kangaroojustice.org€¦ · web viewupon commencing at 10:07 a.m. accused present. denis marcel...

MONDAY, NOVEMBER 9th, 1998--- Upon commencing at 10:07 a.m.

--- Accused present

DENIS MARCEL GAUDREAULT, previously sworn

THE REGISTRAR: Counsel satisfied that all members

of the jury are present? MR. COOPER: Content. MR. McKECHNIE: Content. MS. MULLIGAN: Yes. Thank you. MR. COOPER: Thank you, Your Honour. We didn't

finish the English conversation at tab 10 -- tab 7 of the materials. In order to get the context, Your Honour, it's not very long and it's all in English, so I'm going to start at the beginning and then I'll stop where we left but I don't anticipate any interruptions from any-body, there won't be any questions or answers.

THE COURT: All right.--- Audiotape played (French)

MR. COOPER: It appears, Your Honour, that I made a

slight error but let me correct myself. I thought I

was going to right back to zero, I'm not, but I do

have a reference point here. It's been brought to my attention that the Inter-

preter hasn't been sworn in for this hearing, Your

Honour, so perhaps we could attend to that as well.

THE COURT: We'll do that while you're performing other duties.

D. GAUDREAULT, in-chf

(Cooper)

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(Monique Carrière, Official Interpreter, sworn, was made avail-able for the witness)

MR. COOPER: Thank you, Your Honour. Once again I'm going to attempt to start the conversation at the English part, which is at tab 7, or maybe a little bit left over from the previous conversation but it shouldn't be very much.

--- Audiotape playedTelephone Operator: This is a call from Denis, will you accept the charge?

Sylvie: Yes I will.

Denis: Okay. Shoot.

Sylvie: Okay. Attends une minute, je vais te les passer. Attends une minute, ils vont embarquer sur le téléphone, okay?

Denis: Oui.

Heather? Hi. Denis?

Denis: Yeah, hi. How can I help you people?

Heather: Yeah, I think you can.

Denis: Okay.

Heather: On the other line is Rick Riddell is also here, right?

Denis: Okay.

Heather: So listen can we meet with you and discuss ...

Denis: Well, see, to meet with me right now is it's kind of hard for me to believe because if I even go back to the city I've fucking had it. That's why


(Cooper)

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I'm all the way down here. I got to keep moving all the time.


(Cooper)

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Heather: M'hmm-hmm.

Rick: Where are you, Denis?

Denis: Right now I'm in Vancouver but I don't want nobody to know this that's why I'm here.

Rick: Well why don't you leave the city and go out into one of the little villages or something.

Denis: Yeah, but, see, I don't want to be picked up and arrested and brought there as a witness. I don't want that shit.

Heather: No.

Rick: Well we're not going to arrest you for nothing.

Denis: Well, you said B.C. wants me for something.

Rick: Yeah, but we've got no authority in B.C.

Denis: Okay. Well, what does B.C. want me for anyhow that I've .....

Rick: Break and enter.

Denis: That's it?

Rick: Yeah.

Denis: That's the only thing on your computer.

Rick: In B.C., yeah.

Denis: Fuck, I never did anything.

Rick: Well, it's a case, it's a case from June of '89.


(Cooper)

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Denis: Oh no, the wrong guy. Okay, no problem. Where would you like to meet me?

Rick: Wherever you want.


(Cooper)

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Denis: Okay, you can meet me, why don't we make it Tuesday. Can you come over here?

Rick: We're going to fly out. It won't be me, it'll it's gonna be the Inspector and Heather.

Denis: You want information to lead to something else, right?

Rick: That's right.

Denis: Okay. That's the Cumberland affair.

Rick: That's right.

Denis: Okay. Well I could talk to youse whenever youse come down I guess.

Heather: Okay. Well how are we going to get in touch with you then?

Denis: Well it's easy, just come down to Victoria. Just tell me when you want to come down, I'll take the ferry across from Vancouver to Victoria and I'll meet you on the island. It's only 12 bucks.

Heather: Okay.

Denis: But I won't meet you on the mainland that's .....

Heather: Okay.

Rick: Well, give us a phone number when we get to Vancouver where we can phone ya.

Denis: There is no phone numbers.

Rick: No?

Denis: I can't give no phone numbers. I have none.


(Cooper)

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Heather: Is there a pay is there a pay phone or anything that we can call you at a certain time


(Cooper)

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on Monday and let you know when we're going to be there and ...?

Denis: I'm just looking for the phone here. Hey, nobody is gonna come and arrest me, right? Rick: No.

Heather: No.

Denis: Okay. 389-

Heather: Uh huh.

