19771
COMMENTS – COMMENTAIRES
The Path of Law Reform
Introduction
An incisive observer of the law and its institutions once re-
marked that “the English barrister tends to regard the common
law as an inheritance to be preserved and technically perfected
without being in any way altered”.” The same thing has been said
of the Continental civilian lawyers. When the focus shifts to Cana-
da, where both systems operate, it is easy to see that all of us in
the business of law are far more comfortable with formally per-
fecting received rules and procedures than we are with moulding
the law to the needs of the social ends that law serves.
Law is said to be legitimate when it is made and has not been
annulled or repealed in the constitutionally-prescribed way. This,
however, tells us nothing about whether the law, no matter if it
originates from the courts or legislatures, is wise, fair or consistent
with our professed ideals. These latter attributes of law are not
functions of the “legal” legitimacy of law so much as they are
measures of its legitimacy in society. And law, as John Dewey
pointed out, “is through and through a social phenomenon; social
in origin, in purpose or end, and in application”.2
One of the great unsolved problems facing the legal profession
of the 20th century (and we include here the bench and government
lawyers as well as the bar) has been the doctrine which demands
that we concede legitimacy to almost every rule or doctrine that
emanates from the Sovereign and is printed at state expense.
Further, as the number of persons clothed with state power in-
creases, our ability to test the official behaviour of those who act
“under colour of law” seems to be decreasing. Holmes said in the
19th century that law was a guide to official action. In the 20th
century it may be more accurate to say in some cases that official
action is a guide to law, and in others, that law is often and un-
fortunately invoked as a means of regularizing or making tech-
nically “legal” whatever happens to be done by the state’s bureau-
cracy, courts or, to quote Mr Justice O’Halloran of the British Co-
lumbia Court of Appeal, by “the dominant party then in control
of the machinery of the State”3
‘Shklar, Legalism (1964), 14.
2 Dewey, My Philosophy of Law (1941), 76.
sRex v. Hess (No.2) [1949] 4 D.L.R. 199, 206.
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The Canadian Bill of Rights4 was an attempt to ensure that
the ideals of our law find expression in the actions of those clothed
with legal power. It was not a very successful attempt, as we know,
but the jury is still out on its ultimate fate. The problems it ad-
dresses itself to, however, are very real, and in a sense define the
task, not just of law reformers, but of everyone in the legal pro-
fessioi across Canada: the control of arbitrary official behaviour;
equal treatment; fairness; prevention of irrational discrimination;
and ensuring results that are “just” rather than results that are
defined as “just” for no other reason than the fact that they are
“legal”. Law cannot elevate itself into justice simply by tugging
on its own bootstraps.
To achieve these goals we require more than skilled lawyers
and a wise bench; it is fair to say that we have both.’We also
require a continuing and systematic review of what the law does
and why it does it, with the results we actually achieve being
repeatedly tested against what we know we ought to be achieving.
We need to always ask ourselves, and never fear to ask ourselves,
whether we are living up to the ideals and logical implications of
the democratic premise. To assist in this task, Canada, along with
most other jurisdictions that share our heritage of parliamentary
democracy, has created a Law Reform Commission.’
4 S.C. 1960, c.44 as am. by S.C. 1970-71-72, c.38, s.29.
5 The Law Reform Commission of Canada owes its formal existence to
the Law Reform Commission Act, R.S.C. 1970, c.23 (1st Supp.), as am. by
S.C. 1974-75, c.40. Since the Commission established its first research pro-
gramme in 1972 it has published twelve study papers relating to the reform
of the laws of evidence, criminal procedure, substantive principles of
criminal law, family law and the law relating to computers and banking.
In addition, the Commission has published seventeen working papers since
1974 dealing with pre-trial discovery procedures and diversion, specific
issues in the substantive criminal law, criminal procedure, sentencing and
alternative criminal sanctions, family law, Commissions of Inquiry, and
the family court. The Commission has presented seven Reports to Parlia-
ment: 1. Law of Evidence Project; 2. Guidelines on Dispositions and Sen-
tencing in the Criminal Process; 3. Our Criminal Law; 4. Expropriation; 5.
