Experts urge Liberals to update 'embarrassingly bad' Criminal Code

Criminal justice experts are calling on the government to overhaul Canada's Criminal Code, arguing it is riddled with outdated "zombie" laws and confusing, inconsistent language.

"It's shocking that you could look up the statute that purports to set out the law, and it doesn't," said Stephen Coughlan, a professor at the Schulich School of Law at Dalhousie University in Halifax.

Coughlan has been pressing the Liberal government and the Justice Department to scrap the existing Criminal Code and write a new one from scratch that leaves less discretion, interpretation and overlap for lawyers, judges and police. He and dozens of his academic counterparts from across the country wrote a letter urging reforms after Jody Wilson-Raybould was appointed justice minister last fall, and they have been lobbying ever since.

'Huge problem'

The document, 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. Coughlan said it's filled with antiquated laws, duplications and inconsistent language, especially around intention to commit a crime.

He called that a "huge problem" that undermines Canada's criminal justice system not only for those in the legal profession but also for the public.

"Everybody who knows about this agrees it's an embarrassment," he said. "It's embarrassingly bad."

On Tuesday, Wilson-Raybould introduced legislation to repeal Section 159 of the Criminal Code, calling the prohibition on anal intercourse for people under 18 years of age "discriminatory." She revealed that 69 Canadians had been charged under the outdated law between 2014 and 2015, even though several appeal courts had deemed it unconstitutional.

Coughlan said that's just one example of many problematic sections still on the books. Some of the offences that have been struck down by courts but remain in the Code or are "holdovers" from a different era he points out include:

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

Coughlan said getting rid of the "zombie" provisions that have been piling up for decades is the easiest and most obvious step. But he called for systematic, fundamental reforms rather than piecemeal changes.

Wilson-Raybould's office said repealing the section on anal sex is part of a broader endeavour to update Canada's laws.

"The Minister of Justice and Attorney General of Canada's overarching goal is to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law as well as the Constitution of Canada," said spokeswoman Valérie Gervais. "That is why earlier this year she instructed officials at the Department of Justice to conduct a review of Criminal Code provisions found to be unconstitutional, with a view to updating the Criminal Code to reflect these decisions."

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Criminal justice review

That ongoing review is part of the larger review of the criminal justice system, Gervais said.

NDP justice critic Murray Rankin accused the government of dragging its heels after one year in office. He said outdated offences lingering in the Criminal Code are leading to "real and potential" travesties and miscarriages of justice. 

"[The government] takes the low-hanging fruit — the obvious one they did this week — and makes a big deal out of it," he said.

They need to roll up their sleeves and do root and branch work in the Criminal Code.- NDP MP Murray Rankin

In September, a judge in the murder trial of Travis Vader relied on a section of the Criminal Code that was declared unconstitutional in 1990 but was never removed from the books. After concerns there may be a mistrial, the second-degree murder convictions were vacated and Vader was found guilty of two counts of manslaughter.

Rankin called these incidents a "totally avoidable problem."

"There is simply no excuse for this. Period. Full stop," he said.

'Enormous task'

Retired Supreme Court justice Ian Binnie agreed the existing Criminal Code is problematic but said it would be a major undertaking to overhaul it.

"The lack of an up-to-date consolidation of the Criminal Code causes serious and avoidable problems for both judges and counsel, as the Vader case illustrates," he said. "But, in fact, it would be an enormous task to review and update it."

Binnie said every time you "open up" a statute for parliamentary consideration, lawmakers of all stripes would likely pile in with special projects and amendments, potentially creating "a huge commitment of parliamentary time."

Another retired Supreme Court justice, Jack Major, noted that other sources of information, such as Martin's Criminal Code, provide annual updates on changing laws and help inform lawyers and judges.

"In a perfect world [the Criminal Code] would be amended, but practically speaking it would take some time to amend it," he said.