Judge rules Jason McKay had clear operating mind while saying 'I killed my wife'

A Regina man has ruled that Jason McKay's statements, such as 'I killed her,' and 'I know I'm charged with murder' can be admitted as evidence to the murder trial at Regina’s Court of Queen’s Bench.

Jason McKay pleaded not guilty to 2nd-degree murder

Jenny Leigh McKay, 33, died in September 2017. In her obituary, her family said 'we remember her earthy voice, great big laugh, her beautiful smile, her huge heart, zest for life and her melancholy spirit.' (Submitted by Doug Campbell)

Jason McKay answered his door covered in blood and proceeded to tell police officers without emotion that he had killed his wife, according to testimony heard last week at Regina's Court of Queen's Bench. 

One officer testified that McKay said verbatim, "She's dead. I ​f--king killed her."

Testimony from the two officers who went to the McKay home in the early morning hours of Sept.6, 2017, was given as part of a voir dire. Video recordings of McKay in the police car shortly after his arrest and evidence about what happened at the police station were also subject to the trial within a trial. 

At issue was whether Jason had spoken voluntarily to police with a "clear operating mind." Justice Michael Tochor found that he did in all cases, presenting his decision Wednesday at the Court of Queen's Bench in Regina. 

The judge noted Jason was informed of his right to a lawyer and to silence after his arrest, yet made unprompted statements like "I already know I'm charged for murder because she's dead," "I've got nothing to lose," and "she's cold as ice." 

These statements were all caught on camera. 

Tochor was satisfied that Jason understood these words could be used to his detriment. Even at the police station, Jason continued to say things like "I know my wife is dead, I watched her for two hours," and "I killed my wife." 

"He had the cognitive ability to understand what he was saying," Tochor ruled. 

Defence lawyer Thomas Hynes suggested that Jason made the statements while intoxicated. Jenny's cousin had spoken with him on the phone earlier in the evening and suspected he was intoxicated and Jason's mom said he wasn't making sense on the phone.

Still, Tochor found the Crown had proven beyond a reasonable doubt that Jason voluntarily made statements in the presence of police officers with an operating mind. Furthermore, he found Jason spoke in the absence of threats, promises, an atmosphere of oppression or police trickery.  

Jenny told 911 'he's going to kill me' 

Tochor was also tasked with ruling on a second voir dire that involved evidence meant to illustrate the state of their relationship and Jenny's state of mind. He ruled that most of the evidence would be considered admissible to the trial. 

Only days before her death, Jenny had called 911 after Jason returned to their home following a dispute, saying "he said he's going to kill me." During the call, she described Jason as violent, unpredictable and threatening. 

Another police officer testified Jenny told him she didn't feel safe and wanted an exit plan.  Her coworker testified that Jenny said "he beats me in ways no one can see," and another testified that Jenny referred to being hit often. 

A text message from Jenny to Jason read: "I'm afraid of you." 

Hynes had argued that Jenny was unreliable because of her alleged problem with alcohol. He also suggested Jenny had a motive to fabricate statements to coworkers, as a possible excuse for work performance. Tochor was unsatisfied with both arguments, finding the evidence to be corroborated and consistent. 

Tochor ruled that some testimony about Jason's behaviour toward Jenny was also admissible. This included Jason's daughter's account of Jason allegedly striking Jenny, as well as information from Jenny's coworker who said she saw Jason attempt to strike Jenny in the stomach. 

The judge reminded the lawyers that while much of the voir dire evidence is admissible, relevance exists on a spectrum and he couldn't yet say how relevant these bits of evidence are or whether they will be relied upon in the final decision. 

Crown prosecutor Adam Breker concluded his case after the judge ruled on the voir dires. The defence will begin its case on Thursday morning. 

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Kendall Latimer


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