Blood in the Water Read online

  But not right away. First, Chief Justice Kennedy will confer with the lawyers, and then he will deliver his instructions to the jury. Only then will the jury retire to deliberate. Before the jury enters, Justice Kennedy tells the lawyers that he’s received their two separate written theories of the case, and that in his instructions he will put both theories before the jury. He’ll also give the jury a version of what are known as “WD” instructions because they arose from a case, R. v. W.D., in which the testimony of the accused contradicted the testimony of other witnesses. WD instructions direct the jury to assess and weigh the testimony of an accused exactly the same way they would assess the testimony of any other witness. Craig Landry’s live testimony and James Landry’s videotaped statement are both legitimate pieces of evidence.

  On another point, Canadian Press has asked for access to James Landry’s video interview. Kennedy agrees that the tape, once played, is a public record and should be made available. The problem is that once the jury has begun its deliberations, the evidence—including the interview—belongs to them, and they may well want access to it. After the verdict has been rendered, though, there’s no reason why the tape shouldn’t be available.

  When the jury enters, Justice Kennedy starts by thanking them for coming in on a stormy day. His next task is to “charge” them. He is an old hand at this. He has been on the bench for thirty-five years, the last fifteen as chief justice of the Nova Scotia Supreme Court. He’s well aware that he is instructing twelve people whose experience of the courtroom ranges from limited to nonexistent, and he intends to ensure that they understand exactly what they are to do and how they are to do it. His charge will be detailed, meticulous, and repetitive. It will take about three and a half hours to deliver. He will, he says, “explain to you your function as a jury, and make reference to the charge against the defendant, Joseph James Landry.”

  And so he begins.

  “The Crown prosecutors called witnesses whose evidence in their opinion proves that James Landry is guilty of second degree murder. The defence, on the other hand, would say no, that the evidence is not of sufficient weight or sufficient credibility to convict the accused. You have heard the addresses of both counsel, and it’s your duty now to weigh all of that evidence and do that with fairness after listening to what I have to say with respect to the law.

  “You the jury are the judges of the guilt or the innocence of the accused. You base your decision on the sworn evidence of the witnesses and the exhibits that were tendered as a result of that evidence, and also the two agreed statements of fact. I talk about the law. You turn evidence into fact.”

  He instructs the foreperson to oversee the deliberations and keep the conversation on track. Any verdict the jury returns has to be unanimous, and so Justice Kennedy suggests that the foreperson call for a vote from time to time, because “sometimes you’ve got unanimity and you don’t know it.” He cautions jurors against expressing any definitive opinion too early in the process; they need to make every effort to reach unanimity. That said, they’re also obliged to obey their own consciences, which means that sometimes a jury can’t reach a unanimous decision.

  The two basic principles to remember are the presumption of innocence and the need for proof beyond a reasonable doubt. The defence does not need to prove anything. It is the job of the Crown to prove guilt. Reasonable doubt is based on reason and common sense, and on what the evidence tells you. If you concluded that he’s “probably guilty or likely guilty,” you would have to find him innocent. The key word is “sure,” and jurors should concentrate on that word.

  The charge is second degree murder, Murder 2, which is a form of “culpable homicide.” Homicide simply means to cause the death of a human being by any means. Culpable homicide means to cause death by means of an unlawful act; it can be murder, manslaughter, or infanticide. Murder occurs when a person means to cause either death or bodily harm likely to cause death. First degree murder is planned and deliberate murder, including assassination or contract killing. Killing a police officer or a prison guard is also Murder 1. Murder 2 is any murder that is not Murder 1.

  To prove Murder 2, the Crown must establish five things, beginning with the identity of the accused and the time and place of the event, neither of which is at issue here. It must further establish that the accused committed an unlawful act, that the unlawful act caused the death in question, and that the accused meant to cause death or bodily harm likely to result in death. In this case, the Crown alleges a series of unlawful acts: that Phillip Boudreau was shot in the hip or leg; that he was gaffed and towed, which constitutes assault; and that he was tied to an anchor and dropped to the sea bottom. These would all be unlawful acts.