Mental Disorder in the Criminal Process; 6. Family Law; and 7. Sunday
Observance. The Commission’s present programme includes an examination
of a number of seminal issues in the relationship of law to society: pro-
cedural fairness in the administrative process, the law relating to sexual
(which itself
offences, contempt of court, and
includes such topics as euthanasia, the definition of death, and consent to
medical treatment).
the protection of
life
1977]
COMMENTS – COMMENTAIRES
Democracy, “lex”‘ and “jus”
Our courts have accepted parliamentary supremacy since at
least 1688. It must be remembered, however, that Parliament did
little that was inconsistent with the common law until the last
century. It was quite easy for the courts to concede theoretical
supremacy to Parliament while continuing to keep the common law
contemporary through a change here, a new approach there, and
a general policy of unassuming judicial activism.
When Parliament was democratized in the great reforms of
the early 19th century the assumption of the legal philosophers,
led by John Austin,6 was that all significant policy questions could
be successfully dealt with by the legislature. This was the legal
profession’s contribution to the democratic ideal: the removal of
legislative power from a narrow judicial elite.
When, however, the bench retreated from imposing its non-re-
presentative social, moral and political views as law (something
that must be counted as a great advance in democratic political
theory), the judges, and consequently the lawyers, also laid down
their centuries-old burden of systematically modifying, adapting
and nudging forward the great mass of rules, doctrines, standards,
precepts, ideals and guides to determination that collectively make
up “law”. Although we have been slow to perceive it and slower to
respond to it, the very chemistry of the legal process has changed.
Since the mid-1800’s the formidable energies of the bench and bar
have concentrated on the perfection of law received from the past
as a consistent system of rules, on the theory that Parliament
would carry the ball of change. Lawyers and judges became almost
wholly occupied, and in too many instances, preoccupied with lex
not jus. Parliament, on the other hand, has often appeared not to
grasp the implications of this shift in legal doctrine, as if we still
had judges with the mandate of Lord Mansfield to straighten things
out when serious difficulties arose.
If the experience of the 20th century has shown anything, it is
that parliamentary institutions have not been able to duplicate
the great work of the legal profession in keeping the ordinary law
responding to the dynamics of hundreds of thousands of individual
cases. The assumptions of the 19th century legal philosophers have
not always coincided with the priorities of, and massive demands
placed upon, a contemporary Parliament.
6 See Austin, The Province of Jurisprudence Determined (1861).
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As the judicial system withdrew from the business of creative
adjustment of relations in a rapidly changing society, it became
less and less responsive to the need for the development of new
approaches to new social phenomena which is an integral part of
a civilized system of government. Parliament neither can, nor has
been able to, identify and take a vote on every minor aspect of law
and procedure that is rendered obsolete by the substantial changes
created by education, communications, population shifts, science
and all the other modern phenomena that have assaulted the
practices and verities of the past. On any particular point, use of
the machinery of Parliament to continuously readjust minor rough
spots in law would be like using a cannon to kill a fly. In the long
run, however, minor rough spots eventually develop into serious
legal problems involving large blocks of interrelated doctrinal
structures.
The consequences have been threefold. First, Parliament has had
to turn increasingly to the administrative process and the bureau-
crat to make the vast number of individual value judgments and
decisions required by life in the 20th century. The administrative
system is growing and the legal system is shrinking, and with it is
diminishing the traditional role and relevancy of the legal pro-
fession.
Secondly, policy being consigned to Parliament, the justification
for movement and growth in what remains of the legal system
must be found in the past, in precedent and established doctrine.
As John Dewey pointed out, this “merely puts an artificial premium
on ideas developed under bygone conditions ‘ 7 –
a situation that
tends to seriously confine the scope of the contribution the legal pro-
fession is able to make to the perplexing demands of government
under law in the 20th century.
Thirdly, we all know that the law has grown in the last century.
