On Thursday, 100,000 viewers tuned in live to watch an Alberta trial judge deliver his verdict on the Travis Vader case. The trial judge announced his findings: Mr. Vader was not guilty of first-degree murder; he was guilty of two counts of second-degree murder.
The case captured the attention of Albertans and Canadians since two Alberta seniors went missing in July 2010. Their bodies have never been recovered. The case against Mr. Vader was, like most criminal cases, largely circumstantial. There was, however, quite damning evidence, including that his blood and DNA were found in the SUV the victims had been towing, he had no money in the morning and then had money in the afternoon, and his DNA appeared on the victim’s baseball hat, which had a bullet hole through it. The RCMP conducted a thorough investigation that included performing a Mr. Big sting operation on Mr. Vader’s sister, relying on paid informants, and telephone taps.
Aside from the grisly details, though, this case is remarkable in recent Canadian case law.
For one, the case was broadcast publicly. We may all have seen the occasional re-run of Judge Judy or Judge Joe Brown – American television judges –but how many people, who do not work strictly within the justice system, have seen Canadian judges judge? The principle of open courts is alive and well in Canada … in principle. Very few matters are closed to the public; people could wander in to observe almost all cases. But that is the catch: they must wander in. They must show up to what is often a very busy court centre, in the middle of the work day, submit to a security screening, and agree to abide by the court’s rules (which often include not using cellphones), just for the privilege of observing what goes on in our courts. That the Vader verdict was broadcast live is somewhat revolutionary in Canada. That so many people watched it suggests there may be a real public interest expanding what court proceedings are made easily available to the public. With the costs of video technology coming down – and the fact that most courtrooms are already equipped with video feeds – this could be a simple yet substantial way to broaden transparency of the Canadian justice system.
Second, shortly after the verdict – and the broadcast – went live, an outcry began by legal scholars. They questioned the trial judge’s reasons and suggested that he got it wrong. Social media was alive and well and documented the spread of this line of thinking. So what happened? Essentially, in his 131-page ruling in which he found Mr. Vader guilty of second-degree murder, the trial judge relied on s. 230 of the Criminal Code, which allows for a finding of murder when a death takes place during another crime, including a robbery. The evidence pointed to Mr. Vader having robbed the victims and, with the help of s. 230 (which does not require specific intent to kill), Mr. Vader became guilty of second-degree murder. But the catch is that the Supreme Court of Canada held that all murder convictions require subjective intent – objective intent to do another criminal act is insufficient in 1990 (see R. v. Martineau,  2 SCR 633). Since 1990, s. 230 of the Criminal Code has been of no force and effect.
This is a disastrous finding and an extremely weak basis for Mr. Vader’s second-degree murder conviction. It largely voids the conviction – though a formal process is required (either by requesting that the trial judge reconsider his decision or by launching a formal appeal – which was filed on Friday).
This in itself raises a number of potential issues. It shows the importance of good legal scholarship and suggests trial judges may not have all of the supports they need to do their jobs, including research help and/or continuing legal education. It also demonstrates that judges – no matter their fancy robes or special titles – are human and need support. Very few legal matters are intuitive and almost none come as second nature to anyone. That said, I understand that legally trained professionals, let alone judges, should not make mistakes like this.
But it also makes me wonder why a Criminal Code provision that was found unconstitutional by the Supreme Court of Canada over 25 years ago is still on the books? At what point will the federal government revisit the tome that is the Bible of Canadian criminal law and, if not updating the volume in its entirety, merely strike out the provisions that have no force and effect? Yes, this would make the jobs of lawyers and judges easier. It could also make the Criminal Code accessible to non-lawyers – as it should be.
The trial judge in this case has made a significant legal error. This error is all the more unfortunate because of the publicity and live broadcasting of the verdict in this case. I’m not concerned that the trial judge is exposed to increased public scrutiny, but the media’s involvement in this case may serve as an example of the potential that always exists for making a mistake of this nature and the accompanying scrutiny. This may dissuade other Canadian judges from voluntarily permitting the media into their courtrooms. That would be a true shame.