¹ Law Reform Commission Act, R.S.C., 1970, c.23Google Scholar. For interpretations of the mission, mandate and performance of the Law Reform Commission of Canada see Lyon, N., “Law Reform Needs Reform” (1974) 12 Osgoode Hall L.J. 421Google Scholar; Barnes, J., “The Law Reform Commission of Canada” (1975) 2 Dalhousie L.J. 62Google Scholar; Ryan, E.F. & Lamer, A., “The Path of Law Reform” (1977) 23 McGill L.J. 519Google Scholar; Samek, R., “The Case for Social Law Reform” (1977) 55 Can. Bar. Rev. 407Google Scholar; Macklin, A., “Law Reform Error: Retry or Abort?” (1993) 16 Dalhousie L.J. 395Google Scholar; Scassa, T., “A critical overview of the work of the Law Reform Commission of Canada: learning from the past” in Atlantic Institute of Criminology, ed., Federal Law Reform Conference: Final Report (1993)Google Scholar; Macdonald, R. A., “Recommissioning Law Reform” (1997) 35 Alta. L.R. 421Google Scholar [Macdonald, “Recommissioning”].

² A conspectus of the Law Commission of Canada is offered in Macdonald, R.A., “Law Reform and its Agencies” (2000) 79 Can. Bar Rev. 99Google Scholar, and in Macdonald, R. A., “La réforme du droit et ses organismes” in Actes de la XIV Conférence des juristes de l'État (Montreal: Éditions Yvon Blais, 2000)Google Scholar. It is a matter of some speculation whether the deletion of the word “reform” from the title of the agency was the result of (i) a decision to copy the title of the English Law Commission, or (ii) the desire to broaden the Commission's mandate beyond mere questions of instrumental law “reform”, or (iii) the reluctance to create an agency that incorporated the name of a (then) federal political party. Whatever the reason, one of the first tasks undertaken by the staff of the new Commission was to scour the OED and the Grand Robert for synonyms for the words “reform” and “réforme” to be used in Commission documents.

³ Marx reportedly said: “Hegel remarks somewhere that all great, world-historical facts and personages occur, as it were, twice. He has forgotten to add: the first time as tragedy, the second as farce.” See online: Bartleby <http://www.bartleby.com/66/53/38153.html>. Of course, were the focus of the observation to be the fact of “closure” rather than “rebirth” of the agency, the Mulroney closure of 1991 should be characterized as “tragedy” and the Harper closure of 2006 as “farce”.

⁴ I have addressed many aspects of this question in “Continuity, discontinuity, stasis, innovation” in Opeskin, B. & Weisbrot, D., eds., The Promise of Law Reform (Sydney: The Federation Press, 2005) at 87Google Scholar. This compendium is an excellent collection of essays covering all aspects of law reform. For an earlier, and equally comprehensive review of law reform agencies see Hurlburt, W., Law Reform Commissions in the United States, Australia and Canada (Edmonton: Juriliber, 1986)Google Scholar.

⁵ The point is fundamental for understanding the work of the LCC and, by ricochet, the expressed motives for the withdrawal of its funding. See, for example, Macdonald, R.A., “The Changing Dynamics of Law Reform” in Proceedings of the Law Reform 2000 Conference (Report of the Conference of Canadian Law Reform Agencies held at Edmonton, Alberta, March 28-29, 1998)Google Scholar; Kong, H., “Changing Codes and Changing Constitutions” (2005) 46 Les Cahiers de droit 629CrossRefGoogle Scholar; Macdonald, R. A. & Kong, H., “Patchwork Law Reform: your idea is good in practice but it won't work in theory” (2006) 44 Osgoode Hall L.J. 11Google Scholar. Compare, however, Hurlburt, W., “The Origins and Nature of Law Reform Commissions in the Canadian Provinces: A Reply to ‘Recommissioning Law Reform’ by Professor R.A. Macdonald” (1997) 35 Alta. L.R. 880Google Scholar [Hurlburt, “Origins”].

