Blood in the Water Read online

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  Flash forward now to Courtroom 3, on November 13, 2014. The murder trial of James Landry is just beginning. The black-robed prosecutor rises to address the judge and the jury.

  “This case is about murder for lobster,” he says.

  The phrase “murder for lobster” will stick to this case like a burr to a sheepskin. It will be in headlines and stories all over the world. And—although I haven’t seen him for years—I know the prosecutor who coined the phrase, the man who’s up there to present Her Majesty’s Story again.

  It’s Brother Drake—Steve Drake, late of the United Mine Workers.

  6

  COURTROOM 3: MURDER FOR LOBSTER

  NOVEMBER 13, 2014

  “THIS CASE IS ABOUT murder for lobster,” declares Steve Drake, beginning the prosecution’s opening argument. “The Crown will present evidence to show that the case is not about a momentary lapse of reason, where the accused suddenly and temporarily lost control.” Instead, the Crown proposes to show that Joseph James Landry carried out a sustained attack on Phillip Boudreau. It will use James’s own words: “Get rid of him.”

  Right now James Landry is sitting against the left wall between two sheriffs, exactly where Dwayne Samson once sat. He wears thick spectacles, jeans, and a striped shirt. A short, husky man, he has greying hair and dark, bushy eyebrows. He watches the proceedings intently.

  The story is attracting national and even international attention. Once again, the whole front row of the gallery is occupied by the media—all three Canadian TV networks, The Canadian Press, The Globe and Mail, provincial and local newspapers and radio stations, BuzzFeed from the United States, and so on.

  A jury of twelve local people sits to Steve Drake’s right. They have been painstakingly chosen, not just from Isle Madame, but from the whole of southern Cape Breton Island. All the same, the region is so interconnected that it’s not easy to find people who don’t have linkages or strong prejudices for or against the accused. Jury selection took place behind closed doors, but I’m told that one juror asked the judge to be excused, admitting voluntarily that he had a prejudice that might be a problem. A prejudice?

  “I taught your kids,” the potential juror told the judge. Yes, and—?

  “I have a prejudice against you.” The honest citizen was excused.

  The judge is His Lordship Joseph Kennedy, chief justice of the Nova Scotia Supreme Court. His Lordship grew up near Halifax and practised law in Bridgewater, but he’s been a judge for most of his career. He loves his job and particularly loves jury trials, and he treats the jury with impeccable respect, repeatedly referring to them as “a good jury.” When explanations are needed, he is patient and clear. He’s both realistic and patriotic: Canada, he says, “bad as it is, is as good as it gets.” In keeping with Nova Scotia tradition, he is a dedicated fan of the Boston Red Sox.

  His Lordship imposes a publication ban. The media cannot identify jurors or potential jurors, and during the trial nothing can be communicated except evidence brought forward in the presence of the jury.

  “As to Twitter,” he says, “that is at the discretion of the court—and you may tweet.”

  Steve Drake continues. The evidence, he says, is like a large jigsaw puzzle composed of witness testimony and physical exhibits. The Crown will put those pieces before the jury. In this case the Crown’s evidence will include sixteen exhibits, twenty-four witnesses, and an agreed statement of facts. His case will be a more detailed edition of Her Majesty’s Story, amplified and buttressed by witness testimony, photographs, and physical objects.

  The witnesses will include several RCMP officers, and some experts—on ballistics, for example—as well as a number of minor players, like the people who were on the wharf when Twin Maggies came in from fishing on that fateful day. They will also include members of Phillip’s family, officers from the Department of Fisheries and Oceans, and several local fishermen. In addition, we will hear Craig Landry’s account in his own words, and we will hear from James Landry via video recordings of his statements to the RCMP after his arrest.

  Drake asks the jurors to be understanding towards the witnesses, who have been brought to court under subpoena to discuss, in public, difficult things that happened almost a year and a half ago. He reminds them that in most criminal cases there’s a complainant, a person against whom the crime was committed. The complainant usually has a lot to say about the events—but in a murder case, the complainant is dead and can’t testify. In this case even the body is missing, which leaves a further gap in the jigsaw puzzle of evidence. But nothing prevents the jury from putting the puzzle together despite that missing piece and seeing the big picture.

