Legal expert expresses doubts over second-degree murder Vader verdict

EDMONTON — At least one legal scholar says a judicial oversight may invalidate the verdict that found an Alberta man guilty of second-degree murder.

Travis Vader was convicted Thursday in the deaths of seniors Lyle and Marie McCann, a case that bedevilled police, haunted the victim’s family and fascinated the public since the couple’s burned-out RV was found in 2010.  

But Peter Sankoff, a University of Alberta law professor who specializes in legal issues in criminal trials, said Queen’s Bench Justice Denny Thomas used an invalid section of the Criminal Code in his decision.

“I’m pretty confident that the ruling can’t stand,” Sankoff said.

He noted that Thomas used Section 230 of the Criminal Code in his written judgment convicting Vader. Thomas referred explicitly to that section in finding Vader guilty of second-degree murder.

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“When (Thomas) relies on Section 230 to convict, he can’t do that. Section 230 doesn’t exist.”

The section 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.

The revised definition of murder states a killing must be intended in order to be murder, which the Crown was unable to prove against Vader.

“The Supreme Court’s been very clear,” said Sankoff.

“You must have an intention to cause death to be guilty of murder. There’s no finding that Vader ever intended to cause death.”

Thomas allowed a camera into his court for his verdict, a first for Alberta. Livestream broadcasts of his judgment allowed Sankoff and other legal experts to monitor the argument in real time.

Although Section 230 has not been in force for 26 years, it has never been repealed and still remains in the Criminal Code. Sankoff suggests Thomas erred.

“It’s very easy to get things wrong, because, you know, you forget. (The section) is sitting there.”

Sankoff said the error leaves the verdict wide open to appeal — something Vader’s lawyer has already said he intends to do.

“If they bring an appeal on this, I think it’s a slam dunk.”

Defence lawyer Brian Beresh said he noticed the issue as well.

“We’re most disappointed with that, and it’s likely that we will file a notice of appeal tomorrow on that basis,” he said. “It may be that the defence will ask for a mistrial.”

Vader could still be convicted of manslaughter.

The situation illustrates a problem legal scholars often identify to politicians, Sankoff said. Old, antiquated laws are rarely repealed and sit there on the books.

“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.”

Sankoff said 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.  

What happens next is unclear.

The Alberta Court of Appeal could sort out the matter. Sankoff said there’s also a provision for Crown and defence lawyers to ask the judge to reconsider his verdict, a highly technical legal process that could take months.

Beresh said that’s not going to happen in this case.

“There is no reconsideration. This is the final word from that judge. Otherwise cases would never end.”

— Follow Bob Weber on Twitter at @row1960

Bob Weber, The Canadian Press