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Murder

Edmonton Criminal Lawyer Ziv > Murder
06 October
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Travis Vader CAse

Posted by Rory
in Contemporary Cases, Murder

Vader Strikes Back– A review of the Travis Vader decision.

 

The Travis Vader decision[1] has captured the interest of Albertans. Apparently as the decision was being broadcast live, a novelty in Canadian trial law, commentators were contemporaneously questioning the correctness of the trial judge’s decision on social media.

I have decided to review the case for myself and offer some insight.

The case itself is long. It is full of dense factual findings. I have included a summary of the judges overall findings:

…. While I have concluded that a firearm was used during the interaction between Mr. Vader and the McCanns, and that firearm caused the hole in the Boag’s hat, I cannot establish who fired the gun or at whom, and the blood drop and spatter pattern on the Boag’s hat does not suggest the bullet that passed through the hat and caused an injury to someone wearing that hat. The blood, largely from Lyle McCann, is on the top of the hat.

      My conclusion on that point, however, does not affect my conclusion that violence occurred in the interaction between the McCanns and Mr. Vader. There was bloodshed. A gun was discharged. While I cannot reconstruct the exact detail of what occurred, I also have no doubt about the overarching relevant fact – the McCanns were victims of violence. Mr. Vader inflicted that violence. The McCanns suffered bodily harm. The presence of their blood makes that obvious.[2]

     Linking the facts I have found there is no question that Mr. Vader committed homicide. The McCanns are dead. They were the subjects of violence that caused bloodshed. Mr. Vader’s biological material is mixed with blood from Lyle McCann. Mr. Vader’s motivation to interact with the McCanns was theft. Forensic and witness evidence links Mr. Vader to the McCanns’ property.

    Mr. Vader caused what happened to the McCanns. The Crown’s evidence and the inferences I have drawn from that evidence do not permit a detailed reconstruction of the circumstances that led to the McCanns’ death, and how Mr. Vader caused those deaths. However, I conclude beyond a reasonable doubt that Mr. Vader, in one manner or another, caused the death of the Lyle and Marie McCann. My next step is to determine the legal implications of that fact.[3]

What the learned trial judge does next is conclude that the McCanns death was caused during the commission of a theft by Vader on the McCanns. The trial judge relies on section  s. 230 of the Criminal Code (outdated section) which states that you are guilty of murder when a person dies in the course of committing a robbery.[4]

     I have concluded beyond a reasonable doubt that Mr. Vader intended to and did steal property from the McCanns. I have also concluded beyond a reasonable doubt that the McCanns experienced bodily harm, as is demonstrated by the forensic blood evidence. The McCanns are dead, and the only reasonable inference I can draw is the bloodshed evidence indicates the McCanns were killed by Mr. Vader’s actions.[5]

The legal problem in this case is as follows:

In Canada a murder is committed when you intended to cause death or grievous bodily harm knowing death is likely.

The learned trial judge did not find that Vader meant to cause death or meant to cause bodily harm — just that he did cause it.

In one portion his judgment he says:

     The problem is there are other reasonable possibilities that can take us from a robbery gone bad to two dead senior citizens. The most obvious is that Mr. Vader encountered the two McCanns together while trying to commit a robbery, the McCanns both physically resisted Mr. Vader, that fight escalated, and in that struggle both McCanns were fatally injured.[6]

So if Vader didn’t deliberately kill the McCanns or inflict bodily harm on them knowing death was likely then where does the case go?

Some Crown prosecutors I have spoken to suggest that Vader could still be convicted of manslaughter, which is an unlawful act that causes death.  They suggest that the learned trial judge made good findings of fact that should not be disturbed.

If a court, I suspect this case will go to the Alberta Court of Appeal, was going to determine that manslaughter was committed they will have to make a finding of fact that the learned trial judge hasn’t made. How did Mr. Vader kill the McCann’s and was it unlawful violence?

The unfolding of the remainder of this case is going to be interesting … stay tuned!
[1] http://www.canlii.org/en/ab/abqb/doc/2016/2016abqb505/2016abqb505.html?resultIndex=5
[2] Paras 674 and 675
[3] 676 and 677
[4] A robbery is theft with violence.
[5] Para 688
[6] Para 686

16 July
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Eyewitness Identification

Posted by Rory
in best lawyer in edmonton, criminal lawyer edmonton, Eyewitness Identification, Jury instruction, lawyer, lawyer edmonton, Murder, ziv

R. v. Bailey, 2016 ONCA 516, is an interesting case from the Ontario Court of Appeal on the perils of Eyewitness Identification.

Background

Bailey was charged with first degree murder during an attempted robbery. The mother of his victim identified him in court 2 ½ years after the alleged incident. Moreover, there was suggestion that the identification was improper because at other points in the criminal proceedings, most notably in the preliminary inquiry, the mother had testified that she was unable to identify the offender. The case involves an appeal of a conviction from the jury at trial, on the primary ground that the trial judge’s instruction on Eyewitness Identification was misdirection resulting in reversible error.

Analysis

The Ontario Court of Appeal finds in favour of the Appellant. The Court finds that it is not enough that a trial judge give model instructions regarding Eyewitness Identification. Instead, the instructions must be tailor made to reflect the particular situation before the jury. In this case, the Court found that it was not enough that the Judge urged the jury to give the Eyewitness Identification little weight and warned that it would be dangerous to rely on the Eyewitness Identification.

Instead, the Court ruled that in this case, the trial judge should have warned of specific dangers of the Eyewitness Identification evidence. These included the temporal gap in the original incident and the in court identification, earlier testimony by the victim’s mother that she was unable to identify the assailants, as well as the questionable nature of her claim that she was able to identify the appellant because she recognized his forehead.

There were other grounds of appeal in this case that the Court did not significantly address. On the question of whether the jury instruction regarding the “Jailhouse Informant” or the Vetrovec Instruction was proper, the Court reserves its verdict, finding it unnecessary to decide the appeal on this ground. Rather bizarrely, the Court goes on to suggest that the instruction was proper, and if anything if the instruction had been more “proper”, i.e. if the specific circumstances of the witness had been mentioned in this particular case it would have become clear that the dangers typically associated with jailhouse informants were less at play here, the jury would have been more likely to find against the Appellant.

This raises the question of whether the Court is suggesting that in situations unfavourable to the accused, instructions given to the jury regarding witness testimony may not need to be as context driven as in situations unfavourable to the accused.

On the Appellant’s suggestion that Crown Counsel’s closing comment, whereby it was pointed out that the Appellant did not introduce testimony from his friends or family for the purposes of alibi, had the effect of shifting the burden of proof and was improper, the Court notes that it does not think the comment was improper, and if it was it was significantly tempered by the Trial judge’s suggestion that the burden of proof rested at all times with the Crown.