"File : c:\françois\genpart\min.al2

                                                                             François Lareau, LL.M.
                                                                             55-890 Cahill Dr. W.
                                                                             Ottawa, ON,    K1V 9A4

                                                                             Telephone:      (613) 521-3689
                                                                             Fax:                (613) 521-4522
                                                                             e-mail:            flareau@achilles.net

                                                                             Ottawa, 15 September 1998

Honourable John Havelock
Minister of Justice and Attorney General Alberta
Legislature Office # 320, 10800-97 Avenue
Edmonton,  AB,   T5K 2B6

Subject: Reform of the General Part of the Criminal Code


          Further to my letter of 12 August 1998, I have received a reply from Mr. Irv Yaverbaum,   dated 10 September 1998 (copy attached).  While Mr. Yaverbaum has the authority to speak on behalf of the province of Alberta, I would have appreciated receiving a reply from you.

          Alberta's position surprises me.  Can the Canadian Bar Association representing more than 37, 000 jurists across Canada be wrong when it wrote in its 1994 Submission to the Minister of Justice on the Proposals to Amend the Criminal Code (General Principles):

"The Canadian Bar Association reiterates its strong commitment to achieving recodification of the General Part of the Criminal Code.  In our view this must be a top priority for law reform efforts.  All of the necessary background work has been carried out.  The only step remaining is to draft legislation which is consistent with the well laid out principles of recodification: clarity, rationality and comprehensiveness." [page 12]

         One has to be careful in talking about a comprehensive recodification of the General Part as it sounds as if we are reinventing the wheel.  We do not have a General Part now ... just a few sections on it.  In the 1990 Department's of Justice Canada document, Toward  a New General Part for the Criminal Code of Canada - A Framework Document on the Proposed New General Part of the Criminal Code for the Consideration of the House of Commons Standing Committee on Justice and the Solicitor General, the Department of Justice officials wrote at p. 10:

"A General Part of a criminal code organizes, rationalizes, and illuminates the remainder of a code by setting out the principles and general rules on the necessary conditions for criminal liability, on the various general defences, on participation in other people's crimes and on the commission of incomplete offences.  The General Parts of some code, particularly those of a Continental European or American origin also set out the possible sanctions which may be imposed following conviction."

          The present "General Part" for example does not explain the rules concerning states of mind like intention, recklessness, criminal negligence and penal negligence nor does it deal with a number of important defences such as necessity and entrapment.  In fact, it is impossible by reading the Criminal Code to know what constitutes guilt, blame or a blameworthy mind.  Even if one reads all the case-law about mens rea there is still a multitude of questions left unanswered.  Modern criminal codes have a general part and a special part (for the offences).  The General Part should not be written by the Supreme Court of Canada but by Parliament!   Would it not be nice to have in our Criminal Code a provision as simple as s. 15 of the Penal Code of Germany which reads in its translation: "[§ 15. Intentional and negligent conduct] If a statute does not expressly make negligent conduct punishable it shall be construed to require intentional conduct" [The Penal Code of the Federal Republic of Germany (The American Series of Foreign Penal Codes, vol. 28) at p. 54]?

          I do not believe that the provinces can have a "final" discussion on the revision of the Young Offenders Act without understanding and discussing the General Part principle of an excuse underlying s 13 of  the code on "Child under Twelve";  nor can the provinces discuss the federal consultation paper,  "Provocation, Self-Defence and Defence of Property",  of July 1998 outside a fictitious concept of a structured General Part where the principles of wrongdoing and attribution obey certain rules.

          I hope that you will think about my letters and exercise your own discretion as to what is best for Albertans.   Please help Canadians in not having another Income Tax Act where the only additions each year are amendments and amendments.  I find that the worst enemy of politicians is that they do not spend enough time thinking.  We are not talking here about details that should be left to bureaucrats but one of the most important piece of legislation that a society has.  Let us think about it!

           As man of vision, I am sure that you will agree with me that a separate Criminal Code and Code of Criminal Procedure would be helpful and very cost effective?

         To finish with this letter, I did get a reply to my last paragraph of my letter of 12 August 1998 which read:

"I am curious if  your Department submitted a brief in response to the June 1993 document "Proposals to amend the Criminal Code (general principles)" or for the documents of November and December 1994 mentioned above?  In the affirmative, would it be possible to obtain a copy, please."

           Again thank you for your time and I hope to hear from you in the near future.

                                                                                                     François Lareau"