But, because of the formal consignment of policy to Parliament,
the changes that have occurred have been concealed under the
doctrine that judges only “find” law, not make it. We agree with
John Austin’s view that this is “a childish fiction”.8 Further, it is
a dangerous fiction. The democratic ideal claims that judges do not
legislate even though experience has shown that Parliament cannot
close the gap between what is and what ought to be. Social evolu-
tion, however, proceeds according to its own dynamics, with little
regard for whether or not the law is able to keep up. Consequently,
7 Dewey, Human Nature and Conduct (1922), 239.
BAustin, Lectures on Jurisprudence 3d ed. (1869), Cambell (ed.), 655.
19773
COMMENTS – COMMENTAIRES
lawyers and judges are being presented daily with increasingly
novel problems for which they must find answers, without being
allowed to openly recognize that the production of appropriate
solutions, “just” solutions if you will, often requires them to tres-
pass into Parliament’s domain.
In pursuit of democracy we have created a system whereby the
courts do not, in theory, legislate, yet where they sometimes must
in fact, without official acknowledgment, make substantial changes
in the social fabric through law. As a matter of political and legal
philosophy we recognize that -law-making by non-elected judges
is undesirable. A democracy, it is said, follows a theory that
judges only apply law, while the people make law through their
elected representatives. As a matter of actual practice, we may be
drifting dangerously close to the worst of both worlds. The lawyer’s
art at this stage of the 20th century is not only to know the law but
also to know the code for concealing social and economic change in
the interstices of jargon, precedent and legal fiction. The results are
often unsatisfactory, some judges adhering strictly to what has been
decided and others venturing into new territory, all doing their
best to follow the ideal of fidelity to law.
We recognize on one hand that laws do not interpret or apply
themselves and we also know that these tasks involve an appraisal
of the temper and mores of the times. On the other hand, because
“policy” is for Parliament, we suppress all mention of, and reason-
ed argument relating to, the policy motivations behind certain
decisions. Whatever they are, and we can be sure they exist, they
must remain hidden, unacknowledged, and unarticulated.
There is then, a doctrinal inability to recognize and debate
judicial legislation on its merits, and therefore an inability to
develop a rational -doctrine of judicial change in law that ensures
consistency with the views of a nation committed to democracy.
The Canadian Bill of Rights could have given us a vehicle for this,
but it has not so far been effective. This, together with the lack
of adequate response mechanisms available to Parliament and the
impact of the demands of our post-industrial society, has resulted
in a concealed revival of a practice that John Austin thought he
had consigned to the mediaeval scrap heap. Judge-made law is
growing today, but its growth is not controlled by the public
scrutiny of all exercises of state power (and judicial law-making is
such an exercise) that democratic theory anticipated. Such scrutiny
is no less healthy for the legal than for the political system. Without
it, every judge is isolated from the experience and collective social
wisdom of the bar and the rest of the bench. We therefore expect,
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in matters where the judge must legislate and there is nothing else
to guide him, that he will rely on his individual sense of justice. In
most cases, this reliance has certainly not been misplaced. But in
the long run, and law reformers must never lose sight of long-
term considerations, this “might result in a benevolent despotism,
if the judges were benevolent men”?
Constitutional Dimensions of Law Reform
Those who enacted the Canadian Bill of Rights and those who
later created the Law Reform Commission of Canada were aware
of these problems. The very existence of all law reform agencies
in this country is a reflection of the fact that the existing mecha-
nisms for legal response were falling unacceptably far behind
social need. Canadian society requires a principle of growth in
law that can help democratic practice coincide with democratic
theory. The Commission’s mandate, as we have interpreted it, em-
braces law in its widest sense. It follows that the larger problems
we have discussed cannot properly be, in our view, divided into
neat categories of “legal”, “social” and “economic”, with law re-
formers concentrating only on the “legal” and leaving the rest to
someone else. Though we have tried, there is no valid way we can
twist the definition of law so as to make social and economic
considerations immaterial to justice.
