R v Vader, 2016 ABQB 625

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 625 Date: 20161108 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Travis Edward Vader Accused _______________________________________________________ Reasons for Judgment In the matter of an application for a mistrial and other remedies of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I. Introduction [ 1 ] In a written decision reported as R v Vader , 2016 ABQB 505 [“ Vader ”], and issued September 15, 2016, I found Travis Edward Vader [“Mr.

Vader” or “Travis Vader”] guilty of and entered convictions for the second degree murder of Lyle and Marie McCann. The defence filed a notice of appeal the following day and on September 22 nd filed an application asking that the Court vacate the guilty verdicts and declare a mistrial based on the erroneous application of the Criminal Code , RSC 1985, c C-46, s 230. The appeal was abandoned on October 12, 2016; the mistrial application was maintained. [ 2 ] On October 3, 2016, I directed the parties to exchange written submissions and that a consolidated set of briefs be sent to me in electronic form.

On October 12, 2016, the defence ignored my direction and filed a written brief with the Clerk. At the Crown’s

request, I gave Mr. Finlayson, Q.C., permission to provide his response brief directly to me. Mr. Whitling has apologized to the Court forthe mistaken filing of the first defence brief. [3] The Crown responded to the mistrial application asking that it be dismissed and put forward other remedies to correct mylegal error, including the vacation of the murder findings and the substitution of manslaughter verdicts. [4] I heard oral submissions on October 31, 2016, where I immediately accepted that Mr. Vader was incorrectly found guilty ofsecond degree murder based on Criminal Code, s 230.

After hearing argument, I vacated my findings that Mr. Vader is guilty of seconddegree murder and the related convictions and substituted verdicts of guilty on the lesser and included offenses of manslaughter in thekilling of Lyle and Marie McCann, near Peers, Alberta, on or about July 3, 2010. Convictions on those substituted verdicts were alsoentered that day. [5] These are my written reasons on the mistrial application and the substituted verdicts/convictions. II. Criminal Code, s 230 [6] In Vader at paras 687-691, I applied Criminal Code, s 230 to conclude that Mr.

Vader was guilty of second degree murder.The defence submits and the Crown does not dispute that this provision is unconstitutional: R v Martineau, (SCC),[1990] 2 SCR 633, 112 NR 83; R v Sit, (SCC), [1991] 3 SCR 124, 130 NR 241. [7] I have accepted that Mr. Vader was incorrectly found guilty of second degree murder pursuant to Criminal Code, s 230. Thequestion is what remedy should be declared to correct this error. III.

Mistrial Application [8] The defence argues a mistrial must be ordered because the Court has no authority to substitute a different verdict because forme to do so “... would inevitably raise a reasonable apprehension of bias in the mind of an informed observer.” (October 12, 2016 brief,para 14). In its October 17, 2016 reply brief at para 12 the defence elaborates on the alleged basis for an apprehension of bias: This Court has already pronounced Mr. Vader guilty of the much more serious offence of murder. Consequently, this Court has formallyexpressed its opinion that Mr.

Vader is at the highest level of moral culpability -- even higher on “the moral culpability ladder” than onewho has committed manslaughter. Under these circumstances, Mr. Vader objects to this Court determining his level of moral culpabilityfor the purposes of sentencing on manslaughter. Mr. Vader submits that the imposition of a sentence for manslaughter by a trier of factwho has previously concluded that the accused is guilty of the much more serious offence of murder would raise a reasonableapprehension of bias in the mind of an informed observer, thereby violating ss. 7 and 11(

d) of the Charter. [9] In its written briefs and oral submissions, the defence did not identify any defects in the trial fact finding process or anyadverse effect on the integrity of the fact findings from the pronouncement of the incorrect verdicts. In short, their position is that theincorrect finding of murder and “that alone” constitutes a reasonable apprehension of bias. [10] A mistrial should be declared only in “the clearest of cases where there is no other way to save the trial”: R v Karim, 2010ABCA 401 at para 27, 493 AR 312.

