Hidden Treasures for Legal Research: Law Reform Commission Reports

I occasionally like to draw attention to the wealth of information that can be found in law commission reports.

When I help people with research or do a training session, I like to remind them that law reform bodies often deal with important public policy issues that are not on the government agenda but may nevertheless require critical analysis and potential reform. And judges who often need to address difficult or novel legal issues do refer to law reform publications in their judgments [a simple caselaw search in CanLII for the expression “law reform commission” produces close to 1700 results]. There are similarly high numbers for the caselaw in other common law jurisdictions.

In particular, I like the fact that many law commission reports conduct widespread consultation with stakeholders, compare how other jurisdictions deal with the same problem and frequently dig into the history of an issue. I once found a New Zealand Law Reform Commission project on the reform of the law of trusts that began with an introductory paper that included an analysis of the the origins of the concept of trust, all the way back to an old English statute in 1264, up through the Middle Ages, the reign of Henry VIII and into the modern era.

The past few weeks have a very busy time for law reform commissions. A sampling of reports:

• Law Reform Commission of Ireland Report on Mandatory Sentences
  From the press release: “The Commission’s Report discusses in detail: (1) the specific aims of criminal sanctions, which include deterrence, punishment, reform and rehabilitation, reparation, and incapacitation; and (2) the key principles in sentencing of consistency and proportionality. The Report contains a detailed analysis of sentencing guidance given by Irish courts in recent years, which have included: (a) the points of departure in the sentencing of certain serious offences, such as manslaughter, rape and robbery; (b) sentencing ranges for serious offences; and (c) factors that aggravate and mitigate the gravity of an offence and severity of a sentence. These key principles of sentencing law form the basis for the Commission’s responses to the Attorney General’s request. The Commission notes that the only completely mandatory sentence in Ireland is the life sentence for murder – judges have no discretion here and must impose a life sentence. They do not even have the power to suggest any specific minimum sentence, unlike the position in other jurisdictions… The Commission also examined other ‘presumptive’ mandatory sentences, such as those introduced in 1999 for certain drugs offences and in 2006 for certain firearms offences. The drugs offence law states that 10 years should be imposed where the ‘street value’ is over €13,000, but also allows for a lesser sentence in exceptional and specific circumstances. The Commission also examined other mandatory sentences law which require judges to impose higher or consecutive sentences where the convicted person is, for example, a repeat offender.” The report examines the situation in other jurisdictions, including the use of mandatory minimum sentences in Canada, the United Kingdom, the United States, Scotland, Australia and New Zealand.
• Law Reform Commission of Saskatchewan Final Report on Waiver of Legal Fees for the Needy
  “As the costs of litigation and other legal services rise, concern about financial barriers to access to justice is increasing. Under The Queen’s Bench Rules , a potential litigant may, in some circumstances, obtain a waiver of court fees by obtaining a Needy Person Certificate. Needy Person Certificates are useful, but challenges exist respecting their scope and availability under the QB Rules . A further challenge is that Certificates are only available to litigants in the Court of Queen’s Bench and Court of Appeal. Individual rights are also adjudicated in the Small Claims Court and by boards and tribunals, which have varying policies regarding fee waivers. Responses to the Consultation Paper generally affirm that Needy Person Certificates and fee waivers in Saskatchewan need to be updated and expanded. This Final Report sets out the Commission’s proposals on improving access to justice for the less advantage d members of our community through fee waivers.” The report looked at fee waivers in Ontario and British Columbia.
• Law Reform Commission of Ireland Report on Jury Service
  From the press release: “The Report forms part of the Commission’s Third Programme of Law Reform and examines a number of topics concerning jury service including: whether qualification for jury service should be extended beyond Irish citizens; the categories of persons who are ineligible for jury service; persons who are excusable as of right from jury service; deferral of jury service; disqualification from jury service arising from criminal convictions; jury tampering; juror misconduct, including independent investigations such as internet searches; juror expenses; lengthy and complex jury trials; and empirical research on the jury process (…) Other concerns include the extent to which the availability of wireless technology might allow jurors in the jury room to search online for information about an accused rather than limit their decision to the evidence presented. There is also concern that the general right to inspect jury panel lists runs the risk that jury members are open to intimidation or jury tampering. The Report also examines reforms that might be required to deal with lengthy or complex criminal trials.” The Commission looked at the situation in many other jurisdictions, including England and Wales, Scotland, Northern Ireland, Australia, New Zealand, and the United States.
• Law Commission of England Consultation on Patents, Trade Marks and Design Rights: Groundless Threats
  “Intellectual property rights are a vital foundation of economic growth. Patents, trade marks and design rights ensure that innovation is rewarded and encouraged. If misused, however, they can stifle new ideas and inventions. Infringement litigation can be disruptive and expensive. The law provides a remedy in the shape of the threats provisions. Where a threat is made without a genuine intention to litigate; where there has been no infringement or where the right is invalid the threat is said to be groundless (or unjustified). Any person aggrieved by a groundless threat may apply to court for an injunction, declaration or damages. There are problems with the current law. The provisions do not distinguish well between the trade source of the infringement and others with a lesser connection, such as customers. Groundless threats actions can also be used tactically to drive a wedge between legal advisers and their clients or to drive cases to court rather than encourage negotiations over settlement.”
• Australian Law Reform Commission Discussion Paper on Copyright Reform
  Under the Terms of Reference for its study of copyright reform, the ALRC is to consider whether exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment and whether further exceptions should be recommended. The ALRC is seeking feedback on the proposals from stakeholders. According to the press release: “The reforms proposed include the introduction of a broad, flexible exception for fair use of copyright material and the consequent repeal of many of the current exceptions in the Copyright Act, so that the copyright regime becomes more flexible and adaptable. An alternative model, should fair use not be enacted, suggests the addition of new fair dealing exceptions, recognising fairness factors. Other reform proposals relate to the replacement of certain statutory licences with voluntary licensing more suited to the digital environment; the use of orphan works; provisions relating to preservation of copyright material by cultural institutions; and contracting out of the operation of copyright exceptions. Two alternative proposals relating to the scheme for the retransmission of free-to-air broadcasts are set out for comment from stakeholders, in addition to other proposals relating to broadcasting.”

There is always a chance that a law commission has looked at a legal issue you may be working on. Slaw.ca collaborator Ted Tjaden has a section on how to find law reform commission reports on his legal research writing website.