It would be facile for us to claim or for anyone to assume that
the law reform movement in Canada is going to straighten every-
thing out. It is nothing more and nothing less than one form of
commitment by Parliament to the search for solutions, as well
as representing a new institutional development in a governmental
structure that was created by evolution and which must continue
to evolve. There can be no doubt that law reform can suggest
some useful solutions. It may be, however, that in the long run
its major contribution will lie less in what it answers than in
what it questions.
One major aspect of our work involves recommending the
removal of anachronisms and anomalies in law. This is mainly law
as lex and deals with rules which no longer serve any purpose or
which conflict with other rules. The Canadian Bar Association and
other lawyers’ organizations have spoken out on the need for this
9 Cardozo, “The Nature of the Judicial Process” in Selected Writings of
Benjamin Nathan Cardozo (1947) Hall (ed.) 107, 163.
1977]
COMMENTS – COMMENTAIRES
sort of change for years, and it has certainly been needed. Although
the courts have continued to move the law along in many areas,
the definitive division of function reached in the 19th century
between Parliament and the judiciary means that the legislators,
not the judges, are responsible to the people for the ongoing
modernization of all Canadian law. We, therefore, are undertaking
the development of a programme which will be aimed at examining
and revising the hundreds of outdated minor and annoying rules
(whether in federal statutes or in the common law that lies within
federal legislative jurisdiction) and plan to present such proposals
for change to Parliament as part of an ongoing process. Taken in-
dividually, each change will be unextraordinary and perhaps mun-
dane. Collectively, however, such changes would represent the
practical and systematic, as opposed to the theoretical and sporadic,
assumption by Parliament of responsibility for continuing the
great task of construction of our legal system that has all too often
and all too unfoftunately fallen between two stools over the past
century.
In this sense, the mission of the Law Reform Commission of
Canada, and indeed of all such commissions, will be to make a
contribution towards assuring that the democratic institutions as
originally envisaged are able to function effectively under the awe-
some impact of 20th century realities. This programme will be
concerned almost exclusively with what is sometimes fashionably
disparaged as mere “black-letter” or “lawyers’ law”. It cannot be
doubted, however, that the past inability of our system to respond
effectively to the host of minor problems repeatedly experienced
by the legal profession in the task of ensuring that every Canadian
gets justice, constitutes one major, if not overwhelming, problem.
We regard this part of our work as one of our most significant
responsibilities.
A second important aspect of our mandate which, among all
law reform agencies and commissions in the world, we believe is
unique to the Law Reform Commission of Canada, is:
the development of new approaches to and new concepts of the law
to the changing needs of modern
in keepifig with and responsive
Canadian society and of individual members of that society.10
Parliament has given us a broad definition of law, one which
reflects the role of law in Canadian society rather than the role of
law in Canadian courts.
1OLaw Reform Commission Act, R.S.C. 1970, c.23 (1st Supp.), as am. by
S.C. 1974-75, c.40, s.11(d).
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Unfortunately, the education, training and experience of mo-
dern lawyers is almost exclusively oriented to the judicial aspect
of the legal system. Lawyers fall into the pattern of interpreting
experience through the norms established for them by courts in
deciding cases. To say a fact exists means that it can be proved
to exist after passing through the screen of the rules of evidence,
and therefore has some consequence to the outcome of- a legal
encounter. To say something is relevant means relevant in terms
of whether it affects the course of legal events, and not socially
or economically relevant. Things that do not legally exist or are
not legally relevant are someone else’s responsibility. In the classic
approach of the last century of jurisprudence we say these things
are matters of “policy”, or belong to the realm of “politics” which
cannot be allowed to interfere with the determination of individual
rights and responsibilities, which is the business of law.
The fidelity with which lawyers and judges have maintained
this distinction has led to court decisions that are beyond doubt
absolutely independent of notions of political expediency and which
have not subjected individuals’ rights to the whims and vagaries
of various popular movements and trends. This is not only laudable
but essential to a civilized system of justice.
