Susan Clairmont: Six Nations double murder trial continues to be about unco-operative witness
With orders from a judge to show up clean and sober for her next day of testimony, an unco-operative witness at a murder trial was released after being jailed for contempt of court.
During the entire first week of the trial - which relates to a triple homicide - key witness Kirsten Bomberry made a mockery" of the justice system, Justice Andrew Goodman has said. The judge threw her in jail Wednesday, citing her for contempt of court and hoping she would participate in the trial the next day.
Thomas Bomberry, Kirsten's cousin, is on trial for the second-degree murders of Alan Porter, 33 and Melissa Miller, 36. They, along with Michael Jamieson, 32, all of Six Nations, were killed at Kirsten's trailer on the 4th Line in Ohsweken in 2018.
Melissa was seven-months pregnant.
In total, six people were charged in connection with the murders.
Goodman noted Kirsten had, for days, answered every question by saying she couldn't remember anything and appeared at times to him - and to the Crown and defence - to be intoxicated on the witness stand.
At one point Kirsten told the court she did not want to be there. That was when she was surrounded by court security, handcuffed and led away.
It is extraordinarily rare for a judge to cite a witness for contempt in a murder trial. It will be up to a Crown attorney to decide if Kirsten should face a hearing on the charge at a later date.
She was supposed to return the following day - Thursday - but didn't because a jail scan showed a package inside her body that officials believed contained drugs. They were concerned if she was transported to the courthouse, the package could burst and she would overdose.
Hiding drugs inside body cavities is a relatively common practice for inmates.
On Friday, Kirsten was able to be transported from jail to appear again before Goodman. Court heard that whatever was inside her was no longer there. No real explanation was given.
That, combined with Kirsten's more alert demeanour Friday, was taken into account by Goodman.
However, it appeared submissions by her longtime lawyer Ian McCuaig had the most sway with the judge.
Ms. Bomberry is an extremely vulnerable Indigenous person," said McCuaig. I know her Gladue report almost off by heart. It's heartbreaking."
A Gladue report considers the background of an Indigenous offender during sentencing or at a bail hearing.
The trial has heard Kirsten, 39, has a long and violent criminal record, and is a drug dealer and user.
She has previously been convicted of manslaughter. In the triple homicide at her home, she was charged with three counts of accessory after the fact to murder for burying the weapons and cleaning up the crime scene.
She was acquitted on those charges when McCuaig successfully argued that she feared she too would be killed if she didn't help cover up the killings.
While she was in custody on those charges, her home was burned down, McCuaig said. When she agreed to give a statement on the triple homicide, jail guards let other prisoners know she was talking to police - which put her in danger within the institution.
I don't think it's any secret Ms. Bomberry doesn't enjoy participating in this proceeding or any proceeding," McCuaig told Goodman, but I don't think time in custody will moderate that."
Despite her unwillingness to participate, Kirsten still showed up each day of the trial - apart from the day she was kept in jail.
She is currently on bail for drug-related charges and recently finished a six-month conditional sentence for other matters without breaching her conditions, McCuaig told the court.
Keeping her in jail amounts to pretrial custody on a contempt citation that may never even go to trial, the lawyer said.
And the over-incarceration of Indigenous people is an epidemic."
For three decades the justice system hasn't been able to solve that problem, McCuaig continued, with the numbers of Indigenous people behind bars continuing to rise at a disproportionate rate.
As for detaining his client to keep her from using drugs, he started by saying her surety believes she has been sober recently and that the pattern of speech which you identify as slurring is, in my experience, her normal pattern of speech ... The more agitated she gets, the harder she is to understand."
Kirsten said she was not on drugs while testifying.
If someone wants to access intoxicants, being in jail is not much of a barrier," McCuaig said earlier in the week.
He concluded by saying that keeping Kirsten in jail is not going to make her a more willing witness.
I don't think time in custody is going to move her ... I don't think it's going to cause any goodwill ... She needs to be treated humanely ... I would urge you to let her out."
And that's what the judge did.
He released her on her own recognizance, despite the positions of the Crown and defence that she be kept incarcerated.
Goodman told her he was imposing very easy conditions": she is to return to court Tuesday morning and not consume any drugs or alcohol.
Susan Clairmont is a justice columnist at The Spectator. sclairmont@thespec.com