Court of Queen's Bench of Alberta Citation: Rv Vader, 2016 ABQB 50S Date: Docket: 13078180091 Registry: Edmonton Between: Her Majesty the Queen Crown and = ‘Travis Edward Vader Accused Honourable Mr. Justice D.R.G. Thomas ‘Table of Contents L.neocucton. ‘ 5 A; Background sss : 5 B._ The Case Against Mr, Vader ? ©. Positions of the Parties. e 1. The Crown & 2. Me. Vader. 9Page:3 A. Telecommunications Evidence - Overview. B, Cell Phone Location ané Usage Data 1. Cell Phone Location Data 2. Cell Phone Usage Data 13. Other Telecommuniations and Cell Phone Related Evidence B. Mr. Vader's Associates ~ Credibility and Reliability Reviews. David “Bandana Dave" Olson. Myles Ingersoll “Amber Williams. Andres Saddleback Sexsmith. ‘Sheri Lynn Campbell Donald Bulmer. Bobbio Vader . William James Nikoly:k.. ia C._ Review of Other Witnesses and Some Relevant Items. F350 Witnesses The Klobn Truck Boxer Beer ee ee eee Incidental Witnesses 2010. Defence Evidence on Me. Vadr’s Activites in Jy 2010 Tanja Radovanovie 8, Defence Motor Vehicle Damage Witness. D. Mr. Vader's Links tothe MeCanns and Stolen Property 1 Who Is" Deence Witnesses the Mionow Lake and Wolf ake i Conpennis on July 4/5, st 32 3 © 6 6 @ 66 o 1 1% 16 ~ 81 8 8 85 85 a5 a7 89 1 9 92 2 2. Did Olson and Ingersoll Observe Travis Vader inthe McCann SUV on uly 3, 2010298 3. Was the F350 Found withthe McCann SUV Key Operated by Mr. Vader. 4. Did Mr. Vader Burn the Klobn Truck, E, Cell Phone Information -Statements forthe Truth of Their Contents 1, Mr, Vader's Use ofthe Bulmer Cell Phone 2, Drug Use by Mtr. Vader 3. Mr. Vaéers Circumstances inthe Period Around uly 3,200, 98 9 100 102 104 10sPage: 5 1 Introduction (1) On ily 3, 2010 Tye and Marie McCann [the “McCann ef thir home in 0a road tip Cultus Lake in Bish Columbia where they were going to holiday. The MeCenas ravelled in large Class A recreational vehicle [he "RV"] which towed a Hyundsi “Tucson SUV the "SUV" of “McCann SUV"). The MeCanns bad ranged to meet with thir laughter Trudy Marie Holder [°Ms. Holder and her daughter who were ing to Abbotsford on Sly 10. The four faily members were then going to wave inte RV to Cults Lake [2] The MsCanns never asved. This was the frst inking to thi family that something had gone ary. Thee aire to appear atthe Abbotsford sport was very unusual. Ms. Holder Jmnmedintaly reported to the RCMP that her parents were ising [3] _TheMcCanns were never sen again dea or alive; however inthe weeks that followed the discovery of evidence linked to them began to emerge. The fis item was their RV on ire rear Minnow Lake, south east of Edson. The SUV was found at an abandoned fam neae the intersection of Highway 16 and Range Road |4(WSM). On July 3, the MeCann cll phone was used to communicate with persons unknown othe McCann. Forensic investigators loated blood fom the MeCanns on obec found inside the SUV. A hat wor by Lyle MeCann was found in the SUV wih bullet hole and bis blood on it. This all eircumstantial evidence {$]__ The RCMP investigation commenced on Jly 10 and soon focussed on one individual: Travis Edward Vader ("Mr Vaer” of "Travis Vader) He tal the police he had nothing to do withthe MeCanns This decision i to detemine whether hatte oft, and whether the Cov has proven beyond a reasonable doubt tha Mr. Vader Kile the MeCanns ands guilty of First degree murder (Criminal Code, RSC 1985, C46, $231), AL Background [5] Aspects ofthe background leading upto the disappearance ofthe MeCanns ae notin ispute. A number ofthe MeCanns relatives (Ms. Holder, Breton McCann, Mary-Ann MeCann, and Alice Chalmers) and fiend and neighbour (Margaret Ann Muffit [PMs Mutt) tested at the McCann’ travel practices and hee Sly 2010 plans. ‘previously issued a voir dre decision tat admit the hearsay evidence component ofthe three Felatvs'testinony R » Vader, 2016 ABQB 301, 2016] AJ No 57. Taso ascept the no heanay evidence of hese winesses, nd Ms, Maffia’ evidence on th general travel and holiday pacts ofthe MeCans [6] Therelabilty ofthat evidence was challenged by the Defence; however I conclude that the ccm ofthese witnesses hus no merit given hei falianity with he subjet mater. Similarly, the Defence argued tat I should consider potent alteatve paths of wave ‘destinations, and 0 on, ax potential and elevantaltemative theories of what the McCann dit ‘eect these stnsions as empty hypotheses that are countered by the fac that physical ‘evidence ofthe MeCanns was subsequently recovered along thet reported proposed path of travel, The Denice’ ert ofthe Crown as theorizing” a theme tat wil reoccur throughout tis decision, instead applies othe Defence submiting alternatives without supporting evisenee or elevated plausibility (7) Insummary: 1. The MoCanns had fequently holidayed with ther RV and SUV. AlbertPage: 7 ‘The SUV had been driven hard into a stand of tees, Its exterior was dy. An empty Boxer Beer carton was located nearby in an area nex othe vandalized mobile home on that propery. 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 tems, including a can of Boxer Beer in a cup holder inthe console between the two font seats, a propane tank in a shopping basket in the back, along with several lose potatoes. ‘Superstore "No Name" brand cans of food products were also recovered. These ans matched the type of food products that were purchased by the MeCanns from the St. Albert Superstore on July 3, 2010 at 10:08. [13] Two baseball hats were located inthe SUV. One had the text “Vopak" [the “Vopak at”), ‘while the other ad a logo and text for Bosg's Draught [the “Boag's ha). The Boag’ hat had a Small ole in is brim, [14] _ The video images of Lyle MeCann captured at the St. Albert Supersore on July 3, 2010, show him wearing what appears be the Boag's hat [13} Blood was located in a number of locations inthe SUV, onthe 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 2006 Ford F350 pickup tuck [the “F350"] that had been found north of Highway 16 and east of Edson fon July 17, 2010. The F350 had been reported stolen on June 28,2010. When located, the interior eab ofthe F350 was parially bured [17] The McCann cell phone (°MeCann phone") was ultimately recovered from a dumpster in ‘Whitecourt, Alberta. That cell phone had been used to sent text messages nd to make phone calls on the afternoon of July 3, 2010 to an ex-gilfiend of Mr. Vader, Ms. Amber Williams (Ms. Williams" or “Amber Williams". Iis uncontested that Ms, Willams has no connection to the MeCanrs, B, The Case Against Mr. Vader [18] Mr. Vader's charged with two counts of fist degree murder: Count 1: On or about the 3rd day of July, 2010, at or near ihe Hamlet of Peers, in the Province of Alberta, did commit fit degree murder ‘of the perso of Lyle McCann, contrary