Zombie Laws – The Effort to Remove the Archaic and Unconstitutional
Given the epidemic of fake news and the influence it may have had on the U.S. election, Section 181 of Canada’s Criminal Code would seem particularly noteworthy.
The charge: spreading false news.
“Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years,” it states.
Except, of course, it was struck down by the Supreme Court of Canada in 1992 for violating the right to freedom of expression, and ever since has been, in legal terms, “of no force and effect.”
You wouldn’t know that, however, from the publicly available version of the Criminal Code on the government website.
“It doesn’t take much to think it’s kind of outrageous, that the government would say: ‘Here is the law of the land. Go look it up. Here online is the Government of Canada website saying the criminal law of Canada.’ And it’s wrong,” said Steve Coughlan, a criminal law professor at the Schulich School of Law at Dalhousie University in Halifax.
Also still listed as offences: abortion, duelling, making and selling comic books that show crimes being committed, advertising Viagra, blasphemous libel and pretending to practise witchcraft.
Some of the offences are clearly archaic. Others were found unconstitutional by the Supreme Court, but remain in the Criminal Code as what legal experts call “zombie laws.”
One such law lurched into headlines earlier this year when an Alberta judge accidentally used a defunct section of the code to find Travis Vader guilty of murder — a decision that just happened to be broadcast live in a milestone for cameras in the courtroom. After the mistake was realized, the verdict was changed to manslaughter.
The family of Vader’s victims, Lyle and Marie McCann, have called for the government to update the Criminal Code so it accurately reflects the current state of the law.
The simplest solution is a sort of charter cleanup bill that would remove offences that have been voided or are no longer relevant, Coughlan said.
“It just never rises to the top of anyone’s agenda … it never seems like the most pressing thing,” he said.
A first step in that direction came through a recent move by the government to repeal a provision that banned anal intercourse with exceptions for heterosexual couples over the age of 16 and all adults over the age of 18 — discriminating against gay and bisexual teenagers.
But the problem is more complex than just removing the obviously outdated or defunct sections, Coughlan said.
Some sections have been effectively rewritten through Supreme Court of Canada decisions, so the Criminal Code section won’t accurately reflect what the law really is. There is also the issue of new sections being drafted with language that is different from older ones, creating confusion about important terms.
“It is now literally impossible to insert a new section into the Criminal Code in a way that won’t contradict the language of some other provision,” he said.
Coughlan said there needs to be a thorough overhaul of the code to make it manageable and consistent.
“The police look at the Criminal Code before they arrest people, so if we are telling police the wrong thing about what behaviour is illegal, that is a bad thing,” he said. “We should have some obligation for it to be accurate.”
Federal Justice Minister Jody Wilson-Raybould has instructed her officials to conduct a review of Criminal Code provisions that are outdated or have been found unconstitutional “with a view to making changes to reflect these decisions, where appropriate,” according to a spokesperson for the ministry.
“This work is ongoing and the minister intends to bring forward legislation as soon as is practical,” the spokesperson said.