Court of Queen's Bench of Alberta Citation: R v Vader, 2016 ABQB 505 Date: Docket: l 30781800Ql Registry: Edmonton Between: Her Majesty fhe 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 I. The Cro\vn ....................................................................................................................... 8 2. Mr. Vader ......................................................................................................................... 9 Page:2 II. Law ...............................................................:................................................... .-.................. I I A. Standard of Proof ..................... ......................................................................................... 11 B. Homicide, Murder, and Manslaughter .............................................................................. 11 J. Murder............... ............................................................................................................. 12 2. First Degree Murder ....................................................................................................... 12 2. Lesser and Included Offences ........................................................................................ 13 C. Circumstantial Evidence ................................................................................................... 14 D. Disreputable .. Vetrovec" Witness Evidence ...................................................................... 15 Review and Findings in Respect to Forensic Evidence .................................................... 17 III. A. Forensic Evidence Recovered in the RCMP Investigation ............................................... 17 I. Fingerprint Evidence ...................................................................................................... 17 2. Fireanns and Fireanns Residue Evidence ...................................................................... 18 3. Blood Location and Stain Pattern Analysis ................................................................... 18 4. Carpet Analysis .............................................................................................................. 22 B. DNA Evidence .................................................................................................................. 22 I. 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. A. Mr. Vader's Statements .................................................................................................... 47 B. Relevant Law .................................................................................................................... 48 C. V. Preliminary Issue· W(D) Analysis of Vader's Exculpatory Statements .......................... 47 I. W(D) Procedure ............................................................................................................. 48 2. Witness Credibility and Reliability ................................................................................ 48 W(D) Steps One and T\vo ................................................................................................. 49 Additional Evidence .............................................................................................................. 50 Page:3 A. Telecommunications Evidence - Overview ...................................................................... 51 B. Cell Phone Location and Usage Data ............................................................................... 52 I. Cell Phone Location Data .............................................................................................. 53 2. Cell Phone Usage Data .................................................................................................. 60 3. Other Telecommunications and Cell Phone Related Evidence ..................................... 6 I Mr. Vader's Associates - Credibility and Reliability Reviews ........................................ 6 I B. l. David "Bandana Dave" Olson ....................................................................................... 62 2. Myles Ingersoll .............................................................................................................. 66 3. · Amber Williams .......................................................................:..................................... 69 4. Andrea Saddleback-Sexsmith ........................................................................................ 7 I 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 I. F350 Witnesses .............................................................................................................. 83 2. The Klahn Truck ............................................................................................................ 85 3. Boxer Beer ..................................................................................................................... 85 4. Tncidental 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 Bum the Klahn Truck? .......................................................................... 99 E. Cell Phone Infonnation - Statements for the Truth of Their Contents ........................... I DO I. 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, 20 I 0 .................................. I05 Page:4 4. Mr. Vader's Illegal Activities .............. .......... .................... ......................................... . I 05 F. Disreputable Character Evidence I Similar Fact Evidence ........................... .................. I 05 G. Defence Theories .............................. ............... ...................... ............. ............................ 108 H. I. 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 Post-Offence Conduct ...................... :.............................................................................. l 13 VJ. 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 Jllegal Purposes? ....... 120 C. Issue #3 - Was Mr. Vader Involved With the McCanns' Property? ............................... 121 D. Issue #4 - Were the McCanns Victims of Violence? ............................ .......................... I 23 E. Mr. Vader Committed Homicide .................................................................................... I24 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 ................................................. ........................................ ................................ I 28 IL 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 Page: 5 I. Introduction [ l] 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 I0. 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 l 44(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 Y.;as 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 detennine 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 20 I0 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 579.1 also accept the nonhearsay 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. 1 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: I. The McCanns had frequently holidayed with their RV and SUV. Page:6 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 I 0 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 Cult us Lake for July 8-22, 20 I0. 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 I 0, 20 I 0. 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, 20 I 0. Receipts for their purchases made that day show they left the groceteria at or shortly after I 0:08. [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 detennined. Immediate examination of the RV by the firefighters and subsequent forensic examination of the transported RV remnants did not detect any human remains. [I I] The McCann SUV was subsequently located on July 16 on a property (the "SamsonRoader 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 20 I 0 . Page: 7 The SUV had been driven hard into a stand of trees. Its exterior was djrty. 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 Sl. Albert Superstore on July 3, 20 IO at 10:08. [13] Two baseball hats were located in the SUV. One had the text "Vopal<'' (the '·Vopak hat"], while the other had a logo and text for Boag's Draught [the "Boag's hat"J. 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 numberoflocations in the SUV, on the Boag's hat, and on the Superstore '·No Name'' cans ("No Name Cans"). [l 6] 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. [18) The Case Against Mr. Vader Mr. Vader is charged with two counts of first degree murder: Count I: On or about the 3rd day of July, 20 10, 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, 20 I 0, at or near the Hamlet of Peers, in the Province of Albert.a, 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 that can be drawn from that evidence: Mr. Vader killed the McCanns. The Defence argues the necessary standard of proof has not been met Page: 8 (20) Since this is a circumstantial evidence case I review in detail the various forms of evidence introduced by the Crown and the Defence. That stans with forensic evidence obtained from materials that are clearly linked with the McCanns. Next, I evaluate Mr. Vader's 20 I4 statement to the RCMP where Mr. Vader denied he was in any way involved with the missing McCanns. My analysis then expands to review: l. how Mr. Vader is potentially linked to the McCanns via evidence on the use and location of a number of telecommunications devices, 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 has proven beyond a reasonable doubt that Mr. Vader killed the McCanns, and is therefore guilty of first degree murder, or a lesser and included 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 is only a summary of the argument of the Crown and Defence positions and I will, in certain instances, expand on specific; arguments as this judgment develops. I. The Crown (23) The Crown stresses it presents a simple narrative that is supported by the evidence. The Crown argues the McCanns cannot still be alive. They had no reason to disappear, there were no bodies in Lhe burnt RV, and the RCMP investigation has uncovered evidence thal suggests violence. Any other alternative is simply implausible. [24J The murders occurred on July 3 between l 0:00 when the McCanns were seen at the St. Albert Super5tore 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 occurred near Peers, Alberta, though the exact location is unknown. [25) Mr. Vader is a methamphetarnine addict. [26) Much evidence links Mr. Vader to the McCanns. Crown witnesses David Olson and Myles Ingersoll saw Mr. Vader operating the McCann SUV on July 3, 2010. Mr. Vader directed Mr. Olson to purchase a phone card and Boxer Beer. He was agitated. These witnesses had never seen Mr. Vader with the SUV before. Earlier that day Mr. Vader had been driving a different vehicle, the F350 truck, which had engine problems and needed oil. [27] On July 5, Mr. Vader appeared in Edmonton at the residence of Ms. Esther McKayCrosswell ["Ms. McKay" or "Esther McKay"] where Mr. Vader met with his sister Bobbi-Jo Vader, another ex-girlfriend Andrea Sexsmith, and Esther McKay. Mr. Vader was 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'. Page:9 [28] Forensic evidence links Mr. Vader to the McCanns. His DNA and a.fingerprint were found in association with the SUV and its contents. Blood from the McCanns was located on objects in the SUV. The SUV's key was found with the F350 which was operated by Mr. Vader. This forensic evidence is reliable. There is no innocent explanation for Mr. Vader's interaction with these items. There is no 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 fonn that is inconsistent with other biological evidence identified in the SUV. This means the activities that caused the blood spatter occurred elsewhere, and the bloodcontaminated 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 McCann phone on July 3 at 14:14 onwards. Mr. Vader then continued his attempts to communicate with Ms. Williams using his own phone after he 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 to conceal his criminal activity and an attempt to develop an alibi. That is evidence of guilt. The Crown also argues that the Court may draw an inference of guilt from Mr. Vader' s control of the McCanns' recently stolen possessions (R v Kow/yk, [1988) 2 SCR 59, 86 NR 195}, and that a voluntary statement where an accused person does not respond to incriminating evidence has probative value: R v Omi11ayak, 2010 ABCA 152 al para 26, 487 AR 173. The Crown stresses that any alternative hypothetical perpetrator must be based on a reasonable inference, and not just speculation: R v Grandinetti, 2005 SCC 5 at paras 46-47, [2005] I SCR 27. [32] Mr. Vader is logically guilty of first degree murder because when he confronted the McCanns he necessarily shot and killed one 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), 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 substance and instead is based on hypothesis, speculation, and conjecture. Counsel for Mr. Vader framed this argument by reference to a J980's hamburger advertising campaign, asking "Where's the beef? Show us the beef. Because in a case like this that has been investigated now for in excess of five years there should be some beef. And there isn' t." The Defence submits the Crown's case is riddled with evidentiary gaps 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 act led to the McCanns' death. Counsel for the Defence argues that in a situation such as this the Court should apply the common law rule that a person who has disappeared is presumed dead only after seven years have elapsed without contact. The Defence notes the seven year rule is only proof to a civil standard, and so the Crown has not possibly satisfied its obligation to prove the McCanns are Page: 10 dead beyond 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's theory. Sheri-Lynn Campbell and Kim Steffler testified that Mr. Vader was at Ms. Steffler's house in Edmonton from July 2, 2010 until around 14:00 July 3. A num ber of other witnesses say they saw the McCanns alive and at Minnow Lake with their vehicles on July 4, 20 l 0. Further, the Defence argues that Mr. Vader could not have destroyed the McCann RY because three witnesses, Bobbi-Jo Vader, Andrea Sexsmith, and Esther McKay saw him in Edmonton during the relevant time. (36] Sharp criticism is advancetj 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 benefit and 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. [3 7] As for the forensic evidence, Mr. Vader denies using a cell phone that was purchased by Andrea Sexsmith, and in any case argues cell phone tower location data is less precise than the Crown claims. While the Defence admits Mr. Vader's DNA was located in the 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 the interpretation of electropherograrns" means other matches identified by Crown witnesses cannot be relied upon to identify Mr. Vader as a source of biological materials. The fingerprint evidence could be the result of Mr. Vader examining a beer can at a liquor store, or some other incidental contact. [38] The Defence argues little can be inferred from the blood, hole, and firearm residue on the Boag's hat. Perhaps Lyle McCann had 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 Marie McCann'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' disappearance and Mr. Vader is purely conjecture. As for the text messages and other communications from that phone to Amber Williams, there is no proof 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 the truck witnesses described Mr. Vader as driving. Counsel for Mr. Vader argues that the keys to the McCann SUV that were found in the F3 50 were manufactured and planted by the RCMP: Page: 11 ... 