⁶ Law Commission of Canada Act, R.S.C. c. L–6.7Google Scholar, s. 3 [LCCA].

⁷ “If it were done when 'tis done, then 'twere well It were done quickly: …” W. Shakespeare, Macbeth, Act I, scene 7, line 1 (spoken by Macbeth), online: The Complete Works of William Shakespeare <http://shakespeare.mit.edu/macbeth/full.html>.

⁸ This concern was typically expressed in the claim that the Commission was “unaccountable”. Of course, such an affirmation confuses “accountability” with “independence”, and in any event is belied by the legislation creating the Commission and by the facts of how it performed its statutory mandate. While the Commission is independent in developing its research agenda, this is balanced by a legislated requirement to consult the Minister of Justice before the agenda is finalized (s. 5.1a). Moreover, the Minister of Justice has the power to refer issues to the Commission when necessary and appropriate; the Minister is invited to consult with the Commission before a reference is made (s. 5.1b). The Minister of Justice is required to table Commission Reports in Parliament and to respond formally to them (s. 24). The Minister nonetheless retains a broad discretion as to the nature of the response given (s. 25). The Commissioners are Governor-in-Council appointments, made following recommendations by the Minister of Justice (s. 7(1)). Finally, Deputy Minister of Justice is an ex officio member of the Commission's Advisory Council (s. 18(1)).

⁹ Initially, there were many occasions of such cooperation. For example, during the first six months of its operation, the Minister, McClellan, Anne, consulted with the LCC and asked it to undertake a reference on “Institutional Child Abuse”—see LCC, Restoring Dignity: Responding to Institutional Child Abuse (Ottawa: Supply and Services, 2000)Google Scholar. Similarly, the Deputy Minister asked the LCC to organize a conference on the implications of the decision of the Supreme Court of Canada in the PEI Judges Reference—see LCC, Setting Judicial Compensation (Ottawa: Supply and Services, 1999)Google Scholar.

¹⁰ These various partnerships and joint-ventures during my Presidency are described in detail in the first three Annual Reports of the Commission.

¹¹ See online: Canadian Broadcasting Corporation, News In Depth <http://www.cbc.ca/news/background/parliament39/budgetcuts.html>, Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/media/nr-cp/2006/0925_e.asp>.

¹² For a comprehensive elaboration see, Law Commission of Canada, Briefing Notes, November 1997Google Scholar [unpublished document formerly available on the Commission's website]. The Law Commission of Canada's Strategic Agenda (Ottawa: Supply and Services, 1998)Google Scholar and Annual Reports (1998-2006) provide further detail. See, finally, Macdonald, R.A., “In Search of Law” (Paper presented to the Annual Federal Court of Canada Seminar organized by the National Judicial Institute, Ste. Adèle, Quebec, 2 October 1998)Google Scholar [unpublished document formerly available on the Commission's website].

¹³ Admittedly, some criticisms of the Commission during hearings of the Commons Committee on Justice and Human Rights were directed to failures of performance of the Commission, although in each case the proffered critique was factually erroneous. For example, the assertions that the LCC favoured legalization of “recreational drugs” and that it recommended legislation to permit “same-sex marriages” were simply untrue.

¹⁴ See, generally, O'Reilly, J., Toward a New National Law Reform Body (unpublished consultation paper, January 1994)Google Scholar. See also Law Commission of Canada, Briefing Notes, supra note 12.

¹⁵ LCCA, supra note 6, s. 3.

¹⁶ Paradoxically, section 11 of the Law Reform Commission Act, supra note 1, gave the LRCC a similarly radical mandate. As others have noted, however, over the course of its life, the LRCC became increasingly bureaucratized, increasingly focused on legislative change and increasingly duplicative of the work of the policy development branch of the Department of Justice. See A. Macklin, supra note 1 and T. Scassa, supra note 1.

