Son of slain Alberta couple calls ‘zombie’ laws ‘booby traps’ for judges

ST. ALBERT, Alta. — An Alberta man who saw a murder conviction in the case of his missing parents replaced with manslaughter because of a judge’s error wants “zombie” sections of the Criminal Code removed.

Bret McCann said the section of the code that Justice Denny Thomas cited in his second-degree murder conviction against Travis Vader in September should be removed immediately, since it was declared unconstitutional decades ago.

McCann said it’s only a matter of time before a judge makes a similar mistake and accidentally applies an unconstitutional and out of date section in another case.

“The consternation and pain endured by my family because of this so-called zombie law is enormous,” McCann read from a prepared statement at a news conference on Sunday.

“While Justice Thomas was responsible for this mistaken verdict in the Vader case, I think it is ludicrous that these booby traps are allowed to just exist within the Criminal Code.”

Lyle and Marie McCann, in their late 70s, disappeared after setting out from their Edmonton-area home to go camping in British Columbia in July 2010. Their burned-out motorhome and a vehicle they had been towing were discovered in the days that followed. Their bodies have never been found.

In finding Vader guilty of murder, Thomas mistakenly used Section 230 of the Criminal Code, which the Supreme Court declared unconstitutional in 1990. The government didn’t remove the section from the books as antiquated laws are rarely repealed.

Section 230 allowed for a second-degree murder verdict if a killing occurred during the commission of another crime such as robbery.

Thomas acknowledged his mistake and the following month changed his verdict to manslaughter.

Following the botched verdict, Justice Minister Jody Wilson-Raybould promised a review of unconstitutional Criminal Code provision, with the view of updating the laws to reflect high court decisions.

Wilson-Raybould said the review would be part of a larger review of the criminal justice system.

Conservative MP Michael Cooper, who represents St. Albert-Edmonton and is the Opposition’s deputy justice critic, said legislation to repeal such laws would be uncomplicated and shouldn’t have to wait for the minister’s larger review of the justice system to be completed.

Cooper told the news conference that a parliamentary committee on justice and human rights wrote the minister on Oct. 6 to make it a priority to remove inoperative sections of the code.

A spokesperson for the minister, Valerie Gervais, said Sunday that the review is ongoing.

“The Minister’s overarching goal is to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law as well as the Constitution of Canada,” Gervais said in an email.

McCann said he fears the review could take years, or even decades, to show results.

“When an experienced senior court judge like Justice Thomas can’t figure out what the law is because the Criminal Code is so clogged up and cluttered with obsolete sections, how is the average citizen supposed to figure out what the law is?” McCann asked.

Vader’s sentencing hearing in Edmonton continues this week.

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