Denis: 9811, that's a pay phone right now.

Heather: Okay.

Denis: And the other one is 389-9738.

Heather: Okay. Those are both pay phones?

Denis: They're both pay phones side by side, so if one is busy call the other one.

Rick: Okay. Well ...

Denis: Okay, we'll make it 10:00 o'clock Tuesday morning.

Rick: And phone you at that number?

Denis: Yeah. Or if you want you could meet me there's place called in Victoria I could meet you there at 10:00 o'clock in the morning, it's a nice open area it's called the Oceanside Gift Shop.

Heather: Oceanside Gift Shop.

Denis: Gift Shop.

Rick: That sounds better.


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Heather: Okay. D. GAUDREAULT, in-chf

(Cooper)

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Denis: Okay. That's right about, like that's like in the harbour, you see the sea, undersea here.

Heather: Okay.

Denis: And there's that's where they have the ferry for the States.

Heather: Okay.

Denis: And they have also the hydroplanes on one side.

Heather: Okay. All right, so we'll meet there on Tuesday at 10:00 o'clock in the morning.

Denis: But listen to me, anybody knows that youse are coming down to see me they'll try to beat youse to it.

Rick: No, there's nobody knows.

Heather: But but ...

Denis: Well I'm just telling you that and I ain't joking around when I'm telling you that.

Heather: No, we're being ...

Denis: Like these people youse want to know about they're not no fucking candy asses.

Rick: No, no, we know that.

Denis: 'Cause the only reason why I did what I did is because they were gonna make a sample out of me like the Cumberland site.

Rick: That's right. We believe that.

Denis: That's exactly the way it was told to me at my house. They said if I'd had that much time and


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if I didn't and it didn't it came from the fucking straight up, from the big guy, they call him the millionaire.


(Cooper)

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Rick: Is his name Michel?

Denis: Yeah.

Rick: Yeah.

Denis: He's got small black glasses.

Heather: Yeah.

Denis: He drives a 4x4, he's got some Porsches. Rick: That's right.

Heather: Yeah.

Denis: His wife just left him not too long ago. Rick: Michel Vanasse.

Denis: That's right.

Rick: Yeah.

Denis: That's exactly who we're talking about.

Rick: Okay.

Denis: And like I said I ain't fucking joking, these fucking people are fucking even plugged in with the RCMP when they want some information, I've seen it done before.

Rick: Well .....

Denis: And I don't want to fucking, I don't even want to jeopardize anything I got going now.

Rick: All right.

Denis: Okay, so I'll meet youse here Tuesday morning at 10:00 o'clock I'll be here.

Heather: Okay.


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Rick: That's at that gift shop.


(Cooper)

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Denis: Yeah, Oceanside Gift Shop.

Heather: Okay.

Rick: Victoria, British Columbia.

Denis: Yeah.

Rick: Okay.

Denis: Victoria, British Columbia.

Heather: Okay. That sounds good.

Rick: Do you know a guy by ...

Denis: You come down, I'm not gonna put you on, you just ask me what you want to know, I'll give you some names, some addresses and that and you'll be able to take it from there.

Heather: Okay. Well that sounds fair.

Denis: Okay?

Rick: Do you know about that murder?

Denis: Yes I do. I knew it just before it even hap-pened.

Rick: You knew who was going to do it?

Denis: Yeah.

Rick: Okay.

Denis: Because they told me that I should read the paper tomorrow if I don't come up with the money, what's gonna happen tonight is gonna happen to me within a week. The next day he came over and chucked the paper in my face. He said that's what happens, and that came from Michel, he said from


(Cooper)

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now on he said in a week if I don't have my money you're gonna get exactly what they got but with you we'll fucking doing it different.


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Rick: Okay. Now, do you know who was there doing this?

Denis: Yes I do.

Rick: Okay.

Denis: I even know what they did with the little toy afterwards too.

EXAMINATION-IN-CHIEF (continued) BY MR. COOPER: Q. Okay, Mr. Gaudreault, on Friday we got just a little bit further than this and as you may recall from Friday Officer Riddell is about to tell you about this Harkness fellow and I'll resume the tape in just a moment, but what I'd like to ask you now, sir, is to listen to see if you mentioned anything more about the case from this point onward during the course of this tape, I'll ask you that question at the end of the tape, okay? A. Yeah.--- Audiotape playing

Rick: Okay. There's a guy who left Ottawa ...

Denis: Yeah.

Rick: ... on Sunday.

Denis: Yeah.

Rick: And he was checked at the Vancouver airport.

Denis: What's his name?

Rick: Harkness.

Denis: Harkness?


