Increasingly in the news is the fact that Canada’s Criminal Code contains numerous confusing and outdated laws, and many criminal law experts agree that it is outdated and requires a substantial overhaul. The Criminal Code was first enacted in 1892 and has had only one significant overhaul in the 1950’s. It also underwent some changes in 1969 with Bill C-195 “the Omnibus Bill”, which included de-criminalizing homosexuality and abortion (under limited circumstances), and enacted new drinking-and-driving laws. Stephen Coughlan, a professor at the Schulich School of Law at Dalhousie University, criticized the Code for its inconsistent language, particularly pertaining to the intention to commit a crime, which he says, undermines our criminal justice system for those in the legal profession as well as the public (CBC News, Nov 18, 2016).
The Criminal Code contains a number of laws that have been ruled unconstitutional by Canadian courts.
One of these laws, in section 159 of the Code, pertains to the age of consent for anal intercourse (i.e. 18 years of age), which is treated differently than other forms of consensual sexual activity (for which the age of consent is 16 in most cases). Currently, anyone who engages in anal intercourse with someone under the age of 18 may be found guilty of an indictable offence, with a maximum sentence of 10 years. Two trial-level courts and four appellate-level courts have found that section 159 violates equality rights, particularly for gay and bi-sexual men, that are guaranteed for everyone in the Canadian Charter of Rights and Freedoms, s. 15. In November 2016, the federal government proposed legislation to repeal the s.159 sexual assault law and allow consensual sexual intercourse for 16 and 17-year-olds; however, this change has been a long time coming and legislators appear to be dragging their feet in passing this amendment.
Another recently publicized debacle that has been blamed on outdated legislation in the Code, involves the murder trial of Travis Vader. On Sept 15, 2016, an Alberta Court found Mr. Vader guilty of second degree murder. The following day, defence counsel filed a notice of appeal and on Sept 22nd, defence counsel applied to the Court to vacate the guilty verdicts and declare a mistrial, on the grounds that the judge based his decision on an erroneous application of the Criminal Code, s. 230, parts of which were declared unconstitutional over 25 years ago. The appeal was abandoned but the mistrial application was maintained, and due to concerns there may be a mistrial, the second-degree murder convictions were vacated and substituted with manslaughter convictions.
Another law that was recently declared unconstitutional pertains to minimum sentencing for drug crimes that had been enacted by the Conservative Government in connection with their ‘tough on crime’ stance. In R. v. Lloyd (2016), the Supreme Court of Canada ruled that a mandatory one-year minimum sentence for a drug-related offence, when an offender has a previous similar charge within the past 10 years, violates section 12 of the Charter and constitutes cruel and unusual punishment. The accused in this case, Mr. Lloyd, had a previous conviction for a related offence, but the current charge resulted when he was trafficking in order to support his own addiction. The Chief Justice asserted that mandatory minimums in such cases casts too wide a net, ranging from someone who simply shares a small amount of marijuana with a friend to a trafficker of hard drugs for profit.
These are only a few of Canada’s laws that have been deemed unconstitutional and out-dated. Retired Supreme Court Justice, Ian Binnie (interviewed for the CBC News Nov 16 report) agreed that the Criminal Code is currently problematic and causes serious problems for judges and lawyers; however, an overhaul of the Code would be a huge undertaking.