Travis Vader Guilty Two Counts / Second degree

[Johnny199r]

Originally Posted by Delgar

Government: Congratulations, you're a judge. Here's the Criminal Code. You're now a judge, follow the rule book. And the other 100,000 plus pages of the laws we publish via our printer.
Judge: OK, thanks.
High Court: Of these rules, the following over the last 30 years we deem not enforceable. There's no list, read the case law.
Government Publisher: We don't publish the invalidity declarations of the High Court, unless the Government formally adopts them as amendments to the laws. These high court rulings do not make it into the actual laws even if the courts do not enforce them.

That's how it is.

Many, many judges appointed in Canada have absolutely no experience with criminal law whatsoever. There is no requirement to have experience with criminal law, even if you will be sitting in criminal court 100% of the time.

Being friends with the political party in power at the time is the main requirement to becoming a judge in Canada.

[metallicat]

Does the judge not have a staff or people advising him at all? How did none of them know about 230 being deemed unconstitutional? I'm baffled. I get on can't know everything, but this seems pretty major.

Having lived in Edson the past few years, I've heard a lot of stories about Vader. The guy certainly has his supporters in that area to this day.

[oilyfan]

Originally Posted by oilers_fan

Does the judge not have a staff or people advising him at all? How did none of them know about 230 being deemed unconstitutional? I'm baffled. I get on can't know everything, but this seems pretty major.

Having lived in Edson the past few years, I've heard a lot of stories about Vader. The guy certainly has his supporters in that area to this day.

Yeah this confuses me too because shouldn't there be a basic legal review of the ruling before being issued?

And I bet Vader has a few supporters in Edson, his drug buddies and his dealers.

[Kjesse]

Tbe judge in this case being out of Edmonton had access to stretched resources, being a full time heavily worked researcher or two, and also, would have access to a student or two. Those students who article with the court are generally the creme-de-la-creme in terms of acedemics and such postings are viewed as prestigious, but they're still students. If this judge had put his mind to it or had anyone do some research, the issue would have become apparent.

We'll never hear what happened, but, if its in the code, and your code says 2016 on the spine, you might not form the idea that the book can't be relied upon, and might not dispatch a researcher as a result.

Super harsh lesson for justice in general. I hope some changes result, while the judge is highly paid, admired, perhaps a very distinguished former practitioner etc etc, this is a mistake that is very easy to make.

[Acey]

So... we've got another year of this to deal with. Fantastic.

[oilyfan]

Originally Posted by Delgar

Tbe judge in this case being out of Edmonton had access to stretched resources, being full time researchers, and also, would have access to a student or two. Those students who article with the court are generally the creme-de-la-creme in terms of acedemics and such postings are viewed as prestigious.

We'll never hear what happened, but, if its in the code, and your code says 2016 on the spine, you might not form the idea that the book can't be relied upon, and might not dispatch a researcher as a result.

Maybe to the layman, but a judge doesn't realize that the 2016 code (or brilliant student) still has invalid sections?

[Kjesse]

Originally Posted by oilyfan

Maybe to the layman, but a judge doesn't realize that the 2016 code (or brilliant student) still has invalid sections?

The book says updated to a certain date. That's the statute law. It doesn't have a warning that -- and I'll guess a few -- sections of the CC are considered "off the books" by the court.

The code itself is freely available online. There are also "annotated" codes published, which list the most current and binding case law about each section, right under each section. Its not hard to find actually.

This judge would have had access to that-- but he did not have the sense to understand he was walking into a problem to look in the first place. And it appears that neither defence or prosecution counsel made such comments in their arguments. And that's important too.

The Criminal Code is very complicated but dedicated practitioners should know to look. Unless you prosecute, in which case you have not time to consider any case and fly by the seat of your pants while some well-funded defence counsel teaches you the law, you can run into issues. Then again those legal aid lawyers also have limited resources available. The reality is there is a lot to say about the ability to afford the system.

My opinion only. I'd actually love to be a prosecutor, I think it would be rewarding work.

[Acey]

Originally Posted by Delgar

The code itself is freely available online.

Yes, here it is... and in sec 230 it says it's repealed in red at the bottom.



How the actual... I don't even. I would think this official website is just a text version of the book and since it's been gone for so long, how on earth is this not also in the physical copy of the book. The whole section should be physically struck, but even saying repealed should be enough, Delgar?

http://laws-lois.justice.gc.ca/eng/a...ction-230.html

[metallicat]

Originally Posted by Delgar

Tbe judge in this case being out of Edmonton had access to stretched resources, being a full time heavily worked researcher or two, and also, would have access to a student or two. Those students who article with the court are generally the creme-de-la-creme in terms of acedemics and such postings are viewed as prestigious, but they're still students. If this judge had put his mind to it or had anyone do some research, the issue would have become apparent.

We'll never hear what happened, but, if its in the code, and your code says 2016 on the spine, you might not form the idea that the book can't be relied upon, and might not dispatch a researcher as a result.

