Scholars are lining up questioning the second degree murder verdicts given to Travis Vader in the deaths of Lyle and Marie McCann. They’re saying that Justice Denny Thomas erred in basing his decision on what is considered an invalid section of the Criminal Code.
“All I can tell you with respect to whether he can be convicted of murder, I don’t think that part of the conviction can stand,” said the U of A’s Peter Sankoff on the phone from Germany where he’s teaching.
Section 230, which defines murder, was long ago declared unconstitutional but it has never been repealed and remains in the code. Sankoff said the difference is that the modern definition of murder states the killing must be intended, which the Crown was unable to prove against Vader. There it gets complicated.
“If that’s the only error in judgement, the proper response would be to order a new trial, simply with respect to murder, which the crown can decide to pursue, or just simply accept the underlying manslaughter conviction, because I didn’t see an error with respect to that.”
Colleague Steve Penney agreed. “The judge said he’s guilty of second degree murder because that fit the requirements of section 230. Well 230 effectively does not exist. It has no force or effect. You can’t convict somebody on the basis of that provision.”
Penney, reached on campus at the U of A, said the question remains Vader’s intent. “I don’t see anything that’s been mentioned so far that indicates that Justice Thomas found as a fact that Vader was aware that what he was doing would cause the death of either of the McCanns. So bodily harm is one thing, but death is another.”
Penney said that means manslaughter. “We don’t know exactly what the sentence will be but the maximum sentence for manslaughter does not involve any period of mandatory parole ineligibility, unless he’s shown to have used a fire arm in which case there’s a minimum punishment of four years.”
“I’m sure the judge when he realizes what’s happened will feel mortified about this,” Sankoff added. “It’s really obviously not good for him or not good for anybody, and bad for justice, bad for all of us. I don’t know whether Vader should be convicted of murder or not. The only person who knows that is the judge and it’s not possible at this stage to actually make a conclusion using the correct clause because the correct clause of the code requires a different level of mental intention and the judge didn’t give us any indication of whether that mental intention is correct. So I’m not sure what is going to happen.”
In the quarter-century that 230 has been gone, other cases have come up. Sankoff cited one in B.C. “That conviction was upheld but mainly because when the judge orally charged the jury, he charged them properly. They were simply left with a photo copy that included the offending language.”
“Since the judge did everything properly a new trial wasn’t ordered,” Sankoff said. “But even then the court of appeal just slammed parliament for not fixing this language.”
In a text message sent late Thursday afternoon, lawyer Brian Beresh confirmed an appeal would be filed first thing in the morning based on s230.
Meanwhile, in an e-mail to iNews 880, Crown Prosecutor Ashley Finlayson said he had no comment on the defence’s plan to appeal.