f

'
Court of Queen's Bench of Alberta
Citation: R v Vader, 2016 ABQB 505

Date:
Docket: 130781800Q 1
Registry: Edmonton
Between:

Her Majesty the Queen

Crown
-and-

Travis Edward Vader

Accused

Reasons for Judgment

of the
Honourable Mr. Justice D.R.G. Thomas

Table of Contents
Introduction ............................................................................................................................. 5

I.

A.

Background ......................................................................................................................... 5

B.

The Case Against Mr. Vader .............................................................................................. 7

C.

Positions of the Parties ........................................................................................................ 8

I.

The Crown ....................................................................................................................... 8

2.

Mr. Vader ......................................................................................................................... 9

'

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II.

Law ....................................................................................................................................... 11
A.

Standard of Proof .............................................................................................................. 11

B.

Homicide, Murder, and Manslaughter .............................................................................. 11

).

Murder............................................................................................................................ 12

2.

First Degree Murder ....................................................................................................... 12

2.

Lesser and Included Offences ........................................................................................ 13

c.

Circumstantial Evidence ................................................................................................... 14

D. Disreputable .. Vetrovec" Witness Evidence ...................................................................... 15

111.

Review and Findings in Respect to Forensic Evidence .................................................... 17

A.

Forensic Evidence Recovered in the RCMP Investigation ............................................... 17

1.

Fingerprint Evidence ...................................................................................................... 17

2.

Firearms and Firearms Residue Evidence ...................................................................... 18

3.

Blood Location and Stain Pattern Analysis ................................................................... 18

4.

Carpet Analysis .............................................................................................................. 22

B.

DNA Evidence .................................................................................................................. 22

).

Overview of Forensic DNA Analysis ............................................................................ 22

2.

Crown Experts and Technical Witnesses ....................................................................... 27

3.

Defence Expert Evidence ............................................................................................... 28

4.

Crown Evidence ............................................................................................................. 34

5. The Risk and Probability of Environmental Contamination and Coincidental Transfer

of DNA ........................................................................................................................... 44

6.

Dr. Libby as an Expert Witness ..................................................................................... 45

7. Conclusions on DNA Evidence ..................................................................................... 46

C. Findings of Fact ................................................................................................................ 46

Preliminary Issue - W(D) Analysis of Vader's Exculpatory Statements .......................... 47

IV.
A.

Mr. Vader's Statements .................................................................................................... 47

B.

Relevant Law .................................................................................................................... 48

c.
V.

1.

Tf'(D) Procedure ............................................................................................................. 48

2.

Witness Credibility and Reliability ................................................................................ 48

fV(D) Steps One and T\vo ................................................................................................. 49

Additional Evidence .............................................................................................................. 50

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A.

Telecommunications Evidence - Overview ...................................................................... 51

B.

Cell Phone Location and Usage Data ............................................................................... 52

1.

Cell Phone Location Data .............................................................................................. 53

2.

Cell Phone Usage Data .................................................................................................. 60

3.

Other Telecommunications and Cell Phone Related Evidence ..................................... 61

B.

Mr. Vader' s Associates - Credibility and Reliability Reviews ........................................ 61

1.

David "Bandana Dave Olson ....................................................................................... 62

2.

Myles Ingersoll .............................................................................................................. 66

3.

Amber Williams ............................................................................................................. 69

4.

Andrea Saddleback-Sexsmith ........................................................................................ 71

5.

Sheri Lynn Campbell ..................................................................................................... 74

6.

Donald Bulmer............................................................................................................... 76

7.

Bobbi-Jo Vader .............................................................................................................. 79

8.

William James Nikolyuk ................................................................................................ 81

c.

Review of Other Witnesses and Some Relevant Items ..................................................... 83

1.

F350 Witnesses .............................................................................................................. 83

2.

The Klohn Truck ............................................................................................................ 85

3.

Boxer Beer ..................................................................................................................... 85

4.

Incidental Witnesses ...................................................................................................... 85

5.

Defence Witnesses at the Minnow Lake and Wolf Lake Campgrounds on July 4/5,
2010................................................................................................................................ 87

6.

Defence Evidence on Mr. Vader's Activities in July 2010 ........................................... 89

7.

Tanja Radovanovic ........................................................................................................ 91

8.

Defence Motor Vehicle Damage Witness ...................................................................... 91

D.

Mr. Vader's Links to the McCanns and Stolen Property .................................................. 92

I.

Who Is t"? .................................................................................................................... 92

2.

Did Olson and Ingersoll Observe Travis Vader in the McCann SUV on July 3, 20 IO? 98

3.

Was the F350 Found with the McCann SUV Key Operated by Mr. Vader? ................. 98

4.

Did Mr. Vader Burn the Klohn Truck? .......................................................................... 99

E.

Cell Phone Information - Statements for the Truth of Their Contents ........................... I 00
1.

Mr. Vader's Use of the Bulmer Cell Phone ................................................................. 102

2.

Drug Use by Mr. Vader ............................................................................................... 104

3.

Mr. Vader's Circumstances in the Period Around July 3, 2010 .................................. 105

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4.

Mr. Vader's Illegal Activities ...................................................................................... 105

F.

Disreputable Character Evidence I Similar Fact Evidence ............................................. 105

G.

Defence Theories ............................................................................................................ I08

I.

McColman is the Killer ................................................................................................ I08

2. Bandana Dave Olson, Mastermind .............................................................................. 111

3. The Planted Hyundai Key ............................................................................................ 112

H.

4.

The Steffler Alibi ......................................................................................................... 113

5.

..Tunnel Vision", RCMP Conspiracy, and Vendetta ................................................... 113

Post-Offence Conduct ..................................................................................................... 113

VI.

Findings of Fact .............................................................................................................. 114

VII.

Analysis ........................................................................................................................... 119

A.

Issue #1 -Are the McCanns Dead? ................................................................................. I 19

B.

Issue #2 - Did Vader have a Motive to Target the McCanns for Illegal Purposes? ....... 120

c.

Issue #3 - Was Mr. Vader Involved With the McCanns' Property? ............................... 121

D.

Issue #4 - Were the McCanns Victims of Violence? ...................................................... 123

E.
F.

Mr. Vader Committed Homicide .................................................................................... 124

G.

Second Degree Murder or Manslaughter? ...................................................................... 126

VII.

First Degree Murder ........................................................................................................ 124

Conclusion ...................................................................................................................... 127

Appendix A - Admission of Text Message Communications Attributed to Mr. Vader under

Charter, s 24(2) ........................................................................................................................... 128
I.

Introduction ......................................................................................................................... 128

II.

Charier, s 24(2) ................................................................................................................... 128

A.

Seriousness of the State Misconduct. .............................................................................. 129

B.

Impact on the Interests of the Accused ........................................................................... 129

C.

Adjudication on the Merits ............................................................................................. 130

D.

Conclusion ...................................................................................................................... 130

Appendix B - Pre-Judgment Court Decisions ............................................................................. 131

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I.

Introduction

[1]
On July 3, 2010 Lyle and Marie McCann [the 'McCanns"] left their home in Saint Albert
on a road trip to Cultus Lake in British Columbia where they were going to holiday. The
McCanns travelled in a large Class A recreational vehicle [the 'RV"] which towed a Hyundai
Tucson SUV [the "SUV" or "McCann SUV'l The McCanns had arranged to meet with their
daughter Trudy Marie Holder ['"Ms. Holder] and her daughter who were flying to Abbottsford on
July 10. The four family members were then going to travel in the RV to Cultus Lake.
[2]
The McCanns never arrived. This was the first inkling to their family that something had
gone awry. Their failure to appear at the Abbottsford airport was very unusual. Ms. Holder
immediately reported to the RCMP that her parents were missing.
[3]
The McCanns were never seen again, dead or alive; however in the weeks that followed
the discovery of evidence linked to them began to emerge. The first item was their RV on fire
near Minnow Lake, south east of Edson. Their SUV was found at an abandoned farm near the
intersection of Highway 16 and Range Road 144(W5M). On July 3, the Mccann cell phone was
used to communicate with persons unknown to the McCanns. Forensic investigators located
blood from the McCanns on objects found inside the SUV. A hat worn by Lyle McCann was
found in the SUV with a bullet hole and his blood on it. This is all circumstantial evidence.
[4]
The RCMP investigation commenced on July 10 and soon focussed on one individual:
Travis Edward Vader [""Mr. Vader" or ';Travis Vader]. He told the police he had nothing to do
with the McCanns. This decision is to determine whether that is true or not, and whether the
Crown has proven beyond a reasonable doubt that Mr. Vader killed the McCanns and is guilty of
first degree murder (Criminal Code, RSC 1985, c C-46, s 231).

