What's next for convicted murderer Travis Vader?

Legal experts say a judge who used an unconstitutionalsection of law to convict an Alberta man of murdering two missingseniors can take a few different avenues to fix the error, includingsubstituting the verdict with manslaughter.

• Travis Vader convicted of 2nd-degree murder in McCann deaths
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• McCann family shocked that Travis Vader's convictions may be legally invalid

Defence lawyers and prosecutors are to return to an Edmonton courtroom Monday, two weeks after Court of Queen's Bench Justice Denny Thomas found Travis Vader guilty of second-degree murder. Thomas said in his reasons that Vader, a desperate drug addict, came across Lyle and Marie McCann in their motorhome in a rural area west of Edmonton and shot them during a robbery in 2010. Their bodies have never been found.

Days and years: The long road to the Vader verdict

8 years ago

Duration 2:13

Travis Vader faces first-degree murder charges in the deaths of Lyle and Marie McCann. Six years after the couple was last seen, Judge Denny Thomas will declare a verdict on the morning of Sept. 15.

The judge cited Section 230 of the Criminal Code, which wasdeclared unconstitutional in 1990 by the Supreme Court, but neverremoved from the book.

Lawyers were supposed to set a sentencing date Monday, butVader's lawyers filed a motion last week for a mistrial.

• Convicted murderer TravisVaderseeks mistrial

And it could take months to find out what happens next.

"I think no matter which road you go down, it ends up in amanslaughter verdict," says Peter Sankoff, a law professor at theUniversity of Alberta currently on sabbatical in Germany.

"It just seems to me to be the most likely option."Sankoff says the judge could stick with second-degree murder, butit would be problematic. Section 230 allowed for a second-degreemurder verdict if a killing occurred during the commission ofanother crime, such as robbery. Otherwise, the killing must beintentional.

And Thomas said he found no evidence Vader intended to kill the McCanns. The judge also ruled out first-degree murder, saying there was no evidence the deaths were planned and deliberate.

David Tanovich, a law professor at the University of Windsor,says Thomas has jurisdiction to reopen the trial because there wasno jury. And he's allowed to change his mind.

Tanovich points to the case of Lamar Griffith in Toronto. A judge convicted the man on firearms charges in 2011. But three months later, before sentencing, the judge changed the verdict to not guilty. The Ontario Court of Appeal ruled a judge can change a verdict under exceptional circumstances but that, in the Griffith case, he should have ordered a new trial.

Tanovich says Thomas could realistically enter a manslaughterverdict against Vader. The judge could also agree to a mistrial,Tanovich says, but a new trial wouldn't be "in the interest ofjustice" since there is a valid finding for manslaughter.

Plenty of blame to go around

The judge's use of Section 230 came as a "shocker," Tanovichadds, saying no judge has used the section before in a verdict. Somejudges have mistakenly included the invalid section in copies ofCriminal Code provisions given to juries, but appeal courts haveruled that wasn't an issue because lawyers didn't mention thesection in their submissions.

Prosecutors in Vader's trial also didn't reference Section 230,says Tanovich. But, a look at their written submissions, shows theyactually didn't give the judge much help sorting out homicideprovisions.

"This wouldn't have happened had they done that," he says."The trial judge got no assistance at all from the lawyers."

Tanovich says it doesn't excuse the judge's error. The judgewould also have had access to a basic homicide checklist that juriesusually get, he says.

Sankoff says fault also lies with Parliament for not repealingthe old section in the first place.

"It's sort of like saying if somebody was walking carefullyacross the lawn and they were looking, they wouldn't have tripped onthe garden hose," says Sankoff. "But if the garden hose hadn'tbeen there, they wouldn't have tripped on it at all."