An appeal for the father convicted of murdering his two daughters on Christmas Day 2017 in Oak Bay, B.C., got underway at the B.C. Court of Appeals in Vancouver on Monday.
Andrew Berry was found guilty on two counts of second-degree murder in the killing of six-year-old Chloe Berry and four-year-old Aubrey Berry, and sentenced to life in prison with no chance of parole for 22 years in December, 2019.
Berry was found with multiple stab wounds in the bathtub of his apartment, while his two daughters were found stabbed to death in their beds.
At trial, prosecutors argued Berry’s wounds were self-inflicted, and that he had killed the girls after hitting rock bottom over a gambling addiction that left him unable to pay his bills, and fear of losing custody of the girls to his ex-partner.
A jury rejected Berry’s defence that he was actually attacked by a “dark-skinned” man linked to a loan shark named “Paul,” to whom he owed a major gambling debt.
Appeals are not fresh trials, and the B.C. Court of Appeal does not re-examine the facts of a case but rather rules on whether there were errors made in the application of the law.
On Monday, Berry’s lawyer Tim Russel told the justices John Hunter, Patrice Abiroux and Joyce DeWitt-Van Oosten his client was appealing on three grounds.
Russel argued trial judge Miriam Gropper erred in her charge to the jury, that she erred in in a ruling about the influence of statements Berry made in the presence of firefighters, paramedics and health-care workers at the crime scene and hospital, and that police investigation subsequent trial process were inadequate.
Russell argued Friday that while in hospital and being held under the Mental Health Act, Berry’s charter rights were violated because he wasn’t informed of his right to silence.
“In a pure mental health context, you have a right to silence,” he told the court.
He argued police knowingly allowed a doctor to take Berry’s statements, and that the doctor had “knowledge Berry was going to be prosecuted.”
During Berry’s trial in B.C. Supreme Court, the firefighter who found Berry in his bathtub testified he thought he heard Berry say “leave me alone” and “kill me.”
Russell also argued that during Berry’s trial, Justice Gropper was “patently incorrect” in her finding that paramedics and firefighters were “not persons of authority” who could influence the prosecution.
“The trial judge doesn’t adequately explain why firefighters and paramedics couldn’t have had the ability to influence the prosecution,” Russell argued.
“Firefighters and paramedics (were) clearly acting in concert with police.”
Russell made similar arguments about Berry’s statement to a nurse while subsequently in hospital.
At several points Russell faced interjections from the judges asking him to identify what legal error he was arguing.
The Crown is slated to respond to Russell’s arguments beginning Tuesday afternoon ,with four days set aside for the appeal hearing.
-With files from Kristen Robinson