On cross-examination, Luke Craggs also inquires in minute detail about the actual sequence of speech and action that fateful morning. When he gets to the third shot that James fired, and Phillip’s cry, “Tu m’as cassé la jambe,” he grills Craig closely. Is there any visible indication that Phillip was actually injured? Any blood? Any obvious signs of pain? Did Phillip have any difficulty crawling forward in Midnight Slider and cutting the bow line? No? No.
By the time Craig’s story has been scrutinized twice, it’s 2:30 in the afternoon. Craig’s testimony is the only evidence, so the next step is for the two sides to present their legal arguments in favour or against letting the jury hear some or all of the statements Craig has attributed to others. What are the other cases where courts have considered this issue? What were their findings? What was their reasoning? What guidance do those findings provide to Chief Justice Kennedy?
But—heading into an extended recess—do the lawyers want to embark on the next act of this extended drama? Would it, Justice Kennedy asks, be counsel’s preference to present these arguments when the court convenes again six days hence, on Monday? Luke Craggs thinks so, and Shane Russell doesn’t object. He has already provided the court with three relevant cases on the subject, and now he tenders four more.
“This is stuff we’ve gotta get right,” declares Justice Kennedy. “We don’t want any statements going to that jury that are not admissible, or we don’t want them being produced for the wrong reasons. I am going to have to talk to the jury at some point in relation to these statements. I want to hear complete arguments Monday morning at 9:30, counsel, and I hope to give a decision shortly thereafter.”
He bangs his gavel, and everyone except James Landry goes home for six days.
By the time the court re-convenes, Luke Craggs has accepted the admissibility of all the fourteen contested statements reported by Craig Landry, except for “You broke my leg.” Crown counsel Steve Drake seeks to have the statement admitted not as evidence of Phillip Boudreau’s state of mind, but for the truth of its content: in other words, Phillip’s cry that his leg was broken establishes that the leg was broken. This was a spontaneous utterance; Phillip had no time for “any calculated insincerity” or “conscious reflection” so his statement “fits squarely into the res gestae exception” to the hearsay rule. Furthermore, in his June 7 statement to the RCMP, James himself said he thought his third shot hit Phillip in the hip somewhere and confirmed that Phillip shouted “You broke my leg.” James also noted that Phillip only crawled to the bow of the boat to cut the bow line, which is consistent with an injury to his leg.
“On the other hand, counsel, he’s being shot at,” says Justice Kennedy. “I don’t think he’d walk to the bow of the boat.”
“That’s a possibility as well, My Lord,” says Drake. But he considers that the weight of evidence shows that “You broke my leg” is both reliable and credible, and should be submitted to the jury.
Luke Craggs disagrees. The hearsay rule has to do with fairness, with the recognition that it’s impossible to test the reliability of “something that was said out of court by someone who cannot come to court.” The hearsay rule should not be set aside lightly. He argues that Phillip’s behaviour after the rifle shots doesn’t provide any real evidence that his leg was actually injured, and that his main concern would have been to say something—anything—to make the shooting stop.
Craggs points out the forensic evidence from the boat: four shots were fired, all four hit the boat, and all four were very low in the boat. If any shot had hit Phillip Boudreau, it would have hit him somewhere near the ankle, not the hip. Craig Landry has testified that there was no sign of bleeding or attending to an injury. Phillip crawled to the bow of the boat to cut the bow line, which is consistent with him not being injured. Phillip’s boots have been recovered, and they show no evidence of any shooting. Justice Kennedy agrees.
In short, the “You broke my leg” exclamation is “highly prejudicial” within the totality of the evidence, Craggs argues, and there is fairly compelling evidence that the statement is not reliable. It should therefore be excluded.
Justice Kennedy reviews the fourteen contested statements, one at a time, and finds them all admissible, including “You broke my leg”—which he views as “not reliable to the extent that it should be” and “highly prejudicial,” but nonetheless a “classic spontaneous utterance.” The Crown can use it.
