The criminal court verdict was expected to bring relief or at least the end of a six-year long ordeal. Instead, within hours the judgment was met with disbelief and grief.
Justice Denny Thomas convicted Travis Vader of two counts of second-degree murder on Thursday in the deaths of Lyle and Marie McCann, a St. Albert couple who went missing in 2010.
But almost as soon as Thomas read excerpts of his judgment on live broadcast, social media was alive with comments that the section of the Criminal Code that he cited to convict Vader was not valid. Section 230 had been ruled unconstitutional 25 years ago. Within 24 hours Vader’s lawyer Brian Beresh had filed an appeal to get an acquittal or a new trial.
What happens now is not clear. But it postpones an outcome for the McCann family who have waited too long for closure. “I thought it was over yesterday,” son Bret McCann said Friday. He and his family are now bracing themselves for the possibility of another trial.
It seems the judiciary, our Criminal Code and even our Parliament may have failed the McCann family.
How could this have happened?
We have learned that although Supreme Court rulings make changes in the living document that is our Criminal Code, our Parliament has not made the legislative changes to prune the dead wood. This means old law sits beside new law, creating confusion.
Section 230 is the section that deals with constructive murder, which basically says if someone inadvertently dies while a person is committing another crime the accused is still culpable for the murder. The Supreme Court has ruled that is unconstitutional.
Critics say Justice Thomas should not have made such an error. Although section 230 is still listed in the Martin’s Annotated Criminal Code the annotation under it clearly says the provision is of no force and effect, says Brent Rathgeber, a lawyer and former St. Albert MP.
But others say there is plenty of blame to go around. Why didn’t someone working with Justice Thomas notice the discrepancy? Why haven’t successive federal governments over the course of 25 years made the necessary changes to repeal the old legislation?
Rathgeber, who served on the federal justice committee for five and a half years, says cleaning up the Criminal Code was raised, but repealing the legislation was never a high priority with the justice minister. It also never rose to the top of the agenda for successive liberal or conservative governments that held power over those 25 years.
This is not the only “ghost” section of the Criminal Code. There are other outdated sections applying to abortion, prostitution, and assisted death among others that also remain in the Criminal Code with small disclaimers, said Rathgeber.
Justices should be paying attention to the fine print in law. But repealing outdated sections of the Criminal Code is long overdue. The Vader case should be the call to action for the current Liberal government. The McCann family deserves better than this. So do other Canadian families who might be forced to endure long waits for justice.