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Rick: Yeah.

Denis: Okay.


(Cooper)

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Rick: Do you know him?

Denis: No.

Rick: Well he's associated to Stewart.

Denis: Yeah?

Rick: Okay?

Denis: Okay.

Rick: So it's too bad you don't know him because that's who you could look for if you're, you know, that's who went out there.

Denis: And is he really out there?

Rick: He went out with $ 20,000. and a change of clothes. He was seen talking to two guys in the airport cafeteria that looked like biker types.

Denis: Yeah.

Rick: Yeah. Now did he pay them each 10 grand or did he, you know?

Denis: Yeah he did.

Rick: We don't know, you know?

Denis: Because he knew I knew some information that's why now he's pushing it harder.

Rick: Okay. So ...

Denis: He's got me in a corner.MR. COOPER:

Q. I'm stopping it there, Mr. Gaudreault, this is roughly where we stopped the last time, I can't tell by the


(Cooper)

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counter precisely where it was but ..... What did you mean, sir, "he's got me in a corner"? A. Pardon?


(Cooper)

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Q. You've just finished saying "because I knew some information that's why he's pushing it harder". Riddell says "Okay. So ..." and then you said "He's got me in a corner". Who are you talking about first of all? A. "He's got me in a corner"? Q. Yes. A. Rob Stewart. Q. And what do you mean by "in a corner"? A. Well he's looking for me, so now he's starting to send people looking for me. Q. I'll continue, sir.--- Audiotape playing

Rick: So you'll be there Tuesday morning eh?

Denis: There's no way I could get to see the pictures of these two, eh?

Rick: We're going to try to get them.

Denis: Because I need to fucking see it soon because people are checking in exactly where I'm checking in.

Rick: Well why don't you just hold up for a few days and meet those guys there Tuesday morning. Denis: Yeah.

Rick: We're gonna, we're gonna try to help ya.

Denis: Okay.

Rick: Okay?

Denis: Just as long as you just follow these guys there'll be no problem.

Rick: And we can promise you we're not going to arrest you.


(Cooper)

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Denis: No?


(Cooper)

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Rick: Yeah.

Denis: Well are you gonna keep a close tab on those two, though, eh?

Rick: Yeah, well we're trying to get their pictures now.

Denis: Yeah, well do you know exactly where they are now?

Rick: No.

Denis: Is somebody watching them?

Rick: Well they were under surveillance on Sunday, so .....

Denis: Well I expect you make damn sure that they're still under surveillance right now.

MR. COOPER: Q. Mr. Gaudreault, just a few sentences ago you've asked "Well are you gonna keep a close tab on those two, eh?", who are you referring to as "those two"? A. I'm referring to the guy that John Harkness was seen talking to at the airport. Q. Continue.--- Audiotape playing

Rick: Okay. Well I mean ...

Denis: 'Cause if they get me, fuck.

Rick: I don't think they're gonna get ya. I don't think they have any idea where they are.

Denis: Oh they will, with 20 grand they will.

Rick: Anyway ...


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Denis: So ...

Rick: ... you know how to look after yourself.


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Denis: Oh I do. I'll see youse Tuesday.

Rick: Okay.

Denis: Thanks a lot.

Rick: Oh, Heather, anything you want to ask him?

Heather: No. Sylvie wants to talk to him before he goes.

Rick: Okay.

Denis: Can you describe me those two people or ...

Rick: Well Heather might be able to.

Heather: Well Harkness ...

Denis: Yeah.

Heather: ... has long red hair ...

Denis: Okay.

Heather: ... and a beard. He's about I'd say, I don't know, about 25 years old.

Denis: Okay.

Heather: And he dresses and acts like a biker.

Denis: Okay.

Heather: And that's that's about all that I know about him.

Denis: That's no problem, fuck don't worry about that if he's only 25.

Heather: Yeah, he'd be about that.


(Cooper)

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Denis: What if he comes after me, just pack him in for youse people or what?


(Cooper)

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Heather: The, I don't know about the two guys he met in the airport though, I have no idea what they look like.

Denis: Okay. MR. COOPER: Q. Mr. Gaudreault, just a moment ago you said on the tape "What if he comes after me, just pack him in for youse people or what?" A. That's an expression. Q. And what did you mean by that expression, sir? A. Eh? Well, fucking beat him, hold him for them or - but knowing myself I'd probably run in the opposite direction. Q. We'll continue.--- Audiotape playing

Heather: But we'll see what we can do in trying to track down who these guys are.

Denis: Okay.

Heather: Okay?

Denis: Okay. Thanks a lot.

Heather: So I'll see you on Tuesday. We got to bring the big boss along, eh?