With that, the voir dire is over. The jury returns briefly and is dismissed until 1:00.
Earlier that morning, Luke Craggs submitted a letter to the court on the subject of media coverage. Justice Kennedy has already reminded the media that all the testimony and argument in a voir dire, because it is taking place in the absence of the jury, cannot be reported in the press “until such time as the jury is sequestered.”
Now he takes up the issue raised in Craggs’s letter: a front-page story from the Halifax Chronicle Herald of November 18 in which Joel Pink assured a reporter that his client, Craig Landry, had not made a deal to have the charges against him reduced in return for testifying against James and Dwayne. Craig, said Pink, was “very truthful. Basically his story has not changed since Day 1.” But when it was pointed out that Craig had indeed changed his story, Pink swivelled smoothly to say, “Oh no, his first statement, as you will see, was not truthful. You’ll hear how it came about that he gave that in his testimony.”
Luke Craggs now tells Justice Kennedy he’s concerned about the source of these comments, and about their prominence in the paper.
“The best comparison I can come up with is if Wayne Gretzky offered his commentary on who’s going to win the Stanley Cup,” he says. “Someone who’s highly regarded as a lawyer is offering commentary on the credibility of what I would characterize as a key witness, if not the key witness.” The Crown has other evidence—“but really, without Craig Landry, the Crown’s case is missing some important pieces. My concern is that a juror will be struggling over Craig Landry’s testimony—and there’s Joel Pink, this first-rate, highly respected lawyer, saying he’s telling the truth. Well, maybe that tips the scale in favour of the Crown’s case.
“At this point, My Lord, of course that’s speculation. I think we have a good jury, but in terms of publicity and the possibility to sway jurors one way or the other, this is essentially the atomic bomb.”
He wants the court to poll the jurors privately and individually to see whether they’ve seen the Pink article, and if so, whether the article has affected their view of the case. If the court does find clear evidence that jurors may have been swayed by Pink’s comments, the outcome could be a mistrial—but it’s better to have a mistrial than an unfair trial.
Shane Russell thinks Craggs is giving Pink a little too much credit, and not giving enough credit to the jurors themselves. Joel Pink, he says, “may be Wayne Gretzky, but those twelve jurors are the ref. They decide the issues, they decide the facts.”
Russell reminds the court that Craggs himself gave an interview to the same newspaper a week or so earlier, saying that Craig Landry’s credibility and reliability would be questioned and noting that Craig appeared to have benefited a great deal from his cooperation. The prosecutors didn’t think Craggs’s comments deserved the court’s attention, and they don’t think Pink’s do either. Russell points out that the jurors have been repeatedly cautioned—strongly—to disregard any information or opinion that isn’t presented to them in court, and in particular to ignore anything they pick up from the media. He suggests that if Justice Kennedy firmly instructs the jury on this point again, that will suffice.
Justice Kennedy sets his jaw and declares that he’ll rule on the matter after lunch. In the meantime, he says, “my life would be somewhat easier if lawyers did not talk to the media during the course of ongoing trials. The other thing is that it shouldn’t come as a surprise to too many people that Mr. Pink believes his client, but Mr.
Pink is not on the jury. We will recess, please, until 1:00.”
On his way out of the courtroom, Joel Pink is wearing a huge grin.
“Wayne Gretzky!” he says. “Hey! How about that!”
After lunch, Justice Kennedy addresses Luke Craggs’s concerns about Joel Pink. He discerns two factors. First, “we have a good jury here under oath or solemn affirmation that they will determine this matter based solely on the evidence that they hear in this courtroom. I trust this jury.”
Second, this particular jury was carefully selected. Its members were challenged in the selection process about the very fact that a good deal of publicity and information about the trial was already in circulation, and so “it was important that every member of that jury assure this court that they would be true to their oath, that they would determine the case based solely on the evidence that they would hear in this courtroom. And they assured us, each and every one, that they could. That’s why they ended up on this jury.”