to section 235(1) ofthe (Criminal Code of Canada. Count2: On or about the 3rd day of July, 2010, tor near ine Hamlet of Peers in the Province of Alber, did commit fit degree murder ofthe person of Marie MeCann, contrary to section 235(1) ofthe Criminal Code of Canada. Atte opening of the trial Me. Vader was arraigned on these charges ard entered peas of ot guilty [19]. The Crown admits that the case against Mr. Vader is circumstanial, but argues that there is only one reasonable inference that canbe drawn from tat evidence: Hr. Vader killed the “MeCanns, The Defence argues the necessary standard of proof has not been metPage: 9 [28] _ Forensic evidence links Mr. Vader tothe McCanns. His DNA anda fingerprint were found in association with the SUV and its contents Blood from the MeCanns was located on “objects in the SUV. The SUV's key was found with the F350 which was eperated by Mr. Vader. ‘This forensic evidence is reliable. There is no innocent explanation for Mt. Vader's interaction with these items. There is no evidence of atypical transfers of biological materi [29] Blood from the McCann located onthe Superstore No Name Cans and the Boag's hat ‘ha a spater form tat is inconsistent with other biological evidence ident fied inthe SUV. This ‘means the activities that caused the blood spater occurred elsewhere, andthe blood- ‘contaminated abject were subsequently placed inthe SUV. [30]. Cell phone records, text message information, and witness evidence clearly established ‘hat Mr. Vader was using-the MeCana phone on July3 at 14:14 onwards. Mr. Vader then continued his atemprs to communicate with Ms. Wiliams using his own phone after he obtained subscription time via Mr. Olson. This was part ofa larger pattern of comunications attempts by ‘Mr. Vader directed to Ms. Williams. Earlier on July 3 he had used David Olson’s landline in an tempt to call Ms. Williams. [31] Me. Vader hada criminal motive that brought him into contact withthe MeCanns: theft His postoffense conduct was to conceal hs riminal activity and an attempt to develop an alibi That is evidence of guilt, The Crowm also argues thatthe Cour may draw an inference of guilt from Mr. Vader's control ofthe McCanns’ recently stolen possessions (Rv Kowiyh, [1988] 2 SCR 59, 86NR 195), and that a voluntary statement where an aceused person doesnot respond to inriminaing evidence as probative value: R v Omiayak, 2010 ABCA 152 at para 26,487 ARI73. The Crow stesses thet any alternative hypathetical perpetrator must be based on a reasonable inference, and not just speculation: R v Grandinetl, 2005 SCC 5 at paras 46-57, 2005] 1 SCR 27, [2]. Mr, Vader is logically guile of first degree murder because when he confronted the ‘MeCanns he necessarily shot and kill 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 y Green (1987), 36 CCC (3d) 137, [1987] AJ No 561 (Alta CA), 2. Mr. Vader [33] Counsel for Mr. Vader made writen and oral submissions. They hive a central theme: thatthe Crow's cas lacks substance and instead is based on hypothesis, speculation, and ‘cnjeture. Counsel for Mr. Vader framed tis argument by reference toa 1980's hamburger advertising campaign, asking "Where's the beet? Show us the beef. Because in a case like this ‘that has been investigated now fr in excess of five years there should be some beet. And there isn't” The Defence submits the Crown’s case is rdaled wit evidentiary saps tht cannot be ‘bridged by legitimate inferences. [34] _ The Defence identifies a numberof these fatal gaps. One is that the death ofthe MeCanns is unproven, and if they ate dead, then there is no evidence of how, when, and where they ded ‘There is no evidence Mr. Vader committed an unlawful set or that thet acted to the McCann od-covered object sheds blood as it moves, where blood escapes from a source under pressure, and where blood is spread via air low, suchas a cough, [89] Joesph Allan Slemko was qualified and provided expert evidence on blood stain analysis ‘on behalf of the Defence. His explanations ofthe manner in which blood moves, spreads, and is transferred was essentially the same as that of Sgt. Butler. [90] Set Butler testified tha he was unable wo offer commentary on the mechanism oF ‘mechanists that led to nine blood stain located on the SUV console armrest. The Boag’s hat showed many stains. Most were spatter stains at last 25 on the bill ofthe ha, and almost SO on the top, sides, and back of the hat. Thvee larger stains that coud be either caused by spatering or ripping blood were located onthe top ofthe hat. The adjustment strap at the back of the hat exhibited a transfer stain, The pattem and size ofthe spatter stains was cused by force being applied to source of liquid blood, [91]__ Four ofthe Superstore No Name Cans exhibited large numbers of spate stains, 2 mm or less in diameter. The locaton, shape, and orientation ofthese stains was not consistent with a blood soure inthe vicinity of where the cans were located. Sgt. Butler concluded that these stains had heen transferred to the No Name Cans at a diferent location, ‘hen the cans were felocsted tothe SUV and reoriented before the cans reached the location where they were ‘eeovered. The pattems on the eans are an impact pattem type. The source ofthe blood was an impact event about 3-6 em from the bottom of the cans. In each case only one face of can was ‘exposed to blood, This made it posible all the cans were contaminated with blood via single “spatter event. The orientation ofthe blood spate stains andthe manner which blood appears ‘wo have shited under the force of gravity implies the cans were ina vericel position atthe ime ‘the Blood soater occurredPage: 21 ‘examined on potential alternative materials that could test postive for blood, and whether Set Butler could differentiate berween these altemative materials and blood see litle relevance in this as analterative 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 ‘etected blood, The Defence's proposed alternatives are empty hypotheses and unsupported by cvidence. Mr. Slemko did not challenge the blod stain classification by the Crown, or suggest alternative materials for the various stains. The fact he did not do so reinforces my conclusion to ‘eject the alteative material hypothesis 99] What is clear from the evidence ofthe two blood stain expen is that their ability to reconstrust what ad led 1o the blood staining was hampered by the fact some of the items, the Boag’s hut and the cans, had been recovered ina location that was not the one where those ‘objects hid been initially exposed to blood. The absence of context meant both expert had 10 acknowledge tat while they may prefer a particular explanation forthe observed blood staining, ‘that