The Nunavut Court of Appeal has ruled that Chris Bishop, 27, who in June 2010 was convicted on three counts of second degree murder and two counts of attempted murder, must get a new trial.
In the ruling, issued Jan. 28, two of three judges sitting on the Nunavut appeal court panel found Justice John Vertes made errors in fact and law that prevented Bishop from making a full defence at his 2010 jury trial in Iqaluit.
On Jan. 6, 2007, Bishop shot at a gang of five home invaders who broke down his door and invaded his home in Cambridge Bay. Bishop killed three of them and wounded two others.
One of his attackers carried a broken golf club, while another carried a samurai sword.
But at his trial, a six-man, six-woman jury in Iqaluit found Bishop guilty on three counts of second degree murder and two counts of attempted murder.
In August 2010, Vertes sentenced Bishop to a mandatory term of life imprisonment, with no parole eligibility for 16 years.
Justice Jean Côté, who wrote the majority appeal judgment, said Vertes allowed the jury to hear inadmissible evidence from a woman named Brenda Ohokak, who told the court that about a week before the incident she heard Bishop bragging about shooting people in Yellowknife.
And Côté said Vertes also erred by barring evidence that could have informed the jury about the home invaders’ past history of violence.
That evidence, based on RCMP occurrence reports and other sources, would have let the jury hear that “three of the invaders who later died had a history of burglary, violent crimes and even home invasions,” Côté said.
The combined effect of the two errors, the appeal court said, prevented Bishop from making a full case based on self-defence.
“The trial judge withheld from 12 lay jurors the dangerous criminal character of the leading home invaders, and all the detailed police and court records of that, while letting the Crown portray the accused to the jurors as a habitual killer because of a casual private conversation, with no police or court records,” Côté said.
He said these evidentiary decisions by the trial judge are “almost unprecedented.”
“A more lopsided selection of evidence is hard to imagine,” Côté said.
Côté also found Vertes made similar errors in his charge to the jury.
One of those errors was failing to explain the defence of provocation, which could have resulted in at least one of the murder convictions being reduced to manslaughter.
He also found the Crown’s case “was not overwhelming,” especially with respect to the first two invaders who Bishop shot and killed after they burst into his locked bedroom.
“The first two invaders were clearly shot in the very act of entering into the bedroom through the final door which they had broken down, armed with dangerous weapons, intending to injure the homeowner, as part of a larger group. The case for self-defence there is very strong,” Côté said.
“It is difficult to see a proper conviction of the homeowner of murder there; it is the opposite of inevitable.”
And he suggested that Ohokak’s evidence may have improperly led the jury to believe that Bishop is a “habitual and willing killer.”
Côté pointed out that after asking for more instruction about manslaughter, the jury asked for a transcript of the woman’s evidence.
“The trial judge gave them a transcript of it, as they demanded. It was the last thing they got. They convicted on every count soon after getting it,” he said.
But at the same time, in his charge to the jury, Vertes “did not mention the invaders’ animosity and violent inclination,” Côté said.
Justice Patricia Rowbotham agreed with Côté that Bishop’s five convictions should be set aside and that a new trial should be ordered.
Justice Brian O’Ferrall disagreed, saying in a dissenting judgment that Vertes’ decisions on evidence are correct.
He said the real issue before the jury was whether Bishop used more force than was needed to defend himself.
And Vertes’ decisions on evidence, whether correct or incorrect, could have had no impact on the issue, O’Ferrall said.
Kevin Komaksiut, 21, and Keith Atatahak, 28, of Cambridge Bay, as well as Dean Costa, 29, of Edmonton, died in the Jan. 6, 2007 shooting incident.
Logan Pigalak and Antoinette Bernhardt of Cambridge Bay suffered bullet wounds.
Chris Bishop enters the Iqaluit courthouse Aug. 26, 2010 at the start of a sentencing hearing. Bishop was convicted in June 2010 on three counts of second-degree murder and two counts of attempted murder in connection with a January, 2007 shooting in Cambridge Bay. The Nunavut Court of Appeal has set those convictions aside and ordered a new trial. (FILE PHOTO)