A.

Background

[5]
Aspects of the background leading up to the disappearance of the McCanns are not in
dispute. A number of the McCanns' relatives (Ms. Holder, Bretton Mccann, Mary-Ann
McCann, and Alice Chalmers) and a friend and neighbour (Margaret Ann Muffitt
["Ms. Muffitt"]) testified as to the McCanns' travel practices and their July 2010 plans. I
previously issued a voir dire decision that admitted the hearsay evidence components of the three
relatives' testimony: R v Vader, 2016 ABQB 301, [2016] AJ No 579. I also accept the nonhearsay evidence of these witnesses, and Ms. Muffitt' s evidence on the general travel and
holiday practices of the McCanns.
[6]
The reliability of that evidence was challenged by the Defence; however I conclude that
the criticism of these witnesses has no merit given their familiarity with the subject matter.
Similarly, the Defence argued that I should consider potential alternative paths of travel,
destinations, and so on, as potential and relevant alternative theories of what the McCanns did. 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.

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2.

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

3.

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

4.

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

5.

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

6.

The McCanns were observed in pre-trip preparations on July 2, 2010. Bretton

Mccann gave his parents a gift that they were going to take to his grandson. The
McCanns indicated their plan was to leave on the morning of July 3, 2010, and
their aim was to reach Blue River, British Columbia as their first day objective.
Their next identified checkpoint was the July I 0 Abbottsford rendezvous.
Ultimately they were to arrive at Cultus Lake.

7.

The McCanns had made reservations at the Holiday Park Resort in Kelowna for
July 5-8, and Cultus Lake for July 8-22, 20IO.

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 ..SamsonRoader property") adjacent to the south side of Highway 16. This unoccupied farmstead had
been broken into, disturbed, and vandalized sometimes between the fall of 2009 and July 2010.

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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 haC],
while the other had a logo and text for Boag's Draught [the ..Boags hat"]. The Boags 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 oflocations 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.
[18]

The Case Against Mr. Vader

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

Count 1:

On or about the 3rd day of July, 20 I 0, 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.

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[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.

[2 I] 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.
l.

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 I 0:00 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 McKayCrosswell [..Ms. McKay"' or "Esther McKay"] where Mr. Vader met with his sister Bobbi-Jo
Vader, another ex-girlfriend Andrea Sexsmith, and Esther McKay. Mr. Vader was again driving
the F350, had groceries consistent with the McCanns' Superstore purchases, and firearms.
Witnesses described Mr. Vader as thin and stressed. He was 'on the run'.

..
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[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 suvs 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 Boags 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 bloodcontaminated objects were subsequently placed in the SUV.
[30] Cell phone records, text message information, and witness evidence clearly established
that Mr. Vader was using the McCann phone on July 3 at 14:14 onwards. Mr. Vader then
continued his attempts to communicate with Ms. Williams using his own phone after he obtained
subscription time via Mr. Olson. This was part of a larger pattern of communications attempts by
Mr. Vader directed to Ms. Williams. Earlier on July 3 he had used David Olson's landline in an
attempt to call Ms. Williams.
(31] Mr. Vader had a criminal motive that brought him into contact with the McCanns: theft.
His post-offense conduct was to conceal his criminal activity and an attempt to develop an alibi.
That is evidence of guilt. The Crown also argues that the Court may draw an inference of guilt
from Mr. Vader's control of the McCanns' recently stolen possessions (R v Kow/yk, [1988] 2
SCR 59, 86 NR 195), and that a voluntary statement where an accused person does not respond
to incriminating evidence has probative value: R v Omi11ayak, 2010 ABCA 152 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 Gra11di11etti, 2005 SCC 5 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 Gree11(1987),36 CCC (3d) 137, [1987] AJ No 561 (Alta CA).

2.

Mr. Vader

(33] Counsel for Mr. Vader made written and oral submissions. They have a central theme:
that the Crown's case lacks substance and instead is based on hypothesis, speculation, and
conjecture. Counsel for Mr. Vader framed this argument by reference to a 1980s hamburger
advertising campaign, asking '"Wheres 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

'

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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 Jot like Mr.
Ingersoll and Mr. Olson... Mr. Olson is a particular target for criticism. He fabricated evidence
against Mr. Vader in response to Mr. Vader impeding access to Mr. Olson's target of affection,
Sheri Lynn Campbell. The Defence concludes that Mr. Olson's evidence was purchased,. by the
RCMP, selected, and rehearsed, and should not be accepted. Similarly, Mr. Ingersoll's evidence
..screams of RCMP and media influence". Mr. Vader argues that Mr. Ingersoll was under the
influence of drugs while he testified in court.
[3 7] As for the forensic evidence, Mr. Vader denies using a cell phone that was purchased by
Andrea Sexsmith, and in any case argues cell phone tower location data is less precise than the
Crown claims. While the Defence admits Mr. Vader's DNA was located in the SUV, it notes the
risks of contamination and transfer, and argues certain attempted matches between biological
samples and Mr. Vader should be classified as inconclusive. Low starting amounts of DNA,
procedural artifacts, and the "highly subjective nature of the interpretation of 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
Boags 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 McCanns 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 Sa11cllez, 2012 BCCA 469, 99 CR (6th)
180 indicates evidence must confirm who sent communications, and here that kind of data is
absent.
[40) Any vehicle identifications are subject to potential confusion. In particular, many
vehicles in Alberta generally resemble the truck witnesses described Mr. Vader as driving.
Counsel for Mr. Vader argues that the keys to the McCann SUV that were found in the F350
were manufactured and planted by the RCMP:

'

Page: 11
... The RCMP not only had the opportunity to plant the SUV key in the truck but,
at that time, they also had the means (i.e. the SUV had been in their possession for
one month now and keys could have easily been cut) and a strong motive to tie
the vehicle 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.

JI.

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 Life/ms, [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 at para 13, 584 AR 294 the Court of Appeal framed this rule as:
... Individual items of evidence, however, are not to be weighed by the criminal
standard. At the fact-finding stage, evidence must, individually, meet the test of
proof on a balance of probabilities ...
This includes even highly incriminating evidence, such as post-offence conduct: R v White,
[1998] 2 SCR 72 at para 72, 161 DLR (4th) 590.

B.

Homicide, Murder, and Manslaughter

[46] Criminal Code, s 222 defines "homicide" as where a person directly or indirectly causes
the death of another person by any means. A culpable homicide that draws criminal sanction is
one where the death is caused by an unlawful act, criminal negligence, by threats or deception,
and frightening: Criminal Code, s 222(5). Culpable homicides are either murder, manslaughter,

Page: 12
or infanticide: Criminal Code, s 222(4). Here, infanticide is irrelevant. A culpable homicide that
is not a murder is manslaughter: Criminal Code, s 234.

l.
[47)

Murder

Murder is defined by Criminal Code, s 229:

229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his
death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being 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
hann 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.

'

Page: 13

(5) Irrespective of whether a murder is planned and deliberate on the part of any
person, murder is first degree murder in respect of a person when the death is
caused by that person while committing or attempting to commit an offence under
one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or
causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or

(t) section 279.1 (hostage taking).

[52]
A ..planned" murder is one that 'was conceived and carefully thought out": R v Nygaard,
[ 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 T11r11illgrobe, 2007 ABCA
236 at paras 11 , 135, 296 DLR (4th) 434, dissent confirmed en toto 2008 SCC 17, [2008] 1 SCR
454.
[53] A 'deliberate" murder is one that is 'considered, not impulsive'' (R v More, [1963] SCR
522 at 534, 41 DLR (2d) 380). A deliberate murder is when a person "thinks about the
consequences," and carefully thinks out the act, rather than proceeding hastily, rashly or
impulsively: R v Jacquard, [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 Gree11.
(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 Mitc/1ell, [1964] SCR 471 at 82, 46
DLR (2d) 384; R v Griffe11, 2009 SCC 28, [2009] 2 SCR 42 at para 33. The finder of fact is not
entitled to rely on irrational or unreasonable inferences drawn from the circumstantial evidence
as a whole to convict or acquit: R v Griffi11, 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,

..
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[57]

2.

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

3.

did death ensue as a result?

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

C.

