R v Vader, 2016 ABQB 505

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 505 Date: 20160915 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Travis Edward Vader Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents I. Introduction . 5 A. Background . 5 B. The Case Against Mr. Vader 7 C. Positions of the Parties . 8 1. The Crown . 8

2. Mr. Vader 9 II. Law .. 11 A. Standard of Proof . 11 B. Homicide, Murder, and Manslaughter 11 1. Murder 12 2. First Degree Murder 12 2. Lesser and Included Offences . 13 C. Circumstantial Evidence . 14 D. Disreputable “ Vetrovec ” Witness Evidence . 15 III. Review and Findings in Respect to Forensic Evidence . 17 A. Forensic Evidence Recovered in the RCMP Investigation . 17 1. Fingerprint Evidence . 17 2. Firearms and Firearms Residue Evidence . 18 3. Blood Location and Stain Pattern Analysis . 18 4. Carpet Analysis . 22 B. DNA Evidence . 22 1. Overview of Forensic DNA Analysis . 22 2.

Crown Experts and Technical Witnesses . 27 3. Defence Expert Evidence . 28 4. Crown Evidence . 34 5. The Risk and Probability of Environmental Contamination and Coincidental Transfer of DNA 44 6. Dr. Libby as an Expert Witness . 45 7. Conclusions on DNA Evidence . 46 C. Findings of Fact 46 IV. Preliminary Issue - W(

D) Analysis of Vader’s Exculpatory Statements . 47 A. Mr. Vader’s Statements . 47 B. Relevant Law .. 48 1. W(

D) Procedure . 48 2. Witness Credibility and Reliability . 48 C. W(

D) Steps One and Two . 49 V. Additional Evidence . 50 A. Telecommunications Evidence - Overview .. 51 B. Cell Phone Location and Usage Data . 52 1. Cell Phone Location Data . 53 2. Cell Phone Usage Data . 60 3. Other Telecommunications and Cell Phone Related Evidence . 61 B. Mr. Vader’s Associates – Credibility and Reliability Reviews . 61 1. David “Bandana Dave” Olson . 62

2. Myles Ingersoll 66 3. Amber Williams . 69 4. Andrea Saddleback-Sexsmith . 71 5. Sheri Lynn Campbell 74 6. Donald Bulmer 76 7. Bobbi-Jo Vader 79 8. William James Nikolyuk . 81 C. Review of Other Witnesses and Some Relevant Items . 83 1. F350 Witnesses . 83 2. The Klohn Truck . 85 3. Boxer Beer 85 4. Incidental Witnesses . 85 5. Defence Witnesses at the Minnow Lake and Wolf Lake Campgrounds on July 4/5, 2010 . 87 6. Defence Evidence on Mr. Vader’s Activities in July 2010 . 89 7. Tanja Radovanovic . 91 8. Defence Motor Vehicle Damage Witness . 91 D. Mr. Vader’s Links to the McCanns and Stolen Property . 92 1.

Who Is “t”? . 92 2. Did Olson and Ingersoll Observe Travis Vader in the McCann SUV on July 3, 2010? . 98 3. Was the F350 Found with the McCann SUV Key Operated by Mr. Vader? . 98 4. Did Mr. Vader Burn the Klohn Truck? . 99 E. Cell Phone Information - Statements for the Truth of Their Contents . 100 1. Mr. Vader’s Use of the Bulmer Cell Phone . 102 2. Drug Use by Mr. Vader 104 3. Mr. Vader’s Circumstances in the Period Around July 3, 2010 . 105 4. Mr. Vader’s Illegal Activities . 105 F. Disreputable Character Evidence / Similar Fact Evidence . 105 G. Defence Theories . 108 1. McColman is the Killer 108 2.

Bandana Dave Olson, Mastermind . 111 3. The Planted Hyundai Key . 112 4. The Steffler Alibi 113 5. “Tunnel Vision”, RCMP Conspiracy, and Vendetta . 113 H. Post-Offence Conduct 113 VI. Findings of Fact 114 VII. Analysis . 119 A. Issue #1 - Are the McCanns Dead? . 119 B. Issue #2 - Did Vader have a Motive to Target the McCanns for Illegal Purposes? . 120

C. Issue #3 - Was Mr. Vader Involved With the McCanns’ Property? . 121 D. Issue #4 - Were the McCanns Victims of Violence? . 123 E. Mr. Vader Committed Homicide . 124 F. First Degree Murder 124 G. Second Degree Murder or Manslaughter? . 126 VII. Conclusion . 127 Appendix A - Admission of Text Message Communications Attributed to Mr. Vader under Charter, s 24(2) 128 I. Introduction . 128 II. Charter , s 24(2) 128 A. Seriousness of the State Misconduct 129 B. Impact on the Interests of the Accused . 129 C. Adjudication on the Merits . 130 D. Conclusion . 130 Appendix B - Pre-Judgment Court Decisions . 131 I.

Introduction [ 1 ] On July 3, 2010 Lyle and Marie McCann [the “McCanns”] left their home in Saint Albert on a road trip to Cultus Lake in British Columbia where they were going to holiday. The McCanns travelled in a large Class A recreational vehicle [the “RV”] which towed a Hyundai Tucson SUV [the “SUV” or “McCann SUV”]. The McCanns had arranged to meet with their daughter Trudy Marie Holder [“Ms. Holder] and her daughter who were flying to Abbottsford on July 10. The four family members were then going to travel in the RV to Cultus Lake. [ 2 ] The McCanns never arrived.

This was the first inkling to their family that something had gone awry. Their failure to appear at the Abbottsford airport was very unusual. Ms. Holder immediately reported to the RCMP that her parents were missing. [ 3 ] The McCanns were never seen again, dead or alive; however in the weeks that followed the discovery of evidence linked to them began to emerge. The first item was their RV on fire near Minnow Lake, south east of Edson. Their SUV was found at an abandoned farm near the intersection of Highway 16 and Range Road 144(W5M).

On July 3, the McCann cell phone was used to communicate with persons unknown to the McCanns. Forensic investigators located blood from the McCanns on objects found inside the SUV. A hat worn by Lyle McCann was found in the SUV with a bullet hole and his blood on it. This is all circumstantial evidence. [ 4 ] The RCMP investigation commenced on July 10 and soon focussed on one individual: Travis Edward Vader [“Mr. Vader” or “Travis Vader]. He told the police he had nothing to do with the McCanns.

This decision is to determine whether that is true or not, and whether the Crown has proven beyond a reasonable doubt that Mr. Vader killed the McCanns and is guilty of first degree murder ( Criminal Code , RSC 1985, c C-46, s 231). A. Background [ 5 ] Aspects of the background leading up to the disappearance of the McCanns are not in dispute. A number of the McCanns’ relatives (Ms. Holder, Bretton McCann, Mary-Ann McCann, and Alice Chalmers) and a friend and neighbour (Margaret Ann Muffitt [“Ms. Muffitt”]) testified as to the McCanns’ travel practices and their July 2010 plans.

I previously issued a voir dire decision that admitted the hearsay evidence components of the three relatives’ testimony: R v Vader , 2016 ABQB 301 , [2016] AJ No 579. I also accept the non-hearsay evidence of these witnesses, and Ms. Muffitt’s evidence on the general travel and holiday practices of the McCanns. [ 6 ] The reliability of that evidence was challenged by the Defence; however I conclude that the criticism of these witnesses has no merit given their familiarity with the subject matter.

Similarly, the Defence argued that I should consider potential alternative paths of travel, destinations, and so on, as potential and relevant alternative theories of what the McCanns did. I reject these submissions as empty hypotheses that are countered by the fact that physical evidence of the McCanns was subsequently recovered along their reported proposed path of travel. The Defence’s criticism of the Crown as “theorizing”, a theme that will reoccur throughout this decision, instead applies to the Defence submitting alternatives without supporting evidence or elevated plausibility. [ 7 ] In

summary: 1. The McCanns had frequently holidayed with their RV and SUV. 2. The RV was used to tow the SUV. The key and fob for the SUV were stored in the RV.

