François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Total Faxed to 946-8988: 3 pages
Tel (613) 521-3689
Fax (613) 521-4522
Ottawa, 9 September 1998
Law Commission of Canada
Mr. Roderick A. Macdonald, President
473 Albert St., 11th floor
Ottawa, ON, K1A 0H8
Subject: Reform of the General Part of the Criminal Code
Dear Mr. Roderick:
Thank you for your letter of 28 August. As my letter of 19 August 1998 on the intention of the Minister not "...to undertake a comprehensive recodification of the General Part" will be considered by the Commmission on October 2, please let me know of the decision or action taken by the Commission.
In your letter, you write"...the Commission has adopted a policy to govern its interventions in the public domain on matters that do not currently form part of its research agenda." I have struggled with the interpretation to be given to that sentence and I must say that it would have been easier if you had told me what this policy was. Please do eventually. A policy can be revised and changed.
Is the Canadian
Bar Association's, Submission to the Minister of Justice on The Proposals
to Amend the Criminal Code (General Principles), dated January 1994,
the CBA writes in its conclusion: "[t]he Canadian Bar 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." I am sure that all the Commissioners recognize the importance
of the General Part not only for law reform but also for their own work.
a General Part consist of? In the 1990 Department of Justice Canada
document, Toward a New General Part for the Criminal Code of Canada
- A Framework Document on the Proposed New General Part of the Criminal
Code for the Consideration of the House of Commons Standing Committee on
Justice and the Solicitor General, the Department of Justice officials
wrote at p. 10:
In my view, the General Part of a Criminal Code in addition to being an expression of the principles of criminal law contains a philosophical statement of the basic values that the society respects the most.A General Part of a criminal code organizes, rationalizes, and illuminates the remainder of a code by setting out the principles and general rules on the necessary conditions for criminal liability, on the various general defences, on participation in other people's crimes and on the commission of incomplete offences. The General Parts of some code, particularly those of a Continental European or American origin also set out the possible sanctions which may be imposed following conviction.
Let me give you an example. The defences are divided in justifications and excuses. Professor Fletcher states that a justification "concerns the rightness, or at least the legal permissibility, of an act that nominally violates the law" ("The Right and The Reasonable",  Harv.L.Rev. 949, 954). In a nutshell, in criminal law theory, a justification renders lawful the agent's conduct which conduct would otherwise be unlawful because of the commission of the essential elements of the offence defined by the statute. In Perka, Chief Justice Dickson stated that a justification "challenges the wrongfulness of an action which technically constitutes a crime" ( 2 S.C.R. 232, 246]. A good example of a justification is the use of force by a person in the correction of a child (s. 43 of the Criminal Code). I would say the philosophical concept of justification and the use of force by a parent in disciplining their children are matters of great importance to the Commission for its strategic theme study on "Personal Relationships".
I hope that you will
think about my letter. It would be nice if you could send a copy
of my letter of 19 August and of your reply of 28 August to the other commissioners
so that they are prepared when you all meet on 2 October. Thank you.
copy faxed: other Commissioners"