a phrase that is normally used for a Governor General now being used for a president. This creates a grey area because, potentially, if "during pleasure" is a Royal prerogative, then the Governor in Council could leap over the president and act with pleasure. It is an area of ambiguity if, in fact, "during pleasure" is used only as a Royal prerogative term.
Senator Beaudoin: Speaking globally, I am in favour of the bill. A law commission is a good thing. Bravo. I agree 100 per cent. However, I have a little difficulty with the terminology. If it has been used for a certain time in federal statutes, there must be a very good reason. However, I would like to know why it was drafted that way. Subject to that, I will vote in favour of the bill.
Senator Pearson: I was given a book that tried to explain the bill. There is an answer. I do not know whether this covers the issue, but it says that under the previous act, commissioners served during good behaviour, but as this is more appropriately reserved for quasi-judicial functions, at-pleasure appointments are the norm.
Then there is a citation of the Interpretation Act, section 23(1).
Senator Beaudoin: That is what I said.
Senator Pearson: I do not have a copy of the Interpretation Act, but it may help these witnesses to give us a clarification.
It also says that at-pleasure appointments allow for a greater accountability to Parliament through the minister. It seems to be tied to the balance they are striking between accountability and independence.
Senator Lewis: Yes. That part is all right, but our problem is that we wonder whether the expression "during pleasure" is restricted to Governor-in-Council appointments. What is being said here is that "during pleasure" is during pleasure of the commission.
Senator Pearson: I think it needs clarification. I am merely saying that is what I was told.
The Chair: I do not know whether it is acceptable to the committee today, but you made a recommendation that the witnesses agree to review the drafting of clause 18(1) and, if appropriate, amend it in the future under the Miscellaneous Statute Law Amendment Act.
Is that satisfactory, senators? Do you wish to delay clause by clause on the bill?
Senator Beaudoin: I am used to the other possibility. We may make, later on, what we call omnibus amendments. However, it is not even legislation at this stage. If there is something wrong, we should correct it right now. We should amend the bill right here, subject, of course, to your comments. It could be done in one or two days. I do not want to delay the bill. I am in favour of the bill, but I want to know why you use such an expression and what it means.
I agree entirely with Senator Bryden that we have many cases regarding "during good behaviour" and "during pleasure." These terms are of the highest importance. If it is what you want and if we agree, we will say yes. However, if it is not what you want exactly or what we are ready to accept, then we may have an amendment here. Subject to that, I do not have any problem with the principle of the bill.
The Chair: Senator Beaudoin, we are meeting again tomorrow morning, and I do not know whether they can have an answer to this question by then. Therefore, we will delay clause by clause of this bill until next week when we hopefully will have an answer.
I would suggest this go to next Thursday because we are hearing justice officials on Bill C-8 on Wednesday. We may have a very simple answer to our difficulty and be able to do clause by clause then. My sense from committee members is that everyone is in favour of the legislation; they merely wish to ensure that it is appropriately drafted legislatively.
If we could have a reply by next Thursday morning, that would facilitate the process.
The committee adjourned.