3. Lyle McCann, as an ex-trucker, was an expert driver of the RV. The McCanns were habitually very careful with their vehicles and domestic practices. Their vehicles were always clean and appeared new. 4. The McCanns generally used the RV as their living quarters when on these trips. Marie McCann would cook many of their meals. 5. The McCanns carried a cell phone with them when they travelled. The cell phone was stored in the console area of the RV. The cell phone was generally used only for emergency communication and was otherwise left off. 6. The McCanns were observed in pre-trip preparations on July 2, 2010.

Bretton McCann gave his parents a gift that they were going to take to his grandson. The McCanns indicated their plan was to leave on the morning of July 3, 2010, and their aim was to reach Blue River, British Columbia as their first day objective. Their next identified checkpoint was the July 10 Abbottsford rendezvous. Ultimately they were to arrive at Cultus Lake. 7. The McCanns had made reservations at the Holiday Park Resort in Kelowna for July 5-8, and Cultus Lake for July 8-22, 2010. 8.

The McCanns’ failure to appear in Abbottsford was out of character, particularly in light of the absence of any communications from the McCanns following their departure from Saint Albert. [ 8 ] Evidence related to the McCanns was subsequently located by RCMP investigators. That investigation began on July 10, 2010. Much of this evidence was initially introduced via a photo book, then later by individual witness testimony. [ 9 ] The McCanns were last observed by surveillance cameras at the St. Albert Superstore gas station and then in the Superstore groceteria on July 3, 2010.

Receipts for their purchases made that day show they left the groceteria at or shortly after 10:08. [ 10 ] The McCann RV was observed on July 5, 2010 at Minnow Lake. Minnow Lake is located approximately 24 km south of Highway 16. Highway 16 is a logical travel corridor to reach Blue River. In the early morning hours, around 06:30, Rolf Wenaas, the manager of the Minnow Lake campground, had seen the RV and SUV parked in #8 site of that campground.

On that occasion, and later at about 12:30, he knocked on the door of the RV to collect campground fees and then waited on both occasions, but there was no sign of anyone present. Later that day, at around 19:00, the RV was found on fire on a closed road a short distance away. Little remained after firefighters extinguished the fire, though the vehicle was subsequently identified by its licence plate. The wreck and debris were later moved to the Edson area landfill. The cause of the fire could not be determined.

Immediate examination of the RV by the firefighters and subsequent forensic examination of the transported RV remnants did not detect any human remains. [ 11 ] The McCann SUV was subsequently located on July 16 on a property (the “Samson-Roader property”) adjacent to the south side of Highway 16. This unoccupied farmstead had been broken into, disturbed, and vandalized sometimes between the fall of 2009 and July 2010. The SUV had been driven hard into a stand of trees. Its exterior was dirty. An empty Boxer Beer carton was located nearby in an area next to the vandalized mobile home on that property.

The grass in that location appeared to have been compressed and bent down by a large vehicle. [ 12 ] When the SUV was subsequently examined in an RCMP garage it was found to contain a number of items, including a can of Boxer Beer in a cup holder in the console between the two front seats, a propane tank in a shopping basket in the back, along with several loose potatoes. Superstore “No Name” brand cans of food products were also recovered. These cans matched the type of food products that were purchased by the McCanns from the St.

Albert Superstore on July 3, 2010 at 10:08. [ 13 ] Two baseball hats were located in the SUV. One had the text “Vopak” [the “Vopak hat”], while the other had a logo and text for Boag’s Draught [the “Boag’s hat”]. The Boag’s hat had a small hole in its brim. [ 14 ] The video images of Lyle McCann captured at the St.

Albert Superstore on July 3, 2010 show him wearing what appears to be the Boag’s hat. [ 15 ] Blood was located in a number of locations in the SUV, on the Boag’s hat, and on the Superstore “No Name” cans (“No Name Cans”). [ 16 ] A key and key fob that opened the McCann SUV was subsequently located in a 2006 Ford F350 pickup truck [the “F350”] that had been found north of Highway 16 and east of Edson on July 17, 2010. The F350 had been reported stolen on June 28, 2010.

When located, the interior cab of the F350 was partially burned. [ 17 ] The McCann cell phone (“McCann phone”) was ultimately recovered from a dumpster in Whitecourt, Alberta. That cell phone had been used to sent text messages and to make phone calls on the afternoon of July 3, 2010 to an ex-girlfriend of Mr. Vader, Ms. Amber Williams [“Ms. Williams” or “Amber Williams”]. It is uncontested that Ms. Williams has no connection to the McCanns. B. The Case Against Mr. Vader [ 18 ] Mr.

Vader is charged with two counts of first degree murder: Count 1: On or about the 3rd day of July, 2010, at or near the Hamlet of Peers, in the Province of Alberta, did commit first degree murder of the person of Lyle McCann, contrary to section 235(1) of the Criminal Code of Canada . Count 2: On or about the 3rd day of July, 2010, at or near the Hamlet of Peers, in the Province of Alberta, did commit first degree murder of the person of Marie McCann, contrary to section 235(1) of the Criminal Code of Canada . At the opening of the trial Mr. Vader was arraigned on these charges, and entered pleas of not guilty.

[19] The Crown admits that the case against Mr. Vader is circumstantial, but argues that there is only one reasonable inference thatcan be drawn from that evidence: Mr. Vader killed the McCanns. The Defence argues the necessary standard of proof has not been met. [20] Since this is a circumstantial evidence case I review in detail the various forms of evidence introduced by the Crown and theDefence. That starts with forensic evidence obtained from materials that are clearly linked with the McCanns. Next, I evaluate Mr.Vader’s 2014 statement to the RCMP where Mr.

Vader denied he was in any way involved with the missing McCanns. My analysis thenexpands to review: 1. how Mr. Vader is potentially linked to the McCanns via evidence on the use and location of a number of telecommunicationsdevices, and the telephone calls and text messages sent and received by those devices; 2. Mr. Vader’s interactions with others in his social circle, many of whom are admitted drug users, and/or criminals; 3. other forensic and witness evidence; and 4.

Defence witnesses who testified as to their observations of the McCann vehicles in the vicinity of Minnow Lake. [21] From this evidence I proceed to make findings of fact, and then test whether those findings satisfy me that the Crown hasproven beyond a reasonable doubt that Mr. Vader killed the McCanns, and is therefore guilty of first degree murder, or a lesser andincluded offense. C. Positions of the Parties [22] What follows is an overview of the Crown and Defence positions. Unsurprisingly, they come to opposite conclusions. This isonly a

summary of the argument of the Crown and Defence positions and I will, in certain instances, expand on specific arguments asthis judgment develops. 1. The Crown [23] The Crown stresses it presents a simple narrative that is supported by the evidence. The Crown argues the McCanns cannotstill be alive. They had no reason to disappear, there were no bodies in the burnt RV, and the RCMP investigation has uncoveredevidence that suggests violence. Any other alternative is simply implausible. [24] The murders occurred on July 3 between 10:00 when the McCanns were seen at the St.

Albert Superstore and 14:14 when Mr.Vader used the McCann cell phone in an attempt to contact his ex-girlfriend Amber Williams. The Crown suggests the murders occurrednear Peers, Alberta, though the exact location is unknown. [25] Mr. Vader is a methamphetamine addict. [26] Much evidence links Mr. Vader to the McCanns. Crown witnesses David Olson and Myles Ingersoll saw Mr. Vader operatingthe McCann SUV on July 3, 2010. Mr. Vader directed Mr. Olson to purchase a phone card and Boxer Beer. He was agitated. Thesewitnesses had never seen Mr. Vader with the SUV before. Earlier that day Mr.

Vader had been driving a different vehicle, the F350truck, which had engine problems and needed oil. [27] On July 5, Mr. Vader appeared in Edmonton at the residence of Ms. Esther McKay-Crosswell [“Ms. McKay” or “EstherMcKay”] where Mr. Vader met with his sister Bobbi-Jo Vader, another ex-girlfriend Andrea Sexsmith, and Esther McKay. Mr. Vaderwas again driving the F350, had groceries consistent with the McCanns’ Superstore purchases, and firearms. Witnesses described Mr.Vader as thin and stressed. He was ‘on the run’. [28] Forensic evidence links Mr. Vader to the McCanns.