ther are other aterative explanation. For example, a sneeze could have transferred ‘material bo the cans. 100} _Neither expert could with any confidence explain the blood dilution. Some ofthe Potential alternatives are much more sinister than others. The large stains on the Boag’s hat ‘ould be caused by blood drops falling ffom above, or drops ejected into the air by an unidentified mechanism, [101] Tte Defence admits the wo MeCenns are the sources for blcod on the No Name Cans and the Boag’s hat. I draw the following conclusions from the blood stain evidence: sometime on oratier July 3,2010 |. blood from Marie MeCann was sprayed by an impact onto some ofthe No Name ‘Cans purchased by the MeCanns on July 3, 2010. The point of the impact was close tothe cans, and 2, blood fiom Lyle MeCann was both dropped on and sprayed across the top ofthe Bosg's hat {102} Beth blood stan experts pointed to large spts of blood on the Boag’s hat and indicated {hese appeared to be drops of blood landing onthe hat ina manner perpendicular tothe ‘horizontal orientation ofthe hat. I accept that isthe more likely exylanation fo the larger ‘drops. As forthe other small spatter, the experts make different sugzestions. I prefer the scenario advanced by Sgt. Butler, but think iis entirely plausible tht atleast some ofthe ‘smaller spars are satelite stain as suggested by Mr. Slemko. However, aftr careful review of ‘the spate locations I conclude that atleast some of these are caused by a mechanism other than satelite stining, in particular given the association of small spattersto the bullet hoe. { ‘therefore reject the altemative argument tat the large numberof blond spare locations on the ‘Bosg’s hat are only a consequence ofa few large drops landing onthe at, and then fragmenting. ‘The patter: visible simply does not match that mechanism, and though Sgt Butler very properly agreed tha! secondary satellite stains could account for some ofthe observed pattem, I accept his -conelusior that mechanism alone cannot explain the state ofthe ha, a a wholePage: 23 {orensic identification, andthe unique language and undisputed facts about how living things store information 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 soure or sources, Forensic DNA procedures can witk high precision and reliability identify te specific person who was the source of a DNA sample. The Crown and Defence experts commented fo varying degrees onthe science and technology imolved 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 ofthat evideace. [113]_DNA oe deoxyrivonucleic acid is an information storage molecule foundin al living things. DNA is zipperlike double-stranded molecule where information is encoded ina series of subunits called bases; adenine, eytosine, guanine, and thymine. Each base pars with a complimentary base inthe opposite DNA strand: adenosine wit thymine, eytosine with guanine. This means the information on ether stand ofthe molecule ean be used to infer ‘he data content ‘ofthe other antiparallel strand, [114]. DNA caries the information used to assemble the molecules found in an oganism, and provides the unique feataes ofan organism, Cells in the human body contain DNA in two locations, in the nucleusand the mitochondria. A molecule of DNA is called a chromosome. Humans have 46 chromesomes inthe nucleus, and multiple but identical copies cf a smaller chromosome inthe mitochondria. The nuclear chromosomes exist in 23 pars an¢ each pair ‘contains generally the same kindof information, One member ofeach ofthe paris provided by ‘each parent, That means that sperm and ova contain only one chromosome of each parental hromosome pait, or half the overall genetic information ofeach parent. {115} The one exception othe chromosome pair rule i that a human male has one par of chromosomes that erry very different information, the X and Y sex chromosomes. These "0 ‘chromosomes have no information in common. A female has two X chromosomes, and they have the same general information, ust like te other 2 chromosome pairs, [116] Certain parts of en organism's DNA are largely consistent among individuals who belong, to the same species. Other pars of the DNA may be different. Some differences encode physical attributes, also known asthe “phenotype”, ofan individual. For example the different human blood types are the result of different variation in apart ofthe human DNA that encodes & blood cell protein, The same istrue for eye colour, Other kinds of person-to-person varition do not involve an area that encodes information, but instead are found in areas ofa chromosome that include many short DNA sequences, that repeat over and over. These “short tandem repeat” [STR] region are very helpful for forensic DNA analysis since they vary substantially, person to person. These STR regions also donot encode any information tha affects a person's phenotype. DNA forensit anelysis takes advantage of the variations in STRs by measuring the Size ofa piece ofa chromosome that includes these variable repeat regions. This piece of ‘chromosome is called anallele. Because different people will usually have different sized areas ‘ofthese chromosomes, when two biological samples have the same sized STR alles then that suggests the two biological samples eome from the same source. Ifthe sizes of to variable length chromosome alleles are diferent, then that indicates these alleles have different biologicalPage: 25, procedures, and keeping evidence sources separate and contained, lems and information relating to items ar tracked by a software laboratory information management system, [124] Many ofthe steps in the forensic DNA analysis process are automated or sem Automated, but the investigators in this ease had altemative manval procedures available, where that was necessary or appropriate, For example, the hemastx procedure to tet for blood inhibits Automatic DNA analysis, but not manval approaches, [125] The first step in forensic DNA analysis isto isolate DNA from asource. A source can be ‘sample ftom a person such as a blood sample, a mouth swab, or body issues. DNA ean also be collected from surfaces, fom blood stains, fom clothing, and generally mest things that contact !aperson, That is because humans continuslly shed ther DNA in skin fakes, hairs, and body ‘uid, These test sources can also be evaluated fr fluorescence, whichis a feature of some biological material, and for the presence of specific biological materaltypes, suchas blood and semen. A variety of techniques exist remove DNA from physical substrates and then ‘concentrate the DNA for analysis. [126] Once DNA is isolated from a source itis “amplified” using a precess called polymerase ‘hain reacion of PCR. “Amplification” causes