Blood in the Water Read online

  “People in Ontario think of lobster as luxury. But here lobster was always a poor man’s food. A fisherman’ll give you lobsters if he knows you’re hungry. Nobody kills somebody for a couple of lobsters.”

  “There’s only so much the cops and the Department of Fisheries can do, okay, I know that. But couldn’t they have picked Phillip up just before the lobster season on some charge or other and kept him out of circulation just until the season was over? Lots of things they could have charged him with.”

  * * *

  —

  James will appeal his sentence, without success. But the case against James was the Crown’s strongest case; with this outcome, there’s no chance that Dwayne can now be convicted of murder, and even less chance that Carla can be convicted of anything. A few weeks later I get a phone call. There’s been a deal. Dwayne will plead guilty to manslaughter and the charges against Carla will be dropped; the Twin Maggies will be released to her.

  On May 18, 2015, Dwayne enters his plea and is released on bail to his own home in D’Escousse until his sentencing hearing, scheduled for August but later postponed to September. On June 15, charges against Carla are dismissed after Steve Drake tells Justice Simon MacDonald that the Crown has “no realistic prospect of conviction.” Nash Brogan moves for dismissal, Justice MacDonald grants it, and Carla Samson turns around and walks out of the courtroom without a word.

  On September 11, Craig Landry is sentenced to two years’ probation. Since he was initially charged with second degree murder, Joel Pink has done a fine job for him.

  * * *

  —

  The only remaining matter before the courts is Dwayne’s sentencing. And so, on September 21, the parties assemble in the courtroom: Shane Russell and Steve Drake for the Crown, and Nash Brogan and his colleague T.J. McKeough for the defence, Mr. Justice Simon MacDonald presiding. The two sides have composed an agreed statement of facts that, once again, is basically Her Majesty’s Story, though it doesn’t include sinking the body with the anchor.

  T.J. McKeough calls Carla Samson to the stand. This will be the only time Carla ever speaks at length and in public. Under McKeough’s questioning, she recounts how her father asked her in 2005 if she’d be interested in the licence, because the Fisheries department’s paperwork was becoming too demanding for him. She took over the licence in 2007. At first James remained as captain, but after she and Dwayne bought Twin Maggies in 2012, Dwayne became the captain. She wasn’t fishing in 2013; she had decided to stay ashore “because of the stress that was happening on the water with Phillip Boudreau at that time.” She had been aware of Phillip for many years, but had dealings with him only after she started fishing. He would threaten them on the water, cut their traps, and—

  —Wait a minute. Shane Russell objects: McKeough is alleging criminal activity on the part of a man who is not here, who is not alive, and who has never been charged in this connection. None of this is contained in the agreed statement of facts, though it could have been raised when the statement was being prepared. The Crown has no way of responding to these allegations; since they’re outside the statement of facts, they’re irrelevant. McKeough should not be allowed outside “the four corners” of the agreed statement of facts.

  Brogan rises to say that the history between Phillip and the Samsons goes right to the issue of blameworthiness. In all the many cases of manslaughter that the Crown described in its brief on sentencing, there is not a single one where the victim brought on the confrontation or acted as the catalyst for the confrontation. The typical victim did nothing to provoke the fatal attacks, which resulted from bungled robberies, home invasions, sour drug deals, and the like. But in this case, Phillip’s activities set the incident in motion—

  Justice MacDonald isn’t buying it. Carla can talk about the impact of having her traps cut, but that’s all.

  So she does, describing not only the way a buoy line can be cut but also how the four sides of the trap itself can be cut so as to destroy the trap. Then you have to replace the traps, which cost about $100 each, and buy additional Fisheries Department tags for the new traps. In addition, during the four or five days you don’t have those traps in the water, you’re losing lobster catches averaging about five pounds per trap per day. Every year she would lose twenty to twenty-five traps, representing a loss of $5000 to $6000. The situation had been getting worse—and the only year she didn’t lose traps was a year when Phillip Boudreau was in prison. Later, in cross-examination, Steve Drake suggests that although she knows the traps were cut, she doesn’t actually know who cut them—to which she replies, “Phillip Boudreau told me he cut them.”

