In an appeal filed a week later, the defence accused Haley of being inflammatory in his ninety-minute summation—a complaint that caused a good deal of concern on the prosecuting team. Haley became quite upset about the accusation. He was certain that he had been fair and had in no way inflamed the jurors. Williston and Chishom advised him to ignore the complaint; after all, there were several reasons cited for the appeal, and they didn’t agree with any of them. Finally, Haley’s colleagues began to worry about his reaction; they didn’t want him to lose his focus, not with two trials still ahead of them. They decided to try humour, and bestowed on him the nickname “Flames,” which stuck for the duration of the McDonald’s trials. To his credit, “Flames” did learn to laugh at the whole situation, and he set aside his concerns about the appeal until a more appropriate time.
With Haley’s arguments over, the jurors were sent home for the long weekend. On the morning of June 1, the fourteenth day of the trial, Justice Tiddman undertook his charge to the jury, an explanation of the points of law related to the charges and evidence of the case. Tiddman’s intention was to clearly and simply outline the relevant Criminal Code provisions. Making legal language understandable is a challenging task, but Tiddman was up to the challenge, and was well aware of the hazards that faced him. Many appeals have been won by defence lawyers who argued that a judge did not properly charge the jury.
Tiddman began with a caution to the jury. “It is hard to imagine crimes more horrendous. These killings understandably upset the community,” he said. “Separate yourself from those emotions, and make your decision on the evidence. It is not for you to determine the seriousness of the crime, but you must decide if this accused committed all or any of the offences.” He also advised jurors against making a decision too early, and urged them to approach their deliberation with open minds—and, especially, open ears.
With this warning out of the way, the judge explained the differences between first-degree murder and the related offences of second-degree murder and manslaughter. For a murder to be first-degree, he said, it must be planned and deliberate, or it must be committed by someone found guilty of unlawful confinement. Tiddman outlined what the law has to say about forcible confinement as the offence tied in with the case in relation to Donna Warren. A judge’s charge is generally a long, drawn-out, technical affair, and observers expected this one to take most of the day. But Tiddman clearly wanted to avoid confusing the jury: in less than two-and-a-half hours, the charge was complete.
Then began the long wait, as relatives of the shooting victims and members of the media gathered in the hallway outside the courtroom. As the jurors pondered, the guessing game in the hall centred on how long they would be out, and what a lengthy deliberation might mean, Joey and John Burroughs came over to talk with me about their worries and their feelings. “If this goes long, those people are crazy,” Joey said, his anxiety building. “The goddamned bastard confessed, didn’t he?” After just over three hours, there was a brief wave of excitement in the hall, as deputies summoned the lawyers. Was it a verdict? No, just a request. The judge, the lawyers, the accused, the relatives, and the reporters all crowded back into the courtroom to learn that the jurors wanted a transcript of the testimony of Corporal Brian Stoyek, the first officer to come in contact with Derek Wood. The judge told them that the transcript wasn’t ready yet, but he could replay the audio tape of the officer’s testimony. Of course, that would mean the jury would be spending the night in a hotel, Justice Tiddman said. The victims’ relatives had been praying for a short deliberation, but now they would have to spend a night waiting and wondering.
The next day, it was back to the wait in the hallway; everyone was talking about the significance of Brian Stoyek’s testimony and why the jury wanted to hear it again. Crown lawyers had pointed out that in his second statement to Stoyek on May 7, Wood claimed to have run through the restaurant and out the door after seeing two men, one wearing a mask, and said he saw a man lying in the doorway where Jimmy Fagan had fallen. He could not have known this if, as the defence insisted, he had not been at the restaurant when the last shot was fired. In his final argument, Art Mollon had challenged that information by saying that during their interrogation on May 7, Stoyek and Cleary “refused to admit” they told Wood where the body was. Mollon hoped the jurors would cling to the phrase “refused to admit” and its implications, instead of concluding that the officers had simply chosen not to give Wood any information on that first morning.