Denis: No problem. As long as there's no problem. I'll sit down with youse and we'll talk and then we'll take it from there.

Heather: Yeah, well he's the one that can make the deals with you and offer you the kind of protec-tion, eh?, that's why he's going out.

Denis: Okay, well I'll talk to him when I see him.


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Heather: Okay. Good enough. Here's Sylvie.

Denis: Okay.

Heather: Bye bye.

Denis: Bye. MR. COOPER: Now at this point, Your Honour, it

changes back to French with Sylvie and this is where I'll surrender the controls.

--- Audiotape played THE INTERPRETER:

Sylvie: Denis?

Denis: Yeah.

Sylvie: You're gonna be there for sure, huh?

Denis: Yeah because now there are two people who've left town with 20,000 on them.

Sylvie: Yeah.

Denis: Yeah, because they know that I'm gonna talk.

Sylvie: No, no, they left before all of that happened. They left Sunday.

Denis: Sunday? When was that?

Sylvie: They left he left Sunday, eh? Sunday night. Saturday Rob made those threats to Rhonda.

Denis: Yeah?

Sylvie: Yeah, and after that well that's when he said that Sunday that he hadn't left the motel because we went to work on Monday morning ...

Denis: Yeah.


(Cooper)

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Sylvie: ... because his truck and the cars they were covered with snow because it had snowed, okay?

Denis: Okay.

Sylvie: Yeah, and they hadn't moved anything so that means that there was a big meeting and he sent some guys to Vancouver so don't go in public too much, just stay where you are ...

Denis: Yeah.

Sylvie: ... and meet them.

Denis: Okay.

Sylvie: But I'm telling you right now ...

Denis: Yeah?

Sylvie: ... you remember Savage?

Denis: Yeah.

Sylvie: You trusted him?

Denis: Yeah.

Sylvie: They're even better.

Denis: Okay.

Sylvie: And take my word for it.

Denis: Okay. Well I'm gonna meet them Tuesday anyway, it's just it's just that I want to know who they are.

Sylvie: What?

Denis: Because you see people they come they come next to us and you have to be careful.


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Sylvie: Well don't go anywhere, just stay where you are.


(Cooper)

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Denis: Okay.

Sylvie: And now they're gonna see you Tuesday morning. I'm telling you eh ...

Denis: And tell them that just just for their own security ...

Sylvie: Okay.

Denis: ... that they should that they should if they can that they should follow them follow them because if they hit me before the others talk to me there'll never be anything and I'm gonna continue to walk.

THE WITNESS: No, they'll continue to walk. THE INTERPRETER: "pi la j'ma continuer à marcher."THE WITNESS: Non, ils vont continuer à marcher.

MR. COOPER: Okay. Hold your fire for a minute. Would you translate whatever Mr. Gaudreault has said as well?

THE INTERPRETER: "No, they're gonna continue to walk." "I'm gonna continue to walk." The Inter-preter heard "I'm gonna continue to walk." Mr. Gaudreault said "They're gonna continue to walk." We should listen to it again.MR. COOPER: Okay.

--- Audiotape played THE WITNESS: L'autre va continuer à marcher.

THE INTERPRETER: L'autre va continuer. Okay.THE WITNESS: En parlant de Stewart.THE INTERPRETER: The tape is unclear.

MR. COOPER: What did Mr. Gaudreault just say? THE INTERPRETER: The other one is going to continue

to walk.


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MR. COOPER: Q. I'll just stop and ask a question. Mr. Gau- dreault, could you tell me in English, please, what it is you're saying to Sylvie there? A. I'm saying to Sylvie if they get a hold of me, if they find me before I get to talk to the police officers, like they'll have nothing and Stewart will keep on walking. Q. Please continue.--- Audiotape played THE INTERPRETER:

Sylvie: They know all that.

Denis: Don't know why.

Sylvie: They're already being watched those guys.

Denis: Okay.

Sylvie: Well, anyway, I'm telling you now don't screw them around because ...

Denis: No I won't screw them around. They're gonna come down here and I'm gonna talk to them.

Sylvie: That's all they want, they want to talk to you and after that they're gonna make arrangements with you.

THE WITNESS: Sylvie said that. THE INTERPRETER: Sylvie.--- Audiotape played THE INTERPRETER:

Sylvie: They're gonna protect you, don't worry. Denis: And then I'm gonna get a new name and some money.


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Sylvie: Probably.

Denis: Okay?

Sylvie: Okay.

Denis: Bye.

