Law Reform Commission Reports: Recent Releases

Legal researchers too often overlook law reform commission reports as sources of vital information and analysis.

Law commissions consult widely with stakeholders, sometimes compare how other jurisdictions have dealt with the same problem and they frequently dig into the history of an issue.

Here are a few reports released in the past few weeks.

• British Columbia Law Institute Report Proposes Franchise Act : The report recommends that British Columbia become the 6th Canadian province to adopt franchise legislation. The report analyzes franchise legislation in force in Canada, the U.S., and elsewhere, and contains a detailed legislative proposal with commentary. Alberta, Ontario, Manitoba, PEI, and New Brunswick already have legislation that imposes pre-sale disclosure requirements to guard against investors being misled when purchasing a franchise. Those laws also offer other protections to ensure a level playing field between franchisors and franchisees.
  
• New Zealand Law Commission Report on Media Reporting of Suicide: The Law Commission of New Zealand has released a report entitled Suicide Reporting that recommends revisions to that country’s Coroners Act 2006: “The Report recommends that sections 71 to 73 of the Coroners Act 2006 that restrict the reporting of suicide be repealed and replaced by new provisions. Those provisions should only prohibit the reporting of the method of suicide and the fact that a death is a suicide. A person should be able to apply to the Chief Coroner for an exemption from those prohibitions. It also recommends that the Coroners Act requires the Minister of Health to prepare, in consultation with media and mental health experts, a new set of standards for reporting suicide, and to implement an ongoing programme to disseminate, promote, support and evaluate the implementation of those standards.” The report looked at the situation in other jurisdictions such as Australia and the United Kingdom.
• New Zealand Law Commission Issues Paper on Legal Proceedings Against the Crown : The Law Commission of New Zealand released an Issues Paper entitled A New Crown Civil Procedure Act for New Zealand which proposes a new law governing the ability of citizens to bring civil legal proceedings against the Crown and its servants. From the press release: “An important topic covered in the Issues Paper is the Crown’s ability to refuse to disclose certain information during litigation because of reasons of national security. The Commission is raising a number of options, including the possibility of court hearings in which material might be relied on by the Crown but not fully disclosed to the other side.”
• Alberta Law Reform Institute Report on Beneficiary Designation by Substitute Decision Makers: The Alberta Law Reform Institute has released a report on Beneficiary Designation by Substitute Decision Makers that deals with the issue of who gets to designate beneficiaries of pension plans and insurance policies when the owner has lost legal capacity, especially due to age. It is legally unclear if a substitute decision maker has the legal authority to make, change or revoke beneficiary designations on behalf of the represented adult. The report proposes changes to a number of provincial statutes.
• New Zealand Law Commission Discussion Paper on Contempt: The Law Commission of New Zealand has released an “Issue Paper” entitled Contempt in Modern New Zealand. It proposes that judge-made laws of contempt of court be replaced by a more limited and clearer set of legislative provisions that better reconcile protecting the integrity of the justice system and fair trial rights with the importance of freedom of speech. It examines a number of issues, such as contempt in the face of the court, publication contempt, juror contempt, scandalising the court and civil contempt.
• English Law Commission Report on Hate Crimes: In England, hate crimes are those motivated by hostility based on one of the following personal characteristics of the victim: (1) disability; (2) transgender identity; (3) race; (4) religion; and (5) sexual orientation. The Commission examined a number of possible changes to existing legislation: 1) under enhanced sentencing, the judge declares in open court that the offender’s sentence has been increased because the hate element has made the offence more serious. The Commission proposes that every time enhanced sentencing is applied, this should be recorded on the offender’s criminal record in the Police National Computer; 2) aggravated offences: right now, accused people can be charged with an aggravated form of the offence if they demonstrated or were motivated by hostility on the basis of race or religion. The aggravated offences carry longer maximum sentences. Before extending the application of aggravated offences to acts motivated by other forms of hostility, the Commission suggests a wider review should be conducted to consider how well the offences currently work and how the criminal justice system can best protect victims of hate crime; 3) stirring up offences: the Commission looked at creating new offences of stirring up hatred on grounds of disability or transgender identity, but it found that they would rarely, if ever, be prosecuted, and their communicative or deterrent value would therefore be negligible.
• New Zealand Law Commission Report on Review of Joint and Several Liability: The document recommends that joint and several liability remain the normal rule to govern the liability of multiple defendants for the same damage, but with several modifications to achieve better fairness in more extreme or unusual circumstances or for some classes of defendants. Among other things, the modifications propose that: 1) courts should have power to grant relief to a truly minor defendant, who bears only a small responsibility or share of fault for the plaintiff’s loss, but who would otherwise be required to pay all or nearly all of the damages because they are the only remaining solvent defendant; 2) a court may order supplementary contribution, so that the cost of paying an uncollected share caused by an absent defendant is distributed among all remaining solvent defendants, according to their shares of responsibility.
• Law Commission of Ontario Discussion Paper on Legal Capacity, Decision-making and Guardianship: “(…) the project will concentrate on the following broad issues: 1) The standard for capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity (…); 2) Decision-making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making; 3) Processes for appointments (for example of substitute decision-makers) (…); 4) The roles and responsibilities of guardians and other substitute decision-makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them; 5) Monitoring, accountability and prevention of abuse for substitute decision-makers or supporters, however appointed, and of misuse by third party service providers(…); and 6) Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms.” The Commission is accepting feedback from members of the public, including older adults and persons with disabilities, service providers, policy-makers, lawyers and advocates until Friday, October 17, 2014, as part of its public consultation process.

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.