How lawyers can still prosecute in the Liknes-O’Brien murder case without the victims’ bodies

The disappearance and alleged murder of Alvin and Kathy Liknes and their five-year-old grandson, Nathan O'Brien, would be a high-profile case even without the fact there's still no sign of them two weeks after they vanished.

But many might wonder whether that fact will make it harder for the Crown to prosecute Douglas Garland for the alleged killings. Veteran criminal lawyers say it could be a challenge but it's not impossible.

“It’s not a hurdle that can’t be overcome," former Alberta prosecutor Balfour Der told Yahoo Canada News.

Garland, 54, has been charged with two counts of first-degree and one count of second-degree murders after the Calgary couple and their grandson were reported missing June 30.

In announcing the charges Monday, Calgary Police Chief Rick Hanson said murder charges were warranted because there is a "preponderance of evidence that leads investigators to believe they are dead."

The first-degree murder counts apparently relate to the Likneses and the second-degree charge to the little boy.

Murder cases without bodies are rare but Alberta now has had two of them in the last three years.

In May of 2012, Travis Vader was charged with killing Lyle and Marie McCann of St. Albert, an Edmonton suburb. The retired couple disappeared in July 2010 while driving their RV on a trip to British Columbia. The burned-out motorhome was found at a campground east of Edmonton two days after they'd headed out, but the McCanns remain missing to this day.

Police suspicion fell on Vader, who had been arrested on unrelated charges, but it was not until 2012 that they charged him with two counts of first-degree murder.

Crown stayed the charges last March, apparently after receiving new, unspecified information, CBC News reported at the time. Prosecutors have a year to reactivate the case but Vader's lawyer, Brian Beresh, said the case was shoddy and "there was not now or never was a realistic or serious chance of any conviction."

[ Related: Douglas Garland charged with murder ]

You might assume the Crown would be a little gun shy now in laying any murder charge without the alleged victims' bodies. But the consensus among experienced criminal lawyers contacted by Yahoo Canada News is that the circumstances, while rare, are not an impediment to a successful prosecution.

The case against Vader was built by police in Edmonton, while it was Calgary police who decided to charge Garland, said Ian Savage, president of the Alberta Criminal Defence Lawyers Association.

“They would obviously be aware of the McCann case but would not be directly influenced by it," he said in an interview.

In Alberta, like most provinces except B.C., Quebec and New Brunswick, police do not need the Crown's approval to lay charges. But lawyers contacted by Yahoo Canada News agreed investigators likely consulted with senior Crown prosecutors in Calgary before going ahead.

“I’m almost certain they would have done that and gotten some clear direction from a prosecutor," said association vice-president Joan Blumer, who has defended in several murder trials.

In cases like this, the prosecutor's job would be as an impartial second set of eyes reviewing the evidence investigators have amassed, said Der, who prosecuted several murder cases before going into private criminal-defence practice in Calgary.

“I’m absolutely convinced the police would have went to prosecutors with what they had and got their approval before laying any changes," he said.

While Calgary police technically could lay charges without Crown approval, it's highly doubtful they would, Der added, because if prosecutors were unhappy with the case, they'd simply stay those charges.

“On the flip side, obviously the police are under a tremendous pressure on a triple disappearance to assuage the family and the public that they are able to find the person responsible and attempted to prosecute even without, at this point, the actual bodies," said Savage.

But how do you prove murder when someone could conceivably argue that without bodies there's no conclusive evidence the three are even dead?

First of all, a couple of misconceptions need to be cleared up: Possession of a victim's corpse does not inevitably lead to conviction if other evidence doesn't connect the victim to the accused. And circumstantial cases, which fictional TV defence lawyers often dismiss, can build up a crushing weight of evidence.

"The victim's body can reveal valuable evidence about the manner of death, but do not underestimate the power of circumstantial evidence, which can include confessions, weapons, blood, and background which soundly point to the killer," said Scott Cowan, regional director of the Ontario Criminal Lawyers Association and an adjunct law professor at the University of Western Ontario.

"Circumstantial evidence is not a poor cousin of direct evidence. Humans can quite easily lie. Blood, tissue and weapons rarely lie about their nature or what they were up to.”

The police may possess forensic evidence linking the accused to the crime scene or putting the victims' DNA in the accused's car or home, places where it's highly unlikely to be.

“For instance, if there was trace evidence from all three people in the same place in suspicious circumstances, that could strongly suggest murder," said Cowan.

Blumer noted police could also have other kinds of indirect evidence.

“There may be things like wiretap evidence from after the fact," she said. "There may be confessions either to the police or to someone who then goes to the police."

The Crown still needs to prove beyond a reasonable doubt that all three victims are dead and that the accused is responsible for each death, Savage said.

And prosecutors need to be able to connect the dots for a jury (assuming Garland doesn't elect to be tried by judge alone). That, too, should not be hard, said Cowan.

“In fact, there are standard form instructions for juries using common-sense ideas about how to draw conclusions from evidence," he said.

Jurors are allowed to infer things from the evidence. The judge and lawyers often use simple examples to show how. For instance, if you see someone come inside wearing a soaking-wet raincoat, you can reasonably infer that it's raining outside, not that the person walked through a sprinkler.

[ Related: Travis Vader charges stayed in McCann murder case ]

Circumstantial evidence can be stronger if the alleged killer and victim aren't known to each other. CBC News has reported Garland and Alvin Liknes were acquainted and there was "bad blood" over business dealings gone sour. Garland's sister reportedly was also in a common-law relationship with Liknes's son.

Those ties might make it easier to explain away some of the physical evidence but the circumstances of the disappearance will make connections and grievances hard for investigators and the Crown to ignore.

“The victim’s DNA in the accused’s home; the accused’s DNA in the victim’s home," said Der. "They could look for a past history of animus, hard feelings between one of these deceased and the accused. It could be that someone overheard threats between them.”

The bizarre nature of their disappearance – the evening of an estate sale at the Liknes home – might also be a factor, said Cowan.

"Three people who seemed to live structured, routine lives suddenly going missing points very strongly to misadventure," he said. "Once you narrow down the list of suspects to a very reliable one, that can be very powerful evidence.”

The other big question-mark is how police arrived at first-degree murder charges in the case of the Likneses, but a second-degree for young Nathan O'Brien.

Normally, first-degree murder requires a premeditated intention to kill but the lawyers pointed out there are several crimes where causing someone's death during their commission elevates the offence to first-degree murder. Those include sexual assault, kidnapping, hostage-taking and hijacking, though not robbery.

“If they [the Likneses] were abducted and then murdered, it would be first-degree murder, regardless of whether the entire thing or the death was planned," said Cowan.

As for the alleged killing of Nathan O'Brien in what was presumably the same incident, it's possible police simply don't have enough evidence to sustain the higher count.

“Obviously the police don’t really know how this precisely happened," said Savage. "Or if they do think they know, they’re alleging two of these deaths are either planned and deliberate or in the commission of a kidnapping and that the third one, they can’t prove either of those points.

"But they can prove that there was an intentional death and [the accused] caused a death, and that’s why they’re going with second degree on the third charge."

All of this remains speculation, Savage noted. The evidence must be tested at trial and Garland conceivably could be acquitted on all counts or convicted of only one or two.

The Crown may also decide to upgrade or downgrade the charges as more evidence comes to light.