An Oak Bay father charged with murdering his two young daughters on Christmas Day appeared dazed as he made a brief video appearance Thursday morning in Victoria provincial court.
Andrew Berry showed no emotion as he sat in a cinderblock cell at the Vancouver Island Regional Correctional Centre. The 44-year-old, with dark brown hair and facial stubble, wearing a black sleeveless T-shirt, had a lost, unfocused look as Crown and defence lawyers discussed his case. He said nothing.
Berry is charged with the second-degree murder of Chloe, 6, and Aubrey, 4, whose bodies were found by police at his Beach Drive apartment on Dec. 25. Berry was taken to hospital with self-inflicted injuries. After his release from hospital, he was arrested and charged with their murders.
Before the case was called Thursday, there was a tense exchange between prosecutor Patrick Weir and defence lawyer Kevin McCullough, who told Weir twice he was “dead wrong” about something.
Weir told Judge Robert Higinbotham the Crown still has a number of outstanding disclosure matters and is not in a position to fix dates for a preliminary hearing.
“Based on discussions with my friend, we’re going to likely require the assistance of a provincial court judge in defining and narrowing the issues and witnesses,” said Weir, who asked for a three-week adjournment.
McCullough agreed to the adjournment.
Outside court, neither Weir nor McCullough would explain what the issues are.
McCullough said he was frustrated they hadn’t set dates for a preliminary hearing.
“I don’t think for any accused person a case can move fast enough. Having said that, am I surprised by the three-week adjournment today? No,” said McCullough.
At Berry’s last court appearance on Feb. 1, McCullough pushed for a speedy trial and blamed the Crown for not being ready to go.
The defence lawyer also used the opportunity to emphasize the importance of the presumption of innocence in the Canadian justice system.
“I know it’s difficult but it’s so important that the presumption of innocence plays out in cases like this, where there seems to be a bit of a rush to prejudge matters,” McCullough said at the time.
He criticized the police announcement that no other suspects were being sought in the killings.
“There’s a danger in that, and the danger is you’re trying to argue the case or shape it or convince the public that you’ve done your job and that all is well and that matters are firmly in hand,” said McCullough. “It makes the public think that the person arrested is guilty, and that’s just not fair.”
On Thursday, McCullough was more circumspect, saying it was not appropriate to disclose how Berry is doing and whether he had undergone a psychiatric assessment.
McCullough would not confirm that Berry is being held in solitary confinement for his own safety.
“I can’t say anything other than I’ve been following the media. I’ve read the Leask ruling. The solitary confinement issues are real and they are a big problem. I hope Correctional facilities around the country are dealing with that.”
On Jan. 17, B.C. Supreme Court Justice Peter Leask struck down laws that allowed prolonged and indefinite solitary confinement in federal prisons. The ruling followed a constitutional challenge by the British Columbia Civil Liberties Association and the John Howard Society of Canada.
Leask found the practice of solitary confinement harmful to all who endure it. He also found that forcing federal inmates into solitary confinement for indefinite periods is unconstitutional because it puts them at significant risk of psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide.
“Correctional facilities are a bit different,” said McCullough. “If I had a client in solitary, my first move would be to identify why. Then, at a certain point, I would try to work with the Correctional facility to try and get him out of solitary confinement, because people cannot survive in solitary confinement.”
Citing privacy considerations, a spokesman for the Ministry of Public Safety and Solicitor General was unable to say if Berry is being held in solitary confinement.
Berry is scheduled to be in court again on March 15.