Will the Criminal Code finally get a makeover in 2017?

By Justin Ling December 19, 201619 December 2016

Will the Criminal Code finally get a makeover in 2017?


It might not be the sexiest issue for the Minister of Justice to address, nor is it the most pressing, but an overhaul of the Canadian criminal statutes has been a long time coming, and this government has signalled that it is at least looking at taking some baby steps to cut away the dead weight inside the 2540-page-and-growing document.

After a year in the job, Justice Minister Jody Wilson-Raybould seems to be coming around to the idea. At a speech in October, the minister highlighted that she’ll be studying the Criminal Code to see where it can be cleaned up.

“Earlier this year, the Minister instructed officials from the Department of Justice to conduct a review of Criminal Code provisions found to be unconstitutional, with a view to updating the Criminal Code,” a spokesperson for Wilson-Raybould said in an email. “That work is ongoing.”

She has her work cut out for her. Inside the laws are prohibitions on witchcraft, criminal sanctions on making or distributing violent comic books, and some Victorian-era language on obscenity.

Many of the sections are obviously unenforceable, anachronistic, or already deemed unconstitutional.

But, incredibly, they are still attempts to enforce some of them.

Section 159, which criminalizes anal sex except in cases of two adults over the age of 18 and in private, has been declared unconstitutional in courts across the country, including Ontario. Nevertheless, 22 people in the province were charged with that provision between 2008 and 2014, according to a report from Egale.

“Anal intercourse remains in the Criminal Code and is in effect in five provinces and three territories. The pernicious effects of the law should concern all Canadians,” the Egale report reads.

That’s the one part that Wilson-Raybould has already started on. The Trudeau government introduced legislation last month to repeal that section of the Code, viewed as low-hanging fruit.

Michael Spratt, a criminal defense lawyer at Abergel, Goldstein & Partners, says there’s no short supply of work to do.

“Hidden in plain sight, right at the beginning of the code, is one of our law’s most laughable presumptions: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence,” Spratt wrote on his blog earlier this year.

“In other words, we assume that every person in Canada knows not just the letter of the law but also the centuries’ worth of judicial interpretation that informs our criminal justice system. I will let you in on a secret: Even the best criminal lawyer has no idea about half of the flotsam and jetsam that litter the big book.”

Look no further than the botched conviction of Travis Vader, found guilty of second-degree murder for a crime that no longer exists. CBA National covered that case earlier this year, after the trial judge accidentally applied the unconstitutional law.

Brent Rathgeber, Conservative-cum-independent Member of Parliament, now back to practising law in Edmonton, wrote in iPolitics after the decision that Justice Denny Thomas can’t shoulder all the blame for the screw-up.

“Much of the blame belongs with Parliament,” he wrote. “By repeatedly failing to revise the Criminal Code and remove the sections that have been deemed unconstitutional, Parliament has created the conditions that allow costly mistakes like the Vader decision to occur.”

Beyond erasing outdated laws, there is also renewed discussion about dragging decades-old language into the present and future. Increasingly, high-tech surveillance techniques are being captured under general warrants — both law enforcement and defense lawyers have mused that it might be time to draft new production orders and warrants that capture the scope of this new technology, and to update other warrants, like interception orders, to reflect changing times.

Given the confluence of a variety of factors, there might just be enough will and momentum to get the job done. But the government is missing a critical tool — a body tasked with studying the code itself.

Prior to 2006, the Law Commission of Canada studied Canadian statutes and recommended changes aimed at improving the rule of law. Their work came to a halt after the Harper government cut their funding.

Reviving the commission could be a sure-fire way to capitalize on the interest and actually get the ball rolling on fixing the labyrinth of criminal laws that remain on the books.

Justin Ling is a regular contributor based in Toronto.

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Mike 1/4/2017 2:56:58 PM

Will the Criminal Code finally get a makeover? No

If the government just limited itself to removing zombie provisions (such as the one at issue in Vader) there's probably a pretty good chance of getting it done.

But if the exercise moves into a comprehensive rewriting of the criminal law, then the answer has to be "no".

Once a rewriting of the substantive law starts, its going to be an enormous undertaking. Everything is going to be on the table, and there are going to be vastly different views on how the law should be changed. Just take Mr. Spratt's comment above on ignorance of the law - what would it take to change the substance of that provision? Multiply that discussion by 1000.

Do you modify the code to incorporate court decisions that read down sections (as opposed to ones that strike down sections)? Do you modify the code to include interpretations of sections?

If the government takes this on, we'll still be talking about it in 10 years. Guaranteed.

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