Good riddance to ‘zombie laws’
Canada’s Criminal Code was created in 1892 and has received only one significant overhaul since — in the1950s. The document shows its age. Still outlawed are acts such as duelling, water-skiing at night and “fraudulently pretending to practise witchcraft.” Watch out, feuding 18th-century gentlemen, cottage revellers and trick-ortreaters!
Not that these laws are widely being applied, of course. Many of the so-called “zombie laws” still on the books were overturned by courts decades ago or are so clearly obsolete that they would never be enforced. (You aren’t likely, for instance, to get in trouble for reading crime comics, though they remain officially illegal.)
But legal experts have long called for the government to clean up the code both because lack of clarity in the criminal law can lead to costly confusion, and because our laws should, as much as possible, evolve along with our society’s values.
The announcement this past week from Justice Minister Jody Wilson-Raybould that the government would repeal seven outdated sections of the Criminal Code, including bans on abortion, anal intercourse and vagrancy, among others, was most welcome, then, for both practical and philosophical reasons.
The practical need for a cleanup of the code was powerfully illustrated by the botched trial of Travis Vader, an Alberta man convicted last September of the second-degree murder of Edmontonarea couple Lyle and Marie McCann.
The charge was later converted to manslaughter because the original decision had been based on a still-extant section of the code that the Supreme Court had deemed unconstitutional decades earlier.
After the trial, Brett McCann, the victims’ son, wrote a letter to the justice minister urging her to repeal all zombie laws from the code. “After having suffered the consequence of such laziness,” he wrote, “I think that it is very important that effort be expended by the government to maintain the correctness and completeness of the Criminal Code.” (The law that was wrongly applied in the McCann case is among those being repealed.)
Laziness is not the only reason some zombie laws stay on the books. The courts long ago threw out the prohibitions against abortion and anal intercourse on constitutional grounds. But politicians have been loath to touch such provisions, wary of the fraught moral debates that have historically surrounded them.
Yet avoidance carries a cost. The sections in question are not merely quaint anachronisms; they are hurtful relics of less enlightened times. The prohibition against anal intercourse, for instance, which has been repeatedly deemed by the courts to discriminate based on sexuality, is not only an insult to gay Canadians, but also continues to lead to humiliating and unconstitutional outcomes. Dozens of people are wrongly charged with the offence every year.
The ban on abortion, meanwhile, while no longer applied, strikes a dissonant note nearly 30 years after the courts overturned it. The move finally to kill this most frightful zombie law is a long overdue signal that the government, and not just the courts, officially recognizes a woman’s right to choose.
This seems a particularly necessary symbol as the United States abdicates its role as a global defender of reproductive rights and Canada looks to fill it.
These revisions of the Criminal Code might seem like low-hanging fruit. But it’s worth noting that many previous governments had the opportunity to pluck them, yet none had the will, or perhaps the courage, to act.
These revisions of the Criminal Code might seem like low-hanging fruit, but no one has had the courage to act