2016-10-05 The Criminal Code is in dire need of housecleaning | iPolitics

Published by Bretton McCann, September 25th, 2016

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The Criminal Code is in dire need of housecleaning

Trudeau needs to pick up where Harper failed to act

Federal

Photo: Travis Vader arrives at court in Edmonton on Tuesday, March 8, 2016. THE CANADIAN PRESS/Amber Bracken

Last Thursday saw a couple of legal firsts recorded in an Alberta courtroom. A camera was allowed in to broadcast and livestream a criminal trial, breaking down a longstanding barrier between the public and the justice system. And during that trial, a man was convicted of a serious crime using a section of the Criminal Code that doesn’t work anymore.

Travis Vader was convicted of two counts of second degree murder in the deaths of Lyle and Marie McCann, an elderly Edmonton-area couple. The McCanns vanished after leaving on a trip to B.C. six years ago; their bodies have never been found.

In convicting Vader, Mr. Justice Denny Thomas relied on Section 230 of the Criminal Code, the so called "constructive murder" provision. Fans of American crime dramas know it as the Murder Felony Rule: If someone dies in the course of a serious crime, the person who committed the crime is guilty of murder whether he intended to kill or not. The "intent" portion of the offence is satisfied if the accused meant to commit the crime (robbery, sexual assault) that led to the death. Intent to commit the crime equals intent to commit the consequences of the crime.

At any rate, that’s how it works on TV. That’s not how it works here. In a pair of decisions handed down over 25 years ago, the Supreme Court of Canada found Section 230 to be unconstitutional. Justice Antonio Lamer wrote in R v. Martineau that the Crown must prove that the accused intended to kill, or to inflict bodily harm knowing it was likely to lead to death. "Subjective foresight of death," he wrote, "must be proven beyond a reasonable doubt before a conviction for murder can be sustained."

Since the judge in Vader’s case found that the accused had intentionally caused bodily harm to the McCanns, I suspect that — had he applied the law correctly — he could have found that the accused knew that the bodily harm he intentionally inflicted was likely to end in death. By relying on a provision of the Code that has, on two occasions, been deemed unconstitutional, he’s given the defence team a wide opening for an appeal.

With an error this big, there’s always plenty of blame to go around. I’m not going to pile on Mr. Justice Denny Thomas; his mistake was broadcast live, after all, and he’s been pilloried in social media. Alberta’s court system, like court systems across the country, is starved for resources. There are multiple vacancies on the Alberta Court of Queen’s Bench and judges complain privately of being overworked and denied staff support, including researchers (and, apparently, proofreaders).

Much of the blame belongs with Parliament. By repeatedly failing to revise the Criminal Code and remove the sections that have been deemed unconstitutional, Parliament has created the conditions that allow costly mistakes like the Vader decision to occur.

For a Conservative government of a law-and-order bent, repealing laws can be politically damaging when the intent of those laws is popular with the base — and particularly when the regulation of personal morality is involved.

The Criminal Code of Canada has not undergone a ‘revision’ since 1985. It’s been amended many times — which is not at all the same thing. When a new crime is added to the Code, or an old one is repealed by Parliament, the result is an odd and sometimes illogical numbering of sections, paragraphs, clauses and sub-clauses.

But when a provision is struck down by the courts, it stays in the Code pending formal repeal by Parliament. (The Supreme Court sometimes suspends a declaration of unconstitutionality, as it did last year in the case of physician-assisted suicide. And Parliament does have the option to re-pass the impugned law using the ‘notwithstanding clause’.)

The result is a Criminal Code that is simply littered with zombie laws — laws that are no longer in force but have not been formally repealed. Constructive murder is just one of them.

Abortion and anal intercourse are still on the books, despite having been found to be non-compliant with the Charter of Rights and Freedoms. The theft of oyster beds, witchcraft, sorcery, blasphemy — they’re all still represented in the Code, despite the fact that no one’s used them in eons.

I was on the House Committee on Justice and Human Rights for five years. Once or twice every year, we’d get a letter, usually from a law professor, lobbying for a modernized Criminal Code. It simply wasn’t a priority for the Harper government; it had a busy law -and-order agenda on its plate and it wasn’t interested in devoting scarce resources to what it saw as a housekeeping task.

But with the benefit of hindsight, I have another theory about why the Harper government wasn’t interested in cleaning up the Criminal Code. That government planned its every move with its base of supporters in mind. And for a Conservative government of a law-and-order bent, there’s simply no upside to repealing laws — even old, useless ones. In fact, repealing laws can be politically damaging when the intent of those laws is popular with the base — and particularly when the regulation of personal morality is involved.

Social conservatives remain fiercely opposed to legal abortion and certain consensual sexual acts. I suspect that the Harper government was extremely reluctant to be seen repealing those laws — laws that can’t be enforced but which still have symbolic value for the base.

It’s not hard to imagine members of the Conservatives’ anti-abortion caucus voting symbolically against an amendment to the Criminal Code formally repealing the abortion law, then boasting about it at length in fundraising letters to their so-con supporters. Most Canadians have little interest in the daily machinations of Parliament, so it wouldn’t be hard to turn a completely meaningless vote into some sort of bogus cause célèbre. Stephen Harper had his work cut out keeping the so-con caucus quiet during his years in the PMO; the last thing he’d want to do is give it a soapbox.

That was Harper’s problem — it’s not Justin Trudeau’s. The current Liberal government is a lot less interested in moral crusades and law-and-order gestures. Trudeau should take the Vader decision as a clear signal to clean up the Code.

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