Updated: The Ibex Valley murder trial: what the jury didn’t hear

Some legal arguments were made without the jury present. Those details couldn’t be published until now

A 14-person jury heard the first-degree murder trial of Edward James Penner, a 22-year-old B.C. man now convicted of killing 25-year-old Adam Cormack in Ibex Valley in 2017.

As with every jury trial on a criminal matter, the Crown and defence held a number of legal arguments behind-the-scenes, and certain pieces of information were withheld from jurors in an effort to prevent biasing them.

Here’s some of what the jury didn’t get to hear:

Penner’s criminal record

The jury heard that investigators requested Facebook records from June 7 to July 1, 2017 for an account under the name of “James Tanner.”

Although the latter end of the date range is related to when Penner was arrested in Whitehorse, the first date is tied to when Penner was released from a B.C. jail for a 2016 robbery.

Penner had pleaded guilty to the charge and was sentenced to 428 days.

Penner also racked up charges while at the Whitehorse Correctional Centre: he was charged with assaulting a peace officer in August 2017 and correctional officer in September 2017. Penner pleaded guilty to the August incident and was sentenced to six months in custody (he was given credit for time served). The charge from September was stayed.

Penner was also charged for uttering threats in September 2017. He pleaded guilty and was sentenced to one month in custody, again given credit for time served.

Most recently, Penner was charged with assault with a weapon causing bodily harm, which allegedly occurred on July 28. His first appearance on the matter took place during the murder trial (a lawyer appeared on his behalf).

An abandoned application

The defence commenced an application Sept. 11 alleging an inadequate police investigation, calling Const. John Gillis, the lead investigator on the case, to testify.

Defence lawyer Andre Ouellette grilled Gillis for about an hour and a half on what police did or didn’t know and the thoroughness of their investigative techniques.

The Crown described Ouellette’s efforts as a “pure fishing expedition.”

At one point, Ouellette’s line of questioning revealed that police had arrested a man for accessory to murder after the fact after he was caught on security camera entering an apartment building on June 29, 2017, and leaving with a “gun-shaped item” covered with a blanket.

Two other witnesses said Penner had been in the apartment earlier that day, appearing agitated and waving a large gun around.

The man, who was never charged, was later seen on security footage meeting Penner at the Casa Loma with a duffle bag. Penner was seen with the duffle bag until shortly before his arrest on June 30.

About an hour into the Crown’s cross-examination of Gillis, Penner became visibly agitated and began swearing at his lawyers.

Ouellette requested a break and left the courtroom with co-counsel Kelly Labine, presumably to speak to Penner. Upon returning a few minutes later, Ouellette said he had been instructed to abandon the application.

A handful of other tense moments also played out between Penner and his lawyers. Penner abruptly asked for a break during Ouellette’s cross-examination of Clarence Haryett, who said he had driven Penner, Cormack and a third man, Bubbles, to the gravel pit area.

Penner and Ouellette had a quiet but heated exchange after the jury left the courtroom, with Penner audibly telling his counsel, “Your whole cross-examination is falling down.”

The Johnson video

One of the Crown’s key witnesses was Juanita Johnson, who testified about seeing Penner and Cormack together at a party in the early hours of June 28, 2017. She also told the jury that, when she later returned to the house to retrieve some clothes, a group of people including Penner had forced her into a vehicle and driven her to the Family Hotel, where she was kept in a room until she managed to escape.

Part of the disclosure in the case was a security video from the Family Hotel showing Johnson walking up and down a hallway unaccompanied, and at one point knocking on a door to be let into a room.

During a voir-dire Sept. 10, Ouellette said that, due to technical difficulties, the defence had only recently been able to open the video.

Johnson had taken the witness stand six days prior; the video should have been played for her and should be played in front of the jury, Ouellette argued, because it “tends to contradict” Johnson’s recollection of her time at the Family Hotel — that she had been held against her will with no way to leave.

Crown attorney Amy Porteous, however, said that Johnson’s cross-examination was long over, and even without the video, the defence could have asked Johnson about her conduct at the hotel.

She also said that while the video was in a strange format, the Crown had sent it to Ouellette’s office on May 30, but it wasn’t until Aug. 16 that the defence indicated they were having trouble opening it.

A paralegal with the Crown’s office reached out to Labine, offering to show her how to open the video, Porteous continued, but received no response. The paralegal then sent written instructions.

Porteous said she sent a reminder on Aug. 20 that help was available and a paralegal stayed after-hours just in case, but the defence replied they would figure it out themselves.

It wasn’t until 1:18 p.m. on the day Johnson testified that the defence raised the issue about opening the video again, Porteous said, adding it would be unfair to play the video for the jury without giving Johnson a chance to comment.

Ouellette, in reply, said that his office had sent a request for help opening the video “way before August,” in late May or June.

He also said that a police statement given by someone who wasn’t called as a witness, Jennifer Rivest, also contradicted Johnson’s testimony. Johnson testified she was taken by Penner at gunpoint to the car that drove to the Family Hotel; Rivest, however, who was apparently with Johnson at the time, told police she hadn’t seen a gun. He said it was “unfair” that the jury was given the impression that there was nothing to contradict Johnson’s testimony when, in fact, there was.

The video was eventually played during the trial for another witness — Gillis, who identified the person in the video as Johnson.

Extra security

On top of the usual court sheriff and two correctional officers accompanying Penner, a plain-clothes police officer who was not a trial witness sat in the back of courtroom gallery through most of the trial, while a uniformed police officer stayed outside near the courtroom door.

In an email, Yukon RCMP spokesperson Coralee Reid wrote that it’s normal for plain-clothes officers to be inside a courtroom “during any trial, especially if they were involved with the incident or investigation in any way.”

“As for the security,” she wrote, “the Major Crime Unit has indicated that given the type of offence and circumstances of this case, it’s normal to have additional security.”

All or nothing

Shortly before closing arguments, Ouellette told Brooker that he’d been instructed to take an “all or nothing” approach, meaning that Penner wanted either an acquittal or conviction on first-degree murder — he wasn’t interested in building a case for the lesser offence of second-degree murder. The Crown and defence also both agreed to not give the jury the option of a conviction of manslaughter, which is sometimes included as a lesser offence in murder trials.

Contact Jackie Hong at jackie.hong@yukon-news.com

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