Court work, however, is only a small part of what lawyers do. As
we said at the outset, and indeed as the Chief Justice of Canada has
said, law is a social discipline” and as such has a great contribution
to make to the growth and structuring of every aspect of Canadian
society. That contribution is artificially confined when lawyers see
their role outside the courtroom as circumscribed by the limits
that exist for very good reasons within it. As one political scientist
from Harvard University wrote:
The habits of mind appropriate, within narrow limits, to the procedures
of law courts … have been expanded to provide legal theory and ideo-
logy with an entire system of values. This procedure has served its own
ends very well: it aims at preserving law from irrelevant considerations,
but it has ended by fencing legal thinking off from all contact with the
rest of historical thought and experience. 12
That the reform of the law is of a broader nature than its practice
has been acknowledged in the mandate given to us by Parliament.
We are required, then, to see law not just as logic, precedent and
analogy, but also, in Cardozo’s words, as “philosophy, history,
11 Laskin, A Judge and his Constituencies (1976) 7 Man.L.S. 1, 11, 14.
12 Shklar, supra, note 1, 2-3.
1977]
COMMENTS – COMMENTAIRES
custom and social justice” in a system in which “the final cause of
law is the welfare of society”? 3
Without a deliberate, conscious and systematic questioning of
the grounds of doctrines we take for granted, a person trained in
the classical legal method of “imitation of our fathers” will, in
Holmes’ words,
hesitate to affirm universal validity for his social ideals, or for the
principles which he thinks should be embodied in legislation.
… He may be ready to admit that he knows nothing about an absolute
best in the cosmos, and even that he knows next to nothing about a
permanent best for men.’ 4
Holmes, however, felt that this professional self-restraint, this
excessive reliance on legal authority to the exclusion of experience,
became, at some point, inbred. He therefore called for lawyers to
examine the received law with:
An enlightened skepticism … a deliberate reconsideration of the worth
of those rules. When you get the dragon out of his cave onto the plain
and in the daylight, you can count his teeth and claws and see just what
is his strength. But to get him out is only the first step. The next is
either to kill him or to tame him and make him a useful animal. For
the rational study of law the black letter man may be the man of the
present, but the man of the future is the man of statistics and the
master of economics.15
To Holmes’ “statistics and economics” we suggest adding psy-
chology, sociology, psychiatry and all the other sciences and disci-
plines that have since come to maturity. Insofar as its content
spans the whole range of human activity, law reform is an inter-
disciplinary undertaking no less than law itself. If we fail now to
reach out to other social disciplines, justifying this failure by some
theory that what they have to say is not “legal” and is therefore
not relevant, we run the very serious risk of needlessly fostering
the movement within government over the last century to turn to
other agencies and structures outside the judicial system for a
practical adjustment of significant human problems. This has hap-
pened before, when the common law system became so rigid
and closed to new ideas that the Crown had to step in and provide
justice, as opposed to law, through the prerogative courts and
Equity. The monumental growth of bureaucracy in the 20th century
is a duplication of the same phenomenon. Those who do not un-
derstand their history will be condemned to relive it.
13 Cardozo, supra, note 9, 133.
34 Holmes, The Path of the Law (1896-97) 10 Harv.L.Rev. 457, 468.
Is Ibid., 469.
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It would seem that nobody wants “big government” yet the
bureaucrats for all the abuse that is heaped on them, are the most
important means by which the modern system delivers to every
man his due –
a result that has been synonymous with “justice”
during the entire history of Western civilization. Unless our tra-
ditional system of fixed laws, known rights, confrontation with
accusers and all the rest of what we lawyers hold to be fundamental
is to be eventually reduced to an insignificant role in our society, so
that men look to government and its functionaries rather than ‘to
law as the source of rights, liberties, duties, and freedom itself,
then we must open our courts, our law and more important, our
minds, to the influences that shape public attitudes and expectations
in contemporary society.
This is one way we interpret the mandate given to us by Parlia-
ment: to reach beyond those concepts and boundaries that de-
termine what may properly be considered by an appellate court;
to break through the iron gates of formalism; and, by the use of
a multidisciplinary approach, to bring into the formulation of
law the vast range of insights into the human condition that we,
as lawyers, in a different context, so rigorously exclude from its
application.