Sylvie: Bye. MR. COOPER: Q. "And then I'm gonna get a new name and some money", Mr. Gaudreault, what did you mean by that? A. Well, I won't do this for free, let's put it this way. They're taking my life away. What do you expect? Q. At this stage, sir, earlier in the conver-sation in the English part of it, you've made reference that you'll just give them some information and they'll take it from there. A. That's correct. Q. During the course of the conversation have you changed your mind as to how you want to be involved? A. Just to give them the information, let them go on their merry way. MR. COOPER: May I just have a moment, Your Honour? Q. Mr. Gaudreault, there's a mention in here of John Savage. Now I don't want you to give us any information about John Savage except to confirm that he's a police officer, sir? A. With the Ottawa Police Force. Q. And that's an individual who you gave information to at one previous occasion. A. That's correct. Q. Don't go into the information.


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A. Correct. Q. Other than Savage, sir, was there anybody in between Officer Savage and these police officers that you gave information to, any other police officer? A. No, except for one, Dave Richardson. Q. Yes. At this point in time, though, had you met Richardson yet? A. No. Q. What about prior to Savage, had you given information to the police? A. Not that I recall. Q. And finally with respect to Savage, Officer Savage, can you indicate what year that was, sir, approximately that you gave him the information? A. I'd have to go back, a week before the incident, somewhere around there. Q. Okay. Do you recall what year that would be, sir, - that's the only thing I'm interested in - roughly? A. In the '70s.

Q. Okay.A. Late '70s, mid '70s maybe. Wait a minute.

Give me a minute there. I'd say between '75 and '78, somewhere around there. Q. Okay. So sometime previous to approximately 1978, and then this occasion in 1990 is the next occasion --- A. That's correct. Q. --- that you give information to a police officer. MR. COOPER: That concludes the tape, Your Hon- our,

and I'd ask that it be made the next num- bered exhibit, please.


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THE REGISTRAR: Exhibit 105, Your Honour. THE COURT: Exhibit 105. Thank you.

EXHIBIT NO. 105: Tape of conversation between

Officers Riddell and Lamarche,

Denis Gaudreault and Sylvie

Gravelle (February 8, 1990) MR. COOPER:

Q. Oh, I said, Mr. Gaudreault, at the end of the tape I'd ask you if -- after Riddell brings up the -- Officer Riddell brings up the Harkness information, whether you ever say anything more about the information you have on this murder, did you, sir, the rest of that tape? A. No. Q. Everything on that tape about the murder was said before any mention was made of Harkness; is that correct? A. That's correct. Q. Okay. Now subsequent to this, sir, do you have occasion to physically meet Officer Lamarche and Inspector Okmanas? A. Yes I did. Q. Okay. And the arrangements you'd made on the telephone here, were those the arrangements that eventually occurred? A. Yes, they were. Lou Okmanas when I first met him he had a trenchcoat. MR. COOPER: I've just informed the translator, Your

Honour, that since we're done with the tapes she can relocate.

THE COURT: All right. Thank you very much. MR. COOPER:


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Q. I'm sorry, Mr. Gaudreault, I kind of inter- rupted you there. You were saying something about a trenchcoat. A. Yeah, that's what he was wearing when I first saw him. Q. Okay. Let's describe to the jury, if you would, describe the layout, you started to do that a little bit earlier in your testimony last week, what was the layout at the Oceanside Gift Shop in Victoria? A. The Oceanside Gift Shop is like a level that it's sort of like up a bit, but if you look -- if you've ever been to Victoria you have the Empress on one side. If you go across the street by the waterfront it goes down, way down, so the pay phone that I was using was at the opposite way, because when I'm giving them where to meet me I'm looking at this from Victoria from the pay phone and I'm telling them the name, I'm trying to read the name. Q. That brings me to another point, sir. You were telling them on the phone that you were in Vancouver. A. That was false. I was in Victoria all along. Well they could've figured that one out, look at the phone number. It doesn't take no smart ass to figure that one out. Q. So you're indicating, sir, the layout again and there's a change in elevation? A. Yeah, so I was looking from the top down and you could see them coming, so if they would be to stop to talk to anybody or if there'd be other people around I'd see them before they see me because all the tourists sort of like stay on top, they're always looking down and taking their pictures.

Q. Right.


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A. So ..... Q. And how did you prepare for this meeting, what did you do? A. How did I prepare for it? Q. What did you do at around the time that you said you'd meet them? A. Well I made sure that they had no -- it wasn't a setup. Q. Okay. And how did you do that? A. Well I saw them arrive, I saw them go down there, I saw them walk around, hanging around, and they were talking between the two of them. They weren't looking or making any signal or any of that stuff. I made sure that the people that were sitting down had no business there, and just checked around, also checked around for other people too being around, and then when I saw the coast was clear I went down and introduced myself. Q. And how long did you keep them under obser- vation, Lamarche and Okmanas? A. I'd say about five, 10 minutes. Q. Okay. And you say that you went down when you were satisfied there wasn't a setup? A. Yeah.

