Homicide trial without body poses challenges
Conviction very difficult with no human remains
Prosecuting someone for murder when no body has been recovered poses challenges for Crown attorneys, but they are not insurmountable, criminal law experts said Tuesday.
In a typical murder case, the main burden for prosecutors is convincing a judge or jury that the suspect committed the crime. When there isn’t a body, the Crown has the extra burden of proving beyond a reasonable doubt that a person has, in fact, died, and that their death was the result of a criminal act.
“When you have a no-body homicide, you have to prove everything from the ground up,” said David Butt, a Toronto lawyer who successfully prosecuted such a case.
Butt was reacting Tuesday to the news that Douglas Garland had been charged with three counts of murder in connection with the disappearance in Calgary of five-year-old Nathan O’Brien and his grandparents, Alvin and Kathy Liknes.
Police have said evidence from inside the home showed signs of a violent struggle. But the trio’s bodies have not been found.
The recovery of human remains can often yield important clues as to how someone died and narrow the list of suspects, said Jonathan Dawe, a criminal lawyer in Toronto.
When there isn’t a body, one needs “strong circumstantial evidence,” such as witness statements, a confession and forensic evidence linking the suspect to the crime scene, said Ian Savage, president of the Calgary-based Criminal Defence Lawyers Association.
In a similar case, Lyle and Marie McCann were last seen getting gas in St. Albert in July 2010, and their motorhome was found two days later at the Minnow Lake campground near Edson. Their bodies have not been found.
Travis Vader, like Garland originally described by police as a “person of interest” in the case, was eventually charged with two counts of first-degree murder in their disappearance.
The charges were stayed just a month before the trial was set to begin, after the RCMP uncovered new evidence. The Crown has refused to say what the evidence was.