Bret McCann ‘flabbergasted’ at judge’s apparent mistake in Travis Vader conviction

The son of Lyle and Marie McCann is surprised by a legal issue in the conviction of Travis Vader. But, he said, it’s not taking away his sense of relief at hearing the word “guilty.”

“We’re glad that Vader was found guilty,” Bret McCann said Friday. “He was responsible for this. What happens to him after this, what his penalty is – we want it to be significant but – whether it’s manslaughter or murder, that’s not a huge deal to us.”

“Judge Thomas clearly outlined that Travis Vader was guilty, was there when my parents were killed, is responsible,” McCann said.  “He’s definitely responsible for the death of my parents.”

“It was a huge relief to hear the judge say that he was guilty.”

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On Thursday, Justice Denny Thomas found Vader guilty of second-degree murder in the deaths of the elderly St. Albert, Alta. couple.

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However, Vader’s lawyer filed an appeal Friday morning which focuses on what he calls a major error in the ruling and is seeking to have Vader acquitted or a new trial ordered. The appeal also asks that if granted, a new trial be by judge and jury.

READ MORE: Travis Vader verdict: lawyer files appeal notice less than 24 hours after convictions 

Defence lawyer Brian Beresh said Thomas relied on a section of the Criminal Code that has been declared unconstitutional in 1990 and made other errors involving the interpretation of evidence.

When asked about the so-caller error, McCann said he was “very surprised, flabbergasted.”

“I’m looking forward to hearing the explanation from the court.”

READ MORE: Travis Vader: legal expert says error leaves verdict open to appeal 

McCann said, as far as he understands, a retrial is a “remote possibility” and one he’s not really concerned about.

“It is important for us to know what happened that day, as far as we can, and who is responsible for that,” McCann explained.

“Vengeance is not really uppermost in our mind.”

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Still, he hopes the legal issue can be resolved before sentencing.

“When we heard the verdict, it felt remarkable. We were home here celebrating with my sister and my kids and friends and then someone noticed this tweet about the section of the Criminal Code had come up. It puts some consternation into the celebration, that’s for sure.”

Lyle and Marie McCann disappeared over six years ago. Vader was charged in their deaths in April 2012.

“This thing has been a roller coaster from the beginning so I guess we shouldn’t be surprised,” McCann said.

TIMELINE: A look back at the case against Travis Vader 

Several legal experts have cast doubt on the verdict and what is being described as a judicial oversight in the decision.

WATCH: Why was a provision in the Criminal Code of Canada, that was ruled unconstitutional more than 25 years ago, cited in the conviction of Travis Vader? Robin Gill discusses that with criminal lawyer Eric Gottardi.

2:22 Travis Vader verdict: Unconstitutional provision of Criminal Code still on the books

“When (Thomas) relies on Section 230 to convict, he can’t do that. Section 230 doesn’t exist,” Peter Sankoff, a University of Alberta law professor who specializes in legal issues around the criminal trial process, explained.

Section 230 allows for a murder verdict if a wrongful death occurs during the commission of another crime, such as robbery. However, Section 230 was found unconstitutional in 1990 by the Supreme Court.

“This is an exceptional error in an exceptional case,” Asad Kiyani, an assistant professor of International and Criminal Law at Western University, said.

Tweet This Click to share quote on Twitter: "This is an exceptional error in an exceptional case," Asad Kiyani, an assistant professor of International and Criminal Law at Western University, said.

He said the court of appeal might decide a new trial is not necessary because the foundation for the lesser manslaughter verdict is already there.

READ MORE: The case against Alberta murder suspect Travis Vader

“They might say that a new trial would be a problem given the amount of delay that has already taken place in this case and that might be unfair to the accused as well,” Kiyani said. “They could say that there’s no need for a new trial because we have a foundation here for another conviction.”

However, he stressed the verdict could only be changed if there are no other errors in the judgement.

Kiyani said another possibility is that the case never makes it to the court of appeal because the judge admits to making an error and declares a mistrial or orders a new trial himself.

“I think it’s perhaps a bit unfair to pile on to Justice Thomas in this sense because parliament hasn’t taken up its responsibilities to amend the code and it just does happen even with people who deal with the criminal law regularly.”

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With a file from The Canadian Press

Justice Thomas’ Reasons for Judgement: Travis Vader by Anonymous QRCBjQd5I7 on Scribd