Government moves to formally scrub abortion law from Canada's Criminal Code

The federal government is stripping seven outdated provisions from Canada's Criminal Code, including a section banning abortion that was struck down nearly 30 years ago.

Legislation aims to erase 7 'zombie' provisions that have been shot down in courts

Justice Minister Jody Wilson-Raybould has tabled a bill to remove so-called 'zombie' laws from Canada's Criminal Code, including an outdated section banning abortion. (Adrian Wyld/Canadian Press)

The federal government is stripping seven outdated sections from Canada's Criminal Code, including a provision banning abortion that was struck down nearly 30 years ago.

The prohibition against abortion was found unconstitutional in the landmark Supreme Court ruling in favour of Dr. Henry Morgentaler in 1988, which determined the ban violated a woman's right to security of the person. But the text outlawing "forced miscarriage" was never removed from the books.

While Justice Minister Jody Wilson-Raybould pointed out that the move to formally erase the abortion ban came on International Women's Day, she said the government was not deliberately trying to reopen the contentious debate.

"If we are going to make a link to the abortion discussion or removing the abortion provision from the Criminal Code, our government without equivocation recognizes and acknowledges the constitutional rights of women and is taking the courageous step to ensure that we remove this section from the Criminal Code," she said.

Heritage Minister Mélanie Joly said she studied the Morgentaler judgment as a law student and is proud, years later, to be part of a government that recognizes the importance of the decision and women's rights.

"We're extremely proud and that's exactly the message we want to send to Canadians today," she said.

Wilson-Raybould said today's legislation, which is a "first step" in a broader review of the Criminal Code and criminal justice system, fulfils a promise to ensure Canada's laws are fair, equitable and accessible, and that they respect the Charter of Rights and Freedoms.

Formally repealing the sections will ensure Canadians are not charged, prosecuted or convicted of crimes that are no longer valid offences, she said.

'Zombie' laws

Wilson-Raybould said the so-called "zombie" laws have had real effects, such as a section of the code that was mistakenly used by a trial judge to convict Travis Vader of murder in the deaths of Lyle and Marie McCann. The judge had to change the conviction to manslaughter.

While that use of an outdated law was in a tragic, high-profile case, Wilson-Raybould said mistaken uses of the law are not common. 

Other provisions in the Criminal Code that will be removed under the legislation:

  • Murder: In 1987 and 1990, the Supreme Court found two provisions around the circumstances of murder were unconstitutional because they could have led to a conviction even if the accused had no knowledge or intent that someone would be killed.
  • Anal intercourse: Several appeal courts have found that the anal intercourse offence violated equality rights because it treated consensual anal intercourse differently from other consensual sexual activities. Bill C-32 moved to repeal the section in November 2016, and at the time the minister said 69 charges had been laid in 2014 and 2015.
  • Spreading false news: The broad offence stems back to 13th-century England and was "intended to protect the mighty and the powerful from discord and slander." It was deemed unconstitutional in 1992 because it violated freedom of expression, though the issue has taken on new life in recent months.
  • Vagrancy: The "loitering" part of this offence was struck down as unconstitutional in 1994 because it violated the right to life, liberty and security of the person.
  • Impaired driving: In 2012, two provisions designed to help prosecutors prove that someone was impaired were found unconstitutional because they could have led to convictions in cases where there was reasonable doubt about the accused person's guilt.
  • Credit for pre-sentencing custody: The provision prevented judges from giving enhanced credit to a convicted person who had been detained prior to sentencing due to a previous conviction. It was found unconstitutional in 2016 because it violated the right to life, liberty and security of the person.

Criminal justice experts have been calling on the government to reform the code, which they say is riddled with outdated laws, duplications and inconsistent language. 

Stephen Coughlan, a professor at the Schulich School of Law at Dalhousie University in Halifax who has carried out extensive review of the Criminal Code, said a broader overhaul is required.

"The minister describes it as a first step, and it is to their credit that they have done this," he said. "There is much more that could and should be done to modernize the Criminal Code, and so although this was individually worth doing, we should hope and expect that more ambitious reforms will follow."

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.