  The next element is causation, proving that the unlawful act caused or contributed to Phillip’s death. The act doesn’t have to be the sole cause of death, says Kennedy, or even the principal cause; it just has to be a significant contributing cause of death. He notes that this is a murder trial without a body, and yet there’s strong evidence supporting the claim that Phillip is dead. He was a fixture in Petit de Grat, but he hasn’t been seen since that fateful day. His boots, hat, and boat have been found, however, and Craig Landry “told you what happened to Phillip Boudreau.”

  Justice Kennedy reviews Craig’s testimony in detail: Craig saw a puff of smoke from Phillip’s outboard; Phillip said he wasn’t cutting any traps and also that his leg had been broken. One issue is the question of when Phillip actually died. Did he die in the ramming, as James suggests? Or—following Craig’s story—when he was being towed? Or when he was dropped into the sea? In the end, though, it hardly matters. Clearly the actions of both James and Dwayne were—certainly in Craig’s account—significant contributing causes of death.

  James’s statement and Craig’s testimony coincide up to the point of the third ramming. The rest of Her Majesty’s Story rests entirely on Craig’s testimony. So Justice Kennedy notes that the credibility of Craig Landry is “central to your finding on this sentence.” He says he is obliged to give the “Titus warning” to the jury about the reliability of witnesses who are facing criminal charges themselves. This warning derives from a 1983 Ontario case, R. v. Titus, where a lower court refused to allow a defendant, Joseph Titus, to grill a prosecution witness named Miehm about an outstanding murder charge against Miehm himself. Wrong, said the Supreme Court of Canada; if the Titus jury had known about the “disreputable” witness Miehm’s “background and the motive which it afforded him to favour the prosecution’s case,” they might have weighed his testimony differently. Similarly, in James Landry’s trial, Craig might well be motivated to testify against James to save his own neck, as Luke Craggs has strongly implied. The jury, says Kennedy, should approach such testimony with care and caution. This is “one factor for you to consider. How much it influences you is up to you.” Is Craig’s account of Phillip’s gaffing and sinking “a fabrication, or does he give the kind of detailed evidence that a truth-teller might give? You’ll decide.”

  At this point, based on the overall weight he’s given Craig’s dragging-and-drowning story in particular, I sense that Chief Justice Kennedy has personally concluded that the Crown has proven its case, that Craig is a credible witness, and that James is guilty of Murder 2. He does note, at the beginning and end of his discussion of Craig’s testimony, that this is one witness’s account of events—but between those brackets he talks about Craig’s story without such qualifications. He doesn’t say, for instance, that “Craig Landry has provided you with his account of what happened.” Instead he says, “Craig Landry has told you what happened to Phillip Boudreau.”

  After a break, Justice Kennedy turns to intention, the fifth and final ingredient in Murder 2. The question here is whether the accused “meant to cause death.” Kennedy has already noted James’s statement that he wanted “to get rid of him, kill him or whatever.” Now he asks, How do we figure out intention? It is fai
r to infer “that a sane and sober person intends the natural and probable consequences of his voluntary actions. If Phillip Boudreau’s death was a natural consequence of James Landry’s actions, you are entitled to conclude that James Landry intended to kill Phillip Boudreau by those actions. You are not required to draw that conclusion, but you are able to draw that inference.” A bit later he says, “I repeat: he told the police that his intention was to get rid of Phillip Boudreau. Intention.”

  After a further quick review of the elements of Murder 2, he turns his attention to the “included offence” of manslaughter. If the jury finds James not guilty of Murder 2, they may still find him guilty of the “included offence” of manslaughter.

