François Lareau, LL.M.
55-890 Cahill Drive West
Ottawa, ON, K1V 9A4
Tel.: (613) 521-3689
Fax: (613) 521-4522
Web Site: http://www.achilles.net/~flareau
Ottawa, February 14, 1999
The Honourable Greg Byrne, Q.C.
Minister of Justice and Attorney General - New Brunswick
P.O. Box 6000
Fredericton, NB E3B 5H1
Subject: Reform of the General Part of the Criminal Code
I am writing to you on the issue of a comprehensive recodification of the General Part of the Criminal Code. I wish to advise you of the result of some of my correspondence on this matter with the Ministers of Justice. I will also inform you of other developments.
A conclusion of my correspondence with the Provinces and Territories is
the benefit the Ministers of Justice would get from attending a conference
on the issue of the reform of the substantive criminal law (as opposed
to criminal law procedure). Such a conference just for ministers
with emphasis on the General Part could be organized by the federal government
in view of its jurisdiction in this matter. During a one or two day
meeting, the Ministers could discuss freely and without the time constraint
of having a thousand matters on the agenda (diluting the possibility of
coming to meaningful decisions), the following:
- 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, why not? Could the provinces in its administration of justice save money with such a simplification of the law? 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. Have the Ministers even been shown models of what a modern General Part looks like? For example, have you 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 input 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 for the provinces? Is there too much duplication of efforts between different levels of officials? Is too much time being spent on briefing notes by your officials? When is the last time, the consultation process has been reviewed? Would Ministers and Deputy-Ministers like to see the process 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 (correction of child by force); 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 other 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]
"The National Criminal Justice Section is strongly of the view that reform of the General Part of the Criminal Code should occur in a comprehensive and principled manner. The Consultation Paper is focused solely on three problematic defences which it proposes be amended in the absence of tackling the broader problem of recodifying the General Part. We are concerned that this type of incremental approach is inherently problematic. It serves to perpetuate a Criminal Code which is archaic, incomplete, poorly organized and difficult to understand. Piecemeal modifications undercut the pressure on the Federal Government to undertake this comprehensive reform. That said, the National Criminal Justice Section understands that there are no plans to undertake comprehensive reform of the General Part at this time. Our comments on the proposed options for reform of the Criminal Code defences should be understood within the context of our strong preference for comprehensive reform."
In time, you and your staff may agree that piecemeal legislation for the Criminal Code in matters of the General Part is not in the best interests of your ministry and the citizens of Canada.
I have started a web page, "Chronology - Towards a Modern General Part of a New Canadian Criminal Code?" at "chronologie_.htm". I have posted some of our correspondence there. I hope that this chronology and my other web pages on General Part matters will encourage research and promote the importance of the General Part.
I recently informed Mr. Morris Rosenberg (as a recipient of an information copy of a letter), that "maybe a small group of professors should get together and draft a General Part. You may recall that such action was taken in Germany (Alternative Draft of a Penal Code for the Federal Republic of Germany) and in England (Codification of the Criminal Law - A Report to the Law Commission)." I am not a professor of law but I seek to create some dynamism in this area. Do you have any views on this suggestion?
Can I ask if New Brunswick has developed a policy on the reform of substantive criminal law for the Criminal Code. For example, what are its final objectives? I would like to post it on my web site. It would encourage dialogue on this very public matter.
In my first letter, I had written "I am curious if your department submitted a brief in response to the June 1993 document ‘Proposals to amend the Criminal Code (general principles)' or for the documents of November and December 1994 mentioned above". I still have not received a reply to this question. I have already received replies from other Ministers of Justice and officials. This is important for the research being done in assessing the degree of participation in the consultation process in place. Could you ask your staff to look into this matter again and give me the information as soon as possible? It would be nice if that research would come at an end after six months! Thank you.
Thank you very
much for your time.
cc: The Honourable A. Anne McLellan
Mr. Morris Rosenberg"