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Oak Bay double murder trial: Five months of evidence, testimony summarized

Jury begins deliberations in trial for father accused of murdering daughters
Andrew Berry, pictured in B.C. Supreme Court in Vancouver has pleaded not guilty to two counts of second-degree murder. (THE CANADIAN PRESS/Felicity Don)

Warning: This article contains disturbing content

In 2017, a rare snow fell across Greater Victoria, prompting eager youngsters to put on snow gear and enjoy an unusually white Christmas.

But the holidays were not joyful for all children in the District of Oak Bay.

Six-year-old Chloe and four-year-old Aubrey Berry were found murdered in their father’s apartment around 6 p.m. on Christmas Day. Their blonde hair was matted with blood. Both girls had been stabbed multiple times, found laying on separate beds.

In the bathroom, 45-year-old Andrew Berry lay partially submerged in the tub with gaping wounds.

He was taken to hospital and, once treated, arrested and charged with two counts of second-degree murder.

He pleaded not guilty, and the trial began in the Vancouver Law Courts in April.

RELATED: Trial begins for Oak Bay father charged in Christmas Day deaths of two daughters

Sisters 4-year-old Aubrey Berry and 6-year-old Chloe Berry are remembered as energetic and silly young girls. Thousands came out to Willows Park for a candlelit vigil following their deaths. (Submitted photo)

Aubrey and Chloe

In the shadow of a lengthy, and at times gruesome, trial, one image has served as a poignant reminder of the children taken: two sunny-haired girls with toothy grins and round cheeks, posing for school pictures.

Their lives were short, but the girls, known for their spirited and rambunctious energy, were beloved in their community and beyond.

Chloe, in Grade One at Christ Church Cathedral School, had recently fallen in love with horseback riding. Aubrey was in her last year of preschool at St. Christopher’s Montessori School. Both were artistic, energetic and loved spending time at Willows Beach.

A candle-lit vigil on Dec. 30, 2017, drew more than 2,000 to Willows Park, locals gathering in shared shock, pain and support for the girls’ mother, Sarah Cotton.

Rev. Michelle Slater of Oak Bay United Church addressed the crowd. “We are here to affirm that, though six and four years old, their lives had meaning and purpose,” she said. “Their lives mattered. The world was a more beautiful place because of them; a more loving and delightful place. People’s lives were changed because of Chloe and Aubrey’s living. Those impacts will continue now and into the future.”

A candlelit vigil drew thousands to Willows Beach on Dec. 30, 2017. (Keri Coles/News Staff)

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The Build-up

Cotton and Berry met in 2009 when they were both employed at BC Ferries. By 2013, they lived together as common-law spouses with their two young daughters.

That September, Cotton reported to police that Berry had assaulted her. The criminal assault charge against him was dropped, but the two separated and Berry signed a peace bond dictating his only communication with Cotton would be in relation to their children.

The years that followed saw the two parents locked in custody battles. Cotton called the Ministry of Children and Family Development twice with claims that Berry had molested Aubrey, but police said there was not enough evidence to press charges.

In May 2017, a judge decided the two would share time with the kids and Berry was awarded more parenting time than he’d had previously, receiving 40 per cent of custody.

Although she testified to being “shocked” by the custody decision, Cotton and Berry began a co-parenting relationship that took place through text messages, emails and brief phone calls.

Cotton testified to being unaware of the extent of Berry’s financial woes, but she knew his apartment was without hydro, as the girls had told her their time with their father was “like camping” and that they used flashlights at night.

She was concerned for their well-being and sent several texts to Berry before Christmas 2017 about finding new arrangements until his power was restored – telling him a couple days without power was fine, but they shouldn’t be in the dark and without heat for any longer. Berry never responded.

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Christmas Day

Broadcast in a Victoria courtroom, the double murder trial saw dozens of witnesses take the stand, painting a picture of the events on and surrounding Dec. 25, 2017.

Surveillance footage from Christmas Eve gave a sense of how Berry, Aubrey and Chloe spent the day before the slayings. Videos show them at the Oak Bay Recreation Centre and Fairway Market.

Berry testified he kept the girls up late on Christmas Eve, hoping they would sleep through the early morning darkness when he wouldn’t have working hydro to light his suite.

RELATED: Oak Bay dad accused in daughters’ deaths asked for details about last day with them

Berry’s upstairs neighbour, Valley Travers, testified she heard loud crashing noises and thuds coming from Berry’s apartment that Christmas morning.

“It wasn’t non-stop or anything, but I would hear something really heavy,” she said.

Defence lawyer Kevin McCullough later argued Travers wasn’t credible, pointing out inconsistencies in her statements to police and her testimony in court. Travers did not tell police what she had heard when they arrived, McCullough said. And if she had concerns for the girls’ safety, she did not call for help.

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Per their custody agreement, Aubrey and Chloe were supposed to be returned to their mother at noon on Christmas Day. Cotton testified she and Berry’s mother, Brenda, grew concerned when the girls didn’t show up. She told the jury they tapped on the windows and rang the buzzer, speaking to Travers, who said she had heard the girls up that morning.

By evening, Cotton had gone to police.

Oak Bay Const. Piotr Ulanowski was sent to Berry’s apartment to check on the girls. After obtaining keys, he testified to having some difficulty opening the door, saying he could tell “there was something behind it.”

Once inside, Ulanowski used his flashlight to peer into the dark unit. There was blood on the floors and walls. In a bedroom, he found the body of a little girl.

Horrified, he left the unit and called for backup, waiting at the main entrance to the building. He had found “anarchy and bloodshed,” he said in a call to Sgt. Michael Martin.

