The trial of Travis Vader (R. v. Vader) has attracted significant public attention in Edmonton over the past few months. While it seemed to have arrived at completion with the release of the judge’s trial decision, it quickly become clear that a major roadblock arose from the judge’s own analysis.

Vader was charged with two counts of first degree murder over the disappearance of an elderly couple, the McCanns during their road trip to B.C. The McCanns were never found, but there was evidence, such as blood and a hat with a bullet hole, that indicated that they had been killed. Further evidence was found that linked Vader to some of the McCanns’ possessions.

The Judge ultimately found that Vader had robbed the McCanns and, to facilitate the robbery, intentionally caused them bodily harm. He then convicted Vader of second-degree murder by using section 230 of the Criminal Code. That section attempts to specify situations where a person can be convicted of murder even if they do not realize that their actions are likely to cause death.

However, the reasoning of section 230 of the Criminal Code was found to be unconstitutional, and therefore unusable, by the Supreme Court of Canada. In particular, in R. v. Martineau (1990), a majority of the Supreme Court held that a murder conviction requires that a person intends to cause death or intends to cause bodily harm knowing that it is likely to cause death. Nothing less would be appropriate for the offence of murder which, in the decision’s own words, “carries with it the most severe stigma and punishment of any crime in our society.”

Unfortunately, Parliament never removed s. 230 from the Criminal Code. As such, it continues to exist, but is only a relic that can never be used – except, perhaps, in making a major legal error.

Properly applied, the Judge’s findings on what happened should have led to Vader being convicted of manslaughter – a very serious offence, certainly, but with potential consequences quite different from murder. Indeed, in the end, that is what he did, replacing the previous second-degree murder conviction. However, the defence had argued that a mistrial, where the entire trial is set aside, was the appropriate solution.

R. v. Vader is an unusual, but powerful example of the fine lines on which the criminal court process can operate. A single, careless oversight created a massively different verdict than was legally appropriate. The error, and the question of how it affected the final decision on manslaughter, will always exist. The result is that, despite the judge’s best efforts to repair things, that error will be front and centre in any future appeal. As such, the Vader case, which seemed so close to its conclusion only a few weeks ago, could be far from over.

Dushan Coulson