The Alberta Court of Appeal has dismissed Travis Vader’s appeal.
“The appeal is dismissed,” read the written decision from the appeal court.
“We’re all disappointed with the result, but this is not the end of the road. There will be leaves sought from the Supreme Court of Canada,” said Brian Beresh, Vader’s defence lawyer.
Beresh said he is surprised both appeal arguments put forward – the lengthy delay before getting to trial and concerns about the error at trial where the substitution of a manslaughter conviction for second-degree murder occurred – were both unanimously dismissed.
“We knew in relation to the delay that there were some problems, some issues for our side as well of course, but in relation to changing your mind in the midst of it we thought that there was no way that that would not succeed,” he added.
Vader was found guilty of two counts of second-degree murder in 2016 for the deaths of Lyle and Marie McCann.
The elderly couple went missing in July 2010 after leaving their St. Albert home for a camping trip in British Columbia.
Their burned-out motorhome and vehicle were later discovered in Edson, and the couple’s bodies have never been found.
“That Travis Vader killed Lyle and Marie McCann during an armed robbery and then concealed their remains, has been proven beyond any reasonable doubt. That fact is not disputed on this appeal,” read the decision.
“Rather, the appeal is concerned with the time taken to bring the appellant to trial and the alleged errors of the trial judge after he mistakenly convicted the appellant of murder. The appellant contends that these errors can now only be remedied by a stay of proceeding, or, perhaps a new trial on charges of manslaughter only.”
According to the documents there was a delay of 58 months between the time Vader was charged and his sentencing.
“In conclusion, although the trial took substantially longer to complete than the 30 month presumptive ceiling, we think that in light of the extraordinary circumstances of this case, the delay was not unreasonable and that the appellant’s submission must fail.”
During sentencing the trial judge cited an outdated section of the criminal code and later found Vader guilty of manslaughter, sentencing him to life in prison.
“The functus officio doctrine does not prevent the correction of errors where no reconsideration of the evidence is required and where the court’s intention is manifest, such that the correction is consistent with that intention,” the decision read.
“Based on the facts as he found them, the trial judge was ultimately correct in convicting the appellant of manslaughter,” it continued.
“In conclusion, we see no prejudice having befallen the appellant as a consequence of the trial judge’s analysis, and no benefit in a retrial to test again whether the appellant should have been convicted of manslaughter, in the robbery killing of the McCanns.”
One law expert believes the appeal court made the right decision about the change in conviction, but said they may have a case for the Supreme Court in regards to the delay.
“That is the type of issue that may get some traction from the Supreme Court though it’s going to depend ultimately on the Supreme Court’s willingness and interest to revisit this issue because they obviously dealt with it in Jordan,” said Peter Sankoff, law professor at the University of Alberta.
“I believe there are some transitional cases potentially going forward and the question is does it want to hit them again,” he said.