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 had been in their possession for one month now and keys could have easily been cut) and a strong motive to tie the vehicle lo Mr. Vader. [4 I] The Crown's characterization of Mr. Vader as a drug addict is unfair. There is no evidence to support Mr. Vader was using drugs in the relevant time. This was nothing more than bad character evidence. In any case Mr. Vader had no motive to rob the McCanns or steal their vehicles and other property. To suggest otherwise is pure speculation and conjecture. Similarly, the Crown's argument that Mr. Vader was in financial difficulties is not supported by the evidence, only the unreliable David Olson said Mr. Vader was broke. If Mr. Vader wanted to make money by stealin"g motor vehicles he would have targeted a luxury car like a Mercedes Benz or a BMW. To do 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 either be attributed to Mr. Vader' s being scared and confused as he became the focus of police investigation, and the discussions withjailhouse infonnant Mr. Cardinal are nothing more than "jail talk" that cannot be taken seriously. The Defence also stresses that Mr. Vader's 2014 exculpatory statement to the RCMP [43) must be reviewed in isolation to prevent shifting the onus from the Crown to the Defence. The same is true for an intercepted communication between Mr. Vader and his mother on 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 v Lifc/111s, [1997) 3 SCR 320 at paras 30-31, 39, 150 DLR (4th) 733. The Crown is not required to prove its case to an absolute certainty. A reasonable doubt cannot be based on sympathy or prejudice, nor may it be imaginary or frivolous. A reasonable doubt must be based on reason and common sense, and on the evidence or absence of evidence. [45J This principle that I am required to evaluate whether Mr. Vader is guilty beyond a reasonable doubt does not apply to other, auxiliary fi ndings 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, [1998] 2 SCR 72 at para 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 any means. A culpable homicide that draws criminal sanction is one where the death is caused by an unlawful act, criminal negligence, by threats or deception, and frightening: Crfo1inal Code, s 222(5). Culpable homicides are either murder, manslaughter, Page: 12 or infanticide: Criminal Code, s 222(4). Here, infanticide is irrelevant. A culpable homi.cide that is not a murder is manslaughter: Criminal Code , s 234. 1. [47] Murder 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 OT meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily hann 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 causes death to a human being, notwithstanding that he desires to effect his object without causing death OT 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 to any 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 the person 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, s 230 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 a person may be found guilty of first degree murder. Some are potentially relevant to this offence scenario: 23 1(2) Murder is first degree murder when it is planned and deliberate. Page: 13 (5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: (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 hann); (d) section 273 (aggravated sexual assault); (e) section 279 (kidnapping and forcible confinement); or (t) section 279.1 (hostage taking). A .. planned" murder is one that "was conceived and carefully thought out"': R v Nygaard, [1989) 2 SCR 1074 at para 18, I 01 NR I 08. Evidence of a '·scheme" or "design" in place prior to the murder is required to conclude that a murder was planned: R v Tumingrobe, 2007 ABCA 236 at paras 11, 135, 296 DLR (4th) 434, dissent confirmed en toto 2008 SCC 17, [2008] 1 SCR [52] 454. [53] A '"deliberate" murder is one that is 11considered, not impulsive" (R v More, [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 than proceeding hastily, rashly or impulsively: R vJacquard, [1997] 1SCR314 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 v Green. [54} Circumstantial evidence may be used to establish the murder is planned and deliberate, but the finder of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R v Mitcltell, [1964) SCR 4 71 at 82, 46 DLR (2d) 384; R v Griffe11, 2009 SCC 28, [2009) 2 SCR 42 at para 33. The finder of fact is not entitled to rely on irrational or unreasonable inferences drawn from the circumstantial evidence as a whole to convict or acquit: R v Griffin, 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 in sequence. The second killing would therefore have been a planned and deliberate act to eliminate a witness, which falls under Criminal Code, 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 of manslaughter 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: I. was Mr. Vader anempting to commit a kidnapping, robbery, or arson, I 1/ Page: 14 (57] 2. did Mr. Vader intend to commit bodily harm to facilitate one of those offences, and 3. did death ensue as a result? 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 on circumstantial evidence, then an accused may only be found guilty where the only reasonable explanation that may be drawn from the evidence 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 evolution over time, the modern Canadian fonn of this principle is provided in R v Grifji11, 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 drawn from 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 confinned this threshold. Justice Cromwell (at para 32) indicates that "reasonable inference" is preferable over "rational inferenceu, bul that both are valid ways to express this threshold (para 34). (61] Justice Cromwell conlinues 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 slandard of proof beyond a reasonable doubt. (62) Positive evidence is not required to establish a reasonable alternative theory: para 36. Instead, common sense and logic are used to evaluate lhe 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 and the 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 the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. Reasonable doubt is not created by a '·far-fetched possibility or fanciful conjecture" (R v Clti11, 2014 ABCA 11 at para 42, 566 AR 288; see also R v Villaroma11, at para 3 7), nor is a ··possible,. alternative inference necessarily reasonable and rational (R v Dip11ari11e, 2014 ABCA 328 at para 24, 584 AR 138; R v Vil/aroma11, at para 37). [63J Page: 15 [64] A related issue is the question of opportunity. Some cases have revolved on whether an accused is the only individual who had an "exclusive opportunity" to commit an offense: R v lmircll, [ 1978] 1 SCR 622, 75 DLR (3d) 243. If circumstantial evidence establishes that the only rational inference is that only one person has the opportunity to commit an offence, then logically that person must have committed the offense. In R v Yebes, [1987] 2 SCR 168 at 188189, 43 DLR (4th) 424 the Court described that principle in this manner: Jt may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than 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 v Lewis, [1979] 2 SCR 821, 98 DLR (3d) 111 reviews the interrelationship between motive and exclusive opportunity, concluding that motive is always potentially relevant to a varying degree, but that where the Crown established exclusive opportunity 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 to identity of the murderer is purely circumstantial and proofof motive on the part of the Crown so essential that reference must be made to motive in charging the jury. The Crown's case against Tatlay was just such a situation. It was essential to establish motive and the trial judge properly referred to motive in charging the jury in relation to Tatlay. At the other end of the continuum, and requiring a charge on motive, is the case where there is proved absence of motive and this may become of great significance as a matter in favour of the accused. Between these two end points in the continuum there are cases where the necessity to charge on motive depends upon the course of the trial and the nature·and probative value of the evidence adduced. In these cases, a substantial discretion must be left to the trial judge. Jn lmrich, 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 to commit 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/or that they had a history of substance abuse. In R v Vetrovec, [ 1982] I 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 Page: 16 evidence might 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 evidence is central to the Crown's case then its confidence may be supported by confinnatory evidence: R v Kell/er, 2004 SCC 1 I at paras I 920, [2004] l SCR 328. Consistent statements of a Vetrovec witness are not independent and corroborating confirmatory evidence: R v Couture, 2007 SCC 28 at para 83, [2007J 2 SCR 517. [69J R v C/Ja11dra, 2005 ABCA 186 at para JO, 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. In deciding whether a \letrovec 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 which jurors may not otherwise be aware. The importance of the warning is substantial where the credibility issues may not be readily ascertainable by a juror unfamiliar with legal proceedings. Most often this applies to the evidence of accomplices, who may be seeking to minimize their own involvement, and jail house infonners, who often proffer evidence in the hope of gaining some personal advantage. [n those circumstances. where the evidence is important to the Crown's case. a warning is generally mandatory because the inherent frailties of such evidence are not generally knO\vn 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, 201 1 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 reguirement) 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 Page: 17 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' evjdence ... ... a trier of fact is entitled to convict on the evidence ofa Vetrovec witness in the absence of confinnatory 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.] l 71] As this passage explruns, Vetrovec witness evidence may be accepted as reliable and credible under two circumstances: III. 1. where confirmed by independent evidence, or 2. where the finder of fact is satisfied that the Vetrovec witness is telling the truth. Review and Findings in Respect to Forensic Evidence (72] 1concentrate first on forensic evidence that the Crown entered in relation to items linked to the McCanns. [73] Much evidence was entered lo 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. 1 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 infonnation that suggests something bad happened to the McCanns, and that Mr. Vader is potentially involved. This evidence falls into several categories: I. 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 Corpora! D. Benko, who were qualified as experts in friction ridge analysis and fingerprint forensic ideniification. Their evidence and conclusions were essentially the same. [77] The McCann SUV was recovered by the RCMP on July 16, 20 l 0. The exterior was too dirty for fingerprint analysis. However, various items were found inside the SUV and were Page; 18 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 wa5 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 exvert 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 avai labl e. [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. [84] Blood Location and Stain Pattern Analysis 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. Page: 19 [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 perfonned 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 predktable 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 liqwd blood. [91 J 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 o(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. Page:20 (92) Beyond that, this expert was careful to stress he could not provide additional infonnation 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 unifonnly diluted, which could be explained in a number of ways: l. 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 stai ns 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 ann 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. ft 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- Page:21 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 linlc 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 lo 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. [I 00] 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. [ l 0 I ] 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 I. 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. [I 02] 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. Page: 22 4. Carpc! Analysis [I 03] 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 Sarnpson-Roader property. This carpet was compared with samples that were recovered from the McCanns' residence. fl 04] RCMP expert Douglas Orr reported the two carpets were potentially from a common source, however the two carpel sources did not contain or exhibit the kind of characteristics to conclude a positive link between the two carpel pieces. [I 05] Jn its argument the Crown did not rely on the carpet expert evidence and l place no weight on this information. B. DNA Evidence . . [I 06] 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. [I 07] 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. (I 08] 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. [11 O] 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. I. 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 thal had a technical nature. This means to properly evaluate the expert teslimony and conclusions this decision must first carefully discuss how biological materials are used in Page:23 forensic identification, and the t;mique language and undisputed facts about how living things store infonnation. a. The Theoretical Basis for Forensic DNA Analysis [1 J2) 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. Jn 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 anti parallel 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. [1 16] 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 infonnation 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. - ·- . -- '-~- "' ..... . ~- -- ~- . .,. ·----- Page: 24 [ 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 fonns. 