Q. And ---A. Well I was still a little scared when I went

down to introduce myself because I was waiting for these words "you're under arrest" and they grab me by the shoulders, so I kept looking around while I'm talking to them. Obviously they kept their bargain. Q. Okay. And did you subsequently --- Well, what happened next?


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A. Next I was -- we introduced each other and then it wasn't the appropriate place to talk because too many people, too many ears, you don't know who's listening, then I was asked if I'd go back down to Lou Okmanas' suite at the Exe- cutive House so we could have a conversation up there. Q. Okay. Now where were you staying at this time? A. Maybe the same hotel. Q. Okay. And do you go to Okmanas' suite? A. Yes I did. Q. How do you go there? Do you go there with Okmanas and Lamarche? A. And Heather Lamarche, we just walked, it's about -- not even a five-minute walk from there. And we were I think the top floor suite. Q. You were or Okmanas was? A. Lou Okmanas was on one of the top floor suites. Q. Okay. And what takes place at your first meeting, sir? A. We had a little conversation about sort of what I knew and that. Then we didn't want to waste no time and I don't know if that's when they showed me the picture at first, and then I don't know if that's at that point that I've shown them the book. I know I've shown them the book at one of the meetings, I think it was the first one, and he gave back the book and he said "Hang on to this. When I need it I'll ask for it." Q. Did you have more than one meeting that day, sir? A. I think I had a couple.


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Q. Okay. And during the course of our review of these audiotapes you made your position clear as to how you wanted to be involved. First I'll confirm, sir, I'm showing you Exhibit 87, you indicated that you're not sure if that's when they showed you the picture but is this the picture you're speaking of? A. There was one of a guy on a slab.

Q. Okay. Is it --- A. Yeah, I think that's one of them also.

Q. Okay. And did you - Exhibit 87, I said that, didn't I? - and you said you think you showed the book at that time as well, sir. What book were you talking about then? A. That was the black book. Q. Now we have a copy as one of our exhibits of a black book that you copied.

A. Yeah.Q. Which one did you show them on that day?

A. The original. The original, the hard -- well, it's like -- it's not like that one, it's a different kind of book as that one. Q. What do you mean by a different kind of book? A. Well it doesn't have the steel that goes around, it's like ..... Q. I show you Exhibit 90, sir. What would be the differences as between Exhibit 90 and the one that --- A. It wouldn't have this, it would be just around. It would be just like a little harder cover, like a dark -- well, it's like a harder cover, like it won't bend like


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that as easy, and it doesn't have this, it's just like one cover and it's --- Q. The cover goes all the way around ---

A. Yeah.Q. --- the spine?

A. Yeah. Q. And it doesn't have the wire ---

A. No.Q. --- spiral, ---

A. No. Q. --- is that what you're saying? A. Yeah. Q. Now you've told us earlier, sir, that you had some loose pages? A. Yeah. Q. And you said the loose pages were the original records, you've already told us that. A. Yeah. Q. But the black book that you showed them --- A. Was what I was transferring from those papers to the black book. Q. Okay. And I'll just --- A. So those would be -- basically would be when I write something on a piece of paper I write it on that piece of paper first and then later on I'll transfer it to the book. Then when the money was being paid Rob would initial the payments being done to make sure that he's been paid for. Q. Okay. And I'm showing you Exhibit 91, sir. Are these the papers you're speaking of? A. Yes they are.


(Cooper)

2361

Q. Okay. Did you trust the police, sir, after you met them --- A. No way. Q. --- at the Oceanside Gift Shop? A. No way. Q. What about during the course of the day, did you develop any trust with Okmanas for example? A. A little bit but it was deceiving. Q. But it was what? A. He was a little pushy. Q. He was a little pushy? A. Yeah. Q. How do you mean "a little pushy"? A. Well, for me to talk he was pushy a little bit. He wanted to know like some information but like pushy that way, --- Q. Okay. A. --- so what I did is I just gave him a little bit of things and that was it. Q. Okay. A. Then at one point he asked me if I had something, so I pulled out the book, showed the book, I don't know if that's at the first meeting but I remember showing him the book. He had a look through the book, he was quite impressed with the book, a smile came upon his face and when he gave it back to me he says "You make sure you keep that and when I want it I'll ask for it" because I remember like as soon as he gave it back to me like I was kind of happy. Q. Why were you kind of happy, Mr. Gaudreault? A. Well, I had some names in there.


