A Halloween special on zombie law

Things that go bump in the courtroom

By Kirsten Thompson

On Wednesday October 31st, 2012

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Did you ever wonder how a body of law came to be a body of law? Some of you are probably practitioners of “tax law”, or “corporate law”, or even “space law” (it’s a thing, I swear). But did “space law” even exist before two lawyers ran into each other at an Advocates’ Society dinner and discovered they each had a client with a similar problem? (“Really? I’m also providing an opinion regarding the mining rights to asteroids. Boffo! Let’s hold a conference!”). Voilà — a body of law is birthed.

It is with this in mind that I draw to your attention an emerging area of Canadian jurisprudence — zombie law.

That’s right. Zombie law.

According to CanLii, Canadian courts have considered zombies a total of 217 times (admittedly, most of this is in the context of consent and capacity hearings, but that’s not the point). Removing the four references to zombie, the drink, this still leaves us with 213 references.

And not just zombies, but the totality of the undead. Vampires, for instance, have drawn the attention of the courts at least 55 times. Werewolves get only four mentions, but perhaps they’re just better at pre-litigation dispute resolution.

As the newest (and only) expert in Canadian zombie law, I am happy to share some of the more valuable lessons gleaned from the jurisprudence. First of all, there is no consensus amongst Canadian courts on the proper spelling: it appears capitalized and uncapitalized, and Quebec courts have not yet agreed on an official translation — both “zombie” and “zombi” appear in the cases.

The Office québécois de la langue française (colloquially known as the language police) appears to accept either version, and also approves of the term “mort-vivant”, which Google Translate tells me is “undead”.

It makes sense that Quebec would have addressed this issue, as 40% of zombie caselaw is from Quebec (Ontario is a close second at 32%). If zombies are something you worry about, you should immediately move to Manitoba, which has yet to report a single zombie case. PEI also lacks zombie jurisprudence, no doubt because they are an island and have successfully excluded zombies from reaching the shore. It’s anyone’s guess what will happen now that the Confederation Bridge has been built.

There is much to be learned from an analysis of the case law itself. For instance, looking like a zombie will constitute reasonable grounds for arrest (at least, for impaired driving it will). In R. c. Arnaud, 2011 QCCQ 14970 (CanLII), the court concluded that there was no self-incrimination right that was triggered as, although the accused could potentially change his post-intoxication behaviour, he could not change “… the fact that he looked like a zombie.” Thus, no evidence was gathered in conditions that violated the right under section 10(a) of the Charter.

I feel strongly that the court may have missed the point here, and that a person who looks “like a zombie” may have an immutable characteristic worthy of human rights/Charter protection. This does, however, raise the larger question of whether the undead are entitled to Charter protection at all. I would hazard a guess that since the word “person” in the Charter has been held to include corporations and other entities without souls, we have already laid the groundwork for at least the partial protection of zombies.

Vampires, too, are well-represented in the case law. For instance, Oloyede v. Canada (Minister of Citizenship and Immigration), 2001 FCT 255 (CanLII) establishes that, if you are fleeing to Canada from your home country to avoid persecution by vampires, be aware that the such persecution will not fall under the Convention definition. Also, being shot will be regarded as a criminal act, whether the shooting is done by a vampire or a mortal. In this respect, the Immigration and Refugee Board would appear to have asserted criminal jurisdiction over vampires and I look forward to hearing how the government intends to accommodate this particular prison population (particularly since Ontario seems to have a subspecies of psychic vampires).

Interestingly, the judiciary seems to be surprisingly well-acquainted with the various types of vampires, psychic or otherwise, and the bench gives short shrift to pretenders. Typical is the sentencing hearing portion of R. v. D.D.T., 2009 ABQB 362 (CanLII), in which a teenager had attempted to elevate her status by adopting the persona of a vampire, going so far as to sharpen her teeth, drink blood, and call herself “Buffy”. The judge, obviously an aficionado of the genre, remarked with some disdain that “the nickname “Buffy” […] was not (in fiction) a vampire but actually a vampire slayer in a popular television show of that name. This is but another illustration of D.D.T.’s total level of confusion.”

So where does this leave us? The U.S. is ahead of Canada with respect to zombie law – an attorney there has already penned a paper titled Death and Taxes and Zombies which I’ve blogged about previously, and another recently concluded a successful Kickstarter campaign to create a zombie law casebook. Lest Canada be left behind, I will be approaching the CBA to advocate for the creation of a Zombie Law Section. When you sign up, remember that I am the braaaains behind that particular initiative…