• Melanie Murchison (UMadison, Wisconsin)

Time to Kill Canada’s “Zombie Laws”

On June 6, 2017 the current Federal Justice Minister, Liberal MP Jody Wilson-Raybould introduced Bill C-51 which continues to take action to fine tune the Canadian Criminal Code. While no one has been charged with many of the laws slated for repeal in recent memory, anyone opening up the Criminal Code (or more likely pulling it up online) would see that these laws are still there. No asterisks, no notation, nothing to indicate they aren’t valid laws, except they aren’t. Confused? Good!

Therein lies the problem with these dusty pieces of legislation affectionately referred to as “zombie laws”.1 “Zombie laws” aren’t just laws that have failed to keep up with modern times, or that Canadians have decided are less important but are laws that judges have already declared unconstitutional (null, void, unenforceable) but have not been removed from the Code itself! There are a significant number of these zombie laws still living, or at least undead, in the Criminal Code, which, prior to this year hadn’t had a thorough update since the 1970s; they had languished in relative obscurity until the 2016 conviction of Travis Vader by Justice Denny Thomas for the “culpable homicide” of Lyle and Marie McCann under section 230 of the Criminal Code.

What’s the problem with that? Well, S. 230 was technically still sitting in the Criminal Code, but it had been ruled unconstitutional more than 15 years previously in R. v. Martineau in 1990.2 This judicial error led to Vader being convicted of the less serious crime of Manslaughter instead and rejuvenated discussions about modernizing the Criminal Code, something the Canadian Bar Association had argued was necessary for years previously.3 The process of removing “zombie laws” and updating the Criminal Code began on International Women’s Day (March 8), 2017 when the current government introduced Bill C – 39 “An Act to Amend The Criminal Code (Unconstitutional Provisions)”.4

That bill, which is still before the house, removes several “zombie laws" including S. 230 and, arguably the most famous unconstitutional law still on the books: S. 287. Section 287, formerly S. 251, is the section of the Criminal Code that most directly deals with procuring an illegal miscarriage (or obtaining an abortion) and is the law that was successfully challenged by Dr. Henry Morgentaler in R. v. Morgentaler in 1988.5

Interestingly enough, while several “zombie laws” were targeted by Wilson-Raybould, in this most recent bill, there were laws that had been dead (in legal and practical terms) for years, including S. 49 “Alarming Her Majesty”, S. 71 “Challenging or Accepting a Duel” and S. 143 “Making a Reward with “No Questions Asked” For the Return of Stolen Property”. Section 296 “Publishing Blasphemous Libel” had received attention from scholars quite recently (including our own James Gacek here!).6

While both C- 39 and C -51 have a long way to go before they can kill the zombies (they have to get past second reading still!), the current government should be commended for continuing to modernize the Criminal Code. Here’s hoping the process continues and that we can kill the Zombies once and for all.

Footnotes

1 C-51 (2017) First Reading 42nd Parliament Retrieved From: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-51/first-reading

2 See R. v. Martineau [1990] 2 SCR 633

3 Canadian Bar Association Blog (2017) “Eliminating Canada’s Zombie Laws” Retrieved From http://www.nationalmagazine.ca/Articles/March-2017/Eliminating-Canada-s-zombie-laws.aspx

4 C -39 (2017) First Reading 42nd Parliament Retrieved From http://www.parl.ca/DocumentViewer/en/42-1/bill/C-39/first-reading

5 R v Morgentaler [1988] 1 S.C.R. 30

6 Criminal Code, R.S., c. C-34, s. 296

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