  What is an included offence? Chief Justice Kennedy provides a careful analysis. The nub of the matter is that if the jury finds the Crown has failed to prove murder beyond a reasonable doubt, the jury must then consider whether the Crown’s evidence would suffice to convict James of manslaughter. If so, they would acquit him of murder but convict him of manslaughter. Justice Kennedy cautions the jury that, in instructing them about manslaughter, he’s not making any comment at all about the strength or weakness of the Crown’s argument for a murder conviction. Manslaughter is simply a possibility that they need to understand.

  So what are the elements of manslaughter?

  Essentially, the difference between murder and manslaughter is intent. A murder is the consequence of an unlawful act that is intended to cause death. Manslaughter is such an act without the intention of causing death. It is conduct that is “objectively dangerous,” an unlawful act that would subject another person to the risk of bodily harm which is neither trivial nor transitory. In that connection, says the judge, “remember what James Landry told the police. This is a case where the defendant in a statement says what he was intending to do on that day.” The Crown would say that the relevant evidence would be about the shooting, about the gaffing, about pulling Phillip out to the mouth of the harbour while he’s gaffed, about tying him to an anchor and throwing it overboard. But once again, the only evidence that those things happened, aside from the shooting, is the testimony of Craig Landry.

  In summary, says Justice Kennedy, “you don’t go to manslaughter unless you have found him not guilty of Murder 2.”

  Next, Kennedy explains that there are several different ways of participating in an offence and being guilty of it. First, one can simply commit the offence, alone or with others. Or one can help someone else commit it, which would be “aiding.” One could encourage them through words or conduct, which would be “abetting.” Both of these require that you know that the other person intends to commit an offence, and that you intend to help them or encourage them to do it. For example, if you consider Craig Landry’s testimony credible, then the whole discussion about whether the water was deep enough to drop the body would constitute abetting.

  Then Justice Kennedy delivers the WD warning about James Landry’s video statement. An accused’s testimony should be treated just the same as any other testimony—and “if it leaves you with a reasonable doubt, even if you don’t believe it, you must find him not guilty. And even if what James Landry said does not leave you with a reasonable doubt, you may convict him only if the rest of the evidence proves his guilt beyond a reasonable doubt.”

  Finally, both the Crown and the defence have submitted their quite concise theories of the case, and the judge reviews them. The Crown’s theory is that James Landry said he wanted to kill Phillip Boudreau, and he did. Phillip’s body has not been found because James towed the body into 12.2 fathoms of water, where he helped tie Phillip to an anchor and dropped him in the water. He spirited the gun away from the boat and told police a false story to hide his tracks. The combination of witness testimony and physical evidence proves beyond a reasonable doubt that James killed Phillip. He simply did not hide his tracks well enough.

  The defence’s theory begins by noting that the only evidence that can speak to how Phillip Boudreau may have died comes from Craig Landry’s testimony and from James Landry in his statement to police. Craig’s testimony isn’t credible because he clearly wanted to avoid criminal liability for his role in the killing. James’s confession must be treated with great care because he wanted to take the blame for the murder in order to protect other men on the boat and their families. In short, Craig understated his involvement and James overstated his involvement. The evidence needed to convict is unclear, and it would be unsafe to rely on that evidence as proof beyond a reasonable doubt. So James must be found not guilty.

  “Those are the theories of the Crown and the defence,” says Justice Kennedy. “Your verdict will be based on the facts as you find them, and the law as I have endeavoured to explain it. On the back of the original indictment, handwritten, are the three possible verdicts: guilty of second degree murder, guilty of manslaughter, not guilty. There will never be any situation where you will explain your verdict, and you do not speak about your deliberations to anybody else. What takes place in that jury room is amongst the twelve jurors and nobody else. As soon as you’re not twelve, you don’t deliberate. For example, if two or three jurors went out for a smoke. If you’re missing somebody, you stop.

  “Don’t wonder about consequences, please; consequences are for me or for the courts. It would be improper to involve consequences in any respect in your function of determining the matter. You’ve taken an oath to well and truly try the charges and render a true verdict according to the evidence; if you honour that oath you will have done what is expected of you. If you’re still deliberating at 6:00 you’ll have had a long day. If you’d like a little more time, that will happen, but by 6:00 it’s time to get a good meal and a comfortable night’s sleep.”

