This week's Travis Vader murder verdict offered a vivid illustration of some of the best and worst features of Canadian criminal justice.
In Germany, on a research sabbatical, I marvelled at the fact that for the first time I was able to watch a Canadian murder decision delivered online, in real time. The verdict was read by Judge Denny Thomas, who in allowing cameras into the courtroom showed a keen awareness of the trial's importance to Albertans and a sensitivity to Canadians' growing desire to obtain a better understanding of the workings of the justice system.
But my excitement gave way to shock, followed quickly by horror, as I heard the judge declare Vader guilty of second-degree murder. It wasn't the verdict itself that shook me, as the conclusion certainly seemed possible in light of the evidence. What made my jaw drop was that Thomas convicted Vader of murder under Section 230 of the Criminal Code. That section provides that if a person commits a killing during the course of another crime - robbery in this case - and meets a few other requirements, what would otherwise be the lesser offence of manslaughter can be elevated to murder, which packs a much heavier penalty.
Vader's actions, as described by Thomas, certainly seemed to fit the bill. But there was just one insurmountable problem: Section 230 no longer exists. On Sept. 13, 1990, almost exactly 26 years ago to the day, the Supreme Court of Canada struck down the clause for being in conflict with the Charter of Rights and Freedoms. Why then would the experienced veteran of the Alberta court have cited it at all?
The only explanation I can think of is that he accidentally excerpted it directly from the online version of the Criminal Code. After all, the Supreme Court can strike down a law, but it has no legislative power to repeal it. Since Parliament has never seen fit to do so, Section 230 has been faithfully reproduced in every physical and online version of the code since 1990. Though legally inert, it sits on the books like some sort of "zombie" clause, waiting to trap the unfortunate or unwary. And this week it struck, jeopardizing a gruelling, complex murder trial in the process. To explain the magnitude of the judge's error as succinctly as I can: it is impossible to convict someone of a crime that doesn't exist.
The ultimate result of the Vader case remains unclear, but I do not believe the murder conviction will stand. A best-case scenario for the prosecution at this stage is a manslaughter conviction or a new trial for murder at some point. Inevitably, there will be multiple rounds of legal wrangling over the impact of this error - an error so basic and fundamental that I'm still struggling to believe that it actually happened.
Undoubtedly, fingers will be pointed at Judge Thomas, whose brave decision to televise the reading of the verdict rebounded so unfortunately. Without question, he must shoulder some of the blame, as this should not have happened. Every criminal law textbook and annotated Criminal Code makes plain in bold text that Section 230, despite its continued appearance, no longer has any force or effect.
But the judge does not bear all of the responsibility here. After all, when a victim falls prey to a zombie on television or in the movies, we might start by chiding the person for having blundered into a herd of mindless, stumbling creatures. At some point however, focus has to turn to the zombies themselves, or, more importantly, to whatever created them.
In this case, that's the federal government, which also bears responsibility for this debacle. For decades, a united chorus of academics, judges and lawyers has warned Parliament that its failure to eradicate the detritus of constitutional challenges past from the Criminal Code would eventually have consequences. Just six years ago, the British Columbia Court of Appeal considered whether to order a new murder trial after the trial judge left a written copy of a related "zombie clause" with the jury, but made up for it through impeccable oral instructions on the law.
Ultimately deciding that a new trial was unnecessary, Justice Edward Chiasson nonetheless issued a prescient warning: "I cannot leave these reasons without wondering why steps have not been taken to amend the code to conform to the now 20-year-old decision of the Supreme Court of Canada. The law that is recorded in the statute, on which every citizen is entitled to rely, is not the law of the land. An issue such as arose in this case should not occur. It creates the risk of a miscarriage of justice and the potential need to incur significant costs addressing an error in an appellate court with the possible costs of a new trial, assuming one is practical."
Canadian criminal justice has many positive elements. But it also has its flaws, and the state of the Criminal Code is at the top of the list. It is an open secret within the criminal justice community that the current version of the code is a bloated, unwieldy beast littered with at least 20 "zombie clauses," archaic language and an array of confusing and contradictory provisions. Canada remains the only major common law country without a devoted law reform commission tasked with updating and modernizing its Code, and we are increasingly paying the price for this failure.
Every federal government of the past quarter-century has come into power promising reforms to make our criminal justice system better. Not one has undertaken the most non-controversial reform one could imagine: repealing provisions of the code that are no longer legal.
This is 2016 and anyone can easily locate the law with a swish of the finger. Why should any version of this law contain prohibitions that have been invalidated by our highest court? Surely, Parliament can do more to repair our most important criminal law statute, and killing off dead clauses would be an obvious place to start. Even better would be a dedicated effort to revamping the entire code - a process that hasn't occurred since 1955.
The Vader verdict reveals the perils of failing to give our criminal justice framework the care and attention it needs. When the stakes are at their highest, it is essential that the possibility for error be reduced by making the applicable law as clear as it can be. After all, as any horror genre fan knows, when zombies start to lurk in your backyard, it's the entire community that ultimately ends up suffering.
Peter Sankoff is a Professor in the Faculty of Law. He concentrates his teaching and research on legal issues surrounding the criminal trial process and the relationship between animals and the law. This comment also appeared in the National Post.