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. [l 18] 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. [ 1l9) 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 sizec.1 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) Jn 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 welldeveloped, 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 ' Page:25 procedures, and keeping evidence sources separate and contained. Items and infonnation relating lo items are tracked by a software laboratory information management system. (124] Many of the steps in the forensic DNA analysis process are automated or semiautomated,_ 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 Jong thin tube, and measures the quantity of DNA at various sizes. DNA length measurements are precise, and capable of counting individual base pairs, the infonnational 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 detennine 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 doubleedged 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 Page: 26 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. [13 l] The exponential copying that occurs in the amplification process also means the quantity of DNA of a given post-ampHfication allele is a weak indicator of how much DNA there was .to start. c. Statistical Analysis cf 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 detennine 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 do1:\0r would share the observed unknown allele profile. [133] To be explicit this means that forensic DNA analysis answers two questions: I. 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 ann 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? [ 13 5) 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 al!ele. 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. [ 13 7) For the ann 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 Page:27 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 infonnation 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 detenninative 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 anything which 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 forensic biologist with expertise in the analysis of forensic DNA evidence and identification, interpretation, and comparison of biological materials using those techniques. Vivian Mohrbutter, another forensic biologist, was qualified in the examination of exhibits for biological materials, PCR methodologies, and interpretation of forensic DNA data, including the probabilities of an unidentified third person being an alternative match for an unknown profile. The third expert, Janice Rae Lyons, was qualified as a scientist with expertise in 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, and evaluated 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, Kelly Coloumbe, Jasmine •.-. """?""• - - .. -- - -: ~ .. - ·...- ~ -- ·~-· ----·-· · ----- · ·-;-.--.--- -·--- Page:28 Robitaille, Mandeep Kahlon, Brett Stefura, Pamela Lilly, and Healther Maria Janssens. These witnesses described. their sampling and manipulation of items seized in the investigation of the McCanns' disappearance. Their evidence and explanations were not challenged. [146) Mr. Vader made an application on April 5, 2016 that I order the Crown call two witnesses, Dr. Amarjit Chahal and Curtis Hildebrandt, both who were employees of a private DNA forensic laboratory that processed a number of hair samples recovered during the RCMP investigation. I refused the Defence application (R v Vader, 2016 ABQB 405) on the basis that the Court has a restricted authority to intrude into how the Crown makes and argues its case, particularly in light of the fact the analyses in question had not provided any results. Put another way, evidence of nothing is nothing, and it follows that the Crown did not impede or affect the Defence by not calling witnesses who had nothing relevant to say. [147]' That said, I did leave it open for the Crown to enter that evidence and the Defence to call these witnesses, if they wished. 3. Defence Expert Evidence [I 48) Ultimately the Defence in its closing argument did not challenge the methodologies and procedures used by the RCMP investigators. The Defence also admitted some biological samples located from the Mccann SUV were from Mr. Vader (Boxer Beer can, tissues, and centre console blood stain). Mr. Vader disputed other potential matches on the basis that the Court should prefer the evidence of its forensic DNA analysis expert, Dr. Randall Libby. [149] However, Dr. Libby made a broader critique of the Crown's evidence and its experts . .I believe it useful to therefore examine Dr. Libby and certain aspects of his evidence prior to moving to the specific disputed forensic DNA analysis results. [150) Randall Libby was qualified as an expert in human molecular genetics, forensic DNA analysis, and population genetics. Dr. Libby received a PhD in molecular genetics in t 981 , and engaged in a range of research activities in that subject domain. At present he is the co-founder and an employee of a company named SNPgenomics. That company specializes in prenatal genetic testing. He was previously a consultant for GeneQuest Diagnostics. He indicated in the qualification voir dire that he has testified as an expert in forensic DNA analysis in about 150 to 200 court proceedings. Dr. Libby estimated he has testified in Canada 4-6 times. Dr. Libby indicated that when he provides testimony in a court proceeding he is almost always retained by the accused. [ 151] Dr. Libby did not submit an expert report. His evidence was limited to in-court testimony. [152] Dr. Libby testified he has little hands-on experience in DNA forensic analysis because he is not a technician. His experience is •'in directing other individuals". In-laboratory work and analysis is not his role. He also acknowledged that his present specialization is analogous but not the same as forensic DNA anal ysis. It involves measuring characteristics ofrepeated genetic sequences, but that is in the context of prenatal genetic disorders, rather than to identify and match unknown DNA samples lo specific individuals. However, the methodology and theory for both subjects is essentially the same. [153] While Dr. Libby's professional activities include, for example, speaking on forensic DNA analysis, Defence counsel did not identify any refereed publications where Dr. Libby Page:29 reported on forensic DNA analysis or protocols. My review of Dr. Libby's CV did not identify any refereed publications that obviously address forensic DNA analysis. [154] Though Dr. Libby was qualified as an expert and therefore was permitted to give opinion evidence, I have difficulty with his expert testimony for a number of reasons. A useful point of departure is to examine the characteristics of an expert witness. An expert witness is an individual who is permitted to give evidence that is not something that they personally observed, but rather is an opinion. Expert evidence is not casually permitted in a court setting, but instead may only be admitted when that expert evidence satisfies four criteria identified in R v Molla11 , [1994) 2 SCR 9, 114 DLR{4th) 419: l. relevance, 2. necessity in assisting the trier of fact, 3. the absence of any exclusionary rule, and 4. a properly qualified expert. [155) The necessity requirement warrants special attention. Expert evidence is necessary when the trier of fact encounters information that "is likely to be outside the experience and knowledge of a judge", the triers of fact "are unlikely to form a correct judgment ... if unassisted by persons with special knowledge", "due to the technical nature of the facts": R v Mohan, at paras 21-25. If a judge or jury can form their own opinions without that help then an expert is not necessary. Unnecessary expert evidence should be excluded. [156) An expert witness is called by a party to a matter, but has a special status. Germain J in I 159465 Alberta Ltd vAdwood Manufacturing Ltd., 2010 ABQB 133 at para 2.13, 25 Alta LR (5th} 237, affinned 201 I ABCA 259, 51 Alta LR (5th) 352 described an expert as being" ... less a 'witness for a party' than a 'witness for the court"'. I agree with this distinction. [157] Natio11al Justice Conrpa11ia Naviera S.A. v Prudential Ass11ra11ce Co. Ltd. ("The lkaria11 Reefer•?, [1993] 2 Lloyd's LR 68 (QB) at 81 ["Jkarian Reefer"] lays out the duties and responsibilities of an expert witness: I. An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise.... An expert witness should never assume the role of an advocate. 2. The expert's evidence should nonnally be confined to technical matters on which the court will be assisted by receiving an explanation, or evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge. 3. He should cooperate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place in context any peripheral issues .... 4. The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to fonn or content by the exigencies of the litigation. Page:30 5. An expert witness should stale the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. 6. An expert witness should make it clear when a particular question or issue falls outside his expertise. 7. Where an expert is of the opinion that his conclusions are based on inadequate factual infonnation he should say so explicitly. 8. An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert. He should do so at the earliest opportunity. [ 158) The Crown DNA and other forensic witnesses adhered to the Jkaria11 Reefer principles for expert testimony. Dr. Libby did not. [159] Here are some examples. [160] Dr. Libby testified in front of this Court in a 2014 proceeding (R vAwer (29 October 2014), Edmonton 130891062QI (Alta QB)) where he was retained as a DNA expert by the same law tinn which represents Mr. Vader. During his qualification in this trial, in a voir dire, I inquired as to whether Dr. Libby recalled that matter. Dr. Libby responded he indicated it was possible, but that sexual assault and DNA contamination case "doesn't sound familiar". I noted the facts of that case were unusual, since the decision involved a sexual assault offender who testified the presence of the complainant's DNA on his penis was (allegedly) explained by the offender's very long penis dangling into and being immersed in a toilet bowl and in that way became contaminated with foreign biological material. Dr. Libby then said he recalled the case. [ 161} There are two reasons why this exchange is significant. Firstly, I find it very difficult to believe that Dr. Libby failed to recall his previous appearance in the Alberta Court of Queen· s Bench, particularly given the same law firm and a common lawyer were involved in both the Vader and Awer proceedings. [162) Second, Dr. Libby's expert evidence was strongly criticized by my colleague Topolniski J in her oral decision. A key point in that trial was how DNA is transferred from one surface to another via contact. Justice Topolniski placed restricted weight on Dr. Libby's conclusion because he provided no alternative to the Crown's evidence, and instead" ... provided little useful evidence on the processes and variables involved ... ". Dr. Libby simply questioned cited literature, discounted forensic publications as "trade journals" vs his preferred area of publishing, '·medical journals", even though ironically Dr. Libby had referenced the same trade journal publications. Justice Topolniski observed "[i]n cross-examination, Dr. Libby was unresponsive to simple and direct questions. As example, he refused to concede or agree to the simple proposition that vaginal intercourse usually transfers female DNA onto a penis.'' (163] Justice Topolniski concluded: It would be fair to condense Dr. Libby's testimony to one conclusion: "It's complicated". That is not useful, particularly when it is unsupported by an underlying methodology, rationale, or scheme . ... Dr. Libby testified that more DNA is transferred from sources rich in DNA than those with lower concentrations. He said nothing about DNA transfer from wet or Page: 31 dry biological sources, other than it is complicated. He testified that many variables can influence how much DNA is transferred between sources, but gave no explanation to assist in understanding what and why that was the case - does it matter if it is wet or dry? Does DNA stick more to certain materials? He simply says there are many variables. That does little to add useful information that is outside the knowledge of the trier of fact and hence necessary evidence. [ 164) Justice Topolniski 's decision was subsequently upheld on appeal: R vA wer, 2016 ABCA 128. One of the grounds of appeal was that Dr. Libby's evidence had been improperly criticized as unresponsive. The Court of Appeal at para 77 disagreed: The trial judge's assessment of Libby's evidence is reasonably supported by the record. On numerous occasions during cross-examination Libby appeared unresponsive to simple and direct questions or answered a different question than the one posed. The Supreme Court of Canada has recently confirmed the need for experts to maintain transparent impartiality and to fulfill their special duties to the court to give fair, objective and non-partisan opinion evidence ... [165] R vAwer is now under appeal to the Supreme Court of Canada. When subsequently asked by Mr. Vader's counsel about the appeal Dr. Libby said he knew that. [ 166) This is the first reason I have reviewed the R v A wer litigation. I find as fact that Dr. Libby is very well aware that his previous appearance in this Court was not well received, and that he was less than forthright in his response to my inquiry. He attempted to avoid that issue. This goes to his credibility. However, what is even more problematic is that Dr. Libby' s testimony in relation to this litigation repeats the same kinds of issues that were identified in R v Awer. In other words, there is a larger problem here. [167) Dr. Libby's evidence includes what are best described as 'non-answers'. Here is one example. Dr. Libby is asked whether it matters when analyzing a forensic sample whether the sample amount of DNA for a PCR reaction is relevant in a certain range. He says no: Counsel for Mr. Vader: So, for example, sir, can you help me with this? We heard substantial evidence about nanograms. And let me give you an example or a question. Does it matter for your purposes in tenns of analyzing a sample, interpreting the sample, whether there's 50 nanograms or 500 nanograms? Dr. Libby: No, it does not. [168] Dr. Libby is then asked why. His answer is totally unresponsive: Counsel for Mr. Vader: And why is that, sir? Dr. Libby: Well, I mean you're not -- first of all, you're not amplifying that total amount, so you' re amplifying the sub-quantity of that amount. But the interpretation you generate is, you know -- that you observe on electropherograms is -- it does not matter whether it's from 50 or 500. Page: 32 [ 169) It does not matter for foren.sic DNA analysis whether the product sample is 50 or 500 nanograms because ·'it does not matter whether it is from 50 or 500". This is the pattern observed by both the trial and appeal courts in R vA1ver. Dr. Libby's response is a non-answer. [170] A little later Dr. Libby says the amount of DNA is not relevant at all: Counsel for Mr. Vader: So the amount of nanograms is -- are you saying it's irrelevant for your purposes? Dr. Libby: For me it is, yes. [ 171) Still later yet, Dr. Libby makes a circular observation that the amount