Super harsh lesson for justice in general. I hope some changes result, while the judge is highly paid, admired, perhaps a very distinguished former practitioner etc etc, this is a mistake that is very easy to make.

In such a high profile case, with the verdict being televised, and with such a huge mistake being made with major implications, are there some problems coming for this judge?

[Kjesse]

Originally Posted by Acey

The whole section should be physically struck, but even saying repealed should be enough, Delgar?

http://laws-lois.justice.gc.ca/eng/a...ction-230.html

You tell me, did the judge rest his ruling on 230(d)? From what I read, I don't think he did.

EDIT: He did not.

[Kjesse]

Originally Posted by oilers_fan

In such a high profile case, with the verdict being televised, and with such a huge mistake being made with major implications, are there some problems coming for this judge?

Who knows. This is not comparable to the inquiry about Judge Camp right now. This is a case of mere technical mistake. It certainly doesn't look good.

Mistakes are going to happen, and that's to be expected, even with judges.

I'm going to hold back further comment, would rather hear from actual criminal law practitioners. Paging mbates....and others.

[metallicat]

This whole case... What a cluster f.

I appreciate the incite delgar.

[Acey]

Originally Posted by Delgar

You tell me, did the judge rest his ruling on 230(d)? From what I read, I don't think he did.

Oh yeah, my bad. Not sure if he did or not, but I was under the impression that invalidated the entire section. Either way Sankoff says "230(d) was struck down in 1987, so Parliament repealed it in 1991. But the others were struck down in 1991."

Doesn't much matter then.

[GGG]

I'm surprised that rulings go unchecked.

One question I have is could the judge have convicted on 2nd degree murder using another section of the statue or was the evidence likely not enough. Also did the judge have the option of convicting of manslaughter or was it 2nd degree or not guilty.

As an aside repealing that section of the commission of another crime is probably a good thing. There was a Florida case where that type of law was applied and it seemed very unjust. I think the kid was in the car without knowlegde that his buddy was robbing the store.

[Acey]

Originally Posted by GGG

I'm surprised that rulings go unchecked.

One question I have is could the judge have convicted on 2nd degree murder using another section of the statue or was the evidence likely not enough.

This, apparently. Judge nor the Crown considered sec 229 at all.

Sankoff: "I see no possibility of saving the murder conviction. Judge based decision exclusively on 230."

[GGG]

Originally Posted by Acey

This, apparently. Judge nor the Crown considered sec 229 at all.

Sankoff: "I see no possibility of saving the murder conviction. Judge based decision exclusively on 230."

By was that because 230 was easier or the burden wouldn't have been met by 229?

I guess I'm wondering did the judge intentionally use an outdated clause as a Hail Mary to avoid being forced to acquit?

[Acey]

Difficulty in this case is obviously that there's no bodies nor a murder weapon. He used 230 because (aside from it being void) it is the best section that describes the alleged crime, homicide in the commission of a robbery. Extremely unlikely that he knew about it being struck down and still used it as it's pretty cut and dry that the section is unconstitutional to the point that opposition to the appeal by the Crown would be considered unethical.

[Acey]

This law expert suggest a conviction of manslaughter is a good possibility, which would avoid the hassle of a new trial.

Originally Posted by @AsadKiyani, Ph.D.

I assume that the only legal error in yesterday’s verdict is about s. 230, the outcome that makes the most sense to me is that Vader ends up with a manslaughter conviction on appeal (again, assuming that the factual findings from yesterday’s reasons support a manslaughter conviction in the alternative). If manslaughter is available on the findings, and no other legal errors, no need for declaring a mistrial/ordering a new trial.

Tangent on new trial: potential argument that judicial error deprived Crown of right to pursue a murder conviction. But new trial would cause even more delay to accused (already been six years and one stay of proceedings). So my guess is there would be a preference for entering a manslaughter conviction instead. Similarly, manslaughter findings would obviate need for court to issue a stay of proceedings for abuse of process or delay.

Tangent 2: Judge is not yet functus, since no sentence delivered, so possibility of reopening the case for judge to provide additional reasons supporting a murder conviction under s. 229. Obstacle is impartiality requirement. R v Teskey, R v Cunningham, and R v Arnaout say that post-verdict reasons may undermine this if “cogent evidence that informed and reasonable observer would view the reasons as an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision”.

Given immediate outcry and publicity after the verdict was issued, strong case to be made that any further reasons (on, say s. 229) satisfy this standard and undermine the presumption of judicial integrity/impartiality.

[Parallex]

Originally Posted by Acey

This law expert suggest a conviction of manslaughter is a good possibility, which would avoid the hassle of a new trial.

Is that something that can be unilaterally imposed by the court or does defense/crown have to agree?

[Acey]

Originally Posted by Parallex

Is that something that can be unilaterally imposed by the court or does defense/crown have to agree?

Not sure. I know the defense is applying for a full mistrial, so manslaughter would be less than ideal for them. Steven Penney also implied the Crown wouldn't be much involved in the appeal process.