Vader verdict draws criticism from legal experts

Experts cite error in judge’s second-degree murder decision

It was supposed to be the end of the drawn-out Travis Vader murder trial. It was supposed to be the moment the McCann family finally received some measure of closure surrounding the mystery of what happened to an elderly St. Albert couple who disappeared on a camping holiday in 2010. It was supposed to be the moment Travis Vader learned his fate.

And it was supposed to be a victory for the open court principle, a chance for an Alberta Court of Queen’s Bench justice to explain, not just to a packed gallery, but to thousands of people watching on a livestream just how and why he’d come to his decision.

We always knew the judgment, whatever it was, would be controversial. The McCanns, after all, vanished without a trace. No bodies were ever found. No murder weapon was ever found. The blood, DNA and cellphone record evidence connecting Vader to their disappearance were always circumstantial — and many legal observers were expecting an acquittal.

Nonetheless, Justice Denny Thomas painstakingly connected the dots, creating a timeline that showed where and when Vader and the McCanns crossed paths. There was no other plausible explanation, Thomas said, for the fact that Vader had so many of the McCanns’ possessions, including their two vehicles. No other explanation for the presence of their blood and DNA. No other explanation for the fact that Vader, a broke and desperate meth addict, suddenly had money for beer and cellphone cards.

Thomas ruled it was beyond a reasonable doubt that Lyle and Marie McCann, both in their late 70s, were dead. The only logical inference, he said, was that Vader had somehow killed them, perhaps in the course of a botched robbery.

But Thursday, there was no closure. No sooner had Thomas delivered his verdict — two counts of second-degree murder — than a legal controversy erupted.

Watching the live-stream of the verdict, University of Alberta criminal law professor Peter Sankoff was astounded to hear Thomas citing Section 230 of the Criminal Code to explain why he had come to the second-degree murder verdict.

Sankoff is a professor of criminal law at the U of A and co-author of Criminal Law, the textbook law students across Canada rely on to learn criminal procedure. He’s on sabbatical in Germany.

Even before Vader’s lawyers or the Crown could react, while the judge was still reading his ruling, Sankoff started tweeting that the verdict was a terrible legal error. His tweets set off a national legal firestorm. Why? Section 230 says a homicide is second-degree murder if the death occurs in the course of another crime, including robbery or arson. A homicide also becomes second-degree murder under Section 230 if a person commits fatal bodily harm for the purpose of facilitating the offence or of fleeing capture. According to the language of the law, it’s murder, even if the person didn’t mean to cause a death, even if he didn’t know his actions were likely to cause death.

That sounds straightforward. There’s just one problem.

Section 230 no longer exists, not legally speaking. Oh, it’s still in the Criminal Code. It’s still black-letter law. But the Supreme Court struck it down as unconstitutional in 1990 in its Martineau decision.

For the last 26 years, we’ve had no such seconddegree murder law in Canada. In this country, it’s only second-degree murder if the Crown proves the death was intentional, even if it wasn’t planned or premeditated.

In 26 years, no federal government has amended the Criminal Code to remove it. But despite its presence in text, it’s like a ghost law.

Sankoff calls Thomas’ error “unbelievable.” Vader might well be guilty of manslaughter, he said, but not of second-degree murder, at least not on the basis of Thomas’ legal and factual argument.

“It’s just a staggering thing,” said Sankoff. “It’s mind-boggling. This murder verdict can’t stand.”

His colleague, Steven Penney, who also teaches criminal law at the U of A, agreed.

“It’s absolutely gobsmacking. This is an error of the highest proportions,” said Penney. “It’s beyond understanding that this happened.”

Not only does Vader have an automatic grounds for appeal, said Penney, but the Crown has no legal way to challenge that appeal.

“The Crown could not appear before the Court of Appeal, in good conscience, and argue that the verdict should stand. If they did, it would be unethical.”

Still, he said, after 26 years, he’s astonished a mistake like this was made. Don Stuart, a professor at Queen’s University and one of Canada’s leading authorities in Charter and criminal law, has argued for years Ottawa should amend the Criminal Code to bring it in line with Supreme Court Charter rulings to prevent this sort of error.

“This is a tragedy from start to finish,” he said. “The poor family. I’m sure they must have felt vindicated and justified. When this hits them, they’re going to think the world has gone nuts.”

Stuart believes the only remedy in this case would be a new trial — which could leave the McCanns and Vader in limbo for months, if not years, yet to come.

Vader’s lawyer, Brian Beresh, said he will file an appeal on this issue Friday morning. He will also, he said, consider seeking a mistrial.

There is another option, of course — a plea agreement, which might not satisfy everyone, but would perhaps put an end to this long legal nightmare.

I feel a pang for Thomas, too, a smart tough civil litigator, a respected veteran judge, now semi-retired, who was brave enough to break new ground and allow a camera to live-stream his judgment. This decision was to be his legacy. Instead, he’s facing criticism on all sides.

Maybe it’s unreasonable to expect our judges to be experts on everything, even areas of law in which they haven’t themselves practised for years. Maybe it’s not fair for Ottawa to leave our Criminal Code littered with ghost provisions, misleading everyone about what our laws really say.

Small comfort to the McCanns — or to Vader — as this cursed case takes another freakish turn.