¹⁷ I mean to signal two different points here. First, the orthodox conception of law advanced by those who adopt what has been characterized as “legal liberalism” is contested politically by, among others, neo-Marxists, critical race theorists, feminist theorists, and queer theorists. Second, and more fundamentally, this orthodoxy is challenged by scholars who refuse the conflation of law and State—notably many legal sociologists and anthropologists (e.g. Santos, Boaventura de Sousa, “Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges” Review, XXX-1—2007)Google Scholar, critical legal pluralists (e.g. Melissaris, E., “Perspective, Critique and Pluralism in Legal Theory” (2006) 57 Northern Ireland Legal Quarterly 597)Google Scholar, and those who attend primarily to “living law” (e.g. Macdonald, R.A., Lessons of Everyday Law: Le droit au quotidien (Montreal: McGill-Queens University Press, 2002)Google Scholar.

¹⁸ See, for example, the Law Commission's first Annual Report (Ottawa: Supply and Services Canada, 1998Google Scholar): “the Commission recognizes the many different ideas that Canadians have about law and its capabilities. Identifying the sources and acknowledging the power of these preconceptions are necessary steps to dispelling the stranglehold that they have upon the way we conceive the possibilities for recasting the law” at 4; “…if we are to meet the challenges of developing new approaches to law and of stimulating critical debate about law, we must also work to change the way law reform has traditionally been undertaken” at 10.

¹⁹ In the list that follows, each belief is ascribed a polysyllabic word ending in “ism” as a shorthand. Obviously, the use of such jargon is the complete antithesis of the transparency and accessibility sought by the Commission in its reports and activities. For this reason, these terms never appeared in any of the Commission's work. They are noted here simply to acknowledge that these orthodoxies have ready-made theoretical labels in the jurisprudential literature.

²⁰ For a detailed development of these points see Macdonald, R.A., “Unitary Law Re-form, Pluralistic Law Re-substance: Illuminating Legal Change” (2007) 67 Louisiana Law Review 1114Google Scholar [Macdonald, “Unitary Law Reform”].

²¹ Opeskin & Weisbrot, as well as Hurlburt, supra note 4, provide comprehensive overviews of world-wide institutions that have been created on this model.

²² See, for an overview of law reform activities in Canada at the time the LCC was created, Law Reform 2000: Final Report, supra note 5.

²³ Of course, this is not to say that all university-based research in law is “curiosity driven.” See Arthurs, H. W., Law and Learning (Ottawa: SSHRCC, 1983)Google Scholar for a taxonomy of scholarly activity in Canadian law faculties that belies the “noble dream” of university legal studies.

²⁴ Restoring Dignity: Responding to Institutional Child Abuse, supra note 9.

²⁵ [1999] 2 S.C.R. 3

²⁶ S.C. 2000, c. 12.

²⁷ Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698Google Scholar; Civil Marriage Act, S.C. 2005, c. 33Google Scholar.

²⁸ Beyond Conjugality (Ottawa: Supply and Services Canada, 2001)Google Scholar.

²⁹ In pursuit of this goal the Commission contracted for several studies and sponsored colloquia, at which these studies were presented. For an overview of the Commission's approach, see R.A. Macdonald, “Perspective on Personal Relationships” (Paper delivered at the conference on Domestic Partnerships sponsored by the Law Commission of Canada, Faculty of Law, Queen's University, 21-23 October 1999) [unpublished document formerly available on the Commission's website].

³⁰ Urban Aboriginal Governance in Canada: Refashioning the Dialogue (Ottawa: Supply and Services, 1999)Google Scholar; Speaking Truth to Power: A Treaty Forum (Ottawa: Supply and Services, 2000)Google Scholar; Justice Within: Indigenous Legal Traditions (Ottawa: Supply and Services, 2006)Google Scholar.

³¹ So, for example, in cooperation with the CBC, the LCC sponsored a Round Table public consultation, town-hall meeting on restorative justice in Charlottetown that was broadcast live on CBC radio and then released as a video.

³² From Restorative Justice to Transformative Justice (Ottawa: Supply and Services, 1999)Google Scholar.

