Nathan O'Brien and his grandmother Kathy Liknes are shown in a Calgary Police Service handout photo. Photo: provided What a peculiarly Canadian caution it was that permeated the dreadful announcement Monday that the little Calgary boy, five-year-old Nathan O’Brien, and the maternal grandparents who went missing with him late last month are now all presumed to be dead.
Earlier in the day, the Amber Alert that had been in effect since June 30 was cancelled. Then came the news via local Calgary media outlets that Douglas Garland, the so-called “person of interest” who had been released on bail from other, unrelated charges on the weekend, had been re-arrested, this time in connection with the disappearance.
Now, Calgary Police Chief Rick Hanson was announcing that “a man” had been arrested and was within the day to be formally charged with two counts of first-degree murder and one of second-degree murder.
Why, Chief Hanson said, “At this point in time, we can’t even confirm the identity of the person arrested.”
Calgary Police Chief Rick Hanson holds a press conference to say the case of the missing family is now a homicide investigation in Calgary. Christina Ryan/Postmedia News
Police, he said, were “prohibited” from naming the person. Similarly, in order “to protect the integrity of the investigation” he said, they could say little about what had changed since Friday, when police had last expressed their hope the three would be found alive, to lead to the charges, what evidence they had or had not found.
There was no “smoking gun,” he said, rather “the preponderance of evidence that leads investigators to believe they are dead.”
The decision that “this is now a homicide investigation and charges are appropriate” came Sunday, when investigators met Crown prosecutors. “Until we had evidence that absolutely convinced all of us that the family was dead,” Chief Hanson said, “we were going to move the investigation based on the smallest hope.”
Asked how police believed Nathan and grandparents Alvin and Kathryn Liknes, respectively 66 and 53, may have died, the chief replied, “We are putting a very complex case before the courts. We are not going to get into pieces and parts of information which could jeopardize this prosecution down the road.”
Asked why the charges were different — first-degree for the Likneses, second for the little boy — Chief Hanson replied he could speak only generally, and that generally first-degree is laid “when you can show pre-intent,” and with second-degree, “the pre-intent may not be there.”
This was a weird garbling of the distinctions in the Criminal Code.
First degree murder is “planned and deliberate,” which means just what you’d think. But all culpable homicide, or murder, is by definition causing the intentional death of a human being. It’s the intention, or state of mind, which is the key. I have no idea what “pre-intent” is.
The whole press conference was a curiously bloodless and unnecessarily careful business, and if on the one hand, it is comforting that in this country cases are not tried first in the press, as sometimes happens elsewhere, surely the people of Calgary deserved more.
When a child goes missing, it is almost always true that the loss is genuinely experienced by the larger community.
In this case, the spark could have been the mere description of the five-year-old on the Amber Alert: Nathan stood three-feet tall. If that detail alone was heartbreaking, it was also galvanizing, and in Calgary and nearby Airdrie and to a lesser degree across the country, people rose to the challenge.
Neighbours tied green ribbons of hope around their neighbourhoods. Someone organized a vigil of “hope, love and light,” and hundreds of people came, including Nathan’s parents. In the rural acreages where the three had disappeared, people searched their properties.
Rod O’Brien, right, and Jennifer O’Brien, centre, attend a candlelight vigil for missing Calgarians Nathan O’Brien, five, and his grandparents Alvin and Kathryn Liknes in Calgary, on July 10, 2014. JEFF McINTOSH/THE CANADIAN PRESS
In the two weeks the three were missing, the police — and there were 200 of them, working around-the-clock to find the missing — received more than 900 tips. People inundated the family with kindness, so much so that Jennifer O’Brien, Nathan’s mother, went out of her way to thank them.
These are the people who deserved to know a little more about the case, and what led police to prepare to charge “a man.”
Calgarians and friends bring flowers and a balloon as they rally around the O’Brien and Liknes families after the case of the missing family is now a homicide investigation on July 14, 2014. CHRISTINA RYAN/POSTMEDIA NEWS
The “prohibition” against identifying him was almost certainly self-imposed, either by Chief Hanson or prosecutors. There isn’t a case in the country which to my memory has been jeopardized by what police say — whatever they say — at a press conference to announce an arrest.
Think of the press conferences police have routinely, where they lay out the vast amounts of weaponry, drugs and cash seized whenever they bust an alleged criminal gang and lay dozens of serious charges. If such displays don’t damage prosecutions, which they invariably do not, then it’s difficult to imagine what might.
This isn’t to say that the Calgary police don’t have legitimate “hold-back” information, which if publicly released, might hurt a court case, though again, I can’t think of one where it has. The saving grace with big Canadian cases is that they take so long to get to trial that any pre-trial publicity is lost in the sands of time.
This case is unusual chiefly in that murder charges are expected in a case where no bodies have yet been found.
But even that isn’t unheard-of.
There’s R vs. Pritchard, a decision affirmed by the Supreme Court of Canada. It’s a 2007 decision from the British Columbia Court of Appeal which involved a man convicted of first-degree murder despite the fact that the victim’s body has never been found.
There’s R vs. Ratte, another B.C. case where a husband was convicted of second-degree murder despite the fact his wife’s body was never found. The Supreme Court dismissed the application for leave to appeal.
There’s R vs. Wristen, a 1999 Ontario case where another husband was convicted of second-degree murder though the body of his wife has never been found; that was upheld by the court of appeal.
Nathan O’Brien was three feet tall. He loved dressing up in costume so much, his mother said, that they didn’t really buy him clothes, just outfits. He was friendly, and smart, and the glue which held the sprawling family together.
He was also, his mother said, the one person she knew who “as he gets older, he gets kinder.”
cblatchford@postmedia.com
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