The Constituencies and Dynamics of Law Reform
Law is one of the few disciplines dealing with the public which
makes little effort to discover if its consumers are satisfied. From
the highest court to the newest law student, all recognize that
law exists to serve the public interest, yet those who have solved
the extraordinary complexities of future interests (and can un-
derstand the Rule in Shelley’s case) have never managed to develop
any mechanisms of comparable sophistication to find out what the
public thinks about the law or how it could be improved. We
would be pleased to announce that we have found the perfect
formula, but perfection has a tantalizing way of remaining beyond
human grasp. We can say, however, that we regard the public,
along with the bench and bar, as our constituency and in many
ways, our most important constituency.
It is easy to now acknowledge that when a disputed title in
a quite ordinary 14th century land transaction was settled by a
lawsuit in which the fictitious Richard Roe was accused of trepass
vi et armis, and the equally fictitious John Doe was forcibly dis-
possessed, the public interest was not particularly well served.
Perhaps it even occurred to a few members of the public to ask
1977]
COMMENTS – COMMENTAIRES
their lawyers what all this rigamarole was about and what these
Doe and Roe people had to do with it. If so, they were doubtless
soothed by references to the occult majesty of the law.
That little corner of conveyancing was tidied up in a matter
of three or four hundred years, but it is as close to moral certainty
as we can get when we express the opinion that the ghostly des-
cendants of John Doe and Richard Roe still keep the meter running
in more than one law office. It is instructive, for example, to
compare the response of some members of the bar to the public
support of the Law Reform Commission’s recent proposal that
marriages no longer be ended by an accusatory, usually fictitious,
certainly corrosive and always expensive lawsuit. It was very
much as if a 14th century bar convention had been presented with
a proposal for a Short Form of Deeds Act.
The point we are making is that the public interest does not
always coincide with the interests of lawyers or of judges for that
matter. No one is suggesting that we take a survey or hold a
plebiscite every time a law is changed. But communication with
the public, as well as with the bench and bar, is an integral part
of law reform.
the deficiencies
Communication is a two way street. It has been our experience
that an informed public can appreciate what lawyers and judges
do and can understand, in light of the pressures, uncertainties and
in the
demands placed on legal professionals,
system. But they can also understand a great deal better than we
may think, and they tell us so, the difference between difficulties
required by justice and difficulties created by the tribal customs of
the law. The Law Reform Commission of Canada does not exist
to further the interests of organized lawyers or of judges’ associa-
tions any more than it is an arm of the government of the day.
Where it is our considered opinion that governments, lawyers or
judges follow traditional legal patterns that neither further the
cause of justice nor serve the public interest, we can and must
propose reform.
Since we deal with unsolved problems, it is inevitable that our
work will take us to the heart of controversy. Law has always
managed to paper over its significant problems with legal fictions,
conceptual arabesques, uneasy compromises and conspiracies of
silence. It is not possible to lift the lid on such matters without
aggravating old wounds and disturbing conceptual castles where
justice is thought to reside, although it may be often as an un-
willing guest. We would seldom annoy anybody if we concentrated
McGILL LAW JOURNAL
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all our efforts on the Statute of Limitations, or were exclusively
occupied with black-letter law, though, possibly, our very existence
may annoy a few. Parliament, however, has required us not only
to propose reform of the law, but also new concepts of the law,
and we cannot do that without asking people to surrender a part
of what is known, what is familiar and what is comfortable.
Over the doors of one of our great western Canadian law schools
is the motto, Fiat Justicia Ruat Coelum, “Let Right be Done, Though
the Heavens Should Fall”. Some, however, would have us translate
such safely theoretical invocations to righteous deeds as “Reform
the Law but for Heaven’s Sake don’t Change Anything”. If the
heavens do fall, then we would doubtless be prepared to entertain
suggestions that we had gone somewhat too far, too fast. In the
absence of that unlikely eventuality, however, rather than bracing
against disaster, we who are associated in the task of law reform
will continue, with the good will and assistance of all those involved
in the legal system, to devote our primary energies to making
some contribution towards leaving the law a bit more understand-
able, a bit more fair, a bit more humane than we found it. We
are prepared to debate the wisdom and necessity of every reform
we propose and the validity of the particular process we have
adopted in order to formulate our proposals. We are not, however,
prepared to concede that the necessity for law reform, on a
systematic and ongoing basis, is even open to question at this
stage in the development of our legal system and its institutions.