an ineease inthe amourt of DNA by a copying process. PCR is a procedure where sample DNA is mixed with other mterals and then heated land coolec repeatedly, This results in an enzymatic chain reaction tht causes certain areas of DNA to be copied. The parts of DNA which are amplified is doterminec by the PCR primers ‘present in he reaction mixture. This copying process is exponential, doubling the number of pieces ofthe amplified DNA at each eyele. For forensic DNA analysis tie PCR mixtures a ‘designed to amplify only the chromosome areas that contain variable length STR alleles. The result is afer many heating and cooling cycles the amplified DNA makes up the vat majority of the end prot, The mixture of molecules used in a PCR reaction also causes the amplified products to have different fluorescent labels attached tothe product DNA pieces. These Muorescen labels glow a certain colour when illuminated by a laser, anc the glow ean be ‘measured to (indizetly) determine how much DNA is present. [127] The DNA produced by the PCR amplification process is then plced in a capillary ‘lectrophoresis apparatus that separates DNA pieces by size via passingthose DNA molecules ‘through a capillary, avery long thin tube, and measures the quantity of DNA at various sizes. DNA length measurements are precise and capable of counting individual base pars, the informational subunit of DNA. The quantity of DNA is measured via observing fluorescence. “Much ofthis separation, sizing, and concentration detection process is axtomated, but supervised. The product ofthis process is called an electropherogram, which is essentially a ‘raph of DNA quantity vs DNA molecule size, Since the DNA length measurements are very ‘revise the length of the observed DNA piece can be used to identity the numberof copes of & Shor tandem repeat in a given variable region, For example, the D3 allele location has known variations ranging between 12 to 19 repeats. [128] These lle profiles are then compared to determine whether or aot 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 thatthe PCR amplification process is something of double- ‘edged sword. On the one hand it permits analysis of very small starting quantities of DNA. That means even small or damaged biological samples can potentially produce a full alee sizePage: 27 ‘sample donor was on in three trlin. In any practical sense, that means the chanees that Someone other than Mr. Vader being the sample donor are trivial [138] There are potential complications, suchas where two alternative sources are related, or are identical wins. But in general, matching between a pattem of @ knowm and an unknown DNA STR allele pater produces high confidence thatthe donor ofthe known belogical ‘material sample also was the source ofthe DNA lated inthe unknown biological material sample [139]. Tncomplete DNA information from an unknown sample s still relevant when the partial data is a good match, This i analogous to an incomplete licence plate. If camera observes @ ‘motor vehicle used iran offense has a certain license pate then that is strong evidence tht a specific automobile was involved in the illegal activity. This is analogous to a perfect DNA allele profile match, [140] However, patil licence plate, for example that records four of six characters, is stil highly selevant because that data vastly nartows the range of candidate vehicles in question. The parial licence plate canbe eitical and determinative information when coupled with other data, like automobile type and colour. Separately thes pices of evidence have much less probative effet than when combined [141] The same is potentially true for forensic DNA evidence. For example, investigation of a "date rape drug’ sexta assault scenario may lead to finite list of suspects. Even an incomplete STR allele DNA profile derived from degraded DNA can be a powerful too in this conten, if for ‘example one ofthe usidentified perpetrator's DNA alleles matches only one potential ‘That eliminates other possible offenders. 4. Conclusion - DNA Forensic Analysis [142] There is no question that forensic DNA analysis is @ well-established, accepted, and valid Scientific proces. Iis very frequently used in criminal and civil proceedings and is considered a definitive method of identification. Nevertheless, ike anything which involves living things, Trensic DNA evidence has potential compli 2. Crown Experts and Tech [143] Three Crown expert witnesses were qualified to provide forensic DNA evidence. Vashni Skipper was qualfiedas a forensic biologist with experise in the analysis of forensic DNA evidence and identification, interpretation, and comparison of biological materials using those techniques. Vivian Mohsbuiter, another forensic biologist, was qualified in the examination of exhibits for biological materials, PCR methodologies, and interpretation of forensic DNA dat, including the probabilities of an unidentified third person being an alterative match for an unknown profile. The third exper, Janice Rae Lyons, was qualified asa scientist with expertise in foreasi¢ DNA analysis and interpretation, comparisons, and statistical analysis of forensic DNA profiles. [144] Ms. Skipper, Ms. Mohrbuter, and Ms. Lyons developed the DNA allele profiles for the known and unknown sources, and evaluated electropherograms to identity allele profiles. [145] _A number of Crown witnesses were forensic DNA technicians who handled exhibits, ‘conducted DNA samgling procedures, conducted PCR amplification procedures, and capillary ‘electrophoresis analyses: Christine Downs, James Cameron Scot, Kelly Coloumbe, JasminePage: 29 reported on forensic DNA analysis or protocols. My review of Dr. Libby's CV didnot identify any refereed publications that obviously address forensic DNA analysis. [154]. Though Dr. Libby was qualified as an expert and therefore was permitted t give opinion evidence, Thave difficulty with his expert testimony for a number of reasons, A useful pint of ‘departure is to examine the characteristics of an exper witness. An expert witness isan individual who is permitted to give evidence that is nat something tha they personally observed, but rather isan opinion. Expert evidence isnot casually permited in a court setng, but instead may only be admitted when that expert evidence sass four exteria identified in Rv Mohan, [1994] 2 SCR, 114 DLR (4th 419: 1 relevance, 2 necessity in assisting the ie of fae, 3. the absence of any exclusionary rul 4. a propery qualified expert. [155] The necessity requirement warrants special attention. Expert evidence is necessary when the trier of fact encounters information that “s likely to be outside th experience and knowledge of judge”, the