An Oak Bay father convicted of murdering his two young daughters on Christmas Day 2017 was not advised of his right to counsel when he was detained in hospital under the Mental Health Act in the days following their deaths, his lawyer said Monday.
That breach of Andrew Berry’s charter rights — which allowed statements Berry made to nurses and doctors to be entered as evidence during his trial — was one of many errors made by the judicial system, Victoria lawyer Tim Russell argued before the B.C. Court of Appeal on the first day of a four-day hearing in Vancouver.
In September 2019, Berry was convicted of the second-degree murders of six-year-old Chloe Elizabeth and four-year-old Aubrey Kate, who were stabbed to death at his Beach Drive apartment.
In December 2019, he was sentenced to life in prison with no eligibility for parole for 22 years. Berry is appealing his conviction and his sentence. He is seeking a new trial or a reduced period of parole ineligibility.
Berry, who is in his late 40s, was not present in the Vancouver Law Court where the hearing is being held.
He is appealing his conviction on the grounds that the statements he made to paramedics and firefighters when he was found near death in a bathtub with a slashed throat should not have been admitted at trial.
The jury heard that Berry said “Kill me” and “Leave me alone” to the first responders in his apartment. Later, after coming out of surgery, he sat up in bed and said “Kill me” to his nurse and his sister, who is a police officer.
The judge was wrong when she found that Berry’s sister, whose name is protected by a publication ban, did not influence the prosecution, said Russell. He said it was an error in law to decide that she wasn’t acting and thinking like a police officer.
In a note to his sister, Berry wrote that her job as a police officer got in the way of him talking to her. In addition, she took notes of their conversations, reported them to her supervisors and made videotaped appeals to try and get him to confess.
“When you have a family member who is also a police officer, there’s an even greater risk of abuse of power by a family member. They can use all kinds of emotional triggers to try and get the person to speak,” said Russell. “It doesn’t matter that she wasn’t tasked as a police officer. It matters how Berry viewed her.”
More significant are the breaches of his charter rights, said Russell. Police deliberately held off arresting Berry because they would have to charge him and advise him of his right to silence.
It was also an abuse of power to detain Berry under the Mental Health Act and examine him twice without giving him access to a lawyer, Russell said, adding the importance of legal advice cannot be understated.
“There was a complete failure to advise him of his right to counsel and how to access counsel. … You have to accept this is a very aggravated, ongoing and repeated breach,” said Russell, adding that the medical statements should have been excluded from the trial.
The Crown is expected to begin its arguments this afternoon.
It’s not known how long it will take the appeal court to arrive at its decision.