François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Telephone: (613) 521-3689
Fax: (613) 521-4522
Ottawa, 9 November 1998
The Attorney General Charles Harnick
Ministry of The Attorney General
720 Bay St., 11th floor
Toronto, ON M5G 2K1
Dear Mr. Harnick:
Subject: Reform of the General Part of the Criminal Code
Further to my letters of 12 August and 15 October 1998, I have received a letter from one of your official dated 2 November 1998 (copy of all letters attached). Thank you.
I was somewhat upset that your officials did not prepare for you an answer. I am very much interested in your official criminal law policy as Attorney General. I am not interested with the policy of your officials who cannot speak on your behalf. I have written to other Attorney-Generals who have recognized the importance of the subject and have answered me directly. One of the purposes of these letters is, of course, to force the articulation of a policy on this matter.
Am I to interpret the letter of your official to mean that the policy of the Attorney General of Ontario is that "a comprehensive review of the entire General Part of the Criminal Code is not crucial" ? Or should I interpret the letter to mean that as the Attorney General of Ontario, you have not developed a policy in this matter and that you are satisfied to describe the status quo in which Ontario plays a very passive role? I think that it would be important for the citizens of Ontario if your officials could prepare a position paper on this subject. Could you be so kind as to inform me if my suggestion makes sense to you?
will probably brief you on the importance of the General Part. It
contains an expression of Canadian values. In the 1990 Department's
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:
"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."
The General Part of
our present Criminal Code is incomplete and most of its provisions
come from the work of an English Commission in 1879. In my opinion,
a new General Part, leading to a modern Criminal Code of substantive
law (as opposed to criminal law procedure or evidence), would be a step
in favor of Canadian unity.
the Canadian Bar Association, representing more than 37,000 jurists across
Canada, wrote in their 1994 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."
of the position of the CBA, I am somewhat surprise when your official states
"that a comprehensive review of the entire General Part of the Criminal
Code is not crucial." I think that it is crucial that the citizens
of Ontario have simple rules governing intention for example. Some
modern codes have a simple rule on this matter, for example s. 15 of the
German Penal Code reads: "15 [Intentional and negligent conduct]
If a statute does not expressly make negligent conduct punishable it shall
be construed to require intentional conduct" (The Penal Code of the
Federal Republic of Germany, Littleton, Rothman, 1987).
The Criminal Code is great for the technicians of the criminal law.
Maybe you should ask your officials to give you a short paper on mens rea
and what it means in criminal law. However, as Attorney General you
must understand that the substantive law is not written for these lawyers
but for the general population. As 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 Forum 127-143 at 129-130].
The Criminal Code is looking more and more like the Income Tax Act. The Attorney General of Ontario should have a policy and objectives on this matter. It is your duty sir. Recodification of the General Part, the first step in a modern Criminal Code is not a loss of time. Kant once stated that there is nothing more practical than a good theory.
In my letter of 12 August, I had asked the question: "I am curious if your Ministry 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? In the affirmative, would it be possible to obtain a copy please. Thank you." Could you have one of your officials advise you on this matter so that you can respond to me?
Please excuse the tone
of my letter but when I read the reply I had the impression that if I had
not written a reminder on 15 August, I would have never had received a
reply. Secondly, I concluded that my arguments had not been considered
on its merits. I hope to hear from you in the near future.
copy: Annamarie Castrilli, MPP
Marion Boyd, MPP
Room 1412, Whitney Block, Room 210, North Wing
99 Wellesley St. W., Legislative Building
Toronto, ON, M7A 1A4 Toronto, ON, M7A 1A5