The lawyer for Travis Vader says an Alberta judge made a 'colossal' error in law when he convicted his client of two counts of second-degree murder in the deaths of Lyle and Marie McCann. 

"This court relied upon a non-existent law," Brian Beresh wrote in legal arguments filed this week in Edmonton Court of Queen's Bench. 

• ■What's next for convicted murderer Travis Vader?
• ■Travis Vader trial: Citing judge's mistake, defence will file appeal

He called Justice Denny Thomas's decision to rely on a section of the Criminal Code that has been struck down as unconstitutional "a colossal and unexplained error in law".  

The defence is asking the judge to issue an order vacating the two guilty verdicts and declare a mistrial in the case. 

"This court cannot proceed to impose a life sentence upon Mr. Vader for an offence that does not exist," the document states. 

"Such a proceeding would bring the administration of justice into disrepute, and tarnish the integrity of the court. It would also constitute a grave violation of Mr. Vader's Charter rights."

'They're not pulling their punches in terms of the way they're characterizing the error that was made.' - Steven Penney

Beresh also included comments from a 1974 Supreme Court ruling that suggested "it is an exhibition of courage for a judge to admit his misgivings and change his position."  

University of Alberta law professor Steven Penney reviewed a copy of the argument and says Beresh is using strong language. 

"They're not pulling their punches in terms of the way they're characterizing the error that was made," he said. "It's an error that has to be fixed."

Argument not supposed to be public yet

On Oct. 3rd, Justice Thomas set deadlines for the two sides to submit written arguments.  He told the lawyers to share their briefs and responses with each other by email and then send them to him.  

Thomas stated the documents did not have to be filed with the court until he made a final decision on the mistrial application. 

Crown prosecutor Ashley Finlayson seemed surprised Beresh disregarded that direction by filing his argument with the court.

"My understanding is that the briefs were to only be exchanged between counsel before they are filed so that Justice Thomas doesn't get to see one brief before the other," Finlayson wrote in an email to CBC News.  

"The problem with filing with the court before (the deadline) is that the briefs become public documents. That defeats the purpose of his instructions to us back on Oct. 3."

Finlayson said he plans to file his argument with the court after it has been sent to the judge.  

'What is Justice Thomas going to do?'

Penney said he's "absolutely" interested in reading the Crown's position on the mistrial application.   

He noted the defence did not mention the possibility of Thomas reopening the case and substituting the second-degree murder convictions with manslaughter verdicts.

"From a strategic perspective, I can understand why the defence perhaps is not wanting to refer to that," he said.  "Whether the Crown will make that argument in its submissions, I really don't know."  

Penney thinks the most interesting issue is what happens next. Thomas is scheduled to make a decision on the mistrial application Oct. 31st.  

"What is Justice Thomas going to do?  What should he do?", Penney asked rhetorically.

He thinks Thomas could look at the decision he has already made and determine whether the elements required for a manslaughter conviction are there.  

'What is Justice Thomas going to do?  What should he do?' - Steven Penney

If that happens, Penney said Vader could end up spending just as much time in prison. The maximum sentence for manslaughter is a life sentence, but typically there is a shorter parole ineligibility period. But there would be no guarantee Vader would be granted parole. 

"It is possible that it could be a life sentence," Penney said.  

"And it is possible he would never be released. So if he receives the maximum sentence for manslaughter and if he is never successful in any application for parole, that is a least a theoretical possibility."  

Appeal off the table for now 

Vader was convicted on Sept. 15. His lawyers filed notice they would appeal the next day. 

In the mistrial written argument, Beresh said that appeal has been abandoned for now but may go ahead if required . 

Beresh still hopes to go before the judge to argue his case before any decision is reached. Thomas seemed cool to that idea when all parties were last in court. 

"According the accused an opportunity to present oral argument is a basic requirement of a fair criminal trial process," Beresh wrote in the legal argument. 

"At no time during the trial should decisions be made in secret or private."  

The CBC and other media outlets have asked to live stream that decision.  The judge will make his decision on the media's application Oct. 28th.