Exorcising S.230 (and other Poltergeists) from the Criminal Code
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This week in my Criminal Law and Procedure class at Robson Hall, the students and I had an engaging discussion about several first-day topics. Mostly, we canvassed the sources of Canadian criminal law, the role of the common law in interpreting the Criminal Code and other issues of statutory interpretation. All standard stuff for the first week. Somewhere in the midst of all this, we spoke about how there were certain provisions or language within the Criminal Code, which, despite the fact that they have been deemed unconstitutional by the Supreme Court of Canada, are still present as though they continue to have life. Indeed, the only way to excise them is for Parliament to do so.
An example of such a provision is s.230 of the Criminal Code. This contains the so-called 'constructive murder' or 'felony-murder' provisions (an offence about which we often hear through American films and television). It effectively provides that an accused may be found guilty of second-degree murder if the accused killed another during the commission or attempted commission of certain specified crimes (e.g. sexual assault, robbery, arson, treason) regardless of whether the accused intended to cause death or knew that death was likely to occur.
In various decisions, the Supreme Court of Canada held that portions of s.230 were unconstitutional (see Vaillancourt, Martineau and Sit). They were unconstitutional because Parliament allowed for the possibility of conviction without the Crown having to prove beyond a reasonable doubt that the accused had subjective foresight of death. One might assume that such judgements would be decisive. Indeed, I mentioned to my class that it was unlikely that a court would ever convict on the basis of s.230 these days. That was Wednesday morning. Then, Thursday happened.
In a decision which has probably left any number of persons in the Canadian legal academy, the practicing bar and/or the general public shell shocked, Alberta Queen's Bench Justice Denny Thomas yesterday found an accused, Travis Vader, guilty under s.230. Yes, that s.230. See Paula Simons' article here.
Needless to say, this was an error of epic (and by epic, I mean death star-sized) proportions - an accused being found guilty of a provision that was deemed unconstitutional by the Supreme Court of Canada over two decades ago.
On some minor level, I feel a measure of sympathy for Justice Thomas. One cannot imagine the level of embarrassment he must be enduring right about now. I don't wish to pile on the already voluminous and more eloquent commentary currently coursing through the Internet. That said, one cannot but feel a much greater degree of sympathy for the family of the victims in light of this error and what it may mean (i.e. a re-retrial).
Like many of my colleagues across the country, I have often commented to my students every year that Parliament needs to excise such unconstitutional language from the Criminal Code. Indeed, Professor Don Stuart at Queen's University has been saying this for years. The failure to repeal these provisions is quite simply a dereliction of Parliament's duties.
I would hasten to add that s.230 is not the only problematic area of the Criminal Code. For example, in Martineau, the Supreme Court of Canada has also held that the words "ought to know" as found in s.229(c) are unconstitutional given that such words establish an objective fault standard whereas a subject fault standard is constitutionally required for murder. Professor Kent Roach has identified a few cases where trial court judges have erroneously included the unconstitutional "ought to know" language when instructing juries with respect to s.229(c).
The task of ridding the Criminal Code of unconstitutional provisions or language may not be exciting work (as if that were a standard anyway). But it is necessary. Convictions based on provisions struck down by our highest court bring the administration of justice into disrepute and are a waste of economic resources. It's time to exorcise s.230 (and other unconstitutional legislative poltergeists) from the Criminal Code.
 The Court did not initially require a subjective fault standard (mens rea) in Vaillancourt (1987). Instead, the Vaillancourt Court required that, at the very least, the Crown had to prove guilt on the basis of an objective standard of fault. S.230(d) failed to meet this. Subsequently, in Martineau (1990), with respect to s.230(a), the Court mandated that nothing short of the Crown proving subjective foresight of death on the part of the accused would be sufficient to ground a conviction for murder. As always this had to be proven beyond a reasonable doubt. In R v Sit, the Court applied the holding in Martineau to s.230(c).
 To Parliament's credit, it did get around to repealing s.230(d) in the early 1990s. It just left all the other portions intact.
R v Martineau,  2 SCR 633,  6 WWR 97
R v Sit,  3 SCR 124, 66 CCC (3d) 449
R v Vaillancourt,  2 SCR 636, 47 DLR (4th) 399