The phrase, as it happened, came from a report I had written a few years before. Before his closing arguments, Mollon took me aside and said he would be quoting me to the jury. But he would not say any more, and I just couldn’t figure out what I had said or done in the weeks of the trial that could be used in arguments for either side. However, when Mollon got to the part of his argument dealing with the interrogation, and said that Stoyek and Cleary “refused to admit” giving Wood the answers—his voice rising with indignation on the word refuse—I started to smile. The phrase had come up when I filed a report saying that a man accused of murder had “refused to admit” his guilt when interrogated by police. The man’s lawyers just happened to be Mollon and Nicholson, and they promptly let me know how outraged they were. Their client had not “refused to admit” he was guilty, they said; rather, he maintained that he was innocent! So that was the phrase they were now using to defend Derek Wood, in the hopes that jurors would believe police “refused to admit” something they in fact denied. It was a key point. If the jury was convinced that Wood knew where James Fagan had fallen when he talked to police on May 7, then they could draw only two conclusions: either the RCMP told him, or he was at the restaurant after Jimmy Fagan was shot—in which case the arguments about time were no longer an issue.
As we all waited, Derek Wood spent the day pacing, sitting, or lying down in the tiny holding cell in the courthouse basement. I made several trips to the sheriff’s office in the basement to watch Wood on the video monitor, and was surprised to see that at one point, the young man whose freedom was on the line appeared to be sleeping. I asked if I could go into the holding area to talk with Wood, but Sheriff Magee would not allow it. Nor could I find Derek Wood’s father; the defence lawyers had made arrangements for a room to be set aside for him to await the verdicts.
At 2:26 p.m., the jury foreman sent a note to the deputy guarding the jury-room door. They were ready.
If the metal-detector searches and the secured second floor had seemed extreme to those attending the trial, the security in place for the reading of the verdicts was unprecedented. Thirteen law-enforcement officers crowded into the courtroom, most of them standing shoulder-to-shoulder to form a human wall between the gallery and the accused, who was flanked by guards. The RCMP and deputies knew that the emotions could run high at such times, and they wanted to keep the courtroom under control by making an intimidating show of force. For Joey Burroughs, it was indeed a time of great turmoil. Neil’s brother had been half-joking with me for weeks about making a run for the accused when the trial was over. It was something he wanted to do with every muscle in his body. Short and stocky and very angry, Joey was boxed in, seated in the middle of the second row. The front row was empty, but there was a wall of men between him and Derek Wood. As he waited for the jury to return, the anger continued to build and Joey began to turn red, thinking of the grisly testimony from the pathologist, of the video tape, and, most of all, of how Derek Wood had come to court every day and shown no sign of remorse. Joey gripped the back of the wooden seat in front of him as the jurors finally took their places.
Before asking for the verdicts, Justice Tiddman addressed Joey Burroughs and the other anxious relatives of the McDonald’s victims, commending them for showing strength throughout the trial, but warning them that he would not tolerate any outburst. Those who felt they could not control themselves should leave, he said.
He then asked for the verdicts on a count-by-count basis: “On count one, t
he attempted murder of Joan Arlene MacNeil, how do you find?”
“Guilty.” As the foreman spoke, a stifled cry from Arlene’s mother could be heard, and Joey Burroughs pulled slightly on the back of the chair he was still gripping. Derek Wood looked pale, and lowered his head as he stood beside his lawyer.
“On count two, the unlawful confinement of Donna Alecia Warren, how do you find?”
“Guilty.” A louder cry from the gallery, and a firmer pull from the white-knuckled Joey Burroughs. Wood did not move.
“On count three, the first-degree murder of Donna Alecia Warren, how do you find?”
“Guilty.” Now a cheer—and the relatives quickly restrained themselves, grabbing each other by the arms and crying. There were tears of release. But Joey Burroughs still sat with his head bowed, both hands gripping the chair. And Derek Wood remained motionless.
“On count four, the first-degree murder of Neil Francis Burroughs, how do you find?”
