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    Alberta Queen's Bench Justice Denny Thomas' Reasons for Judgement of Travis Vader.

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    Travis Vader - Reasons For Judgement

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    Slav Kornik
    Alberta Queen's Bench Justice Denny Thomas' Reasons for Judgement of Travis Vader.

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    Court of Queen's Bench of Alberta : Ry Vader, 2016 ABQB S05 Registry: Edmonton Between: Her Majesty the Queen Crown sand ‘Travis Edward Vader “Accused Reasons for Judgment of the Honourable Mr. Justice D.R.G. Thomas Table of Contents 1, Introduction $ A. Background: 5 B. The Case Against Mr. Vader 1 C._ Positions of the Parties. 8 1. The Crown 8 2. Mr. Vader. ° Page: 3 A. Telecommunications Evidence - Overview. 7 cose SL B. Cell Phone Location and Usage Data . 52 1. Cell Phone Location Data. 7 . 3 2. Cell Phone Usage Dats cee 0 13. Other Telecommunications and Cell Phone Related Evidence 6 B. Mr. Vader's Associates ~ Credibility and Reliability Reviews 61 L._ David “Bandana Dave" Olson, 2 2. Myles Ingersoll non vn 66 3. Amber Williamson = eo 4. Andrea Saddteback-Sexsmith n 5. Sheri Lynn Campbell Siecle se 6. Donald Bulmer... 7 ee 16 7. Bobbi-Jo Vader. oe sons 8. William James Nikolyuk. 81 C. Review of Other Witnesses and Some Relevant Items, 83 1. F350 Witnesses 8 2. The Kiohn Truck i eee 85 3. Boxer Beer. se sons : 85 4. Incidental Witnesses 85 5. Defence Witnesses atthe Minnow Lake and Wolf Lake Canaan ‘on July 45, 2010. sone 87 6. Defence Evidence on Mr. Vader's Activities in July 2010 suse 89 7. Tanja Radovanovie ot Defence Motor Vehicle Damage Witness. : ot D. Mr. Vader's Links tothe McCanns and Stolen Property - 92 1, Who Is“? 2 2, Did Olson and Ingersoll Observe Tavis Vader inthe MeCann SUV on Sly 3, 2010298 3, Was the F350 Found with the MeCann SUV Key Operated by Mr. Vader?. 98 4. Did Mr. Vader Burn the Klohn Truck?.. E, Cell Phone Information - Statements forthe Truth of Their Contents 1. Mr. Vader's Use of the Bulmer Cell Phone. 2. Drug Use by Mr. Vader 3. Mr. Vader's Circumstances in the Period Around July 3, 2010. Page: 5 1. Introduction [1] On July 3,2010 Lyle and Marie MeCann [the “MeCanns"] let their home in Saint Albert, ‘na road trp to Cultus Lake in British Columbie where they were going to holiday. The “MeCanns travelled ina large Class A recreational vehicle {the “RV"] which towed a Hyundai ‘Tueson SUV [the “SUV” or “McCann SUV". The MeCanns had arranged to meet with theit daughter Trudy Marie Holder [°Ms. Holder] and her daughter who were flying to Abbotsford on July 10. The four family members were then going to travel inthe RV to Cultus Lake. [2] The McCaans never arived, This was the frst inkling to their family that something hed ‘gone avry. Ther failure o appear a the Abbotsford airport was very unusual. Ms. Holder Immediately reported to the RCMP that her parents were missing, [3] _TheMcCanns were never seen again, dead or alive; however inthe weeks that followed the discovery of evidence linked to them began to emerge. The frst 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(WSM). On July 3, the McCann cell phone was used to communicate with persons unknown tothe McCanns. Forensic investigators located blood fiom the MeCanns on objects found inside the SUV. A hat wom by Lyle McCann was found inthe 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 da with the MeCanns. This decision isto 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-46, s 231). A. Background [5] Aspects ofthe background leading up to the disappearance ofthe MeCanns are notin dispute. A numberof the McCanns’ relatives (Ms. Holder, Bretton MeCann, Mary-Ann McCann, and Alice Chalmers) anda friend and neighbour (Margaret Ann Mulfitt, [/Ms. Muff") testified as to the McCanns’ travel practices and their uly 2010 plans. 1 previously issued a voir de decision that admited the hearsay evidence components of the three relatives’ testimony: R v Vader, 2016 ABQB 301, [2016] AJ No 579. also accept the non hearsay evidence of these witnesses, and Ms, Mulfit’s evidence on the general travel and holiday practices ofthe MeCanns. [6] __ The reliabilty of that evidence was challenged by the Defence; however I conclude that the criticism of these witnesses has no merit given their familiarity withthe subject matter. ‘Similarly, the Defence argued that I should consider potential altemative paths of rave, Aestinations, and so on, as potential and relevant alternative theories of what the MeCanns did. I reject these submissions as empty hypotheses thet are countered by the fact that physical evidence of the MeCanns 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 dec'sion, instead applies to the Defence submiting alternatives without supporting evidence or elevated plausibility. (7) In summary: 1, ‘The MeCanns had frequently holidayed with their RV and SUV. Page: 7 ‘The SUV had been driven hard into a stand of tees Its exterior was diny. An empty Boxer Beet carton was located nearby in an area