(Cooper)

2361

Q. Okay. What was your perception of the value of that book after Okmanas gave it back to you and told you to keep it and he'd get it later? A. That he was interested in some stuff in that book because I remember he went through page after page, and then he talked with Heather Lamarche a little bit, like they were exchanging -- like I wasn't -- I was there but I was still waiting for that door to open and "you're under arrest", --- Q. Yes? A. --- that kind of line, so my body was there but my mind was half there and half out of there. Q. Okay. And during, sir, during -- you had more than one meeting that day. During the course of the day did you leave? A. Yes I did. Q. And where did you go? A. I went to get something. Q. Okay. Did you leave with an escort or did you just leave on your own? A. I left on my own but then they -- they were waiting to see somebody up there by the name of Dave Richard- son, like another police officer was downstairs in the restaurant while I was upstairs I guess. Q. Did you see Richardson that day, sir? A. Yeah, I saw him when I walked in front of the hotel, like when I came out of the hotel you make -- I made a left, started going down towards the Empress and I saw this guy there with glasses sitting at the table looking at me, which later on happened to be Dave Richardson.


(Cooper)

2361

Q. Okay. Now, were you introduced to him that day? A. I don't think so. I could've but I don't -- like it's a long time. I don't exactly recall how that intro-duction took place, but I know that they told me if I had anything or any problems or if anything happened to call and get a hold of this person here, and which at one point I did. Then we went out for coffee, me and him, at Smitty's in Saanich and we were just talking like two people are talking and I guess I opened up myself to Mr. Richardson. Q. Okay. We're going to speak about Sergeant Richardson before we're done here, sir, but at the time of these interviews on this particular day in the Executive House, you indicated there's more than one interview that day with the police? A. I think so there was. Q. Are you coming forward and telling them "I drove the car" --- A. No way. Q. --- "these four guys are involved"? A. No way. No way. Q. Why not? A. Well, I didn't trust them. Who the hell? Did they think I'm gonna tell them everything the first time I look at them or the second time or the third time or the fourth time? You got to learn to build trust between two people before you could tell everything to somebody. Q. And why is that? A. That's the kind of life I was brought up to, and at one point with Dave Richardson when we were there with Dave Richardson made me feel the way that no police offi-


(Cooper)

2361

cer never made me feel, he made me feel like I could trust him, rely on him, that if I had any problems not to worry, he was there. He came out with all those things like nothing but respect for me for who I was, even if I'm a criminal he respected me as a human being. And the other police all what I had from them was just they wanted something and they wasn't (sic) gonna ease off until they got something. Dave Richardson knew everything before even Heather Lamarche and Lou Okmanas knew everything. Q. What do you mean Dave Richardson knew everything?

A. I told him everything. MS. MULLIGAN: Your Honour, I have an objection.

THE COURT: Yes, all right.

--- Whereupon the jury and witness retired at 10:49 a.m.


(Cooper)

2361

--- In the absence of the jury MS. MULLIGAN: Your Honour, it appears to me what

we're getting into now, it's partway come out but I

see that Mr. Cooper ---

MR. COOPER: I'm sorry, I can't hear you. MS. MULLIGAN: Sorry. What we're getting into now

that has in part come out, but I see that Mr.

Cooper intends to go further, is indeed a prior

consistent statement, that's what he's trying to

get out. There's been no challenge to Mr.

Gaudreault yet. This is not the time to do it. It

is in a sense Mr. Cooper intends to go through, you

know, when you spoke to the police you said this or

you said that and Mr. Gau- dreault's gone through

the first four or five times I didn't trust Heather

Lamarche, et cetera, I didn't tell them everything.

He's giving his explanation before he's even being

crossed. That's gone on but now we're in a

situation where Mr. Cooper is trying to get out of

him a prior consistent statement that he told Mr.

Richardson everything on a previous occasion prior

to the occasion of his being in the box, and that's

not permissible, and Mr. Cooper knows that.

MR. McKECHNIE: I'm agreeing. I agree with my friend.

THE COURT: All right. MS. BAIR: Your Honour, it only becomes an attempt

to lead a prior consistent statement. If we call

(In the absence of the jury)

2376

Sergeant Richardson to lead it, Mr. Gaudreault can tell us who he told what to when


2376

throughout this entire thing, that's what he's been doing, as much as everything he said to Lamarche in the Executive House, everything he said to Okmanas is as much a prior consistent statement as what he told to Richardson, there's no difference in character. It might be problematic if we call Richardson to prove it, but Mr. Gaudreault can certainly say who he told what to and when. In my respectful submission, it's not at all problematic.

