Travis Vader's second degree murder conviction in the deaths of Lyle and Marie McCann was changed to manslaughter yesterday, a decision that a University of Alberta expert says rectifies a grievous legal mistake and leaves little ground for a successful appeal.
"Going forward, there are some arguable claims for an appeal, certainly, but I think it will be a difficult challenge for the defence to succeed," said U of A law professor Steven Penney. "I think the Crown is on pretty solid ground in saying that Justice (Denny) Thomas had the authority to reopen the case and substitute manslaughter convictions for the murder convictions."
Originally, Justice Thomas convicted Travis Vader of two counts of second degree murder under Section 230 of the Criminal Code, which was struck down by the Supreme Court of Canada in 1990.
Unfortunately, according to Penney, for whatever reason, the federal government has failed to repeal portions of the code that have been struck down on constitutional grounds, like Section 230, and so they persist as "dead letters."
"That being said, everyone who practices criminal law and everyone who is involved in these types of cases have known for a very long time that this provision is unconstitutional and no other court has applied it," said Penney. "That is why this error is so surprising, so bizarre."
After the error was noticed, the defence filed an appeal, which they subsequently withdrew, instead choosing to file an application for a mistrial.
The Crown opposed that application by arguing that since Justice Thomas still had jurisdiction over the case, he had the authority to reopen it and substitute manslaughter convictions for the second degree murder convictions.
The judge agreed with the Crown.
Penney said the decision will almost certainly mean an appeal by the defence, although he says he doesn't see a successful way forward for Vader.
In almost all circumstances, he said, in order to convict somebody for murder, the Crown needs to show the elements of manslaughter, whether it is directly mentioned or not.
"It is what we call an included offence to murder. If you can't make out the required intent, then often you can convict for manslaughter," he said. "Fortunately for the Crown in this case, Justice Thomas was very careful in setting out what he thought happened and what he thought the prosecution was able to prove beyond a reasonable doubt, and all the elements for manslaughter are present."
Penney says since the Crown argued that manslaughter would be an appropriate resolution to this, he doesn't see them appealing.
"The only side that is potentially prejudiced by the error, in my opinion, turns out to be the prosecution and not the defence, as, in theory, they weren't given a chance to prove the elements of second degree murder," he said.
As for the defence, Penney says the original written decision makes it hard to argue that the evidence was reconstructed in a way that might present an apprehension of bias.
"You just have to turn to it and you can see that the elements of manslaughter were there," said Penny, noting the only avenue for Vader's defence attorneys is Justice Thomas' ability to properly sentence Vader.
"I don't necessarily believe this is a good or a compelling argument, but in recognizing the error and substituting manslaughter, there might be a sense that Justice Thomas might not be fully impartial and might be influenced in his sentencing by the fact that he initially deemed Travis Vader to be a murderer."
Travis Vader's sentencing hearing, in which the judge will listen to recommendations and arguments from both the Crown and the defence, is scheduled to begin Dec. 12 and last a week.