The family of a woman who died on Okanagan Lake six years ago is holding out hope that a private prosecution will result in a murder conviction for the woman's husband, after the Crown previously stayed his criminal charge.
On June 26, 2016, Arlene and Bert Westervelt were canoeing on Okanagan Lake near Lake Country when the canoe overturned. Arlene died in the lake, and while police initially determined her death was a tragic accident, the BC Prosecution Service laid a second-degree murder charge against Bert close to three years later. But then, in July 2020, the BCPS stayed the charge, only saying they had “new information.”
Friday morning, former Alberta RCMP officer Don Matheson was in Kelowna court, working to convince a judge to approve a second-degree murder charge against Bert Westervelt, in addition to a handful of other private prosecution charges against several others involved in the case.
While criminal charges are generally laid by the BCPS in B.C., and by police in some other provinces, private citizens can attempt to file criminal charges against someone if they believe a criminal offence has occurred.
Private criminal prosecutions in B.C. are extraordinarily rare, making the family's attempt somewhat of a Hail Mary.
Matheson said he was contacted by a family member of Arlene's about a year ago, and decided to proceed with his private prosecution in the matter when the saw the BCPS would not prosecute Bert. Matheson is not a lawyer, but he's long been critical of the RCMP and Canada's justice system. He runs a website called Wake Up Canada!
“Being a former mounted policeman, when I saw what was happening, how could I just say, 'Keep me out of it, it doesn't involve me' ... silence is consent for things that are wrong,” Matheson said.
On Friday, a large group of Arlene's friends and family from across Canada packed the Kelowna courthouse as Matheson spoke to Judge Clarke Burnett about his private prosecution. While court proceedings in Canada are generally open to the public, Judge Burnett ordered the hearing be closed to the public.
Afterwards, Matheson said he had thought his witnesses in the case would be able to testify in court Friday, but Judge Burnett said the case had not reached that step yet.
“My interpretation of that civilian information, is that if I have witnesses that can back up my informations, they have to be heard,” Mathenson said. “And Judge Burnett said 'Not today, this was a process hearing for you to give me documents of what these witnesses will say and how the evidence is.'”
“[Judge Burnett] wants a synopsis and he wants what every witness will say ... and I said, 'Well why can't you hear it now? These witnesses are here.'”
But the “information” in the case, a term for the formal criminal charge, has not yet been formally filed, as it requires approval from Judge Burnett. The matter is expected to be back before Judge Burnett in mid-July.
While a private prosecution of a murder charge is rare, and the matter has just begun, Matheson said he is 100 per cent confident Bert Westervelt will be put on trial.
When asked if he thought getting to trial through a private prosecution was against the odds, he said “Not when's the truth's there.”
“They're getting ready to set up time for now what they're saying they have to hear, and if the evidence is sufficient, they're moving it into a trial procedure,” Matheson told the crowd of Arlene's family and friends. In response, the gathered crowd cheered and clapped, as Matheson pumped his fist.
Matheson alleged the case has involved a cover-up by the RCMP and the BC Coroner's Office.
Arlene's sister Debbie Hennig was one of the dozens of people at the Kelowna courthouse Friday, travelling from Ontario for the fourth time since her sister's death.
“Everyone in Canada should be aware of how the judicial system works in the province of B.C., and I'm just absolutely disgusted and shocked,” she said.
Last April, B.C.'s Chief Coroner Lisa LaPointe directed the reopening of an investigation into Arlene's death, but Hennig says she doesn't believe the internal review will produce any satisfying results.
"We don't need a coroner, we've already had a coroner, we need a forensic pathologist ... To me, her offer is absolutely meaningless, it's an insult to my intelligence, it's a slap in my face,” Hennig said. “It's to placate me, to make me think this is going to be OK, it's not OK.”
Arlene's family has previously filed a civil lawsuit against former RCMP inspector Brian Gateley, who they claim interfered with the investigation into Bert, due to his relationship with him. Arlene’s mother Jean Hennig, has also filed a suit against Bert.
Bert Westervelt has always maintained his full innocence and has said his wife's death was a tragic accident.