Justice Denny Thomas will rule Oct. 31 on an application for a mistrial by convicted murderer Travis Vader.
During what was supposed to be a pre-sentencing appearance in Edmonton Monday, Thomas said he would deliver his decision in open court on Oct. 31. Thomas set deadlines for written submissions by Crown and defence lawyers on the mistrial application.
Vader was found guilty of second-degree murder in the deaths of Lyle and Marie McCann of St. Albert. The couple, who were in their 70s, disappeared during a road trip to B.C. in 2010. Their bodies have not been found.
Immediately after the decision was read on Sept. 15, it came to light that Thomas cited a section of the Criminal Code that had been declared unconstitutional by the Supreme Court of Canada.
In concluding that a drug-addicted and broke Vader killed the McCanns while robbing them and stealing their property, Thomas made reference to Section 230 of the code – a section that was struck down in 1990.
Vader’s lawyers filed a notice of appeal the next day on the grounds that the judge relied on a law that was no longer in force. The defence also claims that Thomas made conclusions that were unreasonable and not supported by evidence.
On Sept. 22, defence attorney Brian Beresh filed a motion for mistrial, asking the judge to vacate the guilty verdict and declare a mistrial given the offence for which Vader was convicted does not exist.
Although legal experts have stated the decision could be re-opened to convict Vader of a lesser offence such as manslaughter, Beresh argues that could only be done fairly in the context of a new trial.
Beresh told the judge on Monday that he preferred to argue for mistrial in open court. Thomas said an oral submission would be ordered only if the written materials were deemed insufficient.
Crown prosecutor Ashley Finlayson opposed the motion for mistrial.
Monday’s court appearance was originally scheduled as a sentencing date. Despite the pending application for mistrial, Thomas instructed the Crown to prepare a draft sentencing plan, including any additional evidence the Crown may wish to call.
He told Vader this did not predetermine the outcome of the mistrial application, but was necessary to determine the estimated length of a sentencing hearing in order to facilitate scheduling.
“This thing has to go over; we can’t have Mr. Vader lingering,” said Thomas.
Beresh argued in the motion that sentencing cannot proceed on nullified verdicts.
Vader will appear before the Court of Queen’s Bench in Edmonton at 9 a.m. on Oct. 31.