Bret McCann doesn’t want to think about it.
The son of Lyle and Marie McCann said it’s a painful prospect for his family to consider: that the judge’s ruling that convicted his parents’ killer may be legally invalid.
“We knew there would be appeals and discussions about how long the parole could be,” said McCann. “But to actually have the judgment threatened, we never even imagined that.”
Travis Vader, 44, was convicted Thursday in Alberta Court of Queen’s Bench in Edmonton of two counts of second-degree murder in the deaths of the St. Albert couple, who disappeared in July 2010. Their bodies have never been found.
In his ruling, Justice Denny Thomas said the McCanns were robbed by Vader, who was broke and desperate at the time.
In his decision, Thomas relied, in part, on Section 230 of the Criminal Code, which allows for a murder verdict if a wrongful death occurs during the commission of another crime, such as robbery.
But the Supreme Court of Canada struck down Section 230 in 1990, saying it violates the Charter of Rights and Freedoms, which protects the right to liberty. The Supreme Court ruled that an accused can’t be found guilty of murder and be subjected to the harsh consequences of that conviction if there is no proof an accused was aware a victim would die.
The revised definition of murder states that killings must be intended in order to be murder, which the Crown was unable to prove in the Vader case, legal experts say.
Though Section 230 has not been in force for 26 years, it has never been repealed and remains in the Criminal Code.
After weeks of sleepless nights, Bret McCann said he was relieved on Thursday to hear the judge pronounce Vader guilty of two counts of second-degree murder.
But that feeling of “tremendous relief” in the courtroom soon gave way to a new anxiety.
The family was having a private celebration Thursday night when they heard unsettling news: the verdict was already being questioned by legal experts.
“We tried not to talk about it and just enjoy the moment,” said McCann. “Of course, it would be very concerning if we had to go through another trial.
“We’re trying to not think about it until the Crown responds with what their opinion is.”
If the charges against Vader are reduced to manslaughter, he would face a mandatory minimum sentence of four years, instead of an automatic life sentence with no chance of applying for parole for 10 to 25 years.
Vader’s lawyer filed a notice of appeal of his client’s murder convictions Friday morning, citing the trial judge’s reliance on Section 230.
If an appeal is successful and a new trial is ordered, the earliest the trial could occur would be 2018 or 2019, Beresh said. That would be more than eight years after the McCanns went missing while driving to B.C. in their motorhome.
“I’ve seen all kinds of options mentioned,” McCann said. “A retrial, a whole gamut of options. At this point, I don’t even want to contemplate them.
“I hope it’s something that can be corrected by the Crown or the court system.
“I’m still thinking that, I’m assuming that this can be corrected.”
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