François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Telephone: (613) 521-3689
Fax: (613) 521-4522
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.
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
"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.
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!
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
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.