François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Telephone: (613) 521-3689
Fax: (613) 521-4522
Ottawa, February 9, 1999
The Honourable Jon Havelock, QC (PC)
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
I am writing to you on the issue of a comprehensive recodification of the General Part of the Criminal Code. I wish to advise you of the result of some of my correspondence on this matter with the Ministers of Justice. Some of the Ministers of Justice have written to me personally on this issue. I will also inform you of other developments.
A conclusion of my correspondence with the Provinces and Territories is
the benefit the Ministers of Justice would get in better understanding
the issues and the process of substantive criminal law reform (as opposed
to criminal procedure which belongs in a code of criminal procedure),
if a conference was held for them. Such a conference just for Ministers
could be organized by the federal government in view of its jurisdiction
on this matter. During a one or two day meeting, the Ministers could
discuss freely and without the time constraint of having a thousand matters
on the agenda (diluting the possibility of coming to meaningful decisions),
- The final objectives of the criminal law reform. For example, is a new General Part (the general principles, defences and sentencing provisions of a Criminal Code) followed by a modernized Special Part (the crimes of a Criminal Code) a priority? If not, why not? Could the provinces in its administration of justice save money with such a simplification? How can the crimes of the Special Part be reviewed in a rational way without common provisions applying to them and reflected in the General Part, e.g. provisions on mens rea(intent, negligence)? Can there be a modern Criminal Code of substantive criminal law without a new General Part?
- the composition of a modern General Part. Have the Ministers even been shown models of what a modern General Part looks like? For example, have you seen the General Part of the German Penal Code of 1975 considered by many scholars to be a very important achievement? A picture is worth a thousand words. Have the Ministers been briefed on the new eclectic General Part achieved by the State of Israel? The great painters like Gaugin spent days at museums looking at paintings? Why? To learn.
- What is the process for deciding the priorities of criminal law reform? Is the present federal project of "Crimes Against Animals" more important than a possible project of "Crimes Against the Persons", e.g. homicide that would include in its review, the inseparable provision on provocation? I fail to see how the Department of Justice can presently review the law of provocation without reviewing at the same time the law of homicide and its sentence. Is it a miracle? No, it is the result of a piecemeal policy approach, a lack of a scientific approach to law reform and a criminal law process that needs to be democratized.
- What is the democratic input of citizens and lawyers in deciding the present priorities of the Department of Justice Canada? Is it satisfactory? To what extent are consultations taken into consideration? Should the Minister of Justice report on the results of the consultations publically, e.g. on the Justice's www? Is the consultation process too cumbersome for the provinces? Is there too much duplication of efforts between different levels of officials? Is too much time being spent on briefing notes? When is the last time, the consultation process has been reviewed? Would Ministers and Deputy-Ministers like to see the process to be simplified?
- What is the Hon. McLellan's rationale for her conclusion that the basic reforms of the criminal justice system will have been done in 1999:
"...when the long-awaited amendments to the Young Offenders Act are introduced and passed this year, along with a planned overhaul of criminal procedure later in 1999, ‘much of the major infrastructure of the criminal justice system will have been reformed and will be in operation,' McLellan observed." [Cristin Schmitz, "Justice Minister plans re-balance", The Lawyers Weekly, January 29, 1999, p. 2]
In November 1998,
the National Criminal Justice Section of the Canadian Bar presented to
the Hon. McLellan, their "Submission on Reforming Criminal Code Defences"
(a brief on the federal consultation paper on self-defence, defence of
property and provocation). In their submission, the National Criminal
Justice Section severely criticized the piecemeal approach to law
"The National Criminal Justice Section is strongly of the view that reform of the General Part of the Criminal Code should occur in a comprehensive and principled manner. The Consultation Paper is focused solely on three problematic defences which it proposes be amended in the absence of tackling the broader problem of recodifying the General Part. We are concerned that this type of incremental approach is inherently problematic. It serves to perpetuate a Criminal Code which is archaic, incomplete, poorly organized and difficult to understand. Piecemeal modifications undercut the pressure on the Federal Government to undertake this comprehensive reform. That said, the National Criminal Justice Section understands that there are no plans to undertake comprehensive reform of the General Part at this time. Our comments on the proposed options for reform of the Criminal Code defences should be understood within the context of our strong preference for comprehensive reform."
In time, you and your staff may agree that piecemeal legislation for the Criminal Code in matters of the General Part is not in the best interests of your ministry and the citizens of Canada.
I have started a web page, "Chronology - Towards a Modern General Part of a New Canadian Criminal Code?" at "chronologie_.htm". I have posted our correspondence there. I hope that this chronology and my other web pages on General Part matters will encourage research and promote the importance of the General Part.
I hope that Alberta will publically articulate its policy on the reform of substantive criminal law. It is fundamental for you and the citizens of Canada. It will assist you and your staff in better advising the Federal Minister of Justice. .
cc: The Honourable A. Anne McLellan
Mr. Morris Rosenberg"