R v Vader, 2016 ABQB 405

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 405 Date: 20160718 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Travis Edward Vader Accused (Applicant) _______________________________________________________ Oral Reasons for voir dire Judgment In the matter of the WARNEX Witnesses EDITED FOR PUBLICATION of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ [ 1 ] On April 5, 2016 Mr. Vader applied for an order directing that the Crown call as witnesses Dr.

Amarjit Chahal and Curtis Hildebrandt (the “WARNEX Witnesses”), either 1) pursuant to this Court’s inherent jurisdiction, or 2) as the remedy for a breach of the Charter , s 7 as an abuse of process.

(the “WARNEX Application”). This is my oral decision, which will be edited for publication. [2] Counsel for the Defence argues that the WARNEX Witnesses should be called because they tested samples for the presenceof DNA. The samples in question were obtained in the course of the investigation of Mr. Vader’s involvement in the murder chargesnow before this Court. The WARNEX Witnesses did their testing at a laboratory facility located in Ontario and operated by WARNEXPRO-DNA SERVICES INC. (“WARNEX”). The WARNEX Witnesses conducted the testing for the presence of DNA at the directionof Sgt.

Chad Fournier of the RCMP. [3] None of the samples tested identified the presence of Mr. Vader’s DNA. Defence counsel takes the position at para 6 of theapplication ... that the Crown is not entitled to refrain from calling witnesses that are in a position to offer exculpatory evidence ... ... and cites for this proposition R v Hillis, 2016 ONSC 451 (“Hillis”) and also a case titled “R v Chow”, apparently from theSaskatchewan Court of Queen’s Bench, but no citation is offered.

The Defence then continues to espouse what appears to be acontradictory position, and says that “the Crown is entitled to decide which witnesses it will or will not call”, except in “exceptionalcases”. I note this is not the same test as stated earlier in the same paragraph which requires that the Crown call all witnesses withexculpatory evidence. [4] The Application is supported by an affidavit of Randall T. Libby, made on April 5, 2016 (the “Libby Affidavit”) wherein heindicates that he is a DNA specialist, although no curriculum vitae is attached.

I accept that he is an expert in respect to testing for DNAsolely for the purpose of this Application. Dr. Libby observes at para 3 of his Affidavit that while the prosecution considers the presenceof DNA as important, it is actually the absence of DNA on seized items which is very important.

He offers the opinion that because Mr.Vader’s DNA was not located on certain seized objects, that is “very important” and “will assist in the truth seeking process”. [5] In response, the Crown argues that the Supreme Court of Canada decision of R v Cook, (SCC), [1997] 1SCR 1113; 146 DLR (4th) 437 is a complete answer to the Application. [6] I have decided to reject the Application on several grounds.

First, I do not agree with the conclusion of Justice Pomerance inR v Hillis that the decision of the Crown to choose or not to choose to call a particular witness is more a question of “trial tactics thanprosecutorial discretion” (para 34). Justice Pomerance appears to base his reasoning in R v Hillis on a ‘two stream’ description of courtsupervision of Crown activities in a criminal prosecution, as described by Moldaver, J in R v Anderson, 2014 SCC 41, [2014] 2 SCR 167(para 35).

Prosecutorial discretion is only reviewable for abuse of process, while “prosecutorial ... tactics and conduct before the court”may be subject to judicial review on a lesser standard relating to the fairness of the trial. [7] In R v Anderson Justice Moldaver does make reference to the earlier Supreme Court of Canada decision in R v Cook whereJustice L’Heureux-Dubé for a unanimous court examined whether the prosecution has any obligation to call a particular witness. Afterexhaustively examining that question, at para 55 of that decision she concludes: In

summary, I conclude that there is no duty upon the Crown to call witnesses nor a more specific duty to call the complainant or victim.Decisions on how to present the case against an accused must be left to the Crown's discretion absent evidence that this discretion isbeing abused. [Emphasis added]. [8] Justice L’Heureux-Dubé continues at para 56: It has also been suggested in at least two decisions … that the Crown might wish to call witnesses with material evidence and simplymake them available for cross-examination.

I would certainly not go so far as to impose such a requirement, nor do I think that a trialjudge should ever order the Crown to produce a witness. ... [Emphasis added]. [9] The only exception to this is where a trial judge finds an “oblique purpose” as applying to the failure to call a witness, whichJustice L’Heureux-Dubé explains is an abuse of process.

The onus to prove abuse of process on a balance of probabilities falls to theaccused person (para 62). [10] At para 37 in R v Anderson Moldaver, J cites R v Cook as providing an example of where “prosecutorial discretion is anecessary part of a properly functioning criminal justice system”, and confirms at para 52 of his decision the rule that an alleged abuse ofprocess must be proven by an accused/applicant.

My review of R v Anderson does not reveal to me that a different test now applies tothe calling of witnesses by the Crown, or that somehow R v Cook is no longer valid law. [11] As noted Moldaver, J does discuss the ‘two stream’ approach, but no mention is made in that decision of the Supreme Courtof Canada about the calling of witnesses by the Crown. Further, I am not bound by the decision in R v Hillis, which appears to turn on itsown unique facts in respect to the behavior of the prosecution service in that particular case in Ontario.

The facts here are not at allsimilar. [12] Subsequent to the decision in R v Anderson the Alberta Court of Appeal in R v LL, 2015 ABCA 222, 300 CCC (3d) 345overturned a decision of mine in which I had ordered costs against the Crown, on the basis that R v Anderson continued the strict rulethat prosecutorial discretion is only subject to an abuse of process standard (para 4), and therefore a choice to call a witness was not abasis for a cost award because I had not found in the original trial costs decision that calling that witness was an abuse of process (paras11-15). [13] I am therefore comfortable that I am not subject to binding authority that I am required to conduct a ‘fairness based’evaluation of a decision by the Crown in this case to call or not call a witness. [14] The result of this conclusion means that the Defence has an obligation to establish an abuse of process on a balance ofprobabilities.

