Intent of Oak Bay dad convicted of killing daughters wasn’t proven, says lawyer in appeal

WARNING: This story contains disturbing details about a double murder, mentions of suicide

Day two of Andrew Berry’s murder conviction appeal continued with his lawyer Tim Russel taking aim at the trial judge and now Crown prosecutors, calling them “sneaky” by alleging they deliberately and repetitively brought up evidence that had been deemed inadmissible.

In 2019, Berry was found guilty of second-degree murder for killing his two daughters, six-year-old Chloe and four-year-old Aubrey. During a six-month-long trial, the jury heard each girl had been stabbed dozens of times and that Berry was found in his Oak Bay apartment with stab wounds to his neck and throat.

During Berry’s trial, Russel argues that a key feature of the crown’s strategy was using Berry’s silence — not asking about his daughters while he was in hospital — as evidence that he was guilty.

B.C. Supreme Court Justice Miriam Gropper ruled the crown’s silence theory as evidence of guilt, was “inflammatory”.

“Put it out of your minds,” Gropper told the jury.

But Berry’s lawyer says the prosecution didn’t listen and continued to deliberately refer to the theory throughout the trial, and as a result, built up prejudice against his client.

One of the three justices presiding in the appeal pushed back at this idea, asking if the jury came back during deliberations with any questions with regards to Berry’s silence.

“No,” said Russel. “The real prejudice is that it’s gone into the back of their minds. They’re not talking about it.”

Berry’s lawyer also argued the trial judge failed to adequately instruct the jury that all Canadians have a chartered right to silence to explain Berry’s silence, calling the judge’s omission “fatally deficient.”

Then came the matter of Berry’s attempted suicide. Russel says that during the trial the Crown portrayed Berry’s suicide attempt as proof of his guilt and that Justice Gropper failed to instruct the jury on alternate ways of interpreting Berry’s suicide attempt, with an emphasis on his altered mental state. 

Justice DeWitt-Van Oosten pushed back at Russel’s argument, saying the jury was told to take his condition into account at the time.

“When you take pieces out and say pieces should be more robust, it sounds like your complaint is that the [trial judges] charge could have been more comprehensive, specific to the defence’s theory, and the fact that it wasn’t is a fatal flaw,” said Justice Oosten. “That’s not an argument that generally garners much favour in a review.”

Russel rebutted, saying the trial judge should have better warned and cautioned the jury to handle this information “with the utmost care.”

Berry’s lawyer then went on to add that Crown prosecutors never provided intent as to why Berry murdered the girls, and they only offered speculation as to why he might have done it. As a result, Berry’s lawyer argues that the charge pursued should have been manslaughter, not murder, because intent wasn’t proved.

Tuesday afternoon wrapped with Berry’s lawyer arguing that the trial judge made yet another mistake by not allowing the jury to fully hear the defence’s theory of an inadequate police investigation and of the potential of a third-party suspect, something he says created “tunnel vision” for the rest of the trial, and ultimately affected the outcome.

In the last half hour of the day, Crown prosecutors briefly began to speak, pointing to precedent cases as the basis to define what a ‘person of authority’ is, and thereby the admissibility of statements Berry made to nurses and first responders. 

Crown is expected to continue their remarks Wednesday. The appeal is scheduled to continue into Thursday.

A judgement isn’t immediately expected.

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