triers of fact “ace unlikely to form a correct judgment .. if unassisted by persons with special knowledge”, “due tothe technical nature ofthe facts: R v Mohan, at paras 21-25. If 2 judge or jury ean form their own opinions without that help then an expert is not necessary Unnecessary expert evidence shouldbe excluded. [136] An expert witnes is called by a party toa matter, but has a special status. Germain Jin LIS9465 Alberta Lid v Adwood Manufacturing Lt, 2010 ABQB 133 a para 2.13,25 Alta LR (i 237, aimed 2011 ABCA 259, 51 Alta LR (Sth) 352 deseribed an expert as being“. less witness fora party’ than a'witness forthe court agree wit this distinction. (151) National Justice Compania Naviera SA. v Prudential Assurance Co. Ltd. (“The Harlan Reefer’, [1993] 2 Loya's LR 68 (QB) at 81 [*Tkarian Reefer” lays out the duties and responsibilities ofan expert witness: 1. Anexpert witness should at all stages inthe procedure, on the basis ofthe evidence as he understands it, provide independent assistance to the cout and the parties by way of objective unbiased opinion in relation to mater within is expertise... Anexpert witness should never assume the role ofan advocate. and 2. The experts 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 a to what the exper himself would have dane in similar circumstances or otherwise sek to usurp the role ofthe judge, 3, He should cooperate with the expert ofthe othe party or pais in atempting ‘o narrow the technical issues in dispute at the earliest possible stage ofthe procedure and to eliminate or place in context any peripheral issues. 4. The expert evidence presented to the court should be, and be seen tobe, the independent product of the expert uninfluenced as to form or content by the exigencies ofthe litigationPage: 31 Ary biological sources, other than it is complicated, He testified that many variables ean influence how much DNA is transferred between sources, but gave no explanation to assist in understanding what and why that was te ease ~ does it matter if tis wet or dry? Does DNA stick more to certain materials? He simply says there are many variables. That does litle toad useful infortation that is ‘outside the knowledge of the tier of fact and hence necessary evicence. [164]_ Justice Topolniski's decision was subsequently upheld on appeal: Rv Awer, 2016 ABCA, 128. One ofthe grounds of appeal was tat Dr. Libby's evidence had been improperly eriicized as unresponsive. The Court of Appeal at para 77 disagreed ‘The tial judge's assessment of Libby's evidence is reasonably supported by the record. On numerous occasions during eoss-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 fo maintain transparent impartiality and to fll their spel duties tothe ‘oUt fo give fair, objective and non-partisan opinion evidence [165] Rv Amer is now under appeal tothe Supreme Cour of Canada, When subsequently fzked by Mr. Vader's councal about the appeal Dr. Libhy said he knew tht [166] This s the fist reason I have reviewed the R v Awer litigation, I find as fat that Dr. Libby is very well aware chat his previous appearance in this Court was net well received, and that he was les than forthright in his response to my inguir. He attempted to avoid that issue. This goes to his credibility. However, what is even more problematic is that Dr. Libby's testimony in elation to this litigation repeats the same kind of issues thal were identified in R v ‘Awer. In other words, there is larger problem here. 167) De. Libby's evidence includes what are best described as ‘non-answers. Here is one ‘example, Dr, Libby i asked whether it matters when analyzing a forensic sample whether the ample 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 hoard substantial evidence about nanograms. And let me give you an example ora question. Does it matter for your purposes in terms of analyzing 3 sample, interpreting the sample, whether there's SO ‘nanograms of 500 nanograms? De. Libby: No, it does not (168) Dr. Libby is then asked why. His answers totally unresponsive: Counsel for Mr. Vader: And why is that, sie? Dr, Libby: ‘Wel, !mean you're not ~ first of all, you're not amplifying that total amount, so youre amplifying the subquantity of that amount. But he interpretation you generat is, you krow-- that you ‘observe on electropherograms is ~itdoce not ‘matter whether i from 50 o 50D.Page: 33, ‘And then ater you've dove that, you really don't know when you have a mixture ‘0f 25 equal proportions as, for example, equal peak height. You don't know ‘whieh peak is associated with - how the peaks are associated with one another. So for example, given a stuation in which you have four alleles, four peaks, ll of ‘approximately equal itesity, what isthe order in which they are associated ‘one another. Let's eal them alleles A, B,C, and D. Is A associated with B, ors A associated with C, of A associated with Doris B associated with D, of C ‘associated with ~ so there's no ~ there's a wide numberof possibilities. In fact, if you have four peaks of eqal intensity, equal peak height, you scully have ten ‘isferent possibilities, ten different genotypic possibilities. {175} Perhaps tam obtuse, but I count six possiblities in this scenario where there are two DNA sourees: DNA source 1 contributes DNA source 2 contributes: AaB cap Age BaD AgD Bac Bac AgD B&D A&C cap AGB (176). Rather ironically given his previous srutiny of literature sources in R v Awer, in this proceeding Dr. Libby referenced en article titled “The Surprisingly Imperfect Science of DNA, “esting” from “The Marshall Projet’ "story .. produced in partnership with Fusion and Frontline”. When asked by counsel for the Defence to expin its provenance Dr. Libby answered My understanding, this is sn antcle published by The Marshall Project on DNA. analysis which is part of Marshall University. Beyond that, 'm not sure where ‘this was actually published, so I think ths is maybe more like ~ published in @ trade article, not an extensive, academically peer reviewed journal 177) Another reason Ihave issues with Dr. Libby's expen evidence is that it appears he takes 2 position that diverges very broadly from the mainstream of DNA forensic analysis. As Understand his testimony, he believes thatthe only ‘evidentiariy" valid forensic DNA match is tone where the allele profile detected from an unknown sample isa 100% match with a know specimen. This isa subject wll éscuss in much detail Below in relation tothe three disputed forensic analyses, [178]_ a the end De. Libby had litle negative to say about the RCMP and their investigation Dr. Libby didnot identify any procedural defect inthe RCMP's records or offer ay specific criticism ofthe procedures that were used to investigate