Circumstantial Evidence

[58] The parties agree this case is one that relies solely on circumstantial evidence. When the
Crown's case is based solely on circumstantial evidence, then an accused may only be found
guilty where the only reasonable explanation that may be drawn from the evidence is that the
accused perpetrated the offence.
[59)
While the exact language used to describe the legal test for proof via circumstantial
evidence has undergone some evolution over time, the modem Canadian form of this principle is
provided in R v Griffi11, 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 Villaroma11, 2016 SCC 33 has
confirmed this threshold. Justice Cromwell (at para 32) indicates that "reasonable inference' is
preferable over rational inference.., but that both are valid ways to express 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
Clti11, 2014 ABCA 11 at para 42, 566 AR 288; see also R v Villaroma11, at para 37), nor is a
..possible' alternative inference necessarily reasonable and rational (R v Dip11aril1e, 2014 ABCA
328 at para 24, 584 AR 138; R v Vi/laroma11, at para 37).

Page: 15
[64] A related issue is the question of opportunity. Some cases have revolved on whether an
accused is the only individual who had an '"exclusive opportunity" to commit an offense: R v
lmirc/1, [ 1978) 1 SCR 622, 75 DLR (3d) 243. If circumstantial evidence establishes that the only
rational inference is that only one person has the opportunity to commit an offence, then
logically that person must have committed the offense. In R v Yebes, [ 1987] 2 SCR I 68 at I 88189, 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, [I 979] 2 SCR 821, 98 DLR (3d) I I I 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:
l) 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) 1 SCR 8 I 1 at 825, 830-831, 136 DLR (3d) 89, Dickson J (as he then was)
explained there is a danger of finding guilt based on the evidence received from a witness whose

Page: 16
evidence might be suspect because that person is an accomplice or a person ... of disreputable
character.
[68] The solution to the risk of"'Vetrovec witness'" evidence is a warning to seek
corroboration. When Vetrovec witness evidence is central to the Crown's case then its
confidence may be supported by confirmatory evidence: R v Kell/er, 2004 SCC I I at paras 1920, [2004] I SCR 328. Consistent statements of a Vetrovec witness are not independent and
corroborating confirmatory evidence: R v Co11t11re, 2007 SCC 28 at para 83, [2007] 2 SCR 517.
[69] R v C/1a11dra, 2005 ABCA 186 at para 10, 367 AR 290 expands on the rationale behind
the Vetrovec witness rule:
... the warning will be required where the evidence of the witness is central to the
Crown's case and the credibility issues are major. 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, 2011ONCA526 at paras 63-66, 281OAC235 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 confirmatorv. evidence must

..
Page: 17
comfort the trier of fact that the Vetrovec witness is telling the truth in that regard
before convicting on the basis of the Vetrovec witness' 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:

Ill.

1.

where confirmed by independent evidence, or

2.

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

Review and Findings in Respect to Forensic Evidence

[72] 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:
I.

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

2.

fingerprint evidence,

3.

blood located on certain objects and areas, and

4.

forensic DNA analysis from potentially relevant items.

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

I.

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

.. .

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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 J 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 Boags hat occurred sometime on or after July 3, 2010. I reach this conclusion on several
bases. First, it is incongruous that a couple such as the McCanns, who are described as being neat
and precise, would choose to wear clothing with bullet holes in them. The Defence has advanced
a fanciful alternative that the damage to the Boag's hat was caused by the McCanns themselves
using the hat, presumably at close range given the firearms residue, as a target for a small calibre
pistol. This is very strange and an unlikely fate for the very headgear being worn by Lyle
McCann in the Superstore before their disappearance.
[83] Instead I conclude that it was not the McCanns who shot at and damaged the Boag's hat.
Someone else did that, and did so during the interval between July 3, 2010 and when the SUV
was recovered.

3.
[84]

Blood Location and Stain Pattern Analysis

Blood was located at a number of locations and objects:

on the Boag' s hat.

on the Superstore No Name Cans, and

in the interior of the McCann SUV.

Page: 19
[85] Several RCMP forensic investigators, Linda Rhodenizer, Pamela Marie Lilly, and
Heather Janssens gave evidence on how potential blood stains were identified and the tests that
were 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.

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(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:
I.

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 Boags 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-

Page: 2l
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
Boags hat and the cans, had been recovered in a location that was not the one where those
objects had been initially exposed to blood. The absence of context meant both experts had to
acknowledge that while they may prefer a particular explanation for the observed blood staining,
that there are other alternative explanations. For example, a sneeze could have transferred
material to the cans.
[I 00] Neither expert could with any confidence explain the blood dilution. Some of the
potential alternatives are much more sinister than others. The larger stains on the Boag' s hat
could be caused by blood drops falling from above, or drops ejected into the air by an
uni denti tied mechanism.

[I 01] The Defence admits the two McCanns are the sources for blood on the No Name Cans
and the Boag's hat. I draw the following conclusions from the blood stain evidence: sometime on
or after July 3, 2010
I.

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

2.

blood from Lyle Mccann was both dropped on and sprayed across the top of the
Boag's hat.

[ 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.

Page:22
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.
[l 05] In its argument the Crown did not rely on the carpet expert evidence and I place no
weight on this information.
B.

DNA Evidence

[I 06] A major point of controversy in this trial was how to interpret forensic DNA evidence
developed by the Crown, and the implications of that data. Both parties entered expert evidence
on this subject.
[ 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. Vaders DNA was located on some of the McCanns' property.
but argued an accidental or innocent transfer of biological material can explain that. Beyond that,
Mr. Vader argues some alleged "matches are actually an inconclusive result.
[ 109] The theoretical and practical context of DNA forensics was not in dispute, but much
evidence was tendered by both parties to better explain the technical aspects of this subject. The
disagreement raises two questions:
1.

could contamination or innocent interactions account for the detection of Mr.

Vader's DNA in incriminating contexts, and

2.

what threshold of reliability and linkage is required before forensic DNA

evidence matches are probative.

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

1.

Overview of Forensic DNA Analysis

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

..

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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.

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[I 17] 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.
[ t 22] 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

[ t 23] The procedures used in forensic DNA analysis and specifically in this case are welldeveloped, understood, and follow standardized procedures with built-in safeguards. These
safeguards are necessary because forensic DNA analysis is very sensitive, and careless
manipulation of items may mean biological materials from one location, sample, or person
contaminate others. The Crown witnesses described many steps and processes used to minimize
these possibilities, such as using different rooms for known vs unknown samples, ' clean room

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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 semiautomated, but the investigators in this case had alternative manual procedures available, where
that was necessary or appropriate. For example, the hemastix procedure to test for blood inhibits
automatic DNA analysis, but not manual approaches.
[125) The first step in forensic DNA analysis is to isolate DNA from a source. A source can be
a sample from a person, such as a blood sample, a mouth swab, or body tissues. DNA can also be
collected from surfaces, from blood stains, from clothing, and generally most things that contact
a person. That is because humans continually shed their DNA in skin flakes, hairs, and body
fluids. These test sources can also be evaluated for fluorescence, which is a feature of some
biological materials, and for the presence of specific biological material types, such as blood and
semen. A variety of techniques exist to remove DNA from physical substrates and then
concentrate the DNA for analysis.
[126) Once DNA is isolated from a source it is amplified'. using a process called polymerase
chain reaction or PCR. .. Amplification" causes an increase in the amount of DNA by a copying
process. PCR is a procedure where sample DNA is mixed with other materials and then heated
and cooled repeatedly. This results in an enzymatic chain reaction that causes certain areas of
DNA to be copied. The parts of DNA which are amplified is determined by the PCR primers
present in the reaction mixture. This copying process is exponential, doubling the number of
pieces of the amplified DNA at each cycle. For forensic DNA analysis the PCR mixtures are
designed to amplify only the chromosome areas that contain variable length STR alleles. The
result is after many heating and cooling cycles the amplified DNA makes up the vast majority of
the end product. The mixture of molecules used in a PCR reaction also causes the amplified
products to have different fluorescent labels attached to the product DNA pieces. These
fluorescent labels glow a certain colour when illuminated by a laser, and the glow can be
measured to (indirectly) determine how much DNA is present.
[127) The DNA produced by the PCR amplification process is then placed in a capillary
electrophoresis apparatus that separates DNA pieces by size via passing those DNA molecules
through a capillary, a very 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 I 9 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 doubleedged sword. On the one hand it permits analysis of very small starting quantities of DNA. That
means even small or damaged biological samples can potentially produce a full allele size

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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

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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.
[I 40] 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.
[ 14 I] 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

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Robitaille, Mandeep Kahlon, Brett Stefura, Pamela Lilly, and Healther Maria Janssens. These
witnesses described their sampling and manipulation of items seized in the investigation of the
McCanns disappearance. Their evidence and explanations were not challenged.
[146] Mr. Vader made an application on April 5, 2016 that I order the Crown call two
witnesses, Dr. Amarjit Chahal and Curtis Hildebrandt, both who were employees of a private
DNA forensic laboratory that processed a number of hair samples recovered during the RCMP
investigation. I refused the Defence application (R v Vader, 2016 ABQB 405) on the basis that
the Court has a restricted authority to intrude into how the Crown makes and argues its case,
particularly in light of the fact the analyses in question had not provided any results. Put another
way, evidence of nothing is nothing, and it follows that the Crown did not impede or affect the
Defence by not calling witnesses who had nothing relevant to say.
[ 147] That said, I did leave it open for the Crown to enter that evidence and the Defence to call
these witnesses, if they wished.