It is gradually sinking into professional and public awareness
that reform of the law involves not only debates and motions at
the bar conventions and in the law schools but also the very real
necessity for choice and change. Because these do not come easily,
and as it has become apparent that the Commission is not just a
way of giving professors something interesting to do or giving
lawyers and judges a break from their jobs, our work has resulted
not only in warm support and encouragement but also in some
discomfort.
Debate means discussion of ideas, confrontation, challenge and
response. The debate begins at the Commission and continues with
the bench, the bar and the public. Our whole approach to our task,
starting with the publication of study papers, building towards
tentative proposals in working papers and arriving at recommend-
ations in our reports, is predicated on the idea that law reform is
not an isolated exercise or wise thoughts in a vacuum. Rather, it
is a process of determining the policy preferences of the community
in which all members of the community can and should participate.
1977]
COMMENTS – COMMENTAIRES
This often requires months and years. Law reform is still too
new to have built up a body of aphorisms and maxims but there
is one that we think is ready for publication now: “Reform
in
haste, repent at leisure”. Putting together a reform package that
combines the legislative power of Parliament with the views of
the bench, the bar, other disciplines and the public takes time; time
for views to be conceived, time for propositions to be formulated,
time for cautions to be expressed and time for alternatives to be
proposed.
Reform on a Fundamental Level
Whatever may have been its shortcomings, judicial law-making
was generally accomplished on a conceptual as well as a practical
level. It was slow, but it kept legal theory abreast of legal practice.
Legislative law-making, like the pace of social change over the past
century or so, has been faster but has not been particularly con-
cerned with the theoretical or conceptual part of our law. This is
precisely that part of the law, however, that must provide the
supporting struct ure for all change, no matter how evident the
need for some prz gmatic improvement in areas of detail.
As the experience with the Canadian Bill of Rights has shown,
a change of any significance which leaves untouched the entrenched
starting points for legal reasoning is handicapped from the outset
because of its inconsistency with fundamental conceptions that,
notwithstanding invocations of the supremacy of Parliament, are
more authoritative than specific legislative content. Unless par-
ticular reforms can, where necessary, be coupled with more complex
structural alterations, many changes in specific legal content or
practice are predestined to characterization as subversive of a
system that has a ruthless efficiency in dealing with threats to the
integrity of its internal logical patterns. Isolated reform efforts
may fail not because they are unwise –
a conclusion that the legal
system, at least officially, generally tries to avoid making – but
rather because they are simply inconceivable. We all know how a
case that raises disturbing problems on a fundamental level can
be effectively finessed into some legal limbo by the device of saying
it must be “confined to its own particular facts”. The same fate
can be just as authoritatively assigned to superficial legislative
reform through legitimate manipulation of the canons of inter-
pretation.
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[Vol. 23
One of the main objectives of the Law Reform Commission is
therefore to examine, always thoroughly, sometimes exhaustively,
the common law canvas upon which any particular reform is to be
painted, so as to provide Parliament not only with the particular
formula for achieving a desirable goal but also with the blueprint
for structural change in the common law foundation for any new
legislative programme.
Such reform approaches include making available to Parliament
a contemporary and legislatively-appropriate version of the signi-
ficant factors that guided those who were engaged in the great
task of building the common law from the bench. In addition to a
thorough restatement of the structural or “legal” dimensions of any
proposed course of action, there must be included an analysis of the
social and economic implications of suggested reforms and our per-
ception of the individual and public interests which the reform seeks
to secure, modify or advance. As opposed to the idiosyncratic
elements of traditional judicial law-making, in which the ultimate
result was far too often the product of the narrow facts of a particular
case as perceived by a single judge, we make every effort to sup-
port our recommendations with objective data gleaned from a
broad interdisciplinary base.