The judge undertakes to reinstruct the jury to disregard all publicity and media coverage. The jury returns.
The Crown calls Craig Landry.
“State your full name,” says the clerk.
“Craig Claude Landry.”
Craig Landry is going to tell, yet again, his story of how Phillip Boudreau died. I’ll be interested to see what happens when he is cross-examined, but I have heard Her Majesty’s Story already—twice, in fact. I find myself thinking more about matters that the court doesn’t really care about: not how Phillip died, but how he lived.
7
A ONE-MAN CRIME WAVE
THE MISSING PERSON IN Courtroom 3 is still Phillip Boudreau. The missing factor in James Landry’s trial is motivation. Did the three crewmen on the Twin Maggies really kill Phillip Boudreau over the loss of some lobsters? Or were their motives deeper than that?
Even in communities entirely reliant on the fishery, poaching is not a capital offence. A persistent poacher may well get a ferocious beating—but he’ll live to tell about it. However, Stephen Drake’s label, “murder for lobster,” is catchy and convenient, and it will stick. Years later, Edgar Samson, whose Premium Seafoods company has markets all over the world, will remark that wherever he goes, people ask where he’s from. If he says “Petit de Grat, Nova Scotia,” they’ll look blank. If he says “Do you remember a case about murder for lobster?,” they’ll say “Oh, that place!”
But people in Isle Madame hated the label from the beginning, and still loathe it. Jake Boudrot, the Isle Madame journalist who edits the Port Hawkesbury Reporter, is scathing about his own profession’s lazy adoption of the phrase. That label, he says, “just totally missed the entire case. It wasn’t a murder over lobster. The media painted these guys as greedy murderers, and they all parroted that, The Chronicle Herald, all of them. I’m so disgusted with them, even The Globe and Mail, who I was helping out. I said, Is there any way you can talk to your editors and tell them for the love of God to stop calling it ‘murder for lobster’? That’s just ridiculous, I said. It’s insulting to people here. It makes us sound like a bunch of hillbillies killing each other over a few lobsters. Do your work! Do some digging! Do your jobs!”
As the jury settles in to hear Craig Landry present Her Majesty’s Story, I find myself thinking about all the things the jury does not know— the crucial facts that are not in evidence. The case does have something to do with lobster, but lobster is far from the heart of the story.
ISLAND VOICES
“Some fishermen would give him a few traps to set for himself, just give them. The deal was, if I give these to you, you don’t bother my traps.”
“Jackie said to him, ‘Phillip, if I do these repairs for you, I don’t want you to turn around and come back and steal stuff off of me.’ And Phillip said, ‘Jackie, I would never steal from you. You’re a hardworking man with young kids. But some of these fishermen that make three or four hundred thousand a year—what’s a few lobsters to them?’ ”
“Murvin and Billy Marchand, their boat went missing. They found out Phillip had stole it. They called the cops, said they were going after him, and the cop said, ‘When you catch him, we’ll pick him up.’ ‘Yes,’ said the boys, ‘you’ll pick him up all right, what’s left of him; you can come and scrape it off the road.’ ‘Now, now,’ said the cop, ‘none of that’—so the cop went with them. But they never found the boat. Oh, the boys were wild. You should go ask Murvin.”
* * *
—
Murvin lives right beside the bridge leading onto Isle Madame, on the Cape Breton side. He’s in the auto towing and recovery business. When you call the Canadian Automobile Association from Isle Madame, Murvin is the guy who comes by with his big tilt-bed truck to carry your disabled car to the shop. He’s a dark-haired, husky, no-nonsense kind of man who is perfectly happy to talk about his experience with Phillip Boudreau and the stolen boat.