3.

Defcncc 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

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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 Mo/1a11,
[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 infonnation 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 Mo/1a11, at paras 21-25. If
a judge or jury can fonn 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. Gennain J in
1159465 Alberta Ltd v Adwood Ma11ufact11ril1g Ltd., 2010 ABQB 133 at para 2.13, 25 Alta LR
(5th) 237, affirmed 2011 ABCA 259, 51 Alta LR (5th) 352 described an expert as being.; ... less
a 'witness for a party' than a 'witness for the court'". I agree with this distinction.
[ 157] Natio11al Justice Co111pa11ia Naviera S.A. v Pr11de11tial Ass11ra11ce Co. Ltd. ("Tiie
Ikaria11 Reefer'~, [1993] 2 Lloyd's LR 68 (QB) at 81 ["Ikaria11 Reefer"] lays out the duties and
responsibilities of an expert witness:
l . 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.

Page: 30
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 Ikaria11 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 130891062Ql (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 ..doesnt 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 u[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

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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. 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 ifs from 50 or 500.

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[ 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 A wer. 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.

[ l 71] Still later yet, Dr. Libby makes a circular observation that the amount of postamplification DNA is reflected in the height of peaks observed on an electropherogram,
indicating a correlation between DNA quantity and peak height:
Counsel for Mr. Vader:

And does the issue of the nanogram become an

issue at all?

Dr. Libby:

Well, the amount of DNA that you have influences

the peak height, so there's sort of a correlation
there, if you will, between the amount of DNA and
the peak height.

[172] Dr. Libby was questioned at length by counsel for Mr. Vader concerning the uncertainty
involved in forensic DNA analysis. Dr. Libby endorsed statements such as the quantity of DNA
located in a sample cannot indicate the kind of the biological material which was the source for
that DNA. whether the biological material and DNA was deposited directly or indirectly, by
repeated or a single contact, by an earlier or subsequent individual in sequence of contacts, that
the quality of DNA recovered does not identify the mechanism for deposition of the biological
material. and that forensic DNA evidence itself cannot be reliably used to identify how DNA
found its way to a location.
[173] Dr. Libby did not relate any of this to the Crown's case against Mr. Vader. This leaves
the same logical gap that emerged in the R 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, 1t' s complicated.'' The defect with an 1t'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. Al 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:

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And then after you've done that, you really don't know when you have a mixture
of25 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 I 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 A wer, 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 I 00% 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.

"

Page: 34
[ 180] Dr. Libby did identify certain additional procedures that he opined might have provided
additional information, such as mitochondrial DNA testing, and he also suggested certain
procedures could be repeated to see if consistent results were obtained. That, however, is
irrelevant to the potential validity and probative value of the data produced by RCMP
investigators and entered as evidence here.
[ 18 l] 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 Crowns 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, ifthe
search locations were antiseptically sealed or contained environments, then a single hair from an

'

t.

Page: 35
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
Boags hat, the SUV steering wheel, and the passenger seat. The Defence argues those results
were inconclusive, as opined by Dr. Libby. I therefore focus my attention on these three items.

..

Page:36

a.

The Boag's Hat

[191] Ms. Mohrbutter indicated the mixed sample of blood from the Boags 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 McCanns 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 McCanns
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 ifs -- 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 ifs 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

Page:37
conservative approach would have been to declare
it, in my opinion, as inconclusive. Thaf 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. Vaders
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

16, 17

16, 17

16, 17

16, I 7

none

vWA

16, 17' 18

17, 18

16, 16

none

none

FGA

22,24, 25

22, 24

24,25

24

none

XY

XY

XY

XY

none

08

13, 14, 15

13, 15

13, 14

13

none

021

28, 29, 31.2 32

28,29

31.2, 32

none

none

D18

12, 16, 17

12, 16

17, 17

none

none

05

11, 13

11, 11

11 , 13

11

none

Dl3

11

11, 11

11, 11

11 , 11

none

D7

9, 12

9, 12

9, 10

10

03

Amelogenin

Mr.
Vader's
genotype

Alleles
common
between
Lyle
McCann
and Mr.
Vader

Mr. Vader's
alleles not
located on
the Boag's
hat

[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, 018, and 013. 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.

Page: 38
Anytime there are less than a full complement of potential different alleles that means an
analysis has "failed to produce results".
[l 98) But the larger issue is that Mr. Vader and Lyle McCann share a certain number of
common alleles. That means that ifthere is a mixed sample of Mr. Vader and Lyle McCann's
blood on the Boags 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 McCanns
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, ifs not conclusive.
[201] Dr. Libby has agreed that Lyle McCann' s DNA was located on the sample. Lyle
McCanns 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 doesnt 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.
Vaders DNA is present with what Dr. Libby acknowledges is Lyle McCann' s blood, then the
expected alleles one would detect from the FGA locus are 22 (McCann), 24 (McCann), 24
(Vader), and 25 (Vader). That is precisely what was observed. Dr. Libby's claim ..It does not

Page:39
reveal the profile which would be expected.'. is wrong. Worse, it is misleading to call this
"disturbing. A supposedly independent, objective expert here uses loaded language to reinforce
a false conclusion.
[204] Now, what Dr. Libby is really saying is that if someone who had FGA alleles that are not
22 and 24 had contributed his or her biological material to the Boag's hat mixed source location,
then four DNA allele variations ought to have been observed, and there is '"incompleteness of a
minor profile at that locus." But there is no incompleteness of a minor profile" if Mr. Vader is
the second source.
(205] Dr. Libby continues this approach with the other ""disturbing" and troubling'' so-called
incomplete minor profiles: D8, DS, D 13,
[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, DI I is not accounted for. It could be accounted for in Mr.
McCanns 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 DS 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'':

'

'

Page:40
... you know, there is not a declared minor allele at those positions. Now, there is
overlap between the two, sure. But still the total number of loci examined, which
was 9 in this case, as opposed to what produced results, in my opinion, is not
sufficient enough to declare that there' s a match.
[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 Boags 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 I 0 variant for the 07 allele that is
carried by Mr. Vader is not present in the results obtained by the RCMP investigators.
[213) Flipping that analysis into a different context, how much of Mr. Vader's DNA profile
was present in the mixed sample? 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 Boags hat. That is a conservative calculation - appropriately - but the
Court can simply engage in an exercise in logic, too. The data speaks for itself. Mr. Vader's
DNA was recovered as the minor profile of the Boag's hat mixed blood sample.

Page:41

b.

The SUV Steering Wheel

[216] Mr. Vader disputes that his DNA is present on the McCann SUV steering wheel. Ms.
Skipper in her testimony said the likelihood of a random individual having contributed the DNA
that was detected on the steering wheel as being 7.4 billion to one.
[217] When one compares the DNA recovered from the steering wheel to Mr. Vader's DNA
there are no allele variations present in the recovered DNA that are absent from Mr. Vader's
DNA profile. That means there is no DNA evidence to exclude Mr. Vader as a donor of the DNA
recovered from the steering wheel. The observed steering wheel STR allele set and Mr. Vader's
profile are not a 100% match. Mr. Vader has two versions of the D3 allele, with short tandem
repeats of9 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 DJ 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, Dl8, D5, D13, and Dl8 alleles. The D21 allele DNA
recovered from the steering wheel however cannot have come from either of the McCanns, and
only matches Mr. Vader:
021 alleles from the SUV steering wheel:

31.2, 32

Mr. Vader:

31.2, 32

Lyle McCann:

28,29

Marie Mccann:

29, 30

..
Page:42
[222] The 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
McCanns 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 analysfs 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 -- theyre below the
analytical threshold, it does not mean that they' re
not -- it's actually not DNA, but they' re below
there, but it's hard to assign a particular value to it
when they're outside the range in which one can
declare a peak.

