Defence argues Travis Vader should serve no more jail time after claims of pre-trial abuse

Travis Vader's lawyer is asking a judge to let his client go without serving more jail time or drop the case altogether.

In a notice of motion filed in court, Nate Whitling argued that Vader's constitutional rights were violated following his arrest and during his lengthy imprisonment leading up to the trial. He argued Justice Denny Thomas should either impose a sentence equivalent to the time Vader has already served or impose a stay of proceedings, which would essentially drop the case.

The document was filed Wednesday on the third day of Vader's sentencing hearing for two manslaughter convictions for the killings of Lyle and Marie McCann. A manslaughter conviction can result in a sentence ranging from probation to life in prison.

Crown prosecutors have indicated they would argue for consecutive life sentences for Vader.

Vader testified at sentencing hearing

During the sentencing hearing, which started Monday, Vader has testified he was subjected to a humiliating, recorded strip search after his arrest in 2010, was constantly harassed by remand centre guards, and endured abuse from other inmates.

"The applicant was subjected to cruel and unusual conditions in pre-trial custody," according to the notice of motion. It also claimed the strip search was illegal and that RCMP denied Vader's right to seek legal advice when he was arrested six and a half years ago.

• Family of Lyle and Marie McCann will have 'nightmares forever'
• Travis Vader claims he was 'thrown to the wolves' while in custody

But an extended audio recording played in court appeared to show that RCMP officers gave Vader all night to reach his defence lawyer after his arrest.

When Vader finally reached the law office just after 9 a.m. the day after he was taken into custody, an RCMP officer could be heard saying, "The door is closed. I can't hear the conversation. I can see Mr. Vader talking to somebody, but I can't hear the conversations they're having."

The phone call lasted four minutes, at which point Vader said his lawyer was in a trial and he would have to call back in five minutes. About an hour later, Vader reached the lawyer. Vader told the officer his lawyer had asked him to contact an assistant. 

The sentencing hearing is scheduled to last all week.

Vader has also claimed his wrist was broken when he was roughed up by guards. 

"The minute they break your wrist or abuse you or do something that's not right, there are no documents," he said. 

After presenting a victim impact statement that detailed how the killings of his parents have affected him, Bret McCann sat through hours of Vaders' testimony about mistreatment. McCann told reporters the man convicted of killing his parents was trying to refashion himself as a classic victim.

"I heard two things," McCann said outside court on Tuesday. "One was, prison is not a very nice place to be. And I heard sort of a, 'Woe is me, I'm a victim here.' Instead of who the real victims are — my parents. I have no sympathy for him."

Earlier the week, McCann​ and other family members talked about their "everlasting" pain and "shattered innocence." Court was shown pictures of great-grandchildren born after Lyle and Marie McCann were killed.

The complex case has dragged on for more than six years.

The McCanns were last seen alive in July 2010 at a gas station in their hometown of St. Albert. It was the first day of a road trip to British Columbia. Their burned-out RV was found days later in a rural area near Edson, Alta.

Vader was originally found guilty in September of two counts of second-degree murder.

But in that decision, Thomas relied on an outdated section of the Criminal Code, prompting Vader's legal team to apply for a mistrial. As a result, the conviction was downgraded to manslaughter.