2015-12-15 Paula Simons: Edmonton judge’s ruling exposes disturbing flaws in Vader case | Edmonton Journal

Paula Simons: Edmonton judge's ruling exposes disturbing flaws in Vader case

Published on: December 15, 2015 | Last Updated: December 15, 2015 9:40 PM MST

Paula Simons explains the developments in the Travis Vader case. Video by Donna Christensen

For four years, 600 different RCMP officers tried to gather enough evidence to convict Travis Vader of the murders of Lyle and Marie McCann.

They investigated tips. They met with informants. They set up wire taps. They put an undercover officer in a police cell near Vader. They ended up with a 34-hour audio tape that gave them next to nothing. Mounties concocted an elaborate ruse where they "hired" Vader’s sister, Bobbi Jo, to do odd jobs, with undercover agents posing as her co-workers. They travelled together across the province and as far as Winnipeg in the hopes she’d drop something in conversation that incriminated her brother.

Steven Penney, a professor of criminal law at the University of Alberta, says he’s never seen anything like it.

"I’m not saying it’s unprecedented. But it’s fair to say it’s very unusual. They were very, very, very motivated to get this guy."

The details were contained in court documents made public Tuesday, after Justice Denny Thomas of the Alberta Court of Queen’s Bench lifted a publication ban. They show that the RCMP did collect what they considered to be DNA evidence linking Vader to the disappearance of the St. Albert seniors, who vanished while traveling by motorhome across Alberta in July 2010. RCMP also believe Vader used the McCanns’ cell phone the day they disappeared. While they haven’t found the McCanns’ remains, the documents say police did find a hat with a bullet hole, which belonged to Lyle. They also found Marie’s blood in the couple’s SUV.

Yet in four years, those 600 RCMP officers created so many documents, so many hours of video and audio recordings, it seems they lost track of what they’d collected. They buried themselves under a mountain of so much "evidence" — some of it of very little value — they lost their way. Police and the Crown are required to disclose relevant evidence to the defence before trial so there are no unfair surprises. But by March 2014, less than a month before Vader was supposed to face two charges of murder, RCMP still had thousands of pages of material they hadn’t turned over. Weeks before trial, the Crown asked for an adjournment. The defence wanted to go to trial. Instead, the Crown stayed the charges against Vader — but re-charged him again last December. He’s now scheduled to go to trial in March.

But Vader’s lawyer, Brian Beresh, is asking for the whole case against his client to be thrown out, arguing that this was abuse of process, that the Crown gave itself an unfair advantage, effectively stopping the clock and giving itself extra time to investigate.

Meantime, Michelle Doyle, Edmonton’s Chief Crown Prosecutor, once the lead prosecutor on the Vader file herself, has been at very public pains to pin the blame on RCMP.

Penney calls it a "Keystones Kops" situation, where the left hand didn’t know what the right hand was doing.

"You had a case that became so complex and so unwieldy that the RCMP failed in fundamental ways to live up to their responsibilities."

It’s a mess, one that offers little prospect of justice for the McCanns or for Vader.

We know all this now, thanks to an unprecedented joint legal action by the Edmonton Journal, the CBC, CTV and Global. Together they filed an application to see the documents that Beresh had used back in 2014, to demonstrate the limits of the discovery he had received.

The court sealed the documents at the time. But once the Crown stayed the charges, the media applied to have them made public. The court agreed to let one designated representative from each of the four media outlets read the documents; but they were ordered not to talk about what they contained with anyone, including their colleagues. Last month, after the defence and the Crown agreed that Vader would be tried by a judge alone, without a jury present, the four media outlets asked for the publication ban to be lifted, arguing that making the documents public would not imperil Vader’s right to a fair trial, and would be in the public interest. This week, the judge agreed, after first ensuring the names of undercover officers would be kept confidential.

Fred Kozak, the lawyer who acted for the four news agencies, says this information was vital to the public interest.

"When an elderly couple in an RV go missing and five-and-a-half years later, you still know nothing about the case, people want some reassurance," says Kozak. "Now the public has context, so they can judge whether they think using 600 police officers this way was a good expenditure of public funds."

The legal threshold for a judge to find abuse of process is high, and Vader may still stand trial in March. But whether he goes to court or not, whether he’s acquitted or convicted, this abuse hearing has raised disturbing question about the way RCMP handled this investigation, and revealed worrisome rifts in relations between the RCMP and Crown.

Meanwhile, the McCann family faces another Christmas without answers, another Christmas of grief.

psimons@edmontonjournal.com

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