EDMONTON — An Edmonton judge says he will decide at the end of the month whether to declare a mistrial for a man he found guilty of murdering two seniors.
Two weeks ago, Justice Denny Thomas found Travis Vader guilty of second-degree murder in the deaths of Lyle and Marie McCann whose bodies have never been found.
But he used an unconstitutional section of the Criminal Code to reach his verdict.
Vader's defence lawyer applied for a mistrial, something the Crown says it opposes.
Thomas has instructed both sides to submit written arguments by Oct. 19 so that he can make a decision on Oct. 31.
The McCanns, both in their late 70s, disappeared in 2010 after setting out on a camping trip to British Columbia.
Thomas said in his verdict that Vader was a desperate drug addict who came across the couple in their motorhome and shot them during a robbery.
Law professors say the verdict isn't likely to stand and the trial could be reopened.
"I think no matter which road you go down, it ends up in a manslaughter verdict," says Peter Sankoff, a law professor at the University of Alberta.
"It just seems to me to be the most likely option."
Section 230 of the Criminal Code, declared unconstitutional in 1990 by the Supreme Court, allowed for a second-degree murder verdict if a killing occurred during the commission of another crime, such as robbery. Otherwise, the killing must be intentional for that verdict to be reached.
Thomas said in his ruling that he found no evidence Vader intended to kill the McCanns.
David Tanovich, a law professor at the University of Windsor, says a new trial wouldn't be "in the interest of justice" since there is a valid finding for manslaughter in the case.
The judge's use of Section 230 came as a "shocker", Tanovich adds, saying no judge has used the section before in a verdict.
