A B.C. father convicted of murdering his two young daughters did not have his rights violated in the hours and days after first responders found him in his apartment along with the two dead girls, Crown lawyers have told an appeal hearing.
Andrew Berry was convicted on two counts of second-degree murder in the stabbing deaths of his daughters, four-year-old Aubrey and six-year-old Chloe on Christmas Day, 2017.
Earlier this week, defence lawyer Tim Russell argued that Berry’s Charter rights were violated when statements he made to firefighters, paramedics and doctors were accepted as evidence at trial because those people could have been viewed as persons of authority.
Berry’s trial heard that he had said “leave me alone” and “kill me” when found with suspected self-inflected stab wounds in his bathtub.
On Wednesday, Crown prosecutors told the B.C. Court of Appeal that the trial judge, Justice Miriam Gropper, had correctly interpreted the law when she found no evidence that Berry confused paramedics with police.
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Berry was not under arrest at the time and first responders were strictly offering medical care, the Crown argued.
The Crown also addressed the defence argument that Berry believed he was being detained while he was in his bathtub, contending that the trial judge found no evidence he was physically or that he had to comply.
Berry’s lawyer also argued that the trial should not have heard statements Berry made in hospital to his sister, who is a police officer.
The Crown argued Wednesday that Gropper correctly found no evidence Berry’s sister’s visit to the hospital was as a person of authority, adding that she was not a part of the investigation.
On Tuesday, Russell argued that prejudice against Berry built up throughout the jury trial, calling it a Crown “ambush strategy”. He said Gropper told the jury at the time that Berry’s silence was not relevant, but she should have given more detailed, firm instructions.
Berry had the right to maintain silence while held under the Mental Health Act, but was never informed of those rights, Russell argued.
Berry is appealing both his conviction and his sentence. He was convicted in September 2019, and sentenced to life in prison with no chance of parole for 22 years.
At trial, prosecutors had argued he 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 defence’s argument that the girls had actually been killed by someone working for a loan shark to whom Berry owed a large sum.
The appeal is slated to conclude on Thursday.
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