His DNA and a fingerprint were found in association with the SUV andits contents. Blood from the McCanns was located on objects in the SUV. The SUV’s key was found with the F350 which was operatedby Mr. Vader. This forensic evidence is reliable. There is no innocent explanation for Mr. Vader’s interaction with these items. There isno evidence of atypical transfers of biological material. [29] Blood from the McCanns located on the Superstore No Name Cans and the Boag’s hat has a spatter form that is inconsistentwith other biological evidence identified in the SUV.

This means the activities that caused the blood spatter occurred elsewhere, and theblood-contaminated objects were subsequently placed in the SUV. [30] Cell phone records, text message information, and witness evidence clearly established that Mr. Vader was using the McCannphone on July 3 at 14:14 onwards. Mr. Vader then continued his attempts to communicate with Ms. Williams using his own phone afterhe obtained subscription time via Mr. Olson. This was part of a larger pattern of communications attempts by Mr. Vader directed to Ms.Williams.

Earlier on July 3 he had used David Olson’s landline in an attempt to call Ms. Williams. [31] Mr. Vader had a criminal motive that brought him into contact with the McCanns: theft. His post-offense conduct was toconceal his criminal activity and an attempt to develop an alibi. That is evidence of guilt. The Crown also argues that the Court maydraw an inference of guilt from Mr.

Vader’s control of the McCanns’ recently stolen possessions (R v Kowlyk, (SCC),[1988] 2 SCR 59, 86 NR 195), and that a voluntary statement where an accused person does not respond to incriminating evidence hasprobative value: R v Ominayak, 2010 ABCA 152 at para 26, 487 AR 173. The Crown stresses that any alternative hypotheticalperpetrator must be based on a reasonable inference, and not just speculation: R v Grandinetti, 2005 SCC 5 at paras 46-47, [2005] 1 SCR27. [32] Mr.

Vader is logically guilty of first degree murder because when he confronted the McCanns he necessarily shot and killedone of the couple, and then executed the other one to eliminate a witness. That meets the planning and deliberation component of first

degree murder: R v Green (1987), 1987 ABCA 135 , 36 CCC (3d) 137, [1987] AJ No 561 (Alta CA). 2. Mr. Vader [33] Counsel for Mr. Vader made written and oral submissions. They have a central theme: that the Crown’s case lacks substanceand instead is based on hypothesis, speculation, and conjecture. Counsel for Mr. Vader framed this argument by reference to a 1980’shamburger advertising campaign, asking “Where’s the beef? Show us the beef. Because in a case like this that has been investigated nowfor in excess of five years there should be some beef.

And there isn’t.” The Defence submits the Crown’s case is riddled with evidentiarygaps that cannot be bridged by legitimate inferences. [34] The Defence identifies a number of these fatal gaps. One is that the death of the McCanns is unproven, and if they are dead,then there is no evidence of how, when, and where they died. There is no evidence Mr. Vader committed an unlawful act or that that actled to the McCanns’ death.

Counsel for the Defence argues that in a situation such as this the Court should apply the common law rulethat a person who has disappeared is presumed dead only after seven years have elapsed without contact. The Defence notes the sevenyear rule is only proof to a civil standard, and so the Crown has not possibly satisfied its obligation to prove the McCanns are deadbeyond a reasonable doubt. Instead, in oral submissions, counsel for the Defence suggested other possibilities. The McCanns’disappearance may be explained by kidnapping for ransom or human trafficking. [35] Mr.

Vader also highlights witnesses who place either Mr. Vader or the McCanns at locations inconsistent to the Crown’stheory. Sheri-Lynn Campbell and Kim Steffler testified that Mr. Vader was at Ms. Steffler’s house in Edmonton from July 2, 2010 untilaround 14:00 July 3. A number of other witnesses say they saw the McCanns alive and at Minnow Lake with their vehicles on July 4,2010. Further, the Defence argues that Mr.

Vader could not have destroyed the McCann RV because three witnesses, Bobbi-Jo Vader,Andrea Sexsmith, and Esther McKay saw him in Edmonton during the relevant time. [36] Sharp criticism is advanced on the testimony and reliability of key Crown witnesses David Olson and Myles Ingersoll.Counsel for the Defence characterized these individuals as conspirators who had concocted their evidence and did so for personal benefitand to curry favour with the RCMP: “[i]f deceit and treachery were cousins, they would look a lot like Mr. Ingersoll and Mr. Olson.” Mr.Olson is a particular target for criticism.

He fabricated evidence against Mr. Vader in response to Mr. Vader impeding access to Mr.Olson’s target of affection, Sheri Lynn Campbell. The Defence concludes that Mr. Olson’s evidence was “purchased” by the RCMP,selected, and rehearsed, and should not be accepted. Similarly, Mr. Ingersoll’s evidence “screams of RCMP and media influence”. Mr.Vader argues that Mr. Ingersoll was under the influence of drugs while he testified in court. [37] As for the forensic evidence, Mr.

Vader denies using a cell phone that was purchased by Andrea Sexsmith, and in any caseargues cell phone tower location data is less precise than the Crown claims. While the Defence admits Mr. Vader’s DNA was located inthe SUV, it notes the risks of contamination and transfer, and argues certain attempted matches between biological samples and Mr.Vader should be classified as inconclusive. Low starting amounts of DNA, procedural artifacts, and the “highly subjective nature of theinterpretation of electropherograms” means other matches identified by Crown witnesses cannot be relied upon to identify Mr.

Vader as asource of biological materials. The fingerprint evidence could be the result of Mr. Vader examining a beer can at a liquor store, or someother incidental contact. [38] The Defence argues little can be inferred from the blood, hole, and firearm residue on the Boag’s hat. Perhaps Lyle McCannhad used the hat for target practice. Perhaps the blood on the hat was the result of a nose bleed. A sneeze or cough could explain MarieMcCann’s biological material on the No Name Superstore product cans. [39] Little can be drawn from the McCann cell phone and its use.

An alternative suspect, Terry McColman, could have used it.Perhaps the cell phone was accidentally left somewhere by the McCanns. Any link between the phone and the McCanns’ disappearanceand Mr. Vader is purely conjecture. As for the text messages and other communications from that phone to Amber Williams, there is noproof Mr. Vader sent those. R v Sanchez, 2012 BCCA 469, 99 CR (6th) 180 indicates evidence must confirm who sent communications,and here that kind of data is absent. [40] Any vehicle identifications are subject to potential confusion.

In particular, many vehicles in Alberta generally resemble thetruck witnesses described Mr. Vader as driving. Counsel for Mr. Vader argues that the keys to the McCann SUV that were found in theF350 were manufactured and planted by the RCMP: ... The RCMP not only had the opportunity to plant the SUV key in the truck but, at that time, they also had the means (i.e. the SUV hadbeen in their possession for one month now and keys could have easily been cut) and a strong motive to tie the vehicle to Mr. Vader. [41] The Crown’s characterization of Mr. Vader as a drug addict is unfair. There is no evidence to support Mr.

Vader was usingdrugs in the relevant time. This was nothing more than bad character evidence. In any case Mr. Vader had no motive to rob the McCannsor steal their vehicles and other property. To suggest otherwise is pure speculation and conjecture. Similarly, the Crown’s argument thatMr. Vader was in financial difficulties is not supported by the evidence, only the unreliable David Olson said Mr. Vader was broke. IfMr. Vader wanted to make money by stealing motor vehicles he would have targeted a luxury car like a Mercedes Benz or a BMW.

Todo so on a busy highway is improbable. [42] Here, the so-called post-offense conduct is not linked to Mr. Vader, so it is irrelevant. Post-offence communication can eitherbe attributed to Mr. Vader’s being scared and confused as he became the focus of police investigation, and the discussions with jailhouseinformant Mr. Cardinal are nothing more than “jail talk” that cannot be taken seriously. [43] The Defence also stresses that Mr. Vader’s 2014 exculpatory statement to the RCMP must be reviewed in isolation to preventshifting the onus from the Crown to the Defence.

The same is true for an intercepted communication between Mr. Vader and his motheron October 16, 2011.

II. Law A. Standard of Proof [44] A court may only find an accused guilty if the Crown proves all elements of an offense beyond a reasonable doubt: R vLifchus, (SCC), [1997] 3 SCR 320 at paras 30-31, 39, 150 DLR (4th) 733. The Crown is not required to prove its caseto an absolute certainty. A reasonable doubt cannot be based on sympathy or prejudice, nor may it be imaginary or frivolous. Areasonable doubt must be based on reason and common sense, and on the evidence or absence of evidence. [45] This principle that I am required to evaluate whether Mr.