Counsel for Mr. Vader:

Which in the end result leads to an inconclusive

conclusion?

Dr. Libby:

It does. It does. It does.

[227] I believe it is fair to summarize Dr. Libby's opinion that even though the .. overall profile
appears to be consistent with Mr. Vader ...", the match should be rejected as inconclusive on the
basis of DNA PCR products detected in quantities that are too low to be meaningful results or
subjects of analysis. I reject that conclusion. Reduced to its core, Dr. Libby' s opinion is that a
match is inconclusive on the basis of background noise and artifacts that cannot be scientifically
evaluated.

..

Page:43
[228] Returning to the idea that the McCanns' DNA may have complicated analysis of the
steering wheel DNA, 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 DJ 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.
[23 1] 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

. ..

Page:44
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 Crowns 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.
[236J 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, D 18 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, D 18, and
D7. So if there had been data provided for that, or
which were interpretable, ifs 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:
I.

RCMP investigators created spurious positive results when they contaminated

evidence and substrates,

2.

DNA is readily spread, and detected even in very small amounts by modem
forensic DNA analysis procedures, and

..
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3.

Mr. Vader could have done something innocent, like leaned into the McCann
SUV, sneezed, and that then spread his biological material and DNA into the
vehicle.

Biological material could then be further spread by other individuals who touch Mr. Vader's
biological materials, and transfer those to other surfaces.
[239] Defence counsel argues these are possible innocent explanations for Mr. Vader's DNA
being linked to the McCanns' property, and that means I should not conclude Mr. Vader is
substantially linked to that property.
[240] I have already disposed of the first argument. What remains is whether some innocent
action could place Mr. Vader's DNA where it was found.
[241] The Defence focused much cross-examination on this point. For example, during crossexamination Ms. Skipper confirmed that DNA samples can be obtained from materials spread by
coughing and sneezing, but opined these sources are not an issue for in-lab contamination. Ms.
Skipper stressed this is a theoretically possible explanation, but DNA is more likely to be
recovered from a concentrated source, rather than an aerosol of mucus and/or saliva.
[242] The Defence then postulated that materials could be transferred from the sneezer' to a
sneezee' who then spreads the biological material further around the SUV interior. Ms. Skipper
observed that second and tertiary transfers result in less and less material being deposited,
analogous to how a dog with muddy paws leaves Jess and less mud over time and material is
deposited. This is a common-sense proposition also made by Justice Topolniski and confirmed
by the Court of Appeal in R v Awer at para 75.
6.

Dr. Libby as an Expert Witness

[243] Having completed my review of the forensic DNA evidence and the expert testimony that
I received, it is now appropriate to make some general comments on the weight I place on how
DNA forensic analysis evidence was interpreted and the conclusions advanced by the Crown and
Defence. This recaptures earlier statements, and is something of a review.
[244] First, I accept and prefer the evidence of the Crown forensic DNA analysis expert
witnesses. They were cautious and careful. While discussing a technical field they were helpful
in how they framed complex issues and facts to assist the Court. They illustrated their reasoning
with examples: e.g. Ms. Skipper explained why care should be taken when evaluating smaller
electropherogram peaks via comparisons with baseline fluorescence. Their evidence was helpful.
When asked to substantiate their opinions these experts referenced their lab records and recorded
data and explained their meaning and the reasoning used to build the opinion. They were careful
to identify unusual scenarios which may lead to unexpected or atypical results.
[245] I have previously commented on many issues I have identified in Dr. Libby's evidence.
These range from non-answers, what appear to be factual errors, and interpretation of the
unchallenged RCMP forensic DNA analysis data which uses loaded language and ignores the
obvious. even when this is pointed out in detail. Dr. Libby's evidence was nothing but .. there
might be another possibility", and yes. in life there are usually other possibilities. Some are more
likely than others. However, the standard demanded by Dr. Libby is not logical or reasonable,
and the fact he could not explain why his alternatives were plausible illustrates that very fact.

..

Page:46
[246] Dr. Libby was pennitted 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 Molla11 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 /karia11 Reefer obligations, could review the Boags hat mixed profile
data and not make a simple observation: Mr. Vader' s allele profile is present en 1010. except for
one allele. To instead announce 'half the test failed to produce results'' and say those gaps are
"disturbing" and ..troubling" can only be explained as an active attempt by the expert to mislead
the finder of fact. Dr. Libby re-framed his analysis in a manner that guides the finder of fact, me,
who depends on his expertise, down a blind alley and away from the core question on which he
was to assist: is that Mr. Vader's biological material on Lyle McCanns hat?
[248] I reject that Dr. Libby was a "witness for the court''. He was an advocate for Mr. Vader.
Dr. Libby was admitted as an expert, but did not conduct himself as an expert should. I do not
reach this conclusion lightly, but only after very careful review of Dr. Libby's testimony and in
light of his previous appearance in this Court. As I noted earlier, there is a pattern here.
[249] Dr. Libby was not an independent expert but instead acted as a hired gun for the Defence.
He was qualified as an expert but did not conduct himself in that role. I therefore place no weight
or value on his opinion evidence and his interpretation of whether Mr. Vader's DNA was
recovered from the McCann SUV and its contents.

7.

Conclusions on DNA Evidence

[250] In conclusion, I find that contamination was not an issue in this investigation. While
possible, there is no evidence to suggest cross-contamination of some fonn occurred.
[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;

..

Page:47

IV.

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.

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 didnt 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 you11 see the same shit I'm seeing:

" When that phone is being used ... rm 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?'.

..
Page:48

... 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] 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 V11radi11, 2013 SCC 38 at para 21, [2013] 2 SCR 639, citing R v CLY,
2008 SCC 2 at paras 6-8, [2008] 1 SCR 5. This is the "credibility contest" error that must be
avoided: R v JHS, 2008 SCC 30 at para 9, [2008) 2 SCR 152.

2.

Witness Credibility and Reliability

[261] An important but challenging aspect of a judge s work is evaluating witness credibility
and reliability. This is a multifactorial analysis, but one ultimately grounded in common sense
and human experience. In W/1ite v T/1e Kiltg, [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

Page:49
and powers of observation. judgment and memory- in a word, the
trustworthiness of their testimony, which may have depended very
largely on their demeanour in the witness box and their manner in
giving evidence ....
The foregoing is a general statement and does not purport to be exhaustive.
Eminent judges have from time to time indicated certain guides that have been of
the greatest assistance, but so far as I have been able to find there has never been
an effort made to indicate all the possible factors that might enter into the
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. Vaders DNA was recovered from the Boag's hat that also was the source for
multiple samples of Lyle McCann's DNA, and

Mr. Vader's DNA was recovered from the Vopak hat.

[265] The fact Mr. Vader is linked to the McCann SUV in this matter is in itself sufficient basis
for me to not believe Mr. Vader. I now move to the second step of the W(D) analysis. At this

..
Page: SO
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, l note this "DNA spreads everywhere position is a significant, if not surprising
departure from the broad application and acceptance of DNA forensic evidence as a definitive
mechanism to link persons to biological samples in criminal and other legal matters. Beyond
that, the possibility of chance biological material contamination being a relevant factor and
plausible innocent explanation decreases with each hit'. Here, it is not just one location and item
that was linked to Mr. Vader via DNA evidence. Instead, multiple items and locations are
involved. It would indeed be a mighty and uniquely targeted sneeze that spread biological
contamination to such a degree within the McCann SUV.
(269] Beyond that, there is Mr. Vader's fingerprint on the Boxer Beer can that also carried his
DNA. This means, at the very least, that Mr. Vader touched that can, and the can then. somehow.
found its way to the centre console of the McCann SUV, and then the sneeze aerosol also landed
on the can. Defence 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:

Page: SI

I.
Telecommunications evidence of the use and location of a number of phones.
including telephone calls and text messages. Mr. Vader is allegedly linked to a number of
these phones.
2.
Witnesses who have interacted with Mr. Vader or property associated with Mr.
Vader and the McCanns.
3.
Recorded conversations that involve Mr. Vader, including recordings of telephone
calls made while Mr. Vader was detained in Alberta remand centres, and jail cell'
recordings of Mr. Vader in conversation with a detainee who was cooperating with the
police investigation.
4.