  And with that the jury retires to the jury room, where they’ll have lunch before starting their task. The judge confers with the lawyers, and brings the jury back for a moment to clarify the difference between direct and circumstantial evidence. If you come in from outside and report that it’s raining, that’s direct evidence; if I see you come in dripping wet and folding an umbrella, I may infer that it’s raining, and that’s circumstantial evidence.

  “Both are valid types of evidence, and the law treats both equally,” he says. “Now please finish your lunch uninterrupted. Counsel will remain within fifteen minutes of the courthouse in case their presence is needed.”

  * * *

  —

  So now we wait. It’s 1:00 in the afternoon; people go for a quick bite—there’s no telling when the jury may return—and then hang around the courthouse lobby, talking in small groups, tapping on their cell phones, reading, listening on headsets.

  It’s an odd crowd—the families of both the accused and the victim, reporters and broadcasters, sheriffs, lawyers, witnesses, spectators. At one point during the afternoon I drift over to Phillip’s family and fall into conversation with his sister Margaret Rose, also known as Maggie. The others in the family group include Phillip’s brother Kenneth, a husky, scowling man, and his brother Gerard’s wife, Linda, petite and intense, who’s now fishing the family lobster licence in the vicinity of Mackerel Cove and is said to be very capable and very competitive. Maggie and her daughter have just had tattoos inscribed across their shoulders, at the base of their necks, displaying the words “Midnight Slider.”

  So what was he like, this brother of hers, this midnight slider? Maggie says he was a happy guy who loved to dance, and who did so quite furiously, often alone, at Saturday dances at the Social Action Centre in Little Anse, where James Landry lives, and at the Royal Canadian Legion in Grande Anse, on the Cape Breton side of Lennox Passage. He loved music but didn’t play an instrument. He and his dog Brudy were devoted to each other; he was also devoted to Maggie’s children and grandchildren. I use the words “thief” and “poacher” to see if they bother her. They don’t—and in fact she comments that, on June 1, Phillip “wasn’t poaching. He wouldn
’t be poaching or cutting traps in broad daylight, where everyone could see him. He’d do that at night. That morning he was out picking up two traps, one for Huntley David and one for Gerard, that had been driven into water that was too shallow for their big boats to go in there.”

  She says that Phillip had been diagnosed as bipolar one time when he was in prison in Renous, New Brunswick, and she mentions something to the effect that he had been tested at ten and found to have the mind of a five-year-old. The family was told he would never grow up entirely, which may help explain his apparent inability to understand and foresee the fury that his taunts sometimes engendered in others. On the other hand, several people told me of an occasion when Phillip had apparently been taken into custody and sent for a psychiatric assessment. The psychiatrist reportedly phoned the parents to say that there was “nothing wrong with your son.”

  “If you think there’s nothing wrong with my son,” snapped Gerard Boudreau, “then there’s something wrong with you.” And he clapped down the phone.

  Although Maggie accepts that Phillip was a thief, she insists that he wasn’t violent; he would never have done to anyone what the Twin Maggies crew did to him. His relationship with James Landry had apparently been cordial enough; James used to come over and have tea with their parents from time to time, and he once gave them some money to send to Phillip in prison. I find this hard to believe, but later I learn from a reliable source that James also took food and clothing to Phillip when he was hiding out in the woods, and that James sometimes bought poached lobsters from Phillip himself. Petit de Grat is a small place, and its relationships are complex.

  I drift back to the assembled reporters, photographers, and cameramen. There’s still no sign of the jury, which rather surprises people. Broadly speaking, the murmured consensus among the journalists and other observers seems to be that the Crown has proven its case, and that the verdict will be guilty of second degree murder. So what’s taking so long? What’s going on in that jury room?