Blood in the Water

by Silver Donald Cameron

  In four dives, the divers covered a very large area of the bottom just outside Mackerel Cove. Close to their starting point, at the location that Pigou had marked with his lobster trap, they found an outboard motor upside down with two ropes wrapped around its cowling, leg, and propeller. The two lines led to two nearby lobster traps that were still in place on the bottom. The engine was one of two targets of their search, and they had found it. Their other target was Phillip Boudreau, and despite several more large sweeps, they did not find him.

  MacLeod provides some information about the behaviour of bodies underwater. A current of half a knot—about as fast as a decent average swimmer can swim—will tumble a victim along on a flat bottom. If the victim is clothed, perhaps in a Ski-Doo suit, the garments will provide some buoyancy, lifting the body slightly off the bottom; it will move unimpeded in the current. A jacket often captures a pocket of air at the shoulders so that the body will stand upright in the water, on tiptoe in the pale green light. When it moves, the toes leave a shallow furrow in the sand.

  In cross-examination, MacLeod says he never wants to stop a search. He always hopes to find a body and give closure to the family. That, he says, is “why I do what I do.” But the decision to quit is sometimes dictated by sea and weather conditions and sometimes by “upper management,” who have to weigh the cost of expensive specialized equipment like side-scan sonar or magnetometers. And sometimes the areas to be searched are “just too vast.” Phillip’s body is said to be in twelve fathoms of water—seventy-two feet—so MacLeod could, in principle, have his divers trace the twelve-fathom contour line that snakes across the chart. At the mouth of Petit de Grat Harbour, however, that line covers more than two miles of open sea. In addition, MacLeod’s thirteen-foot Zodiac has a horrible GPS and no depth sounder to measure the depth of the water. So that approach won’t work.

  Luke Craggs wants to know when a body floats or sinks.

  “It’s a guessing game,” says MacLeod. “We’re all unique. We’re all individuals. Body fat. Content. Did he have a beer and pizza before he died? Temperature of the water. Depth of the water. Thin, muscular people very rarely come up. Body fat of people who are normal, maybe overweight ten or twenty pounds, give them five to nine days in water that’s not below thirty-seven degrees. Gases—your body breaks down the enzymes to create the gas. If you don’t have a hole in you, you will come up. And you’ll stay up until the gas is exposed—mouth, anus, birds poking at you. Once that gas is exposed, you’ll go down, and you’ll never come up again.”

  Craggs wants to know whether it’s “fair to say that it would be easier to find somebody tied to an anchor and dropped in the water than someone who’s just drowned and floated off without an anchor tied to them.”

  “If we have the correct information, yes.”

  On redirect, Steve Drake asks about the effect of tying an anchor to a body.

  It would “never come up,” MacLeod says. The gases might lift it a bit, but when the gases escaped, the corpse would settle back down. “We’ve had jumpers off bridges who decomposed inside their sweaters and pants and never came up.”

  On which appetizing note the court rises for lunch.

  * * *

  —

  Over fish cakes and beans, I reflect on the progress of the trial. The Phillip Boudreau killing is essentially one single event, though the Crown has chosen to prosecute it as four separate cases. In the beginning, the prosecutors in charge of all four cases were Dan MacRury and Diane McGrath, who conducted Dwayne Samson’s bail hearing. James Landry’s trial, however, is being prosecuted by Shane Russell and Steve Drake. Why?

  During the fifteen months since Dwayne Samson’s bail hearing, MacRury has been elevated to the bench as judge of the provincial court. Before that he had often discussed the Boudreau case with Russell, who was particularly familiar with key issues like the admissibility of evidence, and so, when MacRury was promoted, he asked Russell to take over the case. In a homicide case the Crown traditionally appoints two prosecutors, and Russell asked for Drake as a partner.

