WARNING: This article discusses graphic content including sexual assault and murder which may be upsetting or triggering to some readers.
A transgender woman in Kelowna who has been charged with murder alleges that she was driven to kill because she was raped.
The accused, Gabriella Sears was arrested under their legal name Dereck Sears. At the time of her arrest, she identified as a woman but publicly presented as both a man and woman, depending on the circumstance.
After the arrest, RCMP released a press release identifying Sears as a man.
She has been charged with second-degree murder and interfering with human remains.
On Oct. 3, Sears sat in the prisoner box in Kelowna court while dressed in a red prison jumpsuit to listen to the proceedings of the voir dire.
Over the past few weeks, Crown and defence counsel have submitted applications as part of a voir dire, which is being held ahead of a trial in order to decide which information can be able to be presented in the trial, which is scheduled to begin on Oct. 16.
Sears was arrested on June 17, 2021, after the body of Darren Middleton was found by police at a home on Sycamore Road in Kelowna’s Rutland neighbourhood.
Crown described the crime scene as “horrifying.”
“The deceased was beaten and mutilated,” said Crown counsel. “The penis was partially severed and the testicles were missing.”
Police have said that Sears and Middleton knew each other prior to the incident.
Sears was arrested approximately four hours after police found the body of Middleton and was taken to the police station.
While in custody but before speaking to a lawyer, Sears told police that she had killed Middleton and explained that the act was in retaliation to a sexual assault.
Her defence lawyer argues that this was an involuntary and “spontaneous submission” that was prompted by the violation of Sears’ rights by police.
Ahead of the trial, presiding judge Justice Ross must make a decision on what evidence will be able to be presented at the trial, specifically regarding two instances where Sears allegedly confessed to the murder.
“Sears is painting a picture in which she is really the victim of sinister events,” said Justice Ross to the Kelowna courtroom after hearing a confession from Sears at the police station.
Justice Ross will decide whether the “spontaneous admission” that Sears made to police, in addition to other allegedly incriminating information, should be presented as evidence during the trial.
Defence argued that Sears’ rights were not respected. They allege that the spontaneous admission was not voluntary and was made against her will. The defence told the court that the police committed a Charter of Rights violation and did not provide Sears with access to legal aid in a timely manner after being arrested and that the spontaneous utterance should not be considered as evidence.
Crown counsel disagrees with this submission and argues that any delays experienced by Sears in accessing legal aid were reasonable given the circumstances.
Defence also argues that another Charter violation was made by RCMP in relation to the extensive strip search and sensitive exams that took place at the police station. Defence said that the strip was traumatic and insensitive considering a sexual assault is alleged to have taken place. Crown concedes that the strip search was a breach of Sears’ rights, but that it played no role in the confession.