Legal experts suggest judge made serious error in Vader verdict

CTV National News: Vader verdict questioned An apparent mistake by the judge in the Travis Vader murder trial has led to an appeal. Janet Dirks reports on the issue with the verdict.

Some legal experts are asking whether an Alberta judge made a serious legal error when he convicted Travis Vader of second-degree murder in the deaths of Lyle and Marie McCann.

CTV News Legal Analyst Edward Prutschi said that it appears Justice Dennis Thomas relied on Section 230 of the Criminal Code, which was declared unconstitutional in 1990 case R. v. Martineau.

Prutschi told CTV News Channel that Section 230 stated that if a person died during a robbery, “which is what the accusation was here,” then “automatically you’re guilty of murder.”

According to Prutschi, since that section was struck down in 1990, the Crown must prove beyond a reasonable doubt that the accused had “the foresight” to know they were going to cause someone’s death in order to prove murder.

If that foresight isn’t there, “at most you’re guilty of manslaughter,” the criminal lawyer said.

He said it’s possible Justice Thomas may have meant to refer to Section 229 in his decision instead of 230.

Prutschi added that members of the legal community are now asking whether “this something that can be fixed immediately.”

He said Justice Thomas may be able to come back before the sentence is handed down and say, “I wrote down the wrong number but I was referring to this section and, don’t worry, I considered it. I got my arguments in place and I still believe there is proof beyond a reasonable doubt.”

Alternatively, he said, Justice Thomas might come back and say, “that was a mistake. I realize it now. I meant to give a manslaughter verdict.”

“Failing that it’s definitely going to come up on appeal,” Prutschi added.

University of Alberta law professor Peter Sankoff also pointed out the apparent error on Thursday, in a series of tweets.

Sankoff said on Twitter that “there is no doubt in my mind that the judge made an egregious legal error.”

“Section 230 is unconstitutional, and you have cannot convict someone of second degree murder using a definition of crime that’s void,” he wrote. “Murder must include subjective foresight of death.”

The McCann’s burned-out motorhome was found near Edson, Alta., but their bodies were never located.

Defence lawyer Brian Beresh said, soon after the verdict was read, that “we think that it’s an error that in this case the court didn’t reconstruct what occurred, but simply … said ‘this must have happened.’”

Crown prosecutor Ashley Finlayson said he was pleased with the second degree murder conviction, although the Crown had asked for a first degree conviction.