of postamplification DNA is reflected in the height of peaks observed on an electropherogram, indicating a correlation between DNA quantity and peak height: Counsel for Mr. Vader: And does the issue of the nanogram become an issue at all? Dr. Libby: Well, the amount of DNA that you have influences the peak height, so there's sort of a correlation there, if you will, between the amount of DNA and the peak height. [ 172) Dr. Libby was questioned at length by counsel for Mr. Vader concerning the uncertainty involved in forensic DNA analysis. Dr. Libby endorsed statements such as the quantity of DNA located in a sample cannot indicate the kind of the biological material which was the source for that DNA, whether the biological material and DNA was deposited directly or indirectly, by repeated or a single contact, by an earlier or subsequent individual in sequence of contacts, that the quality of DNA recovered does not identify the mechanism for deposition of the biological material, and that forensic DNA evidence itself cannot be reliably used to identify how DNA found its way to a location. [173] Dr. Libby did not relate any of this to the Crown's case against Mr. Vader. This leaves the same logical gap that emerged in the R vAwer case. DNA obviously at times gets from a biological source onto surfaces and into fabrics. Mr. Vader's DNA made its way into certain locations where it was found, and the Defence admits that. However, Dr. Libby' s evidence tells us nothing of the specific instances of biological material deposition which emerged in this trial. Instead, "It' s complicated." The defect with an " It's complicated." statement is that when a drop of blood is located and DNA from Mr. Vader is recovered from that drop, then in an overarching sense the theoretical range of possible sources for the DNA are complicated, except now the other physical and contextual evidence makes a certain alternative or alternatives plausible, if not probable. [J 74) At other times Dr. Libby's evidence simply makes no sense. At one point Dr. Libby is asked about the complications that arise when an investigator is confronted with a mixed DNA sample that has more than one donor. He explains this complicates matters (and it certainly does), but then goes on to a hypothetical scenario where an investigator discovers four different variations on a specific allele in a test sample. That means there is more than one contributor which I follow. A person only carries two alleles. Four different alleles infers at least two contributors. However, to me Dr. Libby' s explanation, below, makes no sense: Page:33 And then after you' ve done that, you really don't know when you have a mixture of 25 equal proportions as, for example, equal peak height. You don't know which peak is associated with - how the peaks are associated with one another. So for example, given a situation in which you have four alleles, four peaks, all of approximately equal intensity, what is the order in which they are associated with one another. Let's call them alleles A, B, C, and D. Is A associated with B, or is A associated with C, or A associated with D, or is B associated with D, or C · associated with - so there's no - there's a wide number of possibilities. In fact, if you have four peaks of equal intensity, equal peak height, you actually have ten different possibilities, ten different genotypic possibilities. (175] Perhaps l am obtuse, but I count six possibilities in this scenario where there are two DNA sources: DNA source 1 contributes: A&B A&C A&D B&C B&D C&D DNA source 2 contributes: C&D B&D B&C A&D A& C A&B [ 176] Rather ironically given his previous scrutiny of literature sources in R v Awer, in this proceeding Dr. Libby referenced an article titled "The Surprisingly Imperfect Science of DNA Testing" from "The Marshall Project'·, a "story ... produced in partnership with Fusion and Frontline''. When asked by counsel for the Defence to explain its provenance Dr. Libby answered : My understanding, this is an article published by The Marshall Project on DNA analysis which is part of Marshall University. Beyond that, I'm not sure where this was actually published, so I think this is maybe more like - published in a trade article, not an extensive, academically peer reviewed journal. [177] Another reason I have issues with Dr. Libby's expert evidence is that it appears he takes a position that diverges very broadly from the mainstream of DNA forensic analysis. As I understand his testimony, he believes that the only 'evidentiarily' valid forensic DNA match is one where the allele profile detected from an unknown sample is a 100% match with a known specimen. This is a subject Twill discuss in much detail below in relation to the three disputed forensic analyses. [178) In the end Dr. Libby had little negative to say about the RCMP and their investigation. Dr. Libby did not identify any procedural defect in the RCMP's records, or offer any specific criticism of the procedures that were used to investigate potential biological materials recovered during investigation of the McCanns' disappearance. He did make vague assertions that some government or police forensic laboratories have biases and should not be trusted because their employees have a government agenda. [1 79] Dr. Libby did not identify any specific example of contamination. Page:34 (180] Dr, Libby did identify certain additional procedures that he opined might have provided additional information, such as mitochondrial DNA testing, and he also suggested certain procedures could be repeated to see if consistent results were obtained. That, however, is irrelevant to the potential validity and probative value of the data ptoduced by RCMP investigators and entered as evidence here. [181 J Dr. Libby did not challenge the Crown experts' calculations of the probability of a random person carrying the same DNA short tandem repeat allele profile as recovered from an unknown sample. His only observation was that these figures are somewhat arbitrary when viewed in the context of actual populations, i.e. for example a statement that the odds of a human carrying a particular combination of STR alleles is one in three trillion is artificial given there are not three trillion human beings in existence. On cross-examination he did admit these odds ratios serve principally as a probability tool used by a finder of fact, rather than a factual scenario. [ 182] 1will return to specific issues concerning Dr. Libby's expert witness activities and testimony as I examine the disputed forensic DNA evidence. Later in the judgment I will have additional concluding comments and conclusions on Dr. Libby and the value of his opinions in this trial. 4. Crown Evidence [ 183) The Crown entered detailed evidence on the identity, collection, storage, continuity, and nature of many items that were collected during the RCMP investigation. The Defence has not disputed these processes, though it has repeatedly raised the possibility of contamination and mishap. I will not review the Crown's evidence in any detail because I find as fact that there is no evidence to indicate or imply that the RCMP collection and management of this evidence was anything but methodical and proper. Instead, what emerged was an impressive but appropriate degree of caution and care, the kind that is required to produce reliable forensic evidence. [184] Crown witness evidence of the forensic investigation of biological samples focussed on two points; whether a sample was blood, and forensic DNA analysis of biological samples. The Crown investigators attempted to only use a part of a stain so that material was retained for further testing. I have previously commented on the blood spatter component of the analysis. [185] The control DNA profiles for Marie and Lyle McCann were confirmed via comparison with DNA extracted from blood samples provided by the McCann children: Bretton McCann, Lance McCann and Trudy Holder. In this sense the fact the McCanns have disappeared did not impede forensic DNA analysis. The McCanns' DNA continues in their children. ( 186) Many samples that were tested for DNA did not provide relevant results. However, for the purpose of this trial, some items are critical. r will not detail all of the forensic DNA analysis results but only those which are probative to the issues in question. [187) That is why I will engage in no further commentary on DNA profiles that were detected by the RCMP investigation that do not match any known individuals, and similarly not review instances where forensic DNA analysis did not identify any DNA evidence at all. The Defence has made various arguments that a failure to develop a DNA profile indicates something, such as that Mr. Vader was uninvolved in the McCanns' disappearance because many times his DNA was not located. Counsel for Mr. Vader has argued an absence of evidence is relevant. Sometimes that is true. But other times, evidence of nothing is nothing. For example, if the search locations were antiseptically sealed or contained environments, then a single hair from an Page:35 unidentified ,person could be very relevant. So would the recovery of an uni~enlified source of DNA from a putative murder weapon handle. However, that is not the case here. The search locations were anything but 'clean', and I have received much evidence on how DNA can be damaged and degrades over time, but also on how biological materials are cast off, shed, and readily spread. f I 88] My focus is therefore on evidence which potentially indicates Mr. Vader had interacted with the McCanns and their property. [I 89] The Crown's experts concluded certain matches had been established: • DNA recovered via a swab of the can of Boxer Beer located in the arm rest of the SUV matched Mr. Vader's DNA. A complete DNA profile was developed. The probability of a random individual having the same DNA profile is one in three trillion. • DNA recovered from a blood stain on the SUV centre console arm rest matched Mr. Vader's DNA. A complete DNA profile was developed. The probability of a random individual having the same DNA profile is one in three trillion. • DNA recovered from a tissue located in the SUV matched Mr. Vader's DNA. This was a complete DNA profile. The probability of a random individual having the same DNA profile is one in three trillion. • DNA recovered from the inner sweat band of the Vopak hat matched Mr. Vader's DNA . A complete DNA profile was developed. The probability of a random individual having the same DNA profile is one in three trillion. • DNA recovered via a swab of the SUV steering wheel matched Mr. Vader's DNA. A partial DNA profile was developed. The probability of a random individuaJ having the same DNA profile is one in 7.4 billion. • DNA from the blood stains located on the No Name Cans found in the SUV matched Marie McCann's DNA. The probability of a random individual having the same DNA profile is one in 4.6 billion • DNA recovered from a blood stain located on the back left front passenger seat of the SUV matched Mr. Vader's DNA. This was a partial profile. The probability of a random individual having the same DNA profile is one in 12 million. • Multiple locations on the Boag•s hat were tested. DNA was recovered that matched Lyle McCann's DNA, and in one instance a blood stain revealed a mixture of DNA from Lyle McCann and Mr. Vader. The probability of a random individual having the same DNA profile as Lyle McCann's contribution is one in 34 billion. The probability of a random individual having the same DNA profile as Mr. Vader's contribution is one in 140,000. [190) In its closing argument the Defence admitted Mr. Vader's DNA was present on the Boxer Beer can, the tissue, and the centre console arm rest, and did not apparently challenge the matches to the McCanns' DNA on the No Name Cans and the Boag's hat. However, the Defence does argue I should reject the Crown's evidence that Mr. Vader's DNA was located on the Boag's hat, the SUV steering wheel, and the passenger seat. The Defence argues those results were inconclusive, as opined by Dr. Libby. I therefore focus my attention on these three items. Page:36 a. The Boag's Hnt . [191] Ms. Mohrbutter indicated the mixed sample of blood from the Boag's hat included blood that matched Mr. Vader, and that the chance of a random individual having the same profile is one in 140,000. A previous attempt to analyze biological material samples from that hat by Ms. Skipper led to her identifying Lyle McCann's DNA, but Ms. Skipper concluded that the infonnation available from a potential second source was inconclusive. [I 92] Ms. Mohrbutter explained she used a variation on the original capillary electrophoresis procedure that had a longer injection time, which in theory should increase the quantity of DNA infonnation in a sample, and produce a stronger electropherogram signal. This procedure was successful, and as a consequence additional allele variants were identified. [193] Dr. Libby reviewed the Boag's hat DNA evidence and concluded that Lyle McCann's DNA is indeed present, however in his opinion the identity of a second potential contributor, the "minor profile"', is inconclusive. Dr. Libby first highlights how for certain alleles only two or three different alleles were detected. He says the absence of this information is important, because there is no interpretable minor profile for that allele. [I 94] This alone, according to Dr. Libby, is a basis to conclude that the potential linkage between the minor profile and Mr. Vader is inconclusive. I believe it is important to quote exactly what Dr. Libby said: Counsel for Mr. Vader: So let me ask you, sir. In your professional opinion, having reviewed this, what was your conclusion as to who contributed the minor contribution here, please? Dr. Libby: Well, my interpretation of it is that it' s -- of the minor profile -- is that ifs inclusive. The data is not complete at multiple loci. So the RCMP was not able to make, in their opinion, reliable calls. So in view of that fact alone, I would regard this analysis as inconclusive. Counsel for Mr. Vader: So help us and provide some reasons why you find that your opinion is that this is inconclusive, please, as to the minor contributor? Dr. Libby: Well, the reason why I would consider it inconclusive is because it's a limited test anyway. That is to say, there are nine -- only nine loci. ... So essentially half of the test failed to produce results. Counsel for Mr. Vader: Half the test? Dr. Libby: Half the test. So if one was able lo generate a test, sure, it might be •• there might be profiles which could be consistent with Mr. Vader, but there also could be profiles or alleles detected which are inconsistent. So it could cut either way. So the most Page: 37 conservative approach would have been to declare it, in my opinion, as inconclusive. Thafs what I would have done. [ 195) J think at this point it is helpful to tabulate the evidence to show why Dr. Libby's analysis is, if anything, backwards. The data below is extracted from Exhibit 196, which is the tabulated data prepared and submitted by Dr. Libby in his criticism of the Crown's expert evidence. I have taken a slightly different approach in how I have depicted Lyle McCann and Mr. Vader' s genotype by