Federal government to axe 'zombie laws' from Canada's Criminal Code

The federal government is moving to clean up Canada's Criminal Code by stripping so-called "zombie laws" from the books. Experts have been calling for reform of a code they say is filled with outdated laws, duplication and inconsistent language.

Bans on abortion, duelling and water-skiing at night remain on books after being struck down in court

Minister of Justice and Attorney General Jody Wilson-Raybould is expected to table legislation to update Canada's Criminal Code on Wednesday. (Adrian Wyld/Canadian Press)

The federal government is moving to clean up Canada's Criminal Code by stripping so-called "zombie laws" from the books.

Criminal justice experts have been calling on Justice Minister Jody Wilson-Raybould to reform the code they say is filled with outdated laws, duplications and inconsistent language. She is scheduled to make an announcement at 3:30 p.m. ET Wednesday on Parliament Hill on plans to amend the code.

The code, which was created in 1892 to outline criminal offences, penalties and procedures, has had only one major overhaul in the 1950s and another review in the 1970s.

Stephen Coughlan, a professor at the Schulich School of Law at Dalhousie University in Halifax, said a basic foundation of the rule of law is that the actual laws be "knowable and accessible" to everyone. Yet a number of them, from outlawing abortion to banning crime comics, remain on the books, even though they have been struck down in court and can't be enforced.

That's because Parliament has not physically removed the text from the Criminal Code.

Coughlan said that leads to problems with individuals expected to follow the laws, for police expected to enforce them and lay charges, and for judges who must determine convictions based on laws on the books.

'Zombie' provisions

"It's the equivalent of tying an athlete's shoelaces together before sending her out to compete, and figuring that no problems will arise because she will probably notice and fix it," he said. "Well, sure, maybe. But a better plan would be not to tie her shoelaces together in the first place."

Dalhousie University law professor Stephen Coughlan has been urging the federal government to update Canada's Criminal Code, which includes outdated laws and confusing language. He flagged just some of the problems with these stickies in his copy. (Stephen Coughlan/Dalhousie University)

Coughlan has conducted an extensive review of the Criminal Code and highlighted a number of sections that have been struck down by courts but remain on the books, what he calls "zombie" provisions, including:

  • Spreading false news.
  • Fraudulently pretending to practise witchcraft.
  • Water-skiing at night.
  • Vagrancy.
  • Procuring miscarriage (abortion).
  • Duelling.
  • Crime comics.
  • Issuing trading stamps.

Last fall, Wilson-Raybould introduced legislation to repeal a section of the Criminal Code prohibiting anal intercourse for people under 18 years of age, calling it "discriminatory."

At the time, she said 69 Canadians had been charged under the outdated law between 2014 and 2015, even though several appeal courts had deemed it unconstitutional.

Murder case implications

The zombie law issue also came under the spotlight last fall with a high-profile murder case involving the killings of two Alberta seniors.

The use of an outdated section of the Criminal Code in Travis Vader's original conviction nearly derailed legal proceedings after the defence filed an appeal. Section 230 of the code allows for a murder verdict if a wrongful death occurs during the commission of another crime, such as robbery.

The section was found unconstitutional in 1990 by the Supreme Court of Canada, but remained on the books and was incorrectly cited by the judge in his ruling.

Vader was later found guilty of two counts of manslaughter and sentenced to life in prison for killing Lyle and Marie McCann.

With files from Alison Crawford