  Drake had been laid off permanently by the United Mine Workers in 2002. Not wanting to emigrate to Alberta, he had gone back to law school, joining the prosecution service in 2006. His union experience prompted the Crown Attorneys’ Association to elect him president in 2012, when the association opened negotiations with the provincial government for their very first collective agreement. Russell, meanwhile, had gone straight from high school to university and law school, becoming a prosecutor in 2004. He was twenty years younger than Drake, born a year after Drake went to work in the mines, but he was nevertheless the senior counsel. In this trial, however, the two regarded themselves as co-counsel.

  One observer called them “Mutt and Jeff”—Russell short, bald, and stocky, Drake tall, lean, and angular. In court they performed like tennis players in a doubles match. Traditionally, the senior counsel—Russell—would open and close the case, but Drake thought he’d figured out a particularly powerful opening statement, so they agreed that he would open and Russell would close. They divided the examination of the witnesses more or less arbitrarily, with a couple of exceptions. Since Drake had a better knowledge of boats and fishing and knew Isle Madame as a motorcyclist, he would examine both Craig Landry and the police diver, Tom MacLeod.

  It was Drake who wanted Phillip Boudreau’s boat, Midnight Slider, presented to the jury, but Russell knows ballistics and trajectories. So the prosecution will suggest that ballistics expert Joseph Prendergast examine the boat in the presence of the jury, and Russell will examine Prendergast. They’ll make this suggestion to the court now, right after lunch.

  Back in the courtroom, before the jury enters, Russell raises the practical issues. Prendergast will testify about the shots that were fired at Phillip Boudreau’s boat. Prendergast has all the resources one might expect—photos, sketches, diagrams—but the Crown also wants the jury to see the battered hull of Midnight Slider. The boat is now in a loading bay in the basement of the courthouse. Russell wants to take the whole jury down there so that Prendergast can actually show them the physical evidence—points where the bullets entered and exited, trajectories, the location of the only actual bullet the police recovered.

  Chief Justice Kennedy sees the merits of the plan, but it poses a couple of difficulties. For one, everything that takes place in the presence of the jury must be recorded. How will that be accomplished? Second, as defence lawyer Luke Craggs points out, trials are public events, and it’s obviously impossible to jam the crowd of spectators into a loading bay. Justice Kennedy decides that inviting the media into the loading bay will suffice. He suggests that Russell proceed right now with the rest of Prendergast’s testimony—his qualifications, his actual written report, and so forth. The court will adjourn early, and the judge and the lawyers will go to the basement and figure out how to deal with these problems. The jurors can see the boat in the morning.

  Joseph Prendergast takes the stand. A natty little man in a chalk-stripe suit, he’s a firearms and toolmark examiner. (Toolmarks are the marks made by tools, like the dimples produced by a hammer.) He’s been employed with the RCMP since 1991. His qualifications become Exhibit 17. He has studied bullet-path analysis, muzzle-to-target distance determination, range determination, and similar esoterica. The Crown wants him qualified as an expert in such matters. Luke Craggs is fine with that. A statement of Prendergast’s qualifications becomes Exhibit 19.

  Prendergast was called in a couple of days after Phillip’s disappearance to examine Midnight Slider at the RCMP detachment in Arichat. He submitted his report on June 12. Shane Russell gets him to review some nautical terms: the front of the boat is the bow, the back is the stern, the left side as you face forward is the port side, the right side is the starboard side. The central spine of the boat is the keel, and the top edges of its sides are the gunwales, pronounced “gunnels.”

  Rain pat
ters rhythmically on the skylight as Russell leads Prendergast through his report in minute, soporific detail. Looking across the courtroom, I see a sheriff’s officer yawning uncontrollably; glancing at the jury box, I see at least one juror nodding off while others look glazed. I don’t blame them. I would love to slump down and close my eyes myself.

  Prendergast testifies that four bullets struck the boat, all of them between the bottom and the gunwale. Two of these entered from forward on the port side. Another pierced the starboard side. The fourth bullet penetrated the stern and lodged itself under a plywood floorboard—the only bullet to be recovered. This pattern, Prendergast confirms, is consistent with the boat having been in motion when the shooting took place, or with the shooter having been in motion, or both.