noting down both alleles where an individual is homozygous for a certain allele, j ust to help keep things straight. Allele Lyle All alleles recovered from the McCann's genotype Boag's hat Mr. Vader's genotype Alleles common between Lyle Mccann and Mr. Vader Mr. Vader's alleles not located on the Boag' s hat 16, 17 16, 17 16, 17 16, 17 none vWA 16, 17, 18 17, 18 16, 16 none none FGA 22,24,25 22, 24 24,25 24 none xv xv xv xv none 08 13, 14, 15 13, 15 13, 14 13 none Dll 28, 29, 31.2 32 28,29 31.2, 32 none none 018 12, 16, 17 12, 16 17, 17 none none DS 11, 13 11, 11 11, 13 11 none 013 11 11 , 11 11, 11 11 , 11 none D7 9, 12 9, 12 9, 10 9 JO D3 Amelogenin [196] Dr. Libby concluded "half the test failed to produce results". This is wrong on several bases. [ 197] The first is that it ignores the possibility of an individual being homozygous for a particular allele. For example, from the table above, Mr. Vader is homozygous at three alleles : v WA, D 18, and D 13. That means that when his profile was generated, using Dr. Libby's apparent approach, Dr. Libby would logically conclude part of the test had failed to produce results and therefore reject the forensic DNA analysis as inconclusive. This is, of course, scientificall y wrong, but it is the logical end point of Dr. Libby' s approach to DNA analysis. Page: 38 Anytime there are less than a full complement of potential different alleles that means an analysis has "failed to produce results". · [198) But the larger issue is that Mr. Vader and Lyle McCann share a certain number of common alleles. That means that if there is a mixed sample of Mr. Vader and Lyle McCann's blood on the Boag's hat, then some of Mr. Vader's and Lyle McCann's alleles cannot be distinguished by forensic DNA analysis. This does not mean Mr. Vader's DNA was not present and was not amplified in the PCR reaction. Instead a coincidence of biology means the methodology used cannot distinguish between DNA from those two sources where that information 'overlaps'. [199) But that does not mean "the test failed". It could mean that DNA from a third party source was present but not detected. Or it could mean that only Mr. Vader's and Lyle McCann·s DNA was present and amplified and analyzed by the PCR procedure. [200] I again tum to Dr. Libby's in-court testimony as to why I am troubled by this witness. He calls the mixed source DNA profile "disturbing". Let us look at some of the "disturbing" results, starting with the FGA allele. Dr. Libby testified: ... The concern I have is that there is at least three loci -- and we'll start from the top, FGA - indicated as the minor profile being a 25, yet Mr. Travis's [sic] reference profile reveals a 24 and 25. So clearly there's not a match there. Now, that was redacted out, presumably because we're assuming that one of the other individuals has a 24, so there was a redaction out. But the fact is, you don 't have information at that site to confinn that that minor profile really is a 24/25. So it' s another site in which, in my opinion, it's not conclusive. [201] Dr. Libby has agreed that Lyle McCann's DNA was located on the sample. Lyle McCann's genotype for the FGA allele is 22, 24. By his own admission, Dr. Libby acknowledges that the DNA of both Mr. Vader's allele variations is present on the Boag' s hat. There is no "redaction". There is overlap between the profiles. But that is not what Dr. Libby then concludes: Counsel for Mr. Vader: You've just mentioned FGA, in your opinion, not sufficient information? Dr. Libby: It does not reveal the profile which would be expected . ... [Emphasis added.] [202] On the contrary, a mixture of Lyle McCann and Mr. Vader's DNA would produce exacJ/y the profile that was obtained by the RCMP forensic DNA investigation. But then Dr. Libby continues to make an even stranger statement. He understands that there is an overlap between the McCann and Vader genotypes for this allele, but then says that" ... still doesn't resolve the incompleteness of a minor profile at that locus." [203) Science operates on the basis of a researcher fanning a hypothesis, conducting an experiment to evaluate that hypothesis, then scrutinizing the results of the experiment to see whether the results are consistent with the hypothesis. Here, the hypothesis is a question of whether DNA from Mr. Vader is present on the Boag's hat. Looking at the FGA allele, if Mr. Vader's DNA is present with what Dr. Libby acknowledges is Lyle McCann's blood, then the expected alleles one would detect from the FGA locus are 22 (McCann), 24 (McCann), 24 (Vader), and 25 (Vader). That is precisely what was observed. Dr. Libby's claim " It does not Page:39 reveal the profile which would be expected." is wrong. Worse, it is misleading to call this . ''disturbing·'. A supposedly independent, objective expert here uses loaded language to reinforce a false conclusion. (204] Now, what Dr. Libby is really saying is that if someone who had FGA alleles that are not 22 and 24 had contributed his or her biological material to the Boag's hat mixed source location, then four DNA allele variations ought to have been observed, and there is "incompleteness of a minor profile at that locus." But there is no '·incompleteness of a minor profile" if Mr. Vader is the second source. [205] Dr. Libby continues this approach with the other "disturbing" and "troubling" so-called incomplete minor profiles: D8, D5, Dl3, [206] Dr. Libby makes the same type of statements again with these other al leles. For example. concerning the DS alleles detected: ... Again, at this site, Mr. Vader is a type I I and a I3. The declared minor type is a I3. So, again, D 11 is not accounted for. It could be accounted for in Mr. McCann's genotype, but not Mr. Vader's. Once more, I observe the RCMP forensic DNA analysis detected the 11 length variation of the D5 allele. The last sentence in the quoted passage above makes no sense. Worse, the statement that Mr. Vader's DNA is '·not accounted for.. implies the absence of evidence. That is false. DNA consistent with Mr. Vader's genotype was indeed observed for the D5 allele. (207] Dr. Libby concludes: Counsel for Mr. Vader: Do you believe that there is support in the scientific community for your opinion ... given what's missing here? Dr. Libby: Yes, l do. Yes .... And it's -- I'll leave it at that. [208) I disagree and reject Dr. Libby's analysis in relation to the Boag's hat. [209) The Crown in cross-examination questioned Dr. Libby on why he was ignoring the fact that Lyle McCann's DNA profile overlapped with parts of Mr. Vader's allele profile. The Crown asked why Dr. Libby's Exhibit 196 chart only included alleles unique to Mr. Vader. Dr. Libby acknowledged there is potential overlap: Crown counsel: But is a possible explanation, or an explanation for those blanks, could that be because Mr. Vader does have common alleles with Lyle McCann, and that because Lyle McCann was the major contributor that his values at those D3, the amelogenin, D 13 and 07, which would be the same as Lyle McCantl's or are masked by the major contributor? Dr. Libby l agree. That's what I indicated previously. There was a fair amount of overlap, yes. [2 IO] However, Dr. Libby now discounted the possibility of Mr. Vader's DNA being amplified and detected, but combined with that of Lyle McCann. He makes a curious distinction. A ·hidden/merged ' peak is irrelevant because it is not a "declared minor allele": Page:40 ... you know, there is not a declared minor allele at those. positions. Now, there is overlap between the two, sure. But still the total number of loci examined, which was 9 in this case, as opposed to what produced results, in my opinion, is not sufficient enough to declare that there's a match. [21 l] This was the same for all of the other potential overlapping alleles from Mr. Vader and Lyle McCann. Ultimately, however, all Dr. Libby could do is counter with hypothesis: maybe there are other allele variants that exclude Mr. Vader as a second source that were not amplified and detected. Why then should the RCMP analysts' conclusions be rejected? Because the number of unique Vader-speci fie alleles observed is "rather unconvincing": ... Which because of that reason and because of the rather unconvincing declaration ofa match, that I think it's not -· I think it's pushing the limit to perhaps suggest that it's inclusive of Mr. Vader for the minor. My inclination would be to be more conservative and to declare it as inconclusive. Well, I think I heard you say I agreed there's a match, and quite the contrary. If you're -- if you compare the redacted version of the minor profile to Mr. Vader's profile, you would have to conclude there's not a match. Now, you can wave your hands and say, well, yeah, well, there's minor this and there's minor that and then there's masking, all that could be true, but if you ask me at face value is there a match, well, there's not a match, no. [212) Returning to the task of a scientist, the hypothesis here is whether the Boag's hat biological sample is potentially a mixed one with two contributors: Lyle McCann and Mr. Vader. Returning to the table I assembled above, the last column evaluates that hypothesis by comparison with alleles one would expect for a combined profile. Are any unexpected, wron g alleles present? None. Are any missing? One: the length 10 variant for the 07 allele that is carried by Mr. Vader is not present in the results obtained by the RCMP investigators. [213) Flipping that analysis into a different context, how much of Mr. Vader's DNA profile was present in the mixed sample? 17of18 alleles, or 94.4%. Yet Dr. Libby concluded "half the test failed to produce results". He says there is no match. He argues there are possibly missing exculpatory non-Vader sourced alleles that were not amplified by the PCR procedure, and that makes the minor profile inconclusive. [214] To use his language, he is waving his hands and saying the Court should ignore the obvious. At face value, there is a match. The data obtained from the mixed source sample is entirely consistent with a combination of two contributors: Lyle McCann and Mr. Vader. [215] The RCMP forensic analysts concluded the probability of a random individual having the same DNA profile was one in 140,000. That calculation was based on the unique Vader-specific alleles recovered from the Boag' s hat. That is a conservative calculation· appropriately - but the Court can simply engage in an exercise in logic, too. The data speaks for itself. Mr. Vader's DNA was recovered as the minor profile of the Boag's hat mixed blood sample. Page: 41 b. The SUV Steering Wheel (216] Mr. Vader disputes that his DNA is present on the McCann SUV steering wheel. Ms. Skipper in her testimony said the likelihood of a random individual having contributed the DNA that was detected on the steering wheel as being 7.4 billion to one. [217] When one compares the DNA recovered from the steering wheel to Mr. Vader's DNA there are no allele variations present in the recovered DNA that are absent from Mr. Vader's DNA profile. That means there is no DNA evidence to exclude Mr. Vader as a donor of the DNA recovered from the steering wheel. The observed steering wheel STR allele set and Mr. Vader's profile are not a 100% match. Mr. Vader has two versions of the D3 allele, with short tandem repeats of 9 and 10. Only one variant of the D3 allele was recovered from the steering wheel, with a length of 9. This means that Mr. Vader is a possible candidate source for the steering wheel DNA, and that the D3 allele length 10 variation is absent simply due to DNA degradation, or bad luck, or some quirk during the PCR process. [218] Lyle McCann and Marie McCann were not the source of all the DNA recovered from the steering wheel, either alone or in combination. There are DNA allele variations recovered from the steering wheel that do not exist in the McCanns' DNA. [219] Ms. Skipper underwent extensive cross-examination in relation to her opinion and its basis. The Defence focussed on several points. One was that Mr. Vader and Lyle and Marie McCann share common allele variations. For example, the DNA recovered from the steering wheel was found to have two variations of the D3 allele, one with a length of 16, one of 17. That potentially matched several sources: D3 alleles from the SUV steering wheel: 16, 17 Mr. Vader: 16, 17 Lyle McCann: 16, 17 Marie McCann: 15, 16 {220] If the DNA recovered from the steering wheel was from only one person then that DNA could come from either Mr. Vader or Lyle McCann. It could not, however, have come from Marie McCann alone, since the recovered DNA had a 17 length D3 short tandem repeat region, while Marie Mccann instead could have deposited only 03 STR variations with a length of 15 or 16. That eliminates Marie McCann as a potential source for the DNA on the steering wheel, provided the DNA comes from a single source. [221] Similar 'overlaps' between the McCann DNA profiles components and those of Mr. Vader also exist for the vWA, FGA, D8, 018, 05, 013, and 018 alleles. The 021 allele DNA recovered from the steering wheel however cannot have come from either of the McCanns, and only matches Mr. Vader: 021 alleles from the SUV steering wheel: 31.2, 32 Mr. Vader: 31.2, 32 Lyle McCann: 28, 29 Marie McCann: 29,30 Page:42 [222] The D2 I allele data indicates that Mr. Vader is a potential source for the DNA recovered from the steering wheel, but eliminates 'the McCanns as donors. [223) The complicating situation is the possibility that more than one person contributed DNA to what was recovered from the SUV steering wheel. It would be unremarkable to find the McCann's DNA on the SUV steering wheel, and therefore locating a D3 allele with a short tandem repeat length of 16 does not directly implicate Mr. Vader. Instead, that DNA might have come from either Lyle or Marie McCann. [224) The Defence only in passing mentioned the possible issue of the McCanns acting as donors to the DNA recovered from the SUV steering wheel. Instead Dr. Libby focussed on two things. First, Dr. Libby stresses the missing D7 I 0 length variation allele. Dr. Libby said: ... So that, to some face value, would not match up with Mr. Vader's profile. So . there is some concern on how one would regard this entire sample. [225) I reject the Defence argument that the 7.4 billion to one value cannot be relied upon because one of the Vader DNA alleles is missing. This is not a basis for "some concern". [226] The second issue raised by Dr. Libby is the possibility that the DNA obtained from the steering wheel swab captured a mixed DNA sample from more than one individual. Dr. Libby does not construct a minor DNA profile, nor indicate even a single electropherogram peak that he thinks should be considered a valid PCR DNA amplification result. Instead, he indicates (somewhat cryptically), that the peaks that are too small to analyze are a basis to conclude that the RCMP forensic DNA analyst 's conclusions are wrong, and the result should have been inconclusive: Counsel for Mr. Vader: And your opinion, sir, in relation to the steering wheel, minor contributor is therefore what, sir? Dr. Libby: That there, in fact, may be a minor contributor to this. It's hard to tell, but there certainly are other areas on the electropherogram which are low