2016-09-15 Reasons for Judgement | CanLII

[1] On July 3, 2010 Lyle and Marie McCann [the "McCanns"] left their home in Saint Albert on a road trip to Cultus Lake in British Columbia where they were going to holiday. The McCanns travelled in a large Class A recreational vehicle [the "RV"] which towed a Hyundai Tucson SUV [the "SUV" or "McCann SUV"]. The McCanns had arranged to meet with their daughter Trudy Marie Holder ["Ms. Holder] and her daughter who were flying to Abbottsford on July 10. The four family members were then going to travel in the RV to Cultus Lake.

[2] The McCanns never arrived. This was the first inkling to their family that something had gone awry. Their failure to appear at the Abbottsford airport was very unusual. Ms. Holder immediately reported to the RCMP that her parents were missing.

[3] The McCanns were never seen again, dead or alive; however in the weeks that followed the discovery of evidence linked to them began to emerge. The first item was their RV on fire near Minnow Lake, south east of Edson. Their SUV was found at an abandoned farm near the intersection of Highway 16 and Range Road 144(W5M). On July 3, the McCann cell phone was used to communicate with persons unknown to the McCanns. Forensic investigators located blood from the McCanns on objects found inside the SUV. A hat worn by Lyle McCann was found in the SUV with a bullet hole and his blood on it. This is all circumstantial evidence.

[4] The RCMP investigation commenced on July 10 and soon focussed on one individual: Travis Edward Vader ["Mr. Vader" or "Travis Vader]. He told the police he had nothing to do with the McCanns. This decision is to determine whether that is true or not, and whether the Crown has proven beyond a reasonable doubt that Mr. Vader killed the McCanns and is guilty of first degree murder (Criminal Code, RSC 1985, c C-46, s 231).

A. Background

[5] Aspects of the background leading up to the disappearance of the McCanns are not in dispute. A number of the McCanns’ relatives (Ms. Holder, Bretton McCann, Mary-Ann McCann, and Alice Chalmers) and a friend and neighbour (Margaret Ann Muffitt ["Ms. Muffitt"]) testified as to the McCanns’ travel practices and their July 2010 plans. I previously issued a voir dire decision that admitted the hearsay evidence components of the three relatives’ testimony: R v Vader, 2016 ABQB 301 (CanLII), [2016] AJ No 579. I also accept the non-hearsay evidence of these witnesses, and Ms. Muffitt’s evidence on the general travel and holiday practices of the McCanns.

[6] The reliability of that evidence was challenged by the Defence; however I conclude that the criticism of these witnesses has no merit given their familiarity with the subject matter. Similarly, the Defence argued that I should consider potential alternative paths of travel, destinations, and so on, as potential and relevant alternative theories of what the McCanns did. I reject these submissions as empty hypotheses that are countered by the fact that physical evidence of the McCanns was subsequently recovered along their reported proposed path of travel. The Defence’s criticism of the Crown as "theorizing", a theme that will reoccur throughout this decision, instead applies to the Defence submitting alternatives without supporting evidence or elevated plausibility.

[7] In summary:

1. The McCanns had frequently holidayed with their RV and SUV.

2. The RV was used to tow the SUV. The key and fob for the SUV were stored in the RV.

3. Lyle McCann, as an ex-trucker, was an expert driver of the RV. The McCanns were habitually very careful with their vehicles and domestic practices. Their vehicles were always clean and appeared new.

4. The McCanns generally used the RV as their living quarters when on these trips. Marie McCann would cook many of their meals.

5. The McCanns carried a cell phone with them when they travelled. The cell phone was stored in the console area of the RV. The cell phone was generally used only for emergency communication and was otherwise left off.

6. The McCanns were observed in pre-trip preparations on July 2, 2010. Bretton McCann gave his parents a gift that they were going to take to his grandson. The McCanns indicated their plan was to leave on the morning of July 3, 2010, and their aim was to reach Blue River, British Columbia as their first day objective. Their next identified checkpoint was the July 10 Abbottsford rendezvous. Ultimately they were to arrive at Cultus Lake.

7. The McCanns had made reservations at the Holiday Park Resort in Kelowna for July 5-8, and Cultus Lake for July 8-22, 2010.

8. The McCanns’ failure to appear in Abbottsford was out of character, particularly in light of the absence of any communications from the McCanns following their departure from Saint Albert.

[8] Evidence related to the McCanns was subsequently located by RCMP investigators. That investigation began on July 10, 2010. Much of this evidence was initially introduced via a photo book, then later by individual witness testimony.

[9] The McCanns were last observed by surveillance cameras at the St. Albert Superstore gas station and then in the Superstore groceteria on July 3, 2010. Receipts for their purchases made that day show they left the groceteria at or shortly after 10:08.

[10] The McCann RV was observed on July 5, 2010 at Minnow Lake. Minnow Lake is located approximately 24 km south of Highway 16. Highway 16 is a logical travel corridor to reach Blue River. In the early morning hours, around 06:30, Rolf Wenaas, the manager of the Minnow Lake campground, had seen the RV and SUV parked in #8 site of that campground. On that occasion, and later at about 12:30, he knocked on the door of the RV to collect campground fees and then waited on both occasions, but there was no sign of anyone present. Later that day, at around 19:00, the RV was found on fire on a closed road a short distance away. Little remained after firefighters extinguished the fire, though the vehicle was subsequently identified by its licence plate. The wreck and debris were later moved to the Edson area landfill. The cause of the fire could not be determined. Immediate examination of the RV by the firefighters and subsequent forensic examination of the transported RV remnants did not detect any human remains.

[11] The McCann SUV was subsequently located on July 16 on a property (the "Samson-Roader property") adjacent to the south side of Highway 16. This unoccupied farmstead had been broken into, disturbed, and vandalized sometimes between the fall of 2009 and July 2010. The SUV had been driven hard into a stand of trees. Its exterior was dirty. An empty Boxer Beer carton was located nearby in an area next to the vandalized mobile home on that property. The grass in that location appeared to have been compressed and bent down by a large vehicle.

[12] When the SUV was subsequently examined in an RCMP garage it was found to contain a number of items, including a can of Boxer Beer in a cup holder in the console between the two front seats, a propane tank in a shopping basket in the back, along with several loose potatoes. Superstore "No Name" brand cans of food products were also recovered. These cans matched the type of food products that were purchased by the McCanns from the St. Albert Superstore on July 3, 2010 at 10:08.

[13] Two baseball hats were located in the SUV. One had the text "Vopak" [the "Vopak hat"], while the other had a logo and text for Boag’s Draught [the "Boag’s hat"]. The Boag’s hat had a small hole in its brim.

[14] The video images of Lyle McCann captured at the St. Albert Superstore on July 3, 2010 show him wearing what appears to be the Boag’s hat.

[15] Blood was located in a number of locations in the SUV, on the Boag’s hat, and on the Superstore "No Name" cans ("No Name Cans").

[16] A key and key fob that opened the McCann SUV was subsequently located in a 2006 Ford F350 pickup truck [the "F350"] that had been found north of Highway 16 and east of Edson on July 17, 2010. The F350 had been reported stolen on June 28, 2010. When located, the interior cab of the F350 was partially burned.

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

B. The Case Against Mr. Vader

[18] Mr. Vader is charged with two counts of first degree murder:

Count 1: On or about the 3rd day of July, 2010, at or near the Hamlet of Peers, in the Province of Alberta, did commit first degree murder of the person of Lyle McCann, contrary to section 235(1) of the Criminal Code of Canada.

Count 2: On or about the 3rd day of July, 2010, at or near the Hamlet of Peers, in the Province of Alberta, did commit first degree murder of the person of Marie McCann, contrary to section 235(1) of the Criminal Code of Canada.

At the opening of the trial Mr. Vader was arraigned on these charges, and entered pleas of not guilty.

[19] The Crown admits that the case against Mr. Vader is circumstantial, but argues that there is only one reasonable inference that can be drawn from that evidence: Mr. Vader killed the McCanns. The Defence argues the necessary standard of proof has not been met.

[20] Since this is a circumstantial evidence case I review in detail the various forms of evidence introduced by the Crown and the Defence. That starts with forensic evidence obtained from materials that are clearly linked with the McCanns. Next, I evaluate Mr. Vader’s 2014 statement to the RCMP where Mr. Vader denied he was in any way involved with the missing McCanns. My analysis then expands to review:

1. 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.

1. 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 the burnt RV, and the RCMP investigation has uncovered evidence that suggests violence. Any other alternative is simply implausible.

[24] The murders occurred on July 3 between 10:00 when the McCanns were seen at the St. Albert Superstore and 14:14 when Mr. Vader used the McCann cell phone in an attempt to contact his ex-girlfriend Amber Williams. The Crown suggests the murders occurred near Peers, Alberta, though the exact location is unknown.

[25] Mr. Vader is a methamphetamine addict.

[26] Much evidence links Mr. Vader to the McCanns. Crown witnesses David Olson and Myles Ingersoll saw Mr. Vader 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 McKay-Crosswell ["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’.

[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 form that is inconsistent with other biological evidence identified in the SUV. This means the activities that caused the blood spatter occurred elsewhere, and the blood-contaminated objects were subsequently placed in the SUV.

[30] Cell phone records, text message information, and witness evidence clearly established that Mr. Vader was using the 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 Kowlyk, 1988 CanLII 50 (SCC), [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 Ominayak, 2010 ABCA 152 (CanLII) at 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 (CanLII) at paras 46-47, [2005] 1 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), 1987 ABCA 135 (CanLII), 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 1980’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 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 number of other witnesses say they saw the McCanns alive and at Minnow Lake with their vehicles on July 4, 2010. Further, the Defence argues that Mr. Vader could not have destroyed the McCann RV because three witnesses, Bobbi-Jo Vader, Andrea Sexsmith, and Esther McKay saw him in Edmonton during the relevant time.

[36] Sharp criticism is advanced on the testimony and reliability of key Crown witnesses David Olson and Myles Ingersoll. Counsel for the Defence characterized these individuals as conspirators who had concocted their evidence and did so for personal 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.

[37] 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 electropherograms" 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 (CanLII), 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 F350 were manufactured and planted by the RCMP:

... The RCMP not only had the opportunity to plant the SUV key in the truck but, at that time, they also had the means (i.e. the SUV had been in their possession for one month now and keys could have easily been cut) and a strong motive to tie the vehicle to Mr. Vader.

[41] The Crown’s characterization of Mr. Vader as a drug addict is unfair. There is no evidence to support Mr. Vader was 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 stealing 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 with jailhouse informant Mr. Cardinal are nothing more than "jail talk" that cannot be taken seriously.

[43] The Defence also stresses that Mr. Vader’s 2014 exculpatory statement to the RCMP must be reviewed in isolation to 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 Lifchus, 1997 CanLII 319 (SCC), [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.

[45] This principle that I am required to evaluate whether Mr. Vader is guilty beyond a reasonable doubt does not apply to other, auxiliary findings of fact. In R v Redford, 2014 ABCA 336 (CanLII) 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 CanLII 789 (SCC), [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: Criminal Code, s 222(5). Culpable homicides are either murder, manslaughter, or infanticide: Criminal Code, s 222(4). Here, infanticide is irrelevant. A culpable homicide that is not a murder is manslaughter: Criminal Code, s 234.

1. Murder

[47] Murder is defined by Criminal Code, s 229:

229 Culpable homicide is murder

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

(i) means to cause his death, or

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

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause 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 harm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

[48] Criminal Code, s 230 indicates that a culpable homicide is also a murder where a death is caused while committing a range of offences, 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:

231(2) Murder is first degree murder when it is planned and deliberate.

...

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of 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);

(d) section 273 (aggravated sexual assault);

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

(f) section 279.1 (hostage taking).

...

[52] A "planned" murder is one that "was conceived and carefully thought out": R v Nygaard, 1989 CanLII 6 (SCC), [1989] 2 SCR 1074 at para 18, 101 NR 108. Evidence of a "scheme" or "design" in place prior to the murder is required to conclude that a murder was planned: R v Turningrobe, 2007 ABCA 236 (CanLII) at paras 11, 135, 296 DLR (4th) 434, dissent confirmed en toto 2008 SCC 17 (CanLII), [2008] 1 SCR 454.

[53] A "deliberate" murder is one that is "considered, not impulsive" (R v More, 1963 CanLII 79 (SCC), [1963] SCR 522 at 534, 41 DLR (2d) 380). A deliberate murder is when a person "thinks about the consequences," and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively: R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314 at para 26, 143 DLR (4th) 433. Deliberation does not involve a set minimum time period before a killing is committed, what matters is the act is not impulsive: R 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 Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471 at 82, 46 DLR (2d) 384; R v Griffen, 2009 SCC 28 (CanLII), [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:

1. was Mr. Vader attempting to commit a kidnapping, robbery, or arson,

2. did Mr. Vader intend to commit bodily harm to facilitate one of those offences, and

3. did death ensue as a result?

[57] If any of those three elements is not proven, then Mr. Vader is guilty of manslaughter.

C. Circumstantial Evidence

[58] The parties agree this case is one that relies solely on circumstantial evidence. When the Crown’s case is based solely 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 form of this principle is provided in R v Griffin, at para 33, that:

... in order to convict, [the finder of fact] must be satisfied beyond a reasonable doubt that the only rational inference that can be 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 (CanLII) has confirmed this threshold. Justice Cromwell (at para 32) indicates that "reasonable inference" is preferable over "rational inference", but that both are valid ways to express this threshold (para 34).

[61] Justice Cromwell continues to discuss the interplay of a "reasonable inference" of innocence, and "proven facts": paras 35-54. The key is whether one or more reasonable inferences can be drawn from circumstantial evidence (para 35):

... If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a 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 the potential implications of evidence or a lack of evidence (paras 36, 38):

... A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence 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.

[63] Reasonable doubt is not created by a "far-fetched possibility or fanciful conjecture" (R v Chin, 2014 ABCA 11 (CanLII) at para 42, 566 AR 288; see also R v Villaroman, at para 37), nor is a "possible" alternative inference necessarily reasonable and rational (R v Dipnarine, 2014 ABCA 328 (CanLII) at para 24, 584 AR 138; R v Villaroman, at para 37).

[64] A related issue is the question of opportunity. Some cases have revolved on whether an accused is the only individual who had an "exclusive opportunity" to commit an offense: R v Imirch, 1977 CanLII 27 (SCC), [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 CanLII 17 (SCC), [1987] 2 SCR 168 at 188-189, 43 DLR (4th) 424 the Court described that principle in this manner:

It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused 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 CanLII 19 (SCC), [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 proof of 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. In Imrich, for example, the evidence of exclusive opportunity was such that motive receded into the background.

[66] In conclusion, a finder of fact may convict on circumstantial evidence where the only rational conclusion is either that:

1) viewing the evidence as a whole, inculpatory and exculpatory, the only rational inference is that the accused committed the offence, or

2) the only rational inference when viewing the circumstantial evidence as a whole is that the accused had the exclusive opportunity 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 CanLII 20 (SCC), [1982] 1 SCR 811 at 825, 830-831, 136 DLR (3d) 89, Dickson J (as he then was) explained there is a danger of finding guilt based on the evidence received from a witness whose 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 confirmatory evidence: R v Kehler, 2004 SCC 11 (CanLII) at paras 19-20, [2004] 1 SCR 328. Consistent statements of a Vetrovec witness are not independent and corroborating confirmatory evidence: R v Couture, 2007 SCC 28 (CanLII) at para 83, [2007] 2 SCR 517.

[69] R v Chandra, 2005 ABCA 186 (CanLII) at para 10, 367 AR 290 expands on the rationale behind the Vetrovec witness rule:

... the warning will be required where the evidence of the witness is central to the Crown’s case and the credibility issues are major. In deciding whether a Vetrovec warning was necessary in a particular case, it is important to remember why such a warning is suggested. The object of the warning is to ensure that the jury is aware of the dangers inherent in the evidence of certain witnesses, dangers of 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 informers, who often proffer evidence in the hope of gaining some personal advantage. In those circumstances, where the evidence is important to the Crown’s case, a warning is generally mandatory because the inherent frailties of such evidence are not generally known to the ordinary member of a jury. Jurors may not be aware of a witness’s motivation to lie for the purpose of covering up his or her own involvement or gaining personal favours. [Emphasis added.]

[70] Justice Watts in R v Roks, 2011 ONCA 526 (CanLII) at paras 63‑66, 281 OAC 235 provides a useful summary for application of the Vetrovec witness rule:

... a Vetrovec caution is an instruction about the essential characteristics of confirmatory evidence. Jurors are to be told that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending to show that the untrustworthy witness is telling the truth about the guilt of the accused ... The trier of fact is to look for confirmation from some other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to show that the accused committed the offence charged (the implicative quality or materiality requirement). ...

The independence requirement insists that to be confirmatory, evidence must not be "tainted" by connection to the Vetrovec witness ...

To satisfy the materiality requirement, confirmatory evidence need not implicate the accused ... The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed the offence ... Where the only issue in dispute is whether the accused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on the basis of the Vetrovec witness' evidence ...

... a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth ... [Citations excluded, emphasis added.]

[71] As this passage explains, Vetrovec witness evidence may be accepted as reliable and credible under two circumstances:

1. where confirmed by independent evidence, or

2. where the finder of fact is satisfied that the Vetrovec witness is telling the truth.

III. Review and Findings in Respect to Forensic Evidence

[72] I concentrate first on forensic evidence that the Crown entered in relation to items linked to the McCanns.

[73] Much evidence was entered to establish continuity of the evidence collected and entered by the Crown. This was summarized in Trial Management Exhibit 2. I have reviewed that exhibit and given the accompanying testimony I am satisfied that continuity has been established for the evidence entered at trial, including forensic evidence. I note that the Defence did not advance any specific complaints in relation to potential continuity defects, other than potential access by third parties to the F350.

A. Forensic Evidence Recovered in the RCMP Investigation

[74] As described in the background to this judgment, the RCMP investigation identified information that suggests something bad happened to the McCanns, and that Mr. Vader is potentially involved. This evidence falls into several categories:

1. locations and items where property and/or forensic evidence linked to the McCanns was identified;

2. fingerprint evidence,

3. blood located on certain objects and areas, and

4. forensic DNA analysis from potentially relevant items.

[75] As a brief overview, the Crown argues that the evidence it has entered establishes that Mr. Vader interacted with property that belonged to the McCanns, and that the McCanns were the subjects of some kind of violence.

1. Fingerprint Evidence

[76] Fingerprint evidence was introduced by Corporal M.E. Donnelly and Corporal D. Benko, who were qualified as experts in friction ridge analysis and fingerprint forensic identification. Their evidence and conclusions were essentially the same.

[77] The McCann SUV was recovered by the RCMP on July 16, 2010. The exterior was too dirty for fingerprint analysis. However, various items were found inside the SUV and were examined. One was an aluminum Boxer Beer can that was recovered from a drink holder cup on the middle front seat console.

[78] Corporals Donnelly and Benko investigated that can, and identified a fingerprint on the Boxer Beer can that matched the right middle finger fingerprint of Mr. Vader. I have reviewed that match and accept their conclusion. The Crown’s witness evidence was not meaningfully challenged during cross-examination. While the fingerprint on the Boxer Beer can was only a partial print, Corporals Donnelly and Benko were confident this was a reliable match. There were no inconsistencies between the Vader and Boxer Beer fingerprints.

[79] While other fingerprint evidence was also introduced it is not directly relevant to the alleged offense scenario.

2. Firearms and Firearms Residue Evidence

[80] Chief Saskatchewan firearms officer Dean Dahlstrom was qualified as an expert in relation to firearms, tool marks, and the residues produced when a firearm is discharged. Mr. Dahlstrom is a forensic firearms examiner employed by the RCMP. His evidence focused on the Boag’s hat. He had examined that object and concluded that the brim of that hat had been perforated by a bullet that had passed through the top of the brim and exited out its bottom. The bullet’s trajectory was close to perpendicular to the plane of the brim. The bullet was travelling in a stable manner, which implied it had not already hit something or otherwise altered its orientation from a ‘nose forward’ position.

[81] The bullet that had caused this damage was fired in proximity to the hat, since the Boag’s hat exhibited firearms residue released by the discharge of a firearm. This residue was examined using a chemical-based visualization process. On cross-examination Mr. Dahlstrom explained that a more precise estimate of the distance between the firearm and the hat is only possible if the firearm and ammunition used is known. In this case that information was not available.

[82] Though this fact was not opined on by Mr. Dahlstrom, I conclude that the bullet damage to the Boag’s hat occurred sometime on or after July 3, 2010. I reach this conclusion on several bases. First, it is incongruous that a couple such as the McCanns, who are described as being neat and precise, would choose to wear clothing with bullet holes in them. The Defence has advanced a fanciful alternative that the damage to the Boag’s hat was caused by the McCanns themselves using the hat, presumably at close range given the firearms residue, as a target for a small calibre pistol. This is very strange and an unlikely fate for the very headgear being worn by Lyle McCann in the Superstore before their disappearance.

[83] Instead I conclude that it was not the McCanns who shot at and damaged the Boag’s hat. Someone else did that, and did so during the interval between July 3, 2010 and when the SUV was recovered.

3. Blood Location and Stain Pattern Analysis

[84] Blood was located at a number of locations and objects:

• on the Boag’s hat,

• on the Superstore No Name Cans, and

• in the interior of the McCann SUV.

[85] Several RCMP forensic investigators, Linda Rhodenizer, Pamela Marie Lilly, and Heather Janssens gave evidence on how potential blood stains were identified and the tests that were performed to confirm their character. This is a process that involves visual inspection of the subject, including microscopic examination, and chemical screening protocols. I accept the evidence of these witnesses and their explanation of the results of their investigations.

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

[87] RCMP Identification Section member Sgt. Adrian D. Butler was qualified as an expert in the interpretation and analysis of blood stain patterns. He explained this topic uses the size, shape, locations, and distribution of blood stains as a method to understand the physical events that caused the blood stain patterns. Since blood has a stereotypic composition its motion and behaviour outside the body follows predictable patterns based on blood’s physical properties and how blood responds to physical force and interaction with surfaces.

[88] This expert explained that blood stains can be divided into a number of subtypes. Drip stains are caused when blood drips off a source under the force of gravity and lands on a surface. A transfer stain is when an object with blood touches another object and blood is transferred during the contact. A spatter stain is when blood is subject to force that causes the blood to be ejected from a source. The spatter category includes where a blood source is struck by an object, where a blood-covered object sheds blood as it moves, where blood escapes from a source under pressure, and where blood is spread via air flow, such as a cough.

[89] Joesph Allan Slemko was qualified and provided expert evidence on blood stain analysis on behalf of the Defence. His explanations of the manner in which blood moves, spreads, and is transferred was essentially the same as that of Sgt. Butler.

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

[91] Four of the Superstore No Name Cans exhibited large numbers of spatter stains, 2 mm or less in diameter. The location, shape, and orientation of these stains was not consistent with a blood source in the vicinity of where the cans were located. Sgt. Butler concluded that these stains had been transferred to the No Name Cans at a different location, then the cans were relocated to the SUV and reoriented before the cans reached the location where they were recovered. The patterns on the cans are an impact pattern type. The source of the blood was an impact event about 3-6 cm from the bottom of the cans. In each case only one face of a can was exposed to blood. This made it possible all the cans were contaminated with blood via a single spatter event. The orientation of the blood spatter stains and the manner in which blood appears to have shifted under the force of gravity implies the cans were in a vertical position at the time the blood spatter occurred.

[92] Beyond that, this expert was careful to stress he could not provide additional information and context, for example such as what source produced the transfer stain on the Boag’s hat,

[93] Sgt. Butler described the blood in the food can stains as uniformly diluted, which could be explained in a number of ways:

1. the blood was mixed with another liquid, and then the combined liquid was struck by an object causing the spatter pattern;

2. the cans were subjected to rain, but in that case there should have been flow patterns, or

3. the blood was combined with cerebral fluid.

He had previously encountered diluted blood and based his conclusion on that resemblance.

[94] Joesph Slemko was qualified and provided expert evidence on blood stain analysis on behalf of the Defence. His explanations of the manner in which blood moves, spreads, and is transferred is essentially the same as those of Sgt. Butler. He too concluded that some of the stains on the Boag’s hat were caused by dripping blood. However, Mr. Slemko proposed a different explanation for the much smaller blood stains on that hat, and suggested these were satellite spatters, small secondary blood spatters that may be produced when a drop of blood lands on an uneven surface. Part of Mr. Slemko’s evidence was video demonstrations of dropped blood impacts into denim cloth. In his opinion it is possible that the blood on the Boag’s hat was the result of three large drops which fell onto the hat and then ejected satellite blood spatter over the remaining hat surface. On cross-examination Mr. Slemko stresses that whatever else, the blood on the Boag’s hat had come from a source above the cap of the hat, and not across from a side. However, this could be from a variety of mechanisms rather than simple passive dripping. He also acknowledged that satellite spatter is highly dependent on the kind of cloth or material on which the blood lands.

[95] In Mr. Slemko’s opinion the explanation that Sgt. Butler had provided for the stain pattern observed on the No Name Cans was a possibility. He also agreed the blood was diluted, but from his field experience was skeptical of the cerebral fluid explanation.

[96] As for the blood located on the SUV console, Mr. Slemko agreed it was possible that a person standing at the window of the SUV might sneeze or cough into the vehicle, and that would account for the blood located on the centre station arm rest. He thought the same mechanism could be responsible for the stains located on the No Name Cans.

[97] In its cross-examination of Sgt. Butler the Defence argued that the Crown’s investigation and evidence was defective because the RCMP investigators had not tested more or all putative blood spots to establish these were blood rather than some other material. I put no weight on and reject these allegations. It is logical to extrapolate a whole from representative parts, and that is exactly what occurred. For example, it was plain to see that each of the blood-stained No Name Cans showed locations of a similar colour, and whose pattern formed a coherent whole. The fact that a particular drop may not have tested positively for blood, or was not tested is of little consequence when other locations were identified as blood by forensic procedures. Mr. Slemko explicitly adopted this "common sense and objective approach" in his cross-examination.

[98] I also categorically reject the Defence’s allegation that certain stains which the Crown identified as blood were something else, such as tomato juice. Sgt. Butler was extensively cross-examined on potential alternative materials that could test positive for blood, and whether Sgt. Butler could differentiate between these alternative materials and blood. I see little relevance in this as an alternative basis to explain the putative blood stains, particularly since the tested objects were examined by a number of qualified experts who conducted standardized tests that detected blood. The Defence’s proposed alternatives are empty hypotheses and unsupported by evidence. Mr. Slemko did not challenge the blood stain classification by the Crown, or suggest alternative materials for the various stains. The fact he did not do so reinforces my conclusion to reject the alternative material hypothesis.

[99] What is clear from the evidence of the two blood stain experts is that their ability to reconstruct what had led to the blood staining was hampered by the fact some of the items, the Boag’s hat and the cans, had been recovered in a location that was not the one where those objects had been initially exposed to blood. The absence of context meant both experts had to acknowledge that while they may prefer a particular explanation for the observed blood staining, that there are other alternative explanations. For example, a sneeze could have transferred material to the cans.

[100] Neither expert could with any confidence explain the blood dilution. Some of the potential alternatives are much more sinister than others. The larger stains on the Boag’s hat could be caused by blood drops falling from above, or drops ejected into the air by an unidentified mechanism.

[101] The Defence admits the two McCanns are the sources for blood on the No Name Cans and the Boag’s hat. I draw the following conclusions from the blood stain evidence: sometime on or after July 3, 2010

1. blood from Marie McCann was sprayed by an impact onto some of the No Name Cans purchased by the McCanns on July 3, 2010. The point of the impact was close to the cans, and

2. blood from Lyle McCann was both dropped on and sprayed across the top of the Boag’s hat.

[102] Both blood stain experts pointed to large spots of blood on the Boag’s hat and indicated these appeared to be drops of blood landing on the hat in a manner perpendicular to the ‘horizontal’ orientation of the hat. I accept that is the more likely explanation for the larger drops. As for the other small spatters, the experts make different suggestions. I prefer the scenario advanced by Sgt. Butler, but think it is entirely plausible that at least some of the smaller spatters are satellite stains as suggested by Mr. Slemko. However, after careful review of the spatter locations I conclude that at least some of these are caused by a mechanism other than satellite staining, in particular given the association of small spatters to the bullet hole. I therefore reject the alternative argument that the large number of blood spatter locations on the Boag’s hat are only a consequence of a few large drops landing on the hat, and then fragmenting. The pattern visible simply does not match that mechanism, and though Sgt. Butler very properly agreed that secondary satellite stains could account for some of the observed pattern, I accept his conclusion that mechanism alone cannot explain the state of the hat, as a whole.

4. Carpet Analysis

[103] Evidence was tendered concerning a piece of carpet that was located near the SUV and on the west side of the mobile home located on the Sampson-Roader property. This carpet was compared with samples that were recovered from the McCanns’ residence.

[104] RCMP expert Douglas Orr reported the two carpets were potentially from a common source, however the two carpet sources did not contain or exhibit the kind of characteristics to conclude a positive link between the two carpet pieces.

[105] In its argument the Crown did not rely on the carpet expert evidence and I place no weight on this information.

B. DNA Evidence

[106] A major point of controversy in this trial was how to interpret forensic DNA evidence developed by the Crown, and the implications of that data. Both parties entered expert evidence on this subject.

[107] The Crown argued the procedures involved are well established and the interpretation of the product evidence is reliable. The Crown’s experts were forthright and knowledgeable. The Defence expert, Dr. Randell Libby, argued certain DNA evidence should be given no weight because it was an inadequate or inconclusive match. The Crown submits Dr. Libby was not candid.

[108] The Defence admitted Mr. Vader’s DNA was located on some of the McCanns’ property, but argued an accidental or innocent transfer of biological material can explain that. Beyond that, Mr. Vader argues some alleged ‘matches’ are actually an inconclusive result.

[109] The theoretical and practical context of DNA forensics was not in dispute, but much evidence was tendered by both parties to better explain the technical aspects of this subject. The disagreement raises two questions:

1. could contamination or innocent interactions account for the detection of Mr. Vader’s DNA in incriminating contexts, and

2. what threshold of reliability and linkage is required before forensic DNA evidence matches are probative.

[110] During the evidence phase of the trial the Defence made an application in a voir dire that I order the Crown call as witnesses several individuals who had conducted forensic DNA analyses of human hairs. I refused that application in R v Vader, 2016 ABQB 405 (CanLII), as I concluded the Crown had no obligation to call witnesses who could not provide any relevant evidence.

