Paula Simons: Sensible result cold comfort in face of senseless crime

"This has gone on a long time, to say the least," Justice Denny Thomas said with a grimace.

That’s an understatement. 

On Monday, Thomas vacated Travis Vader’s two second-degree murder convictions, which he had handed down Sept. 15.

In effect, he reversed himself and found Vader was not guilty of murder.

But Thomas wasn’t done. He then found the Alberta man guilty of two counts of manslaughter in the deaths of Lyle and Marie McCann, the St. Albert seniors who disappeared west of Edmonton while on a camping holiday in June 2010. Their bodies have never been found.

The judge’s remarkable reversal was a last-minute effort to correct a glaring legal oops. 

In September, Thomas convicted Vader using an unconstitutional section of the Criminal Code that covers what used to be called felony murder.

Thomas concluded the Crown had not proved, beyond a reasonable doubt, that Vader planned to kill the couple.

Instead, he found the McCanns had likely been killed in the course of a robbery. And since they had likely died while Vader was committing another serious crime, he reasoned, Vader was guilty of second-degree murder. 

But that line of logic was predicated on a major judicial error. The Supreme Court of Canada struck down Canada’s felony murder clause as unconstitutional in 1990. Thomas had relied on a law that no longer existed even though it’s still a part of the Criminal Code. 

The defence demanded a mistrial. The Crown sought compromise and suggested Thomas impose manslaughter verdicts instead.

No sooner had the judge rendered his new verdicts than the defence vowed to appeal. Thomas, said defence lawyer Nate Whitling, had no legal standing to reverse his own ruling. The new verdicts, imposed after the fact, said Whitling, violated his client’s constitutional rights. Only a fresh trial, he argued, could properly correct the error.

But Steven Penney, who teaches criminal law at the University of Alberta, thinks this time the judge got it right. 

"This is the most sensible result," he said.

A new trial would have been a huge undertaking for the Crown, the grieving family, the witnesses. And since both the Crown and the McCann family had signalled their willingness to settle for a manslaughter verdict, Penney believes this compromise represented the best way to salvage a bad situation.

Penney said the defence has a point when it argues an ex poste facto reconsideration of a decision has the potential to look biased, like a forgone conclusion. But, he argued, since Thomas’ original verdict encompasses the new one, that shouldn’t be an overwhelming objection.

"All the elements of manslaughter were made out in the original felony murder conviction."

Penney’s colleague, Peter Sankoff, agreed. Sankoff was one of the first to criticize Thomas’s original mistake in September. But he thinks Monday’s ruling makes sense.

"The reason I feel good about this is that the reasoning for manslaughter was part of reasoning in the original verdict," said Sankoff. 

Declaring a mistrial, he said, is last resort and wasn’t necessary to correct Thomas’ mistake. Still, he’s not surprised to see the defence vowing to appeal.

"All this isn’t over yet, obviously. We’re a long way from done."

What does the new verdict mean for Vader’s sentence? A conviction of second-degree murder comes with an automatic mandatory minimum sentence of life in prison with no chance of parole for 10 years.

Manslaughter sentences vary drastically, from probation to life in prison, with no chance of parole for seven years. But there is a mandatory minimum four-year sentence for manslaughter that involves a firearm.

So while Vader could, in theory, still get a life sentence, his time served will likely be significantly less than it would have been under the original verdict. His lawyers have already said they’ll be asking that he be released immediately, with credit for time served before his trial. A more likely sentence, suggested Sankoff, could be around 15 years. 

Crown prosecutor Ashley Finlayson seemed sanguine Monday.

"We felt justice would be done," he said calmly outside the courthouse. 

It may not look like justice to everyone.

After 6-1/2 years of blunders by the RCMP, the Crown prosecutors office and the trial judge, this case has taxed public patience and diminished public confidence in the administration of justice in Alberta.