Vader is guilty beyond a reasonable doubt does not apply to other,auxiliary findings of fact. In R v Redford, 2014 ABCA 336 at para 13, 584 AR 294 the Court of Appeal framed this rule as: ... Individual items of evidence, however, are not to be weighed by the criminal standard. At the fact-finding stage, evidence must,individually, meet the test of proof on a balance of probabilities ... This includes even highly incriminating evidence, such as post-offence conduct: R v White, (SCC), [1998] 2 SCR 72 atpara 72, 161 DLR (4th) 590. B.

Homicide, Murder, and Manslaughter [46] Criminal Code, s 222 defines “homicide” as where a person directly or indirectly causes the death of another person by anymeans. A culpable homicide that draws criminal sanction is one where the death is caused by an unlawful act, criminal negligence, bythreats or deception, and frightening: Criminal Code, s 222(5). Culpable homicides are either murder, manslaughter, or infanticide:Criminal Code, s 222(4). Here, infanticide is irrelevant. A culpable homicide that is not a murder is manslaughter: Criminal Code, s 234. 1.

Murder [47] Murder is defined by Criminal Code, s 229: 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (

b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause hisdeath, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding thathe does not mean to cause death or bodily harm to that human being; or (

c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causesdeath to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. [48] Criminal Code, s 230 indicates that a culpable homicide is also a murder where a death is caused while committing a range ofoffences, and ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused toany human being, if (

a) he means to cause bodily harm for the purpose of (

i) facilitating the commission of the offence, or (ii) facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm; ... [49] Bodily harm has a low threshold, since it means “any hurt or injury to a person that interferes with the health or comfort of theperson and that is more than merely transient or trifling in nature”: Criminal Code, s 2. [50] Given the Crown’s theory of what happened to the McCanns, the relevant enumerated offenses identified in Criminal Code, s230 are Criminal Code, s 279 (kidnapping and forcible confinement), Criminal Code, 343 (robbery), and Criminal Code ss 433-434(arson). 2.

First Degree Murder [51] The Crown has charged Mr. Vader with first degree murder. The Criminal Code provides a number of bases on which aperson may be found guilty of first degree murder. Some are potentially relevant to this offence scenario: 231(2) Murder is first degree murder when it is planned and deliberate.

...

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of aperson when the death is caused by that person while committing or attempting to commit an offence under one of the followingsections: (

a) section 76 (hijacking an aircraft); (

b) section 271 (sexual assault); (

c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (

d) section 273 (aggravated sexual assault); (

e) section 279 (kidnapping and forcible confinement); or (

f) section 279.1 (hostage taking). ... [52] A “planned” murder is one that “was conceived and carefully thought out”: R v Nygaard, (SCC), [1989] 2SCR 1074 at para 18, 101 NR 108. Evidence of a “scheme” or “design” in place prior to the murder is required to conclude that a murderwas planned: R v Turningrobe, 2007 ABCA 236 at paras 11, 135, 296 DLR (4th) 434, dissent confirmed en toto 2008 SCC 17, [2008] 1SCR 454. [53] A “deliberate” murder is one that is “considered, not impulsive” (R v More, (SCC), [1963] SCR 522 at 534,41 DLR (2d) 380).

A deliberate murder is when a person “thinks about the consequences,” and carefully thinks out the act, rather thanproceeding hastily, rashly or impulsively: R v Jacquard, (SCC), [1997] 1 SCR 314 at para 26, 143 DLR (4th) 433.Deliberation does not involve a set minimum time period before a killing is committed, what matters is the act is not impulsive: R vGreen. [54] Circumstantial evidence may be used to establish the murder is planned and deliberate, but the finder of fact must be satisfiedthat the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R v Mitchell, (SCC), [1964] SCR 471 at 82, 46 DLR (2d) 384; R v Griffen, 2009 SCC 28, [2009] 2 SCR 42 at para 33.

The finder of fact isnot entitled to rely on irrational or unreasonable inferences drawn from the circumstantial evidence as a whole to convict or acquit: R vGriffin, at para 35. [55] The Crown’s theory is that Mr. Vader is guilty of murder because he necessarily would have killed the two McCanns insequence. The second killing would therefore have been a planned and deliberate act to eliminate a witness, which falls under CriminalCode, s 231(2). 2. Lesser and Included Offences [56] If I do not conclude Mr.

Vader is guilty of first degree murder, but that he did kill the McCanns, then he is either guilty ofmanslaughter or second degree murder. Given the Crown’s theory that Mr. Vader interacted with the McCanns for a criminal purpose,the central issues will be: 1. was Mr. Vader attempting to commit a kidnapping, robbery, or arson, 2. did Mr. Vader intend to commit bodily harm to facilitate one of those offences, and 3. did death ensue as a result? [57] If any of those three elements is not proven, then Mr. Vader is guilty of manslaughter. C.

Circumstantial Evidence [58] The parties agree this case is one that relies solely on circumstantial evidence.

When the Crown’s case is based solely oncircumstantial evidence, then an accused may only be found guilty where the only reasonable explanation that may be drawn from theevidence is that the accused perpetrated the offence. [59] While the exact language used to describe the legal test for proof via circumstantial evidence has undergone some evolutionover time, the modern Canadian form of this principle is provided in R v Griffin, at para 33, that: ... in order to convict, [the finder of fact] must be satisfied beyond a reasonable doubt that the only rational inference that can be drawnfrom the circumstantial evidence is that the accused is guilty. [60] More recently the Supreme Court of Canada in R v Villaroman, 2016 SCC 33 has confirmed this threshold.

Justice Cromwell(at para 32) indicates that “reasonable inference” is preferable over “rational inference”, but that both are valid ways to express thisthreshold (para 34). [61] Justice Cromwell continues to discuss the interplay of a “reasonable inference” of innocence, and “proven facts”: paras 35-54.The key is whether one or more reasonable inferences can be drawn from circumstantial evidence (para 35):

... If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonabledoubt. [62] Positive evidence is not required to establish a reasonable alternative theory: para 36. Instead, common sense and logic areused to evaluate the potential implications of evidence or a lack of evidence (paras 36, 38): ... A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence andthe absence of evidence, assessed logically, and in light of human experience and common sense. ...

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. [63] Reasonable doubt is not created by a “far-fetched possibility or fanciful conjecture” (R v Chin, 2014 ABCA 11 at para 42,566 AR 288; see also R v Villaroman, at para 37), nor is a “possible” alternative inference necessarily reasonable and rational (R vDipnarine, 2014 ABCA 328 at para 24, 584 AR 138; R v Villaroman, at para 37). [64] A related issue is the question of opportunity.

Some cases have revolved on whether an accused is the only individual whohad an “exclusive opportunity” to commit an offense: R v Imirch, (SCC), [1978] 1 SCR 622, 75 DLR (3d) 243. Ifcircumstantial evidence establishes that the only rational inference is that only one person has the opportunity to commit an offence, thenlogically that person must have committed the offense.

In R v Yebes, (SCC), [1987] 2 SCR 168 at 188-189, 43 DLR(4th) 424 the Court described that principle in this manner: It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused isprimarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused hadexclusive opportunity.

In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something lessthan exclusive opportunity may suffice. ... [65] However, another relevant form of circumstantial evidence is motive: that an accused has a reason to commit an offense. R vLewis, (SCC), [1979] 2 SCR 821, 98 DLR (3d) 111 reviews the interrelationship between motive and exclusiveopportunity, concluding that motive is always potentially relevant to a varying degree, but that where the Crown established exclusiveopportunity then motive is irrelevant (at 837-838).

The necessity of charging a jury on motive may be looked upon as a continuum, at one end of which are cases where the evidence as toidentity of the murderer is purely circumstantial and proof of motive on the part of the Crown so essential that reference must be made tomotive in charging the jury. The Crown's case against Tatlay was just such a situation. It was essential to establish motive and the trialjudge properly referred to motive in charging the jury in relation to Tatlay.

At the other end of the continuum, and requiring a charge onmotive, is the case where there is proved absence of motive and this may become of great significance as a matter in favour of theaccused. Between these two end points in the continuum there are cases where the necessity to charge on motive depends upon thecourse of the trial and the nature and probative value of the evidence adduced. In these cases, a substantial discretion must be left to thetrial judge.

