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Court of Queen's Bench of Alberta

Citation: R v Vader, 2016 ABQB 625

Date: 2016
Docket: 130781 SOOQ l
Registry: Edmonton

Her Majesty the Queen

-andTravis Edward Vader


Reasons for Judgment

In the matter of an application for a mistrial and other remedies
of the
Honourable Mr. Justice D.R.G. Thomas



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 22nd 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.
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 for the mistaken filing of the first defence brief.
The Crown responded to the mistrial application asking that it be dismissed and put
forward other remedies to correct my legal error, including the vacation of the murder findings
and the substitution of manslaughter verdicts.

I heard oral submissions on October 31, 2016, where I immediately accepted that Mr.
Vader was incorrectly found guilty of second degree murder based on Criminal Code, s 230.
After hearing argument. I vacated my findings that Mr. Vader is guilty of second degree murder
and the related convictions and substituted verdicts of guilty on the lesser and included offenses
of manslaughter in the killing of Lyle and Marie McCann, near Peers, Alberta, on or about July
3, 20JO. Convictions on those substituted verdicts were also entered that day.
These are my written reasons on the mistrial application and the substituted

Criminal Code, s 230

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 Marlinea11, (1990) 2 SCR 633, 112 NR 83; R v Sit, [1991)
3 SCR 124, 130 NR 241.
I have accepted that Mr. Vader was incorrectly found guilty of second degree murder
pursuant to Criminal Code, s 230. The question is what remedy should be declared to correct this

Mistrial Application

The defence argues a mistrial must be ordered because the Court has no authority to
substitute a different verdict because for me to do so"... would inevitably raise a reasonable
apprehension of bias in the mind of an infonned 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 formally expressed its opinion
that Mr. Vader is at the highest level of moral culpability -- even higher on "the
moral culpability ladder" than one who has committed manslaughter. Under these
circumstances, Mr. Vader objects to this Court determining his level of moral
culpability for the purposes of sentencing on manslaughter. Mr. Vader submits
that the imposition of a sentence for manslaughter by a trier of fact who has
previously concluded that the accused is guilty of the much more serious offcnce
of murder would raise a reasonable apprehension of bias in the mind of an
infonned observer, thereby violating ss. 7 and l l{d) of the Charter.
In its written briefs and oral submissions, the defence did not identify any defects in the
trial fact finding process or any adverse effect on the integrity of the fact findings from the

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pronouncement of the incorrect verdicts. In short, their position is that the incorrect finding of
murder and "that alone" constitutes a reasonable apprehension of bias.
[IO] A mistrial should be declared only in "the clearest of cases where there is no other way to
save the trial": R v Karim, 2010 ABCA 401 at para 27, 493 AR 312. A miscarriage ofjustice
occurs when a trial is unfair, or when the trial has the appearance of unfairness, viewed by a
well-infonned, reasonable person considering the whole of the circumstances (R v K/1a11, 2001
SCC 86 at para 27, (2001] 3 SCR 823), including a reasonable apprehension of bias (R v B11rke,
2002 SCC SS at para 74, (2002] 2 SCR 857}.

A reasonable apprehension of bias exists where:

... a reasonable and infonned 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....

(Migli11 v Mig/il1, 2003 SCC 24 at para 26, (2003] 1 SCR 303, citing Committee
for Justice and Liberty v National E11ergy Board, [1978] I SCR 369 at 394-395,
68 DLR (3d) 716.)

The onus to establish a reasonable apprehension of bias is on the party who alleges it:
Miglin v Mig/in, at para 26, citingR v RDS, [1997] 3 SCR 484 at para 114, 151 DLR (4th) 193.
Where judicial bias is alleged then that allegation must overcome the presumption of judicial
integrity (Malton v Attia, 2016 ABCA 130 at para 82, 389 DLR (4th) 350):

There is a presumption ofjudicial impartiality, which must be displaced by the

appellants. The threshold is a high one. and procerly so. ... [Emphasis added.]
[13] I find that a reasonable and informed person would not conclude that a reasonable
apprehension of bias is established in this situation, particularly since I have acknowledged and
accepted that Mr. Vader was incorrectly convicted of second degree murder under Criminal
Code, s 230. That is the first reason for rejecting the defence mistrial application.
[14) Second, a reasonable and infonned person would not think that I am unable to sentence
Mr. Vader on a Jess serious offense when I had found him guilty of a more serious offense.
Parliament via Criminal Code, ss 686(1)(b)(i), 686(3)(b} authorizes appeal courts to 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 Petja/ian, 2011BCCA323 at para 77, 308
BCAC 232; R v DAG, 1995 ABCA 32 at para 16, 165 AR 49; R v Breton, 2016 ONCA 425 at
para 18.

[15] If the defence thepry 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.

Therefore, for these reasons, I reject the mistrial application and dismiss it.


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 ofjustice into
(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 Grif/itlt, 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 judgealone 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
[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.
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 IS'h. 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 51, I entered convictions based on these verdicts for manslaughter and
those convictions are confirmed.
Heard on the 31 51 day of October, 2016.


Dated at the City of Edmonton, Alberta this 8'" day

D.R.G. Thomas- . j

Mr. Nathan Whitling, and

Ms. Stacey Purser
(Beresh CU1U1ingham Aloneissi O'Neill Hurley)
for the Accused
Mr. Ashley Finlayson, Q.C., and
Ms. Eman Joumaa
(Crown Prosecutors - Specialized Prosecutions Branch)
for the Crown

/ no-c- 5