  The jury is excused an hour early. His Lordship Joseph Kennedy, James Landry, and the lawyers head downstairs to look at the boat. The trial will resume in the morning.

  * * *

  —

  Midnight Slider sits on the floor of an anonymous concrete room—concrete floor, concrete block walls painted cream, black folding chairs, plastic folding tables. The journalists are ushered in first; the jurors are admitted later, along with James Landry.

  “Even though we’re in a garage, we’re still in a courtroom,” Chief Justice Kennedy told the jury before we moved downstairs. “I think you should be able to wander around the boat, take the opportunity to see the boat and to see what the witness is testifying to. There should not be any conversation either among yourselves or with anybody down there. You should function as you would in the courtroom, except that you will be downstairs in the basement, wandering around the boat.”

  Prendergast identifies the boat, which becomes Exhibit 20.

  Midnight Slider is white with a red stripe and an aluminum rub rail along the gunwale. The red deck and interior are faded, and a bit of orange rope hangs from the bow ring. The rub rail is buckled inward adjacent to the rear seat on the starboard side, where the Twin Maggies must have struck it. That seat would normally be sealed to provide flotation, but its top stands open and a rectangular hole gapes through the hull. That’s the point of impact—the seat where Phillip Boudreau was presumably sitting in his disabled boat as the larger vessel bore down on him, its bow looming over him like a diesel-powered image of doom.

  The boat looks battered and sad, a scruffy visual testament to violence. Joseph Prendergast points out the bullet holes, the points of entry and exit, the different directions from which they came. He lifts a fiberglass floorboard, under which he found the only bullet he recovered. The relatively flat trajectories of the bullets show that they would have been fired from some distance away.

  Back in the courtroom, Prendergast again takes the stand. Shane Russell asks that a sketch of the boat drawn by Prendergast be entered into evidence, and turns the witness over to defence lawyer Luke Craggs. Craggs asks Prendergast to describe the rifle seized by the police at Dwayne Samson’s home. Prendergast identifies it as a lever-action Winchester .30-30 with a scope and a tubular magazine that probably holds nine cartridges. The range is about three hundred yards, and the only bullet found in the boat is of the same calibre. Prendergast steps down.

  Shane Russell tells the court that there are issues about the forthcoming evidence that need to be settled before the Crown presents Craig Landry’s testimony to the jury. The Crown and the defence have been discussing these issues, but sorting them definitively will require a “voir dire” (Latin for “to speak the truth”), a trial-within-a-trial held in the absence of the jury. The evidence in a voir dire might be called meta-evidence: evidence about evidence. In this case, the Crown considers certain alleged “facts” to be both important and believable, but under the rules of evidence they could not normally be presented to the jury. The Crown is asking Chief Justice Kennedy to make an exception and allow them. The defence will resist that argument. Kennedy will decide.

  So now the judge sends the jurors back to the jury room. He instructs the media that whatever transpires in a voir dire cannot be reported until the jury is sequestered at the end of the trial. Indeed, the evidence in a voir dire is not supposed to influence the larger trial at all; case law dictates that even a presiding judge like Kennedy himself must ignore what he hears in a voir dire. Juridical brains are evidently built with watertight compartments and the ability to un-know things they have learned.

  The issue in this voir dire is the hearsay rule. In essence, the hearsay rule exists to prevent the acceptance of gossip or misunderstanding as fact. If I tell you that Phillip Boudreau was a poacher, that doesn’t prove that Phillip was a poacher. All you actually know is that I said he was. In his opening statement at this trial, for instance, Steve Drake told the jury that at one point Phillip Boudreau yelled “You broke my leg!” That “fact” is reported only by Craig Landry. The broken leg has not been confirmed by any other evidence—for example, medical evidence. In the absence of the body, however, no such evidence is possible. Another way to test the truth of that utterance would be to bring Phillip to court and have him cross-examined, but that’s impossible too.

