Travis Vader’s defense team filed on Friday morning an appeal of the two second degree murder convictions in the deaths of Lyle and Marie McCann. The four point submission, as expected, deals with the use of section 230 of the Criminal Code that Alberta Queen’s Bench Justice Denny Thomas relied on in his ruling.
By mid-afternoon, lawyer Nate Whitling suggested they would be going for a mistrial, and have even suggested a proposed date for the hearing next month. The Oct. 3 date was likely suggested since they’ll already be in court that morning to set a sentencing date.
We have asked Mr Justice Thomas for a date to hear a defence application for a mistrial. Have suggested Oct 3. #Vader
— Nate Whitling (@NWhitling) September 16, 2016
“There were a number of grounds, one of which the reliance upon a section of the Criminal Code that has been declared unconstitutional, then errors in relation to inferences drawn from the evidence which we have suggested are unreasonable and not supported by the evidence,” said Brian Beresh.
Bret McCann said what possibly could happen with Thursday’s verdict, doesn’t take away what happened to his parents.
“Travis Vader was there, and was responsible for the death of my parents. His guilt was established (Thursday) and I don’t think that this section 230 Criminal Code issue affects that. I think it might effect what penalty or what sentence he receives,” he said.
This comes after Peter Sankoff, a University of Alberta law professor who specializes in legal issues around the criminal trial process, as well as others said Thursday that Justice Thomas used an invalid section of the Criminal Code in his decision.
That section allows for a murder verdict if a wrongful death occurs during the commission of another crime, such as robbery. However, lawyer Edward Prutschi said politicians failed to get rid of that section after the Supreme Court of Canada ruled it was unconstitutional back in 1990.
“Politicians, they don’t want to be seen as removing something from the Criminal Code because they always want to get elected on ‘tough on crime’ so nobody wants to take those things out, and they basically blamed the judges to say, ‘well look, if were up to us it would still be legal, but those darned judges they removed it so there’s nothing we can do about it’ but they don’t then react on the reality and clean up the code and delete the sections that shouldn’t be there.”
The Alberta Court of Appeal could step in and consider the facts of the case as Justice Thomas decided on them, and then consider manslaughter instead of second degree murder in using those facts.
The submission from Vader also said that if a new trial is ordered, they’ll seek having it by judge and jury.