Travis Vader’s application for sentence reduction in relation to alleged Charter violations was denied in part by the court Tuesday.
Judge Denny Thomas found that Vader’s rights weren’t violated by the strip search by the RCMP on the morning of his arrest in July 2010.
Vader’s sentencing hearing resumed this week after spanning two weeks prior to the Christmas holidays.
On Sept. 14, 2016 Vader was convicted of killing Lyle and Marie McCann, an elderly St. Albert couple, during the course of a robbery gone wrong. He was originally found guilty of two counts of second-degree murder, but the convictions were substituted for the lesser crime of manslaughter in October, after Justice Denny Thomas, the presiding judge, used a section of the Criminal Code that had been declared unconstitutional 20 years earlier.
Manslaughter does not have a mandatory minimum sentence, but can carry a maximum of up to life imprisonment.
Since manslaughter spans a variety of scenarios, it is often broken into three categories based on the level of responsibility and culpability: acts that are likely to cause bodily injury, acts that are likely to cause serious bodily injury (including acts with a weapon other than a firearm) and acts that are likely to cause life-threatening injury (including acts involving a firearm).
The defence argues that Vader’s crimes should fall within the lower manslaughter category, since there is no proof that Vader intended to cause serious or life-threatening injury to the McCanns and that he used a weapon to harm them, and suggests that the appropriate sentences would fall between four to six years served concurrently.
The Crown is seeking a sentence in the range of 12 to 15 years for the killing of the first McCann and a life sentence for the killing of the second. It suggests that the sentences should be served concurrently.
Crown prosecutor Ashley Finlayson argues that the victim’s age and vulnerability, as well as the fact that the incident occurred during the course of a robbery and at a time when Vader was avoiding arrest on numerous outstanding charges act as aggravating factors and place Vader’s actions in the highest manslaughter category.
The Crown also argues that the second manslaughter should receive a harsher sentence because after harming the first McCann, Vader should have foreseen that his actions would cause the death of the second.
The defence refutes this argument as speculation and offers another scenario where, in resisting robbery both McCanns were killed or injured almost simultaneously.
The defence is seeking a sentence reduction on the four to six years, citing several alleged Charter violations, including being assaulted by corrections officers while in custody at the Edmonton Remand Centre, being subjected to an unlawful strip search and being prevented from accessing legal counsel at the time of his arrest.
On Tuesday morning, Justice Denny Thomas dealt with one of these alleged breaches.
In December, Vader testified that he had been subjected to a “humiliating” strip search, during which he was naked for five minutes, filmed and observed by passersby in the Edson RCMP detachment through an open door.
An agreed statement of fact, recanted Vader’s original version of the events, admitting that he was naked for only 35 seconds and that no one was visible in the hallway at the time. Still, defence attorney Nathan Whitling argued that the RCMP did not follow proper procedure by making Vader strip completely before letting him dress, and by allowing cameras to film the search.
In December, arresting officer RCMP Const. Steve McQueen testified that the cameras were left on to ensure an accurate record of all interactions with Vader and to avoid questions.
“The very fact we are discussing this now shows it was a sound decision,” argued Finlayson.
Thomas denied this portion of the sentence reduction application due to credibility issues.
Bret and Marie Ann McCann, the son and daughter-in-law of Lyle and Marie McCann, were not present in the courtroom Jan. 3. The couple is visiting their daughter in Australia for the next few months. The week of Dec. 12 to Dec. 16, 2016 was originally set aside for the sentencing hearing, which has now lasted into the new year.
On Dec. 12, following his victim impact statement, Bret McCann told reporters that the four- to six-year sentence sought by the defence was “absurd.”
“He’s killed two people in a robbery with a firearm, covered it up, lied about it for years and he’s an obvious danger to the public,” said McCann, referring to criminal activity undertaken by Vader during the trial this spring.
“Vader has no respect for the court process and he has zero respect for he’s done to my parents. A four- to six-year sentence with time off, he’ll be on the street carrying on in less than a year – I think it’s absurd,” he continued.
McCann told reporters that he believed life in prison was the appropriate sentence.