Additional forensic and expert evidence.

[273) The underlying telecommunications data and records that were collected and entered as
evidence were the subject of several Defence voir dire applications that sought to limit or
exclude this infonnation as evidence. That led to several reported decisions: R v Vader, 2016
ABQB 287; R v Vader, 2016 ABQB 309. In the latter decision I admitted the disputed evidence,
but deferred an alternative analysis where that evidence might have been nevertheless admitted
under Charier, 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) and will
comment below on Ms. Vader's evidence and the weight to be assigned to it.

A.

Telecommunications Evidence - Ovenriew

[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:
I.

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 infonnation, on its own, is of limited relevance
unless it is linked to additional evidence that establishes the identity of the person who was the
actual operator of a particular device at a certain time. That evidence comes largely from
witnesses whose testimony I subsequently review.
[277] Last, the telephone and text message communications will be examined in detail to see
what patterns exist and inferences that may be drawn from those patterns. I will also consider
whether the 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

Page:52
as this where the Court is required to consider both whether certain telecommunications records
are accurate, and to what degree the speakers" are conveying information in an accurate and
reliable manner.
(278] However, before starting on this review I stress a key organizing fact. On July 3, 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 Crowns 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, 20 I 0 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
phones subscriber (Lyle McCann) was subsequently billed for activities on that device. Like
other telephone records, Ms. Strawson introduced evidence on when the McCann phone was

Page:53
used, the source and recipient telephone numbers or IP addresses, and the cell phone tower(s)
that were in use at the start and end of a telephone call. Ms. Strawson introduced the equivalent
infonnation for a number of other cell and regular telephones, as well as billing invoices,
including:

(780) 891-0283 - subscriber Dave Reed - prepaid account (there is uncontested evidence
this cell phone was operated by Amber Williams),

(780) 517-0976 - subscriber Donald Bulmer- prepaid account,

(780) 693-2453 - subscriber David Olson - landline,

(780) 517-0943 - subscriber Sheri Campbell - prepaid account,

(780) 999-2823 - subscriber Bobbi-Jo Vader - postpaid account,

(780) 289-7996 - subscriber Esther Croswell - postpaid account,

(780) 642-0258 - subscriber Esther Crosswell - landline.

[284] While Ms. Strawson made some statements on the interaction of cell phones and the
larger cell phone telecommunication system I put no weight on that evidence and instead prefer
infonnation that was provided by technical witnesses whose evidence I will summarize in due
course.

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
infonnation parallels that by Gennain Jin R v Didechko, 2016 ABQB 376, where he concluded
infonnation of this fonn is highly reliable. At para 59 he stated that " .. .the location of the towers,
the details of the various transmissions, and the timing of those transmissions is proven to
absolute certainty.' The question of where a particular cell phone is located is less certain (para
59), but overall the appropriate approach is an exercise of common sense (para 62):
... How certain are we that the device is near the towers involved depends on
common sense. It is highly likely that physically the nearest tower is also the
emitter of the strongest signal and that the device is near that tower, although
there can be and were exceptions.
[286] Cell phone tower tracking on its own may not provide a basis to draw a conclusion
beyond a reasonable doubt, but that infonnation combined with other reliable data is a powerful
basis to make findings of fact: para 83.
[287] In this case two Crown witnesses provided evidence on the potential implications and
inferences that I could draw from the data on how cell phones accessed communication towers.
Bruce Funk, a consultant testified, but I did not qualify him as an expert. His observations are
summarized below.
[288] Electrical engineer Mr. Giancarlo Pomponi was qualified as an expert on the capabilities
and operation of the Telus cell phone network in 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

Page: 54
deployment and upgrading of cell phone communications networks used by Telus and its
predecessors. He is the network design and planning engineer for the Edmonton market. He is
directly familiar with each of the cell phone towers that are involved in this case. Mr. Pomponi
explained how the placement of cell phone towers is a process that considers location options,
and anticipated usage loads. His education and knowledge is as much a consequence of decades
of working in this domain as his 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 repeaters
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 Maybeme cell phone tower is one that may operate at that
large a radius. Mr. Pomponi reviewed the locations and names of the other cell phone towers in
the Highway 16 area between Edmonton and Edson.
[293] On cross-examination Mr. Pomponi was asked about whether he was aware of any
privately operated repeater stations, and indicated he knew of none in the relevant area. Repeater
stations of that kind, however, have a very limited radius for accepting cell phone
communications that are then shunted to a parent' cell phone tower. Mr. Pomponi indicated a
maximum range of a few hundred meters and that's it.,. Mr. Pomponi was explicit in rejecting a
Defence counsel proposition that cell phone towers may potentially have a range of over 50 km.
[294] Mr. Pomponi also explained how cell phone call quality is principally a reflection of the
number of calls being directed through a particular cell phone tower, since those calls have to
share a spectrum channel. The issues of cell phone tower signal strength and noise are based on
the cell phone and tower' s interaction. However, unless the threshold of signal strength to signal
quality (noise) is met, cell phones always communicate with the geographically nearest cell
phone tower.

Page:55
[295] Signal strength is a constant over time, since it depends on geography and tower location.
Mr. Pomponi explained in detail how signal range can vary, but these are "slight variations, a
matter of meters, not kilometers.
[296] I accept Mr. Pomponi' s evidence entirely. He was a careful, methodical expert witness
who clarified points of confusion that may result from the manner questions were structured. He
made admissions in a reasonable and thoughtful manner, and where he could not provide more
infonnation 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.

Page:56
[303] This information was obtained by Mr. Funk in 2011 travelling to these locations, then
using a cell phone operating in a debug mode to connect to the strongest signal in that location.
Mr. Funk then matched the cell phone tower identification code with a Telus cell phone tower.
The results of these test calls were then plotted on maps along with the geographic location of
certain cell phone towers. These maps were entered as Exhibit 30.
[304] While I will not detail all of the information on these maps, there are several points that
are relevant to this case:

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 I 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 Crowns 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
Approximate
distance from
displacement
Edmonton in an north or south
east to west
off Highway 16
direction

Key locations in vicinity

Distance
from cell
tower to
location

AB1268

70km

Wabamun

Okm

Okm

Page: 57
Wabamun
I
AB0604

130 km

7 km south

Chip
Lake

MacKay

13 km

Bulmer residence

13km

Ford 350 stolen

16 km

Carrot Creek

30km

Klokn tmek stolen

F350 reeovered

PeefS

Peers One Stop

J.'.7-km

Olson residenee

;+km

MeCaRR SUV rece,ered

AB0588

146

km

4 km south

Carrot
Creek

AB0633
Pioneer

170 km

20 km north

J&-la:R

MinRew Lake caA'lpground

43-iafl

MeCaRA RV recovered

43-iafl

Klehn tFueli Femeins

(;8 lim

Carrot Creek

Okm

F350 recovered

8km

Klohn truck stolen

8km

F350 stolen

12 km

Peers

12 km

Peers One Stop

12 km

Olson residence

12 km

McCann SUV recovered

12 km

Bulmer residence

18 km

Mac Kay

18 km

Minnow Lake campground

30km

MeCenn RV FeeeYeFed

JI lim

etlseR

Klehn tFueli Femeins

ti81an

Peers

12 km

Peers One Stop

12 km

Page: 58

AB0759

214 km

35 km north

Mayberne

Olson Residence

12 km

F350 recovered

16 km

Klohn truck stolen

17 km

McCann SUV recovered

19 km

Carrot Creek

22 km

F350 stolen

30km

Edson

32 IUB

Mae Kay

Bulmer resideAce

MiRRew Lake campgreuAd

4+-km

McCaAR RV reee",rered

41-J.n:R

KlohR truek remaiRs

8-9-*m

Edson

37 km

Peers

Peers 0Ae Step

M*m

Olsoe resideece

M-*ffl

McCaRR SUV reeO"'ered

F3 50 reeoered

Klehn tR:lck stoleA

Carrot Creek

MiRROW Lake campgrouAd

McCaAA RV recovered

f350 stoleA

KlohA truck remaies

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.

Page: 59
(308] For the purposes of this trial the critical cell phone communications were made on July 3.
20 I 0. These occur in two clusters:
I.