³³ See, for example, the following studies commissioned in 1999: M. Valverde et al., Democracy in Governance: A Socio-legal Framework (criminology); B. Cooper, Agency, Law and Governance (philosophy); R. Dobell et al., Citizen Agency and Social Capital (public administration); and A. Hunt, Legal Governance and Social Relations: Empowering Agents and the Limits of the Law (sociology).

³⁴ The distinction between instrumental and non-instrumental scholarship and by implication between instrumental and non-instrumental law reform research is nicely drawn in Fletcher, G., “Two Modes of Legal Argument” (1981) 90 Yale Law Journal 970CrossRefGoogle Scholar.

³⁵ Law Commission of Canada, Briefing Notes, supra note 12, section XI.

³⁶ The impact of these criteria can best be appreciated by noting the projects the Commission did not initially undertake, despite significant lobbying efforts from certain constituencies. So, for example, under the topic “social relationships”, the LCC did not develop a Criminal Code project, but focused on the social consequences of punishment (especially in connection with the poor and aboriginal peoples), and the scope of the criminal sanction (for example, in relation to prostitution, gambling and recreational drugs). Likewise, under the topic “economic relationships” the Commission did not look at bankruptcy, and focused its work in intellectual property on the impact of such regimes on consumers. Under the topic “governance relationships”, the Commission did not look at either administrative law or (except upon the request of the Deputy Minister of Justice) the judiciary, but focused on other aspects of access to justice. Finally, rather than focus on marriage and divorce, under the topic “personal relationships” the LCC examined close personal relationships, the exploitation of the elderly, and issues of intergenerational equity.

³⁷ As an interesting side-bar, the LCC also chose to present its initial Annual Reports in a “coil-bound” format, with many pictures and other graphics. Many who liked to collect books for display were dismayed by the unorthodox presentation, even though the Reports were acknowledged for their user-friendliness in competitions run by public relations organizations.

³⁸ Every month, a short President's message focusing on a different aspect of everyday law was posted on the LCC web-site. Ultimately these President's messages were collected and published in a short book entitled Lessons of Everyday Law: Le droit au quotidian, supra note 17.

³⁹ Good examples of such studies are Trebilcock, M.J. et al. , Economic Shocks (2000)Google Scholar, Does Age Matter? (2004), Is Work Working? (2004), and Crossing Borders (2006)—the last three of which were issued as Discussion Papers.

⁴⁰ Of course, this formulation was not the Commission's. It is derived from Macdonald, R.A., “Here, There and Everywhere…” in Kasirer, Nicholas, ed., Mélanges Jacques Vanderlinden (Montreal: Les Éditions Yvon Blais, 2006) at 381Google Scholar.

⁴¹ A good contemporary example can be seen in the “self-regulation” of ultimate Frisbee–a “refereeless” form of recreational activity. Presumably the deep norms of the game—avoid being bad spirited, enjoyment trumps victory, let teams police their own—provide alternatives to formal adjudication of disputes by referees. I owe this point to Emilie Paquin-Holmsted.

⁴² For further elaboration, see Macdonald, Roderick A., “Epistles to Apostles” (2001) 39 Alberta Law Rev. 688Google Scholar. The Preface to Lessons of Everyday Law: Le droit au quotidien repeats the thought: “These stories are also meant to invite reflection on the responsibility each one of us assumes as we go about coordinating our activities within a regime of rules and relationships. They remind us of our ethical obligations toward others in all our actions. In so doing, they are intended to hold us to account for our everyday behaviour. Law is a precious resource. A failure to ask what we expect of our law is a failure to ask what we expect of ourselves.” See Macdonald, Lessons, supra note 17 at 12.

⁴³ Annual Report (1998), supra note 18 at 10.

⁴⁴ See Fuller, L., “Means and Ends” in Winston, K., ed., The Principles of Social Order: Selected Essays of Lon L. Fuller, 2d ed. (Oxford: Hart, 2001) at 61Google Scholar.

⁴⁵ LCCA, supra note 6, preamble.

