Using Law Reform Materials for Research: An Agency’s Perspective

Kim Nayyer’s column on the use of law reform agency materials for legal research has prompted me to talk about how the Law Commission of Ontario thinks about this very issue. Use of law reform commission materials by others can be a major source of a commission’s reputation.

Every law reform commission likes to see its recommendations implemented by government, in full or even partially, and, taking a peak at the Annual Report of the New Zealand Law Commission, there’s no question it looks good when commissions can provide listings of reports that have been translated into legislation. When the LCO has decided that having its recommendations implemented or at least introduced in legislation isn’t just a fluke (see Bill 133 with its amendments to family law, including division of pensions as property), we will probably develop these lists, too. But this is pretty hit and miss and therefore law commissions have developed other measures of success. The LCO has included a number of measures in its Strategic Plan. And this takes me back to Kim’s column.

A number of these measures rely on the use by others of LCO discussion papers, reports and the like as research materials by academics and legal researchers for government, not only in Ontario, but also in other jurisdictions, and the judiciary. We do not expect to see much of this in these early days and we are unlikely to have any success in this regard unless our mandate is renewed (and we won’t always know whether our materials have been used or not), but using these measures does influence how we do our work, particularly with respect to the larger projects. One Australian law commissioner has suggested that law reform reports “provide an enormous contribution to legal history, through the mapping of law as at a particular moment in history”, and I’d agree that a report that has been done well, does that.

I’d go further and say that law commission reports, particularly those relating to large projects, must also attempt to relate the law to other disciplines and to experiential knowledge to portray a much larger understanding of how the interrelationship among them can increase access to justice. In brief, the quality of law commission work must give it a reputation as reputable law research materials, whether it involves the long projects that allow for the completion of much diverse research or the short technical projects that are more limited in approach, but in addition must have value outside the particular project as a significant addition to the body of knowledge in a particular case. At least that’s the goal and for these a discussion about the pros and cons of recommendations about legislative action simply won’t do.

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