One of the most highly publicized criminal trials in recent Alberta history ended in the fall of
2016 with a degree of judicial embarrassment. Having broken new ground by allowing the live broadcasting of his decision in the case, the trial judge mistakenly found Travis Vader guilty of the murders of Lyle and Marie McCann using a section of the Criminal Code which had been declared unconstitutional by the Supreme Court of Canada 26 years earlier. Once his error was pointed out by the lawyers, the judge corrected himself and ultimately found Vader guilty of the lesser offences of manslaughter.
This situation gives rise to a number of lingering questions. How could an error such as this be made? How many other situations exist where Parliament has left unconstitutional laws “on the books”, so to speak?
To answer those questions, some background about the legislative and judicial processes involved must be considered.
Parliament owes all of us a duty to keep its legislation current, and this includes acting in a timely fashion to remove or amend provisions of law which have been struck down by the courts. Parliament is responsible for making our federal laws. Our elected officials in government decide on what policies should be turned into law. Parliament debates and considers the government’s proposals in the course of deciding whether to pass the legislation advanced before it. Once both Houses of Parliament agree and a bill is passed into law, the Governor General gives her assent and the law becomes effective. From the earliest days of Confederation, the criminal law has been within Parliament’s jurisdiction: Parliament decides what acts are to be considered crimes, and what principles govern the enforcement and application of our criminal laws. For the most part, these rules and procedures are outlined in the Criminal Code of Canada.
However, our courts also have a role to play in overseeing the proper enactment and enforcement of Canadian laws. Since Confederation in 1867, judges have been called upon to review legislation to ensure it is valid. At first, this power was limited to ensuring that laws had been enacted by the proper legislature; that Parliament and the provincial legislatures only enacted laws within their respective areas of jurisdiction, and that neither level of law-maker intruded improperly into an area reserved for the other. As time went by, however, somewhat more substantive reviews of legislation began to take place, until, in 1982 with the passage of the Constitution Act, 1982 – including the Canadian Charter of Rights and Freedoms – courts were given the authority to strike down any law found to be contrary to the basic rights and freedoms of Canadians. Section 24 of the Charter allows individuals who feel their constitutional rights and freedoms have been infringed or denied to apply to a court for a remedy which is “appropriate and just in the circumstances”. In addition, Section 52 of the Constitution Act, 1982 states that any law which is contrary to the constitution is “of no force and effect” to the extent of that non-compliance.
In many situations since 1982, when the courts have declared a law to be “of no force and effect” due to not being consistent with the constitution, our lawmakers have acted responsibly by either repealing the law in question or amending it in an effort to bring the offending part(s) into compliance with the constitution. However, for reasons known only to themselves, our elected officials have not always moved to “clean up” legislation which has been struck down, and that brings us to the Vader case and the events of 2016.
Another, “high profile” example of a legal “ghost” which, despite a Supreme Court declaration of invalidity, remains part of the Criminal Code, is the section governing abortions. Murder is usually defined as the intentional causing of the death of another human being. To be found guilty of murder, an accused must be proven by the Crown to have had the specific intent to kill (or to have deliberately caused such serious bodily harm that death was likely to result, and to have then been reckless about whether the injured person died). However, pursuant to Section 230(a) of the Criminal Code where death takes place while another offence is occurring (or as the culprit attempts to escape once having committed the other offence), the culprit would also be guilty of murder regardless of his actual specific intention (or lack thereof). The other offences in question included robbery, breaking and entering, sexual assault, hijacking an aircraft, kidnapping and hostage taking, prison escape, and arson. In other words, if during a bank robbery or a kidnapping the criminal hurt someone either for the purpose of committing the offence or for making an escape, that person’s resulting death would be considered murder regardless of whether or not the robber or kidnapper actually intended that the injured person die.
However, in 1990 the Supreme Court of Canada declared Section 230(a) to be unconstitutional. It is one of the principles of fundamental justice (enshrined in Section 7 of the Charter of Rights), the Court held, that only persons who specifically intend to kill be found guilty and punished for murder. The stigma and the sentence (mandatory life imprisonment) are both so severe that a finding of murder should only be made where the accused person has been proven to have the actual, specific intent to kill. Anything less than that, and a lesser finding – and conviction for a lesser offence – would be the proper outcome.
It is one of the principles of fundamental justice (enshrined in Section 7 of the Charter of Rights), the Court held, that only persons who specifically intend to kill be found guilty and punished for murder. Unfortunately, however, Parliament did not see fit to act in response to the Supreme Court’s ruling. It neither sought to amend Section 230(a) of the Criminal Code in an effort to ensure Charter compliance, nor did it repeal the provision completely. It simply kept Section 230(a) in the Criminal Code, untouched, despite the Court’s declaration that it was invalid (interestingly, a similar, related part of Section 230 was declared unconstitutional in 1987; Parliament then repealed that provision in 1991). Thus, in 2016 when the trial judge was considering the case of Travis Vader, he erroneously considered that Section 230(a) provided a means by which he would find Vader guilty of murder. On the evidence before him he concluded that the deaths of the McCann’s had taken place as Vader committed a robbery (the unlawful taking of their property while using or threatening violence) against them. He then relied upon Section 230(a) to make the finding that Travis Vader was guilty of murder of both of the McCann’s. (As noted at the outset, once his error was pointed out, and after lawyers on both sides of the case had made further arguments about what should be done in that situation, he rendered a new decision, finding Vader guilty of manslaughter in relation to both deceased.)