Because law reform deals not only in rules but also in legal
abstractions, a reform programme, once formulated, may some-
times appear to be objectionally radical, especially to those whose
professional experience and perceptions of the need to maintain
the integrity of established expectations incline them, especially in
conceptual areas, towards defining the acceptable limits of change
in terms of what is legitimate within the judicial process. Legal
professionals are also often uneasy with legislative reforms on a
doctrinal level not only because we have had so little experience
with them but also because the past record of parliaments in such
matters, such as it has been, has sometimes unfortunately failed
to create confidence that alterations necessarily mean improve-
ments. A law reform commission must always be sensitive to these
apprehensions and where it finds that they are well-founded in-
terms of the public as well as the professional interest, must
adjust its reform programmes accordingly. Notwithstanding any
of this, however, one of a law reform commission’s essential public
responsibilities is to avoid confining itself to superficial, isolated,
ad hoc and “safe” changes to a system that requires an institution
for examining much of our basic approach to, and way of thinking
about, law.
1977]
COMMENTS – COMMENTAIRES
Tradition and transition
If the last century was one in which men of firm, if not ne-
cessarily well-founded, social conviction and moral certainty forged
and clearly articulated the heritage of basic principles we use
and we think, with respect to most approaches to contempo-
–
rary legal problem-solving, that this view is accurate –
then
the modern experience must be characterized, if we are to be
candid, as one of caution often bordering on ambivalence, distrust
of the truth of our discoveries about ourselves and a not-quite
impalpable want of confidence in our abilities to duplicate the
great work of our predecessors in law. We certainly have among us
men and women no less able than they, but the mantle of those
who did not hesitate to make decisive pronouncements on issues
that we can see, in retrospect, were more complex than was ap-
parent to nineteenth century eyes, does not rest comfortably on
the shoulders of many legal professionals in our more pluralistic
age.
Unfortunately the thrust of our philosophical heritage, with its
emphasis on uncompromised authority, its need to justify the
classic winner-take-all result, and its formal commitment to finding
solutions in the form of the “true rule”, often proves inadequate
as a vehicle for the necessary confrontation of our ambiguities.
Although it is only satisfactory as a short term technique for con-
solidating gains and assessing alternatives, the experience of the
20th century looks more and more like a long term reliance,
both legislatively and judicially, on the device of seeking respite,
if not refuge, in muddling through on a case-by-case basis.
The appreciation we have of the multifaceted nature of many
significant issues that now arise for resolution through law seems
to have had two results. First, there has been a retreat from the
simplistic practice of laying down judicial fiats as if they were
inevitable expressions of social or economic policy -aimed at the
permanent best of mankind, destined from -all time to be un-
folded by the legal system. This, if anything, is consistent with
-what we have learned in this century about the human condition.
Secondly, however, we also seem to have generally underemphasized
the need for the legal system to assert its authoritative voice in the
framing of our contemporary goals. This is seriously inconsistent
-with the fundamental rights of the public to due process of law
in a democratic society.
These results may be attributable, at least in part, to the fact
that we have a system, legislative as well as judicial, that is still
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conceptually geared to respond to the needs of a society in which
social change was evolutionary rather than revolutionary. In addi-
tion, the jurisprudential approach in legal education no less than
in our appellate courts still has not given us the intellectual illumin-
ation by which we can critically examine such things as traditional
prohibitions concerning the folly of questioning authority or the
wisdom of an inheritance that assures us it is better that a rule
be settled than it be settled right.
Our hesitancy may be understandable and our prudence admir-
able, but our results are too often neither. We can no longer
afford the misleading comfort of continuing to build for the 21st
century using 19th century tools.
Edward F. Ryan* and
The Hon. Mr. Justice Antonio Lamer**
* B.A., LL.B., LL.M., Barrister and Solicitor of the Ontario Bar, Law
Reform Commission of Canada.
** Judge of the Superior Court of Quebec, Chairman of the Law Reform
Commission of Canada.