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.
[31 O] 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 I Mayberne

July 3, 2010

18:38

780 642 0258

Pioneer I Maybeme

July 3, 2010

19:35

780 642 0258

Esther McKay
(landline)
Esther McKay
(landline}

July 3, 2010

22:25

780 819 0283

Amber Williams

Carrot Creek

July 5. 2010

12:40

780 642 0258

Esther McKay

Chip Lake

Carrot Creek

Page:60

July 5, 2010

12:48

780 642 0258

July 5, 2010

20:34

780 642 0258

(landline)
Esther McKay
(landline)
Esther McKay
(landline)

Chip Lake
Wabamun I

[314] On July 3 it appears the Sexsmith phone operator is moving from around Edson to the
Peers I Samson-Roader property I Wolf Lake Road area. Similarly, at 20:34 on July 5 the
Sexsmith phone is clearly relocating towards Edmonton from the Peers I Edson area.
(315] When Mr. Vader was arrested on July 19, 20 I 0 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, 20 I 0 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.

Page:61

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-Pins records and explained the businesss 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, 20 I 0 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.

Page:62
[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 telecommunicationsrelated 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. The Defence argues I should put less
weight on Mr. Olsons 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.

Page: 63

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 Olsons 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, 20 l 0. 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.

Page:64
(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. Vaders 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. Vaders 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 bum 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.

.
Page:65
[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. Olsons 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

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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. Olsons 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, 20 l 0, 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 Olsons residence in Peers, Alberta on July 3, 2010 in the McCann SUV. He also
corroborates Mr. Olsons 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

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Page:67
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, 20 l 0 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

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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. lngersoll"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, 20 I 0
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. lngersolrs
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. Vaders 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.
(3 75] 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

Page:69
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 fireanns 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 confinned some of his observations given in his
direct examination about the events which occurred on Mr. Vader' s second visit to Mr. Olsons
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.
[3 79] 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, 20 IO 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

[380J 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 J 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

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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, 20 l 0. 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.
Vaders counsel. She also resisted attempts by Defence counsel which suggested that Mr. Vader
never signed his text message communications as ..f' 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 Crowns 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, 20 I 0,
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) 8190283), 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, 20 I 0. She then

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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, 20 I 0.
[390] Ms. Williams identified a variety of texts as coming from Mr. Vader:
1.

Text messages received on the early morning of July 2, 20 I 0. These texts are
from the Bulmer phone and assist in restricting the time and duration of Mr.
Vaders 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 I I, 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 "C 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. Vaders
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

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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 (Croswetrs)
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

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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 (I'. x I''). 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

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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 I 0, 20 I 0, 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 Steffier 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?
(4 I I] 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. Steffier'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, 20 I 0. After several delays of more than five minutes to refresh her memory

Page:75
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 20 I 0. 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 1116, 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 I 0. 20 I 0
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, 20 IO
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 reexamination that .. da goods" she was referring to were "drugs" because ... you make money off
of if'. This example also illustrates her partiality, which was evident throughout her crossexamination 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.

Page: 76
[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. Campbelrs 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. Vaders texting style. While Ms.
Campbetr 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. Vaders 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,
20 I 0, 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.

Page:77

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-inchief. For example, he told the Crown that texts signed off as ..... 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 atlirmed 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.

Page: 78

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 reexamination.
[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 couldnt
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 1 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 f is Mr. McColman and not Mr. Vader. I
am not summarizing Mr. Bulmer's evidence in cross-examination, as it was largely contrived.

Page: 79

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 Jiving 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 'FJ5ff',

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 eCEA.')
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 Mi/gaard (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 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 confinn 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.

Witness Credibility and Reliability

(445] My assessment of Ms. Bobbi-Jo Vader's credibility is brief.

Page: 80
[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, II 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 UJ3, 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

Page:81
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.
[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 20 I0. 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 Crowns 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

Page:82
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 crossexamined 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,
20 I 0 to the RCMP investigators about the cell telephone numbers attributed to a cell phone
being used by Mr. Vader and also Mr. Vaders use of methamphetamine. On the cell phone issue
I found that Mr. Nikolyuk had been evasive but not inconsistent, and denied the Crowns
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 20 I 0, and also admitted that he got this drug from Mr.
Vaders 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. 20 l 0 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 20 I 0, 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, 20 I 0 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

Page: 83
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

[4 70] 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 ifhe 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.

Page: 84
[4 75] 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 transfor
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.
(4 78] 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
Goulefs 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, 20 IO, 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.

Page: 85

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 I l. 20 I 0. 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, 20 I 0 by David Olson at Peers
Liquors. RCMP Constable Jeffrey Mulroy seized receipt number 544 I 2, dated July 3, 20 I 0, 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,
l 0, 20 I 0 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 l 0.

Page: 86
[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 land line).
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 Zcrb 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: 1 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, 2011at12:14:01-12:22:15,

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, 2011at23:04:45-23:19:45.

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

Page: 87

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

Session number 138 - October 16, 2011at18:03:16-18:23:04.

[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 20:50:02-2 I: l 0:00.

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, 20 l 0, 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.
[50 l] 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

Page: 88
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. Grays 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 RolfWenaas was ultimately found burning nearthe Minnow Lake
campground the following day. However, the larger question is the status of the McCanns at that
time.

Page: 89
[509] I will conclude that Mr. Vader had by the afternoon of July 3, 20IO 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.
[51 O] 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, 20IO, is
that the McCanns vehicles were moved to the Minnow Lake campground on July 4, 20IO. 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, 20IO.

a.

Kimberley Leanne Steffler

[514] Ms. Kim Steffler, a friend of Ms. Campbell, testified that Mr. Vader visited Ms. Steffier'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, 20IO 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

Page:90
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. Steffiers 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.
Stefflers 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-homed 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

Page:91
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, 20 I 0.
(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: 1 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. Radavanovics 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. Radavanovics 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

Page: 92
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. Rays
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":

Page:93
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
Pis 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 pis it would be so nice to talk to you and see
you again pis get back to me im so lonely and miss you so
I love you with all my heart sweetheart pis talk to me
I cant say that on here where are you my love pis 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 pis
Come on sweetheart im back out here and I would love to see you my love pis
talk to me
[Im around and we cant be around each other. Its not safe. Your wanted pretty
bad.]
Baby pis and why Do they want me so bad
And my middle name in safe right now pis i miss you so much pis 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 pis 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 pis god amber I love you
[I just Dont think its good idea rite now]

Page:94
Amber pis my love
Call me or let me call you pis 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

Page: 95
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 ..fisC, 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 .. pis" 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.
[54 7] 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 Sanc/iez. 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 selfidentified as 'T" in the drug-using group that included Mr. Vader and Ms. Williams. The
borrowed gas note on Mr. Zerbs door was signed with r', and the Defence argues that ..r , 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 Sa11cllez for that proposition. That is wrong in law. In R v Sa11cllez the oflender was charged
with criminal harassment via sending text messages and making phone calls. Therefore, the
identity of the caller is an element of the Crowns 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.
f549] 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 ..fisC.
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

Page:96
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, 20 I 0 and attempts by
Mr. Vader to telephone Amber Williams from Mr. Olsons phone. and the
Sexsmith communication attempts.

5.

Last, the second text message is signed with '"its met". Arguably "t" is for Travis.

[550) This last point is disputed by the Defence, who instead argue that Mr. Vader never
identifies himself as c. 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: c 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 .. f'.
[551] I reject the McColman is ..C 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 c is for
..Terry,. vs ..Travis... She was certain Mr. Vader was the author of the ..C 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 ("'C). 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 selfidentifies as c. On July 18, 2010 the following text message exchange occurred between the
Bulmer telephone and Ms. Campbeirs cell phone:
Bulmer:

Hey how are you its t where are you?

Campbell:

OMG. Im atjohnnys... Are you ok .. The cops called me today ... So

be care full.. Pis. Pis.

Campbell:

Pis. Be care full..

Campbell:

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

Page:97
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 c, 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 c 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 ..f'. 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.

Page:98
[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. Olsons 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

Page:99
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 tum
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 IO, 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

..
Page: 100
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. 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. 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, I concluded the "truth of its contents' for the purposes ~fcell
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 I 1 of 2016 ABQB 287 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 C message I have concluded that 'f" is Travis Vader. Al 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 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:

Page: 101
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-ofcourt statement is offered for its truth, the inability to cross-examine or ..tesC the
source of the evidence in court under oath or solemn affinnation as to the truth of
the assertion undennines 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 affinnation 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
Moha11, [ 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
misinfonn and disinfonn.
[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, phannaceutical, monetary, or otherwise. For example, on July 3 Mr. Vader (via the
Sexsmith phone) texted Ms. Williams repeatedly about his Jove'', continuing until he received a
favourable response in return. Ms. Williams' replies are in square brackets:
Amber pis my love
Call me or let me call you pis 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 pis my love
[Just stay hidden till monday least. I'll be back then. I got family reunion rite
now.]
[Kjust give me a few here. I' ll get back to you.]
Amber promise me then pis cause i love you And with out love i don' t care
[I promise i'll call you in a bit]

Page: 102
Ok sweetheart just tell me that ou love me pis tell me something nice pis
[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... ls 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 r.
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 selfidentifies. 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.