  She confirms that she is the sole owner of the lobster licence, and that she did indeed continue to fish the licence for the two seasons that Dwayne was away in Halifax. After Phillip’s death, her traps were never cut. Because the Twin Maggies had been impounded as an alleged murder weapon, she used the much smaller boat that had originally been her father’s. Just twenty-eight feet long, it was named T-Buddy, which was James’s genial salutation to people he knew: “How you doin’, T-buddy?” In Acadia, the short form for petit (little) is ti, so “ti-buddy” is “little buddy.”

  Carla herself is petite, but she’s a very capable captain. On May 10, 2014—almost a year after Phillip Boudreau’s death—T-Buddy and Carla’s crew of three were plunging through heavy seas off Petit de Grat, not far from Mackerel Cove. The surface of the water was frothing with whitecaps piled up by a thirty-five-knot gale from the southwest. Looking far out into Chedabucto Bay, Carla spotted a grey rock where no rock had been before. As she drew closer, she saw something waving.

  She altered course and headed for the unknown object. Soon she could make out what it was—a grey Zodiac inflatable boat, heaving sluggishly in the waves and filled with water. Manoeuvring alongside it, she saw two men in the swamped boat. One of them was a ghastly greenish white colour, barely conscious, clearly in an advanced stage of hypothermia.

  While she held the T-Buddy up against the boat, her crew pulled the two men aboard and got a tow line on the Zodiac. With the inflatable boat wallowing heavily behind, T-Buddy made its slow way towards the Premium Seafoods wharf in Arichat. The crew gave what comfort they could to the men, who turned out to be divers, one of them a heavily accented European. They had gone out from Canso, on the mainland side of the bay, and their engine had failed, leaving them adrift.

  Carla called ahead, and so when they finally arrived at the wharf an ambulance was waiting along with an RCMP cruiser. The two divers were taken to hospital, where the hypothermic one was put on an intravenous solution. After six hours they were released, not much the worse for what had clearly been a very close call.

  “Funny thing,” said the man who told me the story, “one of the Mounties said the skipper should get an award for rescuing those fellers, but then he found out who she was, and the story never even made the papers. Bad news travels fast, good news not so much.”

  After her own arrest, Carla was barred from any communication with Dwayne at all for seven months, and then for another six months she could talk with him only by phone. The impact on their twin girls, now ten, had been disturbing. To speak on the phone to their father, they had to go to their grandparents’ home down the road. They became very worried about divorce or separation, and very concerned about security without their father at home. They cried at night for months, and “couldn’t understand why I couldn’t speak to Dwayne and why Dwayne couldn’t speak to me.” When Carla had to send them off to Halifax to visit their father, “I would have to put them in the car, screaming, because they were afraid I wouldn’t be there when they got back, because of my arrest in front of them on June 7.” The children, she says, “have a lot of separation anxiety over this.” Getting Dwayne back after his guilty plea in May and then realizing they were about to lose him again after sentencing had been particularly painful.

 
“Last night they never slept a wink,” she reports. “They cried all night because they knew their father was leaving.”

  When asked about her involvement in her community, she mentions that she teaches religious education to students in grades one to three in the church, and that she is vice-president of the Richmond County Inshore Fishermen’s Association and the recognized agent for a group of crab fishermen. Carla is also a member of several local organizations, including the D’Escousse Civic Improvement Society, which operates the community hall. The community has been very supportive.

  “I’m very grateful for all the support we’ve received,” she says. “Prayers, candles, phone calls, visits, we’ve had quite a bit of support.” And Dwayne, who’s been living at home since his guilty plea in May, has been welcomed back into the community.

