Calgary man convicted in murder of friend seeks new trial

A Calgary man convicted last year in the nearly decade-old murder of his friend was back in court Tuesday to appeal his conviction.

In 2007, the body of Allan Berdahl Jr. was found in a roadside ditch east of Carstairs, Alta. He had been shot five times in the head. It took RCMP eight years to make an arrest in the case, but in 2015, the victim's friend Russell Tessier was charged with the crime.

Last year, Tessier was found guilty by a jury. And now, he's appealing that decision. 

Tessier's lawyer, Pavel Milczarek, argues that throughout his client's 2018 trial, the judge allowed evidence to be admitted for consideration by the jury that he shouldn't have. 

No charter rights, no cautions

Milczarek says an interview police conducted with Tessier on March 17, 2007, should not be admissible, in part because Tessier was never read his charter rights or told he could call a lawyer.

"Lack of caution in itself could seem to have lulled Tessier into a sense of continuing the conversation unaware of the legal jeopardy," Milczarek said. 

But Crown prosecutor Brian Graff told the court that at the time, Tessier wasn't considered a suspect, and police weren't obligated to tell him those things.

One Alberta Court of Appeal panellist, Justice Jolaine Antonio, questioned why the police officer interviewing Tessier asked him if he had killed Berdahl, if he wasn't considered a suspect. 

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"He asked a number of pointed questions culminating in the question of 'did you kill him,'" she said. "And the officer comments that if he was going to wander into a confession, he'd accept that.

"No charter, no cautioning … this causes me concern," she added.

But Graff argues that Tessier knew he wasn't obligated to speak to police. And, he said, even before asking Tessier that question, the officer prefaced it by saying he asks everyone that.

"Certainly this may be more probing than what might happen in a lot of circumstances," he said.

"But my submission is that, at the end of the day, it does not produce an unfairness, that this was a statement that was improper or involuntarily obtained."

Differing time stamps

In that same interview, Tessier tells the officer the last time he'd seen his friend was the night before his body was found around 8 p.m.

But surveillance video used as evidence in his trial shows the pair inside a convenience store, and Tessier making a purchase at 12:32 a.m. on March 16 — just eight hours before Berdahl's body was discovered with five gunshot wounds to the head.

Milczarek argued that the video should be inadmissible because the time stamp did not match Tessier's bank statement, which shows a transaction at the store six minutes earlier.

He said because the times don't match, it's not clear if the video really was from the day and time indicated, or some other time entirely.

The appeal judges reserved their decision on the matter for a later date.