For the first time in an Alberta criminal court, the verdict in a murder trial was broadcast live. But when Justice Thomas Denny convicted Travis Vader of second-degree murder in the 2010 deaths of Lyle and Marie McCann Thursday, thousands of Canadians watched as he made what legal experts call a major error that is now the crux of Vader’s appeal.
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Thomas’ verdict cited Section 230 of the Criminal Code of Canada, portions of which were ruled unconstitutional more than 25 years ago.
That particular section looks at “murder in commission of offences,” meaning that a murder was committed while committing or attempting to commit another criminal offence under the criminal code — including robbery.
“I conclude, beyond a reasonable doubt, that Mr. Vader intended to cause bodily harm to the McCann’s,” Thomas said in his decision, adding Vader had “no other reason to apply force to the McCanns to further his criminal act.”
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Vader’s defence lawyer, Brian Beresh, filed an appeal Friday morning, arguing the judge “erred in relying upon a law no longer in force and effect in relation to second-degree murder.”
Even though that portion of Section 230 hasn’t been applicable in the Supreme Court of Canada’s eyes since 1990, the federal government still hasn’t repealed it.
What is Section 230(a) of the Criminal Code of Canada?
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Section 230(a) of the Criminal Code states that a culpable homicide is murder “whether or not the person means to cause death… and whether or not he knows that death is likely to be caused” by intentionally causing bodily harm while committing or attempting to commit a crime or trying to flee afterward.
Robbery is one such offence but the section also references offences ranging from hijacking a plane and acts of piracy to kidnapping, arson and aggravated sexual assault.
Why was Section 230(a) ruled unconstitutional?
In 1990, the Supreme Court of Canada ruled Section 230(a) unconstitutional in the case of R. v. Roderick Russell Martineau.
Martineau was 15 years old in 1985 when he and his friend, 17-year-old Patrick Tremblay, robbed an elderly couple at their home Valleyview, Alta.
According to a 2009 article in the Grand Prairie Daily Herald-Tribune, the couple was “assaulted and tied up within their own home and eventually killed in execution-style with a rifle.”
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Martineau and Tremblay were convicted of second-degree murder in 1987.
During his trial, according to court documents, Martineau said he thought they were only going to be committing a robbery.
Tremblay was the one who killed the couple. According to documents, Tremblay told Martineau he shot the couple because they had seen both their faces. Martineau, however, claimed his face had been covered with a mask.
Martineau appealed and the Alberta Court of Appeal found Section 230 (a), then known as Section 213 (a), was in violation of the Canadian Charter of Rights and Freedom, overturning his second-degree murder conviction.
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When the case made its way up to the Supreme Court of Canada, it upheld the appeal court ruling.
The decision stated Section 230(a) permitted “a person to be convicted of murder without proof beyond a reasonable doubt of objective forseeability of death.”
Martineau later had his murder conviction reduced to manslaughter and was released on parole in 1997.
Why hasn’t it been repealed?
Section 230(a) was ruled unconstitutional in the Martineau case, but it’s still a part of the Criminal Code.
That’s not uncommon.
“There are anywhere from 30 to 50 crimes that, if you open up the Criminal Code, are still there. Parliament never gets around to repealing those, even though we ask them to,” University of Alberta law professor Peter Sankoff told The Canadian Press Thursday.
He noted Section 230 has been wrongly used in trials before, but only in instructions to a jury. He said he’s not aware of it being used before in a judgment.
“There’s not enough continuing legal education or training given to judges who come from a non-criminal background but hear criminal cases,” added Asad Kiyani, a professor of law at Western University. “It’s quite easy for someone who doesn’t have the familiarity with the law to look back at the law and say, ‘OK. Well this is in the Criminal Code so it must be in the law.'”
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But it’s not like there hasn’t been attempts over the years to get Parliament to remove that provision from the Criminal Code.
“In those intervening years, despite the fact that numerous academics have called on Parliament to clear out the Criminal Code of some of these dead provisions, they haven’t done it,” said Eric Gottardi, a criminal lawyer in Vancouver.
While Section 230(a) still sits on the books, Section 230(d) — which labeled a culpable homicide a murder if the death was caused by a person accidentally discharging a weapon while resisting police arrest — was repealed after the Supreme Court of Canada ruled it unconstitutional in 1987.
With files from The Canadian Press
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