François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Tel.: (613) 521-3689
Fax: (613) 521-4522
Ottawa, 28 October 1998
Mr. Barry Gorlick
President, Canadian Bar Association
Monk, Goodwin, Lawyers
800-444 St Mary Ave
Subject: Recodification of the General Part
I am writing this letter to you in your official capacity of Chairman of the Canadian Bar Association. I wish to inform you of the position of the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada, concerning a comprehensive recodification of the General Part of the Criminal Code and in order to seek the support of the CBA in reversing that position.
find attached a photocopy of Mrs. McLellan's letter dated 16 April 1998
in which she informs me that "...it is my not [sic] intention to undertake
a comprehensive recodification of the General Part". You will also
find enclosed a photocopy of my three letters (with a copy of the
letter of the Honourable Allan Rock dated 25 April 1994). Your organization has been actively involved in the past favoring the policy that has now been reversed. I am writing this letter as a private citizen and as a member of the Barreau du Québec.
You will recall
the following facts: :
- in 1986, the Law Reform Commission of Canada published its report number 30, Recodifying Criminal Law, followed in 1988 by report number 31, Recodifying Criminal Law (A Revised and Enlarged Edition of Report 30); this report contained a new Code of Substantive Criminal Law for Canada;
- in June 1990, the Honourable Kim Campbell, Minister of Justice and Attorney General of Canada asked the Standing Committee on Justice and the Solicitor General to review the General Part of the Criminal Code; I attach a copy of the Justice Communiqué);
- in 1992, the CBA published the Report of the Canadian Bar Association Criminal Recodification Task Force: Principles of Criminal Liability - Proposals for a New General Part of the Criminal Code of Canada ( I attach a copy of pp. Ix-x and 1-3)
-in February 1993, the Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General submitted its report: First Principles: Recodifying the General Part of the Criminal Code of Canada - Report of the Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General (I attach a copy of pp. 1-4 of the report);
-on 28 June 1993, the Minister of Justice Canada, the Honourable Pierre Blais, disclosed his white paper "on the renewal of the General Part" entitled "Proposals to amend the Criminal Code (general principles)" (please find attached a copy of the Department of Justice Canada's News Release);
- in January 1994, the Canadian Bar Association, representing more than 37,000 jurists across Canada, wrote its Submission to the Minister of Justice on the Proposals to Amend the Criminal Code (General Principles)and I enclosed a copy of pp. 1-5 of this submission. At p. 12, the CBA wrote:
"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."
- on 12 November 1994, the Minister of Justice Canada, the Honourable Allan Rock, made public his consultation document, Reforming the General Part of the Criminal Code followed in December 1994 by the accompanying technical document Toward a New General Part of the Criminal Code - Details on Reform Options (I attach a copy of the Department's of Justice Canada's News Release);
- in a document, Overview of Recent Activities and Departmental Achievements, Department of Justice of Canada, dated August 1997 and posted on the internet web site of the Department of Justice Canada (as seen on 12 August 1998 at http://canada.justice.gc.ca/Presentation/index_en.html), we read:
"REFORM OF THE GENERAL PART OF THE CRIMINAL CODE
The Department is reviewing the general rules of the principles of liability and defence to make them more complete and understandable to Canadians, to reflect modern societal values and court decisions, and to foster respect and confidence in the criminal justice system.
Consultations with provinces, the Canadian Bar Association, women's groups, police and other stakeholders will proceed throughout 1997."
- finally, concerning the consultations on the three defences mentioned in Mrs. McLellan's letter dated April 1998, a document Reforming Criminal Code Defences : Provocation, Self-Defence and Defence of Property - A Consultation Paper was made public in June or July 1998.
Is the Canadian Bar Association in agreement with the position of the Minister of Justice Canada as expressed in her letter of 16 April 1998 that a comprehensive recodification of the General Part not be undertaken? Should such a policy be abandoned? How many efforts, time and money has the Canadian Bar Association given to this project of reform? It seems that the Canadian Bar Association has not attain its objectives. I would be curious to know if the CBA was even aware of this change of policy.
Would not the administration of Justice be better served if a new General Part would explain to its lawyers and citizens such matters as intention, recklessness and negligence and how they apply to the offences of the Special Part? Our Criminal Code is looking more and more like the Income Tax Act. Every year, there are amendments and amendments.
The Minister of Justice Canada will listen to the Canadian Bar Association if it reminds her of the previous commitments of the Department of Justice. I would ask your organization to study this matter and respond to the change of policy of Minister of Justice Canada. It would be shameful if all the work and efforts regarding the recodification of the General Part would fall into oblivion. It has been more than 15 years since the Government of Canada has published its policy The Criminal Law in Canadian Society in 1982. I believe that the Minister of Justice Canada should publicly set an agenda for the reform of the General Part and the Special Part of the Criminal Code. In other words objectives and a reasonable time table.
On this matter, I have already written to the Barreau du Québec and I enclose a copy of my correspondence with them (without the attachments except for issue 4 of the Minutes ofProceedings of the Sub-Committee on the Recodification). As you can see, the Barreau du Québec favours a comprehensive approach to the recodification of the General Part. Attempts of reforming the General Part with a piecemeal approach (like the Minister is now doing for self- defence, defence of property and provocation) is doomed to failure or if this approach results in legislation, it will only lead to more confusion and uncertainty.
I know that Winston
Churchill once said "Sorry I had to write you a six page letter but I did
not have the time to write you a one page letter!". Please excuse
the length of my letter but I believe that the enclosures will facilitate
the research. hope to hear from you me in the near future.
Copy: Ms. Tamara Thomson, Director of Legislation and Law
Ms. Isabel Schurman, Chair, Criminal Justice, CBA
Me Carole Brosseau, Bareau du Québec"