next tothe vandalized mobile heme on that property. The _rass 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 garege it was found to contain a ‘numberof items, including a can of Boxer Beer in cup holder in the console between the two front seats a propane tank ina 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 {ype of food products that were prchased By the MeCanne fenm the St Alhert 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 hada logo and text for Boag's Draught [the “Boag's hat"). The Boag’s hathad a small hole in its brim. [14] _ The video images of Lyle McCann captured atthe 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 inthe SUV, on the Boag’s hat, and onthe 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 (“MeCenn phone”) was ultimately covered 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”, Its uncontested that Ms. Williams has no connection to the MeCann. B, The Case Against Mr. Vader [18] Mr. Vaderis charged with two counts of first degree murder: Count: On or about the 3rd day of July, 2010, a or near the Hamlet of Peers, in the Province of Albert, did commit fist degree murder ‘of the person of Lyle MeCana, contrary to section 235(1) ofthe Criminal Cade of Canada Count2: On or about the 3rd day of July, 2010, ator near the Hamlet of Peers in the Province of Alberta, did commit fist degree murder of the person of Marie McCann, contrary to section 235(1) of the Criminal Code of Canada, [Atthe opening ofthe trial Mr. Vader was arraigned on these charges, and entered pleas of not guilty [19] The Crown admits thatthe 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 MeCanns. The Defence argues the necessary standard of proof has ct been met. Page: 9 [28] Forensic evidence inks Mr. Vader to the McCanns. His DNA and a fingerprint were found in association with the SUV and its contents. Blood from the VcCanns 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 wit these items. There is no evidence of stypical transfers of biological material. 29] Blood from the MeCanns located on the Superstore No Nams Cans and the Boag's hat hhasa 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 hharMr. Vader wasusing the MeCann phone on July'3 at 14:14 onwards. Mr. Vader then cortinued his attemprs to communicate with Ms. Williams using his own phone after he obtained subscription time via Me, Olson. This was part ofa larger pattem 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, Wiliams. [31|__ Mr. Vader had a criminal motive that brought him into contact with the MeCanns: theft. Hispost-offense conduct was to conceal hs criminal activity and an attempt to develop an alibi That is evidence of guilt. The Crown also argues thatthe Court may draw an inference of guilt fiom Mr, Vader’s control of the MeCanns" recently stolen possessions (R v Kowlyk, [1988] 2 ‘SCR 59, 86 NNR 195), and that a voluntary statement where an accused person does not respond to incriminating evidence has probative value: R y Ominayak, 2010 ABCA 152 at para 26, 487 ARI73. The Crovm stresses that any alternative hypothetical penpetator must be based on a reaconable inference, and not just speculation: R v Grandineti, 2005 SCC S at paras 46-47, [2005] 1 SCR 27. [32___ Mr. Vader is lopically guilty of first degree murder because when he confronted the MeCanns he necessarily shot and killed one of the couple, and then executed the other one to climinate a witness. That meets the planning and deliberation component of first degree murder: R vGreen (1987), 36 CCC (34) 137, [1987] AI No 561 (Alta CA). 2. Mr. Vader 33] Counsel for Mr. Vader made written and oral submissions. They have a central theme: thatthe 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 shouli 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 waps. One is tat the death of the MeCanns {i unproven, and if they are dead, then there is no evidence af how, when, and where they di ‘There isn evidence Mr. Vader committed an unlawful actor that that act led tothe McCanns” death. Counsel forthe Defence argues that ina situation such as this the Court should apply the -commmion law rule that a person who bas disappeared is presumed deal only ater seven years have elapsed without contact. The Defence notes the seven year rule is only proof to a civil ‘standard, and so the Crown has not possibly satisfied its obligation to prove the McCanns are Page: 11 . The RCMP not only had the opportunity to plant the SUV key inthe truck but, at that time, they also had the means (i. the SUV had been in their possession for ‘one month now and keys could have easily been eut) and a strong motive to tie the vehicle to Mr. Vader. [41] The Crown's characterization of Mr. Vader as drug addict is unfair. There is no ‘evidence to support Mr. Vader was using drugs inthe relevant time. This was nothing more than bad character evidence, In any case Mr. Vader had no motive to rob the MeCanns or steal their vehicles and other property. To sugeest 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 rake 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 itis