It is anticipated that the Federal Government of Canada is gearing up, polishing off those sawed-off shotguns, wrapping baseball bats in barbed wire, and getting ready to wage war on the country’s so-called “Zombie Laws”. Zombie Laws are the colloquial term for laws in our Criminal Code that have been struck down by the courts long ago, but still remain in the legislation: Dead beneath the surface, but ostensibly alive and well, lurking amongst our real laws … the living dead.
Why were these laws not given a proper burial long ago? And why does it matter?
Much of Canadian law is basically inaccessible to most Canadians. It is there and it applies to us all, but it is not necessarily for us to know or understand. This is why we have lawyers. (See, there is a reason, I swear). The average Canadian is not capable of understanding the legal issues involved in selling his or her house. The average Canadian is not capable of understanding the legal requirements and protections associated with starting or selling a business. But the law exists. Some of this law is codified, some of this law is based on common law precedence. Frankly neither are easily accessed or understood by the lay person. So you hire a professional to advise you. You don’t know; you don’t need to know. When you do need to know, you’ll find out.
Criminal law in Canada, however, has always been treated a little bit differently. There are serious implications to breaking the criminal law and these laws apply in the day-to-day world … not just in the context of a legal transaction wherein the person know he or she is entering a “world of legal issues and consequences”. This is why the feeling is people ought to be able to access the Criminal Law as much as possible. No doubt, the extremely vast and complex issues involved in defending a criminal charge and navigating the criminal justice system will never be fully accessible to those who have not undertaken hundreds of hours of legal training and thousands more of practice. But the actual criminal offences – what acts or omissions are criminally prohibited – ought to be knowable to everybody subject to those laws, at least as much as possible.
And for the most part, that is an accepted principle in our country. The laws are written in black and white in the Criminal Code of Canada. The practical reality, however, is that the Code is often complex, at times vague, subject to interpretation (some open, some established through caselaw) and there is a heck of a lot going on beneath the surface of even the simplest clause.
So why not just write down all the established interpretations into the text in simple and plain and pared-down language? Well, to be fair, the complexities are necessary (to an extent): there are nuances and exceptions and interpretations and not every single legal precedent on the criminal law can be codified. The document is unwieldy as it is. Judges have the authority and obligation to interpret the Criminal Code and hold it to the standard of the Constitution. They do not have the authority to change the Code, only to explain, elucidate, interpret, or limit its effect. Actual changes to the Code must come from the legislative branch. It would be unrealistic to expect Parliament to change the language in the statute every time the courts make a determination about the law. For one, these things are fluid. Precedence is precedence, but times change, societal attitudes change, and even the Supreme Court of Canada will revisit certain interpretations it has previously taken. Also, it is unrealistic to codify every decision. The document would become untenably large and the process in Ottawa of amending the Code every week is not a realistic possibility.
This is why a reader of the Code must go outside the four corners of the document to fully understand what the law actually is. It is necessary.
But sometimes when a judicial decision about a Criminal Code provision is so important and so final, it is misleading and dangerous to leave the provision as it. This is particularly stark with respect to offences that have been “struck down” by the Supreme Court due to unconstitutionality. These are the “Zombie Laws”, and they are problematic. If the Supreme Court determines this is no longer a criminal offence, it is not sensible to leave it in there and require Canadians to somehow know that it is not applicable.
For example, a Canadian may well look at the Criminal Code provision on roadside drunk driving tests and see that the officer needs to perform the test “forthwith”. Most Canadians don’t know that “forthwith” means in this context. (Some police officers don’t either. Commentary!) It does in fact mean something very specific. (Well, not very specific, but as specific as Canadian courts tend to be in defining such things). There is an answer based on precedent law. It just isn’t in the Code, because it would be unrealistic to codify every judicial interpretation of the law. If any Canadian is particularly bothered to know what “forthwith” means, he or she may try to find the relevant caselaw, read a secondary source explaining the caselaw, or hire a lawyer. If you are that curious, you can look outside the four corners of the text.
But if the same Canadian opens his or her Code today, or more likely accesses it online, looks to Section 287, he or she will read: “Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years”. Unlike the “forthwith” provision, there is not really a lot of room for interpretation here. There is not really a question of “I wonder what that means … I wonder if there is some caselaw explaining the meaning of this wording”. There may be a question of “wait, really?” But the provision is clear: abortion is a criminal offence in Canada.
Of course, it is not. Not anymore. But nothing in the Code tells you that. At the end of the section about how abortion is criminal, it moves on to talk about the next crime. Ask any lawyer and he or she will tell you “oh, an interest fact about Section 287 of the Code – completely ignore it. It was struck down as a violation of Section 7 of the Charter of Rights and Freedoms … about 30 years ago. It is not the law … at all.”
But there it is, in the same shades of black and white as all the law that – lo and behold, is actually the law. This is just the opposite: it is very much not the law … but how are you supposed to know that? Canadians are meant to simply know that following S.287(7) is an invisible and theoretical subsection S.287(8) stating “Notwithstanding the foregoing … JK! It’s totally legal! Don’t even worry about it!”
Some may say that this is obvious to any Canadian; that it is an important enough criminal legal issue that any reasonably informed Canadian would know to “read in” the asterisk which denotes that the offence and its many provisions are all to be completely ignored. That for provisions such as this, well … everyone knows. Everyone who would matter anyway.
But consider this: a Supreme Court Justice presiding over a murder trial failed to “know” to ignore an extremely important section of the Criminal Code on murder which is – like the abortion law – of no force or effect in Canadian law. The infamous decision in the recent R. v. Vader case turned on the application by the judge of Section 230, which converts wrongful death during the commission of another offence – which would otherwise be Manslaughter – into the much more serious offence of Murder. That’s an important provision. That provision has – like the abortion prohibition an invisible “… not!” at the end of it. But guess what – because it is invisible, the presiding justice did not see it. And he convicted a man of murder.
Of course that decision does not stand and the mistake shall be remedied. But let that unfortunate mistake highlight the absurdity of issuing newly minted “up to date” versions of the Criminal Code every year repeating very clear declarations of the law that have been absolutely incorrect for decades.
It is very possible that by the time you are reading this, the Federal Government has announced steps to amend the Criminal Code to purge it of these “Zombie Laws”. Which is, speaking of zombies, a no-brainer.
But even if this is done, questions still remain about the transparency of Canadian law, the accessibility of Canadian law, and the extent to which citizens can be expected to know about the laws that affect them. Maybe this is not something that bothers most Canadians. But the questions remain. Keep these in mind next time you take a copy of your Criminal Code to read on the beach on your next vacation.