A miscarriage of justice occurs when a trial is unfair, or when the trial has the appearance ofunfairness, viewed by a well-informed, reasonable person considering the whole of the circumstances (R v Khan, 2001 SCC 86 at para27, [2001] 3 SCR 823), including a reasonable apprehension of bias (R v Burke, 2002 SCC 55 at para 74, [2002] 2 SCR 857). [11] A reasonable apprehension of bias exists where: ... a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically,would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias. ... (Miglin v Miglin, 2003 SCC 24 at para 26, [2003] 1 SCR 303, citing Committee for Justice and Liberty v National Energy Board, (SCC), [1978] 1 SCR 369 at 394-395, 68 DLR (3d) 716.) [12] The onus to establish a reasonable apprehension of bias is on the party who alleges it: Miglin v Miglin, at para 26, citing R vRDS, (SCC), [1997] 3 SCR 484 at para 114, 151 DLR (4th) 193.

Where judicial bias is alleged then that allegationmust overcome the presumption of judicial integrity (Malton v Attia, 2016 ABCA 130 at para 82, 389 DLR (4th) 350): There is a presumption of judicial impartiality, which must be displaced by the appellants. The threshold is a high one, and properly so.... [Emphasis added.] [13] I find that a reasonable and informed person would not conclude that a reasonable apprehension of bias is established in thissituation, particularly since I have acknowledged and accepted that Mr. Vader was incorrectly convicted of second degree murder underCriminal Code, s 230.

That is the first reason for rejecting the defence mistrial application. [14] Second, a reasonable and informed person would not think that I am unable to sentence Mr. Vader on a less serious offensewhen I had found him guilty of a more serious offense. Parliament via Criminal Code, ss 686(1)(b)(i), 686(3)(

b) authorizes appeal courtsto substitute a verdict and remit the matter to the trial court and “... direct the trial court to impose a sentence that is warranted in law.”For example, see R v Perjalian, 2011 BCCA 323 at para 77, 308 BCAC 232; R v DAG, 1995 ABCA 32 at para 16, 165 AR 49; R vBreton, 2016 ONCA 425 at para 18. [15] If the defence theory concerning bias was correct; a trial judge could never sentence an offender for a lesser offence per

Criminal Code , s 686(3)(

b) because the original conviction on the more serious charge would raise an apprehension of bias, and make the re-sentencing by that judge a breach of procedural fairness. This is not correct at law. [ 16 ] Therefore, for these reasons, I reject the mistrial application and dismiss it. IV. Substitution of Verdicts [ 17 ] I incorrectly found Mr. Vader guilty and convicted him of the second degree murder of Lyle and Marie McCann. For me to proceed to sentence Mr.

Vader on the basis of legally unsustainable verdicts and related convictions would bring the administration of justice into disrepute. [ 18 ] It is common ground that this Court retains jurisdiction until a sentence has been imposed, and that the Court has authority to substitute a verdict made in error: R v Griffith , 2013 ONCA 510 , 309 OAC 159. [ 19 ] These are “exceptional circumstances” where the appropriate response is for the Court to reopen the verdicts and the related convictions entered in Vader and vacate them. [ 20 ] The defence argues any step I take must be in compliance with Criminal Code , s 662(3).

This provision has no application since it relates to jury trials. Mr. Vader was tried in a judge-alone proceeding. [ 21 ] At paras 676-677 of Vader , I concluded beyond a reasonable doubt that Mr. Vader committed homicide. He killed the McCanns to facilitate his robbing of them: Vader at paras 687-691 . [ 22 ] Culpable homicide is murder or manslaughter or infanticide: Criminal Code , s 222(4). Infanticide is obviously irrelevant. I concluded at Vader , paras 684-686 that Travis Vader is not guilty of first degree murder. I have accepted that I incorrectly found Mr. Vader guilty of second degree murder.

A culpable homicide that is not murder is manslaughter. [ 23 ] I vacate the finding in Vader that Travis Vader is guilty of second degree murder for his killing of Lyle and Marie McCann, and also vacate the related convictions entered by me on September 15 th . I substitute the verdicts of guilty beyond a reasonable doubt for the lesser and included offenses of manslaughter of Lyle and Marie McCann near Peers, Alberta, on or about July 3, 2010. On October 31 st , I entered convictions based on these verdicts for manslaughter and those convictions are confirmed. Heard on the 31 st day of October, 2016.

Dated at the City of Edmonton, Alberta this 8 th day of November, 2016. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Nathan Whitling, and Ms. Stacey Purser (Beresh Cunningham Aloneissi O'Neill Hurley) for the Accused Mr. Ashley Finlayson, Q.C., and Ms. Eman Joumaa (Crown Prosecutors - Specialized Prosecutions Branch) for the Crown