François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Tel. (613) 521-3689
Fax (613) 521-4522
Ottawa, March 16, 1999
Mr. L. Denis Desautels
Auditor General of Canada
240 Sparks St.
Ottawa, ON, K1A 0G6
Dear Mr. Desautels:
Subject: Reform of the General Part of the Criminal code
Purpose of Letter
The purpose of this letter is to bring to your attention important new facts about this file. After you have read this letter, I would much appreciate if you could discuss the developments of this file with Mr. Gilmore who has been piloting it on your behalf.
As part of my access to information request #A98-00147 to the Department of Justice Canada, I attach pages 000957, 000958 and 000963 (received with instalment 2, of February 22, 1999; the pages have been reduced in size). Page 000958 explains why a comprehensive reform of the General Part of the Criminal Code has been abandoned:
"As a result of other legislative priorities, lack of resources and [s. 14(a)] work on the comprehensive reform of the General Part was deferred." [Note: the exemption under s. 14(a) of the Act refers to federal-provincial affairs]
The fact a comprehensive reform of the General Part has been "deferred" (read abandoned or postponed indefinitely) means that we will not have a modern Criminal Code in the near future.
The Problematic Administrative and Political Mismanagement
of this Project
In 1980, "...the Minister of Justice announced that he was setting in place a mechanism for the review of the criminal law that would expedite the enactment of a modern Canadian Criminal Code...." (Report of Auditor General Report...1985, para 10.38). In October 1985, the Auditor General of Canada severely criticized the Criminal Law process. In 1986, the Law Reform Commission of Canada published the first part of its Draft Criminal Code (Report 30). Now, we learn that one of the reasons that the whole project has died is because of the "lack of resources". However, the causes of death are lack of goals (objectives) and planning.
The Importance of this Project to Canadians
The modern criminal codes have two parts: a General Part and a Special Part. A General Part states the general principles applicable to the offences of the Special Part, e.g., when intention or negligence applies, the defences, the sentences. The Special Part states the offences. All the offences cannot be reviewed under the same principles without a General Part. It is simple legislative logic and construction.
In November 1998,
the National Criminal Justice Section of the Canadian Bar Association
stated in their "Submission on Reforming Criminal Code Defences"
that they are opposed to a piecemeal approach to law reform:
"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 recodifing 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."
The Need of the Auditor General To Be Sensitive to Matters Affecting Canadians
The Auditor General reports to the House of Commons. A Committee of the House then questions some members of your office. Small circle. While it helps your independence, it also insulates you from the concerns of its citizens. The General Part contains some of the basic issues and values in Canadian society: age of liability for children, principles of sentencing, provision on the discipline of children by parents, self-defence (battered women), etc. In my opinion, a new General Part, would even help Canadian unity. I would have thought that the failure of this costly and important project would merit your immediate attention.
I recently received the laconic message from Mr. Gilmore that "we do not plan at this time to conduct a review of development of the Criminal Code in the short or medium term". I fail to understand the criteria before an investigation is initiated by your office. Here we have lack of management, loss of years of research and impetus, loss of important sum of public money (I hope to get that figure eventually), and a subject that deals with the social fabric of Canadians.
I hope that the new facts that I have brought to your attention will help to review your position as expressed by Mr. Gilmore.
Assistance with Briefing
As I possess some expertise in this area, I would be very happy to brief you and Mr. Gilmore in person on this matter. There would be no costs, of course.