  The prosecution’s first submission is the agreed statement of facts—facts that the prosecution and the defence have both accepted and mutually agreed not to challenge. This will shorten the trial significantly. Justice Kennedy explains that the operative word is “facts.” The Crown and defence have agreed that certain things won’t have to be proven by witnesses. Both sides accept that what’s in the agreed statement of facts “is reality, is the truth, is proof beyond a reasonable doubt.”

  Steve Drake’s colleague Shane Russell reads out the statement of facts. Like Nash Brogan, Russell is a native of North Sydney. He’s been a Crown prosecutor since 2004, just a year after he finished law school. He sits on the Council of the Nova Scotia Barristers’ Society, and his charitable interests include Loaves and Fishes, which provides meals, clothing, and food to Sydney’s neediest people. Lobster is not among his favourite foods. In fact, he has a severe allergy to it.

  The agreed statement of facts includes a map of the Petit de Grat area with all the relevant points marked on it. The statement confirms who the players were, including their dates of birth. It describes the two boats and also their condition when they were seized as evidence. It records the precise latitude and longitude of the spot where Phillip’s boat was found. It states that Phillip’s body was not recovered and that he has not been seen since June 1, 2013. It confirms that a Winchester model Ranger .30-30 calibre rifle, serial #5596251, was seized by the RCMP on June 7 at the Samson residence, and asserts that four bullets fired from that rifle had penetrated Midnight Slider. It affirms that the police recovered two green rubber boots and a teal and black baseball cap from Mackerel Cove.

  The prosecution’s first witness is Corporal Denzil George Fraser Firth, the lead investigator in Phillip Boudreau’s disappearance, a familiar figure from Dwayne Samson’s bail hearing. He’s a big man, bald and bullet-headed. He’s wearing a dark business suit with a blue shirt and green tie, but he somehow makes the suit look like a uniform. The work of the Major Crime Unit he belongs to, he says, is “90 percent homicide investigations.” He recounts how he was called to Petit de Grat on June 1, 2013, and presents the physical evidence the police have collected—the photos, rubber boots, baseball cap, bullets, rifle, and so on. The Major Crime Unit prepared the map showing all the key locations. They also took three statements provided by James Landry in June 2013.

  James Landry’s defence counsel, Luke Craggs, rises to cross-examine Corporal Firth. A fit-looking sandy-haired man of forty-one, Craggs favours lighter-coloured suits—sage, medium blue—which make him stand out, even in his robes, among the coal-black dramatis personae of the courtroom. Raised in Edmonton, where his father taught engineering at the University of Alberta, Craggs applied in 1997 to the law schools of both McGill and Dalhousie Universities, then got in his car and started driving east without knowing whether either had accepted him. En route he learned that McGill had turned him down, so he bypassed Montreal and drove on to Halifax, where he discovered that Dalhousie had accepted him. He married a Nova Scotian woman and never left.

  Craggs loves the human drama, the passion and fury, of criminal law. He’d be bored stiff doing more sedate forms of law. His email address is lcraggs@not
guilty.ns.ca. With a practice focused on criminal defence, he has more than a passing acquaintance with the gruesome and the macabre—for example, the case of a young man who was being abused and stalked. One day the young fellow walked up to the door of his tormentor and knocked. When the man opened the door he blew the man’s head off with a shotgun. The body was discovered a month later, when the neighbours investigated the smell and the flies.

  Such matters are Craggs’s daily work. He takes them more or less in stride, and originally assumed that other lawyers would have similarly unflappable sensibilities. At a Christmas party for the Halifax Regional Municipality’s legal staff, however, he was talking with someone about his work when he suddenly realized that nobody else was speaking. Everyone was listening, aghast. He was never invited back, which did not distress him unduly.

