François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Tel (613) 521-3689
Fax (613) 521-4522
Ottawa, 25 February 1999
Ms. Stephanie Mealing
Administrator, Criminal Lawyers' Association
56 Temperance Street, Suite 800
Toronto, ON, M5H 3V5
Subject: Reform of the General Part of the Criminal Code
I am writing about the Honourable Anne McLellan's criminal law policy decision to abandon a comprehensive recodification of the General Part of the Criminal Code (I enclose a copy of her April 16, 1998 letter). I have written to your President, Mr. Alan D. Gold, about this matter on August 20 and October 28, 1998 (copy of letters attached). I would ask that this letter be brought formally to your Association's executive so that they may take a position on this policy that is of extreme importance to the practice of its members . If I have to follow another special procedure to do so, please advise me. If the Association does not wish to consider this matter would advising me also be possible. I have sent a copy of this letter to the other members of the executive in order to facilitate your task. If you need any document or further information, on this request please advise me. I will be pleased to assist you and your Association.
For further background
information, I enclose a copy of my correspondence with the Ministry of
the Attorney General of Ontario. Please note the position of the
National Criminal Justice Section of the Canadian Bar Association referred
to at p. 2 of my letter of January 21, 1999. I am also presently
posting some of the correspondence in my article "Chronology - Towards
a Modern General Part of a New Canadian Criminal Code?" at
Here are some
issues that, I think, need to be addressed:
- Is your Association in agreement with the federal and Ontario's position on the topic of a comprehensive recodification of the General Part?
- What should be the final objectives of a substantive 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, should it not? 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. I do not know if the Ministers of Justice in Canada have been briefed on what a modern General Part looks like? For example, have they seen the General Part of the German Penal Code of 1975 considered by many scholars all around the world to be a very important and remarkable 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 approach policy, a lack of a scientific position on law reform and a process that needs to be democratized.
- What is the democratic participation 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? Should it be reviewed and simplified?
- There are several problems with matters of the General Part. I will only cite a few examples: the law on descriptive mens rea (intention, recklessness, penal negligence, criminal negligence etc.); s. 17 of the Criminal Code on duress; s. 13 of the Criminal Code on the age of criminal liability for children (Ontario has raised that issue); s. 43 of the Criminal Code on correction of child by force (matter raised by certain organizations) and sentencing. Of course, let us not forget the law on private defence. Does it make sense to deal with all these issues separately? Is there a need for a rationalization? In my view and many others (including previous Ministers of Justice), the answer is yes!
- 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]
- What would be the best methodology to follow to have a a new General Part? To have a small drafting team (composed for ex. of a defence counsel, a professor, a public official, and a judge)?
- Should Canada not have a modern Criminal Code (with a General Part and a Special Part), a Code of Criminal Procedure and a Code of Evidence?
I am a person very much interested in criminal law reform. I have decided not to stay silent on this important issue. I trust that you share my view on need to participate in this debate.
c.c. Mr. D. Fletcher Dawson
Mr. Alan D. Gold
Mr. P. Berk Keaney
Mr. Joseph Kenkel
Mr. Irwin Koziebrucki
Mr. Michael Lomer
Ms. Katherine L. McLeod
Mr. David Schermbrucker
Mr. Steven A. Skurka
The Hon. Anne McLellan
The Attorney General Charles Harnick