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The author trys to find some rational justifications for the power of the State to impose penal sanctions. He explains why in some exceptional situations the mecanisms of the penal system cannot be replaced by other alternatives. The State has to maintain its power to impose penal sanctions in three particular cases : in the case of dangerous offenders such as multirescidivists : in the case of persons who are not willing to execute the « alternative » measures ; and, most important, in the case of new offenses like impaired driving or crimes against the environment where the state has to be very tough. These are crimes of great danger for society and the offenders are often conscious of the dangerous nature of their conduct.

The author attempts to demonstrate the difficulty of applying the new test provided by s. 244(4) of the Criminal Code and concerning the sincerity of the accused's belief in a case of sexual aggression. Even if the judges of the Supreme Court of Canada, in two recent decisions (Bulmer and Robertson), reaffirmed the principle of Pappajohn that an honest and sincere mistake of fact to the existence of the victim's consent can constitute a defence to a criminal charge, we must give an explanation why the legislator changed the law by introducing this partly subjective and partly objective test. The author think that this new test creates much confusion ; it will be very difficult for judges to explain it adequately to the jury and for jury members to understand its real meaning. In conclusion, the author believes that once again the legislator created an ambiguous situation because he did not dare to impose a clearly objective test.

The present study deals with two particular aspects of the problem of retrospective operation of criminal statutes. The principle of the retrospective operation of a procedural statute, as will be seen first, bears some exceptions. S. 36 of the Interpretation Act in particular prescribes that the retrospective operation of procedural enactments takes place only to the extent that the new rules of procedure may be adapted to proceedings taken before the new rules came into effect (R. v. Mustapha Ali). Yet, as will be seen subsequently, it is often very difficult to distinguish between an enactment of substantive nature and one of procedural nature in order to give a retrospective operation to the latter only. This difficulty arose particularity after the modifications of the Criminal Code concerning the offence of driving a motor vehicle with more than a specified proportion of alcohol in the blood (R. v. Johnston). After a brief discussion of those two cases, the author suggests that it is the duty of the legislator to indicate in clear terms what the retrospective operation of a new statute will be, in order to avoid many problems of interpretation.

The present study is a critical approach to the Canada Law Reform Commission document concerning homicide. This study deals with two particular aspects of the law of homicide. In the first chapter we suggest the creation of a special category of homicide, the « homicide passionnel », for the following reasons : first of all the substantive defences, like intoxication, self-defence, diminished responsibility and provocation are too narrow. Especially with provocation, the application of the objective test is detrimental to the more vulnerable population which lacks educational and financial resources. Secondly, we cannot compare the robber who kills by using his weapon with the person who kills in a state of excitement, jealousy or anger. Besides, many foreign laws have recognized this category of « hot-blood » homicide. So, we think that is time for Canada to abolish the defence of provocation (s. 215 Cr. C.) and create this specific offence. In the second chapter, we suggest criminalization of homicide by negligence. Actually, we can see the difficulty judges have in convicting someone for criminal negligence when the death of a person is due to trafic « accident ». Many foreign criminal codes have created this offence. We find it fair to impose the duty of the reasonable person on those who take certain risks by using motor vehicles or other machines for their benefit or spare time.

Following a number of acquittals based on a strict interpretation of the terms of the Food and Drugs Act, the Supreme Court of Canada recently had to determine, in Dunn, if a mushroom containing « psilocybin » was a restricted drug despite the fact that the legislation was referring only to the chemical substance and not to the plant itself The Supreme Court found that the text was clear and that the fact that « psilocybin » may be contained within a mushroom does not destroy its character as a restricted drug. Drug traffic must naturally be condemned, but that is not the problem for the moment. The problem is that the Supreme Court of Canada adopted, in Dunn, the rule of the liberal interpretation of a penal statute despite the fact that, not so long ago, it chose a different approach when dealing with a different statute. We are critical of both the way the inferior courts treated the cases before them and the way the legislator treated the problem. We think that it was possible for the lower courts to find the accused guilty of attempting to commit the offense. We think also that it was possible for the legislator to anticipate those situations and take some precautions by deliberately adopting a text capable of embracing these cases.