1. Overview of Forensic DNA Analysis

[111] Unlike many criminal matters where forensic DNA evidence advanced by the Crown is accepted without challenge, in this case the Defence vigorously attacked all aspects of the RCMP’s forensic investigation of biological materials, their collection, sampling, processing, analysis, the qualifications of personnel involved, and the ultimate results obtained. Because of that broad attack, and the Defence calling its own forensic DNA expert, much evidence was received that had a technical nature. This means to properly evaluate the expert testimony and conclusions this decision must first carefully discuss how biological materials are used in forensic identification, and the unique language and undisputed facts about how living things store information.

a. The Theoretical Basis for Forensic DNA Analysis

[112] Forensic DNA analysis is a well-developed and generally accepted method to match biological samples to their source or sources. Forensic DNA procedures can with high precision and reliability identify the specific person who was the source of a DNA sample. The Crown and Defence experts commented to varying degrees on the science and technology involved in forensic DNA analysis. In my view their explanations of the theory and process of forensic DNA analysis were consistent, so the summary that follows is a synthesis of that evidence.

[113] DNA or deoxyribonucleic acid is an information storage molecule found in all living things. DNA is a zipper-like double-stranded molecule where information is encoded in a series of subunits called bases: adenine, cytosine, guanine, and thymine. Each base pairs with a complimentary base in the opposite DNA strand: adenosine with thymine, cytosine with guanine. This means the information on either strand of the molecule can be used to infer the data content of the other antiparallel strand.

[114] DNA carries the information used to assemble the molecules found in an organism, and provides the unique features of an organism. Cells in the human body contain DNA in two locations, in the nucleus and the mitochondria. A molecule of DNA is called a chromosome. Humans have 46 chromosomes in the nucleus, and multiple but identical copies of a smaller chromosome in the mitochondria. The nuclear chromosomes exist in 23 pairs and each pair contains generally the same kind of information. One member of each of the pairs is provided by each parent. That means that sperm and ova contain only one chromosome of each parental chromosome pair, or half the overall genetic information of each parent.

[115] The one exception to the chromosome pair rule is that a human male has one pair of chromosomes that carry very different information, the X and Y sex chromosomes. These two chromosomes have no information in common. A female has two X chromosomes, and they have the same general information, just like the other 22 chromosome pairs.

[116] Certain parts of an organism’s DNA are largely consistent among individuals who belong to the same species. Other parts of the DNA may be different. Some differences encode physical attributes, also known as the "phenotype", of an individual. For example, the different human blood types are the result of different variations in a part of the human DNA that encodes a blood cell protein. The same is true for eye colour. Other kinds of person-to-person variations do not involve an area that encodes information, but instead are found in areas of a chromosome that include many short DNA sequences, that repeat over and over. These "short tandem repeat" ["STR"] regions are very helpful for forensic DNA analysis since they vary substantially, person to person. These STR regions also do not encode any information that affects a person’s phenotype. DNA forensic analysis takes advantage of the variations in STRs by measuring the size of a piece of a chromosome that includes these variable repeat regions. This piece of a chromosome is called an allele. Because different people will usually have different sized areas of these chromosomes, when two biological samples have the same sized STR alleles then that suggests the two biological samples come from the same source. If the sizes of two variable length chromosome alleles are different, then that indicates these alleles have different biological sources.

[117] There is a complication to this comparison process. Each pair of chromosomes (except for the X and Y chromosomes) contains the same alleles, but those pairs of alleles potentially exist in different variant forms. That means when an investigator measures the size of an allele from a human biological sample, the investigator will usually detect two different sized alleles from the same source. That is because the two chromosomes which carry that allele probably have different sized variable STR regions. The two chromosomes carried by an individual came from different source individuals: one from the mother, one from the father. In combination this explains the natural variability in STR length in the human population.

[118] Where two alleles are different the individual is "heterozygous" for that allele. However, sometimes chance leads to an individual carrying two variable short tandem repeat regions that just happen to be the same size. A person with this characteristic, who is "homozygous" for an allele, will appear to have only one version of that particular allele. In fact there are two alleles, each on its own chromosomes, but the alleles just happen to be the same variant.

[119] This information can also identify the gender of the source of a biological sample. If an investigator looked for an allele located on the X chromosome, and found two different sized pieces of DNA, then that would mean the source of the DNA is very likely female. A biological sample that has an allele located on the Y chromosome must be from a male source.

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

[121] In summary, DNA forensic analysis is an exercise in matching. One takes DNA from known persons, and measures the size of variable length STR alleles in those individuals. The investigator also takes DNA from unknown or "question" forensic biological material sources, like a blood stain, a hair, or a semen sample, and examines the length of the variable size DNA alleles from those sources. If an unknown and a known source match, that indicates the forensic biological material sample probably came from the matching known source. Similarly, if the allele sizes are different, then that excludes a known individual as a potential source of the forensic sample. A single difference in allele sizes between two profiles means the biological source of the unknown and known samples are different.

[122] In this case the forensic DNA evidence involves analysis of whether certain forensic samples originate from three key known individuals: Lyle McCann, Marie McCann, and Travis Vader. This analysis is a question of whether DNA extracted from biological material located at various crime scene sources matches the allele sizes of these three individuals, in part, in whole, or in combination.

b. Forensic DNA Analysis Methodology

[123] The procedures used in forensic DNA analysis and specifically in this case are well-developed, understood, and follow standardized procedures with built-in safeguards. These safeguards are necessary because forensic DNA analysis is very sensitive, and careless manipulation of items may mean biological materials from one location, sample, or person contaminate others. The Crown witnesses described many steps and processes used to minimize these possibilities, such as using different rooms for known vs unknown samples, ‘clean room’ procedures, and keeping evidence sources separate and contained. Items and information relating to items are tracked by a software laboratory information management system.

[124] Many of the steps in the forensic DNA analysis process are automated or semi-automated, but the investigators in this case had alternative manual procedures available, where that was necessary or appropriate. For example, the hemastix procedure to test for blood inhibits automatic DNA analysis, but not manual approaches.

[125] The first step in forensic DNA analysis is to isolate DNA from a source. A source can be a sample from a person, such as a blood sample, a mouth swab, or body tissues. DNA can also be collected from surfaces, from blood stains, from clothing, and generally most things that contact a person. That is because humans continually shed their DNA in skin flakes, hairs, and body fluids. These test sources can also be evaluated for fluorescence, which is a feature of some biological materials, and for the presence of specific biological material types, such as blood and semen. A variety of techniques exist to remove DNA from physical substrates and then concentrate the DNA for analysis.

[126] Once DNA is isolated from a source it is "amplified" using a process called polymerase chain reaction or PCR. "Amplification" causes an increase in the amount of DNA by a copying process. PCR is a procedure where sample DNA is mixed with other materials and then heated and cooled repeatedly. This results in an enzymatic chain reaction that causes certain areas of DNA to be copied. The parts of DNA which are amplified is determined by the PCR primers present in the reaction mixture. This copying process is exponential, doubling the number of pieces of the amplified DNA at each cycle. For forensic DNA analysis the PCR mixtures are designed to amplify only the chromosome areas that contain variable length STR alleles. The result is after many heating and cooling cycles the amplified DNA makes up the vast majority of the end product. The mixture of molecules used in a PCR reaction also causes the amplified products to have different fluorescent labels attached to the product DNA pieces. These fluorescent labels glow a certain colour when illuminated by a laser, and the glow can be measured to (indirectly) determine how much DNA is present.

[127] The DNA produced by the PCR amplification process is then placed in a capillary electrophoresis apparatus that separates DNA pieces by size via passing those DNA molecules through a capillary, a very long thin tube, and measures the quantity of DNA at various sizes. DNA length measurements are precise, and capable of counting individual base pairs, the informational subunit of DNA. The quantity of DNA is measured via observing fluorescence. Much of this separation, sizing, and concentration detection process is automated, but supervised. The product of this process is called an electropherogram, which is essentially a graph of DNA quantity vs DNA molecule size. Since the DNA length measurements are very precise the length of the observed DNA piece can be used to identify the number of copies of a short tandem repeat in a given variable region. For example, the D3 allele location has known variations ranging between 12 to 19 repeats.

[128] These allele profiles are then compared to determine whether or not amplified alleles of the same or different sizes are present. Reagent blanks and positive and negative controls assess possible issues of contamination or procedure error.

[129] The experts here agreed that the PCR amplification process is something of a double-edged sword. On the one hand it permits analysis of very small starting quantities of DNA. That means even small or damaged biological samples can potentially produce a full allele size profile. However, that exquisite sensitivity increases the risk of contamination that then confuses forensic DNA analysis results, because even a small inadvertent transfer of biological material can result in an apparently valid DNA allele profile.

[130] This also means that when two biological sources are mixed, it is not safe to presume that the relative quantity of DNA contributed by each source will be reflected in the final combined profile. Quirks of the amplification process and partially degraded DNA may also result in amplification products that have unexpected characteristics, like having one allele appear in two very similar sized variations. As DNA degrades it breaks into smaller and smaller pieces. That means that allele variations which are longer will likely disappear first.

[131] The exponential copying that occurs in the amplification process also means the quantity of DNA of a given post-amplification allele is a weak indicator of how much DNA there was to start.

c. Statistical Analysis of Amplified Variable DNA Allele Profiles

[132] Links between biological material sources and donors requires matching detected variable STR repeat alleles. However, the particular allele variations can be used to determine the possibility that an alternative source could have contributed the biological material in an unknown sample. This variable is usually described as a ratio: what are the odds that a random third party donor would share the observed unknown allele profile.

[133] To be explicit this means that forensic DNA analysis answers two questions:

1. does an unknown sample have a DNA allele profile that is compatible with a known sample, vs

2. what is the probability that another, random individual coincidentally would provide a DNA allele profile that matches the unknown.

These two questions can be simplified: does an unidentified biological material source share a STR allele profile with a known person, and what does that prove?

[134] In this case DNA was recovered from a blood stain on the arm rest in the McCann SUV. The STR alleles recovered from the blood stain are also alleles present in Mr. Vader’s DNA. That means Mr. Vader is potentially the source for that blood stain. But what does that prove?

[135] Population geneticists have developed databases of how often certain STR alleles appear in different ethnic populations. Certain presumptions are involved in developing these databases but they are well understood and based on known genetic and biological principles. These data sets can be used to calculate the odds a particular combination of allele variants exist in that population. The RCMP use a Canadian Caucasian population database by default.

[136] While the calculation of these odds was conducted using a software program called Star Porter that had been developed by the RCMP, the underlying principle involved in this probability calculation is very simple: one multiplies the probabilities of any given observed allele. When one uses a set of nine allele pairs, which is what occurred in this trial, the odds of a random but spurious match are very low.

[137] For the arm rest blood stain the RCMP investigators calculated the odds of a random Canadian Caucasian person carrying the same STR allele profile as the unknown biological sample donor was one in three trillion. In any practical sense, that means the chances that someone other than Mr. Vader being the sample donor are trivial.

[138] There are potential complications, such as where two alternative sources are related, or are identical twins. But in general, matching between a pattern of a known and an unknown DNA STR allele pattern produces high confidence that the donor of the known biological material sample also was the source of the DNA located in the unknown biological material sample.

[139] Incomplete DNA information from an unknown sample is still relevant when the partial data is a good match. This is analogous to an incomplete licence plate. If a camera observes a motor vehicle used in an offense has a certain license plate then that is strong evidence that a specific automobile was involved in the illegal activity. This is analogous to a perfect DNA allele profile match.

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

[141] The same is potentially true for forensic DNA evidence. For example, investigation of a ‘date rape drug’ sexual assault scenario may lead to a finite list of suspects. Even an incomplete STR allele DNA profile derived from degraded DNA can be a powerful tool in this context, if for example one of the unidentified perpetrator’s DNA alleles matches only one potential rapist. That eliminates other possible offenders.

d. Conclusion - DNA Forensic Analysis

[142] There is no question that forensic DNA analysis is a well-established, accepted, and valid scientific process. It is very frequently used in criminal and civil proceedings and is considered a definitive method of identification. Nevertheless, like 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 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 (CanLII)) 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

[148] 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 1981, 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 analysis. It involves measuring characteristics of repeated genetic sequences, but that is in the context of prenatal genetic disorders, rather than to identify and match unknown DNA samples to 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 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 Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, 114 DLR (4th) 419:

1. 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 1159465 Alberta Ltd v Adwood Manufacturing Ltd., 2010 ABQB 133 (CanLII) at para 2.13, 25 Alta LR (5th) 237, affirmed 2011 ABCA 259 (CanLII), 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] National Justice Compania Naviera S.A. v Prudential Assurance Co. Ltd. ("The Ikarian Reefer"), [1993] 2 Lloyd’s LR 68 (QB) at 81 ["Ikarian Reefer"] lays out the duties and responsibilities of an expert witness:

1. 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 normally 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 form or content by the exigencies of the litigation.

5. An expert witness should state 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 information 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 Ikarian 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 v Awer (29 October 2014), Edmonton 130891062Q1 (Alta QB)) where he was retained as a DNA expert by the same law firm 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 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 v Awer, 2016 ABCA 128 (CanLII). 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 v Awer 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 Awer 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 terms 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.

[169] It does not matter for forensic 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 v Awer. 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 post-amplification 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 v Awer 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.

[174] 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:

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 I am obtuse, but I count six possibilities in this scenario where there are two DNA sources:

DNA source 1 contributes: DNA source 2 contributes:

A & B C & D

A & C B & D

A & D B & C

B & C A & D

B & D A & C

C & D 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 I will 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.

[179] Dr. Libby did not identify any specific example of contamination.

[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 produced by RCMP investigators and entered as evidence here.

[181] 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] I will 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. I 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 unidentified person could be very relevant. So would the recovery of an unidentified 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.

[188] My focus is therefore on evidence which potentially indicates Mr. Vader had interacted with the McCanns and their property.

[189] 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 individual 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.

a. The Boag’s Hat

[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 information available from a potential second source was inconclusive.

[192] 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 information 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.

[194] 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 it’s 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 to 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 conservative approach would have been to declare it, in my opinion, as inconclusive. That’s what I would have done.

[195] I 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, just to help keep things straight.

Allele	All alleles recovered from the Boag’s hat	Lyle McCann’s genotype	Mr. Vader’s genotype	Alleles common between Lyle McCann and Mr. Vader	Mr. Vader’s alleles not located on the Boag’s hat
D3	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
Amelogenin	XY	XY	XY	XY	none
D8	13, 14, 15	13, 15	13, 14	13	none
D21	28, 29, 31.2 32	28, 29	31.2, 32	none	none
D18	12, 16, 17	12, 16	17, 17	none	none
D5	11, 13	11, 11	11, 13	11	none
D13	11	11, 11	11, 11	11, 11	none
D7	9, 12	9, 12	9, 10	9	10

[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: vWA, D18, and D13. 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, scientifically wrong, but it is the logical end point of Dr. Libby’s approach to DNA analysis. 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 turn 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 confirm 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 exactly 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 forming 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 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, D13,

[206] Dr. Libby makes the same type of statements again with these other alleles. For example, concerning the D5 alleles detected:

... Again, at this site, Mr. Vader is a type 11 and a 13. The declared minor type is a 13. So, again, D11 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, I 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, D13 and D7, which would be the same as Lyle McCann’s or are masked by the major contributor?

Dr. Libby I agree. That’s what I indicated previously. There was a fair amount of overlap, yes.

[210] 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":

... 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.

[211] 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-specific alleles observed is "rather unconvincing":

... Which because of that reason and because of the rather unconvincing declaration of a 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, wrong alleles present? None. Are any missing? One: the length 10 variant for the D7 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? 17 of 18 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.

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 D3 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, D18, D5, D13, and D18 alleles. The D21 allele DNA recovered from the steering wheel however cannot have come from either of the McCanns, and only matches Mr. Vader:

D21 alleles from the SUV steering wheel: 31.2, 32

Mr. Vader: 31.2, 32

Lyle McCann: 28, 29

Marie McCann: 29, 30

[222] The D21 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 10 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.

[228] Returning to the idea that the McCanns’ DNA may have complicated analysis of the steering wheel DNA, I 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 repeat. 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. I 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 of luck not a single of these DNA alleles variations carried by the McCanns managed to make it to the steering wheel and survive until DNA was sampled. Here the absence of any McCann DNA which has different 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, D18 and D7 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, D18, 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 exist for the otherwise potentially 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 modern forensic DNA analysis procedures, and

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 cross-examination 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 less 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.

[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 Mohan 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.

[247] However, I put no weight on his evidence. First, as my survey has indicated, Dr. Libby was neither a credible nor a reliable witness. I come to this conclusion because of the general and specific issues I have previously reviewed. For example, to me it is very strange that a proper expert, discharging his Ikarian Reefer obligations, could review the Boag’s hat mixed profile data and not make a simple observation: Mr. Vader’s allele profile is present en toto, 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 form occurred.

[251] 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] In summary, I make the following findings of fact:

1. 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;

4. 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 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.

IV. 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 I even connected to the shit?"

• "... it shows Dave used 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 aftermath 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 CanLII 93 (SCC), [1991] 1 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 Vuradin, 2013 SCC 38 (CanLII) at para 21, [2013] 2 SCR 639, citing R v CLY, 2008 SCC 2 (CanLII) at paras 6-8, [2008] 1 SCR 5. This is the "credibility contest" error that must be avoided: R v JHS, 2008 SCC 30 (CanLII) 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 White v The King, 1947 CanLII 1 (SCC), [1947] SCR 268 at 272, 89 CCC 148, the Court said:

The issue of credibility is one of fact and cannot be determined 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 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 determination. 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 determining 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 determine 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 I 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 step my 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 instance 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 results.

[268] First, I 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 counsel 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 reasonable doubt, particularly where there is a 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 the 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:

1. 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 information as evidence. That led to several reported decisions: R v Vader, 2016 ABQB 287 (CanLII); R v Vader, 2016 ABQB 309 (CanLII). In the latter decision I admitted the disputed evidence, but deferred an alternative analysis where that evidence might have 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 alternative s 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 v Vader, 2016 ABQB 266 (CanLII)) 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] In this part of the decision I review telecommunications records evidence and expert testimony concerning that information. This information, 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 informational content of text messages may be admitted "for the truth of its contents". As I subsequently explain, the meaning of this phrase is awkward in a situation such 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, 2010, between 14:14 and 14:19 MDT the McCann phone was used to make a series of telephone calls to 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. In 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 information recorded by Telus that related to the activities of the Sexsmith phone. Some of this information overlapped with the Virgin Mobile data, but the Telus information 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 ID’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 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 telephone call. Ms. Strawson introduced the equivalent information 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 information that was provided by technical witnesses whose evidence I will summarize in due course.

1. 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 information parallels that by Germain J in R v Didechko, 2016 ABQB 376 (CanLII), where he concluded information of this form 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 information 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 2010. 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 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 formal 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 50 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.

[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 permit Mr. Funk to provide the Court with the test results he obtained in 2011 to determine 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.

[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:

1. 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 1 cell phone tower provided the strongest signal on Highway 16 as one moves further east out from 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 16.

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. Bolded 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 phone tower	Approximate distance from Edmonton in an east to west direction	Approximate displacement north or south off Highway 16	Key locations in vicinity	Distance from cell tower to location
AB1268 Wabamun 1	70 km	0 km	Wabamun	0 km
AB0604 Chip Lake	130 km	7 km south	MacKay Bulmer residence Ford 350 stolen Carrot Creek ~~Klohn truck stolen~~ ~~F350 recovered~~ ~~Peers~~ ~~Peers One Stop~~ ~~Olson residence~~ ~~McCann SUV recovered~~ ~~Minnow Lake campground~~ ~~McCann RV recovered~~ ~~Klohn truck remains~~	13 km 13 km 16 km 30 km ~~31 km~~ ~~32 km~~ ~~37 km~~ ~~37 km~~ ~~37 km~~ ~~38 km~~ ~~48 km~~ ~~48 km~~ ~~68 km~~
AB0588 Carrot Creek	146 km	4 km south	Carrot Creek F350 recovered Klohn truck stolen F350 stolen Peers Peers One Stop Olson residence McCann SUV recovered Bulmer residence MacKay Minnow Lake campground ~~McCann RV recovered~~ ~~Edson~~ ~~Klohn truck remains~~	0 km 8 km 8 km 12 km 12 km 12 km 12 km 12 km 18 km 18 km 30 km ~~31 km~~ ~~38 km~~ ~~68 km~~
AB0633 Pioneer	170 km	20 km north	Peers Peers One Stop Olson Residence F350 recovered Klohn truck stolen McCann SUV recovered Carrot Creek F350 stolen ~~Edson~~ ~~MacKay~~ ~~Bulmer residence~~ ~~Minnow Lake campground~~ ~~McCann RV recovered~~ ~~Klohn truck remains~~	12 km 12 km 12 km 16 km 17 km 19 km 22 km 30 km ~~32 km~~ ~~33 km~~ ~~33 km~~ ~~47 km~~ ~~47 km~~ ~~89 km~~
AB0759 Mayberne	214 km	35 km north	Edson ~~Peers~~ ~~Peers One Stop~~ ~~Olson residence~~ ~~McCann SUV recovered~~ ~~F350 recovered~~ ~~Klohn truck stolen~~ ~~Carrot Creek~~ ~~Minnow Lake campground~~ ~~McCann RV recovered~~ ~~F350 stolen~~ ~~Klohn truck remains~~	37 km ~~54 km~~ ~~54 km~~ ~~54 km~~ ~~56 km~~ ~~59 km~~ ~~60 km~~ ~~65 km~~ ~~73 km~~ ~~73 km~~ ~~75 km~~ ~~115 km~~

[306] This tabulated information is generally compatible with the observations made by Mr. Funk, in light of Mr. Pomponi’s explanations of cell phone tower operation. This information obviously does not permit exact location of various cell phones, but does help limit the possible alternatives.

c. Where was the McCann Cell Phone?

[307] The McCann cell phone was used only on a limited number of occasions on July 3 and then later on July 12-13, 2010. Subsequent evidence indicates and I accept that the July 12-13, 2010 communications were by and to Amber Williams. I will not review or reference the July 12-13, 2010 phone calls further as they are essentially irrelevant to the case against Mr. Vader.

[308] For the purposes of this trial the critical cell phone communications were made on July 3, 2010. These occur in two clusters:

1. six incomplete telephone calls to Amber Williams [(780) 819 0283] made over a five minute period between 14:14 and 14:19. These connect to both the Pioneer and Carrot Creek cell phone towers; and

2. a single incomplete telephone call to Amber Williams at 15:55, via the Chip Lake cell phone tower.

[309] The earlier cluster of communications occur over only five minutes, which suggests that the operator(s) of the McCann cell phone had only a limited ability to change location during this period. These telephone calls connect to both the Pioneer and Carrot Creek cell phone towers, but do not show a progression from one to the other. Many potentially relevant locations are within the plausible 30 km range of both the Pioneer and Carrot Creek towers. This makes narrowing the exact location of the McCann cell phone at this point somewhat difficult, but certainly leads to an inference that the phone is in the vicinity of Peers and the Wolf Lake Road. The data obtained by Mr. Funk indicates these two cell phone towers share considerable overlap in this general region, which is understandable given the range evidence tabulated above.

[310] The final July 3, 2010 communication from the McCann cell phone at 15:55 connected to the Chip Lake tower. The most potentially relevant locations proximal to that tower are MacKay and the Donald Bulmer residence.

[311] Ultimately the McCann cell phone was located in a dumpster in Whitecourt Alberta. At that point it had been badly damaged by Amber Williams, who had taken possession of it from the Bulmer residence.

d. Where was the Sexsmith Phone?

[312] The Sexsmith phone had subscription time added at 18:29 on July 3, 2010. After that the phone was immediately used to place two telephone calls to Amber Williams, conducts a brief text message exchange with Williams, then another telephone call. Subsequently, many text messages are exchanged between these two phones.

[313] Between July 3 and July 5 the following telephone calls were made off of the Sexsmith phone:

Date	Time	Recipient telephone number	Recipient phone operator/owner	Cell phone tower(s) involved
July 3, 2010	18:30	780 819 0283	Amber Williams	Mayberne
July 3, 2010	18:32	780 517 0976	Donald Bulmer	Pioneer / Mayberne
July 3, 2010	18:38	780 642 0258	Esther McKay (landline)	Pioneer / Mayberne
July 3, 2010	19:35	780 642 0258	Esther McKay (landline)	Carrot Creek
July 3, 2010	22:25	780 819 0283	Amber Williams	Carrot Creek
July 5, 2010	12:40	780 642 0258	Esther McKay (landline)	Chip Lake
July 5, 2010	12:48	780 642 0258	Esther McKay (landline)	Chip Lake
July 5, 2010	20:34	780 642 0258	Esther McKay (landline)	Wabamun 1

[314] On July 3 it appears the Sexsmith phone operator is moving from around Edson to the Peers / Samson-Roader property / Wolf Lake Road area. Similarly, at 20:34 on July 5 the Sexsmith phone is clearly relocating towards Edmonton from the Peers / Edson area.

[315] When Mr. Vader was arrested on July 19, 2010 he was found in possession of the Sexsmith phone, and it was seized from him.

2. Cell Phone Usage Data

a. The McCann Cell Phone

[316] The McCann cell phone records indicate it was used in two periods, on July 3, 2010 from 14:14 to 16:32. All communications were attempts to contact Amber Williams. Two text messages were sent during this period:

Hey babe its me how are you doing today you know you can still text my phone i can still receive text i miss you so much (July 3, 2010 14:28)

I have been trying to call you and text you and email you and face book you and i cant get in touch with you its me t (July 3, 2010 14:32)

The telephone calls, which were not answered, had the McCann cell phone connect to the Pioneer, Chip Lake, and Carrot Creek cell phone towers.

[317] The second period of use is on July 12-13, 2010. As explained below, Amber Williams testified she was the phone’s operator during this period. Text messages sent and received appear to relate to drug trafficking.

[318] Not surprisingly, the identity of the author of the two July 3, 2010 text messages to Amber Williams is highly controversial.

b. The Sexsmith Phone

[319] The Sexsmith phone voice call information was sourced from both Virgin Mobile and Telus records. Since the Sexsmith phone used a telecommunications provider which did not archive sent text messages the Crown was unable to enter records analogous to those obtained from Telus for cell phones like the McCann cell phone. Instead, a text history for the Sexsmith phone was derived from Telus records where a Telus cell phone was involved in the communication. For example, that means that the records for the cell phone used by Amber Williams include text messages originating from the Sexsmith phone. This allowed the Crown to effectively ‘reconstruct’ a potentially incomplete record of the text message activity of the Sexsmith phone. These were incorporated into the Exhibit 185 aggregation of telecommunication activities.

[320] In brief, the Sexsmith phone was used from July 3, 2010 at 18:30 onward. During this period most communications, both text and telephone, were to Amber Williams. These text messages will be referenced later in this decision.

3. Other Telecommunications and Cell Phone Related Evidence

[321] Additional cell phone subscription time was added to the Sexsmith phone on July 3, 2010 at 18:29 using the "EZ-Pin" system. The Crown called a number of witnesses in relation to the EZ-Pin system and this particular purchase.

[322] The Crown called Ms. Rebecca Winter to provide information on the operation of a business, "EZ-Pin", which facilitated the purchase of telecommunication system subscription time. Ms. Winter is familiar with EZ-Pin’s records and explained the business’s model and operation. A customer paid a clerk, who then entered data in an EZ-Pin terminal. The terminal printed a receipt with a PIN number. The customer then enters that PIN number into their cell phone, which causes the telecommunication service provider to add pre-paid subscription time to that cell phone’s account. This entire system is automated.

[323] Ms. Winter had reviewed the records for the July 3, 2010 EZ-Pin pre-payment purchase for the Sexsmith phone. She confirmed that the purchase was for $25.00, and had been made at the Peers One Stop, for a Virgin Mobile subscription. While the Defence challenged the accuracy of the EZ-Pin records I accept Ms. Winter’s testimony that the electronic records accumulated by this service are reliable.

[324] Mr. Bryce Manary, the manager of the Peers One Stop, explained how his convenience store used the EZ-Pin system to sell pre-paid cell phone subscription minutes. The procedure involved swiping a cell phone subscription card in a terminal, then entering the quantity of time purchased, which would result in the terminal printing a receipt with a code number or PIN that could then be entered in a cell phone to add the pre-paid cell phone subscription time. Records for the purchases made on July 3, 2010 were obtained by the RCMP, and the EZ-Pin corporation subsequently provided information on the Peers One Stop EZ-Pin equipment and the interrelationship between EZ-Pin and Peers One Stop. These indicate that on July 3, 2010 at 17:29 a $25.00 EZ-Pin purchase was made for a Virgin Mobile subscription.

[325] The recovered but badly damaged McCann cell phone was investigated by civilian RCMP employee Mr. David Lussiar. He had to re-assemble the phone using spare parts. Data recovered from the phone and an identification number on a label confirmed this was the McCann cell phone.

[326] Sergeant James Cameron inspected the recovered Sexsmith phone. In his investigation of the Sexsmith phone he recovered contact information, call history data, 18 text messages, six memos, and an audio recording. These were entered into evidence, and some entries match data obtained from the Telus and Virgin Mobile telecommunications records. There is no question this is the cell phone in respect to which activity is captured in those records.

B. Mr. Vader’s Associates – Credibility and Reliability Reviews

[327] I have concluded that evidence, particularly forensic evidence, entirely contradicts Mr. Vader’s claims that he had no involvement with the McCanns. Indeed, that forensic evidence shows the exact opposite. That said, the Crown’s case relies on a broader foundation to provide context and timing for critical items, events, and evidence. This is particularly true for the telecommunications evidence which I have just reviewed. It matters little that certain text messages or telephone calls were made, unless the persons involved in sending and receiving those messages can be identified with confidence.

[328] Similarly, the forensic evidence located in the McCann SUV is incriminating, but the timing of Mr. Vader’s involvement with the McCanns’ property is also important, as is whether there are any other individuals who may have been involved.

[329] Most of this identification evidence and additional contact comes from a number of persons in Mr. Vader’s circle of associates. They are not, as a whole, a reputable group. Most acknowledge substance abuse and illegal activities. As will become apparent, some are liars. Others claim their memories are impaired by substance abuse. Extracting truth from this group is not a simple exercise, and throughout I have taken great care to relate their statements and claims of ignorance and confusion to hard data, such as telecommunications records. I have examined carefully as to how their accounts have changed over time.

[330] None of these witnesses provides the ‘smoking gun’. Mr. Vader did not make any confessions. Instead, the evidence from these witnesses is more circumstantial evidence of Mr. Vader’s character, location, actions, and demeanor in the critical period in early July 2010.