level. Granted, they're probably -- they're below the analytical threshold, it does not mean that they're not -- it's actually not DNA, but they' re below there, but it's hard to assign a particular value to it when they're outside the range in which one can declare a peak. Counsel for Mr. Vader: Which in the end result leads to an inconclusive conclusion? Dr. Libby: It does. It does. It does. [227] I believe it is fair to summarize Dr. Libby's opinion that even though the "overall profile appears to be consistent with Mr. Vader ... ", the match should be rejected as inconclusive on the basis of DNA PCR products detected in quantities that are too low to be meaningful results or subjects of analysis. I reject that conclusion. Reduced to its core, Dr. Libby's opinion is that a match is inconclusive on the basis of background noise and artifacts that cannot be scientifically evaluated. Page:43 (228] Returning to the idea that the McCanns' DNA may have complicated analysis of the steering wheel DNA, 1 am going to continue to review Ms. Skipper's evidence on why she concluded the DNA recovered from the SUV steering wheel originated from a single source. This issue was explored in Ms. Skipper's cross-examination. Logically the alternative sources for DNA were the McCanns, however I reject that possibility. (229] The first is the evidence of Ms. Skipper. Her opinion was that the forensic DNA profile recovered from the steering wheel originated from a single source. She came to that conclusion from the electropherogram, the tracing of DNA quantities vs size that was produced by the electrophoresis process. She explained the amount of DNA is measured by the amount of fluorescence detected by the DNA electrophoresis apparatus. Here, the 'peaks' of fluorescence were consistent with a single source, when viewed as a whole. The fluorescence observed and the DNA therefore detected· provided confidence that there was only one DNA source. There was not, for example, a second set of smaller quantity DNA PCR products that presumably could originate from another person, a minor contributor. [230) Ms. Skipper also pointed to the data from the D3 allele. She concluded that the quantity of fluorescence indicated that the DNA source was homozygous for a D3 allele of 16. Mr. Vader is homozygous 16 at that allele, while the McCanns are not. That reinforces the proposition that the DNA located was only from Mr. Vader, and not one or both of the McCanns. This expert was interrogated at length about anomalies sometimes observed during PCR amplification procedures, "drop out", where an anticipated DNA peak is missing from the electropherogram, and "drop in", where an unexpected and spurious DNA peak is observed. Ms. Skipper explained "drop out'" and '"drop in" are avoided by having an adequate supply of starting DNA. She also stressed that here the observed data indicated an adequate supply of start DNA. [231) As for interpreting the relevance of smaller amounts of DNA observed of a certain length, she acknowledged that these small peaks are potentially relevant only if they exceed a certain threshold fluorescence/DNA quantity. (Dr. Libby does not disagree with that.) She illustrated by comparing a number of different electropherograms that show what occurs where there is an elevated background of DNA fragments, how the shape of peaks is relevant to identify actual amplified DNA products, and how to differentiate relevant data from background noise or artifacts. One example identified by Ms. Skipper is that sometimes double peaks are produced during the PCR process when a phenomenon called slippage or stutter occurs. This means a replication molecule slips or skips a repeal. This is a common and readily identified artifact. (232) I accept Ms. Skipper"s explanation of how on her review and due to her familiarity with forensic DNA analyses and electropherograms that she could conclude that the DNA from the steering wheel came from a single source and not multiple individuals. 1 accept that evidence and her explanation of that. The logical inference then is that the fact that DNA alleles of similar size might have potentially been donated by the McCanns is simply irrelevant. [233] The second basis for rejecting the McCanns as a contributor to the steering wheel DNA is a matter of simple logic. By my count the two McCanns each possess many allele variations not possessed by Mr. Vader: Lyle McCann - 9 allele variations; and Marie McCann - 11 allele variations. The Defence theory that the steering wheel profile should be interpreted to indicate a mixed source profile means that by some twist ofluck not a single of these DNA alleles variations carried by the McCanns managed to make it to the steering wheel and survive until Page: 44 DNA was sampled. Here the absence of any McCann DNA which has differen.t STR variations from those carried by Mr. Vader has an obvious implication. This is not a mixed sample to which the McCanns contributed DNA. The non-Vader allele variants are missing from the DNA recovered from the SUV steering wheel because neither of the McCanns donated DNA to that sample. [234] In conclusion I accept the Crown 's evidence and find that Mr. Vader's DNA was recovered from the SUV steering wheel . c. The Passenger Seat [235] The last disputed forensic DNA evidence is a sample of blood that was located on the back of the SUV passenger seat. The RCMP forensic DNA analysis experts classified this as a partial match to Mr. Vader, and the probability of a random individual having the same DNA profile is one in 12 million. [236] Dr. Libby's evidence on this biological material sample is essentially the same as for the steering wheel. The RCMP forensic investigation recovered ten allele variants that are all present in Mr. Vader's DNA profile. However, PCR amplification of the DNA extracted from the blood sample did not produce another five alleles present in Mr. Vader's profile. No PCR amplification products were recovered for the FGA, DI 8 and 07 alleles. Dr. Libby simply discounts the validity of this profile as evidence because of the possibility that the 'missing alleles' may have excluded Mr. Vader as a potential match: Counsel for Mr. Vader: Help us with that. What concerns did you observe in that regard, please? Dr. Libby: Well, again, this is the same issue as what we have discussed before. There is incomplete profiles that - no less than three loci, that being FGA, DI 8, and D7. So if there had been data provided for that, or which were interpretable, it's unknown how that data - what that data would have revealed. [237) Once again I reject Dr. Libby's approach where anything less than a 100% match of DNA profiles is inconclusive. I accept the Crown's evidence and find that Mr. Vader's DNA was recovered from the passenger seat. 5. The Risk and Probability of Environmental Contamination and Coincidental Transfer of DNA [238) A major theme of the Defence argument is that innocent explanations exisl for the otherwise polentially incriminating admission that Mr. Vader's DNA was located in the McCann SUV when it was recovered. This evidence has three themes: 1. RCMP investigators created spurious positive results when they contaminated evidence and substrates, 2. DNA is readily spread, and detected even in very small amounts by modem forensic DNA analysis procedures, and Page:45 3. Mr. Vader could have done something innocent, like leaned into the Mccann SUV, sneezed, and that then spread his biological material and DNA into the vehicle. Biological material could then be further spread by other individuals who touch Mr. Vader's biological materials, and transfer those to other surfaces. [239) Defence counsel argues these are possible innocent explanations for Mr. Vader's DNA being linked to the McCanns' property, and that means I should not conclude Mr. Vader is substantially linked to that property. [240] I have already disposed of the first argument. What remains is whether some innocent action could place Mr. Vader's DNA where it was found. [241] The Defence focused much cross-examination on this point For example, during crossexamination Ms. Skipper confirmed that DNA samples can be obtained from materials spread by coughing and sneezing, but opined these sources are not an issue for in-lab contamination. Ms. Skipper stressed this is a theoretically possible explanation, but DNA is more likely to be recovered from a concentrated source, rather than an aerosol of mucus and/or saliva. [242] The Defence then postulated that materials could be transferred from the 'sneezer' to a 'sneezee' who then spreads the biological material further around the SUV interior. Ms. Skipper observed that second and tertiary transfers result in less and less material being deposited, analogous to how a dog with muddy paws leaves Jess and less mud over time and material is deposited. This is a common-sense proposition also made by Justice Topolniski and confirmed by the Court of Appeal in R v Awer at para 75. 6. Dr. Libby as an Expert Witness [243] Having completed my review of the forensic DNA evidence and the expert testimony that I received, it is now appropriate to make some general comments on the weight I place on how DNA forensic analysis evidence was interpreted and the conclusions advanced by the Crown and Defence. This recaptures earlier statements, and is something of a review. [244] First, I accept and prefer the evidence of the Crown forensic DNA analysis expert witnesses. They_were cautious and careful. While discussing a technical field they were helpful in how they framed complex issues and facts to assist the Court. They illustrated their reasoning with examples: e.g. Ms. Skipper explained why care should be taken when evaluating smaller electropherogram peaks via comparisons with baseline fluorescence. Their evidence was helpful. When asked to substantiate their opinions these experts referenced their lab records and recorded data and explained their meaning and the reasoning used to build the opinion. They were careful to identify unusual scenarios which may lead to unexpected or atypical results. [245) I have previously commented on many issues I have identified in Dr. Libby' s evidence. These range from non-answers, what appear to be factual errors, and interpretation of the unchallenged RCMP forensic DNA analysis data which uses loaded language and ignores the obvious, even when this is pointed out in detail. Dr. Libby's evidence was nothing but "there might be another possibility", and yes, in life there are usually other possibilities. Some are more likely than others. However, the standard demanded by Dr. Libby is not logical or reasonable, and the fact he could not explain why his alternatives were plausible illustrates that very fact. Page: 46 [246] Dr. Libby was permitted to give evidence because forensic DNA evidence is complex, technical, and involves a subject domain outside common experience. This kind of expert assistance clearly meets the R v Mo/Jan criteria for admission. Dr. Libby apparently has the kind of educational, technical, and professional expertise to speak on how and to what degree the RCMP forensic DNA evidence links Mr. Vader to the missing McCanns and their property. I qualified him as an expert on that basis. (24 7] However, l put no weight on his evidence. First, as my survey has indicated, Dr. Libby was neither a credible nor a reliable witness. l come to this conclusion because of the general and specific issues J have previously reviewed. For example, to me it is very strange that a proper expert, discharging his lkoria11 Reefer obligations, could review Lhe Boag's hat mixed profile data and not make a simple observation: Mr. Vader's allele profile is present en 1010, except for one allele. To instead announce "half the test failed to produce results" and say those gaps are ·'disturbing" and "troubling" can only be explained as an active attempt by the expert to mislead the finder of fact. Dr. Libby re-framed his analysis in a manner that guides the finder of fact, me, who depends on his expertise, down a blind alley and away from the core question on which he was to assist: is that Mr. Vader's biological material on Lyle McCann's hat? [248) I reject that Dr. Libby was a "witness for the court". He was an advocate for Mr. Vader. Dr. Libby was admitted as an expert, but did not conduct himself as an expert should. I do not reach this conclusion lightly, but only after very careful review of Dr. Libby's testimony and in light of his previous appearance in this Court. As I noted earlier, there is a pattern here. [249} Dr. Libby was not an independent expert but instead acted as a hired gun for the Defence. He was qualified as an expert but did not conduct himself in that role. I therefore place no weight or value on his opinion evidence and his interpretation of whether Mr. Vader's DNA was recovered from the McCann SUV and its contents. 7. Conclusions on DNA Evidence [250) In conclusion, I find that contamination was not an issue in this investigation. While possible, there is no evidence to suggest cross-contamination of some fonn occurred. [25 I] Mr. Vader·s DNA was located in multiple locations from the SUV and objects inside the SUV. Lyle McCann's DNA was recovered from the Boag' s hat. Marie McCann's DNA was recovered from the No Name Cans. [252} I find as fact that biological material originating from these people were the source of the DNA that was recovered, extracted, amplified, and analyzed. C. Findings of Fact [253] ln summary, I make the following findings of fact: I. the No Name Cans and the Boag's hat have blood stains that contain the McCanns' DNA; 2. Mr. Vader's DNA was recovered from several locations in the McCann SUV, from the Boxer Beer can recovered from the SUV, and a tissue in the SUV; 3. the Boag' s hat is stained with blood, and while the majority of those blood stains are from Lyle McCann, at least one stain also includes biological material from Mr. Vader; Page:47 IV. 4. blood from Marie McCann was sprayed b.y an impact onto some of the No Name Cans purchased by the McCanns on July 3, 20 IO; the point of the impact was close to those cans, 5. blood from Lyle McCann was both dropped on and sprayed across the top of the Boag·s hat, and 6. part of the Boag's hat was penetrated by a bullet fired perpendicular to the plane of the brim of the hat, and the bullet was not fired from a great distance. Preliminary Issue - W(D) Analysis of Vader's Exculpatory Statements (254] The Defence argues and as I understand it the Crown accepts that Mr. Vader made a number of exculpatory statements that should be subject to a special procedure that is used when an accused person testifies and denies criminal conduct. This is the appropriate point to evaluate the evidentiary implications of a number of Mr. Vader's statements. A. Mr. Vader's Statements [255] In this case that testimony consists of pre-trial statements by Mr. Vader that were admitted for the truth of their contents. Mr. Vader identifies three categories of statements where he denied involvement with the McCanns' disappearance: • statements made during a Dec. 19-20, 2014 interview with RMCP officer McCauley; • an October 16, 2011 telephone call made by Mr. Vader while he was detained in the Red Deer Remand Centre (Exhibit 133, Session 138); and • statements to Donald Bulmer and Andrea Sexsmith that he was not involved in the McCanns' disappearance. [256] Mr. Vader engaged in what is an admittedly properly cautioned and voluntary recorded interview with the RCMP on Dec. 19-20, 2014. The Defence identifies a number of statements made in that interview as exculpatory: • "I didn't have anything to do with that shit you guys." • ·'From day one, the very first, you asked me, would you take a polygraph? Yes. Would you sign the paper for it? Yes. Did you guys me one? No. Did you get everybody else's polygraph? Yes." • "I wasn't there and I didn't do it." • " ... fucking everything that I've given you, everything I talk about is in that fucking disclosure. I didn't know fuck all, fuck all about anything until I read that disclosure so read the fucking shit. You know read it with an open eyes and take the fucking blinders off and read the fucking crap and you'll see the same shit I'm seeing." • "When that phone is being used ... I'm in fucking Peers with a truck... Yeah so I don't understand what the fuck. I seriously don't understand why the fuck, how am I supposed to be, how am r even connected to the shit?" --- ~ ..