irrelevant. Postoffence 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 eannot 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 ‘ame is true for an intercepted communication between Mr. Vader and his mother on October 16, 2011 Law A. Standard of Proof [44] A court may only find an accused guilty ifthe Crown proves all elements of an offense beyond a reasonable doubt: R v Lifehus, [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 ‘annot be based on sympathy or prejudice, nor may it be imaginary or frivolous. A reasonable identification, and the unique language and undisputed facts about how living things store irformation. ‘The Theoretical Basis for Forensic DNA Analysis [112] Forensic DNA analysis isa well-developed and generally accepted method to match biologizal 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 thei explanations of the theory and process of forensic DNA. analysis were consistent, so the summary that follows isa synthesis ofthat evidence. [113] DNA or deoxyribonucleic aid is an information storage molecule found inal living things. DNA isa zipper-like double-stranded molecule where information is encoded in a series of subunits called bases: adenine, cytosine, guanine, and thymine. Each base pars 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 ofthe ether 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, inthe nucleus and the mitochondria. A molecule of DNA is called a chromosome. Humans have 46 chromosomes in the nucleus, and multiple but identical copies ofa smaller cchromcsome in the mitochondria. The nuclear chromosomes exist in 23 paits and each pair contains generally the same kind of information. One member of each ofthe pars is provided by cach 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 ule 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 pais. [116] Certain parts of an organism's DNA are largely consistent among individuals who belong to the same species. Other pats of the DNA may be different. Some differences encode physical atteibutes, also known asthe “phenotype”, of an individual. For example, the different human, blood types are the result of different variations in apart ofthe human DNA that encodes a blood cel provin. The same is tru for eye colour. Other kinds of person-to-person variations do not, involvean area that encodes information, but instead are found in areas ofa chromosome that include many short DNA sequences, that repeat over and over. These “short tandem repeat” [-STR"] regions are vey 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 phenatype, DNA forensic analysis takes advantage ofthe variations in STRs by measuring the size of « piece of a chromosome that includes these variable repeat regions. Ths 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. Ifthe sizes of two variable length chromosome alleles are different, then that indicates thes alleles have different biologi Page: 25 procedures, and keeping evidence sources separate and contained. Items and information relating, {o items are tracked by a software laboratory information management system. [124] Many of the steps inthe forensic DNA analysis process are automated or semi- autcmated, but the investigators inthis 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 i to isolate DNA from a source. A source ean be a sample from a person, such asa blood sample, a mouth swab, or body tisstes. DNA can also be collected from surfaces, from blood stains, from clothing, and generally mos things that contact 1 pesson. That is because humans continually shed their DNA in skin flakes, hairs, and body Auics, These test sourees can a'so be evaluated for fluorescence, which isa 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 chai reaction or PCR. “Amplification” causes an inrease 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. Ths results in an enzymatic chain reaction that causes certain areas of Na 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 piece ofthe 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 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 eauses the amplified products to have different fluorescent labels attached to the product DNA pieces, These Tuorescent labels glow a certain colour when illuminated by a laser, and the glow ean be measured to indirectly) determine how much DNA is present. [127] The DNA produced by the PCR amplification process is then placed in capillary clectrophoresis apparatus that separates DNA. pieces by size via passing those DNA molecules through a capillary, avery long thin tube, and measures the quantity of DNA at varios sizes. DNA length measurements are precise, and capable of counting individual base pais, the informational subunit of DNA. The quantity of DNA is measured via observing fluorescence. “Mucof this separation, sizing, and concentration detection process is automated, but supe-vised. The product of this process is called an electropherogram, which is essentially & ‘graph of DNA quantity vs DNA molecule size. ince the DNA length measurements are very precise the length ofthe observed DNA piece can be