Alberta murder appeal unsuccessful despite Crown overstepping bounds of proper conduct

Law360 Canada (October 2, 2024, 11:57 AM EDT) --

John L. Hill

The Oct. 18, 2022, issue of the Calgary Herald reported that homicide suspect Deidre Lafferty showed no outward emotion as a prosecutor in northern Alberta dropped a first-degree murder charge against her on the eve of her preliminary inquiry. Calgary-based defence counsel Telmo dos Santos represented Deidre. He was hired when former MLA and Behchokǫ̀ Chief Leon Lafferty asked him to assist in Deidre’s defence.

Winston Derksen and Deidre Lafferty were jointly charged in March 2020 with the first-degree murder of Faisal Fadul Aden, 24, on Dec. 4, 2019. Two days after Aden’s body was found, the medical examiner’s office in Edmonton determined his death was a homicide.

The arrests were made after the RCMP Major Crimes Unit obtained surveillance photos of a man and woman, later identified as Derksen and Lafferty, from a gas station in High Level.

Justice Eldon J. Simpson, the trial judge, accepted the following facts in sentencing Derksen for second-degree murder: On Dec. 1, 2019, Derksen and his girlfriend, Deidre Lafferty, left Yellowknife to go to Edmonton and then to British Columbia. Derksen had a .45 calibre handgun in the truck. They arrived at High Level, Alta., around 11:30 p.m. Then they backtracked to Hay River (3.5 hours) to pick up Aden, who had been released from jail.

Aden was a stranger to both Derksen and his girlfriend. There is evidence that he was a drug dealer. Neither Derksen nor his girlfriend asked Aden his name, and Derksen did not speak with Aden very much during the drive. At around 4:30 or 5 p.m., the three people pulled off onto an oilfield service road south of Red Earth Creek. Derksen took the .45 from wherever he’d stowed it and hid it under his clothing.

Lafferty was smoking in front of the vehicle while Derksen and Aden urinated at the back. The men argued. Derksen pulled out the gun. The men struggled for the gun. Derksen fired the gun nine times, hitting Aden four times. The girlfriend testified as a Crown witness that Aden walked holding his stomach. The kill shot was a bullet behind his left ear. When he was face down on the ground, Derksen shot him in the head again.

Near the end of the trial, both counsels addressed the jury. The defence pointed out several faults with the Crown’s closing statement that could have lured the jury into error. The defence brought a mistrial motion that was denied. The jury returned a verdict of guilty to second-degree murder.

Derksen appealed his conviction, claiming the trial judge had not corrected the prosecution’s misdirection in its closing address to the jury. Derksen’s defence theory was that Lafferty committed the murder. Lafferty had testified for the Crown, putting all the blame on Derksen. Before the jury retired to consider the evidence, the defence had brought a motion for a mistrial, arguing that the statements made by Crown counsel in its summation were grossly unfair and reversed the onus of proof. The jury would have been misled.

The trial judge ruled this was not one of the “clearest of cases” requiring a mistrial declaration. Instead, the Crown’s errors to which the defence objected could be remedied by a corrective instruction before the jury deliberated. The trial judge cited numerous authorities supporting that decision: R. v. Khan, 2001 SCC 86; R. v. Chachon-Perez, 2022 ONCA 3; R. v. Boudreau, 2012 ONCA 830; R. v. Finta, [1994] 1 SCR 701; R. v. Trochym, 2007 SCC 6; and R. v. Munroe, [1995] 4 SCR 53.

The Alberta Court of Appeal implicitly agreed that the Crown’s address to the jury overstepped the bounds of proper conduct but found that the trial judge’s decision to make a strongly worded corrective instruction was sufficient to address the trial unfairness resulting from the Crown’s errors (R. v. Derkson, 2024, ABCA 304).

The appeal court found that the trial judge had succinctly addressed each of the problematic concerns identified by the defence in the Crown’s closing address. The appeal court noted that in taking corrective action, the trial judge had given instructions reinforcing his initial direction regarding the presumption of innocence and assessment of witness credibility.

Derksen’s appeal was dismissed. The appeal court accepted that jurors would follow the instructions given to them. This belief was enunciated in R. v. Corbett, [1988] 1 SCR 670, and re-affirmed in R. v. Barton, 2019 SCC 33.

This appeal pointed at some egregious errors made by Crown counsel to a jury. Even if the Court of Appeal decision was right and the mistakes had been rectified by the solid corrective instruction given by a trial judge, it must be remembered that a cause sometimes attributed to wrongful convictions is prosecutorial misconduct. Our justice system operates on the premise that the Crown should seek the truth and not simply a conviction. This appeal verifies that this is not always the case.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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