François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Telephone: (613) 521-3689
Fax: (613) 521-4522
Ottawa, 28 September 1998
The Honourable John Nilson, Q.C.
Minister of Justice and Attorney General - Saskatchewan
Room 30, Legislative Building
Regina, SK, S4S 0B3
Subject: Reform of the General Part of the Criminal Code
Thank you for
your letter of 17 September 1998 that I received on 25 September.
You write that you "support Ms. McLellan's position that, at this time,
it is not appropriate to undertake a comprehensive recodification of the
General Part of the Criminal Code". At least, your sentence
gives me and about 37,000 other jurists, a faint hope that one day
it may be "appropriate" to reform the General Part of the Criminal Code.
As you know, in 1994, 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
"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]
Even if we had
a modern Criminal Code with a new General Part, it would still be
necessary to have amendments to it because law evolves following developments
and new policy priorities. But we should not let these amendments
(most of them in matters of evidence and procedure) preclude us for setting
out long term objectives for a new General Part followed eventually
by the renewal of the Special Part.
While the federal government is making efforts in specific areas of the General Part, i.e. its recent document - "Reforming Criminal Code Defences - Provocation, Self-Defence and Defence of Property - A Consultation Paper", it is a piecemeal and questionable approach to the law reform of the General Part - quite often these tentative efforts are the results of specific reports to the Department, immediate solutions to problems arising from case-law, or policy wishes from pressure groups. The General Part is like a house, it is difficult to change the height of one wall without affecting the whole house.
I have forwarded some comments to the Department of Justice Canada on part of this consultative paper dealing with provocation. What struck me the most is that nowhere in the paper was there a discussion of the concept of excuse and no discussion of the sentence of murder. It would seem to me that since provocation is a partial excuse, that the concepts of justification and excuse, recognized by our Supreme Court of Canada, would be discussed; however, such an approach would necessarily entail the recognizance of a formulation for the basis of a structure of liability for the General Part! I also found it strange (but not surprising) that the paper would not discuss any possible amendment to the sentence for murder in the event of the abolition of provocation which presently reduces what would otherwise be murder to manslaughter. It did not surprise me, however, because I doubt very much that the government wants to debate the punishment of murder in the House of Commons. This is the approach that I describe as a piecemeal approach... always unsatisfactory...always patchwork!
It is my understanding that you have some experience with committees on law reform (as indicated on the Saskatchewan government web site). Such a fact indicates to me that you are not opposed to change. Your letter does not surprise me, it would seem normal that you follow the advice of your officials instead of a stranger. However, I know that Law is sometimes defines as reason and on this plateau, I think that we can discuss this matter together as equals.
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 the citizens
of Saskatchewan (and the rest of Canada) should have a Criminal Code
that is clear, simple and understandable (again I am not dealing with possible
complex matters of procedure or evidence). I ask you, what is wrong
to set a long term goal of having a modern and comprehensive General?
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? A 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].
To be very
honest with you, I resented your comments that you had noted that "the
work of the various bodies that you have referred to is somewhat dated
now". You should ask yourself, if the primary reason one could interpret
such work as "somewhat dated" (which I don't believe to be so because we
are dealing with principles and reason) is the inertia of the federal and
provincial governments in not acting as the result of the recommendations.
If you want to talk about a document that is "somewhat dated", I
would submit to you, with respect, what Mr. Létourneau wrote
: [translation by me, François Lareau] "Even if our Criminal Code
of 1892 bears the title of ‘Code", it looks more like a simple British
statute of the era. It does not have the attributes that characterises
a true codification: logic, coherence, completeness, clarity and brevity."
["Le Code criminel canadien ou la faillite du pouvoir législatif"
in Wood & Peck, eds., 100 Years of the Criminal Code in Canada:
Essays Commemorating the Centenary of the Canadian Criminal Code, 1993,
p. 67-85 at 78].
well know, 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 Canadian values would be an asset for this country.
What do you think? Can you help the cause of unity?
Can you tell me why countries like Germany, Spain and France are capable of enacting a modern Criminal Code for their citizens, while we can only offer amendments "à la Income Tax" to our Canadian citizens? Sometimes, I am jealous of their achievements! Are Ministers of Justice in Canada taking their responsibilities and setting long terms goals? Are Ministers thinkers or are they merely satisfied of being feed ideas by their policy makers? Minister: Ask questions...contest easy positions and answers, get involved...because we need leaders in Canada! We need you.
I am curious to know what the law teachers in your province, the provincial bar and your citizens think about your position? Have you consulted them? If I have the time, I will write to some of them.
Have your officials
explained to you why it is that since the publication in 1988 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?
Ask your officials, you are the Minister...such a question would be more
than legitimate. As a last favor, please you keep an eye on
this file on the reform of the General Part. It would be a shame
that all the efforts and research fall into oblivion (become "outdated"?).
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 hope that I have raised your interest on this subject of the General Part...and eventually for a new Criminal Code (and why not ... a Code of Criminal procedure and a Code of evidence).
Thank you for the dialogue. It have benefitted from your comments that have forced me to reflect on the final priorities of law. I respect your opinion and position. I hope that we will correspond again on this matter. Finally, to terminate, I hope that my tone in this letter has not offended you. English is my second language and I am a very passionate person when it comes to the ideals I believe in (are these facts justifications or excuses?!). Thank you for your time.