  Now he leads Corporal Firth through a review of Craig Landry’s encounters with the RCMP. All the accused were questioned on June 1. Craig was arrested and interviewed again on June 6, Dwayne and James on June 7. All three were charged with second degree murder. They had the right to remain silent, and Craig did remain silent for the next couple of weeks, at which point either he or his lawyer—Joel Pink—let the police know that he had new information he was willing to share. On June 26, in the presence of his lawyer and with audio and video recorders running, he told them what became Her Majesty’s Story. On the following day, in and around Mackerel Cove, with the cameras running, he led them in a re-enactment of the killing.

  Firth agrees: that’s what happened. After that, however, the charges against Craig Landry were reduced from second degree murder to accessory after the fact. With the Crown’s consent, he was released on bail and never locked up again. Craggs doesn’t ask whether a deal had been negotiated, but the question hangs almost audibly in the air.

  Next, Craggs leads Firth in some detail through the search for Phillip’s body. Both the Nova Scotia and New Brunswick RCMP dive teams searched extensively for it. In September, a sophisticated Navy dive team with advanced equipment also searched the area. Nobody found any sign of Phillip. Now another question hangs in the air: if you don’t have his body, how do you prove that Phillip Boudreau is actually dead?

  The court adjourns for lunch.

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  That afternoon, the Crown calls a stream of witnesses. Phillip’s sister, Margaret Rose Boudreau; his brother Kenneth; and his brother Gerard’s wife, Linda, establish Phillip’s habits and movements. Linda confirms that James Landry called Gerard about Phillip the previous night, though she didn’t hear what was said. Three Premium Seafoods workers attest that the Twin Maggies was a little late getting back to the wharf that day to sell its lobsters. It bore some red paint scrapes on its bow, and the crew unloaded something wrapped in a camouflage blanket that was the size and shape of a rifle.

  “Pigou” Samson, a fisherman for fifty-two years, testifies that he saw what he thought was a dead deer in the water that morning, but found on investigation that the object was a half-sunk speedboat. He searched the area and found a gas can and an anchor, but no sign of any occupant. He radioed the Coast Guard and dropped a lobster trap to mark the spot where he had found the speedboat. The boat’s orange bow line had been cut, so he tied on a blue rope of his own and towed the boat to the Petit de Grat fishermen’s wharf. There he left it in the care of two other fishermen, Huntley David and Louis Boudreau, and went back out to continue the search.

  Huntley David reports that he watched over the boat till the RCMP arrived. A small man with a short grey beard and dark hair, he has been a fisherman for forty-eight years. He knows James Landry well; the two fished together in the 1970s. Midnight Slider showed cracks and other damage. Its outboard motor was missing, and its orange polypropylene bow line had been cut. When the police took possession of the boat, he went back out and spent the rest of the day searching for Phillip.

  Fisheries Officer Grant Timmons will attest the next morning that he saw red scuff marks on the bow and the bottom of the Twin Maggies, both when she was in the water on June 1 and when she was hauled out of the water the following Monday. His superior, Field Supervisor Norman Fougère, will follow him onto the stand. Isle Madame opinion considers these two—especially Fougère, as the senior officer—to be at least partly responsible for Phillip’s death, along with the RCMP. If they had been doing their jobs, the argument runs, they would have put an end to Phillip’s antics, and the fatal confrontation in Mackerel Cove would never have occurred.

  But none of that emerges in this morning’s testimony. Under questioning by Steve Drake, Norman Fougère identifies various locations on the map, recognizes photos of the wharf where Phillip kept his boat, and notes that the headland officially called Cape Hogan—near Mackerel Cove, where the Twin Maggies encountered Midnight Slider—is locally known as “the wreck” or “the wreck shore” because there used to be a wrecked ship in that location. This is a ragged, violent coast, and it has actually known a phenomenal number of wrecks. (In fact, less than four nautical miles westward from the wreck shore itself is Cerberus Rock, where the tanker Arrow broke up in 1970 and created the worst marine oil spill in Canadian history.) Nobody knows just how many ships have been wrecked on the coast of Nova Scotia, but author Jack Zinck believes it may be as many as five thousand. Isle Madame has seen more than its share of them.

