Busy Fall for Law Commissions

I have always loved law reform commission reports. They are great sources for legal research. Many of the reports provide historical background on an issue and you can often find comparative information about how other jurisdictions have responded to a legal problem.

My highlights from the fall of 2011:

• Of course, the great news is that all of the reports of the former Ontario Law Reform Commission have been digitized (as reported December 12 right here on Slaw)
• The British Columbia Law Institute (BCLI) is launching a two-year project to consider reforms to judge-made rules governing when a person is determined to have the mental capacity to carry out a transaction or enter into a relationship
• Earlier this week, the Law Commission in England published its final report on Intestacy and Family Provision Claims on Death. The report proposes 2 draft bills to bring inheritance law into line with the needs and expectations of modern families, and simplify the law to help the bereaved deal with the property of a deceased family member.
• In late October, the Law Reform Commission of Ireland released its Consultation Paper on Sexual Offences and Capacity to Consent. In the Consultation Paper, the Commission made 15 provisional recommendations for reform, including the repeal and replacement of the existing law on sexual offences involving persons with intellectual disability. The Commission argued that section 5 of Ireland’s Criminal Law (Sexual Offences) Act 1993 (a) fails to protect people with intellectual disability from unwanted sexual contact generally and (b) fails to empower people with intellectual disability to realise their right to sexual expression (it does not clearly provide for situations of consensual sex between two persons with intellectual disability). The Commission also looked at practices and laws in England and Wales, Scotland, Canada, and New Zealand.
• In September, the British Columbia Law Institute released a Report on Proposals for Unfair Contracts Relief: “This report recommends reforms to the leading concepts used by contract law to tackle the problem of unfairness. These concepts are unconscionability, duress, undue influence, good faith, and misrepresentation. Over the past years, they have been considered in an increasing number of court decisions. This has led to an expansion of, and a degree of confusion about, their scope. It is now timely to rationalize and consolidate these concepts.” The BCLI website also includes a consultation paper on the issue as well as 4 backgrounders.
• The Alberta Law Reform Institute (ALRI) released a discussion report on Estate Administration.

Of course, people often ask whether law reform commission reports have any real impact. Not always, but sometimes. In November, the proposed Family Law Act was introduced in the British Columbia legislature after a major review of family legislation in the province. It is intended to overhaul the Family Relations Act. The proposal contains recommendations for changes to family law contained in four reports of the British Columbia Law Institute:

• Report on Pension Division on Marriage Breakdown (BCLI Report No. 44, 2006);
• Report on the Parental Support Obligation in Section 90 of the Family Relations Act (BCLI Report No. 48, 2007);
• Report on Appointing a Guardian and Standby Guardianship (BCLI Report No. 30, 2004); and
• Report on the Need for Uniform Jurisdiction and Choice of Law Rules in Domestic Property Proceedings (BCLI Report No. 1, 1998).