Legal experts say a judge who used an unconstitutional section of law to convict an Alberta man of murdering two missing seniors can take a few different avenues to fix the error, including substituting the verdict with manslaughter.
Defence lawyers and prosecutors are to return to an Edmonton courtroom Monday, two weeks after Court of Queen’s Bench Justice Denny Thomas found Travis Vader guilty of second-degree murder.
Thomas said in his reasons that Vader, a desperate drug addict, came across Lyle and Marie McCann in their motorhome in a rural area west of Edmonton and shot them during a robbery in 2010. Their bodies have never been found.
The judge cited Section 230 of the Criminal Code, which was declared unconstitutional in 1990 by the Supreme Court, but never removed from the book.
READ MORE: Travis Vader verdict: what is Section 230 of the Criminal Code?
Watch below: 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.
Lawyers were supposed to set a sentencing date Monday, but Vader’s lawyers filed a motion last week for a mistrial.
READ MORE: Travis Vader’s legal team files mistrial application after double-murder conviction
And it could take months to find out what happens next.
“I think no matter which road you go down, it ends up in a manslaughter verdict,” says Peter Sankoff, a law professor at the University of Alberta currently on sabbatical in Germany.
“It just seems to me to be the most likely option.”
Sankoff says the judge could stick with second-degree murder, but it would be problematic. Section 230 allowed for a second-degree murder verdict if a killing occurred during the commission of another crime, such as robbery. Otherwise, the killing must be intentional.
And Thomas said he found no evidence Vader intended to kill the McCanns.
The judge also ruled out first-degree murder, saying there was no evidence the deaths were planned and deliberate.
David Tanovich, a law professor at the University of Windsor, says Thomas has jurisdiction to reopen the trial because there was no jury. And he’s allowed to change his mind.
Tanovich points to the case of Lamar Griffith in Toronto. A judge convicted the man on firearms charges in 2011.
But three months later, before sentencing, the judge changed the verdict to not guilty. The Ontario Court of Appeal ruled a judge can change a verdict under exceptional circumstances but that, in the Griffith case, he should have ordered a new trial.
Tanovich says Thomas could realistically enter a manslaughter verdict against Vader. The judge could also agree to a mistrial, Tanovich says, but a new trial wouldn’t be “in the interest of justice” since there is a valid finding for manslaughter.
The judge’s use of Section 230 came as a “shocker,” Tanovich adds, saying no judge has used the section before in a verdict. Some judges have mistakenly included the invalid section in copies of Criminal Code provisions given to juries, but appeal courts have ruled that wasn’t an issue because lawyers didn’t mention the section in their submissions.
Prosecutors in Vader’s trial also didn’t reference Section 230, says Tanovich. But, a look at their written submissions, shows they actually didn’t give the judge much help sorting out homicide provisions.
“This wouldn’t have happened had they done that,” he says. “The trial judge got no assistance at all from the lawyers.”
Tanovich says it doesn’t excuse the judge’s error. The judge would also have had access to a basic homicide checklist that juries usually get, he says.
READ MORE: Bret McCann ‘flabbergasted’ at judge’s apparent mistake in Travis Vader conviction
Watch below: The lawyer for Travis Vader is demanding the judge in the murder case declare a mistrial. This comes after filing an appeal of the verdict and legal experts saying the judge made a huge mistake. Tom Vernon reports.
Sankoff says fault also lies with Parliament for not repealing the old section in the first place.
“It’s sort of like saying if somebody was walking carefully across the lawn and they were looking, they wouldn’t have tripped on the garden hose,” says Sankoff. “But if the garden hose hadn’t been there, they wouldn’t have tripped on it at all.”