potential biological materials recovered during investigation ofthe MeCams’ disappearance. He did make vague assertions that some ‘government of police forensic laberatories have biases and should not be irsted because their ‘employees have a government agenda [179] De Libby didnot identify sny specific example of contamination.Page: unidentified person could be very relevant So would the resovery ofan unidentified souree of DNA from a putative murder weapon handle. However, that i not the case here. The search locations were anything but ‘clean’, and Ihave received much evidenee on how DNA ean be «damaged ard degrades over time, but also on how biological materials recast off, shed, and readily spread. [188] My focus is therefore on evidence which potentially indicates Mr, Vader had interacted ‘with the McCanns and their propery. [189] TheCrown’s experts concluded certain matches had been established: ‘+ DNA recovered via aswab ofthe ean of Boxer Beet located inthe arm rest ofthe SUV ‘matched Me. Vader's DNA. A complete DNA profile was developed. The probability of random individual having the same DNA profile is one in three tllion, ‘+ DNA recovered from a blood sain on the SUV centre console arm rest matched Mr. Vader's DNA. A complete DNA profile was developed. The probability ofa random individual having the same DNA profile is one in three trillion. 1 DNA recovered from tissue late inthe SLIV matched Me. Vader's PNA Thie wa a complete DNA profile. The probability of a random individual having the same DNA, profle is one in thre trilion. ‘+ DNA recovered from the inner sweat band ofthe Vopak hat matched Mr. Vader’s DNA. ‘A ccmplete DNA profile was developed. The probability of random individual having the same DNA prafileis one in three tillion, ‘© DNA recovered vi a swab ofthe SUV steering wheel matched Mr. Vader's DNA. A partial DNA profile was developed. The probability ofa random individual having the same DNA profile is one in 7.4 billion. ‘+ DNA from the blood stains located on the No Name Cans found inthe SUV matched Marie MeCann'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 lft font passenger seat ofthe 'SUV matched Mr. Vader's DNA. This was @ partial profile. The probability of a random individual having the same DNA profile is one in 12 million. ‘+ Mulipe locations onthe Boag's ht were tested. DNA was recovered that matched Lyle “MeCann's DNA, and in one instance a blood stan revealed a mixture of DNA from Lyle MeCann and Mr. Vader. The probability of random individual having te same DNA profil as Lyle MeCann’s contribution is one in 34 bili. The probability ofa random Individual having the same DNA profile as Mr. Vader's contribution is ore in 140,000 [190] In its closing argument the Defence admitted Mr. Vader's DNA was present onthe Boxer Beer can, the tissue, and the centre console arm rest, and did not apparently challenge the ‘matches tote MeCanns’ DNA on the No Name Cans and the Boag’ hat. However, the Defence does argue should reject the Crown's evidence that Mr. Vader's DNA was located on the ‘Bosg's hat, the SUV steering wheel, and the passenger seat. The Defence argues ‘hse results were incaneusive, as opined by Dr. Libby. therefore focus my attention on these thee items,Page: 37 conservative approach would have been to declare it, inmy opinion, as inconclusive. Tha’s what I ‘would have done [195] 1 hink at this point itis 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 isthe tabulated data prepared and submitted by Dr. Libby in his criticism ofthe Crown's expert evidence. have taken a slightly different approach in how Ihave depicted Lyle MeCann anc Mr. Vader's ‘genotype by noting down bath alleles where an individual s homozygous fora certain allele, just to help Keep things straigh. [antee —_LAMatteles |iyte Mr. ‘tlees Livi. Vader's recovered from the | McCann's | Vader's | common [alleles not Boag's hat genotype | genorype | betweer | located on Lyle ‘the Boag's MeCann | hat and Mr Vader D3. 16,17 16,17 | 16,17 16,17 none wWa 16,17,18 iis | 16,16 none sone FGA 22,24,25 22,24 | 24,25 24 one Amelogerin XY XY xY xy one ps 13,1415 Bas |B 3 none pat 28,29,31232 | 28,29 | 312,32 | none ‘none pis 12,16,17 12,16 | 17,17 none none Ds ma mn [ona u one pis 1" nan [ua nt one b7 9,12 9.12 9.10 8 10 [196] Dr. Libby concluded “half the tes filed to produce results", This bases. (197) ‘Thetirstis that it ignores the possibilty ofan individual being homoxygous for a particular allele, For example, from the table above, Mr. Vader is homozygous a thre alleles: ‘WA, DI8, and D13. That means that when his profile was generated, using Dr. Libby's spparent aporoach, Dr, Libby would logically conclude par of the tet hd fled to produce results and therefore reject the forensic DNA analysis as inconclusive, Tis i, of eourse, Scientifically wrong, but itis the logical end point of Dr. Libby's approach te DNA anal is wrong on severalPage: 39 reveal the profile which would be expected.” is wrong. Wore, i is misleading tall his “disturbing”. A supposedly independent, objective expert here uses loaded language to reinforce 1 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 contrite his or her biological material tothe Boag" at mixed source location, then four DNA allele variations ought to have been observed, and there is “incompleteness of a ‘minor profile at that Ieus." But there is no “incompleteness ofa miner profile” if Me. Vader is the second source 205] Dr. Libby continues this approach with the other “disturbing” and “troubling” so-called Incomplete minor rofles: D8, DS, D13, 206} Dr. Libby makes the same typeof statements again with these other alleles. For example, concerning the DS alleles detected: ‘Again, at this site, Me. Vader isa type 11 and 213. The declared minor type is £113. So, again, DIT is nat accounted for. Itcould be accounted for in Mr. ‘MeCann's genotype, but not Mr. Vader's ‘Once more, observe the RCMP forensic DNA analysis detected the 11 length variation ofthe DS allele The last sentence inthe quoted passage above makes no sense. Worse, the statement that Me. Vader's DNA is “not accounted fr" implies the absence of evidence. That is false DNA consistent with Mr, Vader's enotype was indeed observed forthe DS allele 207] Dr. Libby conciudes: ‘Counsel for Mi. Vader: Do you believe that there is suppor inthe scientific ‘community for your opinion .. given what's ‘missing here? Dr. Libby: Yes, do, Yes... And it's I'l eave it at that. {208} 1 disagree and reject Dr. Libby's analysis in relation tothe Boag’s hat. [209] The Crown in cross-examinstion questioned Dr. Libby on why he was ignoring the fact that Lyle MeCann's DNA profile overlapped with parts of Mr. Vader’ allele profil. The