François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Telephone: (613) 521-3689
Fax: (613) 521-4522
Ottawa, February 3, 1999
The Honourable Goo Arlooktoo
Minister of Justice - Northwest Territories
Legislative Assembly, Box 1320
Subject: Reform of the General Part of the Criminal Code
Further to my letters of August 14 and October 5, 1998, and your reply of September 25, 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 and of other developments.
have written to the Ministers of Justice in Canada and have come to the
conclusion that it would be assist all of them 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 the federal government could organize for the Ministers, a conference
of one or two days on this matter. 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
- The objectives of the criminal law reform. For example, is a new General Part (the general principles, defences and sentencing provisions) followed by a new Special Part (the crimes) a priority? If not, why not? Could it save costs to the provinces in its administration of justice? 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 spent on briefing notes? When is the last time the consultation process has been reviewed? Would you like it 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]
contrast this position of the Hon. McLellan with Ms. Nightingale's
statement in her letter of September 25, 1998 to me: "We appreciate
that there has already been a considerable amount of work undertaken on
this issue to date [Reform of the General Part of the Criminal Code].
We are confident that none of this will be wasted"!
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
"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 would have liked
to have received a reply to my October 5, 1998 letter. Maybe you
have been very busy. I hope that Ms. Nightingale was not too offended
by that letter. It is simply that I wanted a dialogue with you and
not your officials. I think that a Northwest Territories policy on
the reform of substantive criminal law is fundamental to you, your ministry,
the citizens of the Territories and the rest of the Canada. It will
assist you and your staff in advising the Federal Minister in the
best interests of the citizens you represent.
cc: The Honourable A. Anne McLellan
Mr. Morris Rosenberg