François Lareau, LL.M.
55-890 Cahill Dr. W.
Ottawa, ON, K1V 9A4
Tel (613) 521-3689
Fax (613) 521-4522
E-mail: flareau@achilles.net
18 September 1998
Canadian Association of Chiefs of Police
Mr. Bryan McConnell, Executive Director
130 Albert St., Suite 1710
Ottawa, ON, K1P 5G4
Subject: Reform of the General Part of the Criminal Code
Sir:
I am writing this letter to you in order to inform you, the Board of Directors of the Canadian Association of Chiefs of Police and all the members of the Association of the position (that you may not know) of the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada on the reform of the General Part of the Criminal Code. I am also writing this letter to seek support in reversing that position. I think that it would be to the advantage of all police officers and all Canadians if there was a clear General Part in the Criminal Code. You will find attached a photocopy of Mrs. McLellan's letter dated 16 April 1998 in which she informs me that "...it is my not [sic] intention to undertake a comprehensive recodification of the General Part". You will also find enclosed a photocopy of my three letters (with a copy of the letter of the Honourable Allan Rock dated 25 April 1994).
What is
a General Part? In the 1990 Department 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."
Let me
you give some background to this file followed by some arguments.
- in 1986, the Law Reform Commission of Canada published its report number 30, Recodifying Criminal Law, followed in 1988 by report number 31, Recodifying Criminal Law (A Revised and Enlarged Edition of Report 30); please note the acknowledgment of the work of the Canadian Association of Chiefs of Police at p. 92 of Report 30 (copy enclosed). The Association also prepared in 1987 a 112 p. document An Evaluation of Volume I of the Report 30 Published by the Law Reform Commission Canada and titled "Recodifying Criminal Law ;
- in June 1990, the Honourable Kim Campbell, Minister of Justice and Attorney General of Canada asked the Standing Committee on Justice and the Solicitor General to review the General Part of the Criminal Code (I attach a copy of the Justice Communiqué);
-in February 1993, the Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General submitted its report: First Principles: Recodifying the General Part of the Criminal Code of Canada - Report of the Sub-Committee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General (I attach a copy of pp. 1-4 of the report); you will remember that your association had submitted a document "Submission and Brief by The Canadian Association of Chiefs of Police for The House of Commons Standing Committee on Justice and the Solicitor General Concerning The Framework Document on the Proposed New General Part of the Criminal Code" dated May, 1991; Chief Tom Flanagan, Ottawa Police Force and Superintendent John Lindsay, Edmonton Police Force had attended the proceedings as witnesses;
-on 28 June 1993, the Minister of Justice Canada, the Honourable Pierre Blais, disclosed his white paper "on the renewal of the General Part" entitled "Proposals to amend the Criminal Code (general principles)" (attached is a copy of the Department of Justice Canada's News Release);
- on 12 November 1994, the Minister of Justice Canada, the Honourable Allan Rock, made public his consultation document, Reforming the General Part of the Criminal Code followed in December 1994 by the accompanying technical document Toward a New General Part of the Criminal Code - Details on Reform Options (I attach a copy of the Department's of Justice Canada's News Release);
- in a document, Overview of Recent Activities and Departmental Achievements, Department of Justice of Canada, dated August 1997 and posted on the internet web site of the Department of Justice Canada (as seen on 12 August 1998 at http://canada.justice.gc.ca/Presentation/index_en.html), we read:
"REFORM OF THE GENERAL PART OF THE CRIMINAL CODE
The Department is reviewing the general rules of the principles of liability and defence to make them more complete and understandable to Canadians, to reflect modern societal values and court decisions, and to foster respect and confidence in the criminal justice system.
Consultations with provinces, the Canadian Bar Association, women's groups, police and other stakeholders will proceed throughout 1997." [emphasis in bold added]
- finally, concerning the consultations on the three defences mentioned in Mrs. McLellan's letter dated April 1998, a document Reforming Criminal Code Defences : Provocation, Self-Defence and Defence of Property - A Consultation Paper was made public in July 1998.
Is
the Association of Chiefs of Police in agreement with the position of the
Minister of Justice Canada as expressed in her letter of April 1998 that
a comprehensive recodification of the General Part not be undertaken?
How many years, efforts, money and cooperation has the Association of Chiefs
of Police given to this project of reform? Has the Association
achieved its objectives? Would not the administration of Justice
be better served if a new General Part would explain to its judges,
lawyers, police officers and citizens and citizens the basic principles
of liability. Our Criminal Code is looking more and more like
the Income Tax Act. Every year, there are amendments and amendments.
The present "General Part" does not explain the rules concerning states of mind like intention, recklessness, criminal negligence and penal negligence nor does it deal with a number of important defences such as necessity. In fact, it is impossible by reading the Criminal Code to know what constitutes guilt, blame or a blameworthy mind. Even if one reads all the case-law about mens rea there is still a multitude of questions left unanswered. Modern criminal codes have a general part and a special part (for the offences). The General Part should not be written by the Supreme Court of Canada but by Parliament! Would it not be nice to have in our Criminal Code a provision as simple as s. 15 of the Penal Code of Germany which reads in its translation: "[§ 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 (The American Series of Foreign Penal Codes, vol. 28) at p. 54]?
Your association knows and understands how important it is for a society and its citizens to have a modern and clear Criminal Code. Ideally, there should be, like in other countries, a Criminal Code (for substantive law) and a Code of Criminal Procedure. There could also be a Code of Evidence.
I can not understand the position of the Minister. Your association has a vital interest in this project of reform. The Minister of Justice Canada will listen to your organization if you write to her in order that all the work and efforts regarding the recodification of the General Part do not fall into oblivion. I believe that the Minister of Justice Canada should publicly set an agenda for the reform of the General Part and the Special Part of the Criminal Code. In other words objectives and a reasonable time table.
In 1994,
the Canadian Bar Association representing more than 37,000 jurists across
Canada wrote in its 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."
I have no doubt that your President Chief Lindsay will be very interested in this file as he represented your organization at the hearings of the Sub-Committee on the Recodification General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General on 8 December 1992. This matter should also be of interest to the chairman of your Law Amendments Committee.
Thank you
for having taken the time to read this long letter. I wanted
to give as much facts as possible in order to make a valid decision.
I hope to hear from you in the near future.
Sincerely,
[signature]
François Lareau"