  Yet the fact of Phillip’s broken leg, if true, is important. Can it be believed? One of the exceptions to the hearsay rule is called “res gestae,” pronounced “rez jest-ay.” Res gestae (Latin for “things done”) recognizes that people say things naturally, spontaneously, and without deliberation in the middle of an event. Those statements can be highly credible because there’s little opportunity or motivation for the speaker to concoct lies or for the witness to have misunderstood them. There’s nothing ambiguous about “You broke my leg!”

  The hearsay rule would normally bar some statements purportedly made by Dwayne Samson, too. If no other evidence confirms it, Craig’s report that Dwayne said “James, are you going to shoot?” is pure hearsay, and can’t be allowed into evidence—unless the Crown can show that res gestae or some other exception applies.

  Another exception, known as “adoptive admission,” occurs when an accused admits guilt either explicitly or implicitly, sometimes even by silence. For example, the police often plant an informer in a cell with an accused, trying to induce the accused to admit guilt, either explicitly or implicitly or even by silence. “Boy, you really took care of that bastard, didn’t you?” says the informer. The accused replies, “Yeah, he didn’t know who he was messing with.” That’s an admission of guilt; it becomes stronger as an adoptive admission when the accused further confirms it. So the informer says, “You shot him four times?” and the accused says, “Three.” Normally the admission would be hearsay and wouldn’t be allowed as evidence. In this case, however, the defendant, knowing the content of an accusation against him, confirms or “adopts” the truth of the accusation by his words or conduct.

  The court recesses so that Shane Russell and Luke Craggs can confer about the list of thirty-three statements in Craig’s testimony that Craggs might challenge as hearsay. I fall into conversation with Joel Pink, Craig Landry’s lawyer, who is wondering how Craggs will handle his client. He thinks Craggs should treat him sympathetically “because he’s telling the truth. There’s no point attacking him, he’s not lying.” Pink muses that if he were in Craggs’s shoes, defending James Landry, he’d try to build up a defence of provocation, “because that brings in manslaughter as a possibility. I’d offer the Crown manslaughter and ten years, and then your client is out in three years.” At this point, neither of us knows that Nash Brogan offered that exact deal at the beginning of the case and that the Crown rejected it out of hand.

  “Your case is only as good as your facts,” Pink says. “The decisions as to how to treat them are the things that keep you awake at night. But what happened out there with these guys is, they lost it. They just lost it.”

  When the court reconvenes, the list of thirty-three possible hearsay statements has been reduced to fourteen, but it’s become clear that the voir dire will take all
afternoon, and may not be concluded today. Justice Kennedy isn’t available for the remaining three business days of the week, so he sends the jury home until the following Monday, six days hence. By now it’s lunchtime, and he adjourns the court till 1:30.

  * * *

  —

  After lunch, with the jury absent, the trial-within-a-trial begins. Craig Landry is sworn in and prosecutor Steve Drake leads him in exhaustive detail through Her Majesty’s Story once again, starting with the first sighting of something moving on the water some distance away in Mackerel Cove. Craig’s testimony covers the shooting, the rammings, the gaffing and towing and drowning of Phillip, and finally the process of tying the body to an anchor and sinking it.

  Because the voir dire is all about the credibility of Craig’s report of the words actually spoken by Dwayne, James, and Phillip, Drake is particularly attentive to the exact phrasing of the speakers—which is difficult, because Craig is reporting, in English, sentences that were actually spoken in French. During Dwayne’s bail hearing fifteen months earlier, for example, Craig testified that Dwayne stopped the boat and asked “Is this far enough?,” after which James asked “How deep are you?” and Dwayne said “Twelve point two fathom.” James replied, “Yes, you’re deep enough.” But this time Craig says that James replied “That’s it.”

  It turns out that what James actually said was “C’est bien ici,” and that what Craig is reporting are differing translations of that phrase. The essential meaning is certainly the same, but the need for Craig to translate introduces an element of uncertainty about the very thing the procedure is trying to establish. What was actually said, and can the court rely on Craig’s account of the dialogue? And even if the dialogue is being accurately reported, is it admissible as evidence or must it be rejected as hearsay?