  On June 1, 2013, however, as Norman Fougère testifies, the water was what fishermen often describe as “flat oily ca’m.” Fougère was on his days off when the Joint Rescue Centre asked him to go to Petit de Grat to identify a half-sunk boat that was being towed to the wharf. He went, and saw that the badly damaged boat was Phillip Boudreau’s Midnight Slider. He didn’t think the orange bow line had been cut. He had seen Phillip in the boat the previous day, when “I was doing some snow crab work, and Phillip came zooming by with the boat and made his usual comments to us.” Phillip was sitting in the stern and steering with the tiller on the fifteen-horsepower Evinrude outboard motor. Nobody asks Fougère about the “usual comments.”

  After seeing the battered boat, Fougère went to another wharf to meet two incoming crab boats, whose skippers were friends with Phillip, to check whether they had seen him. One of those skippers was Tony Veinot. But neither skipper had seen Phillip. Fougère then drove to Alderney Point and made a series of phone calls. He answers questions about electronic charts and about the equipment normally found on a lobster boat—including whether it has one or several anchors. He remembers seeing the Twin Maggies with scuff marks on the bow. He enumerates the boats that normally fish in Mackerel Cove. And then he stands down.

  Steven Dorey, who works at the Rona building supplies store, testifies that he expected to buy some lobsters from Dwayne at the wharf, but when the boat was late getting in he bought them later from Dwayne at his home. Constable Jim Wilson reports taking charge of Midnight Slider and then going out the next day with the police dive team, who recovered a fifteen-horsepower Evinrude in about twenty feet of water.

  This is Friday noon, and the Crown’s case has moved faster than expected. Their next witnesses will be experts who have been told to attend on Monday, and then Craig Landry. After that they will play the video of James Landry’s three statements to police. In the meantime the jury is released and the trial stands adjourned.

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  On Monday morning prosecutor Shane Russell gives the court a map of the next few days. Today he will present evidence from RCMP Sergeant Kevin Mallay, an expert in the recovery of electronic information; Constable Tom MacLeod of the Underwater Recovery Team; and Joseph Prendergast, a ballistics expert, who will testify about the impact and trajectory of the bullets that hit Midnight Slider. The Twin Maggies is being brought to the courthouse basement, where the jury will be taken to see it as part of Prendergast’s testimony.

  Mallay testifies for forty minutes about the chart plotter that was seized fr
om the boat. The plotter is a navigational computer with a built-in Global Positioning System (GPS) receiver that pinpoints the boat’s position as calculated from satellites. It stores information internally and on either of two magnetic storage cards. This plotter has only one card, and neither the card nor the internal storage contains any information at all except a couple of routes apparently entered into memory when the unit was installed in 2007. This is unsurprising; a lobsterman travels exactly the same route every day, so there’s no reason to record his track. What he mainly wants from the computer is guidance in the fog: Where am I now, exactly? Which way to my next trap?

  It’s hard to see how this testimony serves the prosecution. Right after the killing, a rumour percolated through Isle Madame to the effect that Carla Samson had gone to the Twin Maggies before it was seized and erased data that would have shown exactly where the boat had been that day—but Mallay’s testimony contains no hint of anything like that, and it appears the boat was under close observation from the moment it docked. So what was the point of the last forty minutes?

  Constable Tom MacLeod is tall and dark: dark suit, dark shirt, dark tie, bushy eyebrows, and greying temples. He’s been a diver for thirty-seven years, commander of the Underwater Recovery Team since 2009. He presents the official record of seven days of underwater searches by the dive team, starting with six divers going underwater the day after Phillip Boudreau’s disappearance. The weather was still calm and the divers had sixty feet of visibility in the water. It was an “extremely beautiful place to dive because of the clarity of the water.” The divers went down in pairs, each on a “sled”—a short, wide surfboard-like device towed by a Zodiac inflatable boat, a system that allows divers to scan enormous swaths of the sea floor very quickly without running out of oxygen or strength. In principle, two divers on sleds in such clear water could scan a track 240 feet wide—almost as wide as the length of a football field.