[331] I also stress in advance that sometimes much truth emerged from gaps and omissions. Although the witnesses from Mr. Vader’s circle of associates were called by the Crown, it soon became apparent that certain witnesses tailored their responses in very different ways when examined by the Crown, as opposed to the Defence. As I will subsequently elaborate, some of these witnesses are more properly viewed as witnesses for the Defence, rather than the Crown. Nevertheless, even these witnesses at times provided useful clues, where their accounts could be verified. However, there were also many attempts to misdirect and obfuscate from some members of this group.

[332] In brief, all of these witnesses qualify as Vetrovec witnesses, and I have considered the principles from that case when making findings of credibility, reliability, and fact.

1. David "Bandana Dave" Olson

[333] David Olson is best described as one of Mr. Vader’s drug and drinking buddies. At the time he lived alone in a mobile home in the hamlet of Peers, Alberta, which is 8 km north of Highway 16, the route travelled by the McCanns on July 3 on their trip to British Columbia. Mr. Olson was a user of methamphetamines, and also cultivated and used marijuana. David Olson was known to his fellow drug users and by other members of the Peers community as "Bandana Dave". For example, when Bryce Manary was asked about a Dave Olson he did not know who that was. However, he was familiar with a "Bandana Dave" who he described as a "regular" who would buy two to three 12 packs of beer every couple of days.

[334] Mr. Olson’s evidence is critical to understanding the events of July 3, 2010. He reports seeing Mr. Vader at his residence on two separate occasions and driving two different vehicles. The anomalous cell phone activities on the McCann phone occur largely between these two encounters. Mr. Olson’s evidence also interrelates with other important telecommunications-related evidence, including the EZ-Pin purchase of minutes for the Sexsmith phone.

[335] After Mr. Vader was charged, Mr. Olson received assistance from the RCMP to relocate to a different part of Canada: R v Vader, 2016 ABQB 228 (CanLII). The Defence argues I should put less weight on Mr. Olson’s evidence for that reason, and, more generally, because the Defence says Mr. Olson gave false evidence to entrap Mr. Vader. I will discuss these assertions in more detail later.

a. Witness Credibility and Reliability

[336] David Olson gave evidence during most of the day on April 28, 2016. He is a very important witness for the Crown because his evidence places Mr. Vader in the F350 around 12:00 noon on July 3, 2010 at Olson’s home in Peers, Alberta; and then several hours later around 17:15 in the McCann SUV at the same location. Mr. Olson has character issues. He is an admitted user and cultivator of marijuana and user of a variety of other illicit substances. His criminal record was put in evidence. I therefore scrutinize Mr. Olson’s evidence following the Vetrovec principles.

[337] Mr. Olson was a well prepared witness and, during his evidence-in-chief, was responsive and clear in his answers. Some disability was demonstrated in the sense of speaking quite loudly and sometimes abruptly. He is ‘socially awkward’, but was not intimidated by the court setting, by Mr. Vader, or by his Defence counsel. He told the Court what he had seen and heard from Mr. Vader; his recollection of events was impressive.

[338] During cross-examination Mr. Olson was subjected to very aggressive questioning by Defence counsel. However, he was not shaken on his key observations about the two separate visits by Mr. Vader to his home on July 3 and stuck to the sequence of the visits and the arrival of Myles Ingersoll later in the day. He provided details about his visit to the Peers One Stop and Peers Liquors with money provided by Mr. Vader for the purchase of a Virgin Mobile phone card, cheap beer (Boxer Beer) and cigarettes for himself. He was pushed very hard on suggested inconsistencies on the timing of Mr. Vader’s two visits on July 3, but held on to his version of events of Mr. Vader first appearing between 12:00 noon and 13:00 and the later visit around 17:15. Mr. Olson recalled the actual date of July 3 and defended effectively his recall of that date. He tried hard to explain his confusion over the time estimates in his statements to the RCMP. He made concessions when they were appropriate, but was not pushed around by Defence counsel. He did not lose his temper, despite being provoked. His response to multiple aggressive challenges only caused him to become louder and more adamant in his answers.

[339] Several of the key points in his testimony were confirmed by other evidence. Mr. Vader stated to the police that he had been at Mr. Olson’s home at about noon on July 3. (Exhibit 66, p 174). There is also evidence in phone records of three telephone calls from Mr. Olson’s landline telephone to the Amber William’s cellphone [(780) 819-0283], the first at 12:01 and the third at 12:15 (Exhibit 68C, p 5). Olson said that he had no recollection of nor any reason to call Ms. Williams, as he had no funds on July 3 for the purchase of methamphetamine. Further, there is the evidence of the EZ-Pin purchase at 17:29:35 at the Peers One Stop and invoices showing that Boxer Beer was purchased at Peers Liquors at 17:35:30, all on July 3, 2010. This independent evidence grounds Mr. Olson’s testimony about the two visits by Mr. Vader and the timing thereof on July 3. In terms of his mental capacity on that day, Mr. Olson denies having done drugs in the early part of July 3 and the first intoxicants consumed were apparently a couple of cans of Boxer Beer shared with Mr. Vader. He said that also he shared a joint of marijuana with Myles Ingersoll after Mr. Vader left.

[340] In summary, there is reliable independent evidence which confirms the July 3 timeline of events stated by Mr. Olson. His day-to-day uneventful existence, with no permanent employment structures, provides a satisfactory explanation for his lack of a sense of time, or his incomplete memory of time. Keeping track of time was not important to him; indeed he was a man without time, and had neither a watch nor a cell phone on July 3.

[341] Mr. Olson did not show any hostility or bias towards Mr. Vader, with whom he had been friendly and a fellow drug user, before Mr. Vader disappeared from the community to hideout until arrested on other charges. I am satisfied that there was no inappropriate deal made with the RCMP to go soft on his charges of marijuana cultivation, or that his testimony was purchased by the RCMP by way of funds provided through the federal Witness Protection Program. There is no evidence to support these assertions by the Defence.

[342] As a key part of Mr. Vader’s case, his counsel asserted a conspiracy between Mr. Olson and Mr. Ingersoll. Mr. Olson was said to be the mastermind of the conspiracy. However, since October 2014 Mr. Olson had been under the protection of the RCMP in the Witness Protection Program and there is no evidence that Mr. Ingersoll knew where Mr. Olson was or had any recent contact with him. I have not seen any evidence that could support this proposition whatsoever. I accept Mr. Olson’s denial in cross-examination of even discussing with Mr. Ingersoll the subject of the reward offered for information relating to the missing McCanns.

[343] In the result, and for the reasons given, I find David Olson to be a truthful witness and I believe his version of events. This is the first basis on which I accept his evidence, no matter his character flaws and criminal record. I also find that Mr. Olson’s evidence of his observations of Travis Vader on July 3, 2010 to be accurate and consequently I conclude that his evidence about what happened on that date is reliable. As I have noted, his evidence meshes with other independent sources and records.

[344] In the result, I give great weight to the evidence of David Olson in respect to what he saw, heard and did at his home on July 3, 2010 and in respect to the two visits by Mr. Vader on that day.

b. Witness Testimony

[345] In 2010 Mr. Olson relied on AISH and odd jobs at Peers Liquors for additional pocket money. He had only a landline telephone [(780) 693-2453], his cell phone had been seized by the RCMP when they charged him with the cultivation of marijuana in April 2010.

[346] Mr. Olson had known Mr. Vader for 6-8 months prior to July 3, 2010. He testified that Mr. Vader was at his home almost every day and they smoked methamphetamine and drank cheap beer such as Boxer, Pilsner or Lucky. He could not afford methamphetamine and received it from others, namely Mr. Vader, Ms. Williams, and Mr. Nicolyuk. He confirmed this group had all done methamphetamine together on several occasions. July 3, 2010 was the last time that he saw Mr. Vader until he came under guard to give evidence at the trial on April 28, 2016.

[347] Mr. Olson indicated Mr. Vader was not working in the oil patch in July 2010. He thought Mr. Vader’s last paycheque for work as a driller had been when he first met him in late 2009/early 2010. Mr. Vader had been paid a lot of money ($100,000) but three months later, it was all gone. Mr. Vader had been driving a truck, until the transmission failed and a bank repossessed it. After that, Mr. Vader got to David Olson’s home by using "stolen rides". Mr. Olson claimed to have seen as many as 25-30 different trucks. Mr. Vader told him they were stolen and Mr. Vader also told him that he would burn them when he was done with them.

[348] Mr. Olson described Mr. Vader as having a Virgin Mobile cell phone during this time and testified that the number was (780) 728-1685. On July 3, 2010, Mr. Vader gave him $50 to buy a Virgin Mobile phone card so that Mr. Vader could download $25 worth of time onto the Sexsmith phone and buy some cheap beer.

[349] On July 3, 2010, Mr. Olson describes Mr. Vader arriving for the first visit that day at his home between 12:00 and 13:00 hrs. driving a dually diesel pickup truck, grey in colour, with a tidy tank in the box right behind the cab and what he thought was a generator located in the tailgate area. He said that the diesel truck was really loud and he had never seen Mr. Vader with this truck before. During the course of his evidence, he was shown three photographs of the F350. He confirmed those pictures were like the truck that Mr. Vader was driving on the first visit on July 3, 2010. He said the tidy tank, shape, back dually tires and tinted windows were familiar.

[350] Mr. Vader was alone and spoke with Mr. Olson for a few minutes. Mr. Vader said he was broke and needed oil for the truck he was driving. Mr. Olson gave him roughly a quart of lawn mower oil, which was put into the truck by Mr. Vader. Neither Mr. Olson nor Mr. Vader were under the influence of drugs. The truck was driven forward into the driveway adjacent to the mobile home so that the back of the F350 was facing the street.

[351] There is evidence from Mr. Vader that during his first visit around noon, he made three calls on Mr. Olson’s landline. Towards the end of his direct examination, Mr. Olson was asked about calling Amber Williams from his landline that day. He said that he would not have been calling her that day because he was broke, she was selling methamphetamine, and he would only call her if he wanted to buy drugs and had money to do so. Between Mr. Vader’s departure and his later return at about 17:15, Mr. Olson did make a number of unsuccessful landline phone calls to Sheri-Lynn Campbell. Mr. Olson confirmed he was romantically attracted to Ms. Campbell.

[352] At about 17:15, Mr. Vader returned in "a little green Hyundai SUV". Mr. Olson remembered that the second visit was in the late afternoon and based this on the position of the sun. This is the first time he had seen Mr. Vader in the SUV. Mr. Vader was alone and backed the SUV all the way into Mr. Olson’s driveway right up to the front steps, as opposed to when he was driving the F350 earlier that day, which he drove straight in. Mr. Vader entered the mobile home and asked Mr. Olson to go to the Peers One Stop and Peers Liquors to get him a $25 Virgin Mobile phone card and to pick up some beer. On the first visit around noon, Mr. Vader had said he was broke. On the second visit, he pulled a small roll of bills out of his pocket and showed it to Mr. Olson. He gave Mr. Olson $50 and the remainder of the roll of bills went back into Mr. Vader’s pocket.

[353] Mr. Olson walked the 60 feet to the Peers One-Stop and purchased a Virgin Mobile $25 card for Mr. Vader at 17:29. He then went to Peers Liquors and purchased a case of 12 cans of Boxer Beer at 17:35. When he returned, Mr. Olson gave Mr. Vader the little strip of paper that had the Virgin Mobile PIN on it. Mr. Vader downloaded the $25 worth of time to the Sexsmith phone.

[354] Mr. Vader told David Olson that he wanted to contact Amber Williams, his ex-girlfriend. Mr. Vader was very agitated and really wanted to reach her. He mentioned her name several times, and then called and texted her.

[355] At first, the two of them drank beer in the mobile home but then moved outside to the front yard to drink more beer. Mr. Olson was on the front steps and Mr. Vader was on the lawn chair by the property line, either sitting or standing. The back of the Hyundai vehicle was about four feet away from Mr. Olson. He observed that it said "Hyundai" on it. The SUV (i.e. the McCann SUV) was really clean – like new, no dents no stickers. Mr. Vader then took the remainder of the Boxer Beer with him and "left me one or two." Mr. Vader also took the cardboard Boxer Beer container with him.

[356] Mr. Vader was at Mr. Olson’s residence the second time for up to two hours and left shortly after Myles Ingersoll showed up. Mr. Olson was sitting on the front steps when Mr. Ingersoll arrived and Mr. Ingersoll asked him whether he wanted to go to the McLeod River with his dogs. Mr. Ingersoll was by himself and had blocked the McCann SUV in the driveway. Travis Vader asked Mr. Ingersoll to move his truck so that he could leave. Mr. Olson thinks Mr. Ingersoll was there 5-10 minutes before Mr. Vader asked him to move the truck. Mr. Vader got into the McCann SUV and left and that was the last time Mr. Olson saw Mr. Vader until trial. Mr. Olson observed a set of keys in Mr. Vader’s hands. When asked about the SUV by Crown counsel, he said that he had not seen a picture of the McCann SUV in the Edmonton Sun, but did read a description of the SUV belonging to the McCanns in that newspaper. Mr. Olson concluded that the SUV which Mr. Vader was driving on July 3, 2010, based on the color, make and model, was the vehicle described in that Edmonton Sun article.

[357] While Mr. Vader was there, Mr. Olson tried to reach his erstwhile love interest, Sheri Lynn Campbell on his landline phone several times. He also tried to reach her on Myles Ingersoll’s cell phone. None of these calls connected.

[358] David Olson said that he and Mr. Ingersoll smoked a joint and drank some beer.

[359] On July 13, 2010 Officers Bidaisee and Peters of the RCMP came to check on Mr. Olson’s release conditions related to his outstanding charge of cultivating marijuana. That is when he told the police about seeing Mr. Vader earlier in July in the McCann SUV.

[360] I am not summarizing the evidence which Mr. Olson gave in cross-examination as most of it tracks with what he said on his direct examination. However, he did get quite confused around the subject of the timing of the two visits on July 3rd by Mr. Vader, but as I have noted in my assessment of his credibility and reliability, he is a man without time. He did not give up much when cross-examined and made few concessions; he and Mr. Beresh Q.C. did not get on well.

2. Myles Ingersoll

[361] The second witness to Mr. Vader’s presence at the Olson residence on July 3 was Myles Ingersoll. His evidence is particularly important for the Crown because he confirms Travis Vader was at David Olson’s residence in Peers, Alberta on July 3, 2010 in the McCann SUV. He also corroborates Mr. Olson’s narrative of some of the events of that day.

[362] The Defence challenges Mr. Ingersoll’s evidence as unreliable and deceptive, and alleges he is a co-conspirator with Mr. Olson against Mr. Vader.

a. Witness Credibility and Reliability

[363] Myles Ingersoll’s evidence-in-chief was brief. His replies to Mr. Finlayson were responsive and to the point. He did not appear in any way to be a reluctant Crown witness.

[364] The cross-examination of Myles Ingersoll was lengthy and the questioning was very aggressive. Myles Ingersoll pushed back in reply, but was not evasive and stuck to his observations about what happened on July 3 at Mr. Olson’s home. He was also challenged by Defence counsel in respect to his use of drugs, particularly methamphetamine, his criminal record, and more recent charges alleging domestic abuse, all of which Mr. Ingersoll frankly admitted, including an admission to what would amount to the commission of criminal offences.

[365] He was aggressively questioned in respect to an August 10 intercepted telephone discussion with Duane Whitnack, wherein Mr. Ingersoll attempted to distance himself from his sighting of Mr. Vader in the McCann SUV on July 3, 2010. Mr. Ingersoll’s explanation for that discussion, which he stuck to, makes sense and he was not shaken on his version of this conversation or the reasons for trying to distance himself from Mr. Vader. While I assess him as being wary of Mr. Vader, there was no overt hostility expressed about him. Mr. Ingersoll admitted he had only a short-term acquaintance with Mr. Vader, but that it involved the use of drugs, particularly methamphetamine, on almost every occasion. He defended himself effectively against aggressive challenges to his versions of events and his memory of the same. I conclude that he was an honest witness, endeavouring to tell the truth; he was not prepared to be bullied into making statements that were untrue. I find Myles Ingersoll to be a credible witness who told the truth.

[366] As to the reliability and accuracy of his evidence, Mr. Ingersoll was careful not to overstate the extent of his acquaintance with Mr. Vader when cross-examined on his three statements to the police. He took time to read them over before answering questions. He denied being under the influence of drugs on July 3 when he observed Mr. Vader in the small "seafoam green" SUV, which is how he described the colour of that vehicle to the RCMP. Mr. Ingersoll was frank about his history of substance abuse, and acknowledged that he was a "seasoned" user of methamphetamine. His admitted extensive drug use over many years did not appear to affect his memory of the July 3 events. When he could not remember something, such as the time of his visit to Mr. Olson’s residence on July 3, he said so.

[367] Mr. Ingersoll had a good recall of detail in respect to the observation of the front end of the SUV, which is the only part of that vehicle which he saw because it was backed into David Olson’s driveway. Specifically, he recalled a chrome ‘H’ and a "tow bar thing on the front of it." He explained why he remembered the tow bar detail, it related to his long-time interest in vehicles and their accessories. He had steady employment as a trucker, notwithstanding that he admitted to sometimes heavy use of methamphetamine and occasionally marijuana. Mr. Ingersoll denied being under the influence of drugs when giving his evidence on April 14, 2016, and I accept that denial. There were no obvious signs of impairment which I was able to observe when he gave his evidence. I regard his testimony as reliable and his recall of important details about observations involving Mr. Vader on July 3 as being accurate.

[368] Thus, though Mr. Ingersoll is another Vetrovec witness with character issues, I believe him to be honest, and further his evidence is corroborated in some important details by that of David Olson. I give significant weight to the evidence that he gave about Travis Vader’s presence in the McCann SUV at David Olson’s house on July 3, 2010.

b. Witness Testimony

[369] Myles Ingersoll gave important evidence about the events of July 3, 2010 that took place at Mr. Olson’s residence where he encountered Mr. Vader, and also about Mr. Ingersoll’s use of methamphetamine with Mr. Vader.

[370] Myles Ingersoll was a long-time resident of the Peers/Niton Junction area and had steady employment as a truck driver in that area. He said he was 47 years old and had been a truck driver since he was 15. He had known David Olson for five years or more and got together with him several times a week. He had used methamphetamine since his early 20’s and continued to use it while holding down a job as a trucker. He also used marijuana. He said that he used methamphetamine with David Olson almost every time they got together but not on July 3, 2010.

[371] Mr. Ingersoll said that he did not know Mr. Vader well. He had done methamphetamine with Mr. Vader, probably more than ten times. Several of these drug use episodes had been with Mr. Vader and Duane Whitnack at Mr. Ingersoll’s home. He knew that Mr. Vader lived with Donald Bulmer at the Bulmer residence.

[372] Mr. Ingersoll confirmed he was not under the influence of drugs on that day. He confirmed that he saw Mr. Vader at Mr. Olson’s on a day in early July. He could not remember the actual time of his interaction with Travis Vader, but that is not surprising given that it was a holiday weekend and he was on his way to the McLeod River where he was going to relax with his two dogs, and also with Mr. Olson, if the latter wanted to join him. It is not surprising that he could not recall either the date or the time of day. The actual time was late on July 3, 2010 because there is information that Mr. Olson used Mr. Ingersoll’s cell phone to phone and text Sheri Lynn Campbell. On July 3, 2010 at 19:26:03 a text message was sent off Mr. Ingersoll’s cell phone to Ms. Campbell. It was signed by Mr. Olson and said:

Later never comes for me just a good way to keep me haning. From bandanna.

[373] Myles Ingersoll stopped to invite Mr. Olson to come to the McLeod River with him and his dogs. When he drove up, he observed Mr. Vader and Dave Olson talking outside the mobile home. Myles Ingersoll was driving his Dodge Dakota pickup truck. He got out of this vehicle and he and Mr. Vader greeted each other. He indicated that he was about 20 feet away from Mr. Vader. Mr .Vader said that he had to get going, that there was too much heat around. Mr. Ingersoll understood that to mean that because there were warrants for Mr. Vader’s arrest, and that he did not want to be seen there. Mr. Ingersoll went back into his truck and moved it out of the way so that Mr. Vader could leave and Mr. Vader departed immediately thereafter. Mr. Ingersoll observed that Mr. Vader was driving a smaller SUV type, green coloured vehicle. He described the colour as "seafoam green". The SUV was backed up into Mr. Olson’s driveway. It had a chrome emblem with a "capital H" on the front. It had a tow-bar on the front. Myles Ingersoll had never seen Mr. Vader in that vehicle before. The vehicle seemed to be three or four years old, it had some mud and road spray on it. Mr. Ingersoll had a clear view of the vehicle from where he was standing.

[374] Mr. Vader seemed upset, as if something was bothering him. His demeanour was totally different from the other days when Mr. Ingersoll had spent time with him. Mr. Ingersoll stayed for a short time with Mr. Olson, then went on to the river by the Peers Bridge. Mr. Ingersoll observed that Mr. Olson seemed normal and did not think he was under the influence of anything.

[375] Several days later in mid-July Mr. Olson phoned him and advised that the vehicle that Mr. Vader was driving in early July had appeared in a news story in the Edmonton Sun about the McCanns’ disappearance. Mr. Ingersoll then looked at that newspaper. He observed that the coloured striping on a picture of the McCann RV was the same color as the vehicle driven by Mr. Vader at Mr. Olson’s in early-July. The article was about an elderly couple that had gone missing. He did not remember seeing a picture of the McCann SUV in the article, but he did see a picture of a small vehicle being towed on a flatbed tow truck. He said that the day after the phone call from Mr. Olson, he was interviewed by the RCMP in Edson on July 14, 2010. He told the RCMP he had seen Mr. Vader with this vehicle, i.e. the McCann SUV, a week and a half before that, give or take a few days.

[376] Prior to July, 2010 Mr. Ingersoll recalled talking to Mr. Vader about guns. Mr. Ingersoll had some old guns that he was trying to sell. Mr. Vader also had firearms that he was trying to sell.

[377] Most of the cross-examination attempted to show that Mr. Ingersoll had a bad character, was a drug abuser, was facing charges, etc., most of which was readily admitted. During the course of his cross-examination, Mr. Ingersoll confirmed some of his observations given in his direct examination about the events which occurred on Mr. Vader’s second visit to Mr. Olson’s residence on July 3, 2010.

3. Amber Williams

[378] Amber Williams served several roles in Mr. Vader’s world in 2010. She was his girlfriend and drug dealer. Ms. Williams had been "dating" Mr. Vader for about a year and a half, and they shared a room at the Bulmer residence. Shortly before July 2010 the two broke up and Ms. Williams left first. Mr. Vader’s efforts to resume their relationship (or at least meet up with Ms. Williams) bordered on obsessive. Ms. Williams did not actually meet with Mr. Vader in July 2010. Instead she actively avoided him and appeared to be afraid of Mr. Vader at that time.

[379] Amber Williams is an important witness in several senses. First, she was the intended recipient of many text message communications, including the two July 3, 2010 messages sent from the McCann phone. She is well positioned to identify their author and the number of the Sexsmith phone used by Mr. Vader to call and text her. Ms. Williams is also very familiar with Mr. Vader, having just ended an intimate relationship with him. Ms. Williams had cohabited with Mr. Vader at the Bulmer residence, and therefore is familiar with the collection of people who resided there, and with other personalities in the regional drug user community.

a. Witness Credibility and Reliability

[380] Amber Williams was called as a Crown witness on April 13, 2016, and gave evidence in the late morning and early afternoon of that day.

[381] She came across as an intelligent, but somewhat nervous, witness as shown by occasional giggling at many points in her evidence, especially in response to some of the questions from Defence counsel. She was obviously wary of Mr. Vader but there was no apparent hostility to him. She was reserved about the reasons for the collapse of their romantic relationship, and resisted the suggestion that it was her fault. She cheerfully admitted her involvement in using and trafficking in methamphetamine. There was no serious challenge to her credibility by the Defence and I see no inconsistencies in her evidence. I find that she is an honest witness.

[382] On the subject of reliability, I note Ms. Williams was in custody on alleged drug trafficking offences at the time of coming to Court to give evidence in this trial. She appeared to be alert and competent when giving her testimony. Her answers were understandable and responsive, although during cross-examination she did become resistant to attempts by Defence counsel to distance Mr. Vader from the series of texts sent to Ms. Williams off the Bulmer phone in the early morning of July 2, 2010. It was suggested to her that these texts were not sent by Mr. Vader because he was not at the Bulmer residence at that time. She responded by stating that these texts were sent by Mr. Vader, and I accept this evidence which was drawn out by Mr. Vader’s counsel. She also resisted attempts by Defence counsel which suggested that Mr. Vader never signed his text message communications as "t" and deflected authorship of those messages to some other person named Duane Thomas.

[383] Ms. Williams readily admitted that she could not remember some details because of the passage of time (almost six years), but on the whole, her ability to recollect events was good. The telecommunications evidence which I have accepted provides independent and reliable evidence to ground and confirm most aspects of her narrative.

[384] In summary, I regard Ms. Williams as a witness who did her best to tell the truth and find her evidence to be reliable. Although she is an admitted drug user and seller, I accept her evidence was honest, especially in respect to the identification of text messages originating from the McCann, Sexsmith, and Bulmer cell phones as being sent by Mr. Vader. I give her evidence great weight, especially in respect to her identification of text messages coming off the Bulmer, McCann, and Sexsmith phones as being authored and sent by Mr. Vader. This is very important evidence for the Crown and it is at the heart of the Crown’s case on the issue of Mr. Vader’s identity as the perpetrator of the killing of the McCanns. I accept her evidence without qualification and put great weight on it in reaching my final decision in this matter.

b. Witness Evidence

[385] Ms. Williams provided a broad narrative of events in the period surrounding July 3, 2010, and reviewed the text communications exchanged between her and the person she identifies as Mr. Vader. From this testimony I distill the following key facts.

[386] She had been living with Mr. Vader at the Bulmer residence for several months. Mr. Vader was using and trafficking in methamphetamine. Ms. Williams was using methamphetamine with Mr. Vader. She was also a serious trafficker of methamphetamine and other drugs in the Whitecourt/Blue Ridge area. Ms. Williams states that drug abuse is what led to the breakup of their relationship.

[387] The couple split up in late June (June 20 – 23, 2010). Ms. Williams left the Bulmer residence, leaving Mr. Vader behind. Ms. Williams did not want to see Mr. Vader again after the breakup. This is clearly reflected in her text messages to Mr. Vader and especially Donald Bulmer about Mr. Vader’s whereabouts and his attempts to find Ms. Williams. Her evidence shows that Mr. Vader was at the Bulmer residence post the breakup, and was staying there much more than Mr. Bulmer would have me believe.

[388] Ms. Williams identified the phone number of the cell phone that she used [(780) 819-0283], and also the phone numbers for the Bulmer and Sexsmith phones. She identifies the McCann phone number as relating to an unfamiliar phone. She did not answer the telephone calls from the McCann phone on the afternoon of July 3, 2010 because she did not recognize the number. Ms. Williams gave evidence that she later retrieved the McCann phone from the Bulmer residence, and then used it in her drug trafficking business on July 12-13, 2010. She then destroyed that phone, and disposed of it in a dumpster in Whitecourt. She subsequently led police to the remains of the McCann phone from that dumpster, where it was recovered.

[389] The text message records from the July 12-13 period clearly corroborate Ms. William’s account about her use of the McCann phone. The content, language, and use of the McCann phone during July 12-13, 2010 is obviously very different from the two text messages sent off of that phone on July 3, 2010.

[390] Ms. Williams identified a variety of texts as coming from Mr. Vader:

1. Text messages received on the early morning of July 2, 2010. These texts are from the Bulmer phone and assist in restricting the time and duration of Mr. Vader’s quick trip to Edmonton on July 2 through to early July 3 to visit Sheri Lynn Campbell.

2. The two text messages received from the McCann phone on July 3 and also the Sexsmith phone texts on July 3 and 4. Though Ms. Williams was the subject of extensive cross-examination by Defence counsel concerning alternative potential sources for these messages, Ms. Williams was emphatic and explicit. These text messages came from Mr. Vader. There is no witness better positioned to make that assessment, and I accept Ms. Williams’ evidence on this point. This is very important identity evidence in this trial.

3. Text messages received from the Bulmer phone from July 11, 2010 onward. Ms. Williams’ evidence on this point is corroborated by the obvious continuation of a text message conversation concerning Mr. Vader’s infidelity from July 9 through July 11 that starts with exchanges between the Sexsmith and Williams phones, and then continues on the Bulmer and Williams phones.

[391] Ms. Williams gave some evidence about guns being present at the Bulmer residence but is unclear as to who actually owned them. This may be the only point where she is somewhat evasive.

[392] Ms. Williams also provided useful evidence on Mr. Vader’s character. She described him as an angry man. This witness under cross-examination provided clear evidence of her personal experiences, particularly when Mr. Vader became angry at her. Ms. Williams was explicit: she did not want to get back together with him. She was not prepared to be at the Bulmer residence when Mr. Vader was around. This apprehension about Mr. Vader is reflected in many texts. Ms. Williams was obviously afraid of him.

[393] One Defence theory is that the "t" text messages from the McCann cell phone were sent by Terry McColman, and that Mr. McColman killed the McCanns. Ms. Williams was not much help to the Defence on that proposition, particularly since the theory that she had a romantic interest in Terry McColman and he in her was never clearly put to Ms. Williams by Mr. Vader’s counsel. Instead, she was steadfast in identifying text messages received from the Bulmer phone (July 2, July 11 onward), the McCann phone (July 3), and the Sexsmith phone (July 3-9) were from Mr. Vader, and not some other person, such as the now-deceased Terry McColman.

4. Andrea Saddleback-Sexsmith

[394] I refer to Ms. Andrea Saddleback-Sexsmith as Ms. Sexsmith, because that is how she came to be addressed during the trial. She is another of Mr. Vader’s intimates. By July 2010 she and Mr. Vader had broken up for several months. Her evidence is particularly relevant for a number of points. First, she was the person who purchased the cell phone service contract from Virgin Mobile for the LG device used by Mr. Vader. Second, after midnight on July 5, 2010, Mr. Vader appeared at Esther McKay’s residence and Ms. Sexsmith observed his condition at that time. She also saw the F350 truck that Mr. Vader was driving.

a. Witness Credibility and Reliability

[395] Ms. Sexsmith gave evidence as a Crown witness on the afternoon of March 22, and again briefly the next morning. She was cross-examined for the rest of the morning and into the early afternoon. She presented as an intelligent young woman and as well-spoken during her direct examination. Defence counsel conducted a very aggressive cross-examination and she tended to unravel as the session wore on. Ms. Sexsmith did her best to recall events of six years before, but did become confused during cross-examination. No doubt it was a very stressful experience for her and at one point she said she wanted "... this nightmare to be over for everybody involved".