In Imrich, for example, the evidence of exclusive opportunity was such that motive receded into the background. [66] In conclusion, a finder of fact may convict on circumstantial evidence where the only rational conclusion is either that: 1) viewing the evidence as a whole, inculpatory and exculpatory, the only rational inference is that the accused committed the offence, or 2) the only rational inference when viewing the circumstantial evidence as a whole is that the accused had the exclusive opportunity tocommit the offence. D.

Disreputable “Vetrovec” Witness Evidence [67] Certain persons who testified as witnesses have criminal records. Others admitted to being engaged in illegal activities, and/orthat they had a history of substance abuse. In R v Vetrovec, (SCC), [1982] 1 SCR 811 at 825, 830-831, 136 DLR (3d)89, Dickson J (as he then was) explained there is a danger of finding guilt based on the evidence received from a witness whose evidencemight be suspect because that person is an accomplice or a person “... of disreputable character.” [68] The solution to the risk of “Vetrovec witness” evidence is a warning to seek corroboration.

When Vetrovec witness evidenceis central to the Crown’s case then its confidence may be supported by confirmatory evidence: R v Kehler, 2004 SCC 11 at paras 19-20,[2004] 1 SCR 328. Consistent statements of a Vetrovec witness are not independent and corroborating confirmatory evidence: R vCouture, 2007 SCC 28 at para 83, [2007] 2 SCR 517. [69] R v Chandra, 2005 ABCA 186 at para 10, 367 AR 290 expands on the rationale behind the Vetrovec witness rule: ... the warning will be required where the evidence of the witness is central to the Crown’s case and the credibility issues are major.

Indeciding whether a Vetrovec warning was necessary in a particular case, it is important to remember why such a warning is suggested. The object of the warning is to ensure that the jury is aware of the dangers inherent in the evidence of certain witnesses, dangers of whichjurors may not otherwise be aware. The importance of the warning is substantial where the credibility issues may not be readilyascertainable by a juror unfamiliar with legal proceedings.

Most often this applies to the evidence of accomplices, who may be seeking tominimize their own involvement, and jail house informers, who often proffer evidence in the hope of gaining some personal advantage.In those circumstances, where the evidence is important to the Crown’s case, a warning is generally mandatory because the inherentfrailties of such evidence are not generally known to the ordinary member of a jury. Jurors may not be aware of a witness’s motivation to

lie for the purpose of covering up his or her own involvement or gaining personal favours. [Emphasis added.] [ 70 ] Justice Watts in R v Roks , 2011 ONCA 526 at paras 63 - 66 , 281 OAC 235 provides a useful

summary for application of the Vetrovec witness rule: ... a Vetrovec caution is an instruction about the essential characteristics of confirmatory evidence . Jurors are to be told that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused ...

The trier of fact is to look for confirmation from some other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to show that the accused committed the offence charged (the implicative quality or materiality requirement). ... The independence requirement insists that to be confirmatory, evidence must not be "tainted" by connection to the Vetrovec witness ... To satisfy the materiality requirement, confirmatory evidence need not implicate the accused ...

The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed the offence ...

Where the only issue in dispute is whether the accused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on the basis of the Vetrovec witness' evidence ... ... a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth ... [Citations excluded, emphasis added.] [ 71 ] As this passage explains, Vetrovec witness evidence may be accepted as reliable and credible under two circumstances: 1. where confirmed by independent evidence, or 2. where the finder of fact is satisfied that the Vetrovec witness is telling the truth.

III. Review and Findings in Respect to Forensic Evidence [ 72 ] I concentrate first on forensic evidence that the Crown entered in relation to items linked to the McCanns. [ 73 ] Much evidence was entered to establish continuity of the evidence collected and entered by the Crown. This was summarized in Trial Management Exhibit 2. I have reviewed that exhibit and given the accompanying testimony I am satisfied that continuity has been established for the evidence entered at trial, including forensic evidence.

I note that the Defence did not advance any specific complaints in relation to potential continuity defects, other than potential access by third parties to the F350. A. Forensic Evidence Recovered in the RCMP Investigation [ 74 ] As described in the background to this judgment, the RCMP investigation identified information that suggests something bad happened to the McCanns, and that Mr. Vader is potentially involved.

This evidence falls into several categories: 1. locations and items where property and/or forensic evidence linked to the McCanns was identified; 2. fingerprint evidence, 3. blood located on certain objects and areas, and 4. forensic DNA analysis from potentially relevant items. [ 75 ] As a brief overview, the Crown argues that the evidence it has entered establishes that Mr. Vader interacted with property that belonged to the McCanns, and that the McCanns were the subjects of some kind of violence. 1. Fingerprint Evidence [ 76 ] Fingerprint evidence was introduced by Corporal M.E. Donnelly and Corporal D.

Benko, who were qualified as experts in friction ridge analysis and fingerprint forensic identification. Their evidence and conclusions were essentially the same. [ 77 ] The McCann SUV was recovered by the RCMP on July 16, 2010. The exterior was too dirty for fingerprint analysis. However, various items were found inside the SUV and were examined.

One was an aluminum Boxer Beer can that was recovered from a drink holder cup on the middle front seat console. [ 78 ] Corporals Donnelly and Benko investigated that can, and identified a fingerprint on the Boxer Beer can that matched the right middle finger fingerprint of Mr. Vader. I have reviewed that match and accept their conclusion. The Crown’s witness evidence was not meaningfully challenged during cross-examination. While the fingerprint on the Boxer Beer can was only a partial print, Corporals Donnelly and Benko were confident this was a reliable match.

There were no inconsistencies between the Vader and Boxer Beer fingerprints. [ 79 ] While other fingerprint evidence was also introduced it is not directly relevant to the alleged offense scenario. 2. Firearms and Firearms Residue Evidence

[ 80 ] Chief Saskatchewan firearms officer Dean Dahlstrom was qualified as an expert in relation to firearms, tool marks, and the residues produced when a firearm is discharged. Mr. Dahlstrom is a forensic firearms examiner employed by the RCMP. His evidence focused on the Boag’s hat. He had examined that object and concluded that the brim of that hat had been perforated by a bullet that had passed through the top of the brim and exited out its bottom. The bullet’s trajectory was close to perpendicular to the plane of the brim.

The bullet was travelling in a stable manner, which implied it had not already hit something or otherwise altered its orientation from a ‘nose forward’ position. [ 81 ] The bullet that had caused this damage was fired in proximity to the hat, since the Boag’s hat exhibited firearms residue released by the discharge of a firearm. This residue was examined using a chemical-based visualization process. On cross-examination Mr. Dahlstrom explained that a more precise estimate of the distance between the firearm and the hat is only possible if the firearm and ammunition used is known.

In this case that information was not available. [ 82 ] Though this fact was not opined on by Mr. Dahlstrom, I conclude that the bullet damage to the Boag’s hat occurred sometime on or after July 3, 2010. I reach this conclusion on several bases. First, it is incongruous that a couple such as the McCanns, who are described as being neat and precise, would choose to wear clothing with bullet holes in them.

The Defence has advanced a fanciful alternative that the damage to the Boag’s hat was caused by the McCanns themselves using the hat, presumably at close range given the firearms residue, as a target for a small calibre pistol. This is very strange and an unlikely fate for the very headgear being worn by Lyle McCann in the Superstore before their disappearance. [ 83 ] Instead I conclude that it was not the McCanns who shot at and damaged the Boag’s hat. Someone else did that, and did so during the interval between July 3, 2010 and when the SUV was recovered. 3.

Blood Location and Stain Pattern Analysis [ 84 ] Blood was located at a number of locations and objects: • on the Boag’s hat, • on the Superstore No Name Cans, and • in the interior of the McCann SUV. [ 85 ] Several RCMP forensic investigators, Linda Rhodenizer, Pamela Marie Lilly, and Heather Janssens gave evidence on how potential blood stains were identified and the tests that were performed to confirm their character. This is a process that involves visual inspection of the subject, including microscopic examination, and chemical screening protocols.