⁴⁶ See the essays in “Part A” of Opeskin & Weisbrot, supra note 4.

⁴⁷ See Law Reform Commission Act, supra note 1, Preamble.

⁴⁸ In view of the process dimensions of its statutory mandate, the observations of the Minister of Justice (meant to justify terminating the Commission's funding) about how other agencies could achieve the same work as the LCC are ludicrous. Every point in these Ministerial statements about saving money focuses on who else might do the substantive work, and not one is about how these other bodies will accomplish the tasks of enhancing public participation and undertaking consultations to measure impacts that absorbed 50% of the Commission's annual budget. See, the Minister's press release, online: CBC News In Depth, supra note 11.

⁴⁹ In addition, despite section 3(d) of the Act, charging the Commission with keeping the law of Canada under systemic review with a view to “(d) the elimination of obsolete laws and anomalies in the law” the Advisory Council felt that this type of work should not be a preoccupation of the Commission.

⁵⁰ Thus, in its brief to the House of Commons Committee examining Bill C-23, Modernization of Benefits and Obligations Act, the Commission argued against including a statement that the Act did not change the common law definition of marriage as being a union of one man and one women, since it was concerned to maintain a distinction between the instrumental usages to which certain concepts were deployed and the symbolic uses to which they were put. See, Brief to the Standing Committee on Justice and Human Rights, March 10, 2000. On this point, see R.A. Macdonald, “Unitary Law Reform”, supra note 20 at 1126-1140.

⁵¹ See Macdonald & Kong, supra note 5.

⁵² For a more in-depth explanation, see online: The Brewster Kaleidoscope Society Website <http://www.brewstersociety.com/types.html>.

⁵³ Macdonald, Roderick A., “President's Message” in 2000 – 2001 Report on Plans and Priorities, Law Commission of Canada, online: Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/est-pre/20002001/rLCC_e.pdf>>Google Scholar.

⁵⁴ See Portalis, J.M., Discours préliminaire au premier projet de Code civil (Paris: Lepetit jeune) at xiiGoogle Scholar: “A Code, however, complete it may appear, is no sooner finished that a thousand unanticipated question arise for adjudication. Its rules, once drafted, remain as written. Human activity, on the other hand, never stops” [my translation].

⁵⁵ One of best discussions of this point can be found in Santos, B. de Sousa, Towards a New Common Sense (New York: Routledge, 1995) at 56ffGoogle Scholar.

⁵⁶ On this point, see in particular, Jutras, D., “The Legal Dimensions of Everyday Life” (2001) 16: 1C.J.L.S. 45CrossRefGoogle Scholar.

⁵⁷ Macdonald, “Recommissioning”, supra note 1.

⁵⁸ I took this insight from Langer, S.K., Philosophy in a New Key, 3d ed. (Cambridge: Harvard University Press, 1957)Google Scholar.

⁵⁹ When the article was written in 1997, these suggestions were ridiculed by many law reform traditionalists. See, for example, Hurlburt, “Origins”, supra note 5. And yet, over the course of its brief existence, the Law Commission of Canada did many of these very things. See, notably, the Annual Reports for 2000, 2002, 2003 and 2005.

⁶⁰ Law Commission of Canada, Annual Report, 1999 (Ottawa: Supply and Services, 1999) at 14–15Google Scholar.

⁶¹ See, Briefing Notes, supra note 12, section XII, where a variety of measures focusing on (1) the objectives set out in the Preamble to the Act; (2) its legislative mandate; (3) institutional measures relating to collaborative endeavours, joint projects and public interaction activities; (4) visibility relating to web-hits, invitations to speak, newspaper stories, requests for information, etc.; (5) opinion measures within government, legal professions, the academic community in law and elsewhere, and popular media; (6) impact measures such as recommendations translated into legislative action, citations to documents, formal responses from government, references to Commission work by other agencies, and citations in Parliamentary briefs; and (7) measures related to performance deliverables collected by the Auditor-General such as number of Reports and Studies produced on time, on budget and that achieved their stated goal; fairness and integrity of the research contracting process.