[396] Throughout her testimony, there were frequent objections by both counsel, and Ms. Sexsmith was sent in and out of the courtroom on many occasions. This may, in part, explain her growing frustration with the process. She was more responsive during direct examination. She became argumentative with Defence counsel. She admitted her abuse of alcohol, acknowledged that she was an alcoholic, and that she was sometimes out of control when drinking. She admitted to a minor criminal record including an impaired driving conviction. She conceded her employment at the Campus Sports Bar & Grill ("Campus Bar") was terminated because of her abuse of alcohol while at work. She became increasingly combative with Defence counsel and he clearly got under her skin. She became visibly upset as the cross-examination ground on to its conclusion.

[397] That said, I accept that Ms. Sexsmith was trying to give an honest account of what she had seen and heard involving Mr. Vader. She did not appear to be hostile to him, notwithstanding the abuse heaped on her by Defence counsel. I do not see any fabrications in her evidence. She was an honest witness.

[398] The reliability of some of her evidence is another matter. She did have problems recalling dates and the content of specific conversations. Therefore, I accept her evidence on major issues if her evidence is confirmed by some other objective evidence, or was confirmed and accepted by the Defence. For example, there was no particular challenge to her evidence in respect to her setting up the Sexsmith phone with Virgin Mobile. During cross-examination, she graphically confirmed her description of Mr. Vader’s appearance at Esther McKay’s residence on the early morning of July 5, 2010.

[399] Ultimately, I give her evidence considerable weight in certain areas, especially where there is some confirmatory evidence.

b. Witness Evidence

[400] Ms. Sexsmith had lived for some time on the third floor of Esther McKay’s (Croswell’s) home in north Edmonton along with Bobbi-Jo Vader. They were friends.

[401] Ms. Sexsmith began "dating" Travis Vader in early January, 2010. She had been introduced to Mr. Vader by his sister, Bobbi-Jo Vader. I understand the term "dating" to imply an intimate relationship. She described Mr. Vader at the outset of their relationship as being "upbeat, healthy, meat on his bones"; he was in "good shape". The relationship ended because of his involvement with Amber Williams. She estimated the breakup occurred sometime in April 2010. From their evidence it appears that Ms. Williams’ and Ms. Sexsmith’s "dating" Mr. Vader overlapped.

[402] Ms. Sexsmith gave highly relevant and I conclude reliable evidence concerning a cell phone that she helped Mr. Vader put into operation. In March 2010, Travis Vader purchased a black flip phone with a small screen (1" x 1"). It was not a smart phone and could only be used for "T9 texts". This means that it only had numbers for texting purposes and did not have a QWERTY keyboard. She thought the cell phone was manufactured by either Samsung or LG. There is no debate that in March 2010, Ms. Sexsmith set up a cell phone service account on behalf of Mr. Vader with Virgin Mobile as the supplier. It was a pay-as-you-go plan in her name. The number assigned by Virgin Mobile to this cell phone was (780) 728-1685. I refer to this device with this number as "the Sexsmith phone". Once Ms. Sexsmith heard that Travis Vader was a "person of interest" in relation to the disappearance of the McCanns, she arranged on July 16 to have a friend cancel the account with Virgin Mobile. There is no dispute over the timing of the cancellation, as this was drawn out of her in cross-examination.

[403] Ms. Sexsmith made a number of observations about the condition of Mr. Vader at the end of their relationship in April and also how he appeared on the early morning of July 5, 2010. It was after midnight on that day when she got back to Ms. McKay’s residence after closing down the Campus Bar. While there is disagreement about how she interacted with Mr. Vader at that time, she did describe him in her direct evidence as groggy, tired a bit, very thin, not the way he used to be – he wasn’t shaved, his hair was messy, he was agitated. According to her, Mr. Vader said that he had been on the run for four days going through the bush and he had not eaten in four days. Later, in her direct testimony, she said that by the end of the relationship in April, he was "gaunt, pale, unkempt, and easily agitated". In response to questions from Defence counsel, she said "When I seen him on July 4, he was skin and bones. Gaunt, sores on his mouth, friggin’ tired, unkempt". I accept this description of Mr. Vader at that time as accurate.

[404] Ms. Sexsmith also provided useful evidence concerning the vehicle driven by Mr. Vader on July 5, 2010. She claims that Mr. Vader drove off in a truck after a shouting match with her. She described the truck as silverish, greyish, taupe-ish. It had a red tidy tank in the back and was an extended cab model with doors that opened out. Ms. Sexsmith punched the driver’s side back door, below the window, four inches from the break between the two doors. It was a very hard punch, and she thought she had left a dent in the back door. I accept the evidence about the type of vehicle driven by Mr. Vader as it is also confirmed by Bobbi-Jo Vader. This is a reliable description of the F350 stolen by Mr. Vader on June 28.

[405] Ms. Sexsmith was asked about Mr. Vader’s substance abuse. She testified she never saw Mr. Vader at any time use drugs, and methamphetamine in particular. However, given the change in his appearance and behaviour, she believed Mr. Vader to be involved in the methamphetamine subculture. She came to this conclusion given his appearance in April and July, and his agitation, as well as her experience in the bar scene for years. She said she knew what people who use drugs look like. This is reliable. This is not based on what Bobbi-Jo Vader said to her about Travis Vader using methamphetamine, and I expressly disabuse reliance by myself on that hearsay related by Ms. Sexsmith.

[406] Ms. Sexsmith testified she received a call on either Esther McKay’s landline or Bobbi-Jo Vader’s cell phone from Mr. Vader on July 10, 2010. Mr. Vader said he was stranded somewhere near Edson. He asked her for help in getting a ride and also asked her to put some minutes on his Virgin Mobile account, i.e. the Sexsmith phone. I will subsequently discuss evidence that Mr. Vader borrowed a cell phone from Serge Morin on July 10, 2010, and the records for that phone indicate calls were placed to Esther McKay’s landline between 14:02 – 14:08 on that date. This confirms Ms. Sexsmith’s account, which I conclude is reliable.

[407] With respect to the extent to which Andrea Sexsmith interacted with Mr. Vader on July 5, she states that this was the last time she actually saw him at that location. She believed Mr. Vader was at Esther McKay’s house until July 9, but stated that she was at work and went to bed when she got home. She was working an evening shift that started in the late afternoon. She did not want to meet Mr. Vader. There is no evidence that she ever saw him at the McKay residence at this time. She simply believes he was there. She was staying out of his way.

5. Sheri Lynn Campbell

[408] Ms. Sheri Lynn Campbell, sometimes spelled Sherri Lynn Campbell ["Ms. Campbell]", is another one of Mr. Vader’s acquaintances. In July 2010 she was staying in the home of her best friend, Kim Steffler in Edmonton. At that time Ms. Campbell had known Mr. Vader for several years.

[409] The exact nature of Ms. Campbell’s relationship with Mr. Vader was not explored in her evidence. That said, some of the text messages exchanged between the two strongly suggest that Ms. Campbell is yet another of Mr. Vader’s intimates, such as this response by her to Mr. Vader’s inquiry around 23:00 on July 5, 2010 as to where Ms. Campbell was located:

I want to see you so bad.. And u do not have to cum here.. Too risky.. U gave me butter flys when i seen it was you...

[410] However, their relationship also appears to have had a more ‘business/drug trade’ component, since the "butter flys" text was followed by a second message from Ms. Campbell that read:

And Im ready to hustle.. U get me da goods.. I will make US some serious green... Did y find wut u needed?

[411] In any case, Ms. Campbell’s principal relevance to this action is as an alibi witness. She reports that early on July 2, 2010 Mr. Vader appeared at Ms. Steffler’s residence, and stayed there. Ms. Campbell’s evidence is also relevant to authenticate the person operating a number of call phones.

a. Witness Credibility and Reliability

[412] Ms. Campbell was called as a Crown witness and gave her evidence on the morning of May 3, 2016. She was obviously nervous, very soft spoken, sometimes inarticulate and severely lacking in self-confidence. She was hesitant in making answers during her direct testimony and became very unresponsive in the course of re-examination by Crown counsel. She was a difficult witness to examine in chief, but Crown counsel persisted and was able to get some evidence out of her although Ms. Campbell completely ran out of gas during her re-examination. Initially, I viewed this apparent lack of cooperation with Crown counsel to be intentional. Crown counsel had asked the witness to review her July 21, 2010 statement to the RCMP to refresh her memory and what she had said in those interviews on the subject of when Mr. Vader left the Steffler residence on July 3, 2010. After several delays of more than five minutes to refresh her memory on this simple request and question, she said she did not know and that her memory was not refreshed. As I say, I initially took this as Ms. Campbell being evasive and uncooperative, but, upon reflection, I have concluded that she had simply exhausted her limited intellectual resources.

[413] From a credibility perspective, Ms. Campbell appeared to be inconsistent in several of her answers. However, on closer examination, I conclude that she is a young woman who has trouble holding on to a thought for more than a few seconds and expressing herself clearly. I base this observation on her evidence about the use of drugs in July 2010. During her direct examination at page 23, lines 28-29, she admitted that she had used drugs in July 2010 and those drugs were marijuana and "meth". In cross-examination by Defence counsel at page 31, lines 11-16, she readily agreed that she had been on "…a 40 day cleanse" in July, and that there was no use of drugs by her. On close review I now see that she was confused and what she must have been talking about was the use of marijuana and methamphetamine in the past, i.e. prior to July 2010.

[414] Another example relates to a text which she had sent to Mr. Vader on July 6, 2010, at 02:07:13 to the effect "Hello, are you ok?" She was asked why she sent that text on her cell phone to Mr. Vader’s cell phone (the Sexsmith phone) and she replied that she had sent it because of what was going on in the media. There is no evidence on July 6 that anyone was aware that the McCanns had gone missing, certainly there was nothing in the media that has been shown to me. The McCanns’ disappearance was first discovered by Ms. Holder on July 10, 2010 when Lyle and Marie McCann failed to appear in Abbotsford. I take this as another example of Ms. Campbell simply being confused.

[415] That said, there are examples of her being evasive in answering questions from Crown counsel. For example, she was questioned about the "serious green" text sent on July 5, 2010 from her cell phone to the Sexsmith phone operated by Travis Vader. When asked about what she meant by "da goods", Ms. Campbell said she did not recall. Mr. Beresh jumped in to object on the ground that she should not be required to speculate; a suggestion with which the witness readily agreed by stating "why, yeah". Ultimately, she did agree with the Crown on re-examination that "da goods" she was referring to were "drugs" because "... you make money off of it". This example also illustrates her partiality, which was evident throughout her cross-examination by the Defence. Ms. Campbell had obviously been briefed to some extent by someone related to the Defence and was much more responsive and coherent when answering questions put to her by Defence counsel, as opposed to questions from the Crown.

[416] I observed a marked difference in her very hesitant, fragmented responses to Crown counsel and her ready agreement, almost scripted responses to Defence counsel. For example, she was eager to agree with the Defence suggestion of the possibility that Travis Vader did not leave the Steffler home until 3:00 p.m. on July 3. Her answer to this question at page 32, line 4 was that it was "very possible." This is a complete reversal from her evidence in chief when she had said she was on the back step at the time Mr. Vader departed, observed his truck when he left that house in the "a.m." Saturday, July 3, 2010, and that it was not light out (i.e. that it was dark). What this shows to me, apart from her being somewhat scripted by the Defence, was that she was also a very suggestable witness.

[417] My ultimate conclusion on her degree of trustworthiness is that she was casual with the truth and not at all careful to be true to her affirmation to tell the truth. She was not an impartial witness.

[418] As to her reliability, she was an admitted user of methamphetamine and marijuana. As I have noted, she was obviously not too bright, at least in 2016 when she gave her evidence. Ms. Campbell admitted in cross-examination that she had drug-induced memory problems. Her recollection of the timing of events was limited and I believe her intellectual abilities are also limited. I only consider her evidence to be reliable if it is anchored in something like a text message or where the concepts involved are simple, such as night and day and whether a vehicle was a truck or not. To that extent, I will give her evidence some weight, but I give no weight to her quite obvious attempts to exonerate Mr. Vader in her answers to Defence counsel.

b. Witness Evidence

[419] Ms. Campbell confirms that Travis Vader was a user of methamphetamine and she had used methamphetamine with him a "couple of times".

[420] When Mr. Vader visited the Steffler residence he was driving the F350. Ms. Campbell was able to describe the truck in the sense of the tidy tank in the box, four-doors and as being a reasonably new vehicle. This evidence is important because Mr. Vader left her place of residence on July 3, 2010 before dawn and she saw him leave in this vehicle.

[421] Ms. Campbell’s testimony undermines Mr. Vader’s attempt at an alibi on July 3, 2010 through Ms. Steffler. Her evidence about him leaving in the "a.m." and that it was dark confirms this.

[422] She also confirms Mr. Vader used the Sexsmith phone and she sent and received texts from him on that phone. Ms. Campbell also confirmed Mr. Vader’s texting style. While Ms. Campbell’s texting style is like that of a traditional drug-dealer with limited literacy skills, Mr. Vader’s style is more old school, older man, better educated, and somewhat more literate.

[423] Ms. Campbell also confirms that she received a telephone call from Mr. Vader at Lodgepole on July 10. She does not give the date, but she mentions Lodgepole. This fits with the evidence of Serge Morin lending his cell phone to the stranded Travis Vader on the Elk River Road near that settlement.

6. Donald Bulmer

[424] Donald Bulmer is a resident of MacKay, Alberta, and another of Mr. Vader’s drug-using acquaintances. Bulmer had known Mr. Vader for over a decade. His residence appears to have served as a kind of flophouse, or residence of convenience for many individuals in the local drug culture. Witnesses described people coming and going. It was not locked. Mr. Vader and Ms. Williams had shared a room in the Bulmer residence, but Ms. Williams moved out when the two broke up. Terry McColman was another visitor to the residence and occasionally crashed there.

[425] Mr. Bulmer was ideally positioned to comment on Mr. Vader’s activities in early July, 2010, however as I will explain there are issues with Mr. Bulmer’s activities. This witness was also important because Mr. Vader used his cell phone both before and after the McCanns disappeared.

a. Witness Credibility and Reliability

[426] Donald Bulmer gave evidence all day on May 2. He was a very reluctant witness and it took a full morning for the Crown to examine him in chief. He was nervous and soft-spoken, especially when answering questions from Mr. Finlayson, QC. He was often noncommittal and on many occasions said that he was guessing at answers. While being examined by Crown counsel Mr. Bulmer was very subdued and looked down and away from Mr. Vader and Defence counsel. He appeared to be afraid of Mr. Vader, but his manner transformed once he was under cross-examination by Defence counsel. He immediately became responsive and seemed eager to exonerate Mr. Vader. It was apparent that Mr. Bulmer had been very well briefed on how to answer the leading and often friendly questions posed to him by Defence counsel. However, in re-examination, Mr. Bulmer’s initial demeanor returned again and he became very nervous when Crown counsel pressed him on details around Mr. Vader’s return visit to Mr. Bulmer’s home on Tuesday, July 6. He became visibly agitated and annoyed when pressed again on the type of vehicle Mr. Vader was driving at midday on July 6. In the end, Mr. Finlayson was not able to get the answer that he wanted, namely that Mr. Vader was in the McCann SUV on that July 6 visit. I conclude that Mr. Bulmer was not prepared to implicate Mr. Vader to that extent.

[427] As I have noted, Mr. Bulmer was very agreeable with the Defence on a number of subjects, even when his evidence contradicted what he had just said during the examination-in-chief. For example, he told the Crown that texts signed off as "t" were texts he recognized as sent by Travis Vader. This is a stark contrast to what Mr. Bulmer said a to Defence counsel a few minutes later, to the effect that Mr. Vader never self-identified as "t".

[428] Further, on this credibility assessment, I note that Mr. Bulmer knowingly harboured Travis Vader for most of June and the first part of July when Mr. Vader returned to shower, do his laundry, etc. He allowed Mr. Vader to use his vehicles and his cell phone on many occasions. On July 10/11 he picked up Mr. Vader at Mr. Vader’s request from a location near Lodgepole where a vehicle was totally burned. He allowed Mr. Vader to reside at his home, notwithstanding he was aware that there were warrants out for Mr. Vader’s arrest. He knew Mr. Vader drove stolen vehicles and brought stolen items to his property. Mr. Bulmer admitted he was a user of methamphetamine. In summary, he was evasive, inconsistent and partial. I do not regard him as trustworthy.

[429] For all of these reasons, I review his evidence through the Vetrovec prism - with great caution. I am not inclined to pay any regard to the exculpatory answers which he proffered on behalf of Mr. Vader. In summary, I find that Donald Bulmer did not tell the whole truth and nothing but the truth, as he had promised to do when he was affirmed by the Clerk.

[430] In terms of the reliability of his evidence, Mr. Bulmer did not appear to suffer from any obvious mental disability. He had been able to hold down a steady job at a landfill, despite being a user of methamphetamine and an active participant in the unhealthy drug user culture. However, I only accept his evidence if it is anchored in a piece of objective evidence, such as the cell phone records, the RRSP record from the Royal Bank, or admissions which tended to implicate, rather than exonerate, Travis Vader. Specifically, I give no weight to any of his evidence calculated to exonerate or exculpate Mr. Vader. As far as Mr. Bulmer is concerned, the fix was in.

b. Witness Evidence

[431] What follows is the evidence I do accept, despite Mr. Bulmer’s many evasions, inconsistencies and understatements in his direct testimony to the Crown and also during his re-examination.

[432] Mr. Bulmer used methamphetamine with Mr. Vader, but understated the extent of their joint use. He received methamphetamine ("treats") from Ms. Williams. Mr. Bulmer attempted to minimize his use of methamphetamine.

[433] Mr. Bulmer confirmed that Mr. Vader had at least two firearms which he claimed to use for hunting, one a .22 caliber rifle and the other some sort of larger caliber firearm used for hunting. Mr. Bulmer was concerned about the presence of these guns, even though Mr. Vader said they were only for hunting and that they belonged to him. Mr. Bulmer told Mr. Vader to get them off his property, but gave no reason for that. He confirmed in cross-examination that the larger calibre hunting rifle was hidden under the bed in the room used by Mr. Vader and Ms. Williams.

[434] During his direct examination Mr. Bulmer stated that Mr. Vader returned to his property on July 5 or 6, 2010. In cross-examination Mr. Bulmer was encouraged to back away from these dates. However, Crown counsel came back at him in re-examination, and pinned him down on the date being July 6, 2010. Mr. Bulmer finally said: "Obviously it was the 6th".

[435] Once it was established that Mr. Bulmer encountered Mr. Vader on Tuesday, July 6, 2010, the questioning turned to what vehicle Mr. Vader was using at that time. In his examination-in-chief Mr. Bulmer was very reluctant to identify the vehicle driven by Mr. Vader on that day. He said that he did not look at it, it was raining and it was hard to see out the window, and so on. When pressed during re-examination as to whether it was the Nissan which he saw on that day, Mr. Bulmer answered:

I couldn’t say for sure what it was because I was looking through – when I saw the car there that one time, it was through the window, there was rain running down the windows, and it was a fair distance away, so I couldn’t say which vehicle it was for sure. I don’t know.

I have added emphasis, because he used the words "the car" and "there that one time". Evidence from other witnesses established that the Nissan van used by Mr. Vader had been parked at the Bulmer residence by Mr. Vader many times. This evidence is perhaps the best example of Mr. Bulmer being very evasive on a very important subject, namely, Mr. Vader still driving the McCann SUV on Tuesday, July 6, 2010.

[436] Mr. Bulmer agreed with Crown counsel that many of the texts off his phone were not authored or sent by him. He acknowledged that some of these are Mr. Vader texts to Amber Williams and Sheri Lynn Campbell. This admission is relevant to my investigation of whether the style and pattern of Mr. Vader sending his love texts is very similar, if not identical, to the two texts sent off the McCann phone to Amber Williams on July 3, 2010.

[437] Donald Bulmer identifies many texts as probably originating from Mr. Vader that were sent from his cell phone. Some use the letter "t" either at the end, or embedded within the text to identify the author. This debunks the Defence unsubstantiated assertion that McColman and Amber Williams were romantically involved and that "t" is Mr. McColman and not Mr. Vader. I am not summarizing Mr. Bulmer’s evidence in cross-examination, as it was largely contrived.

7. Bobbi-Jo Vader

[438] Ms. Bobbi-Jo Vader is the younger sister of Travis Vader. By her own reports, in the summer of 2010, she was a troubled individual with serious substance abuse issues. At that time, she was living with Jen and Matt Sztupovszky in Edmonton, but was also spending time at the home of Esther McKay.

[439] The Crown called her because she had evidence to give about:

1. Travis Vader arriving in a truck at Esther McKay’s home on the early morning of Monday, July 5, 2010,

2. identifying that truck as the "F350",

3. the presence of groceries and also guns wrapped in blankets in the back of the passenger cab of the F350,

4. the interaction between Travis Vader and Andrea Sexsmith on that date, and

5. her knowledge of the use of methamphetamine by Travis Vader.

[440] It is an understatement to say that Ms. Vader was a very uncooperative Crown witness. During her examination-in-chief by Crown counsel on April 14, she was asked questions on a number of subjects, including Travis Vader’s use of drugs, his physical appearance on July 5 and the presence of guns in the back of the cab of the truck that he was driving on that date.

[441] The Crown applied under s 9(2) of the Canada Evidence Act, RSC 1985 c C-5 ("CEA") to cross-examine her on inconsistent statements.

[442] In an oral ruling on April 15, 2016, I found that there were inconsistencies between what she said in her testimony in Court on April 14 and what she had said to members of the RCMP in interviews on July 16, August 6 and September 7, 2010.

[443] I then allowed the procedure in R v Milgaard (1971), 2 SCC (2d) 206, 14 CRNS 34 (Sask CA) to proceed. Ultimately, the Crown made application to introduce portions of the three statements which Ms. Vader had made to the RCMP and my decision is found in R v Vader, 2016 ABQB 266 (CanLII) at paras 63-66.

[444] I admitted portions of the out-of-court statements made by Ms. Vader on August 6 and September 7, 2010 in regard to what she knew about the presence of guns in the F350 truck driven by Travis Vader in the early morning of July 5, 2010. This evidence is found in the transcripts and related audio of those interviews in Exhibits 186 and 187. The contents of these Exhibits also confirm identification of the F350 as the truck being driven by Travis Vader on July 5 and that Andrea Sexsmith punched the F350 on the early morning of July 5 outside Esther McKay’s home.

a Witness Credibility and Reliability

[445] My assessment of Ms. Bobbi-Jo Vader’s credibility is brief.

[446] As reflected in my April 15 oral ruling, there were several areas of inconsistency noted and the most obvious ones related to the question of whether there were guns in the F350 being driven by Travis Vader.

[447] In her direct examination by Crown counsel she said first that "there was some guns in the back seat", but she did not see them.

[448] Then she testified she was confused about how she became aware of guns being in that location.

[449] Then she said it would not be "un-normal" [sic] for her brother to have guns in a vehicle; and finally she said that it was not normal for him to have guns.

[450] This is only one example of how Ms. Bobbi-Jo Vader’s evidence was inconsistent.

[451] She was also evasive when being examined by the Crown and generally demonstrated a serious lack of cooperation with Crown counsel in presenting her evidence. Throughout she took refuge in the claim that she was under the influence of cocaine at the time of her observations made on July 5, 2010 and also when she gave her three statements to the RCMP.

[452] The way she answered or rather did not answer questions from Crown counsel is in sharp contrast to her eager responses to Defence counsel during cross-examination. While Ms. Vader had been called by the Crown and was their witness, she turned out to be completely aligned with the Defence. She was prepared to say just about anything to exonerate her brother.

[453] Further, on the credibility assessment, I take into account the fact that as early as October 14, 2011 she had been encouraged by Travis Vader to "recant" any statements which she had made to the police about him. He said:

... You, you need to recant your statement anytime you want ... (Transcript, Exhibit 133, October 14, 2011, p 7, ll 13-14.)

[454] His bullying nature and the abusive tone of voice used by Travis Vader is apparent from the audiotape of this intercepted conversation. Evidently, Bobbi-Jo Vader took seriously his clear direction that she should recant her statements to the police. That is exactly what she attempted to do throughout most of her evidence on all three of the days she was in Court: April 14, 15 and May 12, 2016. I conclude that Ms. Vader is not a truthful witness and was trying to mislead the Court.

[455] As to the reliability of her evidence, Ms. Bobbi-Jo Vader claims to have been under the influence of cocaine at all relevant times. She says that the use of drugs meant that she could not recall how certain versions of events came to exist. Eventually, she took the position that her memories either never existed because of the use of drugs, or she could not be relied on because she was still a serious drug addict. I have serious reservations about whether she was using the substantial amounts of cocaine she claimed to be using in July, August and September of 2010. I say this because the RCMP officers involved in taking the three statements were called on voir dire #13, to prove the statements. Officers Paradis (July 16), Oulette (August 6) and McCoshen (September 7) were all questioned by the Crown as to whether they observed Ms. Vader to be under the influence of drugs or alcohol at the time of the interviews. These experienced police officers did not detect any obvious signs of impairment. I acknowledge that Ms. Vader was not particularly articulate in the lengthy August 6 interview. However, I have watched the video of that interview and also listened to the related audio track and observed that Ms. Vader did not indicate in any way that she did not understand the questions put to her. However, beyond these three interview sessions, it is difficult to know whether or not she was abusing drugs. In the result, the only reliable evidence that I am left with are the edited interviews of August 6 and September 7 in Exhibits 186 and 187, and I conclude that those parts are reliable.

[456] In summary, the only evidence generated from Ms. Bobbi-Jo Vader which I accept and base my decision on are the jointly edited statements to the police which were entered as Exhibits 186 and 187 following my ruling in R v Vader, 2016 ABQB 266 (CanLII).

[457] Essentially this evidence consists of Travis Vader telling her that there were guns in the back of the cab of the F350 and that she was to be careful when retrieving articles from the F350. She said that there were blankets in that location, i.e. behind the seats of the F350, but she did not see any guns. She identified the F350 as being the truck driven by Travis Vader on July 5, 2010. She confirmed in her September 7 statement that Travis Vader and Andrea Sexsmith got in an argument and at some point Andrea Sexsmith punched the side of the F350 truck. She saw Ms. Sexsmith’s hand was bleeding.

8. William James Nikolyuk

[458] Mr. William Nikolyuk was a very reluctant Crown witness who gave evidence on March 18, 23 and 24, 2016. He affirmed that he would tell the truth in this trial. He did not do so. Instead, Mr. Nikolyuk turned out to be a man who lied about lying. There were two applications by the Crown under s 9(2) of the CEA for leave to cross-examine him in respect to inconsistencies arising from two statements he gave to the RCMP; the first taken on July 26, 2010 and the second on August 9, 2010.

[459] The Crown called Mr. Nikolyuk because it appeared he had some very important evidence to give about Mr. Vader’s involvement in the disappearance of the McCanns, the cell phone number which Mr. Vader was using in March through July 2010, Mr. Vader’s work history in the oil patch, and whether Mr. Vader was using methamphetamine between March and the end of May 2010. The Crown also thought that he had useful evidence to give about a meeting and conversation between Mr. Nikolyuk and Mr. Vader in the early morning hours of July 18, 2010 at Wildwood, Alberta, where it was suggested that Mr. Vader received food, acknowledged that he was on the run from the police, and had stolen the McCann SUV. Mr. Nikolyuk either evaded answering questions on these subjects or took the position that portions of his statements were not true and that he had lied to the RCMP.

a. Witness Credibility and Reliability

[460] I begin my credibility assessment by reviewing what happened in respect to the first of the Crown’s s 9(2) applications where I granted leave to cross-examine William Nikolyuk about statements arising from his August 9, 2010 interview with the RCMP. After I granted leave to cross-examine him, Mr. Nikolyuk admitted that, on August 9th, he had told the police that he saw Mr. Vader come out of the grass in the very early hours of July 18, 2010 near his parents’ farm at Wildwood, Alberta. He had a conversation with Mr. Vader, gave him groceries, and Mr. Vader indicated that he was on the run and could not stay in one spot too long. Mr. Nikolyuk also confirmed he had told the police that Mr. Vader said that he had stolen the wrong vehicle at the wrong time, that it should serve as a lesson not to steal vehicles because you get in this kind of trouble, i.e. Mr. Vader got in trouble, but that he had done nothing to these people. Mr. Nikolyuk acknowledged that he told the police that Mr. Vader left the Wildwood location seated in the passenger’s seat in a vehicle being driven by Terry McColman.

[461] Having admitted that he said all of these things to the police on August 9, 2010 Mr. Nikolyuk then denied that what he had told the police on that day was true. He was further cross-examined by Mr. Finlayson, QC but could not give any reason as to why he would lie to the police and say these things about his friend, Travis Vader.

[462] The second application under s 9(2) of the CEA involved a statement made on July 26, 2010 to the RCMP investigators about the cell telephone numbers attributed to a cell phone being used by Mr. Vader and also Mr. Vader’s use of methamphetamine. On the cell phone issue I found that Mr. Nikolyuk had been evasive but not inconsistent, and denied the Crown’s application to cross-examine on that point. However, I did allow cross-examination on the other issue of whether Mr. Nikolyuk had ever seen Mr. Vader use methamphetamine and had used that drug with him. Mr. Nikolyuk admitted smoking methamphetamine around Mr. Vader in the period of March to the end of May 2010, and also admitted that he got this drug from Mr. Vader’s then-girlfriend, Amber Williams, and smoked it with her. He denied that Mr. Vader had ever used methamphetamine in any form in his presence.

[463] In the course of his questioning by the Crown, Mr. Nikolyuk was hesitant in answering, very evasive and, as I have stated, denied that he was telling the truth to the police in that August 9, 2010 interview.

[464] In answers to questions from Defence counsel, he was very forthcoming and more than helpful in expanding on evidence to support the theory of the Defence that the McCanns were murdered by Terry McColman. I review those statements later in this judgment in relation to the assertions about Mr. McColman’s role in the disappearance of the McCanns.

[465] In respect to the credibility of this witness, I conclude William Nikolyuk is completely untrustworthy and was actively misleading the Court in a matter involving very serious charges. He is a liar; indeed, he is a man who lied about lying.

[466] As to the reliability of his evidence, Mr. Nikolyuk did not appear to be under the influence of any drug or alcohol while he gave evidence over the three days of the trial. He did acknowledge that during the period March through the end of May 2010, he was a very heavy user of methamphetamine, using up to one-half to one gram per day, three or four times a week. However, he was in the Edmonton Remand Centre from the end of May until July 17, 2010, so it is likely he had cleaned up such that, at least in the latter part of July, he was relatively drug free.

