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
"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?
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. .