Dear Sir or Madam:

Today we are pausing our historical exploration of the BNA Act to address the decision that is sending shockwaves through the Canadian legal twitterverse and beyond. The Vader trial.

Yesterday, the Hon. Justice Denny Thomas of the Alberta Court of Queen’s Bench delivered the much anticipated verdict in the Vader murder trial, convicting Travis Vader on two counts of second degree murder. In 2010, Lyle and Marie McCann disappeared en route from Alberta to British Columbia; their bodies were never located. Police later discovered the McCanns’ SUV and burned-out motorhome. Investigators found Vader’s DNA in the SUV and evidence that Vader had used the McCanns’ cell phone.

In an unprecedented move for Alberta courts, Thomas J. delivered his judgment on live TV. In his decision, Thomas J. relied on s. 230 of the Criminal Code¹ to convict Vader. Criminal law experts have called this an egregious misapplication of the law.² Though s. 230 is still listed in the Criminal Code, it is not a live provision: the Supreme Court of Canada (SCC) declared the provision to be of no force or effect 25 years ago in the case R. v. Martineau.³

What does it mean practically for a law to be of no force or effect?

The constitutional supremacy provision, Section 52(1) of the Constitution Act, 1982, states that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."⁴ Essentially, the Courts can invalidate any provision that they find inconsistent with the constitution. As a result, a conviction under s. 230 cannot stand.⁵ Vader’s defence lawyers will appeal the conviction to the Alberta Court of Appeal at about the same time that this post goes live.⁶

Now the question is, how does this egregious error of an Alberta superior court in 2016 relate to the BNA Act? In our introductory week, we stated that this project seeks to address how Canada’s formation affects our nation TODAY. Parliament’s consistent failure to repeal invalid legislative provisions in the Criminal Code — such as s. 230 — is one example of fundamental governing texts in Canada retaining antiquated language; the BNA Act is another.

Canada’s independence evolved incrementally, and though it was achieved through a uniquely peaceful process, it was conditional at every stage. The original BNA Act gave Canada dominion status, but England retained legislative control and foreign policy control. The 1931 Statute of Westminster⁷ granted Canada legislative freedom to pass, amend, and repeal laws. The Supreme Court of Canada is now the highest court in Canada, but the British Judicial Committee of the Privy Council was Canada’s top court until 1949. Even the thirty BNA Acts between 1867 and 1975 demonstrate Canada’s tendency to build upon prior legislation rather than draft a new document. Ultimately, the 1982 Constitution Act patriated a document largely drafted and passed by British parliament.

This 150-year history of patchwork legislation adopted without significant Canadian rewrites, demonstrates a curious preoccupation with incremental change and maintaining ties with Britain. Practically, it means that our constitution continues to use anachronistic language, including the term "Indian" to refer to Indigenous peoples.⁸ Continuing to use such an outdated descriptor is offensive and perpetuates colonial attitudes and ignorance.

The failure to rewrite or repeal provisions of the Criminal Code also has negative practical implications for our society today. Despite calls for a complete redrafting of the Criminal Code, so-called "ghost laws"⁹ like s. 230 are still black letter law. Section 159 also still appears in the Criminal Code, criminalizing anal sex. However, the Ontario Court of Appeal declared the provision to be of no force or effect in 1995 because it violates s. 15 of the Charter.¹⁰

Canada has established a tradition of retaining ties to Britain by adopting a policy of incremental change rather than overhauling legislation. However, we continue to deal with the effects of this attitude. The language of the BNA Act continues to perpetuate colonial attitudes, and the failure to repeal provisions in the Criminal Code affects Canadians in the criminal justice system, like the McCann family. We have to move forward and be proactive about keeping our legislation current and applicable for the society that we live in.

Stay tuned for our companion piece to s. 91. Our foray into s. 92 will answer the question "what do Marlon Brando, health care, oil & gas, and margarine have in common?"  Until then, share your thoughts on the Vader trial with us in comments or tweet us as @Dominion_2017.

Your humble and obedient servants,

The Dominion.

¹RSC, 1985, c-46 [Criminal Code].
²Hamish Stewart, "Ok, so, just to be clear, Peter Sankoff is entirely correct here" (15 Sep 2016), posted on Hamish Stewart, online: Facebook https://www.facebook.com/hamish51
³[1990] 2 SCR 633, 109 AR 321.
⁴Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
⁵Peter Sankoff, "Travis Vader Conviction", Storify (15 Sep 2016), online: <https://storify.com/petersankoff/travis-vader-conviction>; R v Townsend, 2010 BCCA 400, 202 BCAC 55 at para 43.
⁶Paige Parsons, "Travis Vader verdict won’t stand, say some legal experts – latest twist in trouble murder case", Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/news/crime/travis-vader-verdict-wont-stand-say-some-legal-experts-latest-twist-in-troubled-murder-case>.
⁷1931 (UK), 22 & 23 Geo 5, c 4.
⁸See Indian Act, RSC, 1985, c I-5.
⁹Paula Simons, "Paula Simons: Travis Vader verdict ignites legal firestorm after experts cite error in judge’s decision", Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/opinion/columnists/paula-simons-travis-vader-verdict-ignites-legal-firestorm-after-experts-cite-error-in-judges-decision>.
¹⁰R v M(C), 82 OAC 68 (1995), 23 OR (3d) 629.