used to identify the number of copies of a Short tandem repeat ina given variable region. For example, the D3 allele location has known, variations ranging between 12 10 19 repeats [128] These allele profiles are then compared to determine whether or not amplified alleles of the same oF different sizes are present. Reagent blanks and positive and negative controls assess possible issues of contamination or procedure error. [129] The experts here agreed thatthe PCR amplification process is something ofa double~ ‘edged sword, On the one bandit permits analysis of very small starting quantities of DNA. That ‘mears even small or damaged biological samples can potentially produce a fal allele size Page: 27 sample donor was one in thre 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 wins. But in general, matching between a pattern of a known and an unknown [DNA STR allele pattem produces high confidence thatthe donor of the known biological ‘material sample also was the source of the DNA located in the unknown biological materia sample. {139} Incomplete DNA information from an unknown sample is still elevant when the partial data is a good match, This i analogous to an incomplete licence plate. I'« camera observes a ‘motor vehicle used in an offense has a certain license plate then that is strong evidence thata specific automobile was involved ithe illegal actvily. This is analogous to a perfect DNA allele profile match [140] However, a partial licence plat, for example that records four of six characters, is sill highly relevant because thet data vastly narrows the range of candidate vehicles in question The partial licence plate ean be critical and determinative information when coupled with other Sata, like automobile type and colour, Separately these picces of evidence have much less probative effect than when combined, [141] The same is potentially tue for forensic DNA evidence. For example, investigation of a “date rape drug’ sexual assault scenario may lead toa finite list of suspects. Even an incomplete STR allele DNA profile derived from degraded DNA can be a powerful too! inthis context, if for ‘example one ofthe unidentified perpetrators DNA alleles matches only one potential rapist. ‘That eliminates other possible offenders. 4. Conclusion - DNA Forensic Analysis [142] There is no question that forensic DNA analysis is a well-established, accepted, and valid scientific process, Itis very frequently used in criminal and civil proceedings and is considered a definitive method of identification. Nevertheless, lke 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. Veshni ‘Skipper was qualified asa 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 inthe examination of exhibits for biological materials, PCR methodologies, and interpretation of forensic DNA dita, including the probabilities of an unidentified third person being an altemative match for an ‘unknown profile. The third exper, Janice Rac Lyons, was qualified asa 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 forthe 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 Cotoumbe, Jasmine Page: 29 reported on forensic DNA analysis or protocols. My review of Dr. Libby's CV did not identify ‘any refereed publications that obviously address forensic DNA analysis, [154] Though Dr, Libby was qualified as an expert and therefore was permitted to give opinion evidence, Ihave difficulty with his expert testimony for a number of reasons. A useful point of| departure isto examine the characeristis of an expert witness. An expert witness is an individual who is permitted to give evidence that isnot 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 eritri identified in R » Mohan, [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 cof a judge”, the triers of fact “are unlikely to form a correct judgment. if unassisted by persons ‘ith special knowledge”, “due tothe technical nature ofthe facts": Rv Mohan, at paras 21-25.1¢ «judge or jury ean form their own opinions without that help then an expert isnot 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 Jin 1159465 Alberta Ltd v Adwood Manufacturing Ltd, 2010 ABQB 1:3 at para 2.13,25 Alta LR (Sth) 237, affirmed 2011 ABCA 259, 51 Alta LR (Sth) 352 described an expert as being“. less ‘witness fora party’ than a witness forthe court”. I agree with this dstintion. [157] National Justice Compania Naviera S.A. v Prudential Assurance Co. Lid. (“The Iharian Reefer"), (1993) 2 Lloyd's LR 68 (QB) at 81 [“Ikarian Reefer) lays out the duties and responsibilies of an expert witness: 1. An expert witness should at all stages inthe procedure, on the basis ofthe ‘evidence as he understands i, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to marters within his expertise... An expert witness should never assume the role of an advocate 2, The exper’ 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 sila circumstances oF otherwise seek to usurp the role ofthe judge. 3. He should cooperate with the expert of the other party or pares in attempting to narrow the technical issues in dispute at the earliest possible tage ofthe procedute and to eliminate or place in context any peripheral issues. 