Lawyers argue over mistrial in murder case of missing Alberta seniors

By The Canadian Press

EDMONTON – Lawyers are returning to an Edmonton courtroom today to argue about whether there should be a mistrial because a judge used an outdated section of the Criminal Code in his murder verdict.

The defence and Crown have already filed written submissions in the mistrial application by Travis Vader, but also plan to make oral arguments.

It’s not known when Court of Queen’s Bench Justice Denny Thomas will make a decision.

Thomas convicted Vader last month of second-degree murder in the deaths of Lyle and Marie McCann.

The McCanns, in their late 70s, disappeared after setting out on a camping trip from their Edmonton-area home to British Columbia in 2010.

Thomas said in his verdict that Vader was a desperate drug addict who came across the couple in their motorhome and shot them during a robbery.

But in finding Vader guilty, the judge used Section 230 of the Criminal Code, which the Supreme Court declared unconstitutional in 1990.

The government didn’t remove the section from the book, as antiquated laws are rarely repealed.

Section 230 allowed for a second-degree murder verdict if a killing occurred during the commission of another crime, such as robbery. Otherwise, there must be intent to cause death or bodily harm that one knows is likely to cause death.

Thomas said in his verdict that he found no evidence Vader intended to kill the McCanns and ruled out a planned and deliberate first-degree murder.

The defence has said the judge can’t go back and find Vader guilty of second-degree murder on other grounds, and the only solution is a mistrial.

The Crown wrote in its arguments that the judge can still do more analysis for second-degree murder or substitute the verdict with manslaughter.

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