Another, “high profile” example of a legal “ghost” which, despite a Supreme Court declaration of invalidity, remains part of the Criminal Code, is the section governing abortions. Section 288 of the Code makes abortions illegal, but provides for exceptions where a therapeutic abortion committee has voted to allow a woman to have an abortion for reasons relating to her own health concerns. However, in 1988 the Supreme Court of Canada struck down this section on the basis that the state – in the form of such committees or otherwise – had no business interfering in what women decided to do with their own bodies. Section 7 of the Charter guarantees to all persons the protection of their bodily integrity subject only to limitations which are consistent with the principles of fundamental justice. A majority of judges on the Supreme Court held that it was an unacceptable intrusion into the equality and personal rights of women for the state to dictate when an individual would be required to carry a foetus to full term, and when an abortion would be allowed. As a result of the declaration of invalidity, access to abortion in Canada was widened immensely, with the growth of free-standing abortion clinics where the procedure is carried out as requested by individual women in private consultation with their personal doctors.
However, despite the 1988 Court ruling, Section 288 remains part of the Criminal Code. In this case, it is perhaps easier to guess about why politicians have not acted: for some, the issue of abortion remains a highly charged, emotional issue, and to remove even an outdated and invalid law purporting to prohibit the procedure likely risks opening too much of a debate for the tastes of most elected officials. The easier, least controversial route is to simply leave things as they are – in other words, allowing the legal absurdity of having an unconstitutional, invalid law remain part of the legislation – and thus avoid the clamoring of interest groups and protestors who might get in the way of any particular politician’s – or party’s – reelection hopes.
Since Confederation in 1867, judges have been called upon to review legislation to ensure it is valid. Further examples of provisions which remain part of the Criminal Code despite having been struck down by the Supreme Court is in the area of mandatory minimum sentences. Our highest court has recently declared at least two to be unconstitutional (other courts across the country have made rulings against other provisions as well, but only the Supreme Court of Canada makes decisions which govern the application and administration of the law nationwide). In the first case, in 2015, the Court considered the three year mandatory penitentiary sentence for anyone caught in possession of certain firearms without being licensed and having a registration certificate for the weapon. In the second, in 2016, the Court addressed a one year mandatory minimum jail sentence for anyone convicted of drug trafficking if they had already been convicted of a similar offence within the previous 10 years. In both situations, the Supreme Court held, the mandatory minimums were unconstitutional for possibly imposing punishments which would be “cruel and unusual” (contrary to Section 12 of the Charter of Rights) in at least some cases which might come before the courts from time to time. In the firearms case, the Court noted that the mandatory minimum covered situations as minor as an otherwise law-abiding gun owner who might forget to renew a license or firearms registration. In the drug case, the one year jail sentence would include the situation of a drug addict who simply shares a small amount of her own narcotics with a fellow user out of generosity or compassion. To be clear, the Court did not say such offences should go unpunished; rather the long mandatory jail sentences at least in such hypothetical situations would, it held, shock the conscience of the public, and accordingly, it struck down those sentencing provisions as being contrary to the constitution.
How many other situations exist where Parliament has left unconstitutional laws “on the books”, so to speak?
In the case of the mandatory minimum sentencing provisions, the explanation for Parliament’s inaction may be how recently the court decisions were made. The consideration, drafting, debating, amending, and ultimately, passage of legislation in Parliament is a slow, time-consuming process at the best of times. It is therefore perhaps not surprising that in this situation, only two or three years since the Supreme Court rulings, Parliament has not yet acted in response. That said, there is no political benefit to be gained, and much political risk, to be seen as being “soft on crime”; even the repeal of an invalid (but harsh) sentencing provision might therefore be too risky for some politicians. The current Liberal government was elected, after all, on a platform which included reviewing and legislating upon its predecessor’s enactment of many mandatory minimum sentences of imprisonment but we still, almost three years later, have yet to see any legislative action in this direction.
The three examples discussed herein are likely the most prominent illustrations of Parliament’s inaction after findings of invalidity by our highest court. Scattered through the Criminal Code are occasional other examples of similar “zombie” laws. Most would likely be seen as somewhat less serious or significant as the three cases discussed, but all are equally problematic. As the Vader case demonstrated, despite years of education and experience, judges remain as human as the rest of us, and thus, as capable of error as anyone else. As happened in that case, a judge may mistakenly rely upon a provision of law which has already been struck down, where Parliament has left the invalid provision in its legislation.
Parliament owes all of us a duty to keep its legislation current, and this includes acting in a timely fashion to remove or amend provisions of law which have been struck down by the courts. In March, 2017, the government finally introduced legislation before Parliament to address – by repealing – a number of Criminal Code provisions struck down some time ago, including the murder and abortion provisions discussed in this article. However, this is an on-going concern and the efforts of our Parliamentarians must similarly be constant in order not to allow similar situations – where the written laws of Parliament continue to include provisions long ago declared unconstitutional – to develop again in the future.