4. The expert evidence presented tothe court should be, and be seen tobe, the independent product of the expert uninfluenced as to form or content by the exigencies ofthe litigation Page: 31 Ary biological sources, other than iis complicated. He testified that many variables ean influence how much DNA is transferred between sources, but gave no explanation to assist in understanding what and wity that was the ease - does it :matterifit is wet or dry? Does DNA stick more to certain materials? He simply says there are many variables. That does litle to add useful information that is outside the knowledge ofthe trier of fact and hence necessary evidence, [164] Justice Topolniski’s decision was subsequently upheld on appeal: Rv Awer, 2016 ABCA 128, One of the grounds of appeal was that Dr. Libby's evidence had been improperly criticized as unsespansive: The Court af Appeal at para 77 clsagreed ‘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 tothe ‘court to give fair, objective and non-partisan opinion evidence [165] _R » Awer is now under appeal tothe 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 K v Awer litigation. I find as fact that Dr. Libby is very well aware that his previous appearance inthis 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 Rv Awer. In other words, there isa 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 beard substantial evidence about nanograms. And Tet me give you an example ora question. Does it ‘matter for your purposes in terms of analyzing a sample, inierpretng the sample, whether there’s 50 ranogeams or 500 nanogeams? De. 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 ~ fits of ll, you're not amplifying that total amount, so you're amplifying ‘the sub-quantity ofthat amount. But the interpretation you generate is, you know ~ that you ‘observe on electropherograms is ~ it does not matter whether it’s from $0 of 500, Page: 33 ‘And then afer 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 s associated with - how the peaks are associated with one another. So for exams, given a situation in which you have four alleles, four peaks, all of approximately equal intensity, what isthe order in which they are associated with ‘one another. Le’s call them alleles A, B, C, and D. Is A associated with B, o associated with C, of A associated with D, or is B associated with D, or C associated with ~ so there's no~ there's a wide numberof possibilities. Infact, if {you have four peaks of equal intensity, equal peak height, you actually have ten different posbilities, ten different genotypic possibilities {175} Perhaps 1am: obtuse, but I count six possibilities in this scenario where there are two DNA sources! DNA source | contributes: DNA source 2 contributes: A&B cap aac BaD Ag? Bec Bac AgD BeD Age cap A&B [176] Rather ironically given his previous scrutiny of literature sources in R w Awer, in this proceeding Dr. Libby referenced an article titled “The Surprisingly Imperfect Science of DNA “Testing” from “The Marshall Projet", a "story .. produced in parnership 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, oI think this is maybe more like -- published in @ ttade article, not an extensive, academically peet reviewed journal. [177] Another reason I have issues with Dr. Libby's expert evidence is that it appears he takes @ position that diverges very broadly from the mainstream of DNA forensic analysis. As 1 understand his testimony, he believes thatthe 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 tothe three disputed forensic analyses. [178]_ Inthe 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 matenls recovered during investigation of the MeCanns’ 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, Page: 35 ‘unidentified person could be very relevant. So would the recovery of an unidentified source of DNA fiom a putative murder weapon handle. However, that is not the case here, The seareh Tocations were anything but ‘clean’, and I have received much evidence on how DNA can be damaged and degrades overtime, 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 MeCanns and their propery. [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 1 random individual having the same DNA profile is one in three trillion ‘+ DNA recovered froma blood stain on the SUV centre console arm rest matched Me. Vader's DNA. A complete DNA profile was developed. The probability of a random individual having the same DNA profile i one in three tilion. © DNA recovered from a tissue located in the SUV matched Mr. Vader's DNA. This was a zomplete DNA profil. The probability ofa random individual having the same DNA. profile is one in thre tillion, ‘+ DNA recovered from the inner sweat band ofthe Vopak hat matched Mr. Vader's DNA. ‘A complete DNA profile was developed. The probability ofa random individual having the same DNA profile is one in three tilion ‘© DNA recovered via a swab of the SUV steering wheel matched Mr. Vader’s DNA. A partial DNA profile was developed. The probability ofa 