[467] In the course of the trial, Mr. Nikolyuk agreed that he was capable of making the police understand what he had to say and that he understood what they were asking him during his August 9, 2010 statement. On that date, Mr. Nikolyuk had just completed a course of treatment for an infection, although he was still taking some antibiotics in pill form. There is no evidence which I accept that at the time of the August 9 interview with the RCMP that Mr. Nikolyuk was distraught or overcome by grief due to the recent death of his girlfriend. There is also no evidence which I accept that he was crying or otherwise in an extreme emotional state in that interview. Therefore, in terms of whether the evidence he had to give to the RCMP was coherent and free from the influence of illicit drugs, I acknowledge that I can at least go that far in terms of the quality of his evidence. He did cooperate in court in reading over his two statements to the police and he appeared to be able to comprehend their contents. Mr. Nikolyuk seemed to have a reasonably good recollection of events in 2010; certainly, he did when it came to responding to questions from Defence counsel in cross-examination. Those questions were clearly designed to implicate Terry McColman as the killer of the McCanns.

[468] In conclusion, on the issues of trustworthiness and reliability of evidence, I conclude that this man is such an obvious liar and so closely aligned with Mr. Vader as a fellow creature of the methamphetamine subculture, that I assess him as the most untrustworthy person called as a witness in this trial, and that is saying something. While I conclude that what Mr. Nikolyuk said to the police was likely true, I am not relying on any of his evidence in making my decision in this case. I am convinced that I was lied to by Mr. Nikolyuk and it would not be safe to base my decision in any way on the evidence given by this man. He is a man who lied about lying and I give his evidence no weight and ignore his evidence completely.

b. Witness Evidence

[469] The evidence Mr. Nikolyuk had to give has already been summarized and it is not necessary to repeat it again.

C. Review of Other Witnesses and Some Relevant Items

[470] Both the Crown and Defence called witnesses who had incidental interactions with Mr. Vader, relevant evidence and property.

1. F350 Witnesses

[471] I have noted how Mr. Vader was associated with a Ford F350 truck. This vehicle had been recovered from an Encana wellsite, located north of Highway 16 and near the Carrot Creek community.

[472] This diesel truck was owned by Gil Bertrand, who testified the vehicle was a 2006 Ford four door 4x4 dually model, gold in colour, and in excellent condition. While Mr. Bertrand did not recall the exact date that his truck disappeared, he said he reported the theft to the RCMP within an hour of noticing the truck was missing. At the time the vehicle disappeared, the back box contained a toolbox, a hitch, and a fire extinguisher. It was not equipped with a tidy tank of any type.

[473] Mr. Bertrand was asked if he had owned a Hyundai vehicle or could explain why keys for a Hyundai might be associated with his truck. He had no explanation as to why that type of key might be present in the box of the F350. When Mr. Bertrand reviewed photos of the F350 after its recovery, he confirmed it was his truck. He identified damage that had not existed when he last saw the vehicle. Several items, including a red tidy tank, were also unfamiliar.

[474] The F350 had been found by Bradley Ell, an employee of Encana, when doing routine checks of well sites in the area east of Edson. Mr. Ell had seen the F350 four or five times in that location earlier in July 2010. He reported its presence to the RCMP on July 17, 2010 after more closely examining it and noting fire damage. When found, the F350 had no licence plate, and had a hose running into the cab from a pump on a tidy tank in the box. The windows were blackened, as though there had been a fire in the interior of the cab. Mr. Ell reported the suspicious vehicle to the RCMP, and Constable John Eggenberger arrived to investigate.

[475] Constable Eggenberger testified that he inspected the F350, noted the evidence of fire damage, the unusual hose and electrical cabling arrangements between the battery and the pump, and requested additional assistance. Constable Eggenberger assisted in the initial inspection of the vehicle, and arranged for it to be towed to Edson. Constable Eggenberger was extensively cross-examined on his observations, particularly of the back of the truck and its contents, as well as what items were examined and seized.

[476] Constable Jason Young testified twice as to the investigation of the F350 after its transfer from Edson to Edmonton. He first observed the damaged F350 at the yard of Edmonton Salvage. He observed it was a Ford F350 Lariat diesel type with a tidy tank in the back. He arranged to have the F350 transported by a flatbed tow truck that winched the F350 up onto an elevated deck which was then rotated back to a horizontal position.

[477] Constable Young inspected the interior and exterior of the F350, taking photos of what he observed. The cab interior had been damaged by fire. Electrical cable had been run from the battery to a pump on the tidy tank. A hose had been run from the pump on the tidy tank through a driver side window into the interior of the cab. The cab interior smelled of diesel fuel.

[478] RCMP Sergeant Grant Goulet conducted a forensic investigation of the F350. He located a key in a two inch gap between the back of the truck box and the tidy tank. He determined that the unknown Hyundai key and fob opened and operated the McCann SUV. He also inspected the mechanical systems of the F350 and observed that the cooling system contained a dark coloured oily sludge, which was abnormal. Sergeant Goulet was extensively cross-examined on the possibility that prior investigation could have missed the SUV key. He explained that as far as he was aware the tidy tank was never removed during the investigation. While many hypotheses were put to Sergeant Goulet on the question of the SUV key, I place little weight on Sergeant Goulet’s answers because his answers involved him guessing as to the circumstances in the F350 when it was previously searched.

[479] An independent mechanic, Kevin Serben, conducted an examination of the F350 on August 18, 2010. His expertise on the subject of Ford trucks and the repair and diagnosis of issues with F350 trucks was admitted. Mr. Serben used a computer system to examine the F350’s stored electronic information. That examination revealed that engine oil was leaking into the cooling system. Mr. Serben visually confirmed the presence of an oily sludge in the coolant tank. He explained that could cause a vehicle of this kind to overheat.

[480] Corporal Benko also gave evidence on the location and recovery of the Hyundai key and fob. He photographed the key/fob once it was located, and had also examined the F350 earlier, but not seen the key at that time. Corporal Benko was familiar with tidy tanks generally because he had grown up on a farm where equipment was refueled from similar tanks. He explained that the vent on the top of these tidy tanks readily allows spillage because of the way the valve on the top of the tank operates. I accept his evidence on this point and give it great weight. He also explained that when the F350 was first examined on July 17, 2010 he did not recall peering into the space between the tidy tank and the back of the truck box. On August 16, 2010, the investigation was conducted with flashlights and the Hyundai key was located. Photos taken on July 17 did not show any staining on the red tidy tank, but staining is obviously present on August 16. I find that diesel fuel had spilled out of the tank when the truck was winched up onto the elevated flat deck.

2. The Klohn Truck

[481] Former RCMP officer Stephen Hudson gave evidence concerning a destroyed pickup truck [the "Klohn truck"] reported to the RCMP on July 12, 2010 by an operator at the No. 4 Keyera gas compression plant ["Keyera plant"], who indicated the wreck had not been there on Friday, but was there the following Monday (July 12). Mr. Hudson investigated, and located the remains of the vehicle in a cutline off the Elk River Road at the bottom of a steep hill. The pickup had been largely destroyed by an extremely hot fire, which melted many components, such as the aluminum engine block. This severe fire destroyed the truck’s Vehicle Information Number.

[482] Mr. Hudson testified the melted pickup truck was subsequently identified as a Ford F350. It belonged to Curtis Klohn, and had been stolen from his residence in the Carrot Creek area between July 9 and July 11, 2010. No other meaningful information or evidence was obtained from the remains of the vehicle because of the extent to which it had been damaged in the fire.

3. Boxer Beer

[483] A number of witnesses gave evidence concerning the sale and tracking of Boxer Beer products. This related to the Boxer Beer purchase made on July 3, 2010 by David Olson at Peers Liquors. RCMP Constable Jeffrey Mulroy seized receipt number 54412, dated July 3, 2010, for the purchase of 12 cans of Boxer Beer.

[484] Boxer Beer products have numbers on individual cans and the cardboard cartons that track batch numbers and other related production information. The Court received uncontested evidence that the Boxer Beer can recovered from the McCann SUV and the Boxer Beer carton located at the Samson-Roader property had tracking number information that is consistent with the Boxer Beer purchased on July 3, 2010. However, the evidence I received makes it clear that the tracking number data is shared with many other cans and cartons. This is a popular and cheap brand of beer. The batch tracking number link therefore does not prove in any significant way that the Boxer Beer products recovered from the Samson-Roader property were purchased by David Olson. In that sense, this evidence is neutral and has no real implication for or against Mr. Vader’s potential guilt.

4. Incidental Witnesses

[485] A number of witnesses testified and provided evidence of interactions with Mr. Vader beyond the alleged offense scenario on July 3, 2010.

a. The July 10 Encounter on the Elk River Road

[486] Mr. Serge Morin testified that he encountered Mr. Vader on the Elk River Road on July, 10, 2010 when he was flagged down by Mr. Vader close to the Keyara plant. Mr. Vader asked for a ride to Edson, but Mr. Morin declined because that was against company policy. He offered to lend Mr. Vader his cell phone. Mr. Vader took the phone and appeared to make at least two calls. Ten minutes later Mr. Vader handed back the cell phone, and said someone was coming for him. That ended their interaction.

[487] Three or four days later Mr. Vader’s picture appeared in the Edmonton Sun in relation to the disappearance of the McCanns. Mr. Morin reported his encounter with Mr. Vader to the RCMP. Mr. Morin’s wife, Ms. Carolyn Podmaniczky, sent the RCMP the invoice reflecting the calls which Mr. Vader had made from the Morin cell phone on the afternoon of July 10.

[488] Mr. Morin and Ms. Podmaniczky were asked if they knew or had any reason to call Andrea Sexsmith, Duane Whitnack, Kayla Campbell, or Esther McKay. Both of these witnesses testified that they had no knowledge of these persons.

[489] Exhibit 22, the Morin cell phone invoice, shows six telephone calls were made on July 10, 2010 between 14:00 and 14:08:

14:00 - (780) 517-2722 (Whitnack)

14:01 - (780) 517-0943 (Campbell)

14:02 to 14:08 - four calls to (780) 642-0258 (Esther McKay landline).

I have received and accept evidence that these three telephone numbers relate to phones operated by Duane Whitnack, Sheri Lynn Campbell, and Esther McKay, respectively.

[490] I accept the evidence of Mr. Morin and Ms. Podmaniczky concerning their observations and the relevant cell phone records, along with Mr. Morin’s identification of Mr. Vader as the person he met on the Elk River Road near the Keyera plant on July 10, 2010.

b. The Zerb IOU

[491] RCMP Sergeant Chad Fournier was asked in cross-examination about his interactions with Terry McColman, an individual the Defence argues is an alternative suspect in the McCanns’ disappearance. Sgt. Fournier testified he interviewed Terry McColman on July 19, 2010.

[492] In the process of tracking down Terry McColman, Sgt. Fournier visited the residence of Harold "Buzzard" Zerb, who lived near Nojack, Alberta. No one was home, but Sgt. Fournier observed a note on Mr. Zerb’s door which read: "I got your gas. Will be back tonight to replace" and it was signed "T.". Mr. Zerb was called by the Defence to confirm this observation by Sergeant Fournier.

c. Remand Centre Intercepts

[493] The Crown also entered as evidence recordings of conversations that took place in the Red Deer Remand Centre. Mr. Vader and a second individual, Elmer Cardinal, were in a cell together. The cell was bugged and the conversation recorded. Mr. Cardinal had volunteered to assist the RCMP as an agent.

[494] The Crown entered into evidence six recordings of conversations between Mr. Cardinal and Mr. Vader, and corresponding transcripts:

• Session number 280 - August 29, 2011 at 12:21:52-12:34:12,

• Session number 480 - September 8, 2011 at 16:10:15-16:19:29,

• Session number 552 - September 20, 2011 at 12:14:01-12:22:15,

• Session number 257 - October 12, 2011 at 23:00:00-23:15:00,

• Session number 258 - October 12, 2011 at 23:15:00-23:30:00, and

• Session number 294 - October 13, 2011 at 23:04:45-23:19:45.

[495] The Crown also entered two recordings of telephone conversations between Mr. Vader, his mother Barb Leite, and sister Bobbi- Jo Vader. They are:

• Session number 665 - October 14, 2011 at 19:04:32-19:24:56, and

• Session number 138 - October 16, 2011 at 18:03:16-18:23:04.

[496] The last recording is of a telephone conversation between Mr. Vader, Tanis Grant, and two unidentified individuals, Session 1, made on July 23, 2010 at 20:50:02-21:10:00.

5. Defence Witnesses at the Minnow Lake and Wolf Lake Campgrounds on July 4/5, 2010

[497] The Defence called a number of witnesses who were at the Minnow Lake campground around the time the McCanns disappeared. Minnow Lake is south of Highway 16, on the Wolf Lake Road. Their testimony is in some ways similar, but in other ways diverges.

[498] Debbie Foisy and her family were at Minnow Lake on July 4, 2010 to celebrate a wedding anniversary. She testified that between 15:30 and 17:00 a large motorhome towing a SUV pulled into the campground "a little fast". A woman exited the RV and unhooked the SUV. The SUV then circled the campground loop and parked again. Ms. Foisy described the woman as an individual in her 60’s, short, possibly "Polish or Ukrainian", and described the clothes she was wearing. A man wearing a baseball cap and dark clothes was also visible working under an awning extended off the RV, cooking at a picnic table. The man and woman did not appear distressed and did not act in an unusual manner.

[499] Ms. Foisy explained she has an unusual capacity to recognize persons. If she meets someone and learns their name she will recall that individual and name in the future. Ms. Foisy indicated that the older woman she observed was the same individual depicted in a photograph of Marie McCann. She also testified the vehicles she observed resembled those owned by the McCanns. Ms. Foisy and her relatives left the Minnow Lake campground around noon the next day, and at that time the RV was still present but did not see the SUV.

[500] In cross-examination Ms. Foisy was asked about a statement that she gave to the police on July 13, 2010, where she was shown a photograph of Marie McCann. At that time Ms. Foisy indicated she did not see the woman’s face. During cross-examination by the Crown, Ms. Foisy indicated that she saw the female in question from the front and side, and while seated, but not up close. Ms. Foisy reported she contacted the RCMP after watching a CTV news story concerning the McCanns and their disappearance.

[501] Gwendolyn Yakimovich was also at the Minnow Lake campground for the same event. She reported that around 16:00 (an estimate) a whitish RV with a green wave design towing a small SUV on a tow bar drove slowly through the campground and then left. Ms. Yakimovich indicates she had "an impression" there was a passenger of unknown gender in the RV. Half an hour later the RV and SUV reappeared as separate vehicles, and parked in a stall opposite where Ms. Yakimovich was located. The SUV then drove away by itself. This witness testified she had only an impression of someone from those vehicles walking through the campsite.

[502] On cross-examination, the Crown pointed out to Ms. Yakimovich that in her initial statement to police she did not describe two separate vehicles returning, but only the RV coming back to the campground. She clarified that the SUV then appeared and parked with the RV, within "... a few minutes at most ...".

[503] A third member of the anniversary party, Mr. Clarence Foisy, provided his account of an SUV and RV that he observed at Minnow Lake. He reported that around 16:30 he saw a green and white motorhome towing an SUV with a tow bar. At a later point Mr. Foisy observed the RV in a stall in the Minnow Lake campground. It was backed into a stall, but parked on "a real crazy angle", and was leaning into a ditch. Rolf Wenaas (the Minnow Lake campground attendant) made similar observations. Mr. Foisy never saw the SUV after the initial sighting. This witness subsequently identified the RV and SUV as matching photos of the McCann vehicles. Mr. Foisy also testified that he observed a man near the motorhome who walked towards Minnow Lake. This walker appeared to be a senior citizen, aged 65-70 years. That estimate was based on the man’s body shape and hair colour. In cross-examination Mr. Foisy confirmed he could not tell where the grey-haired man had come from.

[504] Barbel Gray testified she had travelled to Wolf Lake to go camping for the July 1-4, 2010 long weekend. Wolf Lake is about 30 km south of Minnow Lake. Ms. Gray saw a teal-coloured SUV on July 3, 2010 in the afternoon. She mentally recorded three numbers from the licence plate: ‘289’. Ms. Gray testified that a woman in her mid-60’s was in the passenger seat and looked very much like a neighbor of Ms. Gray’s, who also coincidentally looked very much like Ms. McCann. The other vehicle occupant was an elderly man, about 70 years in age. As Ms. Gray left the Wolf Lake campground on July 4, 2010 she observed a motorhome with an unusual teal coloured detailing.

[505] On cross-examination, Ms. Gray was asked to clarify her evidence in light of a police report she gave in September 2010 where she instead described the RV detailing as metallic, gold or silver. She also acknowledged that in respect to the SUV her attention was drawn to the familiar looking occupant, the presence or absence of a trailer hitch on the SUV, and that some of the details she reported, such as that the vehicle had an Alberta licence plate, were instead uncertain.

[506] The Defence theory is that these witnesses establish that Lyle and Marie McCann found their way to Minnow Lake, and/or Wolf Lake, and by implication that they could not have crossed-paths with Mr. Vader and been the victims of foul play. This is, in a sense, a kind of alibi defence, or at least suggests the Crown’s theory of what happened to the McCanns is incorrect.

[507] I deal first with Ms. Gray’s testimony concerning her observations. While I believe this witness made her best attempts to provide accurate evidence to assist the Court, I consider her evidence to be unreliable and therefore put little weight on it. First, her memory of the RV has changed over time. Second, she admitted the details of what she observed were unclear, and there were other possible alternatives. Third, her attention was principally drawn to what appeared to be a familiar face, and while that creates a plausible basis for Ms. Gray to retain that memory, that also means other elements of the narrative are secondary. Last, the McCann cell phone was used around the same time as Ms. Gray reported her sighting the SUV, but the SUV and its occupants were well outside the service range of the Carrot Creek and Pioneer cell phone towers that connected to the McCann cell phone.

[508] My conclusion is that the other witnesses (D. Foisy, G. Yakimovich and C. Foisy) who observed vehicles on July 4, strongly suggests that the McCann RV and SUV found their way south on Wolf Lake Road to Minnow Lake on that date. This inference is supported by the fact that the RV seen by Rolf Wenaas was ultimately found burning near the Minnow Lake campground the following day. However, the larger question is the status of the McCanns at that time.

[509] I will conclude that Mr. Vader had by the afternoon of July 3, 2010 taken possession of the McCann SUV (it was seen by Mr. Olson and Mr. Ingersoll between 17:15 and 19:30) and was using the McCann phone. The evidence on the latter point is overwhelming. I have also concluded Mr. Vader is also closely linked to the McCann SUV by forensic evidence.

[510] Two of these witnesses called by the Defence report seeing persons associated with the vehicles which resemble the McCann vehicles, and who have an appearance incompatible with Mr. Vader, but potentially matching the McCanns. This evidence warrants further review. Mr. Foisy reports seeing an older male, but confirms there was no reason to associate that male with the badly parked RV; the male was just walking by that vehicle. Ms. Yakimovich reported no contact with an identifiable person associated with the SUV and RV which she observed.

[511] Ms. Foisy’s narrative is very different from the other two Minnow Lake witnesses. She said that she saw Marie McCann, and an older male. Both were engaged in routine housekeeping and camping activities. I have difficulty with aspects of Ms. Foisy’s testimony and consider it unreliable. First, her narrative has become more detailed since her first statements to the RCMP. Second, her description of the manner in which the RV was parked and the way the awning was deployed is inconsistent with other witnesses, particularly Mr. Foisy who observed a badly parked and unleveled RV near the activities of the Foisy party. Therefore, while I accept that Ms. Foisy saw vehicles that resemble the McCann RV and SUV in the Minnow Lake campground, I put little weight on her other observations, particularly in respect to her identification of Marie McCann as being present at that time.

[512] My conclusion from the evidence of the Minnow Lake witnesses called by the Defence and from Mr. Wenaas, along with the discovery of the McCann RV on fire on July 5, 2010, is that the McCanns vehicles were moved to the Minnow Lake campground on July 4, 2010. As for the McCanns themselves, I find as a fact there is no evidence to establish that they were alive and present at that point.

6. Defence Evidence on Mr. Vader’s Activities in July 2010

[513] The Defence called several Edmonton-area witnesses who testified concerning their encounters with Mr. Vader in a period before and after July 3, 2010.

a. Kimberley Leanne Steffler

[514] Ms. Kim Steffler, a friend of Ms. Campbell, testified that Mr. Vader visited Ms. Steffler’s residence in early July 2010. Ms. Campbell was living there at the time. She reports Mr. Vader arrived at the Steffler residence on Friday, July 2, 2010 at about 03:00, barged in and frightened her. Ms. Steffler went to work on the Friday from 12:00 to 19:00. After that Ms. Steffler had dinner with Mr. Vader and Ms. Campbell. Ms. Steffler’s next work shift was Saturday 16:00 to Sunday 02:00. She reports that before she went to work Mr. Vader was present in the Steffler residence, getting ready to leave. This was the only time she met or interacted with Mr. Vader. He was driving a very dirty truck. Ms. Steffler was confident about the timing of Mr. Vader’s activities because she works at the Yellowhead Casino, and her hours are recorded in detail by her employer.

[515] In cross-examination Ms. Steffler agreed with the Crown’s proposition that Mr. Vader had reported he was in Edmonton to get away from Edson because Mr. Vader was selling drugs and was being sought by law enforcement. Ms. Steffler agreed with a July 28, 2010 statement to police that she might have been off by a day in her recollection of when Mr. Vader left. It was either Saturday, July 3, or Sunday, July 4. On redirect Ms. Steffler concluded Mr. Vader had spent two nights with Ms. Campbell.

[516] I conclude Ms. Steffler was an honest witness who sought to provide accurate information concerning Mr. Vader and her interactions with him. Her evidence was reliable, aside from the potential issue she admitted concerning the timing of Mr. Vader’s visit with Ms. Campbell. On that point I prefer information that has been obtained from more reliable evidence sources, such as cell phone records, and conclude Mr. Vader was at most at the Steffler residence from the early morning of July 2, 2010 at 3:00 a.m. to July 3, 2010, when he left in the early morning while it was still dark.

[517] Ms. Steffler’s evidence on Mr. Vader’s statements is hearsay, and is therefore presumptively inadmissible. However, I admit this as reliable evidence via the principle that it was a statement against interest. Mr. Vader’s statement of being a wanted man and a criminal was clearly the kind of information one would not usually volunteer to others. I accept the Ms. Steffler’s general explanation of how she met and interacted with Mr. Vader, and clearly any statement of this kind would be voluntary, and as a consequence is trustworthy and reliable.

b. Esther McKay-Crosswell (Esther McKay)

[518] Esther McKay was called by the Defence, and reported on her interactions with Mr. Vader in July 2010. Ms. McKay owned the residence where Ms. Sexsmith and Ms. Vader stayed. This witness explained she has a pattern of providing assistance, including food and lodging, for persons who are in need and homeless. She demands her guests do not drink, use drugs, or engage in illegal activities.

[519] Her domestic arrangements are quite unconventional, with large numbers of persons shoe-horned into a small space. For example, an upstairs attic room contained beds for six people.

[520] Ms. McKay met Mr. Vader on several occasions, and had been introduced to him by his sister, Bobbi-Jo Vader. The incident which is relevant to this trial occurred early on July 4, 2010. Ms. McKay had returned at about 23:30 and learned Mr. Vader was present and spoke to him. Mr. Vader complained he was not feeling well, and he appeared grubby, "mucky and unkempt". Mr. Vader initially stayed upstairs in the McKay residence, but then was moved to the basement, because Mr. Vader "needed more quiet". Mr. Vader appeared sick throughout his stay, and had a few minor scrape type injuries. Ms. McKay describes him as very thin, to an unhealthy degree.

[521] Mr. Vader left on July 9, 2010 at around noon. Ms. McKay asked Mr. Vader if he would be back, and he replied not that day.

[522] I accept Ms. McKay’s evidence as credible and reliable. She was careful to identify the limits to her knowledge of Mr. Vader’s activities in the relevant period. At times she was out of the house, at others times she only heard Mr. Vader (and other occupants of her residence). I note that during the period of July 6-9, 2010, Mr. Vader does not phone anyone and so there is no cell phone tower data. However, after July 9, 2010 Mr. Vader begins to use the Bulmer cell phone on July 11, which is consistent with Ms. McKay’s report that he had left her residence by that point.

[523] Though Ms. McKay reports Mr. Vader was at her residence from July 4-9, 2010, I conclude her evidence makes it obvious she did not monitor his presence (or absence) in detail. Most of the time he was upstairs or downstairs in bed. Ms. McKay reports being out of the house at times. In other words, while I conclude Mr. Vader did base his operations out of the McKay residence from July 5-9, 2010, that is not an alibi that excludes the possibility that Mr. Vader was elsewhere at various points. For example, Mr. Bulmer reports Mr. Vader was at his residence on the afternoon of July 6, 2010.

[524] I also accept Ms. McKay’s evidence that Mr. Vader was in poor physical condition at this point, which is consistent with the evidence of Ms. Sexsmith.

7. Tanja Radovanovic

[525] The Defence called Ms. Tanja Radovanovic to provide evidence about the activities of Crown witness Myles Ingersoll. Ms. Radavanovic testified on the early morning of April 4, 2016 she observed Mr. Ingersoll at the Edmonton residence of her friend, Bill. She said Mr. Ingersoll was smoking methamphetamine in a glass pipe. She also says she knows how Mr. Ingersoll acts when he is stoned, "he fabricates a lot of things. He sees things. People in trees, stuff like that." Mr. Ingersoll testified in this proceeding on April 4, 2016.

[526] In cross-examination Ms. Radavanovic was asked how she became involved in this matter and came to know that Myles Ingersoll was a Crown witness. Ms. Radavanovic explained she was a friend of ‘Sam’ Dandenault, Mr. Vader’s current girlfriend. Mr. Ingersoll came up in conversation, and Ms. Dandenault told Ms. Radavanovic: "I need you as a witness."

[527] After Mr. Finlayson completed his cross-examination, I asked Ms. Radavanovic whether Ms. Dandenault was present in the courtroom. Ms. Radavanovic said yes. I then asked if that was the person who Ms. Radavanovic had been looking at for help in giving her evidence. Ms. Radavanovic vigorously denied that had happened.

[528] I put no weight on Ms. Radavanovic’s evidence. As my exchange with Ms. Radavanovic reveals, I observed that during her evidence she repeatedly looked to a specific woman in the gallery. My strong impression was that when Ms. Radavanovic was unclear as to how to answer a question from the Crown counsel, she looked at this woman, who was identified as Ms. Dandenault, for cues as to how to respond. I conclude Ms. Radavanovic’s evidence was coached and directed by a third party. Beyond that, I also observed Mr. Ingersoll carefully on April 4, 2010 when he testified, and I detected no evidence that he was under the influence of drugs. Instead, he appeared to me and I have found him to be an honest witness who gave reliable evidence. My conclusion is Ms. Radavanovic’s appearance and evidence was an attempt to fabricate evidence designed to compromise a Crown witness and mislead the Court.

8. Defence Motor Vehicle Damage Witness

[529] The last witness called by the Defence was Melvin Ray, who has worked as an autobody repair mechanic for over a decade. He said he has much experience with damage to motor vehicle external structures, paint, and panelling. The Defence attempted to qualify Mr. Ray as an expert in the kinds of damage caused to motor vehicles when a person punches or kicks a motor vehicle. I refused to qualify Mr. Ray as an expert, but did permit him to give evidence based on his experience in repairing motor vehicles.

[530] Mr. Ray was asked to comment on damage to the F350. He observed that the strength of a motor vehicle panel depends on the supporting structure. Absent that, the panel itself is quite weak. He was asked to comment on a specific point of damage on a door of the F350. Mr. Ray observed the door body panel was hit by a small object that caused a deep dent and that cracked the paint. The dent was principally vertical in orientation, and probably caused by a small object the size of a golf ball up to a tennis ball. He thought this was too small to be caused by a human fist.

[531] My understanding is that Mr. Ray’s evidence is intended to attack Ms. Sexsmith’s testimony that she punched the F350 on a driver side door leaving a dent. I find that Mr. Ray’s evidence is immaterial on that point. I believe that Ms. Sexsmith did punch the rear driver’s side door of the F350 and injured her hand. She may not have left a dent in the door. Indeed, Mr. Ray’s own testimony establishes that some areas of a motor vehicle’s outer structure are very strong because of a supporting structure underneath. Perhaps Ms. Sexsmith punched an area like that. In any case, Mr. Ray’s observations have no effect on my conclusions concerning Ms. Sexsmith’s credibility and reliability as a witness, or my conclusion that Mr. Vader was driving the F350 when he appeared at the McKay residence in the early morning of July 5, 2010 and that Ms. Sexsmith took a swing at the door of the truck during a disagreement with Travis Vader.

D. Mr. Vader’s Links to the McCanns and Stolen Property

[532] The possibility of whether Mr. Vader is or is not involved with the McCanns’ disappearance is in many senses a question of whether the recovered evidence links Mr. Vader specifically to those items. Since these are critically important inferences, I examine these links in greater and specific detail.

[533] However, there are other alternative hypothesis and theories which have been proposed by the Defence which are simply too insubstantial to warrant written response and rebuttal. They are not reasonable alternatives. One example is the Defence proposal that Mr. Vader somehow obtained possession of the McCann cell phone because it was left somewhere, and then presumably Mr. Vader found it and used it. There was no evidence to support that proposition, and instead a far more logical alternative is that Mr. Vader obtained the McCann cell phone at the same time as he interacted with other items of the McCanns’ property, such as the SUV.

1. Who Is "t"?

[534] On July 3, 2010 starting at 14:14 and through to 14:32 a series of communications were sent from the McCann cell phone to a phone operated by Amber Williams. The initial communication attempts are six cell phone calls which connect to either the Pioneer or Carrot Creek cell phone towers. The last two communication attempts were text messages:

Hey babe its me how are you doing today you know you can still text my phone i can still receive text i miss you so much

I have been trying to call you and text you and email you and face book you and i cant get in touch with you its me t

[535] It is not disputed that these communications were not made by the McCanns. The McCanns had no link or relationship with Amber Williams. Someone else sent those communications.

[536] Prior to this there are similar and potentially related text messages and phone calls.

[537] A series of text messages were sent at 00:27-00:33 July 2, 2010 from the Bulmer phone to Amber Williams by an author who self-identifies as "travis":

Hey its travis i need you amber im having a hard time here babe i need to hold you and miss you im all alone no place to live or go no clean cloths im realy missing you my love I realy could use some love right know

Pls i need you babe im realy tired and going to have a wreck or something im going to find a place to sleep and i mean it baby i just picked up the rest of my clothes guess im gone amber do you ever care to see me again

[538] The next day, July 3, 2010, three unanswered calls were made from the Olson landline to the Williams’ cell phone at 12:01, 12:08, and 12:15. Mr. Vader admitted to the police that he made these calls. Mr. Olson confirmed that these calls were made by Mr. Vader, and I accept the evidence of Mr. Olson on that point.

