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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.”