File : c:\françois\genpart\min.ma2

                                                                            François Lareau, LL.M.
                                                                            55-890 Cahill Dr. W.
                                                                            Ottawa, ON,    K1V 9A4

                                                                            Telephone:      (613) 521-3689
                                                                            Fax:                (613) 521-4522

                                                                            Ottawa, 30 September 1998

The Honourable Victor Eric Toews, Q.C.
Minister of Justice and Attorney General - Manitoba
Room 104, Legislative Building
450 Broadway, Winnipeg, Manitoba,   R3C 0V8


Subject: Reform of the General Part of the Criminal Code

          Further to my letter of 13 August 1998, I wish to thank you for the acknowledgement letter dated 19 August and the partial answer dated 16 September written by one of your officials.  It is with regret that I realize that your staff failed to bring this matter to your attention.    For a man who has taught law at university and has appeared before the Supreme Court of Canada, I would have thought that the questions raised in my letter were important and challenging enough to merit your personal attention.  Is there a reason why your officials did not want you to be aware of the contents of my letter?   Other Attorney Generals have answered me personably on the same matter.   It may be that they are kept better informed and briefed.   Possibly, this omission can be corrected.

           In my letter, I had informed you of the decision of the Honourable Anne  McLellan, the Minister of Justice and Attorney General for Canada, of her intention not "to undertake a comprehensive recodification of the General Part".  I had asked you if you agreed with her policy decision.  I had also asked you several other important questions concerning criminal law policy.  I must conclude from the letter dated 16 September that your government, yourself and your officials have never developed a criminal policy for its citizens concerning the long term objectives of reform for our 100 year-old Criminal Code, e.g., a new General Part followed by a modern Special Part like it has been done in several countries of the world, Germany, Spain, France etc.    Since the Criminal Code is a very basic and important statute for the citizens of your Province, you may wish, this time, to be briefed more thoroughly.

             As you know, in 1994, the Canadian Bar Association, representing more than 37,000 jurists across Canada,  wrote in their Submission to the Minister of Justice on the Proposals to Amend the Criminal Code (General Principles):

"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." [p. 12]

         The General Part is an important part of the Criminal Code.    In the 1990 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 officials of the Department of Justice Canada and the members of the Law Reform Commission of Canada wrote at p. 10:

"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."

           In a time where Canada needs to define itself and where unity is more important than ever, I believe that a modern Canadian Criminal Code with a General Part reflecting modern Canadian values would be an asset for the identity of our country.    What do you think?  Would your leadership applied in this area help the cause of unity?

          Have your officials explained to you the reasons why since the 1988 publication of the Law Reform Commission of Canada report no 31, Recodifying Criminal Law - Revised and Enlarged Edition of Report 30 containing a new and proposed Criminal Code,  we have not yet a new and modern General Part?    It would be a shame, in a time where the word "accountability" is regaining some popularity,  that all the efforts and research on this matter fall into oblivion.  I say nothing about the public money that has been spent.   It has been already more than 10 years since the Law Reform Commission wrote in report 31:

 "As we mentioned in Report 30, the new Criminal Code proposed by the Commission results from fifteen years of philosophical probing,  researching, thinking, debating, writing, consulting and publishing on numerous criminal law subjects.  It also represents the full co-operation of  federal and provincial governments in the Accelerated Criminal Law Review.  The work of these fifteen years was presented prior to  publication of Report 30 in various Reports and Working Papers which should be consulted for a fuller understanding of the present Report." [pp. 1-2]

           I am curious to know what the law teachers in your province, the provincial bar and your citizens will think of the important  position that you will take on this matter.  Do you want a Criminal Code that is clear and simple for the citizens of Manitoba (and the rest of Canada)?    For whom does your ministry formulate its criminal law policy?

           Part of my philosophy on criminal law is that the Criminal Code is one of the most important pieces of legislation for a society.   I think that Canadians should have a Criminal Codethat is clear, simple and understandable (I am not dealing here with  matters of procedure or evidence or other normal criminal law legislative priorities).  I ask you, what is wrong to set a long term goal of having a modern and comprehensive General Part?  For example, what would be wrong in having such a simple rule stipulating that unless negligence is expressly provided for an offence of the Special Part, that intention (that includes recklessness) is the mental state that applies to all the elements of the offences of the Special Part?   For whom do we write a Criminal Code after all?  Professor Fitzgerald has written:

 "Who are the criminal code's intended readers?  The people governed by it - the public as Bentham thought?  Those who have to administer and explain it - the legal profession and the agencies of justice - as lawyers tend to think?  Those surveying its logic, coherence, and systematization - jurists and legal scientists?  Or since codes start life as bills, those who are asked to enact it - the legislators?   Or,  finally, some combination of the above?
 Surely Bentham was right.  A country's law belongs not to its nation's judges, its lawyers, or its politicians but to all its inhabitants and citizens.  The latter are surely the prime addressees of codes, statutes, and other legislation.  This conclusion follows from the basic values and concepts of the common law itself." ... ["Codes and Codifications: Interpretation, Structure, and Arrangement of Codes", (1990) 2 Criminal Law Forum127-143 at 129-130].


        I hope that I have raised your interest on the subject so that we can have a constructive dialogue that will serve the interests of Canadians.  I hope that my tone in this letter has not offended you nor your officials.  English is my second language and I am a very passionate person when it comes to the ideals I believe in.  Thank you for your time.  .
                                                                         François Lareau