Blood in the Water Read online

  Richardson isn’t satisfied, but he moves on to the question of who was at the wheel. If James pushed Dwayne aside and took over the controls, presumably Dwayne’s account will confirm that, because Dwayne is also being interrogated at this same time.

  “Okay. I’m telling you what I done.”

  “What was Dwayne saying while all this was going on?”

  “Nothing. He never talked. He turned pretty white. I guess he felt he had done wrong too.”

  “I don’t want you being straight up with me today about firing those shots and then trying to take the blame for something someone else did.”

  “No, no,” says James. And then, a bit later, “If I had to do it now, I wouldn’t do it. But it’s too late.”

  Richardson returns to the question of the gun and the shots that were fired, but nothing much else is revealed. At 5:31 he leaves the room, returning a minute later to say that Staff Sergeant Gerry Landry, a colleague from New Brunswick, is going to join them. The three will drive down to James’s home in Little Anse so that James can retrieve the rifle. They leave the interview room at 5:53.

  * * *

  —

  Back in Courtroom 3, Shane Russell stops the playback, and Justice Kennedy calls a fifteen-minute break. When the trial resumes, Luke Craggs points out that the police took a small voice recorder and recorded all the conversation in the car. The audio quality is very poor, and much of the conversation is inconsequential. Nevertheless, he will be referring to some passages from that audio material in his closing statement. He suggests that, rather than making everyone suffer through three hours of terrible audio, the Crown might agree to simply give the jury a transcript. Or the two sides might consent to providing a transcript of only the relevant passages. Or the jury could receive a whole or partial transcript along with a copy of the audio.

  “This is not a controversial issue,” declares Justice Kennedy. “Work it out. If there are issues, I’ll deal with them in the morning. Bring in the jury, please.”

  The video of James’s interview resumes, picking up the conversation at 10:43 p.m. on June 7. Staff Sergeant Gerry Landry, who’s now joined Brian Richardson in the interview room, notes that James and his RCMP escort have just arrived back from Little Anse, where James has retrieved a rifle from under his mattress. But although the Mounties don’t know it yet, this will turn out to be the wrong rifle. The actual weapon—the rifle belonging to Dwayne—has just been seized from Dwayne’s home, so James’s hoax will almost instantly be exposed. James has tried once again to help Dwayne and Craig by assuming more blame than he deserves.

  James still wants to talk to his daughter—he has been asking frequently ever since he admitted his involvement in Phillip’s death—but Richardson keeps putting him off, assuring him that it will happen, but not just yet. James is clearly getting tired.

  Richardson still believes that the Twin Maggies towed Phillip’s body out to sea, and he tells James that there were witnesses who saw the whole episode from the shore. James scoffs at the idea. Who was up walking the shore at 6:00 a.m.—and what could they possibly have seen, given the distances involved?

  The two Mounties, Richardson and Landry, begin to show James a video interview between Constable Rob Daley and Phillip’s brother Gerard, whom James calls “Bowser.” In the video, Gerard says that “James Landry called me up the night before, and he asked me if Phillip was around. I said, ‘Yes, Phillip is sailing around in the harbour’ and he said, ‘This is his last night on the water. He won’t be on the water tomorrow.’ So that was all right—he hung up—”

  James interrupts the playback, saying “Aha. I never said that. I never said anything. I never said that at all. That’s a lie.”

  The Mounties continue the playback. What happened on the water that morning, says Gerard, was that Phillip “was standing up, then I don’t know if they had a few words among them. I can’t say that; I didn’t hear them. The only thing I heard was two gunshots, and then the motor stopped. Then Phillip was sitting down, so he shot the motor. I don’t know if he hit him in the legs or not, I can’t see it. Anyway, he was sitting down and then I looked at the Twin Maggies again. He shot three more shots and then they went around the boat and the speedboat was on that side of the boat. I seen him on the stern and farther out, and then that was it. Then the motor was gone, Phillip was gone, and they were smacking the boat with the big boat. But I know they towed something from there, going that way.