I accept the evidence of these witnesses and their explanation of the results of their investigations. [ 86 ] Both the Crown and Defence called experts to provide opinions that interpreted what inferences may be drawn from the location, shape, and size of the blood stains identified on property associated with the McCanns. Much of their evidence and conclusions are similar. [ 87 ] RCMP Identification

Section member Sgt. Adrian D. Butler was qualified as an expert in the

interpretation and analysis of blood stain patterns. He explained this topic uses the size, shape, locations, and distribution of blood stains as a method to understand the physical events that caused the blood stain patterns. Since blood has a stereotypic composition its motion and behaviour outside the body follows predictable patterns based on blood’s physical properties and how blood responds to physical force and interaction with surfaces. [ 88 ] This expert explained that blood stains can be divided into a number of subtypes.

Drip stains are caused when blood drips off a source under the force of gravity and lands on a surface. A transfer stain is when an object with blood touches another object and blood is transferred during the contact. A spatter stain is when blood is subject to force that causes the blood to be ejected from a source.

The spatter category includes where a blood source is struck by an object, where a blood-covered object sheds blood as it moves, where blood escapes from a source under pressure, and where blood is spread via air flow, such as a cough. [ 89 ] Joesph Allan Slemko was qualified and provided expert evidence on blood stain analysis on behalf of the Defence. His explanations of the manner in which blood moves, spreads, and is transferred was essentially the same as that of Sgt. Butler. [ 90 ] Sgt.

Butler testified that he was unable to offer commentary on the mechanism or mechanisms that led to nine blood stains located on the SUV console armrest. The Boag’s hat showed many stains. Most were spatter stains, at least 25 on the bill of the hat, and almost 50 on the top, sides, and back of the hat. Three larger stains that could be either caused by spattering or dripping blood were located on the top of the hat. The adjustment strap at the back of the hat exhibited a transfer stain.

The pattern and size of the spatter stains was caused by force being applied to a source of liquid blood. [ 91 ] Four of the Superstore No Name Cans exhibited large numbers of spatter stains, 2 mm or less in diameter. The location, shape, and orientation of these stains was not consistent with a blood source in the vicinity of where the cans were located. Sgt. Butler concluded that these stains had been transferred to the No Name Cans at a different location, then the cans were relocated to the SUV and reoriented before the cans reached the location where they were recovered.

The patterns on the cans are an impact pattern type. The source of the blood was an impact event about 3-6 cm from the bottom of the cans. In each case only one face of a can was exposed to blood. This made it possible all the cans were contaminated with blood via a single spatter event.

The orientation of the blood spatter stains and the manner in which blood appears to have shifted under the force of gravity implies the cans were in a vertical position at the time the blood spatter occurred. [ 92 ] Beyond that, this expert was careful to stress he could not provide additional information and context, for example such as what source produced the transfer stain on the Boag’s hat, [ 93 ] Sgt. Butler described the blood in the food can stains as uniformly diluted, which could be explained in a number of ways:

1. the blood was mixed with another liquid, and then the combined liquid was struck by an object causing the spatter pattern; 2. the cans were subjected to rain, but in that case there should have been flow patterns, or 3. the blood was combined with cerebral fluid. He had previously encountered diluted blood and based his conclusion on that resemblance. [ 94 ] Joesph Slemko was qualified and provided expert evidence on blood stain analysis on behalf of the Defence. His explanations of the manner in which blood moves, spreads, and is transferred is essentially the same as those of Sgt. Butler.

He too concluded that some of the stains on the Boag’s hat were caused by dripping blood. However, Mr. Slemko proposed a different explanation for the much smaller blood stains on that hat, and suggested these were satellite spatters, small secondary blood spatters that may be produced when a drop of blood lands on an uneven surface. Part of Mr. Slemko’s evidence was video demonstrations of dropped blood impacts into denim cloth.

In his opinion it is possible that the blood on the Boag’s hat was the result of three large drops which fell onto the hat and then ejected satellite blood spatter over the remaining hat surface. On cross-examination Mr. Slemko stresses that whatever else, the blood on the Boag’s hat had come from a source above the cap of the hat, and not across from a side. However, this could be from a variety of mechanisms rather than simple passive dripping. He also acknowledged that satellite spatter is highly dependent on the kind of cloth or material on which the blood lands. [ 95 ] In Mr.

Slemko’s opinion the explanation that Sgt. Butler had provided for the stain pattern observed on the No Name Cans was a possibility. He also agreed the blood was diluted, but from his field experience was skeptical of the cerebral fluid explanation. [ 96 ] As for the blood located on the SUV console, Mr. Slemko agreed it was possible that a person standing at the window of the SUV might sneeze or cough into the vehicle, and that would account for the blood located on the centre station arm rest.

He thought the same mechanism could be responsible for the stains located on the No Name Cans. [ 97 ] In its cross-examination of Sgt. Butler the Defence argued that the Crown’s investigation and evidence was defective because the RCMP investigators had not tested more or all putative blood spots to establish these were blood rather than some other material. I put no weight on and reject these allegations. It is logical to extrapolate a whole from representative parts, and that is exactly what occurred.

For example, it was plain to see that each of the blood-stained No Name Cans showed locations of a similar colour, and whose pattern formed a coherent whole. The fact that a particular drop may not have tested positively for blood, or was not tested is of little consequence when other locations were identified as blood by forensic procedures. Mr. Slemko explicitly adopted this “common sense and objective approach” in his cross-examination. [ 98 ] I also categorically reject the Defence’s allegation that certain stains which the Crown identified as blood were something else, such as tomato juice. Sgt.

Butler was extensively cross-examined on potential alternative materials that could test positive for blood, and whether Sgt. Butler could differentiate between these alternative materials and blood. I see little relevance in this as an alternative basis to explain the putative blood stains, particularly since the tested objects were examined by a number of qualified experts who conducted standardized tests that detected blood. The Defence’s proposed alternatives are empty hypotheses and unsupported by evidence. Mr.

Slemko did not challenge the blood stain classification by the Crown, or suggest alternative materials for the various stains. The fact he did not do so reinforces my conclusion to reject the alternative material hypothesis. [ 99 ] What is clear from the evidence of the two blood stain experts is that their ability to reconstruct what had led to the blood staining was hampered by the fact some of the items, the Boag’s hat and the cans, had been recovered in a location that was not the one where those objects had been initially exposed to blood.

The absence of context meant both experts had to acknowledge that while they may prefer a particular explanation for the observed blood staining, that there are other alternative explanations. For example, a sneeze could have transferred material to the cans. [ 100 ] Neither expert could with any confidence explain the blood dilution. Some of the potential alternatives are much more sinister than others.

The larger stains on the Boag’s hat could be caused by blood drops falling from above, or drops ejected into the air by an unidentified mechanism. [ 101 ] The Defence admits the two McCanns are the sources for blood on the No Name Cans and the Boag’s hat. I draw the following conclusions from the blood stain evidence: sometime on or after July 3, 2010 1. blood from Marie McCann was sprayed by an impact onto some of the No Name Cans purchased by the McCanns on July 3, 2010.

The point of the impact was close to the cans, and 2. blood from Lyle McCann was both dropped on and sprayed across the top of the Boag’s hat. [ 102 ] Both blood stain experts pointed to large spots of blood on the Boag’s hat and indicated these appeared to be drops of blood landing on the hat in a manner perpendicular to the ‘horizontal’ orientation of the hat. I accept that is the more likely explanation for the larger drops. As for the other small spatters, the experts make different suggestions. I prefer the scenario advanced by Sgt.

Butler, but think it is entirely plausible that at least some of the smaller spatters are satellite stains as suggested by Mr. Slemko. However, after careful review of the spatter locations I conclude that at least some of these are caused by a mechanism other than satellite staining, in particular given the association of small spatters to the bullet hole. I therefore reject the alternative argument that the large number of blood spatter locations on the Boag’s hat are only a consequence of a few large drops landing on the hat, and then fragmenting.

The pattern visible simply does not match that mechanism, and though Sgt. Butler very properly agreed that secondary satellite stains could account for some of the observed pattern, I accept his conclusion that mechanism alone cannot explain the state of the hat, as a whole. 4. Carpet Analysis [ 103 ] Evidence was tendered concerning a piece of carpet that was located near the SUV and on the west side of the mobile home located on the Sampson-Roader property. This carpet was compared with samples that were recovered from the McCanns’ residence.

