lawyers argue whitehawk appeals over case of bitternose killing
whitehawk's lawyer argued he should have a new trial or be acquitted, while the crown argued the court should boost his conviction to first-degree murder.
4 minute read
dillon whitehawk is appealing his conviction for second-degree murder relating to the death of keesha bitternose. he's shown being escorted by deputy sheriffs to the regina court of king's bench on june 10, 2022 in regina.
kayle neis
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regina leader-post
in october, the number of murder convictions on dillon ricky whitehawk’s record dropped from three to one. a decision by saskatchewan’s court of appeal (skca) set aside two first-degree murder convictions and ordered a new trial regarding the late-2019 deaths of jordan gaiton denton and keenan scott toto.
on wednesday, his lawyer thomas hynes appeared again before saskatchewan’s highest court and addressed whitehawk’s second-degree murder conviction relating to the brutal january 2020 killing of keesha cree bitternose.
hynes argued that too should be set aside, with a new trial ordered. depending on how the court views his arguments, the lawyer suggested an outright acquittal might be a possible outcome for his client, who watched and listened remotely from prison.
crown lawyer grace hession-david offered an alternative view. she said her office plans to appeal the skca decision that set aside the denton and toto convictions with the supreme court of canada. further, she argued that whitehawk’s conviction for the bitternose killing should be boosted to first-degree murder.
keesha cree bitternose, regina’s first victim of homicide of 2020. (photo courtesy of melody bitternose)
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in early january of 2020, bitternose was found dead in a home on the 1500 block of cameron street in regina. her body had so many wounds inflicted upon it that a forensic pathologist didn’t even bother trying to count them as she peformed an autopsy.
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at trial, the court heard evidence that described the home as one frequented by members of the indian mafia street gang, which included bitternose, whitehawk and a number of other witnesses. according to the evidence, the killing occurred against the backdrop of gang infighting between bitternose and another female gang member.
details of the case were raised again wednesday, this time before three judges — justice jill drennan, justice georgina jackson and the recently appointed justice keith kilback.
hynes’ arguments suggested that errors were made in the decision by the trial judge, court of king’s bench justice janet mcmurtry.
central to the majority of his submissions was the way the trial judge treated the testimony of gang members.
“this was effectively a case that turned on the credibility of a few extremely unsavoury witnesses,” he said.
a judge has to use special caution when assessing the evidence of unsavoury witnesses — also known as “vetrovec” witnesses.
at trial, it was the defence theory that the crown’s key witness — the only witness who testified to seeing the murder — was in fact the perpetrator.
hynes argued the judge’s decision did not give sufficient explanation regarding what evidence from gang witnesses she believed, why she believed it, and how it fit into her finding that whitehawk was guilty.
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hession-david refuted hynes’ argument, saying he’d not shown the judge had made the kind of “palpable and overriding error” required for the skca to intervene.
“the trial judge’s reasons were sufficient for this trial and they met the requirements of the law,” she said.
the crown lawyer cited case law, arguing that the manner in which the judge dealt with evidence from the unsavoury witnesses was acceptable.
hynes also argued the convictions were unreasonable. this was rooted largely in his position that the crown’s key witness did not tell the truth under oath and there was no basis to find her credible “in any respect.” he said related points could be made with respect to other gang witnesses.
he suggested that, based on the trial judge’s own view of the evidence, his client was only “probably guilty.”
“probably guilty is not guilty,” he reminded the skca panel.
this mugshot of dillon whitehawk was entered on the court record. (court of king’s bench)
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hession-david said the convictions were based on a careful and cautious view of the evidence. the trial judge’s findings were owed deference, she argued.
hynes submitted that the trial judge was unclear about how she’d found whitehawk to have participated in the killing.
“what exactly was whitehawk doing?” hynes asked.
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part of mcmurtry’s decision could be read to say a lack of evidence that whitehawk tried to stop the assault became evidence of participation, the defence lawyer argued.
according to hession-david, mcmurtry meant that whitehawk did nothing to stop the assault because he was the “driving force behind it.”
hynes argued the case was one in which the judge should’ve considered other plausible theories, like his client being an accessory after the fact to the murder instead of the killer.
hession-david disagreed.
“in his closing submissions to the trial judge, the appellant himself never argued a plausible alternative theory because there simply was no evidentiary foundation for such an argument,” she said.
mcmurtry was not convinced beyond a reasonable doubt that the killing was done “in association with” a criminal organization. if she had, whitehawk would’ve been found guilty of first-degree murder.
hession-david presented the crown’s own appeal, arguing that the killing was in fact “in association” with the indian mafia. the lawyer cited case law which she felt supported this position and argued that evidence of a personal dispute between bitternose and another member of the gang did not negate the association.
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she further argued that just because evidence was given that the killing was not in keeping with the policies of the gang, it does not mean it was entirely personal given the setting and circumstances.
hynes said the trial judge did not misapply the law in this sense. he argued the law states it’s for a trial judge to decide based on the evidence whether the connection between the offence and the criminal organization is sufficient to find it was committed “in association.”
the skca reserved its decision, and it is unclear when it will be rendered.
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