Crown, defence argue over admissibility of key video interview in Cory Fenn triple murder trial

·5 min read
Cory Fenn is seen here seated in the prisoner’s box before Justice Howard Leibovich on Tuesday as a video of Fenn is played in court. Seated are defence lawyer Mary Cremer and Crown attorneys Mike Newell and Dave Slessor.   (Pam Davies/CBC - image credit)
Cory Fenn is seen here seated in the prisoner’s box before Justice Howard Leibovich on Tuesday as a video of Fenn is played in court. Seated are defence lawyer Mary Cremer and Crown attorneys Mike Newell and Dave Slessor. (Pam Davies/CBC - image credit)

The Crown and the defence in the triple murder trial of Cory Fenn spent much of Friday in an Oshawa courtroom arguing whether a three-hour video interview between the accused and Durham police should be admitted into evidence.

Fenn, charged with three counts of second-degree murder, admitted in the video to killing Krassimira Pejcinovski, 39, as well as her 15-year-old son Roy and 13-year-old daughter Venallia in 2018, the judge-only trial heard this week.

But he has pleaded not guilty to all three charges. In the video interview, he says he was in the midst of "cocaine psychosis" when the killings happened.

The interview, which a Durham Regional Police detective conducted with Fenn at a police station the day after the three bodies were found in an Ajax home, has been the subject of what's known as a voir dire — a hearing to decide whether a piece of evidence can be heard as part of a trial.

The defence wants the video thrown out because it says Fenn's statement was coerced. The Crown denies that and wants it admitted to the trial, which is being conducted by Superior Court Justice Howard Leibovich.

In the video, which was played during the voir dire Wednesday and Thursday, Fenn tells Det. Mark Pillman he had been on a five-day cocaine binge at the time of the homicides.

The three victims were found by police in Pejcinovski's home on Hilling Drive in Ajax on March 14, 2018. Autopsy results revealed two of the victims had been stabbed to death and one died by strangulation.

The Crown described the interview with Pillman as one of the "softest and gentlest interviews," court heard.

"There's nothing in that interview or in the time leading up to it that would suggest that there were any sort of oppressive conditions," Assistant Crown Attorney Dave Slessor said.

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Fenn is representing himself, though his former lawyer Mary Cremer has been appointed by the court to conduct cross-examinations on his behalf.

In the Crown's written statement to the judge, it argued that Fenn was in his right mind when he was questioned and that there was no coercion by police.

Slessor argued that no threats, promises, or inducements were made prior or during the time Fenn gave his statement.

Police found Fenn hiding in a shed in Oshawa and a brief but "violent struggle" ensued before he was arrested, court heard Friday.

Fenn had suffered cuts to his face as a result, and had to be taken to hospital.

He was taken to the Oshawa police station where he spoke with a lawyer by phone, had his clothing seized as evidence before he was taken to hospital, where he was assessed for the cuts to his face. Fenn's head was wrapped in white gauze and he was given morphine.

Between Fenn's arrest after being found in the shed and the interview, 14-and-a-half hours had gone by.

Slessor said despite Fenn being punched, kicked and tasered twice, the force police used was reasonable as officers believed he was trying to reach for one of their rifles and resisted arrest.

"There's no doubt that his arrest involved physical force," the prosecutor said. "But it was reasonable and muted in its degree."

The Crown argued that in the interview, Fenn actively chose what he would speak about and what he wouldn't, attempting to control the narrative.

From the time he was arrested, there was no evidence of impairment, Slessor said.

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Throughout the trial, police officers questioned by the Crown were asked if Fenn was intimidated, or threatened in any way by an officer, and each police witness said he wasn't.

Cremer argued Fenn had been sleep-deprived, and had lost blood due to the injuries he suffered during his arrest at the time he was questioned by Pillman, and asked the.judge to consider the impact of that in deciding whether to admit the interview into evidence.

She pointed to Fenn trying to lie on the floor in the video, which she said was a "striking move" showing his sleep deprivation.

Leibovich asked if Fenn would like to cross-examine any witnesses or provide a statement on the admissibility of his interview with Pillman, to which he declined and said he was told by Cremer that it would not be entered into trial.

Slessor said the Crown has proven beyond a reasonable doubt that Fenn had not been intoxicated or impaired when giving his statement.

DNA on butter knife points to potential weapon

Also on Friday, court heard from Diana Polley, a forensic scientist with the Ontario Centre of Forensic Sciences, who took the judge through the complicated process of how DNA evidence was recovered and analyzed in the case.

She told court that tests on blood stains on a butter knife found in the basement apartment indicated a very high probability that it contained the DNA of Venallia Pejcinovski and Roy Pejcinovski.

While Polley said it isn't possible for her to say with total certainty that the DNA from blood tested on several items in the home matches Fenn's, the chance that it does is high.

"Fenn cannot be excluded as a source of that DNA profile," Polley said.

Pam Davies/CBC
Pam Davies/CBC

A pellet gun was also found with blood stains, in the basement kitchen that matched Roy's DNA with almost absolute certainty.

The trial is set to resume on Monday, when Leibovich will make his decision on the admissibility of the Fenn's video statement.

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