[539] The Sexsmith phone was purchased for and given to Mr. Vader for his use. A second set of text messages was sent from the Sexsmith phone after Mr. Vader added cell phone subscription time via the EZ-Pin service. After that a series of text messages were sent at 18:37 onward from the Sexsmith phone to the Amber Williams (texts in square brackets are replies from Ms. Williams):

Hey my love i have a phone again pls it would be so nice to talk to you and see you again pls get back to me im so lonely and miss you so

I love you with all my heart sweetheart pls talk to me

I cant say that on here where are you my love pls i want to see you im so tiered baby what are you doing

Hey sweetheart i love you and god i realy miss you and realy could use some hughes and kisses pls

Come on sweetheart im back out here and I would love to see you my love pls talk to me

[Im around and we cant be around each other. Its not safe. Your wanted pretty bad.]

Baby pls and why Do they want me so bad

And my middle name in safe right now pls i miss you so much pls amber god i love you so much

[If your out there im not coming around. Its not smart.]

Sweetheart its all going to be Ok i know it looks bad now but i talked to a lawyer again and he seems to think ill be Ok

Can I call you can you pls call me and I would not meet up with you there silly but I really would like to see you my love

[Ya well im not getting in trouble for it. So im thinking its not good thing]

Amber what about you and me and im off the shit and im trying my best and I love you

Well can I meet you somewhere else can I pls god amber I love you

[I just Dont think its good idea rite now]

Amber pls my love

Call me or let me call you pls your my hole world and you mean everything to me i didnt think i could love someone as much as i love you

And god amber what if they do find me i at least we would have a chance to talk make love and decide how we are going to deal with everythin

[540] Amber Williams, Mr. Vader’s ex-girlfriend, identified all these text messages as being from Mr. Vader. The text message records also make it obvious she came to that same conclusion at the time, because during the messages quoted above she and Donald Bulmer have a short text exchange:

Bulmer: Hi Travis called me. He wants u 2 text him

Williams: I no he texting me. But I told him if he around there im not going around. They watching too much.

Bulmer: Ok I was just relaying a message. He was told not 2 b at my place

[541] Similar communication from the Sexsmith to Williams phone continues in the days that follow. Amber Williams occasionally responds. The tone and content is consistent. For example, on July 8, 2010:

I am the man i the letters I wrote you I am the man who is in love with thatwants to marry you

I am a man that wants a good life with i know i made mistakes and im sorry

[Well i thought I new that man. But not sure.]

[Ya its not that its more than that.]

I am that man amber I love you And have for a long time you know that and i want nothing more that to love you with all my heart

Im back working and will straiten all this shit out

And amber if we are to be together we can not ever have drugs or any of that shit in our lives again i just takes everything good away

[Ya i no]

[542] Amber Williams is not the only individual who believed the person using the Sexsmith phone is Travis Vader. Sheri-Lynn Campbell also communicates with the Sexsmith phone, clearly thinking it is operated by Travis Vader. For example, on July 7, 2010 she sends this message:

Travis.. Im pregnant.. Again.. Fuk me.. Cha.. Im not kidding.. So I really need to make sum money..

[543] I conclude as a finding of fact that Travis Vader was the operator of the Sexsmith cell phone during the period after he downloaded the time on July 3. His social contacts indicate he was the one who used that cell phone. This is not the only basis on which I come to that conclusion. Mr. Vader had the Sexsmith phone in his possession. I have concluded as fact that David Olson purchased an EZ-Pin voucher for Mr. Vader and Mr. Vader used that to add time to the Sexsmith phone, at which point he began attempting to communicate with Amber Williams. I find as fact that Mr. Vader was the only user of the Sexsmith phone in the period after July 3, 2010.

[544] There are also consistencies in the themes of the communication coming from the Sexsmith phone. One is Mr. Vader’s persistent attempts to communicate with Ms. Williams. A second is that the manner in which individuals communicate will carry with and embed in the communication identifying elements. This is true even where the mode of communication is a ‘depersonalizing’ technology. Much like telegraph operators could recognize each other via a distinctive and recognizable "fist", text messages also carry identifying and characteristic motifs in text formats, punctuation, turns of phrase and capitalization (or the lack thereof).

[545] Mr. Vader has a distinctive texting style which uses no punctuation, only rare and irregular capitalization, many spelling mistakes that do not appear to be attempts to abbreviate words, and certain text motifs such as "pls" for "please", "hughes" or "hugges" instead of "hugs" and "tiered" instead of "tired". Amber Williams is typically referred to as "my love", "babe", and "sweetheart". The result when read as a whole is there is no real debate that Mr. Vader is the one operating the Sexsmith phone in the relevant period. ‘Vaderelike’ communications are also sent from the Donald Bulmer cell phone, and are recognized by their recipients as being authored by Mr. Vader.

[546] The critical question, however, is whether the July 3, 2010 communications from the McCann cell phone were also from Mr. Vader. If so, that means Mr. Vader had possession of and was using the McCann cell phone.

[547] The Defence objects that this is not proven, that instead there is a strict requirement to establish the source of a text message, citing R v Sanchez. Instead, Defence counsel argues that the messages could be from someone else, and specifically suggests Terry McColman as an alternative source. The Defence argument is Mr. McColman was the only person who self-identified as "T" in the drug-using group that included Mr. Vader and Ms. Williams. The borrowed gas note on Mr. Zerb’s door was signed with "T", and the Defence argues that "T" was for "T"erry McColman, Mr. Zerb’s brother. Defence counsel stresses that McColman was also romantically interested in Amber Williams, and that the McCann cell phone was recovered from an area of the Bulmer residence accessed by both Mr. McColman and Mr. Vader.

[548] At this point I pause to note that the Defence argued that the Crown is required to prove beyond a reasonable doubt that Mr. Vader was the operator of the McCann cell phone, and cites R v Sanchez for that proposition. That is wrong in law. In R v Sanchez the offender was charged with criminal harassment via sending text messages and making phone calls. Therefore, the identity of the caller is an element of the Crown’s case that must be established beyond a reasonable doubt. That is not the case here. The question of who used the McCann cell phone is an auxiliary finding of fact and only indirectly relates to the charges against Mr. Vader. That fact is not determinative of this trial. I therefore only need evaluate that issue on a balance of probabilities and that is what I have done.

[549] I conclude Mr. Vader was operating the McCann cell phone on July 3, 2010 between 14:14 and 14:32 for a number of reasons:

1. The two McCann cell phone text messages are consistent with Mr. Vader’s "fist". A particularly notable example is the author’s use of the phrase "face book" to identify the Facebook (all one word) Internet social media service. This atypical language is also found in a July 11, 2010 23:18 text message sent by Mr. Vader to Ms. Williams off the Bulmer phone.

2. The subject matter of the two text messages is consistent with Mr. Vader’s attempts to contact and meet with Amber Williams, and Mr. Vader’s stated attraction to and interest in her.

3. Reading the McCann and Sexsmith phone text messages together reveals continuity, these are parts of the same (largely unidirectional) conversation. This also implies that the same author is responsible for both sets of text messages, just as Amber Williams concluded.

4. The McCann cell phone activity directed to Ms. Williams is sandwiched between text messages sent by Mr. Vader to Ms. Williams on July 2, 2010 and attempts by Mr. Vader to telephone Amber Williams from Mr. Olson’s phone, and the Sexsmith communication attempts.

5. Last, the second text message is signed with "its me t". Arguably "t" is for Travis.

[550] This last point is disputed by the Defence, who instead argue that Mr. Vader never identifies himself as "t", but instead as "Travis" or "Trav’. The Defence submits the second text message from the McCann cell phone indicates its author must be Terry McColman; "t" is for "Terry". The Crown responds there are other text messages in evidence which plausibly originate from Mr. Vader where the sender self-identifies as "t".

[551] I reject the McColman is "t" hypothesis. First, Amber Williams is the witness best positioned to evaluate the source of these messages, and I have found her to be credible and reliable generally and specifically on that point. She did not equivocate on whether "t" is for "Terry" vs "Travis". She was certain Mr. Vader was the author of the "t" messages.

[552] Second, as the Crown noted, Mr. Vader often identifies himself as "t" in his text communications. A particularly telling example identified by the Crown is a text message apparently sent by Mr. Vader to Sherry Dawn Raw where Mr. Vader refers to Mr. McColman ("terry") and himself ("t"). Mr. Vader is at this point using the Bulmer phone:

Bulmer: Hey how are you doing is terry still with you

Raw: No i cant hang around with people whose house ontv

Bulmer: ic well i talk to terry if hes around its t here

Raw: He wuz grabin groceries and heading h?me

[553] The Crown also notes subsequent communications which illustrates Mr. Vader self-identifies as "t". On July 18, 2010 the following text message exchange occurred between the Bulmer telephone and Ms. Campbell’s cell phone:

Bulmer: Hey how are you its t where are you?

Campbell: OMG. Im at johnnys... Are you ok.. The cops called me today... So be care full.. Pls. Pls.

Campbell: Pls. Be care full..

Campbell: They mite be montering my phone.. Be care full.. Ok.. I luv you..

Campbell: They found the couple dead

Bulmer: Where and when

Campbell: I did not say much cuz i do not know much;. Ok.. Cum see me if u can

Campbell: The couple was found at the million dollar shit house.. They called me today about u..

Campbell: He goes to work tomorrow johnny. U gonna cum see me.. Or tonight.. Or whenever.. Inhere ok.. I luv you..

[554] I observe that by this point Mr. Vader had been identified as a subject of interest in the McCanns’ disappearance. Sheri-Lynn Campbell knew this, as is indicated by a July 16, 2010 text from her to the Sexsmith phone, which she knew was operated by Mr. Vader: "Yer all over the news..". Campbell clearly recognized "t" as Travis Vader.

[555] Further, overlapping with the exchange quoted above, is another set of communications from the Bulmer phone, this time to a cell phone operated by Tannis Grant. Again, the author self-identifies as "t", and apparently must be Travis Vader, because he comments on exculpatory statements to police from others:

Bulmer: Hey sexy how are you today its t here

Grant: Better now thanks 4 making me smile

Bulmer: Oh babe for real I make you smile now that just made my day I was depressed but all happy now hey you know that my friends and family have writen Statements confirming that i was in Edmonton when this all took place but i hauent heard that on the media

Grant: Yes i no iv been payin close attention but they stopped advertising last night on 630 ched that they wer lookin4u they likely wont what ther lookin for is 2 raise vigilany justice they always do it so they don’t have 2letu out when arrested to much public eye

[556] Quite obviously the operator of the Tannis Grant cell phone also identified "t" as Travis Vader. I note that Exhibit 185 incorrectly reverses the sender and recipient of the second text message in this exchange. Exhibit 180, the source for the data in Exhibit 185, indicates the exchange as quoted above.

[557] This is not to say that Mr. Vader exclusively self-identified as "t". Some of his text message communications from the Bulmer phone begin with the phrase "Hey its travis" (July 2, 2010 at 00:27, July 12, 2010 at 09:52). However, the overall pattern is obvious: when Mr. Vader is using someone else’s cell phone he self-identifies to the message’s recipient.

[558] Last, if Mr. Vader was the operator of the McCann cell phone and had obtained that as a stolen phone then it would be rather unexpected for him to text Ms. Williams "... its me Travis Edward Vader, your recent ex-boyfriend hugges and kisses". He instead would logically only identify himself in a manner sufficient to confirm his identity to the message’s recipient, but not provide potentially incriminating information. "t" is suitably vague in a general sense, but is clearly a form of self-identification recognized by his peers.

[559] In the result, I find as fact that Mr. Vader was the individual who operated the McCann cell phone and sent the communications on July 3, 2010 at 14:14-14:32. Though I need only find this fact on a balance of probabilities, I am satisfied that here there is no other reasonable explanation. I find the Crown has established beyond a reasonable doubt that Travis Vader was the person who authored and sent the two text messages on July 3, 2010 from the McCann cell phone and "t" is for Travis.

2. Did Olson and Ingersoll Observe Travis Vader in the McCann SUV on July 3, 2010?

[560] David Olson reported seeing Mr. Vader twice on July 3, 2010 driving two different vehicles. On the first occasion, Mr. Vader appeared in a pickup truck. Mr. Vader’s statement to the police admitted that he had attended Mr. Olson’s residence on July 3 at around noon. Later, Mr. Vader reappeared in a small green SUV. Myles Ingersoll also testified that he saw Mr. Vader in a "seafoam green" SUV when he arrived later in the afternoon.

[561] The Crown suggests this was the McCann SUV. The Defence argues instead that both Mr. Olson and Mr. Ingersoll are not credible or reliable witnesses, and that they conspired to fabricate a narrative that implicated Mr. Vader. I have previously concluded Mr. Olson and Mr. Ingersoll are trustworthy witnesses, and further on in this decision I address and reject the alleged conspiracy by those two witnesses. I also conclude that Mr. Vader was present at the Olson residence in the afternoon on July 3 on the basis of Mr. Olson’s purchase of goods, including the EZ-Pin cell phone subscription time, which was then used by Mr. Vader.

[562] What remains is the Defence criticism of Mr. Olson and Mr. Ingersoll as having been mistaken when they said that the vehicle they observed Mr. Vader operating matched the appearance of the McCann SUV. The Defence says that it might have been a different but somewhat similar vehicle. However, I find as fact that Mr. Vader was seen by these witnesses in the McCann SUV. I come to this conclusion on the basis that Mr. Vader has been linked by forensic evidence already summarized to the McCann SUV. The witnesses described specific and unusual features of the SUV, such as it was equipped with a front tow bar. What the Defence is arguing, in essence, is that I should prefer to conclude that Mr. Vader just happened to have access to and was using another green SUV - which is what Mr. Olson and Mr. Ingersoll saw - in the same time period as Mr. Vader was leaving forensic traces in the McCann SUV. That hypothesis is simply not reasonable.

3. Was the F350 Found with the McCann SUV Key Operated by Mr. Vader?

[563] Much evidence was entered about the F350 that was stolen from Gil Bertrand and ultimately recovered by the RCMP on a wellsite near Carrot Creek after the fire damaged truck was reported by Mr. Ell.

[564] The cab of the truck was partially burned, and a hose had been run from a pump on the tidy tank into the cab. I find as fact that the manner in which the truck was recovered indicates an unsuccessful attempt to destroy that vehicle by fire.

[565] While the F350 is positively identified both at the time of its theft and recovery, what is not absolutely clear is whether this same vehicle was observed by other witnesses. Ms. Campbell described Mr. Vader driving the F350 at the end of his July 2/3 visit with her in Edmonton. Mr. Olson reported Mr. Vader arrived at his residence in a vehicle that appears compatible with the description of the F350 on July 3, 2010 around noon. Similarly, Ms. Sexsmith and Ms. Vader report Mr. Vader appeared in Edmonton on July 5, 2010, again driving a dually truck with a tidy tank in the back which is, at a minimum, similar to the F350. Are these all the same truck?

[566] I find that as fact. First, there are the significant similarities in the vehicle as described. Second, Mr. Vader on July 3 asked Mr. Olson for oil for the truck. Mr. Serben, who inspected the F350 after its recovery, observed that the cooling system in the F350 contained sludgy material that he identified as oil, and explained that a common reason for oil in the coolant tank is an oil leak from the main engine. The fact that both trucks apparently had an oil leak problem implies these are the same vehicle.

[567] Last, the fact the F350 was found burned, and in a configuration apparently intended to result in the serious destruction of the vehicle implies Mr. Vader used that truck. During a recording made on October 11, 2011 in the Red Deer Remand Centre Mr. Vader described destroying a truck where the McCann SUV keys had been located:

... They said they found a brown, a tan truck with a fuel tank in the back. And they said they found McCanns’ keys in it or something. ...I burned it (unintelligible). I burned it. I burned it, it’s gone.

...

(Unintelligible) the hose through the (unintelligible) stuck in the window. I turn the fuckin’ pump on. (Unintelligible) filled the whole fuckin’ cab full of fuckin’ diesel. The whole fuckin’ truck. I had a fuckin’ blow torch under there. Oh (unintelligible) it fuckin’ burned. Burned pretty fuckin’ good, black smoke pouring out of the top when I left.

[568] These statements by Travis Vader match the description of the configuration of the F350 at the time it was recovered by the RCMP. In addition, the statement "I had a fuckin’ blow torch under there" matches to the "propane bottle ... that you would light something with" observed by Cst. Young when he did his first inspection of the burned out F350 in the Edmonton Salvage Yard on August 13, 2010. Cst. Young went on to say that there was the head portion of the propane bottle "... in between the driver and passenger seat in the back side and I photographed that."

[569] I subsequently conclude that Mr. Vader had a pattern of destroying motor vehicles after he was finished with them. That means the attempted burning of the F350 is also consistent with Mr. Vader’s modus operandi, which is another factor that suggests the F350 and the truck operated by Mr. Vader are one and the same.

[570] Therefore on a balance of probabilities I conclude that the Gil Bertrand’s F350 was the dually truck with a tidy tank that Mr. Vader was seen operating in Edmonton and Peers on July 3 and in Edmonton on July 5, 2010.

4. Did Mr. Vader Burn the Klohn Truck?

[571] I find as fact that Mr. Vader was the person who burned the Klohn truck in the vicinity of the Keyara plant off the Elk River Road. Mr. Morin encountered Travis Vader at that location on July 10, 2010, and Mr. Vader made a number of telephone calls, starting around 14:00. Ms. Sexsmith reports receiving a telephone call from Mr. Vader around that time asking her to arrange for him to be picked up. Mr. Bulmer testified he travelled to pick up Mr. Vader in Lodgepole, and then drove to a point near the Keyara plant. Shortly after Mr. Bulmer observed Travis Vader near a truck which was engulfed in flames. Mr. Hudson provided evidence that the melted remains of the Klohn truck were located and recovered from near the Keyara plant on July 12, 2010. The Klohn truck had been stolen from Mr. Klohn’s house in the Carrot Creek community, which was very close to where the F350 was abandoned after the unsuccessful attempt to destroy it by lighting it on fire.

[572] This evidence is more than adequate to link Mr. Vader to the Klohn truck. He destroyed it as described by Mr. Bulmer. I find, by implication, that Mr. Vader also stole the Klohn truck after he abandoned and attempted to destroy the F350.

E. Cell Phone Information - Statements for the Truth of Their Contents

[573] One of the controversies that emerged and then re-emerged in this trial on a number of occasions was how the Court should admit and/or weigh telecommunications records. That led to a number of rulings. One question was whether evidence of this kind should be acquired by a production order vs the Criminal Code wiretap intercept provisions: R v Vader, 2016 ABQB 309 (CanLII). Another issue that arose was what information in the telecommunications records could be admitted "for the truth of their contents": R v Vader, 2016 ABQB 287 (CanLII). In the latter decision the Defence admitted that recorded information concerning telecommunications was reliable and admissible on that basis. For a text message this includes the source and destination telephone numbers for cell phones engaged in the text communication, and the time the text was sent.

[574] The dispute devolved to a determination of the "truth" of the text messages "contents". In R v Vader, 2016 ABQB 287 (CanLII), I concluded the "truth of its contents" for the purposes of cell phone records meant the actual text recorded by the telecommunication service. For example, one of the text messages sent from the McCann phone to Amber Williams read:

I have been trying to call you and text you and e-mail you and face book you and i cant get in touch with you its me t

[575] I concluded at para 11 of 2016 ABQB 287 (CanLII) that the "truth of its contents" means that is the text that was written and sent by the operator of the McCann cell phone. The records are an accurate and reliable indication of the information communicated. However, in isolation, the telecommunications records do not, in themselves, prove who is "t", who is the intended recipient, and whether "t" truly had "... been trying to call, text, email, and face book ..." the intended recipient of the text message: para 12 of that decision.

[576] The factual accuracy and context of the text messages would have to be established by other means, and that is via other evidence received during the trial itself.

[577] In the case of the "its me t" message I have concluded that "t" is Travis Vader. At this point in the judgment I will make some more general observations on how I evaluated the informational content of text messages because they are, in certain instances, hearsay.

[578] Hearsay is presumptively non-admissible, unless it fits within an exception to that rule: R v Starr, 2000 SCC 40 (CanLII) at para 157, [2000] 2 SCR 144. Hearsay is excluded due to its uncertain reliability, where an alleged statement by a declarant is not tested by cross-examination: R v Starr, at paras 159-162. Justice Iacobucci at para 162 stresses that while hearsay is often approached in a formulaic manner, the underlying issue is a functional one: what is the utility of that evidence, and how does the inability to cross-examine affect the weight that can properly be placed on that statement:

These articulations of the hearsay rule make clear that hearsay evidence is defined not by the nature of the evidence per se, but by the use to which the evidence is sought to be put: namely, to prove that what is asserted is true. When the out-of-court statement is offered for its truth, the inability to cross-examine or "test" the source of the evidence in court under oath or solemn affirmation as to the truth of the assertion undermines its reliability ... In short, the essential defining features of hearsay are the purpose for which the evidence is adduced, and the absence of a meaningful opportunity to cross-examine the declarant in court under oath or solemn affirmation as to the truth of its contents. [Emphasis in original.]

[579] Hearsay evidence is admissible where it is necessary and reliable: R v Starr, at para 213. I may consider hearsay if the probative value of the evidence outweighs its prejudicial effect: R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, 111 DLR (4th) 419; R v Starr at para 188. Its ultimate weight will depend on all relevant circumstances.

[580] The most critical instances of hearsay are text communications that I have concluded originate from Mr. Vader. Two of these were sent from the McCann cell phone on July 3, 2010. Others were sent from the Sexsmith and Bulmer phones. Since Mr. Vader did not testify there has been no opportunity to cross-examine him on these statements and whether they are accurate. To be explicit - this is not a question of what was typed and sent, but rather whether those contents are accurate.

[581] This ends up being, indirectly, an examination of Mr. Vader’s honesty and/or attempts to misinform and disinform.

[582] There are general aspects of Mr. Vader’s communication which appear to be truthful. Others, not so much. Most, if not the majority, of Mr. Vader’s cell message texts are to Amber Williams and profess his love for her, and his need for her attention and contact. Other witnesses have commented on Mr. Vader’s infatuation, if not obsession, with Ms. Williams. I have no difficulty finding as fact that Mr. Vader was in these communications accurately conveying some kind of need, though I am less confident about how much of this was purely "love" vs other needs, pharmaceutical, monetary, or otherwise. For example, on July 3 Mr. Vader (via the Sexsmith phone) texted Ms. Williams repeatedly about his "love", continuing until he received a favourable response in return. Ms. Williams’ replies are in square brackets:

Amber pls my love

Call me or let me call you pls your my hole world and you mean everything to me i didn’t think i could love someone as much as i love you

And god amber what if they Do find me at least we would have a chance to talk make love and decide how we are going to deal with everythin

I have i need to tell you And give to you before i go in pls my love

[Just stay hidden till monday least. I’ll be back then. I got family reunion rite now.]

[K just give me a few here. I’ll get back to you.]

Amber promise me then pls cause i love you And with out love i don’t care

[I promise i’ll call you in a bit]

Ok sweetheart just tell me that ou love me pls tell me something nice pls

[Yes i do love you. I just want to make sure everything is ok]

Ok than you talk to you in a bit then its all going to be Ok that’s all im working for now sweetheart

I didnt realize how much you realy Do for me and how much i count on you your my everything and i want to say thank you sweetheart

[583] However, about 12 minutes later Mr. Vader texts Sheri-Lynn Campbell, which leads to this exchange:

Vader: Hey how you doing i have a phone again Do you miss me yet

Campbell: You know it... I luv u.. It was a good visit... Is u okay...

Vader: Yea im Ok just tiered and have so much to Do

Campbell: Awe. U know if i can help im here.

[584] Other text messages make it quite obvious that Mr. Vader was intimately involved with others besides Ms. Williams, including Sheri-Lynn Campbell, and Tannis Grant (or the user of her cell phone), since Mr. Vader (via the Bulmer cell phone) sent a message reading "i would love to now how it feels to kiss your sweet lips and hold you in my arms i".

Obviously, Mr. Vader is willing to be less than honest with those in his circle. That said, I conclude some of the hearsay by Mr. Vader found in his text messages is reliable, and is more probative than prejudicial. This information is relevant where it falls into a number of subject areas where the Defence has disputed certain allegations made by the Crown such as:

1. Mr. Vader’s Use of the Bulmer Cell Phone

[585] At various times Mr. Vader appears to have used Mr. Bulmer’s cell phone. For example, on July 2, 2010 in the early morning Ms. Williams received several text messages from the Bulmer cell phone. The first self-identifies the author: "Hey its travis ...".

[586] The last communications sent from the Sexsmith phone occurred on July 9, 2010. After that the Crown attributes to Mr. Vader a substantial number of text messages sent on July 11-17, 2010 from the Donald Bulmer cell phone. Other texts recorded in the Telus telecommunications data for this cell phone may have been sent from other persons, in particular Donald Bulmer. Mr. Bulmer acknowledged in his testimony that Mr. Vader used his phone on many occasions.

[587] The Defence challenges the Crown’s identification of Mr. Vader as the user of the Bulmer cell phone and that he is the author of certain messages. I accept that the Crown has established that Mr. Vader was using the Bulmer cell phone and rely on hearsay statements in the recorded text communications for the truth of their contents, particularly where Mr. Vader self-identifies. There is much evidence to support this linkage. For example, Amber Williams on July 9 sends a series of messages to the Sexsmith phone, but the conversation then continues on the Bulmer phone:

Sexsmith to Williams: Hey how are you sweetheart

Williams to Sexsmith: Fine what you want. To lie to me more. So was kayla as good as you figured she would be.

Ya thats what i thought. Cant believe you. You actually think im that dumb.

Bulmer to Williams: no pls foot let them hurt up more and when did i have the time to do this fuck amber pls dont i did not and would not do that to you pls

I have to go here right away can i see you pls i love you and have been working and miss you so much sweetheart

Pls read your face book and pls let me come see you im getting on the road like real soon so pls let me know my love

I have never cheated on you and i could have lots of bag chacing bitches tried i never let it happen pls dont do this to me cause

Im coming that way to see you and i dont care if i get in trouble i love you and i need to see you and talk to you pls

amber williams talk to me pls Damit

Williams to Bulmer: Ya thats why you would get so mad at me when i talked about her. i no you Fucked her when you were with duncan at groat creek. That the first time. The 2nd time when you went and stole the truck and got chased by cops. You really think im that dumb.

Bulmer to Williams: i was never a groat creek With that bitch and i did not when she stole that truck i did not steel anything her and rob did I was just trying to get home amber fuck

Williams to Bulmer: Hope it made you feel good. And her cuz she nothing but a goof rat. Thats rite and she flapped her lips about you. How ya think she got off everything. Even got busted with the truck.

Bulmer to Williams: Well that has nothing to do with me or you i have nothing to do with her and i realy have to get going and im coming to see you pls

I did not fuck her and i love only you and miss you and im leave now coming to find you i will drive all night and wake everyone up if i have to pls let me see you pls

[588] Again, for clarity, I use the content of this exchange as being relevant to establish that Mr. Vader at times operated the Bulmer cell phone during the relevant period. Whether Mr. Vader is being honest to Ms. Williams in this exchange is not relevant, although as I have previously documented Mr. Vader’s claims of faithfulness to Ms. Williams is suspect given his text message exchanges with other female acquaintances. Similarly, I do not consider this exchange sufficiently reliable to have relevance to whether Mr. Vader was involved in the truck theft discussed.

[589] Mr. Vader’s use of the Bulmer cell phone follows other patterns. Mr. Vader on July 12 specifically self-identifies when he uses Donald Bulmer’s cell phone when he communicated with Justin Case. Mr. Vader explicitly indicates he is using Donald Bulmer’s cell phone, but is not its owner:

Bulmer to Case: Hey its travis ill call you back tomorrow ok my phone is fucked i would really like to talk to you tomorrow to in sorry and i have had so much trouble and need to talk to you about it pls

Case to Bulmer: Is this your new number? Can I call you on this number now??

Bulmer to Case: NO its not and im out of minutes its all fucked but yea ill call you and I can still receive tests

[590] Eventually, Mr. Vader attempts to communicate in a less obvious manner, but these attempts are patently obvious and unsophisticated. For example, this July 18, 2010 exchange at around 20:00 between the Bulmer phone and Sheri Lynn Campbell is obviously Travis Vader:

Bulmer to Campbell: quite using first person

Campbell to Bulmer: Wut does that mean.. Dont use first person

Wut?

Bulmer to Campbell: Use him not u start using code we will figure it no direct questions on where abouts or times use your imagination it can be fun

Campbell to Bulmer: Ha ha ok.. Duh..

[591] I therefore conclude I may rely on the hearsay self-identification of Mr. Vader in his cell phone text communications, both where those references are direct or by inference as a continuation of a prior conversation.

2. Drug Use by Mr. Vader

[592] The Defence disputes that Mr. Vader is a drug user, so statements by Mr. Vader concerning drugs are relevant. Numerous messages by Mr. Vader to Ms. Williams discuss drug abuse. For example Mr. Vader messages:

• "... im off the shit... " (July 3, 18:57)

• "And amber if weare to be together we can not ever have drugs or any of that shit in our lives again I just takes everything good away" (July 8, 19:13)

• "It’s the drugs that makes things bad andFucked up you know this and what they Do to me and you know they cant be part of us" (July 8, 19:21)

• "... not on the shit ..." (July 8, 19:22)

• "I want to meet you And get to know you not on the shit i want to love you for your And make love to you" (July 8, 19:24)

[593] I conclude that Mr. Vader’s statements concerning drug abuse and being "off the shit" are reliable and have probative value given the Defence has disputed that Mr. Vader is a methamphetamine drug user or addict.

3. Mr. Vader’s Circumstances in the Period Around July 3, 2010

[594] The Defence also argues that Mr. Vader was not without money, and was not in desperate straits in July 2010. The Crown has introduced witness testimony to the contrary. Once again, that means that communication by Mr. Vader concerning his circumstances is potentially probative and therefore relevant. Again, many of the text messages sent by Mr. Vader to Ms. Williams state or imply that situation:

• "hey its travis i need you amber im having a hard time here babe i need to i need to hold you and miss you im all alone no place to live or go no clean cloths im realy missing you my love i realy could use some love right know" (July 2, 00:27)

• "Come on someone help me im so Fuck.ng tiered and hungry" (July 3, 22:25)

• "You left me with No money No food No wheels nothing" (July 3, 22:46)

• "I have never ran and starved for so many days in my life with zero help if you loved me you would have helped in some way but you didn’t" (July 5, 12:59)

[595] I conclude these hearsay statements are probative, relevant and reliable. These texts clearly indicate that Mr. Vader’s circumstances circa July 3, 2010 were, at a minimum, difficult.