“Guilty.” More crying, more hugging, and further attempts at self-control. Joey Burroughs pulled so hard on the wooden chair that it rocked backwards, straining at the ageing bolts that held it to the courtroom floor. If Derek Wood felt anything, he did not show it.
“On count five, the armed robbery …”
“Guilty.” A louder cheer echoed through the room, and the relatives hugged each other wildly before Justice Tiddman shot a stern look in the direction of the overwhelmed family members.
The judge then asked Derek Wood if he wished to speak before sentence was passed.
“No, my lord.” Wood’s voice was strained, but he maintained control. Justice Tiddman sentenced Wood to two terms of life imprisonment with no parole for twenty-five years on the first-degree murder counts, a term of life imprisonment on the attempted murder charge, and two terms of ten years for the robbery and unlawful confinement. They were long sentences, but they would not be served consecutively. In Canadian law, a life sentence is a life sentence, and once it is imposed, no term can be added to it. There is no such thing as a multiple life term, or a consecutive parole-eligibility restriction.
As the sentences were handed down, Joey Burroughs bolted from the courtroom. He wasn’t going to attack Wood, but he was too angry to allow him to leave without response. The prisoners entrance at the courthouse is located below a cement wall that borders an upper parking area. Burroughs ran to that wall and waited for Derek Wood to be taken to the waiting van. Others gathered and began to shout obscenities and threats at the young man as he was led to the van amid tight security. Joey Burroughs gripped the cement wall, his angry voice rising above the rest: “May you choke on every cock you suck from now on, you fucking prick!” he shouted, hoping everything he’d heard about prison was true. The other onlookers picked up the theme, shouting at the departing prison van. The verdicts had been a victory, but it was a hollow one; it could not restore the lives that had been lost or shattered. Their outburst at least relieved the tension of the three gruelling weeks of testimony.
Relatives of the McDonald’s murder victims weep and embrace in the hallway of the Sydney courthouse after Derek Wood is found guilty of all charges against him. [Print from ATV video tape.]
After the release of frustration, those who had ventured outside returned to the courthouse, where the mothers, sisters, brothers, fathers, and cousins of Arlene MacNeil, Donna Warren, Neil Burroughs, and Jimmy Fagan hugged, kissed, and cried in front of the television cameras. I rushed from one emotional relative to another, asking how they felt, getting their comments and tears on camera. Julia Burroughs sat crying on a bench, repeating the phrase: “You’ll never know. No-one will ever know.” Germaine MacNeil was overwhelmed with emotion. Earlier in the day, as we waited for the verdicts, she told me Arlene would be arriving from Halifax the following day; she was being transferred to a hospital closer to home. Now I asked her to tell me the good news in front of a TV camera. She cried and gasped as she spoke: “Arlene … is … finally … coming home.” It was all Germaine could manage. Then I saw Joey Burroughs, still fuming; Gary and I went over to him. He too tried to express what he was feeling, but he was too emotionally spent to do much but cry. Al Fagan reluctantly agreed to make a brief comment on behalf of his family, saying only that he was relieved by the verdict. He was still worried that emotional comments from victims’ relatives could threaten the trials of Darren Muise and Freeman MacNeil, who were charged with Jimmy’s murder. I turned away from Mr. Fagan and saw Carmel Burroughs standing in the hall. Neil Burroughs’s mother had been at home for most of the trial, but sometimes called me in the evenings after my news reports; her kids always told her what had been said in court, but she wanted to talk with someone who had been through murder trials before. When I asked Carmel for her reaction, she gave a very short comment about her feelings of relief, then pushed the microphone aside, wrapped her arms around my neck, and gave me a hug. Nearby stood Olive Warren, who was crying too hard to say much; she too pushed past the microphone and hugged me.
