Convicted killer Travis Vader to appear in court again on Oct. 31

By Tony Blais

A future court date has been set but the elephant in the room in the bizarre and continuing case of convicted killer Travis Vader was not addressed Monday.

The next court date is Oct. 31 — although it is unclear as to what exactly will happen then — but nobody in the courtroom raised the subject of how a section of the Criminal Code that was declared unconstitutional by the Supreme Court of Canada in 1990 was last month used to convict Vader, 44, of second-degree murder.

Court of Queen’s Bench Justice Denny Thomas, who included the phantom Criminal Code Section 230 in his 131-page Sept. 15 decision finding Vader guilty of the 2010 killings of an elderly St. Albert couple, did not mention the mistake.

Outspoken defence lawyer Brian Beresh, who cited the use of the nonexistent section in both his filed appeal of the verdict and his mistrial application, did not speak in court about it.

Nor did the Crown, Vader or anybody else at the appearance.

Thomas began by calling the appearance a "process hearing" and mentioned that there was an actual written agenda being followed.

"Nothing of a substantive nature is going to happen this morning," said Thomas, before announcing the first item on the agenda had to do with an "alleged mistrial" application filed by Beresh.

The judge noted the issue of whether or not he has jurisdiction to hear a mistrial application in the case is also on the table, as Vader’s lawyers have already filed an appeal of the verdict.

The matter ended with Thomas setting deadlines for the Crown and defence to give written briefs on the mistrial application so they would be in his hands before Oct. 31. However, the question of whether oral submissions would also be made was left open.

Beresh said he would like to make oral submissions, but Thomas would only say he would consider it, based on the "quality" of the submissions. The judge did say he would give an oral decision on the application, but did not specify it would be on Oct. 31.

Crown prosecutor Ashley Finlayson also said on the record that the Crown is opposing Vader’s mistrial application.

The second item on the agenda was sentencing, with Thomas saying he wants a "draft sentencing plan" in place and indicating that the Crown might be calling additional evidence, including victim impact statements, at such a hearing. The judge also said he would like both sides to tell him how long a sentencing hearing might take.

Thomas also brought up whether or not a pre-sentence report or a psychiatric assessment on Vader might be required, but said he is prepared to table that discussion until after any mistrial application.

The last item on the agenda had to do with continuing applications regarding state funding being provided for Vader’s defence and Thomas spoke of those proceedings currently being done in "secret" with publication bans and sealing orders in place.

There had been some talk of various media outlets, including Postmedia, which owns the Edmonton Journal and the Edmonton Sun, and CBC applying for permission to have further proceedings in the case being live-streamed just like the verdict was.

However, media lawyer Fred Kozak told Thomas he did not have an application at this time.

The appearance ended with some discussion about the fact that it had started late due to issues around bringing Vader to court from the Edmonton Remand Centre.

Beresh put it on the record that it was not Vader’s fault, which led to Thomas looking at Vader in the prisoner’s box and smiling while saying he didn’t think it was Vader’s fault "this time."

A serious looking Vader did not smile and could be seen muttering "this time" under his breath.

On Sept. 15, Vader was found guilty of killing Lyle McCann, 78, and his wife Marie, 77. The couple disappeared on July 3, 2010, while driving to B.C. for a family camping holiday. Two days later, their motorhome was found ablaze at a campground near Edson and the SUV they were towing was discovered in the woods on July 16, 2010. Their bodies have never been found.

In his lengthy written decision, Thomas found Vader was a methamphetamine-addicted drug dealer who was in "desperate circumstances" at the time with no money or food and concluded he killed the McCanns in a violent interaction during a robbery.

However, a legal firestorm erupted shortly after the verdict was broadcast, with law experts saying Thomas had used an unconstitutional section of the Criminal Code to convict Vader.

Since then, some legal experts have suggested that, rather than declare a mistrial, Thomas could re-open the case and find Vader guilty of the lesser and included offence of manslaughter based on his fact-finding outlined in his decision.

However, Vader’s lawyers argue in their mistrial application that would be an abuse of process and would tarnish the integrity of the court and bring the administration of justice into disrepute.