[ 104 ] RCMP expert Douglas Orr reported the two carpets were potentially from a common source, however the two carpet sources did not contain or exhibit the kind of characteristics to conclude a positive link between the two carpet pieces. [ 105 ] In its argument the Crown did not rely on the carpet expert evidence and I place no weight on this information. B. DNA Evidence [ 106 ] A major point of controversy in this trial was how to interpret forensic DNA evidence developed by the Crown, and the implications of that data. Both parties entered expert evidence on this subject. [ 107 ] The Crown argued the procedures involved are well established and the

interpretation of the product evidence is reliable. The Crown’s experts were forthright and knowledgeable. The Defence expert, Dr. Randell Libby, argued certain DNA evidence should be given no weight because it was an inadequate or inconclusive match. The Crown submits Dr. Libby was not candid. [ 108 ] The Defence admitted Mr. Vader’s DNA was located on some of the McCanns’ property, but argued an accidental or innocent transfer of biological material can explain that. Beyond that, Mr.

Vader argues some alleged ‘matches’ are actually an inconclusive result. [ 109 ] The theoretical and practical context of DNA forensics was not in dispute, but much evidence was tendered by both parties to better explain the technical aspects of this subject. The disagreement raises two questions: 1. could contamination or innocent interactions account for the detection of Mr.

Vader’s DNA in incriminating contexts, and 2. what threshold of reliability and linkage is required before forensic DNA evidence matches are probative. [ 110 ] During the evidence phase of the trial the Defence made an application in a voir dire that I order the Crown call as witnesses several individuals who had conducted forensic DNA analyses of human hairs. I refused that application in R v Vader , 2016 ABQB 405 , as I concluded the Crown had no obligation to call witnesses who could not provide any relevant evidence. 1.

Overview of Forensic DNA Analysis [ 111 ] Unlike many criminal matters where forensic DNA evidence advanced by the Crown is accepted without challenge, in this case the Defence vigorously attacked all aspects of the RCMP’s forensic investigation of biological materials, their collection, sampling, processing, analysis, the qualifications of personnel involved, and the ultimate results obtained. Because of that broad attack, and the Defence calling its own forensic DNA expert, much evidence was received that had a technical nature.

This means to properly evaluate the expert testimony and conclusions this decision must first carefully discuss how biological materials are used in forensic identification, and the unique language and undisputed facts about how living things store information. a. The Theoretical Basis for Forensic DNA Analysis [ 112 ] Forensic DNA analysis is a well-developed and generally accepted method to match biological samples to their source or sources. Forensic DNA procedures can with high precision and reliability identify the specific person who was the source of a DNA sample.

The Crown and Defence experts commented to varying degrees on the science and technology involved in forensic DNA analysis. In my view their explanations of the theory and process of forensic DNA analysis were consistent, so the

summary that follows is a synthesis of that evidence. [ 113 ] DNA or deoxyribonucleic acid is an information storage molecule found in all living things. DNA is a zipper-like double- stranded molecule where information is encoded in a series of subunits called bases: adenine, cytosine, guanine, and thymine. Each base pairs with a complimentary base in the opposite DNA strand: adenosine with thymine, cytosine with guanine.

This means the information on either strand of the molecule can be used to infer the data content of the other antiparallel strand. [ 114 ] DNA carries the information used to assemble the molecules found in an organism, and provides the unique features of an organism. Cells in the human body contain DNA in two locations, in the nucleus and the mitochondria. A molecule of DNA is called a chromosome. Humans have 46 chromosomes in the nucleus, and multiple but identical copies of a smaller chromosome in the mitochondria.

The nuclear chromosomes exist in 23 pairs and each pair contains generally the same kind of information. One member of each of the pairs is provided by each parent. That means that sperm and ova contain only one chromosome of each parental chromosome pair, or half the overall genetic information of each parent. [ 115 ] The one exception to the chromosome pair rule is that a human male has one pair of chromosomes that carry very different information, the X and Y sex chromosomes. These two chromosomes have no information in common.

A female has two X chromosomes, and they have the same general information, just like the other 22 chromosome pairs. [ 116 ] Certain parts of an organism’s DNA are largely consistent among individuals who belong to the same species. Other parts of the DNA may be different. Some differences encode physical attributes, also known as the “phenotype”, of an individual. For example, the different human blood types are the result of different variations in a part of the human DNA that encodes a blood cell protein. The same is true for eye colour.

Other kinds of person-to-person variations do not involve an area that encodes information, but instead are found in areas of a chromosome that include many short DNA sequences, that repeat over and over. These “short tandem repeat” [“STR”] regions are very helpful for forensic DNA analysis since they vary substantially, person to person. These STR regions also do not encode any information that affects a person’s phenotype. DNA forensic analysis takes advantage of the variations in STRs by measuring the size of a piece of a chromosome that includes these variable repeat regions.

This piece of a chromosome is called an allele. Because different people will usually have different sized areas of these chromosomes, when two biological samples have the same sized STR alleles then that suggests the two biological samples come from the same source. If the sizes of two variable length chromosome alleles

are different, then that indicates these alleles have different biological sources. [ 117 ] There is a complication to this comparison process. Each pair of chromosomes (except for the X and Y chromosomes) contains the same alleles, but those pairs of alleles potentially exist in different variant forms. That means when an investigator measures the size of an allele from a human biological sample, the investigator will usually detect two different sized alleles from the same source. That is because the two chromosomes which carry that allele probably have different sized variable STR regions.

The two chromosomes carried by an individual came from different source individuals: one from the mother, one from the father. In combination this explains the natural variability in STR length in the human population. [ 118 ] Where two alleles are different the individual is “heterozygous” for that allele. However, sometimes chance leads to an individual carrying two variable short tandem repeat regions that just happen to be the same size. A person with this characteristic, who is “homozygous” for an allele, will appear to have only one version of that particular allele.

In fact there are two alleles, each on its own chromosomes, but the alleles just happen to be the same variant. [ 119 ] This information can also identify the gender of the source of a biological sample. If an investigator looked for an allele located on the X chromosome, and found two different sized pieces of DNA, then that would mean the source of the DNA is very likely female.

A biological sample that has an allele located on the Y chromosome must be from a male source. [ 120 ] The number of different sized alleles detected in a biological sample can also tell an investigator whether there is biological material from multiple sources. An investigator who examines DNA from a sample and finds four alleles of different sizes can fairly conclude this probably means the biological sample, like blood, is a mixture that came from two (or more) different individuals. [ 121 ] In

summary, DNA forensic analysis is an exercise in matching. One takes DNA from known persons, and measures the size of variable length STR alleles in those individuals. The investigator also takes DNA from unknown or “question” forensic biological material sources, like a blood stain, a hair, or a semen sample, and examines the length of the variable size DNA alleles from those sources. If an unknown and a known source match, that indicates the forensic biological material sample probably came from the matching known source.

Similarly, if the allele sizes are different, then that excludes a known individual as a potential source of the forensic sample. A single difference in allele sizes between two profiles means the biological source of the unknown and known samples are different. [ 122 ] In this case the forensic DNA evidence involves analysis of whether certain forensic samples originate from three key known individuals: Lyle McCann, Marie McCann, and Travis Vader.

This analysis is a question of whether DNA extracted from biological material located at various crime scene sources matches the allele sizes of these three individuals, in part, in whole, or in combination. b. Forensic DNA Analysis Methodology [ 123 ] The procedures used in forensic DNA analysis and specifically in this case are well-developed, understood, and follow standardized procedures with built-in safeguards.

These safeguards are necessary because forensic DNA analysis is very sensitive, and careless manipulation of items may mean biological materials from one location, sample, or person contaminate others. The Crown witnesses described many steps and processes used to minimize these possibilities, such as using different rooms for known vs unknown samples, ‘clean room’ procedures, and keeping evidence sources separate and contained.

Items and information relating to items are tracked by a software laboratory information management system. [ 124 ] Many of the steps in the forensic DNA analysis process are automated or semi-automated, but the investigators in this case had alternative manual procedures available, where that was necessary or appropriate. For example, the hemastix procedure to test for blood inhibits automatic DNA analysis, but not manual approaches. [ 125 ] The first step in forensic DNA analysis is to isolate DNA from a source. A source can be a sample from a person, such as a blood sample, a mouth swab, or body tissues.