  Next up is Dr. Peter Scott Theriault, forensic psychiatrist and associate professor at Dalhousie University. He’s been asked by the defence to assess whether Dwayne Samson has a mental disorder, to comment on his mental state at the time of the offence, and to give an opinion about whether Dwayne is a risk to commit violent crimes again. Having interviewed Dwayne for two and a half hours, Dr. Theriault says that he’s a low risk to reoffend, that he isn’t suffering from a mental disorder, and that at the time of the attack he was apparently in a state of panic, overwhelmed by the situation and in a “mild dissociative state,” feeling he was observing the situation from above. He doesn’t doubt Dwayne’s description of his state of mind, since it’s consistent with what is known about responses to extreme stress. In his view, Dwayne wasn’t truly the captain of the boat; the events were driven mainly by James Landry, and Dwayne was largely following James’s lead. After the killing, for example, Dwayne felt sick and wanted to go home but James wanted to continue fishing, so that’s what they did.

  Steve Drake, who has spent many hours in a motel room studying Dr. Theriault’s report, goes after him like a beagle running down a rabbit. The only information you had was information you got from Dwayne Samson, right? You interviewed him two years and twenty days after the event. How accurate are his memories? Are the characteristics of a state of panic difficult to discover? Can’t you get that information from Google? Isn’t it possible that Dwayne made up his account of his symptoms? You say he has no record of panic attacks either before or after the event, and that he displayed those symptoms for only a few moments while Phillip Boudreau was being killed. Really? Didn’t he direct Craig to get the gun and load it? Didn’t he ask James if he was going to shoot? Wasn’t he driving the boat throughout? Was Dwayne capable of understanding what he was doing? Was he capable of understanding that he had options?

  “Well, that’s where things become a little more complicated,” says Theriault. The question really is, Could his emotional state have caused him to have errors in judgment? Maybe: “higher-level critical thinking can become impaired in states of extreme stress, as the individual’s primary motive is to escape or end the conflict in some fashion.”

  Drake gets Theriault to read out a passage from his report: “Mr. Samson reports that after the weapon was fired into the boat, striking Mr. Boudreau, that ‘I went into a state of panic.’ When asked to describe this, Mr. Samson described a state of autonomic hyper-arousal with typical symptoms seen in such a state, such as profuse sweating, dry mouth, shakiness, palpitations, increased heart rate, visual changes—‘everything was red’—and mild dissociative symptoms described by Mr. Samson ‘like I was above and looking down’ on the scene as the events transpired. He indicates that everything seemed to be happening so fast that it was like a ‘whirlwind’ and that he had no time to think.”

  Drake comments that Dwayne “didn’t report these symptoms to anyone until the date of this assessment. Any red flags during your assessment that he might have been making this up?” Was there any corroborating evidence from anyone else? Theriault responds that mental states are internal and subjective and wouldn’t necessarily be visible to others—and that the others weren’t primarily attending to Dwayne’s mental state anyway.

  After lunch, both sides confirm that they are satisfied with Dwayne’s pre-sentence report. Maggie Boudreau reads her victim impact statement. It’s the same one she read at James’s sentencing, but it seems to affect her even more this second time; her voice breaks, and she’s on the verge of tears.

  In his final argument, Shane Russell relies heavily on the fourteen-year sentence handed down to James Landry, noting Chief Justice Kennedy’s condemnation of “vigilante justice” and his stress on respect for the rule of law, which is “absolutely basically necessary to our society. If each of us were able to exercise revenge and retribution as we alone determine our lives, it would be chaos, characterized by fear and brutality. This would be Animal Kingdom.” Dwayne was just as responsible as James; the only mitigating factors are his remorse and his guilty plea. He could have stopped the attack. He had “time to call the police to seek out justice in a proper fashion.” The Crown calls for a sentence of twelve years.

  Nash Brogan responds that there have been two previous sentences coming out of Phillip Boudreau’s death. One is fourteen years in prison, but the other—which Brogan calls “fit and proper”—is two years’ probation. Craig Landry was also a party to the killing. How can the Crown accept probation for Craig and ask twelve years for Dwayne?