4. Mr. Vader’s Illegal Activities

[596] A third and related point of dispute is that the Defence complains that Mr. Vader has been unfairly profiled as a criminal. The Vader/Williams text exchanges provide some insight on this point. For example, on July 5, the two messages were exchanged between these two persons as to how each supported the other. Mr. Vader in a 13:05 text message says he "... had zero money and hot wheels ...". It is fair to infer that "hot wheels" refers to a stolen motor vehicle in this context, rather than the die-cast toys of the 1970s.

[597] This hearsay statement is accepted for the purpose of establishing Mr. Vader’s possession and use of a stolen motor vehicle in the relevant period.

F. Disreputable Character Evidence / Similar Fact Evidence

[598] In its final argument the Defence argues that Mr. Vader has been unfairly and improperly characterized as a drug user, drug dealer, methamphetamine cook, and criminal. In fact, the Defence in its argument took the somewhat unexpected position that Mr. Vader was not a drug user, had never been a drug user, and that he was not in a difficult, financially stressed circumstance in early July 3, 2010. The logical consequence of that is, if true, Mr. Vader had no motive to engage in criminal activities, and therefore Mr. Vader had no motivation to attempt to rob or otherwise interact with the McCanns.

[599] My previous analysis of witness credibility has commented on the evidence of Crown witnesses whose evidence I accept that indicates Mr. Vader engaged in substance abuse:

• Donald Bulmer says he used methamphetamine with Mr. Vader. I have also concluded Mr. Bulmer understated his and Mr. Vader’s drug use.

• Sheri-Lynn Campbell acknowledged using methamphetamine with Mr. Vader. This is one of the very few items of evidence from Ms. Campbell that I accept because it involved a simple statement.

• Amber Williams confirms she and Mr. Vader used methamphetamine and trafficked in drugs.

• Andrea Saddleback-Sexsmith had observed Mr. Vader and the progression of his declining physical condition and appearance, which she concluded was consistent with methamphetamine abuse.

• Myles Ingersoll reports he used methamphetamine with Mr. Vader on almost every one of the ten plus occasions that they were together.

• Ms. Steffler stated Mr. Vader reported he was evading the police because of his drug-dealing activities in the Edson area.

[600] While these witnesses had certain limitations, I accept that in 2010 Mr. Vader was a methamphetamine user, as described by his peers. I also find as fact that Mr. Vader’s methamphetamine abuse fell to the more severe end of the spectrum described.

[601] This conclusion is supported by the content of text communications that I have concluded were made by Mr. Vader and are admissible hearsay. A good example is the July 3 text message from the Sexsmith phone to Amber Williams which reads:

Amber what about you and me and im off the shit and im trying my best and I love you

The phrase "im off the shit" clearly implies drug use.

[602] Similarly, the Defence has protested that there is no basis that I can conclude as fact that Mr. Vader was in a difficult financial situation. I disagree. There is solid evidence to the contrary. David Olson testified that Mr. Vader at one point had a personal vehicle, a truck, but it was repossessed by a bank. I also have accepted David Olson’s evidence that Mr. Vader had no money early on July 3, 2010 and that was why Mr. Vader visited Mr. Olson to obtain oil for the F350. If Mr. Vader was in good financial shape, why would he accept lawn mower oil for use in his truck, rather than go to the Peers One Stop and purchase motor oil, or ask Mr. Olson to do that? Mr. Olson explained Mr. Vader’s last paycheque, about $100,000.00, was three months earlier and was all gone. There was much evidence that Mr. Vader needed to use other persons’ phones because his telecommunication subscription was exhausted. That too indicates a lack of cash.

[603] Perhaps most telling are Mr. Vader’s text communications to Amber Williams where he complains he "did everythi8ng I could then lost my job", he has no money, no food and "im going to starve", has no place to stay, or "clean cloths". He has "hot wheels". If Mr. Vader was in a healthy financial state why would he be driving a series of stolen vehicles?

[604] The Defence in its concluding argument noted that some witnesses indicated Mr. Vader had lent them money, and Donald Bulmer explained that of his ‘tenants’, Mr. Vader was a more regular contributor of funds. I believe it is fair to observe that the Bulmer residence, which was really a flophouse, is obviously not the kind of housing that would be a choice alternative of a well-financed individual. Similarly, why would a person with money choose to stay at the McKay residence with its many occupants in crowded conditions.

[605] Beyond that, I accept as fact that Mr. Vader was both using and selling illegal drugs during this period. It is unsurprising that Mr. Vader therefore had a certain degree of money, but that could hardly be considered either a reliable or regular income. No doubt a substantial cost was incurred by the fraction of the product that was consumed personally. It was apparent listening to the testimony of Mr. Vader’s peer group that they operated on something of a ‘barter economy’, particularly when it came to illegal drugs. That is also reflected in their text message communications.

[606] Another pattern of disreputable conduct is that witnesses have indicated Mr. Vader had a pattern of stealing and burning vehicles. David Olson said he had seen Mr. Vader in as many as 30 stolen trucks, and how Mr. Vader described how he burned those vehicles when he was finished with them. Donald Bulmer described his first-hand observation of Mr. Vader destroying the Klohn truck. I have quoted Mr. Vader’s description of how he attempted to destroy the F350 truck by fire. In a subsequent Red Deer Remand Centre intercept Mr. Vader states:

... And then just wire, man. Fuck, I was stealing fuckin’ five thousand pounds of copper at a time ... And I was selling it for two bucks a pound, fuckin’ three bucks a pound. (Exhibit 133, October 13, 2011 transcript.)

[607] The Defence in its written argument states I can only consider evidence of bad character or conduct where the bad conduct meets the criteria of the similar fact rule (R v Handy, 2002 SCC 56 (CanLII), [2002] 2 SCR 908), or the accused has put his or her character into issue (R v Morris, 1983 CanLII 28 (SCC), [1983] 2 SCR 190, 1 DLR (4th) 385). I will look at the similar fact aspect issue.

[608] While the Defence has cited R v Handy as providing the appropriate rule, that case focusses on how parallels between two or more crimes may be used to identify an otherwise unknown perpetrator. In R v Handy Binnie J at paras 79, 91 stressed that while it is possible for a finder of fact to conclude that a specific accused person committed an offence because that individual was known to have committed a similar act, the similarities between the two offense scenarios need to be unusual so that they form a "calling card" or "fingerprint".

[609] Offender identification is however not the only way that similar fact evidence may be admitted and accepted. Similar fact evidence may also be admitted to enhance the confidence in evidence of a particular witness where other witnesses report a similar or parallel matter: R v B(CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717 at 739, 107 NR 241; R v Carpenter (No 2) (1982), 1982 CanLII 3308 (ON CA), 142 DLR (3d) 237, 1 CCC (3d) 149 (Ont CA). Unusual or unique "calling card" parallels are not required in this instance. Instead, the critical question is whether the parallels in witness testimony increase the finder of fact’s confidence in the witness testimony.

[610] Obviously, Mr. Vader’s potential guilt is not established by a unique "calling card". That said, there are many points where parallels emerge in the evidence of Crown witnesses. This includes drug-related activities, Mr. Vader’s manner and conduct at various points post-offence, such as Mr. Vader’s pattern of stealing then burning vehicles. The question is whether these parallels are more than a coincidence. Parallels and patterns may logically mesh to provide enhanced confidence in a witness, or an inference. That occurred often in this circumstantial evidence case.

[611] I will give one example to illustrate how this process operates in making my findings of fact. Donald Bulmer testified that he observed Mr. Vader drive a truck down a steep hill on the Elk River Road and went out of sight. Shortly afterwards that truck was seen by Mr. Bulmer engulfed in flames on a cutline off the Elk River Road. David Olson testified that Mr. Vader burned stolen vehicles. I have concluded the F350 was used by Mr. Vader, and he attempted to destroy it by fire. These parallels increase my confidence in each witness having given reliable evidence. The pattern of disposing of stolen vehicles by burning them also has implications for evidence directly related to the McCanns, such as the fate of their RV. My conclusion that Mr. Vader had a pattern of stealing and burning vehicles does not prove Mr. Vader burned the McCann RV, or that he was even involved with that vehicle. However, that vehicle disposal pattern is potentially relevant when coupled with evidence that links Mr. Vader to the McCanns, such as the forensic evidence recovered from the SUV and Mr. Vader’s use of the McCann cell phone. The Defence has stressed that experts who examined the RV could not conclude whether the RV was destroyed by fire as a consequence of a collision or by arson. In isolation, that is without question. However, when the fate of the RV is considered in combination with other evidence that I have accepted, I find it easy to conclude that arson is the more likely explanation. Since Mr. Vader has been linked to the McCanns’ disappearance, and had a pattern of burning stolen vehicles, I can also conclude and do conclude that the fire which destroyed the RV was not an accident. Instead, I find that Mr. Vader intentionally burned the RV to destroy it.

G. Defence Theories

[612] This is a convenient point to briefly address and dispose of the Defence’s theories for other alternative scenarios where Mr. Vader is an innocent person, and some other third party is the nefarious player in the shadows who is responsible for the disappearance of the McCanns and the destruction of their RV.

1. McColman is the Killer

[613] One suggestion is that Terry McColman is the killer. I received evidence from a number of witnesses about Mr. McColman, yet another of the Peers drug users and a sometime resident on the Bulmer property. Some of the Peers-area drug user witnesses were asked in cross-examination about Mr. McColman who is now dead.

[614] The main McColman "did it" witness was Mr. Nikolyuk. In cross-examination he was asked about Mr. McColman, and described him as a life-long acquaintance, but a habitual criminal. He was a heavy drug and alcohol user, and Mr. Nikolyuk had personally observed Mr. McColman with stolen electrical (copper) wire, watched him repeatedly break into and hotwire motor vehicles in under a minute, ransack abandoned farms, and burned at least one vehicle. Mr. McColman’s habits included stashing stolen property and vehicles, and burning vehicles once they were no longer of any use to him. Mr. Nikolyuk testified Mr. McColman liked to keep souvenirs of his exploits, particularly small toys. Mr. McColman also preferred Boxer Beer.

[615] Earlier I commented on how certain Crown witnesses exhibited a pattern of being vague and/or uncooperative when in direct examination, but who seemed very eager to provide exculpatory evidence during cross-examination. My conclusion is much of that kind of evidence has little weight, or no weight whatsoever. In one case, with Mr. Nikolyuk, I have rejected everything he said as being from an unreliable and a dishonest witness. I think it is helpful at this point to reproduce a transcript passage to illustrate how the evidence of Mr. McColman’s criminal activities emerged in the trial itself, here during cross-examination:

Q. ...Finally, is it correct that you were aware that when McColman stole vehicles, he would often stash them once he had given up use of it?

A. Yes.

Q. Stash them in some sort of bush or stash them in some location?

A. That’s right.

Q. Okay. And did you ever see him torch one of those vehicles, please? Light it on fire?

A. Once, I think. Once or twice.

Q. Okay. What sort of vehicle, please?

A. Truck.

Q. Okay.

A. Not -- can’t name the make and model or anything, but I’ve seen him burn a truck.

Q. Okay. And tell us how he lit it, please.

A Douse it in diesel in the interior, and he said always leave the window open just a crack so the air can get in, and it will burn it better.

Q. Okay. So you’re talking about diesel fuel?

A. Yeah.

Q. So take container of diesel fuel. And is that what he used the times you saw him?

A. At the time, yes.

Q. Okay. So he would take a container of diesel. What -- in what sort of container?

A. Jerry can.

Q. Jerry can?

A. Yeah.

Q. Okay. I wonder if you would look with us, please. You have Exhibit 1 before you?

A. Yes.

Q. I want you to look, please, at now Tab 14. Tell us when you have that tab, please.

A. Yes, I do.

Q. Okay. Please look with me at photograph 277. ... Do you recognize a container in there that you would refer to as a jerry can?

A. Yellow one.

Q. The big yellow one?

A. Yes.

Q. Okay. How does that compare to the ones that McColman used in your presence, please?

A. It wasn’t that -- it was just a smaller red one --

Q. Okay.

A. -- that he used, but --

Q. Okay. And did you see him with containers similar to the clear ones we see in these photographs?

A. Like the windshield washer containers or whatever? Yes, similar to that. Yes.

Q. Did you see him have possession of those sort of things? Yes?

A. Yes.

Q. Okay. So let’s go back, please, if we can. In your presence he took the diesel fuel. Where did he pour it?

A. Underneath the seat.

Q. Underneath the seat?

A. Yeah.

Q. Okay.

A. And on top, but mainly underneath.

Q. Okay. And then what did he do?

A. Lit some paper towel on fire.

Q. Right.

A. Threw it underneath, close the door and left.

Q. And let it burn?

A. Yes.

Q. And this was a vehicle he didn’t own. Correct?

A. That’s true.

Q. And I take it the purpose was to get rid of any evidence that might link him to it.

A. That’s right.

Again, this is evidence that I reject en toto because it is from a liar.

[616] The two other relevant witnesses called on this point were Harold Zerb and Terrance Ostertag. Mr. Zerb is a scrap metal dealer whose residence is near Edson and located between the two halves of Highway 16. Mr. Zerb knew both Mr. Vader and Terry McColman. Terry McColman sometimes used a camping trailer on Mr. Zerb’s property as a residence. Mr. Zerb was asked about the "T" borrowed gas note, and testified that Terry McColman had indeed borrowed gas on certain occasions from a stock of jerry cans Mr. Zerb kept on his property. Mr. McColman then later paid for or otherwise compensated Mr. Zerb for that gas. Mr. Zerb said Travis Vader had never borrowed gas from Mr. Zerb in an analogous manner.

[617] Terrence Ostertag also testified concerning his knowledge of the activities of Terry McColman. They got to know one another via their work interactions, and were part of a small community. Mr. McColman stayed in a spare room in Mr. Ostertag’s Edmonton residence for six months. Mr. Ostertag reported that Terry McColman self-identified in text messages as "T". Mr. Ostertag also believed that Mr. McColman was attracted to Amber Williams, but this was described in a casual manner: "... You know, as between guys, it was kind of the old wink-and-nudge thing, you know ...". This witness also testified that Mr. McColman stole at least one truck.

[618] The Defence argues the smoking gun that proves Mr. McColman’s participation in the McCanns’ disappearances are the two text messages that were sent from the McCann cell phone to Amber Williams, and in particular the second message that was signed "t"; "t" is for Terry. The Defence claims that Mr. McColman was also romantically attracted to Ms. Williams, and that explains the tone and content of the text messages "t"(erry) sent to Ms. Williams. The Defence argues that Mr. McColman’s sending "T" text messages and the "T" note concerning borrowed gasoline posted on Mr. Zerb’s door confirms Mr. McColman was "t".

[619] I reject this proposition on a number of bases. First, the person best positioned to know whether Mr. McColman was attracted to Ms. Williams, Amber Williams herself, did not have that proposition put to her in cross-examination. Ms. Williams identified Travis Vader as her love interest at that time, and I believe her. Second, I have concluded beyond a reasonable doubt that in the text message communications "t" is for Travis. Mr. Vader sent those and many other text messages to Ms. Williams.

[620] Returning to the test in R v Grandinetti, evidence of the potential involvement of a third-party in an offence is admissible (para 46), but to admit that evidence a party must establish "a sufficient connection between the third party and the crime is essential.": para 47. Here, there is nothing but speculation. Not one iota of evidence directly or inferentially leads to the possibility that Mr. McColman was involved in the McCanns’ disappearance. He was not involved with or connected to their property. He did not send the July 3, 2010 communications from the McCann cell phone. This is yet one more of the Defence’s diversions into speculation and hypothesis. Mr. McColman is irrelevant to this action.

2. Bandana Dave Olson, Mastermind

[621] A second Defence theory is that some or much of the evidence against Mr. Vader was concocted by the ‘cousins of deceit and treachery’, David Olson and Myles Ingersoll. As I understand it, at a minimum this theory involves Mr. Olson and Mr. Ingersoll contriving to provide false evidence to the RCMP concerning the second visit by Mr. Vader to the Olson residence on the afternoon of July 3, 2010, when these two witnesses testified they saw Mr. Vader driving an unfamiliar vehicle that resembled the McCann SUV.

[622] Allegedly, the motivation for this scheme is love, or at least attraction. The Defence argues that David Olson intended to frame Mr. Vader so that Mr. Vader would no longer interfere with Mr. Olson’s attempts to develop a relationship with Sheri Lynn Campbell. As I understand it, this idea flows from Mr. Vader receiving requests from Sheri Lynn Campbell to deal with "... dave for me again.. Smack him around or something pls. He is just fukd and leaves nasty messages ..." (text to the Sexsmith phone, July 14, 2010 20:30), rather than the apparent dalliance(s) between Mr. Vader and Ms. Campbell.

[623] I accept that Mr. Olson was interested in Ms. Campbell, and that Ms. Campbell did not reciprocate. However, the idea that Mr. Olson was somehow the mastermind who arranged to have Mr. Vader implicated in the McCanns’ disappearance is simply nonsense. First, the evidence against Mr. Vader is not merely based on a single vehicle identification, but a larger matrix of facts. That matrix supports the reliability of Mr. Olson’s and Mr. Ingersoll’s testimony. For this Defence theory to even be relevant, Mr. Olson would need to have arranged and contrived much more. Did Mr. Olson’s actions lead to the McCanns’ death? Did he skillfully mimic Mr. Vader’s "fist" in messages sent from the McCann cell phone? How many strings were pulled by the ‘cousins of deceit and treachery’?

[624] My conclusion is none. In my estimate Mr. Olson is simply not a person who could contrive a scheme of any complexity, let alone weave the web of evidence which implicates Mr. Vader. That is beyond his ability. Further, I believe his evidence and conclude he was an honest witness. And why would Mr. Olson adopt such an oblique approach to dispose of Mr. Vader, if indeed that was his motive. Mr. Olson knew very well Mr. Vader was wanted by the RCMP. Mr. Vader told him that. Would it not have been far simpler to tip the RCMP off that a fugitive they sought was drinking Boxer Beer in Bandana Dave’s front yard? Surely, that would be a more obvious, natural, and direct way to open the path to Sheri Lynn Campbell.

[625] This is yet another hypothesis without any supporting evidence or plausibility. I reject the Defence theory that Mr. Olson in whole or in part gave false evidence to the RCMP that spuriously implicated Mr. Vader in the disappearance of the McCanns, or that Mr. Olson was somehow directly or indirectly involved in creating other evidence that implicates Mr. Vader in their disappearance and death.

3. The Planted Hyundai Key

[626] A further Defence theory is that the RCMP manufactured then planted the key and fob located in the F350 that operates the McCanns SUV. The foundation for this theory is that when the F350 was initially searched the key was not found. The key was then located later during a subsequent search.

[627] I see no need to involve some conspiracy to reach this result. Contrary to the Defence’s claims, I conclude that the key and fob to the SUV located in the F350 on August 17, 2010 were not manufactured and planted by the RCMP. Instead, what happened was that the Hyundai key was initially in a difficult to view location where it had been placed by Mr. Vader. When the F350 was tilted as it was loaded onto and then unloaded off of a flat deck for transport to the St. Albert RCMP facility that key, and probably the tidy tank itself, shifted, making the key more readily visible. I come to this conclusion in part due to the evidence of recent diesel fuel spillage from the tidy tank and staining on the tank that was identified and explained by Corporal Benko. The ride that took the truck to the RCMP inspection bay is reported as having been ‘rough’. Some shifting of the truck contents, particularly a small object like a key and key fob, is very plausible.

[628] I also note that the Defence did not take any steps to substantiate its allegation that the Hyundai key and key fob were of recent manufacture. Again, this is an unsubstantiated Defence allegation.

4. The Steffler Alibi

[629] Ms. Steffler testified that Mr. Vader was in Edmonton at 03:00 on July 2, 2010 until sometime on July 3 or July 4, 2010. She testified that Mr. Vader was still present in her residence when she was getting ready to leave for work, and from her work schedule inferred that meant he was at her residence in Edmonton until around 16:00 on July 3, 2010.

[630] This poses an issue, since that contradicts David Olson’s evidence that Mr. Vader was at his residence in Peers earlier on July 3 around noon. Similarly, I have concluded that Mr. Vader was using the McCann cell phone in the Carrot Creek area before that time, which is again incompatible with Ms. Steffler’s testimony.

[631] Ms. Steffler’s account also conflicts with Ms. Campbell’s report that she watched Mr. Vader leave the Steffler residence in the early morning of July 3, while it was still dark. Mr. Vader drove away in the F350.

[632] My conclusion is that Ms. Steffler’s recollection of the time or date on which Mr. Vader left her residence is inaccurate. She herself admitted she might be off by a day. It does not matter whether Mr. Vader left the Steffler residence a day earlier on July 2, or earlier on July 3 than 16:00. He was elsewhere at that time. I therefore reject Ms. Steffler’s timeline evidence. It does not raise a reasonable doubt for me on my conclusions as to Mr. Vader’s whereabouts and his use of the McCann phone.

5. "Tunnel Vision", RCMP Conspiracy, and Vendetta

[633] An overarching Defence theory is that the RCMP latched onto Mr. Vader as the only suspect in the disappearance of the McCanns, and as a consequence let the real killer slip through their fingers. This "tunnel vision" allegedly led to conspiracy of unknown scope, but, presumably, this theory extends to the RCMP allegedly creating and planting incriminating evidence against Mr. Vader, such as the SUV key and fob, which I have already discussed and rejected.

[634] I have seen no evidence to support this allegation, and will dispose of it with little other comment, except to say that in the preparation of this decision I became increasingly impressed by how the RCMP investigation of Mr. Vader wove a credible, albeit circumstantial, web where Mr. Vader was the obvious suspect. The pattern viewed as a whole is compelling, and that, alone, is sufficient for me to conclude that the RCMP and Crown have identified the right man.

H. Post-Offence Conduct

[635] The Crown suggests that I should conclude that Mr. Vader’s actions after the disappearance of the McCanns are indications of his guilt. He took steps to conceal his involvement with the McCanns, including developing alibis, hiding, and coercing Ms. Vader to recant her statements to the RCMP.

[636] Post-offence conduct and consciousness of guilt may lead to an inference of guilt. For example, where an accused flees the crime or a jurisdiction, resists arrest, lies, attempts to hide or conceal himself or evidence, then that is potentially relevant. That conduct may provide insight into the thoughts of an accused person. Major J in R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72, 161 DLR (4th) 590 reviewed this class of circumstantial evidence. The problem is that evidence of this kind is potentially highly ambiguous: para 22. A guilty person may choose to flee authorities, but an uninvolved person might do the same upon learning he or she was being sought by police. The probative value, relevance, and potential admissibility of post-offence conduct depends on the facts and context of an individual case: para 26.

[637] Post-offence conduct is potentially relevant where an accused has admitted to an illegal act (para 28), where an accused denied being involved (para 29), where post-offence conduct is disproportionate to a particular offence scenario (para 32), or where self-defence is argued (para 32).

[638] I will not consider Mr. Vader’s alleged post-offence conduct in my findings of fact and whether he is or is not guilty of the charges against him. My reason for not relying on this evidence of his state of mind is that Mr. Vader was being sought by the RCMP for a number of reasons and Mr. Vader knew that. Mr. Vader’s actions therefore could be in response to misconduct other than any potential involvement with the McCanns.

[639] However, I exclude the destruction of the McCann RV from the post-offence conduct category. I have previously concluded that Mr. Vader burned that vehicle. The timing of violence against the McCanns is not clear. The RV might have been burned in an attempt to conceal evidence of violence, or it may have been destroyed as part of Mr. Vader’s pattern of destroying motor vehicles once he was done with them. Either scenario is incriminating, and unlike other potential post-offence conduct the destruction of the McCann RV relates to only one offence scenario: Mr. Vader’s interactions with the McCanns.

VI. Findings of Fact

[640] After careful review of the evidence of the Crown and Defence, I have reached a conclusion on a number of findings of fact, in addition to those already found in this decision. What follows is a review of the findings I have already identified, and additional findings of fact. Prior to that review, I will restate a number of critical conclusions:

1. Mr. Vader is a drug dealer and addicted to methamphetamine.

2. On July 3, 2010 Mr. Vader had no money, no food and was in desperate circumstances.

3. Mr. Vader encountered the McCanns on July 3, 2010, and ended up in possession of some of their property, including:

• the RV

• the SUV

• the SUV key and fob

• the Boag’s hat

• the Vopak hat

• the No Name Cans

4. There was blood shed by both Lyle and Marie McCann, and a gunshot at close range pierced part of the Boag’s hat. The location of where the bloodletting occurred is unknown.

5. Mr. Vader was the sole operator of the McCann cell phone on July 3, 2010.

6. Mr. Vader was the sole operator of the Sexsmith phone from 18:29 on Saturday July 3, 2010 until it was seized from him by the RCMP on July 19, 2010.

[641] I conclude as facts that the following chronology of events occurred:

June 28, 2010

Mr. Vader stole the F350.

July 2, 2010

00:27-00:33 - Mr. Vader is at the Bulmer residence and texts Ms. Williams on the Bulmer cell phone. Ms. Williams does not reply.

Around 03:00 - Mr. Vader arrives at the Steffler residence in Edmonton and frightens Ms. Steffler as he enters her home unannounced. Ms. Campbell and Mr. Vader go upstairs into a spare room where Vader sleeps for most of the time he is there.

July 3, 2010

Before dawn and while it is still dark - Ms. Campbell sees Mr. Vader leave the Steffler residence from the back steps. Mr. Vader drives away in the F350 by himself.

Around 09:00 - The McCanns leave their home in St. Albert in their RV towing their SUV.

Around 9:30 - The McCanns stop at the St. Albert Superstore gas station and groceteria at approximately 09:30 and purchase gas and then groceries.

10:08 - The McCanns depart the St. Albert Superstore and drive west on Highway 16.

Around 12:00 - Mr. Vader arrives in the F350 at the Olson residence. He pulls the F350 into the driveway and parks facing forward. Mr. Vader has no money (he is "broke"), obtains lawn mower oil from Mr. Olson, and pours it into the oil reservoir of the F350.

12:01-12:15 - Mr. Vader uses the Olson landline ((708) 693-2453) to make three calls to the Williams cell phone ((780) 819-0283). Amber Williams does not answer. Mr. Vader then leaves the Olson residence in the F350 shortly after 12:15.

12:15 to 14:14 - Mr. Vader and the McCanns paths intersect. Mr. Vader takes possession of the McCanns’ property.

14:28-14:32 - Mr. Vader uses the McCann cell phone to send two text messages to Ms. Williams:

Hey babe its me how are you doing today you know you can still text my phone i can still receive text i miss you so much (14:28)

I have been trying to call you and text you and email you and face book you and i cant get in touch with you its me t (14:32)

15:55 - Mr. Vader phones the Williams cell phone using the McCann cell phone from the MacKay/Bulmer residence area. Ms. Williams does not answer the phone call.

around 17:15 - Mr. Vader arrives for a second time at the Olson residence, but this time driving a different vehicle. Mr. Olson observes that Mr. Vader is driving a light green Hyundai SUV - the McCann SUV. Mr. Vader backs the McCann SUV into the driveway and parks it well back from the main street. He is trying to hide the license plate on the rear of the McCann SUV. Mr. Vader now has money, gives Mr. Olson $50.00, and instructs him to buy cell phone time for his Virgin Mobile cell phone and some cheap beer. Mr. Olson walks to the Peers One Stop which is close to his home.

17:29 - Mr. Olson buys a $25.00 Virgin Mobile EZ-Pin voucher at the Peers One Stop

17:35 - Mr. Olson buys a carton of Boxer Beer at Peers Liquors. He uses the change from the $50.00 to buy cigarettes at the Peers One Stop.

Around 17:45 to 19:45 - Mr. Olson returns to his residence with the EZ-Pin voucher and the Boxer Beer. Mr. Vader and Mr. Olson drink beer at Mr. Olson’s residence. David Olson makes some phone calls to Sheri Campbell (cell phone (780) 517-0943) from his landline number ((780) 693-2453).

18:29 - Mr. Vader activates the EZ-Pin purchased by Mr. Olson for the Sexsmith phone and downloads $25 worth of time.

18:30 - Mr. Vader immediately phones Ms. Williams using the Sexsmith phone from Mr. Olson’s residence.

18:32 - Mr. Vader phones Donald Bulmer using the Sexsmith phone from the Olson residence. Mr. Vader reaches Mr. Bulmer, and asks him to contact Ms. Williams on his behalf.

18:37-23:03 - Mr. Vader and Ms. Williams engage in an extensive text message exchange on their respective cell phones.

18:38 - While still at the Olson residence, Mr. Vader phones the McKay residence landline using the Sexsmith phone.

19:30 - Myles Ingersoll arrives at the Olson residence and parks in front of the McCann SUV. Mr. Ingersoll observes the Hyundai SUV which is "sea-foam green" in colour and equipped with a tow bar on the front bumper. Mr. Ingersoll observes that Mr. Vader seems upset, or something was bothering him.

19:30-19:35 - Mr. Vader asks Mr. Ingersoll to move his vehicle, and Mr. Vader drives off with the McCann SUV and the remnants of the Boxer Beer, including the cardboard carton.

19:35 - Mr. Vader phones the McKay residence landline using the Sexsmith phone from a location closer to Peers than McKay.

22:25 - Using the Sexsmith phone from a location closer to Peers than MacKay, Mr. Vader phones the McKay residence landline.

July 4, 2010

Around 16:00 - the McCann RV, towing the now reattached McCann SUV, enters and parks in site #8 of the Minnow Lake campground. The SUV departs, leaving the RV behind. Mr. Vader was the driver of the SUV at that time.

There is no activity on either the McCann or Sexsmith cell phones throughout July 4.

July 5, 2010

00:40-00:48 - Mr. Vader telephones the McKay residence from the Sexsmith phone, from the general area of MacKay.

Around 02:00 Mr. Vader arrives at the McKay residence, driving the F350. Shortly thereafter Ms. Sexsmith returns to the McKay residence to find Mr. Vader and his sister. A confrontation ensues, Ms. Sexsmith punches the F350, and Mr. Vader drives away in that vehicle.

06:30-1300 The RV and SUV are present at the Minnow Lake campground. The RV is backed into site #8. The SUV is parked on the entrance door side of the RV.

After 13:00 - Mr. Vader moves the RV from the Minnow Lake campground to a nearby closed road. Mr. Vader sets the RV on fire.

19:00 - The burning McCann RV is detected and firefighters respond from Edson. The RV is destroyed by fire with little remaining. There are no bodies found in the ashes of the RV.

20:34 - Mr. Vader uses the Sexsmith phone at some point near to Wabamun, on Highway 16, to contact the landline at the McKay residence.

July 6, 2010

Around 14:00 - Mr. Vader returns to the Bulmer residence in the McCann SUV and meets with Mr. Bulmer.

