Criminal Code long overdue for overhaul

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This article was published 20/9/2016 (998 days ago), so information in it may no longer be current.

As legal goofs go, Alberta Court of Queen’s Bench Justice Denny Thomas’s verdict in the Travis Vader murder trial for the slaying of vanished-without-a-trace retired couple Lyle and Marie McCann was a doozy.

That’s not only because Justice Thomas’s second-degree murder conviction relied on a long-dead provision of Canada’s Criminal Code, but also because his trial judgment, the first ever live-streamed from an Alberta courtroom, was ballyhooed as a signal judiciary-media compromise in the campaign to put cameras in courtrooms.

This isn’t the kind of televised debut the judiciary wanted to see.

The judge should have known that Section 230 of the Criminal Code, which makes an accused liable for murder while committing or attempting to commit a roster of other offences, is dead law. The offence was declared unconstitutional due to its breach of the Charter of Rights and Freedoms by the Supreme Court of Canada in 1990, and, just a year later in another decision, our highest court confirmed it was of "no force or effect."

As the second-degree murder verdict is based on an unconstitutional law, there’s a good chance it will be overturned on appeal. However, Vader may well be found guilty of the lesser charge of manslaughter, based on the trial evidence and judge’s findings of fact.

This kind of judicial error, though perhaps not pardonable, and regrettable for being so public, was almost inevitable.

Section 230 is part of Canada’s published Criminal Code. Google "Canada’s Criminal Code" and up pops the federal justice department’s website. It quickly links you to the Criminal Code, and you can scroll down to find Section 230, "Murder in the Commission of Offences," duly codified as part of our criminal law. Except, it isn’t.

At base, Canada’s Criminal Code is just a catalogue, a catalogue of acts the state has determined to be wrong and deserving of punishment. It’s also a catalogue of stuff that should no longer be there.

Every year, Parliament passes laws that add to, or amend, the code’s more than 800 sections, which is what Parliament is supposed to do. However, Parliament has a corresponding duty to repeal outdated, unenforceable and unconstitutional criminal laws. It’s failed miserably in that duty.

Section 230 is only one of a number of code provisions that have long since been ruled unconstitutional by our highest court due to their violation of the Charter of Rights and Freedoms, yet are still on the books.

Abortion is a prime example. Abortion is legal in Canada, but you would never know it from reading our Criminal Code.

Section 287 of our code makes abortions illegal, except for hospital committee-certified abortions. But the whole section is a strawman long ago blown away by the Supreme Court. The court found it violated the Charter of Rights and Freedoms in the Morgentaler decision.

In the mid-1980s, Dr. Henry Morgentaler set up an abortion clinic in Toronto that performed abortions on women who hadn’t received certification from a hospital therapeutic abortion committee, as stipulated by the Criminal Code. The charges against him wound their way from the trial and appellate courts and finally to the Supreme Court, which found it an unconstitutional infringement of a woman’s charter right to "security of the person." That was in 1988. Twenty-eight years later, it’s still in the code.

Another example is the crime of anal intercourse, spelled out in Section 159 of the Criminal Code. Though never dealt with by the Supreme Court, two provincial Courts of Appeal (Ontario and Quebec) ruled it unconstitutional in the 1990s. As a result, it’s an offence universally ignored by police and prosecutors, widely deemed an attempt to wrongly extend the criminal law into a place it has no business being. Still, there it sits, a law that still notionally governs our private lives.

You can even flip through our Criminal Code and find other crimes that haven’t been prosecuted in over a century — witchcraft, blasphemy — and that would never withstand a Charter challenge. Yet, there they are, published and re-published every year in the annual Criminal Codes carried around daily in Canadian courtrooms by prosecutors, criminal defence counsel and judges.

Archaic and unconstitutional sections of the Criminal Code should be repealed. Our criminal law is long overdue for a major overhaul. Parliament and the politicians that populate it have a duty to produce a Code that’s reflective of what the law actually is.

"Ignorance of the law is no excuse" is one of the hoariest sayings in our law, but if an experienced senior court judge like Justice Thomas can’t figure out what the law is because of a cluttered and clogged-up Criminal Code, how is the average citizen supposed to know what it is?

Worse, until the code is cleaned up, we’re bound to see a repeat of the kind of unfortunate judicial error that surfaced in the Vader verdict.

Douglas J. Johnston is a Winnipeg lawyer.