Crown lawyer Jayme Williams wants the court to rule that two taped police interviews with Meredith Borowiec, 31, may be admitted as evidence.
"Both of the statements taken by the Calgary Police Service were in fact voluntary," Williams argued Thursday in her submission to Queen's Bench Justice Peter McIntyre, who is hearing the case without a jury.
"The fact they are video recordings allows the court to look at the demeanour of both the police and the accused," she said.
"There's nothing to suggest the accused was mentally unable to answer questions. She is coherent throughout," Williams added. "It is not a result of police threats, promises or trickery. It is more of an interview than an interrogation."
Borowiec is charged with second-degree murder in the deaths of two newborns in 2008 and 2009. She was charged just over a year after a third child was found alive in a Dumpster in October 2010, which prompted a lengthy police investigation.
She faces a second trial this fall on an attempted murder charge related to the surviving child.
Borowiec was first interviewed by police after the baby was found in the trash bin. In that video, played in court last week, Borowiec says she had her first child in 2008 and didn’t even look to see whether it was a boy or a girl before she wrapped the infant in a towel and put it in a garbage bag.
She admits to the same scenario in 2009 when she again gave birth into a toilet in her northwest Calgary apartment, wrapped the child in a towel and dropped it into the bathroom garbage before walking out to a large bin and disposing of it.
In a second video interview with police after her arrest in November 2011, Borowiec says she heard a noise “like a kitten” after the birth of the first child and, the following year, was aware the second child was alive as well.
“It was a tiny cry,” a tearful Borowiec says in the video as she describes the noise coming from the toilet.
The defence, in challenging the admissibility of the evidence, has argued that Borowiec wasn't warned she was a murder suspect when she was initially interviewed on the attempted murder charge. Lawyer Michael Bates said Det. Karla Malsam-Dudar had "tunnel vision" when she began the interview.
"(During cross-examination) Det. Malsam-Dudar expressed a desire to see justice for her victims," said Bates.
"She should have complete indifference to the outcome. She's supposed to be an advocate."
Bates said the detective refused to accept on 30 different occasions that his client didn't remember certain events.
"The problem is Det. Malsam-Dudar, very clearly, very methodically and repeatedly, continues to pursue the issue of whether Borowiec heard the baby cry or saw him move. Det. Malsam-Dudar, in the face of numerous and repeated denials, simply doesn't accept that."
Williams said police had no proof at the time of the first interview that the murders had taken place and only had suspicions.
"Mere suspicion does not put police in a position where they have to caution the accused," said Williams.
"It may sound overly simplistic, but if there is no human being, there can be no murder."
Williams also defended the method of interviewing used by police. She said Borowiec wasn't forced to respond to questioning and chose when she wanted to respond.
"The accused continued to be responsive," she said.
"She is choosing when she will and when she will not speak, and she is choosing the subject matter she will speak about."
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