Lawyers argue whether Jenny McKay's diary should be evidence at husband's murder trial

About two weeks before Jenny McKay was killed, she wrote, "he said he was going to make my life a living hell and bury me the way I buried him."  

Crown prosecutor Adam Breker said Jenny wrote that in her diary — allegedly detailing a threat made by her husband Jason — on Aug. 23, 2017.

Jason, 47, has pleaded not guilty to stabbing Jenny to death about two weeks later. He's on trial by judge alone at Regina's Court of Queen's Bench. 

Earlier in the trial, a forensic pathologist testified that Jenny died from stab and cut wounds to the neck which caused excessive blood loss. He said she was stabbed numerous times both before and after her she died. 

Jenny's journal is one piece of evidence that has been presented as part of a voir dire, a trial within a trial. Breker and defence lawyer Thomas Hynes made submissions Monday, advocating for what evidence should — or should not — be applicable during the trial proper.

Breker said Jenny's journal entry gave insight into the McKay couples' relationship. He also highlighted testimony from McKay's daughters, colleagues and police officers, along with a 911 call made by Jenny on Aug. 27, 2019, and an in-police-car recording of Jason.

The evidence, he said, demonstrated that Jenny "had a fear of the accused." He noted that evidence showed Jenny was trying to leave her situation, but Jason "begged her" to come home.

"She was telling him that she would not do so and needed to be away," Breker said. 

He spoke to evidence that suggested past abuse, including two witnesses who testified that Jason had hit Jenny. 

Breker said Jenny's state of mind and the nature of the relationship between an accused and the deceased are commonly presented as evidence in domestic homicides. He suggested the fact that this was a judge-alone trial favoured the inclusion of said evidence.

Defence questions Jenny's reliability 

Defence lawyer Thomas Hynes raised questions about Jenny's diary and text messages, calling her an "unreliable narrator" who could not be cross-examined.

He said Jenny could have misperceived, exaggerated, or "misremembered" situations or encounters with Jason because of alcohol consumption.

Hynes pointed to an alleged alcohol addiction as the driving force behind her behaviour. He questioned if Jenny wanted to leave the McKay home because she was afraid, or if it was because the two enabled each other to drink. Hynes questioned whether Jenny was forming an escape plan to leave an abusive relationship or if she was trying to "sober up." 

"Was Jason McKay abusive as indicated, or was it just drunk misinterpretation?" Hynes asked.

Breker argued against Hynes' suggestion that what Jenny said or wrote were "misperceptions." He said the Crown had presented direct evidence that corroborated Jenny's accounts.

Justice Michael Tochor reserved his decision on what will be admissible to the trial for Wednesday morning. After that, Hynes is expected to let the court know if the defence will call any evidence of its own.