Crown asked why Dr. Libby's Exhibit 196 chart only included alleles unique to Mt, Vader. Dr. Libby ‘acknowledged thee is potenil overlap Crown counsel But is a possible explanation, or an explanation for those blanks, could that be because Mr. Vader does have commen alleles with Lyle MeCann, and that because Lyle ‘McCann was the major contributor that is values at those 3, the amelogenin, D13 and D7, which would be the same as Lyle McCann's or are masked by the major contributor? Dr. Libby | agre, That's what Indicated previously. There was 2 fait amount of overap, yes. {210} However, Dr. Libby now discounted the possibilty of Mr. Vader's DNA being amplified and detected, but combined with tat of Lyle McCann, He makes a curious distinction. A “idder/merged” peek is irrelevant because itis not “declared minor allele”Page: 41 b. The SUV Steering Wheel [216] Me. Vader disputes tat his DNA is present on the MeCann SUV steering wheel. Ms. ‘Skipper in her estimony said the likelihood ofa rendom individual having contributed the DNA. that was detected onthe stecring wheel as being 7.4 billion to one. (217) When one compares the DNA recovered from the stering wheel to Mr. Vader's DNA. there ae no allele variations present in the recovered DNA that are absent from Mr. Vader’ DNA profile. That means there iso DNA evidence to exclude Mr. Vader asa donor of the DNA recovered fiom the steering wheel. The observed stering wheel STR allele set and Mr. Vader's profile are nota 100% match, Mr, Vader has two versions ofthe D3 allele, with shor tandems repeat of 9 and 10. Only one variant of the D3 allele was recovered from te steering wheel, ‘with a length oF. This means tht Me, Vader is a possible candidate source for the steering Wheel DNA, and that the DS allel length 10 variation is absent simply due to DNA degradation, ‘or ad luck, or some quirk during the PCR proces [218] Lyle MeCann and Marie McCann were not the source ofall he DNA recovered from the steering wheel, either alone or in combination, There are DNA allele variations recovered from ‘the steering wheel that do nt exis inthe McCanns’ DNA. [219] Ms, Skipper underwent extensive cross-examination in relation to her opinion and its basis. The Defence focussed on several pots, One was that Mr. Vader and Lyle and Marie ‘McCann share common allele variations. For example, the DNA recovered ftom the steering wheel sas found to have two variations of the D3 allele, one with a length of 16, one of 17. That potentially matched several sources: DB alleles fom the SUV steering wheel: 16,17 Me. Vader: 16,17 Lyle MeCann: 16,17 Marie MeCann: 15,16 [220] the DNA recovered from the steering wheel was from only one person then that DNA. ‘ould come from ether Mr. Vader or Lyle MeCenn, I could not, however, have come fom, ‘Marie MeCann alone, since the recovered DNA had a 17 length D3 shor tandem repeat region, ‘hile Marie McCann instead could have deposited only D3 STR variations with a length of 15 oF 16. That eliminates Marie McCann asa potential source forthe DNA on the stering wheel, provided the DNA comes fram a single soure, (221) Similar “overlaps between the McCann DNA profiles components and those of Mr. Vader also exis forthe vWA, FGA, D8, D18, DS, DI3, and DIS alleles. The D21 allele DNA recovered from the steering whee! however cannot have come from either of the MeCanns, and nly matches Me. Vader: 121 alleles from the SUV steering wheel: 31.2,32 Me. Vader: 312,32 Lyle MeCann: 28,29 Marie MeCann: 29,30Page: 43, {228}. Retuming tothe des that the MeCanns’ DNA may have complicated analysis ofthe ‘eering wheel DNA, Lam going to continue o review’ Ms. Skippet’s evidence on why she concluded tie DNA recovered from the SUV steering wheel originate from a single source. This issue was explored in Ms. Skiers cross-examinaton. Logically the alteratve sources for DNA were the MoCanns, however I reject that possibilit [229] Thefirst isthe evidence of Ms. Skipper. Her opinion was thatthe forensic DNA profile recovered fiom the tering wheel originated fom a single source. She eame to tha: conclusion From the elereheragram, the racing af DNA antes vs size thal was priced hy the electrophoresis process. She explained the amount of DNA is measured by the amount of Auorescence detected by the DNA electrophoresis apparatus. Here, the ‘peaks of furescence ‘were consisent witha single soutee, when viewed asa whole. The fluorescence observed and the DNA therefore detected provided confidence that there was only one DNA source. There was not, or example, a second set of smaller quantity DNA PCR products that presumably could ‘originate frem another person, a minor contributor. [230] Ms. Skipper also pointed tothe data from the DS allele, She concued that he qutiy ‘of fluorescence indicated thatthe DNA source was homozygous fora DS allele of 16. Mr. Vader is homozygous 16 at that alee, while the MeCanns are nol. That reinforces the pro2osiion that the DNA located was only from Mr. Vader, and not one or both ofthe McCanas. This expert was interrogated at length about anomalies sometimes observed during PCR amplification procedures, “drop ou, where an anticipated DNA peak is missing from the electropherograr, fnd “drop in”, where an unexpected and spurious DNA peak is observed. Ms. Skipper explained -drop out” snd "drop in” are avoided by having an adequate supply of starting DNA. She also stressed tht here the observed data indicated an adequate supply of start DNA, [231] As for interpreting the relevance of smaller amounts of DNA observed of certain length, she acknowledged that these small peaks are potentially relevant only if they exceed a certain threshold luorescenee/DNA quantity. (Dr, Libby does not disagree with that) She iusteated by comparing @ numberof different electropherograms that show what occurs where there isan 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 ae produced during the PCR process when a phenomenon called slippage or stutter occurs. This ‘means a replication molecule slips or skips a repeat. This a common and readily ientified aif. [232] 1 accept Ms. Skipper's explanation of how on her review and due to her familiarity with forensic DNA analyses and eletropherograms thet she could conclude thatthe DNA from the steering wheel came from a single source and not multiple individuals. | accept that evidence and her explanaton ofthat. The logical inference then is that the fact that DNA alleles of similar size ‘might hove potentially been donated by the MeCanns is simply irelevat [233] The second basis for rejeting the McCann as a contributor to the steering wheel DNA is ‘matter of smple logic. By my count the two McCanas each possess many allele variations not possessed by Mr. Vader: Lyle MeCann - 9 allele variations; and Marie MeCann- 11 allele Variations. The Defence theory thatthe steering wheel profile should be interpreted 0 indicate & ‘mixed source profile means that by some twist of luck nota single ofthese DNA alleles ‘variations eared by the McCanns managed to make ito the steering wheel and survive untilPage: 45 3. Mr, Vader could have done something innocent, like leaned into the Mean. 