“Well, I didn’t see him take it, but I seen him with it—and he’s pretty evil. He was. I had my boat tied to the post down there, and when it forecasted a windstorm I went down to tie the back of it. I get down—there’s no boat. Then a fellow told me he knows where my boat’s at, so I went in Arichat, in Petit de Grat—and sure enough, I seen Phillip Boudreau with it, going up around the cove by his parents’, and he went up there for about twenty minutes, and then I see him coming back down. He knows my truck, so I hid my truck by a building and I seen him going in by his brother’s wharf.”
Murvin figured Phillip would tie up the boat and leave it. So he and his brother and a friend waited fifteen minutes and then drove to the wharf to grab the boat. But it wasn’t tied to the wharf.
“He was still sitting in the boat with it idling, and when he seen us he put it in gear and he waved to us, more or less saying, ‘I’m out in the water and you can’t get me.’
“And you know that’s the same stuff that he was trying with the Twin Maggies. He figured they had a lobster boat and he had a speedboat, so they ain’t going to get him—but he tangled with the wrong people there. You know people get fed up. He thought that he had everybody scared in Petit de Grat, but there was a couple of people he didn’t scare.”
Murvin and his team went out three times to look for his stolen boat. On one occasion they were told that Phillip was on Green Island, a rocky island just seaward of Petit de Grat Island. He doesn’t mention the name of the fellow who took the Marchand brothers to the island, but on the way out the wind rose to a gale and a steep sea came up, forcing them to turn back.
“Then I got a call from the police the next day saying that they had got Phillip. He said, ‘We got a tip, and we were waiting and we got him.’ But the day after, he was let go from court! You know, the Mounties were doing their job. They got him after three months of trying—but the following day after court, he was let free again. Then here he is out there cutting their traps and stealing their lobster.
“When I came in the second time that we went out to try to find him, one old fellow, I don’t know his name, he said, ‘Did you get him?’ I said no, and he said ‘I wish you would,’ he said, ‘before lobster season opens, ’cause we can’t keep our traps.’ I said, ‘If you know where he’s at, tell me’—and he said, ‘If he catches me talking to you, he’d probably burn me out.’
“I said, ‘He knows I’m looking for him, so why wouldn’t he come burn me out?’ That’s a coward, that’s going to go and tantalize the older people, you know. And he got away with it for so long. How many times was this fellow in jail and how many times was he let out and what kind of a record did he have? Why was he let out that time?”
I said that I’d seen Phillip’s record—and that if you added up all his jail time, he’d spent something like twenty-three years behind bars, more than half his life.
“So what does that tell you?” said Murvin. “And here’s James Landry—how old was he, seventy-some years old? A
nd never had a criminal record. What brought this on him? Phillip thought everybody was scared of him, but then you get these guys that just wasn’t. They were fed up. They’d had all they could take.”
I had heard that when he called the police to say he was going after Phillip, the police said “If you catch him, call us, and we’ll come and pick him up.”
“That’s exactly what they said.”
“And you said…?”
“If I got him, he would’ve got a beating. I wouldn’t go as far as what they did, ’cause that ruins my life for a person like him. But he would’ve remembered stealing my boat.”
Murvin never recovered his boat—but for him, the worst loss was that Phillip stole his sense of security.
“You know,” he said sadly, “I never lose anything here. I’m here between thirty-five and forty years, and I never lose nothing. The boat was the only thing. Never lost nothing since.”
* * *
—
On a nippy winter afternoon, I sat in a workshop with a successful fisherman named Guy Landry. I’d heard a Phillip Boudreau story that involved him and wanted to check it out. A member of Phillip’s family lives just down the hill from Guy’s home, and I’d been told that Guy had had a conversation with Phillip one day when a wedding reception was in progress down the hill.
“Lot of lobsters at that party, eh?” Phillip is supposed to have said. Guy nodded. “Know where they came from?” No. “Out of your traps.”
“Yeah,” said Guy. “That happened.”
How did he feel about being taunted like that? How did he handle it?
Blood in the Water Page 10
