#VaderVerdict and the BNA Act: Canada’s Tradition of Retaining Antiquated Text Still Impacts Us Today

Dear Sir or Madam:

Today we are pausing our historical exploration of the BNA Act to address the decision that is sending shockwaves through the Canadian legal twitterverse and beyond. The Vader trial.

Yesterday, the Hon. Justice Denny Thomas of the Alberta Court of Queen’s Bench delivered the much anticipated verdict in the Vader murder trial, convicting Travis Vader on two counts of second degree murder. In 2010, Lyle and Marie McCann disappeared en route from Alberta to British Columbia; their bodies were never located. Police later discovered the McCanns’ SUV and burned-out motorhome. Investigators found Vader’s DNA in the SUV and evidence that Vader had used the McCanns’ cell phone.

In an unprecedented move for Alberta courts, Thomas J. delivered his judgment on live TV. In his decision, Thomas J. relied on s. 230 of the Criminal Code¹ to convict Vader. Criminal law experts have called this an egregious misapplication of the law.² Though s. 230 is still listed in the Criminal Code, it is not a live provision: the Supreme Court of Canada (SCC) declared the provision to be of no force or effect 25 years ago in the case R. v. Martineau.³

What does it mean practically for a law to be of no force or effect?

The constitutional supremacy provision, Section 52(1) of the Constitution Act, 1982, states that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”⁴ Essentially, the Courts can invalidate any provision that they find inconsistent with the constitution. As a result, a conviction under s. 230 cannot stand.⁵ Vader’s defence lawyers will appeal the conviction to the Alberta Court of Appeal at about the same time that this post goes live.⁶

Now the question is, how does this egregious error of an Alberta superior court in 2016 relate to the BNA Act? In our introductory week, we stated that this project seeks to address how Canada’s formation affects our nation TODAY. Parliament’s consistent failure to repeal invalid legislative provisions in the Criminal Code — such as s. 230 — is one example of fundamental governing texts in Canada retaining antiquated language; the BNA Act is another.

Canada’s independence evolved incrementally, and though it was achieved through a uniquely peaceful process, it was conditional at every stage. The original BNA Act gave Canada dominion status, but England retained legislative control and foreign policy control. The 1931 Statute of Westminster⁷ granted Canada legislative freedom to pass, amend, and repeal laws. The Supreme Court of Canada is now the highest court in Canada, but the British Judicial Committee of the Privy Council was Canada’s top court until 1949. Even the thirty BNA Acts between 1867 and 1975 demonstrate Canada’s tendency to build upon prior legislation rather than draft a new document. Ultimately, the 1982 Constitution Act patriated a document largely drafted and passed by British parliament.

This 150-year history of patchwork legislation adopted without significant Canadian rewrites, demonstrates a curious preoccupation with incremental change and maintaining ties with Britain. Practically, it means that our constitution continues to use anachronistic language, including the term “Indian” to refer to Indigenous peoples.⁸ Continuing to use such an outdated descriptor is offensive and perpetuates colonial attitudes and ignorance.

The failure to rewrite or repeal provisions of the Criminal Code also has negative practical implications for our society today. Despite calls for a complete redrafting of the Criminal Code, so-called “ghost laws”⁹ like s. 230 are still black letter law. Section 159 also still appears in the Criminal Code, criminalizing anal sex. However, the Ontario Court of Appeal declared the provision to be of no force or effect in 1995 because it violates s. 15 of the Charter.¹⁰

Canada has established a tradition of retaining ties to Britain by adopting a policy of incremental change rather than overhauling legislation. However, we continue to deal with the effects of this attitude. The language of the BNA Act continues to perpetuate colonial attitudes, and the failure to repeal provisions in the Criminal Code affects Canadians in the criminal justice system, like the McCann family. We have to move forward and be proactive about keeping our legislation current and applicable for the society that we live in.

Stay tuned for our companion piece to s. 91. Our foray into s. 92 will answer the question “what do Marlon Brando, health care, oil & gas, and margarine have in common?”  Until then, share your thoughts on the Vader trial with us in comments or tweet us as @Dominion_2017.

 

Your humble and obedient servants,

The Dominion.

