Tel (613) 521-3689
Fax (613) 521-4522
Ottawa, 28 October 1998
Law Commission of Canada
Mr. Roderick A. Macdonald
473 Albert St., 11th floor
Ottawa, ON, K1A 0H8
Dear Mr. Macdonald:
Subject: Reform of the General Part of the Criminal Code
Thank you for the reply of 9 October 1998 (copy attached). I believe that our dialogue has been healthy for the Law. Karl Jaspers has written that "sans doute radical, il n'a pas de philosophie véritable".
I wish to express some views on our correspondence so far:
1) in the Commission's last letter, Mr. Bonneville writes "After careful consideration of the matter, Commissioners unanimously concluded that reforming the General Part of the Criminal Code should not become a priority for the work of the Commission". Was my letter of 19 August 1998 read and considered? For example, I wrote @I am writing this letter ...seek your support in reversing that position [of the minister in deciding not to continue with the policy of a comprehensive recodification of the General Part". I also wrote in the same letter: "I would ask you to write to the Minister of Justice Canada in order that all the work and efforts regarding the recodification of the General Part and law reform do not fall into oblivion." I am somewhat embarrassed to write that you have misread the obvious. I am not asking the Commission to work on the General Part but to understand the importance of the General Part for law reform and their work and to express an opinion on the Minister's decision not to continue the work undertaken on a comprehensive recodification of the General Part. As I do not believe that you (or the other Commissioners) have misread the obvious, I am deceived of the intellectual response. If you do not want to disturb the Minister or disagree with my position, please say so. This leads me to the second point.
I have received a copy of the Commission's "Policy on Interventions in Public Policy Debates" adopted October 2, 1998. I hope that you will post your policy on your web site! Will you? I read in your Strategic Agenda: "Many people question the way the law works. They feel uncomfortable in a legal system that, at times, appears overly adversarial, inaccessible, arbitrary and unfair." Later in the same booklet, the Commission writes "Their [Institutions of public governance] decision-making is perceived to be distant, non-participatory and overly influenced by powerful voices. The Commission can relax. I am writing this letter on my own behalf because I love law reform. All the members of the Commission can rest assured that have no political agenda.
Having read your policy, I am officially submitting a request that the Commission write to the Honourable Anne McLellan to inform her that she should not abandon the policy of a comprehensive recodification of the General Part (please refer to my first letter dated 19 August 1998). I am officially asking that this request be submitted to the Commission's next regular meeting. I am convinced that a comprehensive recodification of the General Part would meet all three criteria referred to at p. 2 of your policy. If my request is refused, please explain which criterion was not met. As I may use this material in a law article, make sure that the rationale of exclusion, if that is the case, is well explained.
You will recall that in my letter of 9 September, I had given an example on how the General Part dealt with the strategic theme study on "Personal Relationships". I received no comment on this point. On the "Social Relationships" theme, the General Part deals with the definition of penal negligence, criminal negligence and provocation. Should the personal characteristics of an individual belonging to a particular socio-demographic group be considered? Another example on this theme, is should ignorance of the law be a defence, an excuse, if there no fault on the part of the individual, because certain individuals do not "have equal access to knowledge about the law" (p. 7 of your brochure Strategic Agenda)?
On the matter of the "Economic Relationships" strategic theme, I am sure that the Commission's work would greatly benefit from a close philosophical examination of the concept of "justification" in law. As you know, the study of this subject is not limited to criminal law and is applicable to all matters of law where there is a competition between legal interests. This is an important aspect of the study of this strategic theme, it seems, according to your brochure..
I hope that the Commission will reflect upon the importance of the General
Part which is an expression of the basic values of a society and will encourage
the continuation of this fundamental law reform. Thank you.
Copy: other Commissioners with copy of reply of 9 October 1998"