- . _,_ .... ~ ...... -,..,. ---- ...... -.... - _.. Page:48 • ·• ... it shows Dave use~ fucking um Myle's phone at seven twenty nine because Dave .tells the investigator well* when Myles shows up and Travis left I used Myle's phone to, to call * Sherry or text Sherry.'· (*indicates text line numbers 2006 and 2007 deleted from original in Defence written argument.] (257) Mr. Vader in that interview also denied any involvement with the Vopak and Boag's hats. Mr. Vader states he neither helped clean up the aftennath of the McCanns' murder, nor was he attempting to cover for someone. [258] I believe it is fair to simply summarize these statements as being that Mr. Vader categorically denied he had any involvement or contact with the McCanns. Whatever happened to the McCanns, Mr. Vader had nothing to do with any of it. B. Relevant Law 1. W(D) Procedure (259] The Supreme Court of Canada in R v W(D), [1991] I SCR 742 at para 11 , 63 CCC (3d) 397 ["W(D)"] instructed that a special three-step procedure is followed whenever an accused person testifies and provides exculpatory evidence: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [260) This analysis is followed to ensure that an accused person's evidence is not weighed against other witnesses. In that way the W(D) process ensures the burden of proof remains with the Crown. The order in which a trial judge makes findings of credibility and reliability is irrelevant, provided that a guilty verdict is not based on a choice between the accused's evidence and Crown evidence: R v Vuradi11, 2013 sec 38 at para 21, [2013] 2 SCR 639, citing R v CLY, 2008 SCC 2 at paras 6-8, [2008] 1 SCR 5. This is the "credibility contest" error that must be avoided: R v JHS, 2008 sec 30 at para 9, [2008] 2 SCR 152. 2. Witness Credibility and Reliability [261] An important but challenging aspect of a judge's work is evaluating witness credibility and reliability. This is a multifactorial analysis, but one ultimately grounded in common sense and human experience. In W/1ite v Tlte Ki11g, [1947] SCR 268 at 272, 89 CCC 148, the Court said: The issue of credibilitv is one of fact and cannot be detennined by following a set of rules that it is suggested have the force of law and, in so far as the language of Mr. Justice Beck may be so construed, it cannot be supported upon the authorities. Anglin J. (later Chief Justice) in speaking of credibility stated: by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge Page:49 and powers of observation, judgment and memory - in a word, the trustworthiness of their testimony, which may have depended very largely on their demeanour in the witness box and their manner in giving evidence.... The foregoing is a general statement and does not purport to be exhaustive. Eminent judges have from time to time indicated certain guides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate all the possible factors that might enter into the detennination. It is a matter in which so many human characteristics. both the strong and the weak. must be taken into consideration. The general integrity and intelligence of the witness. his powers to observe. his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth. whether he is sincere and frank or whether he is biassed, reticent and evasive. All these questions and others may be answered from the observation of the witness' general conduct and demeanour in detennining the question of credibility. [Emphasis added.] [262] Witness evidence may be compromised by either credibility or reliability. It is up to the finder of fact to detennine whether he or she believes a witness, and whether the witness's capacity to provide evidence can be trusted. C. W(D) Steps One and Two [263] The first step of the W(D) analysis requires that I evaluate Mr. Vader's statements, and if I believe Mr. Vader's statements that he had no involvement or exposure to the McCanns then l must acquit Mr. Vader. [264] This analysis is quite simple. I do not believe it is necessary that I parse the manner in which Mr. Vader gave his statements or their details. Mr. Vader's claim that he is utterly uninvolved is contradicted by clear forensic evidence that I have already reviewed which indicates Mr. Vader had interacted with the McCann SUV and its contents: • Mr. Vader's DNA was located on the SUV steering wheel, • Mr. Vader's DNA was extracted from a blood stain on the centre console armrest of the SUV, • Mr. Vader's DNA was recovered from a tissue located in the SUV, • Mr. Vader's DNA was located on the Boxer Beer can located in the SUV, • Mr. Vader's DNA was located in a blood stain on the back of the front passenger seat of the SUV, • Mr. Vader's fingerprint was located on the same Boxer Beer can, • Mr. Vader's DNA was recovered from the Boag's hat that also was the source for multiple samples of Lyle McCann's DNA, and • Mr. Vader's DNA was recovered from the Vopak hat. [265] The fact Mr. Vader is linked to the McCann SUV in this matter is in itself sufficient basis for me to not believe Mr. Vader. I now move to the second step of the W(D) analysis. At this Page: 50 step l'JlY task is to evaluate whether Mr. Vader's statements leave me.with a reasonable doubt. If so, I must acquit. [266} In many W(D) analyses this is a perfunctory step but in this in.stance a more detailed analysis is required because of an argument advanced by the Defence. DNA is readily spread and shed, and PCR-based DNA forensic investigations are highly sensitive. The Defence argues that means the fact DNA was located in association with the McCanns' property and which matches the characteristics of Mr. Vader is of limited probative value. Instead, what the Crown's experts located could plausibly be a consequence of some form of indirect or accidental transfer, and that should raise a reasonable doubt. [267} In his concluding argument the Defence counsel emphasized sneezing is the most relevant mechanism that could lead to misleading resu!ts. [268) First, l note this 'DNA spreads everywhere' position is a significant, if not surprising departure from the broad application and acceptance of DNA forensic evidence as a definitive mechanism to link persons to biological samples in criminal and other legal matters. Beyond that, the possibility of chance biological material contamination being a relevant factor and plausible innocent explanation decreases with each 'hit' . Here, it is not just one location and item that was linked to Mr. Vader via DNA evidence. Instead, multiple items and locations are involved. It would indeed be a mighty and uniquely targeted sneeze that spread biological contamination to such a degree within the McCann SUV. [269} Beyond that, there is Mr. Vader's fingerprint on the Boxer Beer can that also carried his DNA. This means, at the very least, that Mr. Vader touched that can, and the can then, somehow, found its way to the centre console of the McCann SUV, and then the sneeze aerosol also landed on the can. Defence coun~ei has stressed it is possible that at some point in the past the can may have been manhandled elsewhere by Mr. Vader. While that is true, that is again just an empty hypothesis without any supporting, corroborating, or logically associated evidence. A hypothesis of that kind does not raise a reusonable doubt, particularly where there is n more logical basis to combine those two facts : Mr. Vader was drinking from the Boxer Beer can, and in the process left both his DNA and a fingerprint. [270] I therefore conclude that Mr. Vader's evidence, although I do not believe it, also does not raise a reasonable doubt. Instead, I find as fact and beyond a reasonable doubt that Mr. Vader did interact with che McCanns' property, and that interaction must have occurred between the time when the McCanns disappeared on July 3, 2010, and when the McCann SUV was located by Ms. Samson-Roader on July 16, 2010. (271} The remainder of this decision deals with whether or not the evidence of the Crown and the Defence, considered as a whole, proves beyond a reasonable doubt that Mr. Vader murdered Lyle and Marie McCann. My conclusion that Mr. Vader interacted with the McCanns' property after their disappearances does not make him guilty. That question will now be considered as I move to the third step in the W(D) procedure. V. Additional Evidence (272] The next step in this decision is to evaluate other evidence entered by the Crown and Defence. This evidence falls into a number of categories: Page: 51 I. Telecommunications evidence of the use and location of a number of phones, including telephone calls and text messages. Mr. Vader is allegedly linked to a number of these phones. 2. Witnesses who have interacted with Mr. Vader or property associated with Mr. Vader and the McCanns. 3. Recorded conversations that involve Mr. Vader, including recordings of telephone calls made while Mr. Vader was detained in Alberta remand centres, and 'jail cell' recordings of Mr. Vader in conversation with a detainee who was cooperating with the police investigation. 4. Additional forensic and expert evidence. [273] The underlying telecommunications data and records that were collected and entered as evidence were the subject of several Defence voir dire applications that sought to limit or exclude this infonnation as evidence. That led to several reported decisions: R" Vader. 2016 ABQB 287; R" Vader, 2016 ABQB 309. In the latter decision I admitted the disputed evidence, but deferred an alternative analysis where that evidence might hav~ been nevertheless admitted under Charter, s 24(2) until the trial final argument. Although I reminded the Crown and Defence of this outstanding issue neither made submissions on the alternatives 24(2) analysis. I have nevertheless prepared written reasons to facilitate appellate review on this point. That material is attached to this judgment as Appendix A. [274] The parties also contested admission of statements made by Mr. Vader's sister, Bobbi-Jo Vader. I admitted certain parts of those statements (R " Vader, 2016 ABQB 266) and will comment below on Ms. Vader's evidence and the weight to be assigned to it. A. Telecommunications Evidence - Overview (275) A major component of the Crown's case relates to the use of several cell phones, which it argues were operated by Mr. Vader. This evidence includes telephone calls from cell phones and occasionally from and to landlines, as well as text messages, and when and where these communications occurred. While evidence was admitted for a number of cell and landline telephones, two cell phones are particularly important: 1. a black LG cell phone purchased by Mr. Vader, and a related subscription contract from Virgin Mobile set up by Andrea Sexsmith [the '"Sexsmith phone'"]; this cell phone was used personally by Mr. Vader, and 2. an LG cell phone owned and operated by the McCanns [the "McCann phone·'], which the McCanns took with them on trips but only used in emergencies. [276] Jn this part of the decision r review telecommunications records evidence and expert testimony concerning that infonnation. This infonnation, on its own, is of limited relevance unless it is linked to additional evidence that establishes the identity of the person who was the actual operator of a particular device at a certain time. That evidence comes largely from witnesses whose testimony I subsequently review. [277] Last, the telephone and text message communications will be examined in detail to see what patterns exist and inferences that may be drawn from those patterns. I will also consider whether the infonnational content of text messages may be admitted '%r the truth of its contents". As I subsequently explain, the meaning of this phrase is awkward in a situation such _ .... ... ...._..... --·- Page: 52 as this where the Court is required to consider both whether certain telecommunications records are accurate, and to what degree the "speakers" are conveying information in an accurate and reliable manner. (278] However, before starting on this review I stress a key organizing fact. On July 3, 20 I0, between 14:14 and 14: 19 MDT the McCann phone was used to make a series of telephone calls lo a phone operated by Amber Williams. That was then followed by two text messages, and at 15:55 MDT one last telephone call. There is no dispute that the McCanns had no link to Amber Williams. The Crown argues that the operator of the McCann cell phone is logically involved in the McCanns' disappearance. The Crown says Mr. Vader was the operator of the McCann cell phone on July 3, 2010. B. Cell Phone Location and Usage Data [279) The Crown's case includes telecommunications records that were entered in evidence. This evidence took three general forms, telephone calls, phone text messages or "SMS", and Internet browsing. ln these cases this information included (where applicable) the numbers of the source and recipient telephones, the call time, the call duration, and in cases where phone calls were made from cell phones, information as to which cell phone tower was involved in particular communications. The Court also received information on who were the owners and/or subscribers of the involved telecommunications devices. That, of course, does not prove who actually used a particular device on a given occasion, however those records are relevant to that question. [280] This evidence was in documentary form, and was introduced through a number of witnesses. These individuals were employees of telecommunications companies which received warrants from the RCMP for the production of telecommunications activity records. (281] Lyne Langlois, an employee of Bell Canada, provided subscriber and phone activity information from the Virgin Mobile company that related to a cell phone with the number (780) 726-1685, which is the Sexsmith phone. The contract for this phone was with Andrea Sexsmith. This was a prepaid Virgin Mobile phone. Ms. Langlois indicated that one can receive but not send text messages when a Virgin Mobile prepaid phone's paid time is exhausted. $25.00 in phone time was added to this phone on July 3, 2010 at 18:29 MDT (20:29 EDT). This