  “They towed him, that’s what I see. It could have been his body, but they didn’t tow the motor. They found the motor, they found the boat, they found everything else but him. So I figure it’s him.”

  Daley asks, “How certain are you that they were towing something?”

  Gerard responds, “Because I seen it, it was flapping on the water like that.”

  The Mounties stop the Daley video, and James says, “I’d like for him to see that from his place when we were—I’d like to see it. You go at his place and you look and see how far we are from there.”

  Staff Sergeant Landry notes that Gerard had binoculars—and also notes that Gerard’s account of what happened is in agreement with other evidence—Phillip did stand up and then sit down, the Twin Maggies clearly did run over Midnight Slider. In all, Richardson concludes, “he had a pretty clear account.”

  “Yeah,” says James, “he had a pretty clear account. Maybe he had drank twenty-four beer before he said that.”

  * * *

  —

  For the record, James is correct about the distances. From a boat in Mackerel Cove, Gerard’s house is little more than a small white blotch on the Alderney Point shore. Even with binoculars it would be hard to distinguish a person at that distance, let alone see what the person was doing.

  Another parenthetical note: Gerard says that James told him that this was Phillip’s last night on the water, and adds, “So that was all right.” Clearly, that was not all right—but the phrase is an interesting feature of Isle Madame storytelling; it means “That’s the end of that part of my story.” Often it fits well with the story—“The road was all plugged up with snow, so I got my four-wheeler with the plow blade and cleared it. So that was all right.” On other occasions, the phrase sounds very odd indeed. “When we find him, his leg is broke and he got a concussion. So that was all right.” Then comes a transitional phrase—“Next thing I know, he’s screamin’ at me”—and before the final act of the story, often the raconteur will use the phrase “last goin’-off,” as in, “Last goin’-off, he’s arse over teakettle in a snowbank, and that’s where he stayed.”

  So that was all right. Next thing, in the video, James is telling the two Mounties that Gerard must have stolen his very detailed story from Pigou—Venard Samson, the fisherman who towed Phillip’s boat to the wharf. Pigou was fishing not far away, and he could have been close enough to see what Gerard describes. In James’s view, Pigou told the story to Gerard, who then adopted it as his own. That would account for the very odd fact that Gerard claims to have seen the whole thing—the murder of his brother—but didn’t call the police for several hours because, he says, he didn’t have the number. (“The number is 9-1-1,” scoffs a neighbour. “How hard is that?”)

  In addition, Fisheries officer Norman Fougère says he called Gerard at 9:00 that morning—he has the phone record—and that Gerard told him he had sent Phillip to Mackerel Cove to pick up a couple of traps that the sea had tossed up on the shore, where Gerard couldn’t go in his big boat. Phillip, Gerard said, had already brought one trap out and had gone back for another. But Gerard said nothing about watching the death of his brother two hours earlier.

  So that was all right. Back on the video, because James had asked about who saw the rifle being passed up from the Twin Maggies to the wharf, the two Mounties show him photos of Midnight Slider and the bullet holes in the hull. A metal rod is running through one of the holes “to show
the direction of the bullet,” says Staff Sergeant Landry.

  “And when they followed it through,” Richardson says, “they actually found one of your bullets still in the boat, okay?”

  “Okay.”

  “Is that bullet going to match the gun that you gave us tonight?” asks Staff Sergeant Landry.

  “Yeah, .30-30 I guess,” says James. “I didn’t lie. Why would I lie to take you home to give you the gun?”

  So that was all right. The discussion goes on, reviewing the scuff marks, paint scrapes, and marks on the two boats, going over and over the elements of James’s story. And then Gerry Landry, wondering whether James is misleading them about the location of the body, says, “If the body tomorrow was to show up, the question is, Could there be a bullet hole in his head?”

  “No, no, no.”

  “Est-il possible?”

