Justice Denny Thomas ruled against Travis Vader’s mistrial application and instead found him guilty of manslaughter.
In September, Thomas had imposed a verdict of two second-degree murder convictions against Vader. He was convicted of killing Lyle and Marie McCann, an elderly St. Albert couple, while robbing them.
But judge used a section of the Criminal Code that had been struck down and deemed unconstitutional more than two decades ago.
After six weeks of silence, Thomas acknowledged that he made an error in applying Section 230.
“Certainly I accept that is an error,” he said, during a mistrial hearing on Monday.
There has been much speculation by law experts about how the judge could rectify the situation.
While the Crown asked the judge to simply amend his decision to convict Vader of manslaughter instead, defense lawyer Nathan Whitling argued that a new trial was necessary to convict his client of the lesser charge.
He also argued that Thomas should not be the one to make this decision because it could call into question the impartiality of the court.
“It’s going to look like expo facto rationalization,” said Whitling.
Crown prosecutor Ashley Finlayson argued that manslaughter charges could be drawn from Thomas’ previous findings and that were it not for Section 230 the judge would have found Vader guilty of the lesser charge.
It would seem the judge agreed. After a short 20-minute recess, Thomas vacated Vader’s second-degree murder charges and substituted them with guilty verdicts on the lesser, included charge of manslaughter.
A written decision will be submitted shortly said Thomas.
Following the hearing, Whitling told reporters the defense would re-submit a notice of appeal.
“It’s difficult for us to assess the legality or correctness of this decision since we haven’t seen the written decision yet, but my expectation is that this will be the subject of an appeal,” he said. “It’s our view that Justice Thomas did not have the authority to do this and this is a matter that is going to have to be sorted out by a higher court down the road.”
A week has been set aside for sentencing at the request of the defense. Vader will appear in court Dec. 12 at 9:30 a.m.