Page: 103
Ya thats what i thought. Cant believe you. You actually
think im that dumb.
Bulmer to Williams: no pis foot let them hurt up more and when did i have the
time to do this fuck amber pis dont i did not and would not
do that to you pis
I have to go here right away can i see you pis i love you and have
been working and miss you so much sweetheart
Pis read your face book and pis let me come see you im getting on
the road like real soon so pis 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 pis 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 pis
amber williams talk to me pis 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 pis
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 pis let me see you pis
[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

Page: 104
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 pis

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 ifweare 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)

"Ifs 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 shiC are
reliable and have probative value given the Defence has disputed that Mr. Vader is a
methamphetamine drug user or addict.

Page: 105

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)

'[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 I 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.

Page: 106

Amber Williams confinns 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 drugdealing 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. Vaders
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

Page: 107
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. Vaders 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. 1 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 I 3, 20 I I 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 Ha11dy, 2002
SCC 56, [2002] 2 SCR 908), or the accused has put his or her character into issue (R v Morris,
[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 Ha11dy 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 Ha11dy 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 ~fingerprinC.
[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] l SCR 717 at 739, 107 NR 241 ; R v Carpenter (No 2) (l 982), 142 DLR (3d) 23 7,
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. Vaders 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

Page: 108
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

[6 t 2] 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.

I.

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 crossexamination about Mr. McColman who is now dead.
[614] The main McColman did iC witness was Mr. Nikolyuk. In cross-examination he was
asked about Mr. McColman, and described him as a life-Jong 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 fanns, 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.
[6 t 5] 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. McColmans
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?

Page: 109
A.

Thaf 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 rve seen him bum
a truck.

Q.

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

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 ajerry 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?

Page: 110
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 bum?

A.

Yes.

Q.

And this was a vehicle he didn 1 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 1010 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 ..r 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.

Page: 111
[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 r. 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-andnudge 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 c; ..f' 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. McColmans sending ..T" text messages and the ..r note concerning
borrowed gasoline posted on Mr. Zerb's door confirms Mr. McColman was ''C.
[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 Gra11dil1etti, evidence of the potential involvement of a thirdparty 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 Defences 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 pis. 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.

Page: 112
[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 Defences
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.

Page: 113

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 Olsons 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. Steffier'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.

S.

"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 W/1ite, [ 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

Page: 114
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. Vaders 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. Vaders 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. Vaders 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 wil I 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.

Page: 115
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)

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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

..LZ..;li - 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
Jandline 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.

Page: 117
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.

Page: 118

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, 20IO
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.

Page: 119

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 Dar/il1g v S1111 Life
Ass11ra11ce Co of Ca11ada, [1943] 1 DLR 316, [1943] OR 26 (Ont CA), Slteelty v Wi11cll Estate,
[1946] OJ No 346 (Ont H CJ) and S.N. Lederman el 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
pre:mmplion, not proof, and those are very different things. Second, the Crown is not obliged to

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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 McCannsNader 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

..
Page: 121
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. Olsons 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. 20 IO. 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] 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:
1 wasn't there and I didn' t do it:

Page: 122
[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 Ricller (1993), 141 AR 116. 82 CCC (3d)
385 (Alta CA), affirmed without comment [ 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
incidentar to the theft. This linkage was made in R v Ricller at paras 115-116 by Harradence JA
in dissent, who relied on Refere11ce RE R v Coffi11, [ 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 incidentar in a more restricted sense, as I believe did the Court of
Appeal in R v Hubler, 2013 ABCA 31; 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, 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 incidentar 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.

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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 tum, 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 tum 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 Boags 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 Boags 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
Bai11s ( 1985), 7 OAC 67, 13 WCB 434, leave denied [1985] SCCA No 158; R v McArtll11r,
2013 SKCA 139, 427 Sask R 180; R v B11g11et, 2014 ABQB 457, 155 WCB (2d) 323 affirmed
2016ABCA 178.
[672] I do not think these cases support the proposition advanced by the Crown, at least in these
circumstances. R v Bai11s 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

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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 McArtlt11r. 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. Vaders 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 1 must conclude that the Crown has proven beyond a reasonable doubt that either:
1.

the McCanns homicide was planned and deliberate (Criminal Code, s 23 J(2)), or

2.

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

a)

a sexual assault (Criminal Code. ss 23 l(S)(b-d)),

b)

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

c)

a hostage taking (Criminal Code, s 23 J(S)(f)).

_;

Page: 125
[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 Crowns 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 ifit was made after the violent
confrontation commenced .. :.
[681] The Crown cites R v Green, 1987 ABCA 135 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 Gree11 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 Gree11 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 T11r11ingrobe. 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 ouC (R v Nygaard), an act that was .. intentional", 'considered not impulsive..
(R v T11r11i11grobe). 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

Page: 126
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 Crowns 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.

"
Page: 127

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 7h, 8111 , 10111, 11 111, 14111 18111, 21 51 - 24111, 29111 - 31 ~days of March, the 15', 4th - 8111,
11 111 - 15th. 18 - 22"d, 25 111 - 29th days of April. the 2"d - 6111 , 9111 , 10111, 12111 , 13111 , 161"- 18111, 25 111 27'11 days of May, and the 22"d and 23rd days of June, 2016.
Dated at the City of Edmonton. Alberta this 15111 day of September, 2016.

/7

r--.!

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

IL

"
Page: 128

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:
I.

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. Vaders 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.

C/1arter, 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 Gra11t, 2009 SCC 32, [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 Jong-term, forward-looking and societal perspective..:
I.

the seriousness of the Charter-infringing state conduct,

Page: 129
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 Gra11t factor evaluates the misconduct that led to the Charter breach. The
courts should deter and denounce deliberate, calculated, infonned 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 Gra11t, 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 infonnation 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
Co1111111111icatio11s Co., 2013 SCC 16, [2013] 2 SCR 3 decision that indicated
f uture 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 infonnation. 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 Gra11t 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,
[2013] 3 SCR 657) here that potential expectation of privacy is attenuated by a number of
factors. First, text infonnation sent to another person's cell phone has, by its nature, been shared.
Second, any person who uses a modem computer or Internet service, or telecommunication
system must be aware that the private businesses which operate those systems may retain and use

..,
Page: 130
information for a range of diagnostic and systems tasks. That fact was recognized by Parliament,
which in Criminal Code, ss l 84(2){c) and l 84(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 Gra11t 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 at paras 115119, public confidence in the administration of justice favours a full and complete trial.
[709] Therefore, the third R v Gra11t factor favours admission of this evidence.

D.

Conclusion

[71 O] Balancing the three R v Gra11t 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.

,,.
Page: 131
Appendix B - Pre-Judgment Court Decisions
Neutral Citation

Nature of the Application

Result

Decision
Date

Date
Published

2016 ABQB 55

Stays of the trial for prosecutorial abuse

of process, and unreasonable trial delay.

Dismissed

January
26,2016

January
26,2016

2016 ABQB 228

Production of materials relating to Dismissed

David Olson and witness protection
measures.

April 13, April

2016
2016

29,

2016 ABQB 266

Admission of statements by Bobbi Jo Partially

Vader to the RCMP for the truth of their successful
contents.

May IO, May

2016
2016

12,

2016 ABQB 287

Admission of cell phone records for the Records

Sexsmith and Mccann phones.
admitted

May 12, June

2016
2106

7.

2016 ABQB 301

Admission of hearsay statements of the Hearsay

McCanns' holiday activities, as reported partially
by relatives and a neighbor.
admitted

May 25, June

2016
2016

6.

2016 ABQB 309

Exclusion of cell phone records as Dismissed

obtained without a telecommunications
intercept warrant.

May 5 &
27,2016

June
2016

9,

2016 ABQB 405

Require the Crown call Wamex DNA

forensic laboratory witnesses.

April 11, July

2016
2016

18,

Dismissed