  “Impossible.”

  “Impossible.”

  “Impossible,” says James. “There’s not a bullet in his head.”

  The conversation continues, rambling and discursive, reviewing some of the evidence. Finally Gerry Landry says, “James, did you tell the complete truth today?” James says he did.

  “Are you ready to swear a statement to tell the complete truth?”

  “Do I have to do that tonight?”

  James seems flustered, and asks once more to speak with his daughter or his wife. He wants to tell them where his wallet is and to make sure they feed his dog. He wants to tell them that he told the truth, that he gave the gun to the police, that he’s all right.

  “That’s it,” he says to the Mounties. “I told you the truth, the whole truth, and I can’t tell you no more. If you find him, good luck—but you know from my prayer that I’m going to say tonight that I hope you don’t find him.”

  Gerry Landry wants to know why he doesn’t want the body found. Is he afraid that the evidence from the body will contradict James’s story?

  “No, no, I’m not afraid. I hope you do find him, but leave the crabs to eat him. They don’t have to put him in the cemetery. He don’t deserve a Mass.”

  Another Mountie, outside the room, talks to Carla and to James’s wife, Ann. Meanwhile Richardson leaves the room and Landry speaks to James for thirteen minutes in French, which is translated in the transcript provided to the jury. Somehow the police have confirmed that during the altercation, Dwayne was actually at the wheel. Landry wants to know why James lied about that, saying that he rather than Dwayne was driving the boat—why he didn’t tell the truth about that in the first place.

  “Well, to save him a little bit.”

  But the truth is that Dwayne was driving the boat, right? Yes, he was.

  “Was he as angry as you?”

  “Ah, I think so, yes.”

  Landry returns to the question of the gun: Dwayne asked Craig to get it, then Craig loaded it and handed it to James with four bullets in it. After a few more questions and answers, the reason for this line of questioning becomes clear.

  “This is the important part,” says the Mountie. “Because we were talking about seal hunting. When you go seal hunting you have a lot of bullets. But there were just four bullets. It’s pretty obvious that there was a problem with Phillip.” So he believes that James and Dwayne were thinking, “We’ll have the gun, and if we find him we’ll get even with him.”

  “What?” says James, taken aback. Landry keeps pressing the suggestion that they had only four bullets because they weren’t hunting seals, they were hunting Phillip. But James rejects the idea completely. There were only four bullets in the gun because they only had four bullets, and that’s all there is to that.

  Landry leaves the room and returns fifteen minutes later with Brian Richardson. By now it’s midnight, and James finally gets to speak with Carla—on a speakerphone, with audio and video recording, and two policemen in the room. It isn’t much of a conversation. James tells Carla that he’s told the truth, and Carla responds that “whatever you said, we just take that and move on, okay?” James explains where his wallet is, and Carla confirms that she’s fed the dog. James tells his wife and daughter that he loves them, and they tell him that they love him. And that’s really what the call is all about.

  James is tired, but this long interrogation is not over. The policemen want him to give a sworn statement attesting to everything he’s told them today.

  * * *

  —

  Back in Courtroom 3, Shane Russell stops the video playback. The only remaining video evidence, he says, is James giving his sworn statement, and we’ll see that tomorrow morning. After that, Justice Kennedy tells the jury, the defence will have an opportunity to present evidence, and then the two sides will make their closing arguments. He reckons that will take all of Thursday. Friday morning he will give his charge to the jury, who will retire to determine their verdict.

  The jury is excused, and Justice Kennedy describes to the lawyers the charge—the instructions—he’ll provide to the jury. He will review the verdicts available to the jury, lead them through some tricky issues about evaluating the evidence, and talk about the cause of death and when Phillip’s death actually occurred. He’ll remind them that the absence of a body doesn’t mean an accused can’t be convicted of murder. He frequently refers to “Watt,” which turns out to be Watt’s Manual of Criminal Jury Instructions, written by Mr. Justice David Watt of the Court of Appeal for Ontario. If you’re seeking a little light reading, you should pick it up: it’s only 1350 pages and it costs just $366.

