François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Telephone: (613) 521-3689
Fax: (613) 521-4522
Ottawa, 5 October 1998
The Honourable Goo Arlooktoo
Minister of Justice - Northwest Territories
Legislative Assembly, Box 1320
Subject: Reform of the General Part of the Criminal Code
In my letter dated 14 August 1998, I had asked you some questions about the intention of the Honourable Anne McLellan, the Minister of Justice and Attorney General of Canada, not "to undertake a comprehensive recodification of the General Part". I wish to thank you for the partial answer of 25 September from one of your officials. It is with regret that I realize that your staff did not bring this matter to your personal attention in a more forceful way. Possibly, this omission can be corrected. Other Attorney Generals have answered me personally on the same matter. Is it because they are kept better informed and briefed or is it because they have more staff? I hope that your staff will not be offended when they read this letter. I wasn't when I read theirs. It is part of policy development to exchange little intellectual jabs like that!
Ms Nightingale, your policy official, writes in the letter of 25 September that "...given the upcoming division of the Northwest Territories and the corresponding creation of Nunavut, the Minister of Justice, and this Department, have a number of other priorities in our jurisdiction taking precedence at this time over the reform of the General Part." With respect to Ms Nightingale, the reform of the General Part would be done by the federal authorities and not by the provinces and Territories. I know that Ms. Nightingale knows that but I was trying to indicate the probative value (an expression used by lawyers) of her argument. I also note that the Nortwest Territories have not submitted any brief to the federal authorities on the 1993 and 1994 documents. I am surprised as I would have thought that such matters as self-defence etc. would have been of interest to the citizens of the Territories.
In my letter of 14 August, I was simply trying to ascertain the policy position of the government of the Northwest Territories and of your ministry on the reform of the General Part and of the Criminal Code. I must conclude from the letter of 25 September that your government, yourself and your officials have never developed a criminal policy for its citizens concerning the long term objectives of reform for our 100 year-old Criminal Code, e.g., a new General Part followed by a modern Special Part like it has been done in several countries of the world, Germany, Spain, France etc. Since the Criminal Code is a very basic and important statute for the citizens of the Northwest Territories, you may wish, this time, to be briefed more thoroughly or to reflect and articulate a policy. To accept the argument of Ms. Nightingale of "other priorities" means that we will never have a fundamental review of our Criminal Code as explained by Mr. Létourneau in "Le Code criminel canadien ou la faillite du pouvoir législatif" (in 100 Years of the Criminal Code in Canada, 1993).
As you know, in 1994, the Canadian Bar Association, representing more than
37,000 jurists across Canada, wrote in their Submission to the Minister
of Justice on the Proposals to Amend the Criminal Code (General Principles):
The General Part is an important part of the Criminal Code. In the 1990 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 officials of the Department of Justice Canada and the members of the Law Reform Commission of Canada wrote at p. 10:"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." [p. 12]
In a time where Canada needs to define itself and where unity is more important than ever, I believe that a modern Canadian Criminal Code with a General Part reflecting modern Canadian values would be an asset for the identity of our country. What do you think? Would your leadership, applied in this area, help the cause of unity?"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."
Have your officials
explained to you the reasons why since the 1988 publication of the Law
Reform Commission of Canada report no 31, Recodifying Criminal Law -
Revised and Enlarged Edition of Report 30 containing a new and proposed
Criminal Code, we have not yet enacted a new and modern General Part?
It would be a shame, in a time where the word "accountability" is regaining
some popularity, that all the efforts and research on this matter
fall into oblivion. I say nothing about the public money that has
been spent. It has been already more than 10 years since the
Law Reform Commission wrote in report 31:
Ms. Nightingale writes in her letter that "We appreciate that there has already been a considerable amount of work undertaken on this issue [of the General Part] to date. We are confident that none of this will be wasted". It is somewhat at odds with the comments of the Honourable John T. Nilson, Minister of Justice and Attorney General for Saskatchewan who stated in his letter of 17 September to me (in reply to a similar letter to that addressed to Mr. Arlooktoo) that "I note the work of the various bodies that you have referred to is somewhat dated now.""As we mentioned in Report 30, the new Criminal Code proposed by the Commission results from fifteen years of philosophical probing, researching, thinking, debating, writing, consulting and publishing on numerous criminal law subjects. It also represents the full co-operation of federal and provincial governments in the Accelerated Criminal Law Review. The work of these fifteen years was presented prior to publication of Report 30 in various Reports and Working Papers which should be consulted for a fuller understanding of the present Report." [pp. 1-2]
Mr. Arlooktoo, do you want a Criminal Code that is clear and simple for the citizens of the Northwest Territories? For whom does your ministry formulate its criminal law policy?
my philosophy on criminal law is that the Criminal Code is one of the most
important pieces of legislation for a society. I think that
Canadians should have a Criminal Codethat is clear, simple and understandable
(I am not dealing here with matters of procedure or evidence or other
normal criminal law legislative priorities). This issue of language,
simplicity and of fundamental values is surely a basic issue to the citizens
of the Northwest Territories. I ask you, what is wrong to set a long
term goal of having a modern and comprehensive General Part? What
would be wrong in having such a simple rule stipulating that unless negligence
is expressly provided for an offence of the Special Part, that intention
is the mental state that applies to all the elements of the offences of
the Special Part? For whom do we write a Criminal Code after
all? Professor Fitzgerald has written:
"Who are the criminal code's intended readers? The people governed by it - the public as Bentham thought? Those who have to administer and explain it - the legal profession and the agencies of justice - as lawyers tend to think? Those surveying its logic, coherence, and systematization - jurists and legal scientists? Or since codes start life as bills, those who are asked to enact it - the legislators? Or, finally, some combination of the above?
Surely Bentham was right. A country's law belongs not to its nation's judges, its lawyers, or its politicians but to all its inhabitants and citizens. The latter are surely the prime addressees of codes, statutes, and other legislation. This conclusion follows from the basic values and concepts of the common law itself." ... ["Codes and Codifications: Interpretation, Structure, and Arrangement of Codes", (1990) 2 Criminal Law Forum127-143 at 129-130].
I hope that I have raised your interest on the subject so that we can begin to have a constructive dialogue that will serve the interests of Canadians. Again, I hope that my tone in this letter has not offended you nor your officials. English is my second language and I am a very passionate person when it comes to the ideals I believe in. Thank you for your time.