Andrew Berry was arrested in September 2013 for allegedly assaulting his wife and released on the condition that he have no contact with her or his two young children, an Oak Bay police officer testified Thursday in B.C. Supreme Court.
Const. Alex Omoding was testifying at Berry’s trial for the second-degree murders of his daughters, six-year-old daughter Chloe and four-year-old Aubrey, on Christmas Day 2017.
Omoding told the jury that he and Const. Eric Payne responded to a call from Berry’s wife, Sarah Cotton, on Sept. 13, 2013. The officers went to the family home and spoke to her.
Berry was arrested, then released on an undertaking to appear in court on Oct. 30, 2013. He was ordered to have no contact, directly or indirectly, with Cotton, Chloe or Aubrey, and to stay away from the family home until further order of the court.
The jury received from Crown prosecutor Patrick Weir copies of the undertaking given to Berry when he was arrested.
Omoding recommended that Berry be charged with assaulting Cotton on Sept. 12 and Sept. 13, but the Crown did not approve the charges.
The jury heard that when Berry appeared in court on Nov. 19, 2013, he was placed on a peace bond, a court order requiring him to keep the peace and be of good behaviour.
Berry agreed to abide by conditions not to have contact with Cotton, directly or indirectly, and not to go to Cotton’s residence, workplace or school, unless permitted by a family court order.
During cross-examination, Omoding agreed with defence lawyer Kevin McCullough that the allegations of assault only involved Cotton, not the two children.
He also agreed that police officers are required to follow certain policies for spousal assault.
“One of the policies is to place someone under a no-contact order and, in effect, what happens is once the allegation is made, you follow through and place him on conditions,” McCullough said.
“You placed him on the undertaking not to communicate directly or indirectly with her and he could no longer go to the family home, pursuant to policy.”
“There are other things you have to consider,” Omoding replied, although he did not elaborate.
McCullough noted that there is no mention in the peace bond of Berry having no contact with the children.
“And in fact, the conditions are set to allow Berry to have contact with the children through a family court order.”
Weir asked Omoding what other factors he considered in the situation.
“Well, first of all safety. The safety of the person making the complaint. You also have to factor in, at the time there was a baby, two kids in that house and there was fighting and arguments. Those were risk factors,” Omoding replied.