  Both Shane Russell and Luke Craggs have some concerns they’d like the Court to address in the charge. Justice Kennedy agrees to address these issues, and adjourns the trial overnight. In the morning we will hear James Landry’s formal, sworn, recorded statement: his KGB statement.

  To me, “KGB” is the Soviet secret police, Vladimir Putin’s finishing school, but to a Canadian lawyer it’s a statement made in accordance with the rules set down in R. v. B. (K.G.), a 1993 Supreme Court of Canada case. In that case, three of four youths involved in a murder had given statements claiming that the fourth youth (known by the initials K.G.B.) had actually stabbed the victim. At trial, they withdrew those statements. One way or another that made them liars; either K.G.B. had stabbed the victim or he had not, and the three had now sworn to both. The prosecutors argued that they had told the truth the first time, and that their original statements were reasonable evidence that K.G.B. had indeed done the stabbing, despite the later denial.

  The court agreed, ruling that such evidence could be considered on three conditions. First, the person must have spoken under oath, with appropriate warnings about the legal penalties for lying. Second, the whole interview must have been videotaped. Third, it must be possible for the person to be cross-examined by opposing lawyers at trial.

  When the police obtain a KGB statement, they try to meet these three conditions—and after that, whatever the accused says is considered to be evidence that speaks to the facts, not just to the credibility or the state of mind of the accused. If James says he was driving the boat, that’s eyewitness evidence that he was indeed driving the boat, no matter how he may change his story later.

  * * *

  —

  On Thursday morning, Shane Russell tells the court that the two sides intend to submit an additional agreed statement of fact noting that there were no bullet holes found in Phillip Boudreau’s engine. They’ve also agreed that the jury should be provided with the audio recording and a transcript of the mostly trivial conversation that took place during the long drive to Little Anse for James to retrieve the rifle.

  The jury returns, and Justice Kennedy reminds them that in the video they’re about to see, what the police say is not evidence and certainly not truth.

  “Truth comes from witnesses who testify before you under oath, subject to direct and cross-examination,” he says, “and t
ruth only becomes truth because you decide it is. You decide what the facts are in this case. You decide who to believe, you decide whether you can believe people beyond a reasonable doubt. We’ll talk about that in my charge tomorrow, but by this time I sense that this jury has a pretty good sense about how these things work.”

  Shane Russell restarts the video playback. On the video, it’s just after midnight, which makes it June 8, 2013. The Mounties have sent for a commissioner of oaths. James is really sleepy—he’s been up for twenty hours—and he threatens to fall asleep in his chair. If he does, he says, “you’ll have to throw me a water in the face.” A little later, when they ask if there’s anything he needs, he says “a bunk.”

  The commissioner’s name is Corinne Sears, and she arrives at 12:33 a.m. She has James swear—as usual—to tell the truth, the whole truth, and nothing but the truth. In this case, though, the commissioner wants him to understand that lying under oath is perjury, and it’s a criminal offence. Richardson further informs him that if he tells any falsehood he could be charged for fabricating evidence, for obstructing justice, or for public mischief, all of them offences under the Criminal Code. James confirms that he’s making the statement voluntarily and that he hasn’t received any threats, promises, or favours.

  Then he goes over the story again. They came upon Phillip cutting traps right in front of them, taunting them as he did so. But then his motor caught on a trap line and stalled. Then, says James, “we got him.” He fired the four shots, and he thought he hit the motor, but since he now knows there are four holes in the boat, he’s “pretty sure I hit him, but I couldn’t guarantee with that.”

  Which is an interesting thing: when he first told the story he said categorically that he’d hit Phillip; now, having heard that all four bullets hit the boat, he’s not so sure. So was Phillip wounded or not? There’s evidence on both sides. The truth will be what the jury decides is true.