Federal justice minister moves to end ‘zombie laws,’ clean up Criminal Code

Justice Minister Jody Wilson-Raybould fended off suggestions she was stirring up a debate on abortion Wednesday, as she introduced legislation to eliminate so-called “zombie laws” from the Criminal Code. (Photo: Justin Trudeau, Prime Minister of Canada)

OTTAWA –Justice Minister Jody Wilson-Raybould fended off suggestions she was stirring up a debate on abortion Wednesday, as she introduced legislation to eliminate so-called “zombie laws” from the Criminal Code.

Zombie laws are sections of the law that remain in the Criminal Code despite having been deemed unconstitutional by the courts.

Among those is the statute dealing with abortion, which remains on the books despite the Supreme Court having struck it down as unconstitutional in 1988.

During a press conference on Parliament Hill, Wilson-Raybould specifically highlighted that as one of several sections the government plans to scrub from the Criminal Code.

She went on to note that the legislation to do so was being introduced on International Women’s Day.

But the minister pushed back when asked whether the government was stirring up a potential debate on abortion by removing the section, which is sure to elicit a strong response from anti-abortion activists.

“We’re not opening or re-opening the abortion debate,” she said.

“We are simply taking a leadership role and hoping that we will have this bill passed through and we can clean up the Criminal Code once and for all.”

Both Wilson-Raybould and Heritage Minister Melanie Joly, who also attended the press conference, said they were proud to be part of a government with the courage to remove the abortion section.

“Our government without equivocation recognizes and acknowledges the constitutional rights of women and are taking the courageous step to ensure that we remove this section from the Criminal Code,” Wilson-Raybould said.

The abortion provision is only one of several that the government plans to remove.

Among the others are sections that cover the act of spreading false news, anal sex and vagrancy, all of which the Liberals propose to scrub from the books.

The government is also proposing to eliminate two provisions dealing with drunk driving that the courts previously ruled as unconstitutional, as well as two provisions dealing with murder.

One of those, Section 230, gained notoriety during the murder trial of Travis Vader in Alberta last year.

Justice Denny Thomas initially convicted Vader of two counts of second-degree murder for the killing of Lyle and Marie McCann, but the section he cited had been ruled unconstitutional in 1990.

Vader was eventually convicted of two lesser counts of manslaughter.

Wilson-Raybould acknowledged the “difficult ordeal this has been for the McCann family,” and thanked them for their calls on the government to finally clean up the Criminal Code.

The legislation introduced Wednesday is only a first step toward making sure the Criminal Code aligns with the Supreme Court’s rulings and the Charter of Rights and Freedoms, Wilson-Raybould said.

Justice officials will conduct a comprehensive review to identify other areas that need to be reworked to ensure past decisions by the courts are reflected in the code.

It has been decades since the federal government conducted such a review of the Criminal Code, said Stephen Coughlan, a law professor at Dalhousie University who has studied the issue of zombie laws.

But eliminating sections that the courts have deemed unconstitutional is the easy part, he said.

The more difficult task is rewriting the Criminal Code to reflect Supreme Court rulings that essentially changed how the existing law is interpreted or applied, some of which will be easier to change than others.

There are also sections that are largely irrelevant or dated, but which have never been struck down, such as a ban on advertising drugs for impotency and pretending to practice witchcraft.

While many of those sections will be clear candidates for removal, Coughlan said there are others that could bring about touchy policy discussions or debate.