DNA can also be collected from surfaces, from blood stains, from clothing, and generally most things that contact a person. That is because humans continually shed their DNA in skin flakes, hairs, and body fluids. These test sources can also be evaluated for fluorescence, which is a feature of some biological materials, and for the presence of specific biological material types, such as blood and semen.

A variety of techniques exist to remove DNA from physical substrates and then concentrate the DNA for analysis. [ 126 ] Once DNA is isolated from a source it is “amplified” using a process called polymerase chain reaction or PCR. “Amplification” causes an increase in the amount of DNA by a copying process. PCR is a procedure where sample DNA is mixed with other materials and then heated and cooled repeatedly. This results in an enzymatic chain reaction that causes certain areas of DNA to be copied. The parts of DNA which are amplified is determined by the PCR primers present in the reaction mixture.

This copying process is exponential, doubling the number of pieces of the amplified DNA at each cycle. For forensic DNA analysis the PCR mixtures are designed to amplify only the chromosome areas that contain variable length STR alleles. The result is after many heating and cooling cycles the amplified DNA makes up the vast majority of the end product. The mixture of molecules used in a PCR reaction also causes the amplified products to have different fluorescent labels attached to the product DNA pieces.

These fluorescent labels glow a certain colour when illuminated by a laser, and the glow can be measured to (indirectly) determine how much DNA is present. [ 127 ] The DNA produced by the PCR amplification process is then placed in a capillary electrophoresis apparatus that separates DNA pieces by size via passing those DNA molecules through a capillary, a very long thin tube, and measures the quantity of DNA at various sizes. DNA length measurements are precise, and capable of counting individual base pairs, the informational subunit of DNA. The quantity of DNA is measured via observing fluorescence.

Much of this separation, sizing, and concentration detection process is automated, but supervised. The product of this process is called an electropherogram, which is essentially a graph of DNA quantity vs DNA molecule size. Since the DNA length measurements are very precise the length of the observed DNA piece can be used to identify the number of copies of a short tandem repeat in a given variable region. For example, the D3 allele location has known variations ranging between 12 to 19 repeats.

[ 128 ] These allele profiles are then compared to determine whether or not amplified alleles of the same or different sizes are present. Reagent blanks and positive and negative controls assess possible issues of contamination or procedure error. [ 129 ] The experts here agreed that the PCR amplification process is something of a double-edged sword. On the one hand it permits analysis of very small starting quantities of DNA. That means even small or damaged biological samples can potentially produce a full allele size profile.

However, that exquisite sensitivity increases the risk of contamination that then confuses forensic DNA analysis results, because even a small inadvertent transfer of biological material can result in an apparently valid DNA allele profile. [ 130 ] This also means that when two biological sources are mixed, it is not safe to presume that the relative quantity of DNA contributed by each source will be reflected in the final combined profile.

Quirks of the amplification process and partially degraded DNA may also result in amplification products that have unexpected characteristics, like having one allele appear in two very similar sized variations. As DNA degrades it breaks into smaller and smaller pieces. That means that allele variations which are longer will likely disappear first. [ 131 ] The exponential copying that occurs in the amplification process also means the quantity of DNA of a given post-amplification allele is a weak indicator of how much DNA there was to start. c.

Statistical Analysis of Amplified Variable DNA Allele Profiles [ 132 ] Links between biological material sources and donors requires matching detected variable STR repeat alleles. However, the particular allele variations can be used to determine the possibility that an alternative source could have contributed the biological material in an unknown sample.

This variable is usually described as a ratio: what are the odds that a random third party donor would share the observed unknown allele profile. [ 133 ] To be explicit this means that forensic DNA analysis answers two questions: 1. does an unknown sample have a DNA allele profile that is compatible with a known sample, vs 2. what is the probability that another, random individual coincidentally would provide a DNA allele profile that matches the unknown.

These two questions can be simplified: does an unidentified biological material source share a STR allele profile with a known person, and what does that prove? [ 134 ] In this case DNA was recovered from a blood stain on the arm rest in the McCann SUV. The STR alleles recovered from the blood stain are also alleles present in Mr. Vader’s DNA. That means Mr. Vader is potentially the source for that blood stain. But what does that prove? [ 135 ] Population geneticists have developed databases of how often certain STR alleles appear in different ethnic populations.

Certain presumptions are involved in developing these databases but they are well understood and based on known genetic and biological principles. These data sets can be used to calculate the odds a particular combination of allele variants exist in that population. The RCMP use a Canadian Caucasian population database by default. [ 136 ] While the calculation of these odds was conducted using a software program called Star Porter that had been developed by the RCMP, the underlying principle involved in this probability calculation is very simple: one multiplies the probabilities of any given observed allele.

When one uses a set of nine allele pairs, which is what occurred in this trial, the odds of a random but spurious match are very low. [ 137 ] For the arm rest blood stain the RCMP investigators calculated the odds of a random Canadian Caucasian person carrying the same STR allele profile as the unknown biological sample donor was one in three trillion. In any practical sense, that means the chances that someone other than Mr. Vader being the sample donor are trivial. [ 138 ] There are potential complications, such as where two alternative sources are related, or are identical twins.

But in general, matching between a pattern of a known and an unknown DNA STR allele pattern produces high confidence that the donor of the known biological material sample also was the source of the DNA located in the unknown biological material sample. [ 139 ] Incomplete DNA information from an unknown sample is still relevant when the partial data is a good match. This is analogous to an incomplete licence plate. If a camera observes a motor vehicle used in an offense has a certain license plate then that is strong evidence that a specific automobile was involved in the illegal activity.

This is analogous to a perfect DNA allele profile match. [ 140 ] However, a partial licence plate, for example that records four of six characters, is still highly relevant because that data vastly narrows the range of candidate vehicles in question. The partial licence plate can be critical and determinative information when coupled with other data, like automobile type and colour. Separately these pieces of evidence have much less probative effect than when combined. [ 141 ] The same is potentially true for forensic DNA evidence.

For example, investigation of a ‘date rape drug’ sexual assault scenario may lead to a finite list of suspects. Even an incomplete STR allele DNA profile derived from degraded DNA can be a powerful tool in this context, if for example one of the unidentified perpetrator’s DNA alleles matches only one potential rapist. That eliminates other possible offenders. d. Conclusion - DNA Forensic Analysis [ 142 ] There is no question that forensic DNA analysis is a well-established, accepted, and valid scientific process. It is very

frequently used in criminal and civil proceedings and is considered a definitive method of identification. Nevertheless, like anythingwhich involves living things, forensic DNA evidence has potential complications and subtleties. 2. Crown Experts and Technical Witnesses [143] Three Crown expert witnesses were qualified to provide forensic DNA evidence. Vashni Skipper was qualified as a forensicbiologist with expertise in the analysis of forensic DNA evidence and identification,

interpretation, and comparison of biologicalmaterials using those techniques. Vivian Mohrbutter, another forensic biologist, was qualified in the examination of exhibits forbiological materials, PCR methodologies, and

interpretation of forensic DNA data, including the probabilities of an unidentified thirdperson being an alternative match for an unknown profile. The third expert, Janice Rae Lyons, was qualified as a scientist with expertisein forensic DNA analysis and

interpretation, comparisons, and statistical analysis of forensic DNA profiles. [144] Ms. Skipper, Ms. Mohrbutter, and Ms. Lyons developed the DNA allele profiles for the known and unknown sources, andevaluated electropherograms to identify allele profiles. [145] A number of Crown witnesses were forensic DNA technicians who handled exhibits, conducted DNA sampling procedures,conducted PCR amplification procedures, and capillary electrophoresis analyses: Christine Downs, James Cameron Scott, KellyColoumbe, Jasmine Robitaille, Mandeep Kahlon, Brett Stefura, Pamela Lilly, and Healther Maria Janssens.

These witnesses describedtheir sampling and manipulation of items seized in the investigation of the McCanns’ disappearance. Their evidence and explanationswere not challenged. [146] Mr. Vader made an application on April 5, 2016 that I order the Crown call two witnesses, Dr. Amarjit Chahal and CurtisHildebrandt, both who were employees of a private DNA forensic laboratory that processed a number of hair samples recovered duringthe RCMP investigation. I refused the Defence appli

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