 

¹RSC, 1985, c-46 [Criminal Code].
²Hamish Stewart, “Ok, so, just to be clear, Peter Sankoff is entirely correct here” (15 Sep 2016), posted on Hamish Stewart, online: Facebook https://www.facebook.com/hamish51
³[1990] 2 SCR 633, 109 AR 321.
⁴Being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
⁵Peter Sankoff, “Travis Vader Conviction”, Storify (15 Sep 2016), online: <https://storify.com/petersankoff/travis-vader-conviction>; R v Townsend, 2010 BCCA 400, 202 BCAC 55 at para 43.
⁶Paige Parsons, “Travis Vader verdict won’t stand, say some legal experts – latest twist in trouble murder case”, Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/news/crime/travis-vader-verdict-wont-stand-say-some-legal-experts-latest-twist-in-troubled-murder-case>.
⁷1931 (UK), 22 & 23 Geo 5, c 4.
⁸See Indian Act, RSC, 1985, c I-5.
⁹Paula Simons, “Paula Simons: Travis Vader verdict ignites legal firestorm after experts cite error in judge’s decision”, Edmonton Journal (15 Sep 2016), online: <edmontonjournal.com/opinion/columnists/paula-simons-travis-vader-verdict-ignites-legal-firestorm-after-experts-cite-error-in-judges-decision>.
¹⁰R v M(C), 82 OAC 68 (1995), 23 OR (3d) 629.

Comments

[Stephen Harfield]

There may be some who would say that the Justice saw an acquittal staring him in the face, and rather than face the media storm that would result, made this a court of appeal problem.

I, however, think that it is not becoming to accuse a sitting Justice of any hint of unethical conduct, especially one so experienced and so respected. Those claims contain no evidence, and are only wild conjecture.

Therefore I concur that the problem lies with the Federal Government not keeping their books straight and that only the wildest stretch of imagination would contort this issue into a lesson in judicial realism.

[Dfoster]

Well, Thomas J could have convicted for manslaughter and imposed the longest justifiable sentence. Instead, by disregarding a simple bit of legal knowledge he created the potential for a mistrial where Vader will walk free.

[Dominion 2017]

https://mobile.twitter.com/petersankoff/status/776869823011811329

Thank you for your comment. Please see Professor Sankoff's tweet on the subject.

Yours
The Dominion

[Dominion 2017]

Thank you for your comment. We agree, we hold The Honorable Justice Thomas in the highest regard just as we do the office of the judiciary. Our post in no way intends to offend or detract from this. It is also difficult that after 6 long years thi will still affect the victims' family.

The wild conjecture claims with no evidence we have solely based on the opinions of Canadian legal scholars who spoke up on social media about section 230. We defer to their experience and opinions on the matter - again, with all respect due to a justice of the court.

Best
The Dominion

[Stephen Harfield]

I don't practice criminal law, but I do know that the court of appeal has the ability to substitute a verdict under s. 686. Either substitute a verdict, or direct the matter go back to the Justice to correct his decision and impose a suitable verdict.

But that section refers to an appeal after sentencing. This appeal is filed prior to sentencing. One wonder why. Grandstanding before the cameras?

I do not think a mistrial results simply because of s. 230. I was also talking to Phil Lister today who was defence counsel for Martineau and he questioned whether the court decided that all of s. 230 was unconstitutional (as is stated in many annotated criminal codes) or just 230(a). It has no bearing on the overall issue here, but just worth the reminder that annotated criminal codes are not authoritative, so check your work!

[Leri Koornhof]

With respect, Mr Harfield, to those who would assert that a justice would choose to make an acquittal the problem of the ABCA to avoid public criticism, I also consider it disrespectful to the esteem and integrity of a respected and experienced member of the Bench such as Thomas J. I can't imagine that a justice of his integrity would, so-to-say, take such an easy way out. Not to mention that (I'm guessing here) judges don't want their decisions overruled? I'm guessing that judges want to get it right the first time.

[Stephen Harfield]

The other thing is that if you were going to dodge your obligations to rule correctly you probably would not be livestreaming the coverage. But I do not blame those who express an opinion for ulterior motives. It really is hard to fathom why this error happened, and cynical and non-cynical guesses naturally emerge.

[Rick Zemanek]