  Brogan stresses three main points. First, the events started with Phillip, and quickly got out of control. But in no other case cited in this hearing did the victim’s activities precipitate the conflict. Second, in the other cases, the killers had long criminal records, drugs and alcohol were involved, the victims were particularly vulnerable, and the attacks often involved planning. This conflict has none of those features. The Crown’s own chosen cases undermine the Crown’s argument. Third, these are decent, God-fearing people who’ve led blameless lives and have deep and demonstrated community support. Dwayne has been under house arrest for 772 days with absolutely no incidents, and he is “totally remorseful.” An appropriate sentence might be six to eight years.

  And at that, the court adjourns for the day.

  * * *

  —

  The next morning, Justice MacDonald directs Dwayne to stand and asks if he has anything to say.

  “My Lord,” Dwayne responds, “I’d like to say I’m sorry for the pain and suffering I caused Phillip Boudreau and his family and his friends and my family and my friends, and every day I live with regret that this incident happened.”

  Justice MacDonald reviews the arguments on both sides. He places heavy weight on Maggie Boudreau’s statement and on the “horrific” manner of Phillip’s death. He is satisfied that James Landry was the driving force in the events, but concludes that Dwayne played a significant role by calling for the rifle and asking James if he was going to shoot. He “should have known that there was animosity and dislike between the people on his boat and Mr. Boudreau,” and he “could have taken himself out of the equation.” Justice MacDonald agrees with Chief Justice Kennedy’s comments in the Landry sentence about the importance of the rule of law in society, and he quotes with approval the observation of Justice Ron Pugsley in R. v. G.A.M. (1996): “The sentence imposed by the court should reflect society’s recognition of the unique gift of life, and the seriousness with which we view the actions of those who trivialize that gift by taking it from another.”

  Dwayne will provide a DNA sample, and is barred from owning or using firearms. He is sentenced to “ten years in jail, less credit for time served.”

  Before passing sentence, Justice MacDonald remarks that he “does not consider trap cutting to be provocation.” He’s quite right—and Dwayne Samson would probably agree with him. But in this whole marathon journey through the courts, nobody has been able to speak about the genuine provocations, about the deeper dilemma that underlies the whole Phillip Boudreau affair. Nobody has really talked about lethal threats, and
how a person might handle them.

  Nobody has really talked about how to deal with a man like Phillip Boudreau.

  14

  THE NATURE OF THE LAW

  THE BOYS WERE PERHAPS twelve or thirteen years old. Lulu and I were Mark’s parents. Curtis’s parents were Gordie and Jeanette Ellis, our good friends and next-door neighbours. Jeanette was a nurse. Gordie had been a truck driver and a hard-rock miner, but he spent much of his life at the power-generating station in Port Hawkesbury. They were one of the happiest couples we’d ever met.

  Normally our two sons got along fine, but somehow they had gotten into a scrap, and the village kids were putting the word around that the two of them were going to have a big fight that everyone should come and watch. I didn’t hear about any of this, but Gordie did. He collared the two boys, stuffed them into the cab of his little 4x4 pickup truck, and drove them out the Doyle Road, an almost-abandoned dirt track running through the woods from D’Escousse in the general direction of Rocky Bay. A mile or two into the bush, he stopped the truck.

  “I can’t stop you from fighting,” he said. “You guys have a beef and you need to fight it out, okay. But you’re gonna do it here, just the two of you, without a crowd egging you on. Goodbye.” And he turned his truck around and left them there.

  As I recall Mark’s account of it, he and Curtis looked at each other, tried to remember what they were so angry about, laughed, shrugged, and had a long and very pleasant walk home.

  This is how you deal with conflict. This is how you teach your kids to deal with conflict.

  In the British common-law tradition, that event would not count as law-making. Common law is a bit like an unchanging yardstick against which people and events are measured. If the boys had actually fought, the police might have been called and charges might have been laid—assault, mischief, uttering threats, who knows? The boys could have ended up in juvenile court and become entangled in the elaborate apparatus of juvenile supervision. Who can tell where that path might have led?