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 othe surfaces. [239] Defence counsel argues these are possible innocent explanations for Mr. Vader's DNA being linked to the MeCanns” property and that means I should nat conclude Mt. Vader is substantially inked to that property [240] Ihave already disposed ofthe first argument. What remains is whether some innocent ‘action coule place Mr. Vader's DNA where it was found, [241] The Defence focused much cross-examinaton on this point. For example, during cross- cxaminatior Ms. Skipper confirmed that DNA samples can be obtained from materials spread by ‘coughing ard sneezing, but opined these sourees ae not an issue for in-lab contenination. Ms. ‘Skipper stressed ths is a theoretically possible explanation, but DNA is mote likely to be recovered fiom a concentrate source, rather than an aerosol of mucus and/or salva [242] The Defence then postulated that materials could be transferred from the “sneezer’ toa ‘sneezee” wo then spreads the biological material further around the SUV interior. Ms. Skipper ‘observed that sccond and tertiary transfers result in less and les material being deposited, analogous to how a dog with muddy paws leaves less and ess mud overtime and material is ‘deposited. This is a common-sense proposition also made by Justice Topolnisk and confirmed by the Cour of Appeal in R vAwer at para 75, 6. Dr. Libby as an Expert Witness [243]. Having completed my review ofthe forensic DNA evidence and the expe testimony that received it is now appropriate to make some general comments on the weight [place on how DNA forensic analysis evidence was interpreted and the conclusions advanced by the Crown and Defence. This recaptures earlier statements, and is something ofa review. [244] First 1 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 assist the Court They illustrated ‘heir reasoning ‘with examples: eg. Ms. Skipper explained why eae shouldbe taken when evalusting smaller electropheragram peaks via comparisons with baseline lurescence. Ther evideace was helpful. ‘When askedto substantiate their opinions these expers referenced thei 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 Iead to unexpected or atypical results. [245] Ihave previously commented on many issues Ihave identified in Dr. Libky's evidence “These range from non-answers, what appear tobe factual eros, and interpretation ofthe unchallenget RCMP forensic DNA analysis data which uses loaded language anc ignores the “abvious, even when this is pointed out in detail Dr. Libby's evidence was nothing but “there ‘might be ancher possibilty", and yes, in life there are usually other possiblities. Some are more Tikely than okers. However, the standard demanded by Dr. Libby i not logical or reasonable, andthe fact he could not explain why his altematives were plausible illustrates that very fac.Page: 47 4. blood from Marie MeCann was sprayed by an impact onto some ofthe No Name ‘Cans purchased by the MeCanns on July 3, 2010; the pont of the impact was close to those cans 5. blood fom Lyle MeCann was both dropped on and sprayed across the top ofthe ‘Boag’s hat, and 6. part ofthe Boag’s hat was penetrated by a bullet fired perpendicular to the plane ofthe brim ofthe hat, and the bullet was not fied fom a great distance, IV. Preliminary Issue - #(D) Analysis of Vader's Exeulpatory Statements [254] The Defence argues and as I understand it the Grown accepts that Mr. Vader made a ‘umber of exculpatory statements that shouldbe subject oa special procedure that is used when an accused person testifies and denies criminal conduct This isthe appropiate point to evaluate the evidentiary implications ofa number of Me. Vaders statements. A. Mr, Vader's Statements [255] inthis case that testimony consists of pre-trial statements by Mr. Vader hat were admited for the truth of their contents. Mr. Vader identifies three categories of statements where he denied involvement with the MeCanns”dssppearance: + satements made during & Dee 120,201 interview with RMP officer McCauley: ‘+ an October 16,2011 telephone call made by Me. Vader while he was detained inthe Red Deer Remand Cente (Exhibit 13, Session 138); and ‘statements to Donald Bulmer and Andrea Sexamith that he was not involved inthe MeCanns' disappearance [256] Me. Vader engaged in what isan admitely properly cautioned and voluntary recorded interview with the RCMP on Dec. 19-20, 2014, The Defence identifies a numberof statements ‘made in that interview as exculpatory + "Taide have anything to do with that shit you guys.” ‘+ “From day one, the very fist, you asked me, would you take a polyerapi? Yes. Would you sign the paper fori? Ye, Did you guys me one? No. Did you get everybody else's polygraph? Yes.” + “Toasn't there and It do it” +“ fucking everything that I've given you, everything I alk abou isin that ueking disclosure. didn't know fuck al fuck alf about anything uni I ead that disclosure so read the fucking sit. You know fea it with an open eyes and take the fucking blinders off and read the fucking erap and you'll se the same shit I'm seeing” ‘+ “When that phone is being used. I'm in facking Peers with a tuck... Yeah 0 I don’t understand wiat the fuck seriously don’t understand why the fuck, how am! supposed to be, how am I even connected to the shit?”Page: 49 and powers of observation, judement and memory ~ ina word, the ‘tustworthines of ther testimony, which may have depended very largely on their demeanour inthe witness box and theit manner in. ving evidence ‘he feo ieee stent nd des not punor io be exhasive ent judges have From time to time indicated certain guides that have been of the pest soistane buts fara ave oe blo dhe as neve bron tn effort mae to indicat all the possible factors that might enter ino the ‘determination, [tis a matter in which so many human characteristics, both the strong and tbe weak, must be taken info consideration, The general integrity and_ wero observe, his capecty lo remember and his accuraevin statement ee important. is also important 1 determine wheter he is honest endeavouring to tell the truth, whether hei sincere and frank or ‘whether he is biassed, reticent and evasive, All hese questions and others may be nswered fram the observation ofthe witness’ general conduct and demeanour in