News from BC Law Institute

By Tejas Madhur*

REFORMING LAW REFORM As a law reform agency, the British Columbia Law Institute (“BCLI”) has simple but lofty goals: modernize the law, increase access to justice, develop innovative solutions. Our work is often focused outwardly on reforming legislation. After 25 years of law reform in British Columbia, we are now asking ourselves: How do we reform law reform itself? What is our role in reforming law reform?

At its essence, law reform identifies where the law is not keeping up with current societal needs. These needs can change over time, as society changes—a case in point being emerging issues around the role of technology and how the law evolves to address it. Or they can happen urgently—a clear example being the COVID-19 pandemic, where both society and laws adjusted to rapidly changing circumstances.

In both instances, there is a need for thoughtful and thorough analysis of how laws are responding or not responding to different circumstances. However, traditional black letter law reform, and models for these reforms that entail interdisciplinary expert identification and review of law reform options, may make it challenging to pivot and respond quickly.

The law may fail to address an issue that did not exist before. Rapid technological innovations, such as the use of artificial intelligence (“AI”), for example, have introduced new issues that the law does not currently address. Law reform can play an important role in identifying these gaps and analyzing what kind of legal solutions are needed.1 BCLI is currently undertaking a project on Artificial Intelligence and Civil Liability. The purpose of this project is to determine how tort law needs to adapt to deal with harm to persons and property caused by autonomous AI systems. The

*Tejas Madhur is the chair of the board of BCLI.

threshold question the project will address is: Who is, or should be, liable for choices made by intelligent machines operating autonomously?

Sometimes what is old becomes new again. The existence of Indigenous legal orders is not new, but the expectation/requirement to recognize those longstanding legal orders is a recent development. British Columbia’s Declaration on the Rights of Indigenous Peoples Act requires that B.C. laws be consistent with the United Nations Declaration on the Rights of Indigenous Peoples. 2 Through our Reconciling Crown Legal Frameworks Program we will work to ensure that any law reform recommendations we make will reflect this alignment and that our recommendations can be consistent with Indigenous legal frameworks. This requires adapting the core methods we use as law reformers.

As we consider how our law reform work can best address emerging societal issues, we are also considering how our methods help us to accomplish our goals. Many of our law reform projects have been conceived of from a black letter law worldview, where the goal has been to make incremental changes to legislation. Law reform issues are generated from other lawyers, the bench or government. These projects develop law reform recommendations using an expert committee made up predominantly of legal professionals.3 One of our current projects, the Review of Parentage under Part 3 of the Family Law Act, has a black letter law origin.

Increasingly, our work is also utilizing social justice methods, where reform issues come from the community and incorporate community perspectives. The law reform recommendations consider broader legal solutions.4 A key issue is to ensure that we are hearing the right voices, keeping in mind that the law is about people and regulating our interactions with each other. Lawyers bring important knowledge to law reform projects. But the public experience the law in their everyday lives. The social justice method sees the public as key to developing effective law reform solutions. This approach engages people’s lived experience to ensure that the project can address the needs of the public who interact with the law and strengthen its intended impact.5

In many cases, vulnerable communities find their voices are not heard, and law reform is an opportunity to ensure that these perspectives are included and empowered.6 For example, our project Engaging People Living with Dementia in Decision-Making, led by the Canadian Centre for Elder Law, is using a Dementia Advisory Council to inform all parts of the project in the lived experiences and needs of people living with dementia.

Increasingly, our connections with our fellow law reformers are essential to share ideas and best practices.7 BCLI contributes to both the Federation

of Law Reform Agencies of Canada and the Uniform Law Conference of Canada, which both operate at the national level. Further renewal at the national level is underway as the Law Commission of Canada is being reconstituted by the federal government.

Developing responsive solutions to societal issues will entail both black letter and social justice methods. Merging these methods in our work will ensure innovation in our approaches to our law reform projects.

NEW PROJECT AIMS TO RENOVATE THE PUBLIC HEARING Building on our Study Paper on Public Hearings: An Examination of Public Participation in the Adoption of Local Bylaws on Land Use and Planning (April 2022), BCLI has launched a new project that seeks to reform British Columbia’s legislation on public hearings.

For over a century, public hearings have been a key component of British Columbia’s legal framework for regulation of land use. During most of that time, public hearings have been viewed as one of the cornerstones of local democracy. But recently some questions have arisen about whether they deserve that title. Observers have noted that public hearings often end up engaging only a small, unrepresentative segment of the public. They can also drive up costs, lead to wasted time and result in low satisfaction from participants. Further, their highly formal and legalistic nature has often frustrated local governments.

The Renovate the Public Hearing Project: Pre-Development Public Engagement & Legal Reforms to Support Housing Supply asks whether there is a better way to provide for public participation, support meaningful democratic engagement, and improve the quality and efficiency of local land-use decisions.

An important component of the project will be to consider how reforms to the law on public hearings can be aligned with Indigenous governance. Accordingly, this project will identify ways to integrate Indigenous considerations into law-reform approaches for public hearings so that any recommended legislative changes can function in a legally plural context. The project has been designed to support a Reconciliation and Community Listening Exploration Series, which will allow BCLI to engage with these issues directly and to weave input from that engagement to the project’s expert committee.

This project is being carried out in conjunction with the Simon Fraser University Wosk Centre for Dialogue. Over the course of the project, the Wosk Centre plans to engage with impacted groups in a variety of ways, including through interviews, workshops and events.

Funding for this project has been provided by the Canada Mortgage and Housing Corporation, as part of its Housing Supply Challenge “Getting Started” Round. The project is slated to run until March 31, 2024. Visit <www.bcli.org> for regular updates on the project.

ENDNOTES

1. Marcus Moore, “The Past, Present, and Future of Law

Reform in Canada” (2018) 6:2 Theory & Practice

Legislation 225 at 251–59. 2. United Nations Declaration on the Rights of Indigenous Peoples, GA Res, UNGAOR, 61st Sess, Supp

No 49, UN Doc A/RES/61/295 (2007). 3. Moore, supra note 1 at 251–59; Roderick A Mac-

Donald, “Law Reform for Dummies (3rd Edition)” (2014) 51:3 Osgoode Hall LJ 859 at 872–76. 4. Nathalie Des Rosiers, “In Memoriam: La Commission du Droit du Canada/The Law Commission of Canada, 1997-2006” (2007) 22:2 Can JL & Soc 145 at 171–73 [Des Rosiers, “In Memoriam”];

Moore, supra note 1 at 259–60; MacDonald, supra note 3 at 865–69, 879–83. 5. Des Rosiers, “In Memoriam”, supra note 4 at 166, 177–73; Nathalie Des Rosiers, “Public Inquiries and

Law Reform Institutions: Truth Finding and Truth Producing” (2016) 28:2 Can J Women & L 374 at 379–80; MacDonald, supra note 3 at 865–69. 6. Ibid. 7. Moore, supra note 1 at 247.