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Martin arrived about four minutes later, following Ulanowski into the apartment. Sweeping his flashlight through the darkness and seeing the blood, Martin upgraded the call to dispatch – code 4 – everyone except those directly involved had to stay off the airwaves.

When police and first responders arrived, they navigated the pitch dark space with flashlights, shuffling through the crowded hallways. Paramedic Hayley Blackmore was tasked with checking the girls’ conditions. She testified that neither had a pulse and both were found to be stiff and cool to the touch.

Berry was found in the bathtub with a swollen, black eye, multiple wounds on chest and a lateral laceration on his neck.

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Andrew Berry's blood-soaked shirt shows small tears over the chest area. Berry faces two charges of second degree murder in the deaths of his two young daughters. (Courtesy of BC Supreme Court)

First responders heard Berry utter the words “kill me” from the bathtub, said Crown lawyer Clare Jennings – evidence hotly contested by McCullough – who said from the offset, responding officers had zeroed in on Berry as the perpetrator.

Berry claimed he could not remember saying “kill me” but testified he heard voices note, “this is the guy who killed his kids.”

Berry was transported to hospital and prohibited from leaving, seen by staff as at risk of harming himself or others.

With a wound to his neck, Berry was initially unable to speak. While in hospital he exchanged written messages with his sister, an RCMP officer whose name is protected by a publication ban.

In a note, Berry’s sister tells him it’s the last time he’ll see her.

“I love you. I’m sorry. I have no idea what to say,” Berry wrote back. “I don’t remember what I did but I tried suicide.”

He also wrote: “Sarah treated me so like I didn’t matter. Mom was joining in. The lies [they] created to get their way was absurd [and] I couldn’t stand up to them.”

Under cross-examination, Crown counsel Patrick Weir asked Berry why he didn’t take the opportunity to deny that he had killed his daughters.

“You can try logic and parse this inside out,” Berry replied. “I don’t know.”

A paper showing communication between Andrew Berry and his sister. Berry is accused of murdering his two young daughters on Christmas Day, 2017. (Courtesy of BC Supreme Court)

The Narratives

Resent and Greed

Weir and Jennings told the jury the story of a man struggling with depression, anger and resentment. Berry, they said, had killed his daughters on Christmas morning before attempting to take his own life.

Crown submitted evidence that Berry was regularly behind on rent while his Visa and line of credit were maxed out. He had been unable to pay his hydro bill and may have known he was at risk of losing custody.

Weir suggested Berry had stopped paying bills and opening mail because he had decided to end his life, but he wanted to hurt Cotton and his mother, Crown argued, and had written a note listing his grievances with them.

“Betrayed, bullied, and miscast I set out to leave with the kids,” the letter read. “But I thought it better for myself and kids to escape.”

Berry testified the note had been written in November when he had attempted suicide by hanging and said he had not written the letter for Christmas Day.

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Gambling debts

While being questioned by McCullough, Berry said he owed thousands to a loan shark, a Chinese man named Paul, who had lent him $10,000 in the midst of a gambling frenzy.

Berry’s testimony wove a narrative of addiction and debt. He said his debt to Paul accumulated interest until he owed $25,000. He claimed that as a condition of another loan extension, he had agreed to provide Paul with a key to his apartment and allowed Paul’s henchmen to drop off and pick up mysterious packages.

On Christmas Day, Berry said they had playtime in the snow. But when they returned to the unit at 3:30 p.m., he was attacked. He described being stabbed multiple times and losing consciousness more than once. His attacker was a man with dark skin and hair, he said.

Under cross-examination, Weir asked Berry if he could think of any reason why Paul would kill his children.

“None of this makes sense,” Berry answered. “I don’t know what his possible motivations could be.”

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Forensic evidence

McCullough suggested many times throughout the trial that first responders were incompetent and negligent, failing to preserve the integrity of the crime scene. Objects in the hallway were moved to try to get Berry onto a gurney, he said, and blood was tracked from one room to another.

Forensic officer Andrew Harward of the Saanich Police Department processed the scene as the primary identifying officer. He told the jury he didn’t see any signs of forced entry – he found the windows locked and items untouched on the sills.

A photo of a bloody bench taken in Andrew Berry's Oak Bay apartment. (Courtesy of BC Supreme Court)

He noted he did not swab every blood sample or the carpet at the front entrance because there would have been cross-contamination from first responders entering the unit. Based on his assessment of the points of entries, Harward did not believe there would be any fingerprints found at the scene that did not belong to Berry, Aubrey or Chloe.

RELATED: Forensics officer testifies he saw ‘no signs of forced entry’

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Blood spatter analyst and crime scene examination specialist Sgt. Kimberley Tremblay found 21 patterned sock foot transfers but no shoe prints.

Tremblay testified drip trails, saturation stains and spatter marks indicated the girls had been killed in their beds.

Jennings asked her if there was anything in her observations that indicated it was impossible for one person to have committed the crimes, and Tremblay replied no.

In his closing arguments, McCullough told the jury they shouldn’t trust Tremblay, who was so affected by the scene that she required time off work. She was not a credible witness, McCullough argued, nor a proper expert on blood spatter evidence.

McCullough’s closing arguments attempted to discredit a number of witnesses. For almost three full days he reiterated the trial’s evidence, calling the Crown’s case circumstantial and instructing the jury to give their reasonable doubt to his client, not the Crown.

In his closing remarks, Weir said Berry was angry and resentful, and evidence shows he killed his daughters in a greed-filled attempt at keeping them from Cotton.

He said Berry’s story is “self-serving, illogical and at some points defies the laws of physics” and said his evidence “cannot raise a reasonable doubt” and has “conflicts at every turn.”

-With files from Keri Coles, Kevin Menz and Nicole Crescenzi and the Canadian Press

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