This story contains graphic depictions of alleged sexual violence. Reader discretion is advised.
The accused in a 2021 Kelowna killing claims she was sexually assaulted by the man she's alleged to have killed.
Submissions from a pretrial hearing in the Gabriella Sears murder case sheds light on a possible motive for the 2021 Kelowna killing. According to submissions made by Crown prosecutor David Grabavac in Kelowna court Wednesday, Sears claims she "had to kill" after she was sexually assaulted.
Sears was previously known as, and first identified by police upon her arrest, as Dereck Sears, but she identifies as a woman and goes by Gabriella or Gabby.
She faces charges of second-degree murder and interference with human remains for the death of Darren Middleton, following her arrest in June 2021 at a home on the 1200 block of Rutland's Sycamore Road. At the time, police said Sears and Middleton were known to each other, but more than two years later, few details have been released about the killing.
Wednesday, Crown prosecutor David Grabavac said Middleton's testicles had been removed when police found his body on June 17, 2021. Grabavac added that Sears has claimed since her arrest that she had been sexually assaulted and the killing occurred as a result.
In a recorded outgoing phone call to a family member from Okanagan Correctional Centre some time in June or July 2021, Sears spoke about the circumstances around Middleton's death.
During submissions Wednesday, while arguing the OCC phone calls should be ruled inadmissible at trial, defence counsel Jordan Watt read out parts of the transcripts from the calls that he said were the most relevant to the Crown's case.
“I'm pretty sure I got drugged, hit over the head, went home. The next day the guy came back, I had to protect myself and he didn't make it,” Sears said in one phone call, as read in court by Watt. “I've already told the cops exactly what happened.
“It's a fact you know, anybody in my situation could be here in any f***ing moment. You know, some douchebag could break into their f***ing house and they could have defended themselves and end up in here.”
Sears has remained behind bars since first being arrested in 2021, and the case has been winding its way through Kelowna court this past summer. While the main trial is scheduled to begin in October, a voir dire has been held over the past several months, where the Crown and defence have argued over the admissibility of several pieces of the Crown's evidence. A voir dire is run as a sort of separate trial, where admissibility issues are sorted out.
Up until now, these appearances have been covered under a sweeping publication ban, to ensure potential jurors are not exposed to any inadmissible evidence. But on Tuesday, Sears re-elected October's trial to be heard by a judge alone rather than a judge and jury, and the publication ban has now been lifted.
Evidence in dispute includes the OCC phone calls and statements made to police on June 17 and 18, 2021, after Sears' arrest.
One point of contention the defence has with Sears' statements to police revolves around nude photographs and anal and penile swabs police officers took from Sears upon her arrest.
While defence has yet to make submissions on the issue, Crown prosecutor Grabavac argued Wednesday that while this practice wouldn't be normal in most murder investigations, it was necessary because of Sears' sexual assault allegation.
“[A testifying officer] said that it might pertain to motive for the homicide, as well as the sexual assault allegation made by the accused,” Grabavac said. “Recall there was a sexual component to the homicide of Mr. Middleton; his genitals had been mutilated, his testicles were missing.”
It's not clear what exactly he was referring to, but Grabavac conceded the manner in which the officers collected the samples was not ideal. But he argued it would not have led to involuntary statements by Sears.
“That conduct by police was not oppressive nor did it make any subsequent statements police obtained involuntary,” he said.
“It was embarrassing and police could have done a much better job. It was, to be perfectly frank and not to be too disrespectful, it was somewhat bumbling ... but it wasn't oppressive.”
Grabavac also added that Sears had admitted to the killing before the contentious swabs and photos were collected.
“Prior to the swabs and the photographs and everything happening, she mentions that, and I'm paraphrasing: 'I got sexually assaulted and I had to kill somebody,' but that's before the conduct [of the officers],” Grabavac said.
Sears also underwent a sexual assault examination at Kelowna General Hospital. The results of the examination were not disclosed in court Wednesday. More details about the circumstances around Middleton's death are expected to come out at trial.
Submissions in the voir dire are expected to wrap up Friday, and the eight-week trial is scheduled to begin Oct. 10. Justice Carol Ross said she plans to have a decision on the admissibility issues ready before the trial begins.