Travis Vader Trial: Expert Says Judge's Mistake Could Overturn Alberta Murder Verdict

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EDMONTON — The lawyer for a man found guilty of second-degree murder in the deaths of an Alberta couple says he's appealing the conviction in the hope of getting an acquittal or a new trial.

Brian Beresh filed the appeal Friday — less than 24 hours after Travis Vader was found guilty in the deaths of seniors Lyle and Marie McCann — and says it hinges on what he calls a major error in the ruling.

"There are a number of grounds — one of which is the reliance upon a section of the Criminal Code that has been declared unconstitutional — and then errors in relation to inferences drawn from the evidence which we have suggested are unreasonable,'' Beresh said Friday.

Justice Denny Thomas's ruling on Thursday was broadcast live from Edmonton Court of Queen's Bench, a first for an Alberta criminal trial.

Some legal experts immediately noted that Thomas used Section 230 of the Criminal Code in his ruling. The section allows for a murder verdict if a wrongful death occurs during the commission of another crime, such as robbery.

However, Section 230 was found unconstitutional in 1990 by the Supreme Court of Canada.

"His guilt was established yesterday and I don't think that this Section 230 issue affects that."

The McCanns were killed in July 2010 while driving to British Columbia for a camping trip. Their bodies and a murder weapon were never found. The complex case that involves DNA and cellphone evidence has been in and out of court since 2012.

Bret McCann, the couple's son, said he was celebrating the guilty verdict Thursday night at home with family and friends when they learned about the Section 230 issue.

It was disconcerting, McCann said. But after reflecting on what he called the "crazy twist'' in the case, he said it was still important for his family to hear Thomas lay out the facts and say Vader was responsible for the death of his parents.

"His guilt was established yesterday and I don't think that this Section 230 issue affects that,'' McCann said. "It may affect what sentence he receives ultimately. The penalty is kind of a minor thing to us.''

nicole walshe bret mccann
Nicole Walshe, daughter of Bret McCann, Bret McCann and his wife Mary-Ann McCann walk out of the courthouse after Travis Vader was convicted of two counts of second-degree murder of Lyle and Marie McCann. (Photo: Jason Franson/CP)

McCann said it is too soon to say whether he would attend an appeal or a new trial. He said he and his wife, Mary-Ann, may just follow through with their plan to live in Australia to be near their daughter and grandchildren.

Alberta's Justice Department declined comment on the Section 230 issue and the appeal.

"As the case is still before the court, including as it has been appealed, it would be inappropriate for the Crown to comment,'' Alberta Justice spokesman Dan Laville wrote in an email.

Beresh said nothing can happen with the appeal until Vader is sentenced on the second-degree murder conviction.

Vader is to appear in court Oct. 3 to set a date for a sentencing hearing and to determine if he should undergo a psychiatric assessment.

"This preserves Mr. Vader's right to appeal, but before the Court of Appeal is engaged ... the case has to be concluded in Queen's Bench. A sentence has to be passed,'' Beresh said.

"There are a number of options that will be explored, but presently that is the next appearance date.''

travis vader lawyer brian beresh
Travis Vader's lawyer Brian Beresh speaks to media after the verdict. (Photo: Jason Franson/CP)

Although Section 230 has not been in force since 1990, it has never been repealed and remains in the Criminal Code.

Peter Sankoff, a University of Alberta law professor who specializes in legal issues in criminal trials, said old laws are rarely repealed by Parliament.

The federal justice department said there is no legal obligation for Parliament to amend the Criminal Code to reflect Charter rulings by the Supreme Court.

But Justice Minister Jody Wilson-Raybould said in a statement she has already ordered a review of Criminal Code provisions found to be unconstitutional "with a view to updating the Criminal Code to reflect these decisions.

"This review is ongoing and is one part of the larger review of the criminal justice system that I have undertaken,'' she said.

Thomas was appointed to Court of Queen's Bench in 2005 by the federal Liberal government of former prime minister Paul Martin.

At the time, his biography noted his background in environmental regulatory law and said he was a frequent panellist and lecturer for the Canadian Bar Association and the Law Society of Alberta.

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