On January 25, 2016, after a grueling and complicated murder trial, Travis Vader was sentenced to life imprisonment. If this long ordeal has taught us anything, it’s that one of the greatest threats to our criminal justice system come from within the pages of the Criminal Code itself. Left untouched, so-called zombie laws threaten to derail the administration of justice and erode public confidence in the law.
In short, a zombie law is part of a law that is no longer in force. When the Supreme Court of Canada declares a legal provision unconstitutional, the government has no authority to enforce it. It ceases to exist in the eyes of the law.
However, the Supreme Court doesn’t have the power to repeal an unconstitutional law. It can strike the law down, but cannot to remove it from the legislation itself. That’s parliament’s job. And until the government does its job, the unenforceable provision remains on the books.
An unconstitutional law is essentially dead. But it still appears alongside the living in every physical and online version of the legislation, deceiving onlookers into believing it’s alive. That’s why they call it a zombie law.
From witchcraft to crime comics, there are at least 20 of these zombie laws in the Criminal Code of Canada. Among them is section 230, which allows for a murder verdict if the accused causes a wrongful death while committing another crime. The Supreme Court struck this section down in 1990, but the government never bothered to repeal it.
The crime described in section 230 of the Criminal Code is dead. And, obviously, it is impossible to convict someone of a crime that doesn’t exist. But that’s exactly what Justice Denny Thomas tried to do to Travis Vader, and his mistake nearly derailed the proceedings entirely.
Vader was accused in the deaths of Lyle and Marie McCann in 2010. The case unfolded over the course of six years, concluding in his 2016 murder trial. Neither the Crown prosecutor trying the case nor Vader’s defence mentioned section 230 of the Criminal Code in their submissions. Nonetheless, Justice Thomas saw fit to dig up the zombie law and cite it in his decision to find Vader guilty of second-degree murder.
Based on the facts of the case, a guilty verdict wasn’t surprising. The problem was that the judge convicted Vader under an unconstitutional section of the Code. Because of this misstep, Vader’s murder conviction was reduced to manslaughter.
Justice Thomas shoulders much of the blame for this confusion. However, when it comes down to it, the federal government is ultimately responsible. This error could not have happened if zombie laws were scrubbed from the books as they should be.
In the twenty-seven years since it was struck down, no government has seen it fit to repeal section 230. Nor has any government attempted to revamp the Criminal Code since 1955. In the wake of the Vader trial, Justice Minister Jody Wilson-Raybould pledged to review the Code, including the fateful provision that helped Vader escape a second-degree murder conviction.
Maybe this government will be the one to finally put these laws to rest.