Some legal experts are asking whether an Alberta judge made a serious legal error when he convicted Travis Vader of second-degree murder in the deaths of Lyle and Marie McCann.
麻豆传媒 Legal Analyst Edward Prutschi said that it appears Justice Dennis Thomas relied on which was declared unconstitutional in 1990 case
Prutschi told 麻豆传媒 Channel that Section 230 stated that if a person died during a robbery, 鈥渨hich is what the accusation was here,鈥� then 鈥渁utomatically you鈥檙e guilty of murder.鈥�
According to Prutschi, since that section was struck down in 1990, the Crown must prove beyond a reasonable doubt that the accused had 鈥渢he foresight鈥� to know they were going to cause someone鈥檚 death in order to prove murder.
If that foresight isn鈥檛 there, 鈥渁t most you鈥檙e guilty of manslaughter,鈥� the criminal lawyer said.
He said it鈥檚 possible Justice Thomas may have meant to refer to Section 229 in his decision instead of 230.
Prutschi added that members of the legal community are now asking whether 鈥渢his something that can be fixed immediately.鈥�
He said Justice Thomas may be able to come back before the sentence is handed down and say, 鈥淚 wrote down the wrong number but I was referring to this section and, don鈥檛 worry, I considered it. I got my arguments in place and I still believe there is proof beyond a reasonable doubt.鈥�
Alternatively, he said, Justice Thomas might come back and say, 鈥渢hat was a mistake. I realize it now. I meant to give a manslaughter verdict.鈥�
鈥淔ailing that it鈥檚 definitely going to come up on appeal,鈥� Prutschi added.
University of Alberta law professor Peter Sankoff also pointed out the apparent error on Thursday, in a series of tweets.
Sankoff said on Twitter that 鈥渢here is no doubt in my mind that the judge made an egregious legal error.鈥�
鈥淪ection 230 is unconstitutional, and you have cannot convict someone of second degree murder using a definition of crime that鈥檚 void,鈥� he wrote. 鈥淢urder must include subjective foresight of death.鈥�
The McCann鈥檚 burned-out motorhome was found near Edson, Alta., but their bodies were never located.
Defence lawyer Brian Beresh said, soon after the verdict was read, that 鈥渨e think that it鈥檚 an error that in this case the court didn鈥檛 reconstruct what occurred, but simply 鈥� said 鈥榯his must have happened.鈥欌��
Crown prosecutor Ashley Finlayson said he was pleased with the second degree murder conviction, although the Crown had asked for a first degree conviction.
