British Columbia

'You've created this story': Mother of dead girls challenged at murder trial

The lawyer for an Oak Bay man accused of killing his daughters accused the girl's mother Tuesday of lying about fears of provoking her former partner into a conflict.

Andrew Berry's former partner claimed she didn't want to provoke him over fears his Hydro was cut

Sarah Cotton is pictured with her daughters Chloe and Aubrey, before their deaths in December 2017. Cotton's former common-law spouse, Andrew Berry, is accused of second-degree murder in the girls' deaths. (Ryan MacDonald Photography)

The lawyer for an Oak Bay man on trial for killing his daughters accused the girl's mother Tuesday of lying about fears of provoking her former partner into a conflict.

Sarah Cotton had told the B.C. Supreme Court jury she worried Andrew Berry's power had been cut after six-year-old Chloe Berry told her they used flashlights in his apartment — but Cotton said she didn't want to start an argument.

But at the end of a day of cross-examination, Berry's lawyer suggested Cotton had fabricated part of her testimony about the events of the day in question — December 21, 2017.

It's a crucial point in the story: the date was both Cotton's birthday and the evening she was to drop the girls off at Berry's so he could have Chloe and her four-year-old sister, Aubrey, for the four days before Christmas, the day they died.

Berry had offered to let the girls stay with Cotton for the night of her birthday, but she declined.

"You knew full well that Mr. Berry didn't have any Hydro in his apartment. You knew there weren't any lights there well before you dropped them off," said defence lawyer Kevin McCullough.

"I'm going to suggest that you've created this story about Chloe telling you this on the 21st because you wanted to offset Mr. Berry offering you to have the children on your birthday. Isn't that what you've done?"

Cotton denied the claim.

'That's what you've done'

Berry has pleaded not guilty to two counts of second-degree murder in the deaths of his daughters, who were found on Dec. 25, 2017, at his apartment with multiple stab wounds, lying in beds in separate bedrooms. 

According to the Crown, police found Berry naked in the bathtub with a black eye and stab wounds to his neck and throat.

Members of a B.C. Supreme Court jury listen to testimony at the second-degree murder trial of Andrew Berry. Berry's former common-law spouse, Sarah Cotton, is on the stand. (Jane Wolsak)

The Crown has said Berry quit his job in May 2017 and was struggling financially. His power was shut off and he was facing eviction by December 2017.

Cotton had previously testified that she suspected Berry's Hydro might have been cut after driving by his home on Dec. 21, seeing the lights off and hearing Chloe say that staying at his apartment was like camping.

She claimed she was concerned but didn't want to provoke Berry in front of the girls.

But McCullough suggested otherwise.

"Mr. Berry was being very nice on the 21st and you've created this story about provoking him, not wanting to provoke him," McCullough said.

"That's what you've done."

The Crown raised an objection moments after, but the details cannot be reported due to a publication ban.

'The biggest regret I'll ever have'

Cotton first took the stand on Monday morning and has been in cross-examination since Monday afternoon.

McCullough spent all day Tuesday taking her through reams of email and text messages the estranged couple exchanged in the months leading up to the tragedy.

Andrew Berry is on trial for second-degree murder in B.C. Supreme Court in Vancouver. (Felicity Don/Canadian Press)

Although Cotton remained composed for much of the day, her voice broke several times as she revisited events in the weeks before Christmas — including the decision to turn down Berry's offer to let her have the kids on her birthday.

"That is the biggest regret I'll ever have in my life," she said.

Cotton admitted she was upset following a custody battle that saw Berry given 40 per cent parenting time with the two girls in May 2017.

She described the relationship in the months that followed as strained, tense and conducted entirely through text, emails and phone calls — but not face-to-face conversations.

McCullough repeatedly suggested that the couple had — in fact — discussed parenting details face to face, and that Berry was both civil and reasonable in his responses.

But Cotton repeatedly disputed that interpretation.

"We didn't communicate, and that's why, I think, things got to where they got to," she said at one point. "Andrew would not communicate with me face to face."

'After they died ...'

In her previous day's testimony, Cotton recounted the moment she learned about the deaths of both children, hours after Berry was supposed to hand them over on Christmas Day.

She told the jury she "screamed like never before."

In contrast to that dramatic recounting, Tuesday's proceedings painted a portrait of the last months of the girls' lives through the detailed logistics of co-parenting: texts and emails concerning Sparks meetings [young Girl Guides], swim club dates, invitations to parties with friends, a case of pink-eye and the need to work on spelling the word "reindeer."

Cotton's voice cracked at one point as McCullough asked her whether the girls had attended a kids' yoga class that was the subject of one missive.

"They did not go to the kids yoga because it started in 2018," Cotton said between tears, "after they died."

Cotton's cross-examination will continue on Wednesday.

About the Author

Jason Proctor

@proctor_jason

Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and mental health issues in the justice system extensively.