Saturday, Sep 17, 2016 06:00 am

By: Brent Rathgeber

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For the family of Lyle and Marie McCann, the sad saga continues. The family was seeking, and deserved, answers and closure regarding the disappearance of the St. Albert couple more than six years ago. Sadly, a ruling in an Edmonton court room Thursday provided neither.

We may never know what happened to Lyle and Marie McCann on July 3, 2010. Mr. Justice Denny Thomas certainly does not know. He was however, convinced beyond any reasonable doubt that whatever happened to them, Travis Vader was responsible for it and accordingly he convicted Vader of two counts of second-degree murder.

Parts of the 131-page judgment were broadcast live on television and on the Internet, a first for a proceeding occurring in an Alberta criminal courtroom.

The summary that Justice Thomas read recounted in detail the events on the days following the McCanns’ disappearance that led him to the conclusion that Vader had murdered the St. Albert couple.

The Crown had some obvious obstacles in proving their case. The McCanns have never been found. Justice Thomas found it patently unreasonable that they might still be alive somewhere, as the defence suggested. But the fact that they have never been found means the forensic evidence normally present in a murder investigation was absent.

There was, however, sufficient physical evidence for the Court of Queen’s Bench Justice to conclude that Vader caused physical harm to the elderly couple. There was a bullet hole in a hat and enough blood for the judge to conclude that violence had occurred.

Much of the Crown’s case was circumstantial – Vader was broke, he was a drug addict and he needed cash to feed his addiction. He had been seen in the victim’s SUV and used their cellphone.

The combination of some physical evidence, and a lot of circumstantial evidence moved the court to find Vader responsible.

The only real issue from a legal perspective was would it be first or second degree (or possibly manslaughter).

Mr. Justice Thomas concluded that the Crown failed to prove the requisite degree of planning to establish first degree but that Vader murdered two innocent victims, Thomas had no doubt.

The case has gone on for six years, with many twists and turns including the staying and then re-laying of the charges, a lawsuit for malicious prosecution and allegations of prosecutorial misconduct and police contaminating a crime scene. It is unlikely that this saga ends with Thursday’s guilty verdict.

Justice Thomas cited and relied on Section 230 of the Criminal Code – the so-called Constructive Murder provision that the Supreme Court of Canada on two occasions has found to be unconstitutional.

The rule held that in the commission of a list of serious offences (Kidnapping, hijacking, sexual assault, robbery etc.) that if a death occurred, that the accused is guilty of murder whether he intended to cause the death or not. The "intent" portion was satisfied if the accused intended the robbery or assault or other serious crime. Thereafter, he would be held accountable for all consequences even those unintended.

But our Supreme Court held 25 years ago that for an accused to be convicted of murder, general intent was insufficient. The accused must have specifically intended death to occur. Then Chief Justice Brian Dickson wrote in 1990: "Subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained; the phrase ‘ought to know is likely to cause death’ infringes the Charter" (R. v Martineau).

The Crown must prove intent or recklessness, that the accused intentionally caused death or bodily harm knowing that it was likely to cause death.

But Martineau was an accomplice in a break and enter gone bad, when his co-accused fired a fatal gunshot. It is one thing for an accomplice to claim he had only intended the break and enter or robbery and did not know his pal was going to kill. It is quite another for someone like Vader, who deliberately caused the bodily harm, not to have "subjective foresight of death."

Accordingly, if the judge had applied the law correctly, he could have found the requisite mens rea (guilty mind). However, by quoting and relying on a section of the Code deemed unconstitutional, an appeal is a certainty.

Sadly, for the McCann family, the six-year legal marathon continues. Sentencing hearings, appeals and parole hearings – the matter will go on for some time.

And that may be the biggest tragedy of all. The McCann family deserves closure. They deserve to know what happened to their parents and to never hear the name Travis Vader again. On both counts they will be disappointed. Our court system, sadly, will provide them with neither the answers nor the closure they deserve.

Vader, on the other hand, has nothing but time on his hands and nothing to lose by filing appeals of both the conviction and whatever sentence he is handed.

Justice Thomas convicted Travis Vader because of an absence of any reasonable alternative. Our judicial system is reasonably proficient in assessing responsibility and meting out punishment. What it is less good at is providing answers. I hope that the McCann family, who has suffered immeasurably, finds some comfort in knowing who, without ever knowing how or why.

Brent Rathgeber QC is a St. Albert lawyer and former MP.