After 14:00 - Mr. Vader returns to Edmonton and stays at the McKay residence.

July 6-9, 2010

Text message exchanges between Mr. Bulmer and Ms. Williams support the inference that Mr. Vader is not at the Bulmer residence because Mr. Bulmer and Ms. Williams discuss meeting at that residence in relation to property and payment of a debt. Ms. Williams does not want to encounter Mr. Vader.

Ms. Williams retrieves the McCann cell phone from the Bulmer residence.

Mr. Vader is at the McKay residence in Edmonton.

July 7-11, 2010

Numerous text messages are exchanged between Mr. Vader and Ms. Williams using the Sexsmith phone and the Williams phone.

July 9, 2010

Around 12:00 - Mr. Vader leaves the McKay residence. He does not return.

After 12:00 - Mr. Vader travels to the Carrot Creek area, ditches and attempts to burn the F350. He then steals the Klohn truck at a nearby location.

July 10, 2010

14:01 - Mr. Vader flags down Mr. Morin, and uses the Morin cell phone to call Ms. Sexsmith on the McKay landline. He tells her he is stranded near Edson and needs assistance. He also asks her to put time on the Sexsmith phone.

Evening - Mr. Bulmer picks up Mr. Vader near the Keyara plant on the Elk River Road and observes Mr. Vader standing near the burning Klohn truck. Mr. Vader set that fire. Mr. Bulmer returns to his residence with Mr. Vader.

July 11-18, 2010

Mr. Vader is intermittently present at the Bulmer residence.

Numerous text messages are sent and received by Mr. Vader using Mr. Bulmer’s cell phone to various persons on July 11, 12, 17, 18.

July 16, 2010

The SUV is located on the Samson-Roader property, and is seized by the RCMP.

July 17, 2010

The burned out F350 is seized by the RCMP at the Encana wellsite north of Highway 16.

July 19, 2010

Mr. Vader is located at the Bulmer residence. He tries to flee, and is detained by the RCMP on outstanding charges.

[642] With these findings of fact I now proceed to determine whether or not the Crown has established beyond a reasonable doubt that Mr. Vader is guilty of first degree murder, or a lesser and included offence.

VII. Analysis

A. Issue #1 - Are the McCanns Dead?

[643] The Crown and Defence disagree as to whether the Crown has proven beyond a reasonable doubt that the McCanns are dead. The Crown points at the entire factual scenario, and concludes that the only reasonable explanation for the disappearance of the McCanns is that they are dead. These were reliable persons with an established home, lifestyle, family, and friends. The McCanns’ bank accounts were never again accessed. Almost six years have elapsed. There is no other plausible explanation.

[644] The Defence says there are other possibilities. Perhaps the McCanns were kidnapped, or are the victims of human trafficking and are now in a different country. Mr. Vader also argues that the appropriate legal test to prove that a person who has disappeared is dead is that the missing person has not been seen or heard from in seven years, cites Darling v Sun Life Assurance Co of Canada, 1942 CanLII 76 (ON CA), [1943] 1 DLR 316, [1943] OR 26 (Ont CA), Sheehy v Winch Estate, [1946] OJ No 346 (Ont H C J) and S.N. Lederman et al, The Law of Evidence in Canada, 4th ed (Markham: LexisNexis, 2014), and concludes:

In summary, the Crown’s evidence would not even satisfy the civil standard applicable to the presumption of death, much less does it rise to the level of proof to the criminal standard. ...

[645] There are a number of defects in the Defence argument. The human trafficking and kidnapping suggestions are empty hypotheses, and I believe I may take judicial notice that senior citizens are hardly the plausible victims of a human trafficking ring that, curiously enough, would apparently be operating in north-west Alberta along Highway 16.

[646] As for the common law principle highlighted by the Defence, the seven year test creates a presumption, not proof, and those are very different things. Second, the Crown is not obliged to rely only on the period since a disappearance to prove its case, but may also advance other information that creates an implication that something has gone awry. There is much of that in this case, including:

• Mr. Vader being in possession of the McCanns’ property,

• the McCanns’ blood being found on various anomalous locations,

• the destruction of the RV by fire, and

• damage to the Boag’s hat and firearm residue.

[647] This is coupled with disappearances that are highly inconsistent with the evidence the Court has received of the McCanns’ lives and lifestyles. Put another way, sometimes the context of a disappearance leads to the implication that a person has attempted to ‘drop off the map’. Other times the context suggests a mishap or foul play.

[648] The situation with the McCanns is an example of the latter. The assembled facts lead to only one reasonable conclusion: the McCanns are dead. I find it entirely implausible that the McCanns survived whatever happened in July 2010, but then were able to and chose to conceal their survival.

[649] The Defence also complains that the Crown has not provided evidence of the time, manner, or cause of the McCanns’ death. That is not necessary nor are these elements a part of the offence in question. What matters is whether the Crown has proven the only reasonable inference is that a) the McCanns are dead, b) Mr. Vader caused those deaths, and c) that Mr. Vader had intended to kill or cause bodily harm and was reckless as to whether death was the consequence.

B. Issue #2 - Did Mr. Vader have a Motive to Target the McCanns for Illegal Purposes?

[650] Mr. Vader is the only person who was identified as linked to the McCanns. His possession of the McCanns’ property during the period of their disappearance is a valid basis to infer that Mr. Vader stole that property. I note he is in possession of and using their property within a few hours of their leaving St. Albert. This is not an instance where the McCanns’ property was plausibly abandoned for a lengthy period of time after some kind of incident, then found by Mr. Vader.

[651] The critical question is what was Mr. Vader’s motivation to interact with the McCanns, or is there some reasonably possible innocent explanation for how the McCanns/Vader scenario unfolded?

[652] I see no reasonable alternative other than Mr. Vader intended, at a minimum, to rob the McCanns of at least some of their property. I come to this conclusion weighing certain factors. Mr. Vader is a thief. In particular, he stole motor vehicles for his personal use. Mr. Vader at that point was a methamphetamine user and drug dealer. The fact drug users commit crimes to finance their illegal drug purchases is, sadly, notorious. Mr. Vader was without money, without drugs, and at a minimum strongly motivated to resume contact with Amber Williams, the object of his persistent attention. His current transport, the F350, was having problems.

[653] I conclude there is no alternative and reasonable theory that would lead Mr. Vader to interact with the McCanns. He wanted their property for his own use. I think it says much that the plausible window for Mr. Vader’s interaction with the McCanns is within a narrow five hour period on July 3, between his first and second visits to Mr. Olson’s residence. On his first visit he was penniless, unable to contact Amber Williams by his own means, and borrowing lawnmower oil for the F350 truck. Several hours later Mr. Vader has used the McCann phone, and reappears at the Olson residence in the McCann SUV with cash for beer and the purchase of cell phone subscription time. His robbery had harvested the resources Mr. Vader wanted to satisfy his immediate needs. I find beyond a reasonable doubt that Mr. Vader’s motivation to interact with the McCanns was to steal their property.

[654] I stress in coming to this finding I am not concluding that Mr. Vader must have aimed to rob the McCanns because of his ‘bad character’, that he is the ‘kind of person’ who commits robberies. I come to this conclusion because Mr. Vader had needs which would be satisfied by the robbery, and because he had a pattern of committing thefts to satisfy his needs, particularly when it came to vehicles. The McCanns and their property were likely nothing more than a target of opportunity, an opportunity that Mr. Vader took.

C. Issue #3 - Was Mr. Vader Involved With the McCanns’ Property?

[655] The Defence has argued that any involvement Mr. Vader had with the McCanns’ property was incidental or by chance. For example, if Mr. Vader had the McCann cell phone, he must have found it after the McCanns lost it. His biological material got into the SUV because of a sneeze as Mr. Vader leaned in the window.

[656] I have rejected those propositions. Instead, I have concluded that Mr. Vader was making telephone calls and sending text messages using the McCann cell phone on July 3, 2010. He was seen in the McCann SUV on that day. DNA recovered from the SUV indicates more than passing involvement with that vehicle and its contents, and certainly more than a window-side sneeze.

[657] What is in question are the implications that I may draw directly from Mr. Vader being in possession of the McCanns’ property shortly after they left the St. Albert area. The Crown proposes I apply the "doctrine of recent possession" rule, which is explained in R v Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 SCR 59, 86 NR 195. The "recent possession" principle is where someone is found with stolen property of another individual, that creates an inference the person with the stolen property was the one who stole it. The rule is restated by McIntyre J at 74-75:

... Upon proof of the unexplained possession of recently stolen property, the trier of fact may but not must draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.

[658] Here, Mr. Vader was in possession of the McCanns’ property on July 3. He has offered no explanation for that, and instead in his Dec. 19-20, 2014 statement to the RCMP was explicit: "I wasn’t there and I didn’t do it."

[659] The Crown argues that Mr. Vader’s unexplained possession of the McCanns’ property not only permits an inference that Mr. Vader stole that property, but that he is also guilty "of offences incidental thereto", citing R v Kowlyk; R v Richer (1993), 141 AR 116, 82 CCC (3d) 385 (Alta CA), affirmed without comment 1994 CanLII 98 (SCC), [1994] 2 SCR 486, 168 NR 198.

[660] It is useful to look more closely on what "offences incidental" means. In R v Kowlyk Justice McIntyre conducts a historic review of this concept, noting how possession of stolen property creates a potential inference of theft or receipt of stolen goods: at 63-67. The "offences incidental" aspect emerges at 67-72, where stolen property was potentially proof of theft and breaking and entering. This makes sense, where factually one offense is a precursor to or a necessary aspect of the theft.

[661] The Crown appears to argue that for the McCanns the (alleged) murders were "offences incidental" to the theft. This linkage was made in R v Richer at paras 115-116 by Harradence JA in dissent, who relied on Reference RE R v Coffin, 1956 CanLII 94 (SCC), [1956] SCR 191, 141 CCC 1, but interestingly, the specific passage quoted does not address "offences incidental" so much as simple relevance:

... The judge was not obliged to tell the jury that they were not entitled to convict of murder simply because they came to the conclusion that he was guilty of theft. The recent possession not only created the presumption, failing explanation, that he had stolen, but the jury had the right to conclude that it was a link in the chain of circumstances which indicated that he had committed the murder. ...

[662] I interpret "offences incidental" in a more restricted sense, as I believe did the Court of Appeal in R v Hubler, 2013 ABCA 31 (CanLII); 542 AR 145. In that decision the Court at para 39 described the doctrine as providing potential evidence of "... the commission of any offense by which the goods were illegally obtained ...", most commonly "theft or break and enter". The Court subsequently concludes that possession of a dead man’s truck is not a basis to convict for murder: paras 41-42. An "offence incidental" is a part of the theft scenario. R v Campbell, 2015 ABCA 70 (CanLII), 599 AR 142 illustrates that. An elderly pawn shop owner was struck from behind with a hatchet while in front of an open safe containing valuables. The fact the accused was found with stolen property linked him to the theft, but also the aggravated assault that facilitated the theft.

[663] This kind of linkage is absent in Mr. Vader’s case. We simply do not know in detail the sequence of events that occurred which ultimately led to Mr. Vader having control over the McCanns’ property. He may have killed the McCanns in the process of stealing their property, like R v Campbell. Or he may have incapacitated or restrained the McCanns as part of the theft. The alleged murders are not "offences incidental" to theft.

[664] That said, possession of the stolen property is without question very relevant to Mr. Vader’s guilt or innocence, however any inference that flows from "recent possession" must be limited to that the stolen property creates a presumption that Mr. Vader was the person who took that property from the McCanns. The potential role of Mr. Vader in the McCanns’ death is instead the subject of an analysis of all relevant facts.

[665] I therefore conclude that the "doctrine of recent possession" has no direct relevance to Mr. Vader’s guilt or innocence for the offences charged, but does raise a reasonable inference that Mr. Vader stole the McCanns’ property, which I find as fact, and beyond a reasonable doubt. There is no reasonable innocent inference to explain Mr. Vader’s possession of the McCanns’ property.

[666] This is another element of the factual matrix which, in turn, may form the basis for the Crown to prove its case beyond a reasonable doubt. Theft is relevant in two senses: motive and the probability of violence. I turn next to the latter point.

D. Issue #4 - Were the McCanns Victims of Violence?

[667] Another key issue is whether the McCanns’ disappearance and death can have some innocent explanation. I have previously indicated there is evidence that was not the case: the McCanns’ blood and the gunshot hole in the Boag’s hat.

[668] The Defence has suggested that the gunshot hole perhaps has some innocent explanation, such as a strange (or more properly bizarre) scenario where the McCanns for some reason decided to stop on their trip to British Columbia, then take the Boag’s hat that Lyle McCann was wearing and use that for target practice, but afterwards must have decided to keep the hat. This so-called alternative has no evidence to support it, and is simply yet another of the unsupported hypotheses advanced by the Defence.

[669] The circumstances in which the McCanns’ property was later used and/or recovered also strongly suggests that something very bad happened to the McCanns. The first important evidence is that blood-covered objects which suggest violence occurred in a location separate from where these objects were recovered. Forensic examination of the SUV did not detect the kind of corresponding blood evidence which was located on the Boag’s hat and the No Name Cans. This means the bloodshed happened first, at a separate location, then these articles were moved from that location to where they were later found by the RCMP. That alone is overwhelming evidence that a theft occurred, after the bloodshed.

[670] This evidence creates a strong implication of a non-innocent scenario. The McCanns, now dead, were engaged in an event that caused bloodshed and involved a firearm. Plausibly that occurred in the RV, but I cannot make any such conclusion, to do so would simply be speculation. Certain blood-covered items from the scene(s) of that bloodshed were then salvaged and removed to the SUV. The actual site of the bloodletting is not known. However, what is clear is that the bloodshed happened in one location, then stolen blood-covered items were relocated to the SUV.

[671] Arguably the use or involvement of firearms is proof that Mr. Vader intended to kill: R v Bains (1985), 7 OAC 67, 13 WCB 434, leave denied [1985] SCCA No 158; R v McArthur, 2013 SKCA 139 (CanLII), 427 Sask R 180; R v Bugnet, 2014 ABQB 457 (CanLII), 155 WCB (2d) 323 affirmed 2016 ABCA 178 (CanLII).

[672] I do not think these cases support the proposition advanced by the Crown, at least in these circumstances. R v Bains involves offenders who aimed and fired at targets:

All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed - to cause death. It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfil its design function and kill. An element of surprise arises only if death does not occur.

It was clear in the evidence of that case that the offenders aimed specifically at the people they shot, in several cases at point blank range.

[673] The facts are similar in R v McArthur. The Crown in that case proved that the offender shot a person in the chest with a sawed off shotgun: at para 9. That act was obviously an attempt to kill.

[674] Here, that evidence simply does not exist. While I have concluded that a firearm was used during the interaction between Mr. Vader and the McCanns, and that firearm caused the hole in the Boag’s hat, I cannot establish who fired the gun or at whom, and the blood drop and spatter pattern on the Boag’s hat does not suggest the bullet that passed through the hat and caused an injury to someone wearing that hat. The blood, largely from Lyle McCann, is on the top of the hat.

[675] My conclusion on that point, however, does not affect my conclusion that violence occurred in the interaction between the McCanns and Mr. Vader. There was bloodshed. A gun was discharged. While I cannot reconstruct the exact detail of what occurred, I also have no doubt about the overarching relevant fact - the McCanns were victims of violence. Mr. Vader inflicted that violence. The McCanns suffered bodily harm. The presence of their blood makes that obvious.

E. Mr. Vader Committed Homicide

[676] Linking the facts I have found there is no question that Mr. Vader committed homicide. The McCanns are dead. They were the subjects of violence that caused bloodshed. Mr. Vader’s biological material is mixed with blood from Lyle McCann. Mr. Vader’s motivation to interact with the McCanns was theft. Forensic and witness evidence links Mr. Vader to the McCanns’ property.

[677] Mr. Vader caused what happened to the McCanns. The Crown’s evidence and the inferences I have drawn from that evidence do not permit a detailed reconstruction of the circumstances that led to the McCanns’ death, and how Mr. Vader caused those deaths. However, I conclude beyond a reasonable doubt that Mr. Vader, in one manner or another, caused the death of the Lyle and Marie McCann. My next step is to determine the legal implications of that fact.

F. First Degree Murder

[678] The Crown seeks to have Mr. Vader convicted of first degree murder. To come to that result I must conclude that the Crown has proven beyond a reasonable doubt that either:

1. the McCanns’ homicide was planned and deliberate (Criminal Code, s 231(2)), or

2. the homicide occurred while Mr. Vader was committing or attempting:

a) a sexual assault (Criminal Code, ss 231(5)(b-d)),

b) a kidnapping and forcible confinement (Criminal Code, s 231(5)(e)), or

c) a hostage taking (Criminal Code, s 231(5)(f)).

[679] The Crown has entered no evidence to support the various s 231(5) alternatives. That leaves whether the homicides were planned and deliberate.

[680] The Crown’s argument is that one of the two McCanns was executed as a witness. The Crown proposes a "most likely" scenario for the interaction of Mr. Vader and the McCanns, where Mr. Vader engaged in a violent confrontation with the McCanns during a robbery:

... Mr. Vader was in the process of stealing from them and that during the violent confrontation Mr. Vader murdered either Lyle McCann or Marie McCann. Given the age and strength of the surviving McCann, it is submitted that that person would have posed no threat to Mr. Vader and that he murdered the survivor to eliminate them as a witness. ...

The Crown concludes the subsequent execution would be "... a cold and calculated decision [that] would still meet the test of planning and deliberation even if it was made after the violent confrontation commenced ...".

[681] The Crown cites R v Green, 1987 ABCA 135 (CanLII) at para 13, 36 CCC (3d) 137 for this ‘execution of a witness’ rule:

... The emotionless killing of a witness to a prior crime under no higher motive than to silence him or her is conduct which lies comfortably with a finding of murder in the first degree. The act, as here, imports volitional choice, a calculation of self-interest, a weighing of the consequences of killing, as opposed to not killing, and an assessment of the means and opportunity available for its successful completion. ...

[682] The facts of R v Green are helpful to understand this statement. In that case an intruder into a residence was located by a grandmother and her young granddaughter. The intruder confined the young girl while "he returned to complete his killing" of the grandmother. Then the intruder considered what to do about the girl who knew the intruder’s appearance. The intruder testified the young girl washed up, and was put in her room. She wanted to go to school, so he told her to get dressed. He decided he had to leave, so he went into the girl’s bedroom and stabbed and killed her.

[683] The scenario in R v Green is less a question of eliminating a witness, than an offender facing an issue, making a plan, then carrying that out. That clearly matches the criteria for a first degree murder: R v Nygaard; R v More; R v Jacquard; R v Turningrobe. How do I address the issue/problem of the child witness? I kill her.

[684] The problem with the Crown’s theory is simple. There is no evidence to support that the homicides occurred in the manner the Crown has proposed. It is a theory. For me to convict Mr. Vader of first degree murder following the Crown’s theory, I must conclude that there are no other reasonable alternatives than one death, time to make a plan that "was conceived and carefully thought out" (R v Nygaard), an act that was "intentional", "considered not impulsive" (R v Turningrobe), then the killing of the second McCann.

[685] The problem is there are other reasonable possibilities that can take us from a robbery gone bad to two dead senior citizens. The most obvious is that Mr. Vader encountered the two McCanns together while trying to commit a robbery, the McCanns both physically resisted Mr. Vader, that fight escalated, and in that struggle both McCanns were fatally injured. This is quite plausible, particularly since I have evidence of a firearm being used. Given that, I cannot conclude beyond a reasonable doubt that Mr. Vader killed one or both of the McCanns in a planned and deliberate manner.

[686] That is not to say that the Crown’s proposed scenario could not have happened. It is entirely possible that the McCanns were both restrained during a robbery, then executed some time afterward. Perhaps the Crown’s theory is correct. The problem is there is no evidence on which to prefer any of these alternatives.

G. Second Degree Murder or Manslaughter?

[687] The culpable homicide of Lyle and Marie McCann is either a murder or manslaughter: Criminal Code, s 222(4). A homicide is murder (Criminal Code, s 230) if Mr. Vader killed the McCanns:

1. during commission of a robbery (Criminal Code, s 343);

2. if Mr. Vader intended to cause bodily harm to the McCanns to facilitate the robbery or his flight after committing the offence; and

3. bodily harm was inflicted, and that bodily harm led to the McCanns death.

[688] I have concluded beyond a reasonable doubt that Mr. Vader intended to and did steal property from the McCanns. I have also concluded beyond a reasonable doubt that the McCanns experienced bodily harm, as is demonstrated by the forensic blood evidence. The McCanns are dead, and the only reasonable inference I can draw is the bloodshed evidence indicates the McCanns were killed by Mr. Vader’s actions.

[689] The bloodstained No Name Cans and Boag’s hat also establish that the bloodshed occurred prior to the theft of at least some of the McCanns property. The McCanns were injured, bled on these items, and then the items were moved to the SUV by Mr. Vader. This proves beyond a reasonable doubt that at least some violence directed by Mr. Vader to the McCanns occurred to facilitate the robbery.

[690] Last, I conclude beyond a reasonable doubt that Mr. Vader intended to cause bodily harm to the McCanns. The scope of the blood evidence establishes that. Mr. Vader had no other reason to apply force to the McCanns, except to further his criminal acts.

[691] From the evidence I have accepted and based on the inferences drawn from that evidence I conclude beyond a reasonable doubt that Mr. Vader committed murder. A murder is either first or second degree murder: Criminal Code, s 231(1). The killing of the McCanns was not a first degree murder. It is therefore second degree murder.

VII. Conclusion

[692] On the two counts of first degree murder, I find Mr. Vader not guilty, but I do find him guilty of the lesser and included offence of second degree murder of Lyle and Marie McCann near Peers, Alberta on or about July 3, 2010. I enter convictions on those verdicts.

Heard on the 7^th, 8^th, 10^th, 11^th, 14^th – 18^th, 21^st – 24^th, 29^th – 31^st days of March, the 1^st, 4^th – 8^th, 11^th – 15th, 18 – 22^nd, 25^th - 29th days of April, the 2^nd – 6^th, 9^th, 10^th, 12^th, 13^th, 16^th- 18^th, 25^th – 27^th days of May, and the 22^nd and 23^rd days of June, 2016.

Dated at the City of Edmonton, Alberta this 15^th day of September, 2016.

D.R.G. Thomas

J.C.Q.B.A.

Appearances:

Mr. Ashley Finlayson, Q.C.,

Mr. Jim Stewart, and

Ms. Eman Joumaa

(Crown Prosecutors - Specialized Prosecutions Branch)

for the Crown

Mr. Brian A. Beresh, Q.C. and

Mr. Nathan Whitling

Ms. Stacey Purser

(Beresh Cunningham Aloneissi O'Neill Hurley)

for the Accused

Appendix A - Admission of Text Message Communications Attributed to Mr. Vader under Charter, s 24(2)

I. Introduction

[693] On June 9, 2016 I denied Mr. Vader’s application that I exclude from evidence text message records that RCMP investigators obtained from Telus via a Criminal Code, RSC 1985, c C-46, s 487.012 production order. Mr. Vader argued that obtaining those text message records breached his Charter, s 8 right to be free from unreasonable search and seizure. Mr. Vader’s argument was that a search for this kind of data should have been conducted under Criminal Code, Part VI, which is the part of the Criminal Code that authorizes wiretaps and other communications intercepts.

[694] I rejected Mr. Vader’s application on two different and independent bases:

1. the onus to prove a Charter, s 8 breach fell to Mr. Vader, and he had not proven that he had a privacy interest in the text message communications, and

2. the RCMP had obtained the text message records from Telus under the legally appropriate procedure: Criminal Code, s 487.012.

[695] At the time of my decision to deny Mr. Vader’s Charter application the parties agreed that I should defer any Charter, s 24(2) analysis until the close of the Crown’s case. That has now occurred, and so this decision completes that part of Mr. Vader’s Charter, s 8 application analysis.

II. Charter, s 24(2)

[696] Charter, s 24(2) permits admission of evidence where that evidence was obtained in a manner that breached a person’s Charter rights:

24(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[697] Since I have rejected Mr. Vader’s Charter, s 8 application it is not strictly necessary for me to continue to determine whether the Telus text message records should be admitted under Charter, s 24(2). Nevertheless, I continue to conduct a Charter, s 24(2) analysis to provide a complete foundation for appellate review. Therefore, that s 24(2) analysis starts from the assumption that I was wrong when I concluded that Mr. Vader did not have a privacy interest in the text message communication and the production order was the correct mechanism to obtain access to the Telus text message records.

[698] The modern approach to application of Charter, s 24(2) was set by the Supreme Court of Canada in R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353. The majority decision instructs at para 71 that the court consider "... three avenues of inquiry, each rooted in the public interests engaged ... viewed in a long-term, forward-looking and societal perspective":

1. the seriousness of the Charter-infringing state conduct,

2. the impact on the Charter-protected interests of the accused, and

3. society’s interest in an adjudication on the merits.

A. Seriousness of the State Misconduct

[699] The first R v Grant factor evaluates the misconduct that led to the Charter breach. The courts should deter and denounce deliberate, calculated, informed failures to abide by the Charter of Rights and Freedoms. Negligence or carelessness is no excuse for misconduct of this kind. Careful scrutiny of state actors is necessary to maintain public confidence in the rule of law: R v Grant, at para 72.

[700] However, evidence may potentially be admitted where a Charter breach is technical, inadvertent, or minor, and where police officers act in good faith. The public’s confidence in the criminal justice system is eroded where persons escape full adjudication of their alleged misconduct on a "technicality".

[701] Here, the state misconduct falls to the low end of the spectrum. There is no question that the RCMP acted in good faith when they sought a court order to have Telus produce the text message information records. There has been no challenge to the validity of that application. Second, the RCMP’s choice to use a Criminal Code, s 487.012 production order rather than the Criminal Code Part VI communications intercepts process was reasonable at that time, and now, because:

1. the Supreme Court of Canada had not yet issued the R v TELUS Communications Co., 2013 SCC 16 (CanLII), [2013] 2 SCR 3 decision that indicated future text messages are private communications that may only be lawfully obtained under Criminal Code, Part VI, and

2. because Canadian courts, including Alberta courts, have come to opposite conclusions on whether the same is true for past text messages that were recorded and stored by a telecommunications business, see my previous judgment on this issue.

[702] It is difficult to argue the law is clear, and the RCMP should have known better, when the courts have not come to a conclusion on the appropriate procedure for law enforcement to obtain recorded and historic text message information. I therefore rate the seriousness of state misconduct in this instance to be very low.

B. Impact on the Interests of the Accused

[703] The second element in an R v Grant analysis inquires into the degree and kind of intrusion the breach represents. Some kinds of Charter-offending action all but demand that evidence be excluded, such as where an accused’s right to silence is denied. R v Grant instructs at para 78 that when evaluating an unreasonable search, the key question is to what degree an individual enjoys a privacy expectation in the evidence obtained.

[704] I conclude the intrusion here is moderate. While private electronic communications and information stored on personal computers has a high privacy interest (R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657) here that potential expectation of privacy is attenuated by a number of factors. First, text information sent to another person’s cell phone has, by its nature, been shared. Second, any person who uses a modern computer or Internet service, or telecommunication system must be aware that the private businesses which operate those systems may retain and use information for a range of diagnostic and systems tasks. That fact was recognized by Parliament, which in Criminal Code, ss 184(2)(c) and 184(2)(e) by definition excluded information collected in that manner from Charter protection under the wiretap and intercept private communication category.

[705] Third, the McCann cell phone was clearly being used by someone other than the McCanns. I have difficulty in seeing how much privacy interest would attach to communications made on someone else’s stolen cell phone. This is similar to a person who has taken someone else’s mail now claiming to have a privacy interest in the stolen letter’s contents.

[706] My conclusion, which again is predicated on Mr. Vader having a privacy interest in these communications at all, is that the intrusion here is a substantial but not overwhelming one, such that entering the Telus text message data into evidence would not breed public cynicism and bring the administration of justice into disrepute. This is particularly true for text messages from the McCann cell phone.

C. Adjudication on the Merits

[707] The third aspect of the Charter, s 24(2) analysis requires balancing two factors: society’s interest in excluding evidence obtained in breach of an accused person’s Charter rights, or whether failure to admit that evidence has a greater, negative impact on the administration of justice: R v Grant at para 79.

[708] This inquiry asks whether the evidence in question is reliable, relevant, and necessary, as well as the character of the offence. Here, the evidence is inherently reliable because it was automatically collected and stored, and I have received much explanation on how those processes occurred. Second, the evidence is potentially of high relevance. For example, if Mr. Vader was using the McCann cell phone after the McCanns disappearance then that is highly relevant circumstantial evidence since it links the Accused and his alleged victims. Third, this is obviously a very serious offence, and as I observed in R v Vader, 2016 ABQB 55 (CanLII) at paras 115-119, public confidence in the administration of justice favours a full and complete trial.

[709] Therefore, the third R v Grant factor favours admission of this evidence.

D. Conclusion

[710] Balancing the three R v Grant factors, I conclude that the administration of justice requires that I admit the Telus text message information even if it was obtained through a breach of Mr. Vader’s Charter, s 8 rights. This is a third alternative basis on which I deny Mr. Vader’s application to exclude the Telus text message information.

Appendix B - Pre-Judgment Court Decisions

Neutral Citation	Nature of the Application	Result	Decision Date	Date Published
2016 ABQB 55 (CanLII)	Stays of the trial for prosecutorial abuse of process, and unreasonable trial delay.	Dismissed	January 26, 2016	January 26, 2016
2016 ABQB 228 (CanLII)	Production of materials relating to David Olson and witness protection measures.	Dismissed	April 13, 2016	April 29, 2016
2016 ABQB 266 (CanLII)	Admission of statements by Bobbi Jo Vader to the RCMP for the truth of their contents.	Partially successful	May 10, 2016	May 12, 2016
2016 ABQB 287 (CanLII)	Admission of cell phone records for the Sexsmith and McCann phones.	Records admitted	May 12, 2016	June 7, 2106
2016 ABQB 301 (CanLII)	Admission of hearsay statements of the McCanns’ holiday activities, as reported by relatives and a neighbor.	Hearsay partially admitted	May 25, 2016	June 6, 2016
2016 ABQB 309 (CanLII)	Exclusion of cell phone records as obtained without a telecommunications intercept warrant.	Dismissed	May 5 & 27, 2016	June 9, 2016
2016 ABQB 405 (CanLII)	Require the Crown call Warnex DNA forensic laboratory witnesses.	Dismissed	April 11, 2016	July 18, 2016

http://www.canlii.org/en/ab/abqb/doc/2016/2016abqb505/2016abqb505.html?resultIndex=1