Vader’s counsel files for mistrial
Trial judge used unconstitutional law, lawyers say
Lawyers for convicted killer Travis Vader filed an application in court Thursday seeking one order vacating his two guilty verdicts and another declaring a mistrial.
The application cites the use by the trial judge of an unconstitutional section of the Criminal Code to convict Vader, 44, of two counts of second-degree murder and says that results in the verdicts being “nullities” which cannot proceed to sentencing.
The lawyers claim the judge’s acquittal on first-degree murder charges against Vader are “final” and “cannot be altered,” but say that because a sentence has not yet been imposed on the second-degree murder convictions, the judge can reopen the case and vacate the two guilty verdicts on the basis of “exceptional circumstances.”
The lawyers say in the application that if the judge agrees the verdicts must be vacated, he cannot then use Section 229 of the Criminal Code — which relates to an accused doing something where they had the subjective foresight of death — to still find him guilty of second-degree murder.
Citing a 2007 Supreme Court decision, they say that would be a case of already committing to a finding of guilt before completing the necessary analysis of the evidence, which “may cause a reasonable person to apprehend that he or she has not kept an open mind.”
The lawyers also cited another case to suggest that such an amendment of a verdict would lead people to think it was an “after-the-fact justification for the verdict.”
The lawyers also say in the application that the judge cannot substitute the second-degree murder verdicts for the lesser and included offence of manslaughter, as that can be done only when it has been determined that the evidence does not prove the commission of the greater offence.
As a result, they say, that determination could be made only after a new trial — and a mistrial must therefore be declared.
“The lawyers are seeking to have the mistrial application heard before Court of Queen’s Bench Justice Denny Thomas on Oct. 3, which is the date Thomas earlier set to select when a sentencing hearing for Vader would be held and whether or not to order any pre-sentence reports.
On Sept. 15, in a ruling broadcast on live-streaming television, Thomas convicted Vader of second-degree murder for the killings of Lyle and Marie McCann.
A legal firestorm erupted shortly after as criminal law experts noted on social media that section 230 of the Criminal Code, cited by Thomas in his ruling, was struck down by the Supreme Court in 1990 as unconstitutional. The section had stated that second-degree murder can be committed if a death occurs, even unintentionally, in the course of committing another crime.
The following day, lawyers for Vader filed an appeal of the convictions in which they said they are seeking to have them set aside and an acquittal entered.