⁶² In announcing the elimination of funding the Minister of Finance, James Flaherty stated: “We have uncovered numerous examples of waste and duplication.” The government identified four criteria for deciding which programs would be affected by budget cuts: (i) programs that didn't spend all the money allocated; (ii) programs that are not delivering value for money; (iii) work that could be done more efficiently outside the government; and (iv) programs that don't meet the needs of Canadians. The Law Commission was targeted because it was deemed to be a category (iii) program, see online: CBC News In Depth, supra note 11. No explanation of the factual basis upon which these conclusions were reached has ever been offered.

⁶³ See online: Department of Justice Canada <http://www.justice.gc.ca/en/dept/mandate.html>.

⁶⁴ See online: DJC <http://www.justice.gc.ca/en/dept/work.html>.

⁶⁵ See online: Canadian Forum on Civil Justice <http://cfcj-fcjc.org>.

⁶⁶ See online: Éducaloi Website <http://www.educaloi.qc.ca/en/educaloi>.

⁶⁷ For a notable example, see Mémoire sur la Loi sur la modification du Code Civil et d'autres provisions législatives, online : Barreau du Québec <http://www.barreau.qc.ca/mémoires/2002/default.html>.

⁶⁸ Canadian Bar Association, Annual Report (2006)Google Scholar.

⁶⁹ See the report in Davies, M., “Unequal Protection Under the Law: Re Charkaoui and the Security Certificate Process under the Immigration and Refugee Protection Act” (2006) 69 Saskatchewan Law Review 375, note 119Google Scholar.

⁷⁰ Macdonald, R.A., “Still ‘Law’ and Still ‘Learning’?” (2003) 18:1C.J.L.S. 5 at 7–8Google Scholar.

⁷¹ Institut québécois de réforme du droit, S.Q. 1992, c. 43Google Scholar.

⁷² See online: Uniform Law Conference of Canada <http://www.ulcc.ca>.

⁷³ See online: International Commission of Jurists <http://icjcanada.org/en/home.htm>.

⁷⁴ See ibid. “Programme of Activities and Appeal 2006-2007”, online: ICJ <http://www.icj.org/rubrique.php3?id_rubrique=37> at 2.

⁷⁵ The character of this type of law reform is critiqued in Macdonald & Kong, supra note 5.

⁷⁶ The Commission's efforts were catalogued at a dedicated page on its original web-site. That website has now been archived online at Library and Archives Canada <http://epe.lac-bac.gc.ca/100/206/301/law_commission_of_canada-ef/index.html>.

⁷⁷ Seen in this light, the government's decision to eliminate funding for the LCC can be characterized as “bad in practice” (not now, not for these reasons, and not in this way) but perhaps “good in theory” (ultimately a Law Commission should make itself superfluous).

⁷⁸ See, notably, Macklin, supra note 1; Scassa, supra note 1; see also Asbury, K.E. & Hann, R.G., Prairie Consultation on Law Reform, 1993Google Scholar [unpublished]; Canadian Institute for the Administration of Justice, Creating a New Law Reform Commission: The Judicial Perspective (1994)Google Scholar; Ashbury, K. & Hann, R.G., Department of Justice Law Reform Consultation: University of Toronto (1994)Google Scholar; O'Reilly, J., Toward a New National Law Reform Body (Consultation paper, January 1994)Google Scholar [unpublished]; Law Reform Division, Creating a New Law Reform Commission of Canada: A Consultation Paper (1994)Google Scholar; Law Reform Division, Proposal for the Creation of the Law Commission of Canada (1995)Google Scholar.

⁷⁹ Law Commission of Canada, Annual Report, 2000 (Ottawa: Supply and Services, 2000) at 17Google Scholar.

⁸⁰ Law Commission of Canada, Strategic Agenda, supra note 12 at 1, 2, 4, 5.

⁸¹ This paragraph is adapted from Macdonald, “Recommissioning”, supra note 1 at 479.