'Skate with your head up,' judge cautions defence at Fertuck murder trial
Lawyer Mike Nolin accused Crown Cory Bliss of prosecutorial misconduct
The Greg Fertuck murder trial took a dramatic turn Wednesday morning when one of the accused killer's lawyers accused the Crown of prosecutorial misconduct.
It happened as a key Crown witness was wrapping up his testimony. Defence lawyer Morris Bodnar has just completed his cross-examination of the undercover police officer who got Fertuck to disclose — on hidden camera — that he'd killed his wife Sheree six years ago.
Greg is on trial charged with first-degree murder in the death of Sheree Fertuck, who disappeared on Dec. 7, 2015.
The 51-year-old mother of three went missing after heading to work at the gravel pit near the small town of Kenaston, south of Saskatoon. Her truck, jacket and cellphone were found there the next day. She has not been seen or heard from since.
Although Greg told undercover police that he shot her and dumped her body in the country, he later changed that story and has pleaded not guilty.
Police drew out the admission by posing as criminals in a technique known as a "Mr. Big" sting. None of the officers involved in the operation can be named because of a court-ordered publication ban.
Justice Richard Danyliuk is presiding over the judge-alone trial and he has yet to determine whether the evidence from the sting is admissible in Fertuck's trial.
Prosecutor Cory Bliss was re-examining the undercover officer on whether he had any concerns with Fertuck's ability to read and understand a fake memo prepared by police that was used in one of the scenarios.
It was just after Bliss finished his re-examination of the officer — who played Mr. Big — that Bodnar's co-counsel Mike Nolin rose to speak. This was unusual because Bodnar had handled the cross-examination and lawyers do not typically switch off in this fashion.
"Did you and the prosecutor discuss your testimony yesterday afternoon?" Nolin asked the officer.
"No, my lord," the officer answered.
"I'll leave it for argument, my lord, but I find it fairly convenient that, given the question my friend asked that ... the witness had the response at the ready," Nolin said.
This prompted Bliss's co-counsel Carla Dewar to rise.
"I find that comment to be extremely objectionable," she said.
Justice Danyliuk then told Nolin that, if he felt that Bliss had done something wrong, then he should make the allegation directly.
"Then I will make that allegation, my lord," Nolin said.
"This witness was discussing matters with Mr. Bliss when they left the courtroom. I was five feet in front of them. I overheard conversation. I didn't hear exactly what was said, but Mr. Bliss ought not to be talking to this witness at all."
Danyliuk said that this was a serious allegation and adjourned court for 45 minutes so that the lawyers could consult with their colleagues and supervisors.
"Litigation is not a tea party"
After the adjournment, Justice Danyliuk commented that "litigation is not a tea party" and that the stakes in a first-degree murder trial are high for all involved.
He also voiced his concern with how Nolin had raised the allegation — in effect, by rising without warning the court to question his colleague's witness.
"This is not a tag team match in stampede wrestling... you needed to ask [the court] for leave to ask," Danyliuk said.
Danyliuk also noted that, when Nolin had asked the veteran officer under oath whether he had discussed the testimony with Bliss, the officer gave a firm, fast and categorical "No."
Then Danyliuk went on to inform Nolin of the consequences of proceeding with the allegation. Under law, Danyliuk said he would have no choice but to remove Nolin from the case because he would have to provide the allegation in a sworn statement.
Nolin could not, Danyliuk said, serve as both a witness and a lawyer in the trial.
"Skate with your head up, before I run you into the boards," Justice Danyliuk said.
Nolin apologized for the manner in which he raised the concern, and withdrew the allegation.
Meeting "The Cleaner"
The Crown then called an undercover officer who had pretended to work as a killer for the gang and purported to specialize in cleaning evidence from crime scenes. This officer appeared in ten of the 136 scripted interactions RCMP used in the Mr. Big sting on Greg.
The trial is now in its seventh week and the Crown had already called four undercover officers — the officer who designed the sting, the officer who served as Greg's supervisor in the fake gang, the officer who served as Greg's best friend in the gang and the officer who played "Mr Big," the head of the organization.
What this meant for Wednesday's testimony is court heard a slightly different perspective on specific scenarios that that have already by been presented by the Crown and scrutinized closely by the defence.
The cleaner's role, the officer testified, was to make Greg Fertuck comfortable talking about violence, especially violence against women.
"My character stressed that he had no problem hurting men and women," he testified.
"I created the impression that he was comfortable with violence."
The officer testified how Greg liked the character, telling the officer that he had also killed before and describing himself as "a bad rascal, a bad boy, a bad cowboy."
"I said to keep it to himself [that he had killed before]," he testified.
"Then we shook hands on the idea that we would someday kill together."
Court heard secretly-recorded audio of Greg and three undercover officers searching for Sheree's body after he made his admission to the fake crime boss.
At one point, the cleaner engaged Greg in a visualization exercise to help recall exactly where he'd hid her body.
"I know what it's like... with your adrenaline pumping... and a body in the trunk," the officer is heard saying.
"What would your instincts tell you to do?"
Fertuck never did lead the officers to Sheree's body.
The trial, which began Sept. 7, resumes Thursday with the Crown continuing its examination-in-chief of the officer.
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