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 ofa 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 ofa random individual having the same DNA profile is one in 12 milion ‘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 MeCann and Mr. Vader. The probability ofa random individual having the same DNA. profile as Lyle MeCann’s contribution is one in 34 billion. The probability ofa random ‘ndividual 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 ea, the tissue, and the centre console arm rest, and did not apparently challenge the matchesto the MeCanns’ 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 bat, the SUV steering wheel, and the passenger seat. The Defence argues those results| ‘were inconclusive, as opined by Dr. Libby. I therefore focus my attention on these three items. Page: 37 conservative approach would have been to declare it, in my opinion, as inconclusive, That's what | ‘would have done, (193) think at this point itis helpful to tabulate the evidence to show why Dr. Libby's analysis is, ifanything, backwards. The data below is extracted from Exhibit 196, which is the tabulated Asta prepared and submitted by Dr. Libby in his criticism of the Crown's expert evidence. Thave taker a slightly different approach in how I have depicted Lyle MeCann and Mr. Vader's ‘genotype By noting down both alleles where an individual is homozygous fora certain allel, just to hep keep things straight Alle All alleles Lyle Mr. Alleles Mr. Vader's recovered from the | MeCann’s | Vader's | common | alleles not Boag’s hat genotype | genotype | between | located on Lyle the Boas's McCann | hat and Mr. Vader D3. 16,17 16,17 | 16,17 16,17 none |wa 16,17, 18 17,18 | 1616 | none none FGA 22, 24,25 22,24 | 24,25 4 none Amelogenin xy xY xy xy none ps 1B M415 13,15 Bo 13 sone pai 28,29,31232 | 28,29 | 312,32 one one pis 12, 16,17 1,16 | 1717 one none bs 1,13 nu 1,3 u none p13 1 a ni nu none 7 9,12 9,12 9,10 8 10 [196] Dr. Libby concluded “half the test failed to produce results”. Ths is wrong on several bases. [197] The frst is that it ignores the possibility of an individual being homozygous for a particalar allele. For example, from the table above, Mr. Vader is homozygous at three alleles: ‘VWA, DIB, 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. Ths is, of eourse, ‘scientifically wrong, but it isthe logical end point of Dr. Libby's approach to DNA analysis. Page: 39 reveal the profile which would be expected.” is wrong. Worse, its misleading to call this “disturbing”. A supposedly independent, objective expert here uses loaded language to reinforce 2 false conclusion [204] Now, what Dr. Libby i really saying is that i’ someone who had FGA alleles that are not 22 and 24 had contributed hs or her biological material tothe Boag’s hat mixed source location, then four DNA allele variations ought to have been observed, and there is “incompleteness of a ‘minot profile at that locus." But there is no “incompleteness of a minor profile” if Mr. Vader is the sesond souree, [208] Dr. Libby continues this approach withthe other “disturbing” and “toubling” so-called incomplete minor profiles: D8, DS, D13, [206] Dr. Libby makes the same type of statements again with these other alleles. For example, concerning the DS alleles detected: «= Again, at this site, Mr. Vader isa type 11 and a 13. The declared minor type is 4113. So, again, D1 is not accounted for. It could be accounted for in Mr. MeCann’s genotype, but not Mr. Vader's, Once more, observe the RCMP forensic DNA analysis detected the 11 length variation ofthe DS 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 forthe DS allele [207] Dr. Libby concludes: Counsel for Mr. Vater: Do you believe that there is support in the scientific ‘community for your opinion .. given what's rissing here? Dr. Libby: Yes, Ido. Yes... And it’s ~ IU eave i at that. [208] disagree and reject Dr. Libby's analysis in relation to the Boag’s hat. [209] ‘The Crown in eross-examination questioned Dr. Libby on why he was ignoring the fact that Lyle MeCann’s DNA profile overlapped with pars 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 isa possible explanation, oran explanation for those blanks, could that be because Mr. Vader does have common alleles with Lyle MeCana, and that because Lyle ‘MeCann 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 agree. That's what I indicted previously. There was a fair amount of overlap, yes. [210] However, Dr. Libby now discounted the possibilty of Ms. Vader's DNA being amplified ind deected, but combined with that of Lyle MeCann, He makes a curious distinction. A “hiddew'merged’ peak is irelevant because it is not a “declared minor allele Page: 41 b. ‘The SUV Steering Wheel [216] Mr. Vader disputes that his DNA js present on the McCann SUV steering wheel. Ms. ‘Skipper in her testimony said the likelihood ofa 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 inthe recovered DNA that are absent from Mr. Vader's DNA profile. That means tere is no DNA evidence to exclude Mr. Vader as a donor ofthe DNA. recovered from the steering wheel, The observed steering