purchase was made via a voucher that had been purchased at an earlier point by Mr. Olson. [282] William Donald Nelson, an employee of Telus Communications, provided infonnation recorded by Telus that related to the activities of the Sexsmith phone. Some of this infonnation overlapped with the Virgin Mobile data, but the Telus infonnation also identified the cell phone tower(s) that were involved at the beginning and end of an attempted or completed telephone call. This is because the Virgin Mobile service used Telus towers. Mr. Nelson also provided data linking Telus cell phone tower lD's to physical/geographic locations. [283) Joanne Strawson provided subscriber and phone activity data from Telus Communications. She also provided a map of five cell phone towers located in the Edson and Edmonton areas, circa July 2010. Ms. Strawson provided subscriber account and activity for cell phone number (780) 920-6796, which was registered to Lyle McCann, and has been defined as the McCann phone. This was a "postpaid account", which had no limit on use, but instead the phone·s subscriber (Lyle McCann) was subsequently billed for activities on that device. Like other telephone records, Ms. Strawson introduced evidence on when the McCann phone was Page: 53 used, the source and recipient telephone numbers or IP addresses, and the cell phone tower(s) that were in use at the start and end of a telephbne call. Ms. Strawson introduced the equivalent infonnation for a number of other cell and regular telephones, as well as billing invoices, including: • (780) 891 -0283 - subscriber Dave Reed - prepaid account (there is uncontested evidence this cell phone was operated by Amber Williams), • (780) 517-0976 - subscriber Donald Bulmer - prepaid account, • (780) 693-2453 - subscriber David Olson - landline, • (780) 517-0943 - subscriber Sheri Campbell - prepaid account, • (780) 999-2823 - subscriber Bobbi-Jo Vader - postpaid account, • (780) 289-7996 - subscriber Esther Croswell - postpaid account, • (780) 642-0258 - subscriber Esther Crosswell - landline. [284] While Ms. Strawson made some statements on the interaction of cell phones and the larger cell phone telecommunication system I put no weight on that evidence and instead prefer infonnation that was provided by technical witnesses whose evidence I will summarize in due course. I. Cell Phone Location Data [285) The Crown's documentary evidence concerning the cell phone and text message activities was not seriously challenged and instead the Defence acknowledged it was inherently reliable as a kind of business record of mechanically recorded data. My approach to this infonnation parallels that by Gennain Jin R v Didec/1ko, 2016 ABQB 376, where he concluded infonnation of this fonn is highly reliable. At para 59 he stated that "...the location of the towers, the details of the various transmissions, and the timing of those transmissions is proven to absolute certainty." The question of where a particular cell phone is located is less certain (para 59), but overall the appropriate approach is an exercise of common sense (para 62): ... How certain are we that the device is near the towers involved depends on common sense. It is highly likely that physically the nearest tower is also the emitter of the strongest signal and that the device is near that tower, although there can be and were exceptions. [286] Cell phone tower tracking on its own may not provide a basis to draw a conclusion beyond a reasonable doubt, but that infonnation combined with other reliable data is a powerful basis to make findings of fact: para 83. [287] In this case two Crown witnesses provided evidence on the potential implications and inferences that I could draw from the data on how cell phones accessed communication towers. Bruce Funk, a consultant testified, but I did not qualify him as an expert. His observations are summarized below. [288] Electrical engineer Mr. Giancarlo Pomponi was qualified as an expert on the capabilities and operation of the Telus cell phone network in 20 I 0. He was in many ways the ideal person to explain the potential use, relevance, and limitations of records on the location of.cells phones in relation to particular cell phone communications towers. From 1982 he had been involved in the ,.., .- -- - - ,... ,. Page:54 deployment and upgrading of cell phone communications networks used by Telus and its predecessors. He is the network design and planning engineer for the Edmonton market. He is directly familiar with each of the cell phone towers that are involved in this case. Mr. Pomponi explained how the placement of cell phone towers is a process that considers location options, and anticipated usage loads. His education and knowledge is as much a consequence of decades of working in this domain as his fonnal education, which was also impressive. [289) Mr. Pomponi outlined the operation of cell phone networks. When a cell phone attempts to initiate communications the cell phone contacts the cell phone tower which is emitting the strongest signal. Signal strength is generally an indicator of signal quality. The cell phone and tower engage in handshaking exercises to establish bidirectional communication. The tower then links the cell phone to a central facility, the mobile switching centre, in this case Bonnie Doon in Edmonton, which directs the cell phone call to its destination number. [290] Cell phone towers are sometimes augmented by repeater stations. This is a kind of cellular communication site that acts as a second antenna and broadcaster based on a 'parent' cell phone tower. A repeater station connects with cell phones, and then passes that signal to its 'parent' cell phone tower. Networks treat a parent cell phone tower and its repeaters as a single unit, so cell phone records do not distinguish between a cell phone call to a tower or its repeater( s). [291] Mr. Pomponi indicated that the only repeater station operated by Telus in the relevant area and period was a repeater at Smithfield, east of Wabamun. The repeater has a comparatively short range, and will only connect to cell phones within about five kilometers of the repeater's location. [292) A cell phone tower's area of service is affected by many variables. Higher towers generally have a longer range. Undulating terrain can create shadows which are not reached by cell tower signals. In most cases a cell phone tower in the Telus network has a maximum operational range of 30 km, however a highly elevated tower on smooth terrain may have a maximum range of SO kilometers. The Mayberne cell phone tower is one that may operate at that large a radius. Mr. Pomponi reviewed the locations and names of the other cell phone towers in the Highway 16 area between Edmonton and Edson. (293] On cross-examination Mr. Pomponi was asked about whether he was aware of any privately operated repeater stations, and indicated he knew of none in the relevant area. Repeater stations of that kind, however, have a very limited radius for accepting cell phone communications that are then shunted to a 'parent' cell phone tower. Mr. Pomponi indicated a maximum range of "a few hundred meters and that's it." Mr. Pomponi was explicit in rejecting a Defence counsel proposition that cell phone towers may potentially have a range of over 50 km. (294) Mr. Pomponi also explained how cell phone call quality is principally a reflection of the number of calls being directed through a particular cell phone tower, since those calls have to share a spectrum channel. The issues of cell phone tower signal strength and noise are based on the cell phone and tower's interaction. However, unless the threshold of signal strength to signal quality (noise) is met, cell phones always communicate with the geographically nearest cell phone tower. Page: 55 [295] Signal strength is a constant over time, since it depends on geography and tower location. Mr. Pomponi explained in detail how signal range can vary, but these are "slight variations", a matter of meters, not kilometers. [296] I accept Mr. Pomponi's evidence entirely. He was a careful, methodical expert witness who clarified points of confusion that may result from the manner questions were structured. He made admissions in a reasonable and thoughtful manner, and where he could not provide more information he explained why. [297] Derek Shawn Hawbolt was called by the Defence to comment on cell phone extenders. His business, Zip Comm Unlimited, provides extender services, generally for oilfield and petrochemical facility companies. Mr. Hawbolt's explanation of cell phone tower extenders was essentially consistent with that provided by Mr. Pomponi. He explained that his customers have his company set up extenders on worksites, typically for a short term duration. He estimated 18 days is an average duration. The extenders would aim at and interact with a cell phone tower chosen for a variety of factors, including signal strength, usage load, and sometimes because of quirks in operation that Mr. Hawbolt could not explain given limited to his knowledge. (298] Mr. Hawbolt explained that in 2010 many worksites used cell phone extenders, but he had no data on specific examples in the relevant period. He also explained that the maximum radius that a cell phone could connect to an extender is 500 meters. [299] While I acknowledge Mr. Hawbolt's testimony, my conclusion is that potential extender stations are irrelevant to my analysis. This was yet another of the Defence's empty hypotheses. It is indeed possible that some unknown, undefined, transient extender station could have been used during one of the cell phone calls that were tracked in the Crown's evidence, however the probability of that is low because of the short range of these extenders, and because the Defence identified no potential examples of this scenario. It is a hypothesis, disconnected from the facts of this case. (300] Further, my review of the cell phone records which follows can be just as readily (and is better) explained by known cell phone towers and the local geography. This is not to say I would never consider the possible role of unidentified private cell phone extenders, such as those deployed by Mr. Hawbolt, I would merely need some basis to infer an extender was in play. For example, if a single cell phone made two calls only a few minutes apart, but those two calls connected with cell phone communication towers that are very far apart and whose ranges do not overlap, then that could ·very well lead me to infer that the likely explanation is that one of the two calls was made via an extender that somehow connected to a distant tower. [301) However, there are no examples of any scenario like that, so I conclude that any cell phone extenders are irrelevant to this trial and my analysis. a. Cell Phone Tower Range Testing [302] The Crown called Mr. Bruce Funk to give cell phone telecommunications evidence, however in oral reasons on March 31, 2016 I refused to qualify him as an expert. I nevertheless did pennit Mr. Funk to provide the Court with the test results he obtained in 2011 to detennine which cell phone tower provided the strongest signal at various geographic locations that emerged as key points for evidence in this matter, and along certain highways and roads between these locations. Page: 56 [303] This information was obtained by Mr. Funk in 2011 travelling to these locations, then using a cell phone operating in a debug mode to connect to"the strongest signal in that location. Mr. Funk then matched the cell phone tower identification code with a Telus cell phone tower. The results of these test calls were then plotted on maps along with the geographic location of certain cell phone towers. These maps were entered as Exhibit 30. [304] While I will not detail all of the information on these maps, there are several points that are relevant to this case: I. The Mayberne cell phone tower provided the strongest signal in the Edson region and then east, but did not produce the strongest signal in the Peers area, or south along Wolf Lake Road. 2. The Evansburg cell phone tower provided the strongest signal on Highway 16 between Wildwood and the Gainford Trading Post. 3. The Wabamun l eel I phone tower provided the strongest signal on Highway 16 as one moves further east out !Tom the Gainford Trading Post towards Edmonton. 4. The Chip Lake cell phone tower and Carrot Creek towers strength is comparable in the area immediately east of Mackay on Highway 16, with the test phone connecting to both towers. 5. The Carrot Creek cell phone tower provides the strongest signal from Mackay west to the intersection of Highway 32 and Highway I6. 6. The Minnow Lake campground area connects to a number of cell phone towers that were not used by the key cell phones in this investigation. 7. As one travels from Peers south along Highway 32, west on Highway 16, then south on Wolf Lake Road the strongest cell phone signal switches between the Pioneer and Carrot Creek towers. b. Cell Phone Towers and Key Locations [305] From the Crown's evidence it is possible to construct an outline of key geographic regions and the cell phones in the relevant area. Exhibit 184 was the source of this data, and measurements were made using that map and its scale to calculate approximate distances between certain cell phone towers, and locations that are relevant for this trial. This table is organized generally in an east to west direction, paralleling the direction the McCanns travelled. Balded items indicate the closest geographic locations to a particular cell phone tower. Items that are crossed out are locations that exceed the plausible operational range of the tower in question. Certain of these locations, such as the Olson residence and the Bulmer residence, are explained below. Cell pbone tower Approximate Approximate distance from displacement Edmonton in an north or south east to west off Highway 16 direction Key locations in vicinity Distance from cell tower to location ABI268 70km Wabamun Okm Okm I Page: 57 Wabamun I AB0604 130km 7 km south Chip Lake MacKay 13 km Bulmer residence 13 km Ford 350 stolen 16 km Carrot Creek 30 km Klelu~ AB0588 146km 4 km south Carrot Creek . FJ.§0 i:eee'rered ~ PeefS 3-7-km Peers 0Re Step ~ Olson resielenee ~ MeCEmft SUV reeoYereel ~ Miflflew Lake eampgre1:1nel ~ MeGB:Jln RV reeoYereel ~ Klehn tFuele Femains 68-km Carrot Creek Okm F350 recovered 8km Klohn truck stolen 8km F350 stolen 12 km Peers 12 km Peers One Stop 12 km Olson residence 12 km McCann SUV recovered 12km Bulmer residence 18 km MacKay 18 km Minnow Lake campground 30 km MeCaen RV Feee\'eFed ~ &iseR ~ Klehn AB0633 Pioneer 170km 20 km north ~ H"Helc sleleR tFUel~ RHHties 68-ffm Peers llkm Peers One Stop 12 km ... ... • ·-~ '"!'"-' - -·· ... Page: 58 l I AB0759 ! 35 km north 214 km Maybeme Olson Residence 12 km F350 recovered 16km Klahn truck stolen 17km McCann SUV recovered 19km Carrot Creek 22 km F350 stolen 30 km E956fl ~ MaeKay ~ Bt1lmer resielenee ~ Minnow Lake campground ~ MeGMA RV recoi,·ered ~ Kloi:tn tmel< reffieins 89-*m Edson 37 km PeefS ~ Peers 0Ae Stop ~ OlsoR resielenee ~ MeCann SUV reeoi,·ered ~ f3 50 reeo·,•ereel ~ Klehn truek slolea 6G--km Carrot Creek ~ Minnow Lake eamf)gro1:1nd ~ MeCann RV reeovereel ~ F350 stolen ~ KlokR lR:tel< remains 115 l