Justice Denny Thomas might be wishing that he wrote his conviction of Travis Vader in pencil.
The Alberta Queen’s Bench judge appears to have made an error in law in his second degree murder conviction, delivered live on TV, when he relied on Section 230 of the Criminal Code.
Section 230 maintains that an accused is guilty of culpable murder if death occurs during the commission of a litany of crimes, including — in Vader’s case — robbery.
Thomas concluded that Vader had killed Lyle and Marie McCann, two Alberta seniors whose bodies have yet to be found.
But the murder charge may be thrown out, as Thomas likely should’ve relied on Section 229, which deals with simple murder.
Alberta law professor Peter Sankoff was the first to point out the error, taking to Twitter upon watching the decision to note that Section 230 had been declared unconstitutional.
The majority court in R. v. Martineau, from 1990, concluded that Section 230 was unconstitutional, as “it is not necessary to convict of murder persons who do not intend or foresee the death.”
Indeed, 230 holds that a killing is murder under the section, “whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being,” so long as bodily harm is intentionally caused during the commission of the offense.
“This is the most stunning error I've ever seen,” Sankoff wrote on Twitter, adding: “Section 230 is unconstitutional, and you cannot convict someone of second degree murder using a definition of crime that's void.”
Sankoff said, simply, the judge will have to drop the charge to manslaughter, as the court already concluded that Vader was the one to cause the couple’s death. What Thomas needed to determine was whether death was intentionally caused, and that’s where the error sprung up. And Vader’s defence counsel is already on it — they filed appeal on Friday.
The question now becomes: Can Justice Thomas substitute his decision and head off this catastrophe?
David Tanovich, law professor at the University of Windsor, jumped in to suggest that there is some way to save the murder conviction.
“It seems only option for judge is to re-open trial & either declare mistrial or hear submissions on 229,” he tweeted. He contended that the judge is not functus — or bound to adhere to the decision he’s passed down — until the sentencing. That may leave a door open to changing his reasoning and offering thoughts on a second degree murder conviction under Section 229.
Asad Kiyani, assistant law professor at Western Univeristy, offered his own theory: “The outcome that makes the most sense to me is that Vader ends up with a manslaughter conviction on appeal.”
Kiyani contended that the judge may only re-open his verdict to clarify his reasoning, not to bow to public pressure.
Sankoff agrees that the judges’ hands are tied. “My gut says he's ‘functus,’ and has no power to alter the conviction he just issued, even if defence raises it at sentencing,” he tweeted.
Carissima Mathen, assistant professor at the University of Ottawa, said re-opening the case would be “unprincipled” and that, now, it’s simply “too hot to re-open.”
One thing that most of the lawyers sparring on social media seem to agree on is that the Criminal Code is long overdue for a clean-up.
Justin Ling is an Ottawa journalist who covers law and politics.