With all due respect to the learned Justice, the Hon. Denny Thomas of the Alberta Court of Queen’s Bench, I believe the Justice erred in his decision by referring to the "voided" Section 230 of the Criminal Code of Canada. Why Section 230 still exists "in print" in the Code, despite the Supreme Court of Canada effectively shutting it down in 1990, is a puzzler, to say the least. However, given the knowledge of Mr. Justice Denny and his responsibilities seeing our laws are applied equally to all, he ought to have known better not to refer to Sect. 230 of the CC. I am not bringing the reputation of the learned Justice in disrepute, but it's paramount the courts consistently apply the law as it stands today. and keep in mind various changes over the years to the CC. In the Vader case, the Crown did not have, and still does not have, a solid case. The Crown did not prove Vader knew by his actions the robbery would have resulted in a death - that is, if Vader was in fact involved in the alleged crime. Yes, DNA evidence places him in the motor home and in the missing couple's vehicle, but was he acting alone? Evidence heard at the trial left no doubt in the mind of Mr. Justice Thomas that Vader committed a crime. But was it second-degree murder? No, since the judge relied on the phantom Section 230 of the CC. Vader's counsel, in my opinion, will succeed in an appeal. And at the very most, taking into account the Crown's circumstantial evidence, Vader is guilty of manslaughter. The problem with this case is there are no bodies. Yes, there are blood spatters. But there's nothing to suggest the initial injuries inflicted on the missing couple were instantaneously fatal. Bodies would indicate the severity of the wounds. Without that information, and opinion by experts, there's nothing to suggest Vader knew whatever injuries inflicted would cause death.
If I may digress for a moment, the same rules of law apply to a bar fight over a game of pool when the assailant breaks his pool cue over the head of the victim, eventually resulting in death. Did the accused actually intend to kill the victim, or, out of rage, did that person intend only to harm the victim? If the Crown proved it was the single blow of the pool cue that lead to the death, then that would be manslaughter.
Getting back to the Vader trial, it is indeed unfortunate the learned Justice referred to Section 230 of the CC. Now, in all likelihood, we are facing a third trial. But in the process of plea bargaining, will the Crown accept a guilty plea to manslaughter? Vader's counsel now holds the cards.

[Dwight Bliss QC]

Please hold your horses. Despite the musings of media luminaries and a gaggle of law professors, I’m not so sure that we yet know that s. 230 was dead-on-arrival in the Vader decision. I think that there is room for a good faith argument that s. 230 is not yet an altogether dead letter as a matter of law. In my view, it is therefore premature to be castigating parliament for not rewriting the Criminal Code to reflect what is to date merely academic opinion on the matter. More currently, I think everyone should thoughtfully hesitate before jumping on the bandwagon to repeatedly ascribe “egregious” error to Justice Thomas’ application of s. 230 in the Vader case. Here’s why: both R. v. Martineau and its antecedent, R. v. Vaillancourt considered the application of s. 230 (s. 213 as it then was) to cases in which non-gun toting accomplices had been convicted of constructive murder arising from homicides committed in fact by their well-armed partners in crime. In short, they tested the limits in Canada of the application of the felony murder rule to convict a non-homicidal accomplice of murder. In those cases, the SCC found that applying s. 230 to presume the required mental state to convict the unarmed accomplices of murder is inconsistent with provisions of the Constitution and so, to the extent of the inconsistency, the section is indeed of no force or effect. However, in Vader, we have an accused who has been found to have acted alone from underlying property crimes sadly, through to two homicides. So, so far, the Vader case applies the felony murder rule not to an unarmed accomplice, but to the killer himself. No one knows yet, and I certainly do not know, but an Appellate Court might view this difference as a basis for distinguishing the Vader case from those in which the SCC found the application of s. 230 to violate the Constitution. Rather than being a stumble, perhaps Justice Thomas’ decision is a sound demonstration of his sparkling intellect. He is a far more seasoned lawyer and jurist than many of the commentators, so I’d be inclined to give him the full benefit of the doubt until we know otherwise. To my mind, when homicide results from the trigger-man’s actions in the course of committing a serious crime in common with an unarmed accomplice, there is indeed something that is just not right about statutorily ascribing the requisite mens rea for murder to the unarmed accomplice (as in Martineau and Vaillancourt). But I also think that it remains arguable in good faith, and who knows, a later Appellate Court might agree: that it is sufficiently less offensive to statutorily ascribe the requisite murderous intent to the unassisted trigger-man himself when he commits homicide in the course of committing other serious crime, and affirm the Alberta Court’s application of s. 230 to the circumstances of the Vader case. So until the final Appellate Court determines otherwise, I respectfully suggest that the colorful and public criticism of Justice Thomas, and the academic wonderment that Parliament has not yet agreed with what might turn out to be an overbroad reading of the case law to date, should be more restrained. I also think that public confidence in the administration of justice would be better served by the legal community if continued speculation from the sidelines that s. 230 is altogether dead regardless of the circumstances, and that the Court therefore committed an "egregious" error in law, was henceforth qualified by prospectus-like disclaimers that such views are in fact just what they are: merely speculation by non-participants from the sidelines, and not yet based on received holy writ. Cheers,

[Stephen Harfield]

I agree. The more I look into this, the more interesting the issue becomes about s.230. The SCC in Martineau did not throw out all of 230, and perhaps for good reason.