"Ghosts" in the Criminal Code.

• Author: Davison, Charles

One of the most highly publicized criminal trials in recent Alberta history ended in the fall of 2016 with a degree of judicial embarrassment. Having broken new ground by allowing the live broadcasting of his decision in the case, the trial judge mistakenly found Travis Vader guilty of the murders of Lyle and Marie McCann using a section of the Criminal Code which had been declared unconstitutional by the Supreme Court of Canada 26 years earlier. Once his error was pointed out by the lawyers, the judge corrected himself and ultimately found Vader guilty of the lesser offences of manslaughter.

This situation gives rise to a number of lingering questions. How could an error such as this be made? How many other situations exist where Parliament has left unconstitutional laws "on the books", so to speak?

To answer those questions, some background about the legislative and judicial processes involved must be considered.

Parliament is responsible for making our federal laws. Our elected officials in government decide on what policies should be turned into law. Parliament debates and considers the government's proposals in the course of deciding whether to pass the legislation advanced before it. Once both Houses of Parliament agree and a bill is passed into law, the Governor General gives her assent and the law becomes effective. From the earliest days of Confederation, the criminal law has been within Parliament's jurisdiction: Parliament decides what acts are to be considered crimes, and what principles govern the enforcement and application of our criminal laws. For the most part, these rules and procedures are outlined in the Criminal Code of Canada.

However, our courts also have a role to play in overseeing the proper enactment and enforcement of Canadian laws. Since Confederation in 1867, judges have been called upon to review legislation to ensure it is valid. At first, this power was limited to ensuring that laws had been enacted by the proper legislature; that Parliament and the provincial legislatures only enacted laws within their respective areas of jurisdiction, and that neither level of law-maker intruded improperly into an area reserved for the other. As time went by, however, somewhat more substantive reviews of legislation began to take place, until, in 1982 with the passage of the Constitution Act, 1982 -- including the Canadian Charter of Rights and Freedoms--courts were given the authority to strike down any law found to be contrary to the basic rights and freedoms of Canadians. Section 24 of the Charter allows individuals who feel their constitutional rights and freedoms have been infringed or denied to apply to a court for a remedy which is "appropriate and just in the circumstances". In...