The defence team has now filed an appeal following the conviction yesterday of Travis Vader in the deaths of Lyle and Marie McCann six years ago. As expected, the submission deals with section 230 of the Criminal Code which Justice Denny Thomas relied on in his ruling.
Vader’s lawyer Brian Beresh say Thomas not only relied on a section that has been declared unconstitutional, but made other errors in interpreting the evidence. He says they’re asking for Vader’s acquittal or a new trial.
Meanwhile Lawyer Edward Prutschi says politicians failed to delete that section after the Supreme Court of Canada ruled it was unconstitutional back in 1990. Prutschi tells News Talk 770’s Danielle Smith it doesn’t clear the judge, but parliamentarians caused the problem. “Politicians, they don’t want to be seen as removing something from the Criminal Code because they always want to get elected on ‘tough on crime’. Nobody wants to take those things out and the basically blame the judges ‘Well, look, if it was up to us it would still be illegal, but those darn judges, they removed it so there’s nothing we can do about it. But they don’t then act on the reality and clean up the code and delete the sections that shouldn’t be there.”
Prutschi says the Criminal Code of Canada is the bible for the legal profession but it’s decades out of date. He notes a similar incident occurred in a BC jury trial in 2010. The judge gave the wrong instructions to the jury. The BC Court of Appeal ruled that the jury did not rely only on those instructions, but did warn the government that such a situation could happen again. “The court was very clear in saying ‘Look, even though we can fix it in this situation, this is a problem and it could happen again.’ And lo, and behold. six years later it did, despite the BC Court of Appeal judges turning to the federal government and saying ‘Please just delete it already, so nobody makes this mistake again.'”
The appeal by the Vader legal teams says the judge “erred on a law no longer in force in relation to second degree murder.” It also says the judge made findings of fact that were “unreasonable” and not supported by evidence.
Before the appeal goes ahead, Vader will have to be sentenced for Thursday’s judgement. A date for sentencing will be set October 3rd.
The Alberta Justice Department has declined comment on the appeal notice.