Just down the hall, in a closed office, another emotional scene was being played out, far away from the prying eyes of the cameras. After the verdicts were read and the weeping of the relatives spilled out into the hallway, a wave of emotion swept over the prosecuting team. At first, the lawyers joined the families in the hallway, but soon Ken Haley and Brian Williston realized that they couldn’t remain—their eyes were filling with tears, and they needed time to regain control. Marc Chisholm also felt the force of the emotion being expressed, but he knew his colleagues from Sydney were under more strain than he was. They lived here, and they felt a particular pressure to successfully prosecute the case that had so dramatically changed their home town. After regaining their composure, the lawyers went back out in the hallway, where Haley took a few questions from reporters before returning to the office with his partners to begin working on the next trial.
Once we had something on camera from all four families, I took one last look around for Derek Wood’s father, but could not find him. Gary and I headed back to the station to prepare our report, and afterwards I sat in the newsroom and began to wonder about the way Carmel Burroughs and Olive Warren had reacted. I had befriended both women during the trial—they were friendly people, and it would have been hard not to do so—but I didn’t want to become emotionally involved in the story, nor did I want them to think of me as being “on their side.” Providing information about the legal process was something I did for many people in the community who approached me with questions during the trials. Television viewers often feel free to walk up to a reporter they watch at home each night, and talk as though they knew you well, and I always take time to answer their questions or just say hello. I decided that Olive and Carmel just felt overwhelmed after the verdicts, and expressed their thanks in a more-emotional way than they otherwise would have. Besides, like all the victims’ relatives, they were facing another roller-coaster ride starting the very next day. The trial of Darren Muise was about to begin. And these overwrought people could use some understanding.
Fourteen
The Darren Muise trial was a very different experience for the victims’ relatives, despite their feelings that they were now wise to the ways of the courtroom. Justice William Kelly, who was hearing his case, agreed that the publicity surrounding the Wood trial could make it difficult to find an impartial jury for Muise, and allowed the murder trial to proceed in front of a judge alone. Another difference between the two trials was the defence. The victims’ families had been angered and frightened by some of the questions raised by Art Mollon and Allan Nicholson—the insistence on knowing how much blood was spilled during the murders; the preoccupation with the time Derek Wood made his phone calls. But Muise’s lawyer, Joel Pink, was someone to fear even before they saw him in court. The well-known Halifax defence lawyer had been involved in some high-profile cases, and there was speculation about the prosecuting team being up to the clash. But perhaps the most striking difference between the two tr
ials was the demeanour of the two accused men. Where Wood had avoided eye contact and kept his head bowed, Muise held his head high, looking directly into the cameras and the at people gathered in the courtroom as he was led to the chair where Wood had spent the past three weeks. Muise’s tendency to swagger when he walked quickly annoyed the relatives, who wanted him to look frightened and overwhelmed, not confident and self-assured.
The first day of Muise’s trial offered little more than an opportunity for reporters and the angry relatives of the shooting victims to take a look at the second suspect. Marc Chisholm, who was prosecuting the case, asked Justice Kelly for a few days to gather the exhibits from the Wood trial and have them released by Justice Tiddman. Many of the exhibits were common to all three cases, and the prosecutors had expected an interval of several days—not eighteen hours—between the end of the Wood trial and the beginning of the Muise trial. A new starting date was set: on Monday, June 7, the crown would begin its case against Muise.
Chisholm knew that to win the case, it was absolutely imperative for him to win the pretrial argument over the admissibility of Muise’s confession. He would have to convince Justice Kelly to listen not only to the confession, but also to the prolonged interrogation that preceded it. Joel Pink had carefully prepared his arguments against allowing the confession. A psychiatric specialist had seen the video tapes of the police and Muise in the RCMP detachment and read all the written statements, and he was prepared to testify that Darren Muise did not confess with an “operating” mind—one of the legal criteria governing the admissibility of an accused person’s statement to police. The doctor’s opinion was that the long interrogation and the techniques used by the police had somehow robbed Muise of his faculties. But the prosecutors weren’t so much worried about defence arguments as they were about Kelly’s practice of hearing only one side of a statement.
Murder at McDonald's Page 29