Counsel for Mr. Vader has indicated that the forensic DNA testing on items seized from various locations has not detected

the presence of Mr. Vader’s DNA. In those five instances DNA was recovered from hairs, but the DNA in those hairs did not match either Mr. Vader’s DNA, or the DNA of Lyle and Marie McCann. The Crown’s decision not to call the two WARNEX Witnesses or introduce their findings, must therefore meet a threshold criterion that the failure to call these witnesses and their evidence about tests for DNA is an abuse of process. [ 15 ] This raises yet another problem for the Defence. There is no apparent dispute that the evidence in question does not link Mr. Vader to the McCanns.

The articles from which the hair containing DNA was obtained are apparently not key elements of the Crown’s case. The five single hairs tested were found in a barbeque, a suitcase, several pairs of pants, and black runners. I certainly appreciate Dr. Libby’s statement that sometimes an absence of DNA evidence can be very important, but I have no evidence to this point in the trial that the items on which the hairs are found are either the literal or proverbial smoking gun. [ 16 ] Furthermore, the fact unidentified third parties were exposed to these items is also of doubtful relevance.

It is not as though the search locations were antiseptically sealed or cleaned environments where a single hair could mean much. Instead, I believe I may take judicial notice (and in any case have received expert evidence) that humans leave a trail of their bits and pieces containing their DNA as they move through their lives.

And I can certainly take and I do take judicial notice that clothing and other fabric materials have an innate tendency and capacity to acquire and retain hair from all sorts of animals, including humans. [ 17 ] To summarize, in this case the Crown is entitled to refrain from presenting evidence that has no apparent relevance. Mr. Vader has not established that the failure to advance evidence of “nothing” is an abuse of process, and that conclusion ends this application. In the alternative, and assuming the reasoning in R v Hillis is correct, I do not think it is unfair to Mr.

Vader for the Crown to decline to enter evidence that is not relevant. [ 18 ] There are a few other points where I reject the arguments raised by the Defence on this Application. The Libby Affidavit mentions that there was no preliminary inquiry in this matter, and therefore Defence counsel had no opportunity to cross-examine the WARNEX Witnesses.

I point out that an accused person has no Charter right to a preliminary inquiry, because that procedure does not engage the Charter s 7 right to a full answer and defence: R v SJL , 2009 SCC 14 at para 21 , [2009] 1 SCR 426; R v Hynes , 2001 SCC 82 at para 48 , [2001] 3 SCR 623. [ 19 ] Mr. Vader also argues in para 9 of his Notice of Motion that forcing the Defence to call witnesses: ... has been rejected as disadvantaging the defence and similarly affecting trial fairness.

When forced to call the witness as their own, the defence forgoes the right to cross-examine the witness and forgeirs [sic] the right to address the trier of fact last. [ 20 ] Justice L’Heureux-Dubé in R v Cook examined and rejects these exact arguments. At para 39 she stated: ... I fail to see why the defence should not have to call witnesses which are beneficial to its own case. The adversarial process functions on the premise that it is the obligation of the Crown to establish a case beyond a reasonable doubt against the accused.

Once this threshold has been surpassed, however, it is up to the accused to call evidence or face conviction: ... The adversarial nature of the trial process has been recognized as a principle of fundamental justice ... As such it should be construed in a way that strikes a fair balance between the interests of the accused and those of society: ... In my view, placing an obligation upon the Crown to call all witnesses with information bearing on the case would disrupt the inherent balance of our adversary system. ... [citations omitted]. At para 47 she goes on to say: ...

It is clear that the degree to which an accused is prejudiced by the order of closing addresses will vary upon the facts of each case, and most importantly by whether or not he or she already planned to call witnesses. For this reason, I do not feel that this factor is sufficient to warrant impeding the Crown's discretion to produce witnesses as the Crown chooses. ... [ 21 ] I therefore reject Mr. Vader’s application and arguments. The decision in R v Cook remains the law in Alberta. The Crown has no obligation to call the WARNEX Witnesses to give evidence. There is no abuse of process established here.

Accordingly, no breach of Mr. Vader’s rights under s 7 of the Charter is deserving of the remedy of an order compelling the Crown to call the WARNEX Witnesses. [ 22 ] To the extent that “evidence of nothing” is asserted to be relevant, I understand the Crown is prepared on a voluntary basis to enter the WARNEX Lab Results, tabs 1 – 4 inclusive, of the Crown brief of April 6, 2016 as part of the evidence in its case. That will provide a basis for Dr. Libby to comment on that material, assuming of course that he is actually called by the Defence and is qualified as an expert.

To the extent there is an issue of trial fairness raised here, the Defence will have an opportunity to rely on this material in making full answer and defence on the DNA aspect of this case. [ 23 ] I reserve the right to edit the transcript of this oral judgment and publish same in due course. Madam Reporter has a copy of my speaking notes to permit the insertion of citations. Argued on the 11 th day of April, 2016. Delivered orally at the City of Edmonton, Alberta on the 11 th day of April, 2016 Released in written form for publication at the City of Edmonton, Alberta this 18 th day of July, 2016.

D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Brian A. Beresh, Q.C. and Mr. Nathan Whitling (Beresh Cunningham Aloneissi O'Neill Hurley) for the Accused (Applicant) Mr. Ashley Finlayson, Q.C., Mr. Jim Stewart, and Ms. Eman Joumaa (Crown Prosecutors - Specialized Prosecutions Branch) for the Crown (Respondent)