Andrew Berry’s appeal hearing against his conviction for murdering his two daughters started on Monday.
The Oak Bay father was found guilty on both counts of second-degree murder for the deaths of his two children, Aubrey and Chloe Berry, who were found stabbed to death in their beds in Berry’s home on Christmas Day 2017. Chloe was six and Aubrey was four at the time.
Berry was sentenced to life in prison for their deaths. His sentences will be served concurrently and he will be eligible for parole in about two decades.
The appeal hearing in Vancouver is being live-streamed to a Victoria courtroom and is scheduled to run through the week.
Berry has maintained his innocence throughout court proceedings, testifying that he had gambling debts, and was attacked in his apartment when the girls were murdered.
The conviction appeal seeks a new trial and cites nine grounds – relating to admitted trial statements, trial process and how the judge charged the jury – though three of those have been dropped since it was filed in 2019.
Defense lawyer Tim Russell spent much of Monday targeting what he said were unreasonable rulings by trial judge Miriam Gropper. He took issue with the judge’s finding that “the firefighters and paramedics did not have the ability to influence the prosecution” while performing medical care after an injured Berry was found in his bathtub.
“In my submission, they did,” Russell said. “I would say that anybody has the ability to influence the prosecution in the right circumstances.”
The three justices presiding over the appeal pushed back early on in the opening session.
“I myself am certainly struggling with this argument Mr. Russell because I’m not quite sure exactly what it’s leading to,” said Justice Patrice Abrioux.
Russell also took aim at Gropper’s ruling surrounding the admittance of statements Berry made in the presence of his police officer sister. He said Gropper allowed the sister’s statements as long as they were exclusively considered through her sibling role. While Russell accepted the agreed fact that the sister was not tasked or asked to be involved in her brother’s investigation, he said the statements should not have been admitted as there’d be no way for her to separate her concurrent roles as sibling and police.
Crown lawyers are scheduled to present Tuesday afternoon and all day Wednesday, with the defense returning for a final response on Thursday.
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