Lawyers for a man convicted of killing two missing Alberta seniors have asked the Alberta Court of Appeal to throw out his manslaughter conviction or order a new trial.
Travis Vader was sentenced in January 2017 to life in prison for the deaths of Lyle and Marie McCann, who were in their 70s when they vanished after leaving their Edmonton-area home in July 2010.
Defence lawyers asked the Appeal Court on Friday to order a stay of proceedings or a new trial on the grounds that there were a number of errors in the original one.
“The case took way too long. It should have been stayed,” Brian Beresh said outside court. “That, of course, if successful, would mean no trial.
“Alternatively, a trial simply on manslaughter.”
The defence argued in court that the RCMP was negligent in the handling of disclosure in the trial, which added two years of delay to the prosecution.
They also noted the judge mistakenly used an outdated section of the Criminal Code and later substituted manslaughter for the original verdict of second-degree murder.
“The extraordinary errors committed by the police and the trial judge in this case deprived the public and the appellant of any hope of a prosecution conducted in accordance with the fundamental rights protected by the charter,” said a written brief filed by the defence.
“This is one of the rare cases where a stay of proceedings is required.”
Crown prosecutor Jason Russell argued there were exceptional circumstances that justified the time it took to complete the trial.
“In assessing the reasonableness of the delay, the court must consider the exceptionally complicated nature of this case,” he said in a written brief.
Vader was charged with first-degree murder in April 2012, almost two years after the McCanns’s burned-out motorhome and a vehicle they had been towing were discovered in the days after they disappeared. Their bodies have never been found.
The charges against Vader were stayed in March 2014 before being reinstated in December 2014.
During the trial in 2016, Vader was described as a desperate drug addict who came across the McCanns and killed them during a robbery.
The Crown had asked for a life sentence. Prosecutors argued Vader showed no remorse after the killings, used the McCanns’s cellphone the same day to call an ex-girlfriend and took their money to buy beer and a phone card.
The defence suggested Vader should receive four to six years, but get at least six years of credit for pre-trial custody.
Vader, who’s in custody, has maintained his innocence.
Should a new trial be ordered, it should only be on Vader’s manslaughter convictions. the defence suggested Friday.
“The law is pretty clear,” explained Beresh. “If you are acquitted of murder, you can’t be retried on that. Your exposure is limited to the conviction, which we say in this case was manslaughter only.”
The Court of Appeal — made up of Justice Peter Martin, Justice Marina Paperny and Justice Jack Watson — challenged the defence on a number of its legal arguments.
Beresh said he expected tough questions from the bench.
“This is a serious issue,” he said. “As everyone knows, this is not the last station on the railway track. This case could go to the Supreme Court of Canada.”
The Court of Appeal reserved its decision.
Colette Derworiz, The Canadian Press