wheel STR allele set and Mr. Vader's profile are nota 100% match. Mr. Vader has two versions ofthe D3 allele, with shor tandem repeats of 9 and 10. Only one variant ofthe D3 allele was recovered from the steering wheel, with 2 length of 9. This means that Mr. Vader is a possible candidate source‘for the steerin ‘heel 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 MeCann were not the source ofall the DNA recovered from the steering wheel, either alone or in combination. There are DNA allele variations recovered from the stering wheel that do not exist in the MeCanns’ 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 ofthe 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 MeCann: 16,17 Marie MeCann: 15,16 [220] Ifthe 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 MeCann alone, since the recovered DNA hada 17 length D3 short tandem repeat region, ‘hile 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 forthe 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, DI, and DIB alleles. The D21 allele DNA recovered from the steering wheel however cannot have come from either ofthe MeCanns, and ‘only matches Mr. Vader: 'D21 alleles from the SUV steering wheel: 31.2, 32 Mr. Vader: 312,32 Lyle MeCann: 28,29 Marie MeCann: 29,30 Page: 43 [228] Returning tothe idea that the McCanns’ DNA may have complicated analysis ofthe steering wheel DNA, I am going to continue to review Ms, Skipper’s evidence on why she luded the DNA recovered from the SUV steering wheel originated ‘rom a single source. sue was explored in Ms. Skipper's cross-examination. Logically e alternative sources for DNA were the MeCanns, however I reject that possibilty. [229] The first is the evidence of Ms. Skipper. Her opinion was thatthe 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| ‘ucreseence detested by the DNA clestrophoresis 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 thatthe quantity of fluorescence indicated that the DNA source was homozygous for a D\allele of 16, Mr. Vader is homozygous 16 a that allele, while the MeCanns are not. That reinforces the proposition that the DNA located was only from Mr. Vader, and not one or both of the MeCanns. 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 DN. She also stressed that here the observed data indicated an adequate supply of stat DNA. {231] As for interpreting the relevance of smaller amounts of DNA observed of a certain Tength, she acknowledged that these small peaks are potentially elevantonly if they exceed a certain threshold fluarescence/DNA quantity. (Dr. Libby does not disagree with that) She iMlusrated by comparing a numberof different clectropherograms that show what occurs where there is an elevated background of DNA fragments, how the shape of peaks is relevant t0 identify actual amplified DNA products, and how to differentiate relevart 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 aud readily identified anifict. 232] 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 thatthe DNA from the steeting wheel came from a single source and not multiple individuals. [accept that evidence and her explanation ofthat. The logical inference then i thatthe fact that DNA alleles of similar size ‘might have potentially been donated by the MeCanns is simply irelevan: [233] The second basis fo rejecting the MeCanns asa contributor to the steeting wheel DNA is ‘2 mater of simple logic. By my count the two McCanns each possess meny allele variations not possessed by Mr. Vader: Lyle McCann -9 allele variations; and Marie McCann - 1 allele ‘varidions. The Defence theory thatthe steering whee! profile should be interpreted to indicate a ‘mixed source profile means that by some twist of luck nota single ofthese DNA alleles varitions carried by the MeCanns managed to make it tothe steering wheel and survive until Page: 45 3. Mr. Vader could have done something innocent, ike leaned into the MeCann SUV, sneezed, and that then spread his biological material and DNA into the vehicle Biological material could then be futher spread by other individuals who touch Mr. Vader's biolegical 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 McCann’ property, and that means I should not conclude Mr. Vader is substantially linked to that property 240] Thave already disposed ofthe first argument. What re Action could pace Mr. Vader's DNA were itwas 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 ths is # theoretically possible explanation, bt DNA is more likely tobe 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 @ “sncezee" 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, analegous 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 » 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 Treecived, 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 ofa review: [244] First, accept and prefer the evidence ofthe 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 fats to assist the Court. They illustrated their easoning \with examples: e.g. Ms. Skipper explained why care should be taken when evaluating smaller

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