MS. MULLIGAN: There is a difference in character. Your Honour, the only reason we went through all the tapes of course was because of the translation problem and the pauses that Mr. Cooper referred to. With respect to what he told Okmanas and Heather Lamarche, he hasn't gone into detail of what he told them, it's been a very generalized version given through Mr. Cooper's asking him the questions, did you tell them that these four men went out and you drove? No. Why not? I didn't trust them. It wasn't I said this or that, what he did in fact say was what he didn't say. Now we're going to get into what he did say and whether you lead it through Mr. Gaudreault or you lead it through Mr. Richardson it's still a prior consistent statement and the Crown is not entitled to do that at this stage.

THE COURT: Isn't the witness just simply saying I said this? Isn't the witness describing his own actions? What is a prior consistent statement about that? I don't understand that. I


2376

have to get over that hurdle. There's some merit in what Ms. Bair said there.

MS. MULLIGAN: Well in my submission, Your Honour, he's entitled to --- THE COURT: I mean I understand the problem because I've been through it and I know exactly what you're referring to in the motel and so on, so I know exactly what you're referring to, but I don't see the problem at this stage the same way.

MS. MULLIGAN: Well, in my submission he's entitled to refer to what he said and did as it is relevant and goes to the events, so he's entitled to say I said this on the night of January 16th and I did this on the night of January 16th, and that's describing his own actions and his own words and the words he heard that are relevant to the matters before the Court. But now we're getting into a whole other round where he's saying months after the fact I said something consistent with what I'm telling you here today to a police officer, and that's a different thing, that's not describing what he said and did as it is relevant, strictly speaking, to the events, this is describing what he said and did as it bolsters his credibility in the midst of the Crown's case and that's what's not permissible, they're not entitled to do it, in my submission, Your Hon- our. MS. BAIR: Your Honour, what the witness has said is "I told everything to Richardson before


2376

I told it to Lamarche and Riddell", that's --- THE COURT: That's what he said.

MS. BAIR: That's what he said and that's what he's entitled to say and he's not saying I told them this, this, this and this, it's "I told him everything before I told Lamarche and Riddell". It doesn't bolster his credibility in any way. In the event that we're able to prove that what he says is true that he told Richard- son this, this, this, this and this in detail before he told Lamarche, that might bolster his credibility and we'll see if we get there. At this point he can certainly say who he told his information to first, particularly as we're in the context of why he didn't tell Lamarche the truth right off the top. He's describing his trust relationship with Richardson and he's saying "I told Richardson everything before I told Lamarche because I trusted Richardson and I didn't trust Lamarche and Okmanas."

MS. MULLIGAN: And I only rise to point out that came out but when I objected is when Mr. Cooper was going to get into more detail. He said to him "What do you mean, Mr. Gaudreault, you told everything to Mr. Richardson?" and I'm quite sure that Mr. Gaudreault would've told us exactly what he meant, that he told him that he drove that night, that he drove the four guys, that Jim Sauvé had the .12 gauge, or whatever it is that he's going to say, I'm sure that's what he would say in answer to "What do you mean you told Mr. Richardson everything?" and


2376

that's why I rose. MS. BAIR: Your Honour, my friend has indicated

already she doesn't have a problem with the fact that he didn't tell Lamarche that he drove, that's acceptable. He can indicate, and it was proper for Mr. Cooper to elicit, that he did not tell Lamarche and Okmanas in the hotel room that he was the driver that night. By the same token it's permissible for him to say he did tell that to Richardson that he drove. That is the difference. If it's acceptable to say he didn't tell Lamarche, it's acceptable to say he did tell Richardson, again it's in the context of a trust relationship. He has to. I mean, we can't do this in a vacuum. This witness will be attacked for not having told the whole story off the top, truthfully and accurately, that has to be the cross-examination, it's not just a legitimate expectation, it is the only reasonable expectation in the circumstances, therefore he has to be able to say that he told someone that he drove right off the top, given that he did.

MS. MULLIGAN: Sorry to keep rising but Ms. Bair keeps rising.

THE COURT: I understand. I don't care how it comes, I just want it all. When you sit down, I'll rule.

MS. MULLIGAN: Your Honour, Ms. Bair said there's no difference between the two. One is a prior inconsistent statement with his evidence as to what he says happened and one is a prior


2376

consistent statement. There's a world of differ-ence, in my submission. And as far as whether he's going to be cross-examined in that way, yes he may well be, but the defence is entitled to get into that and to cross-examine him and to get his answers out and he will no doubt tell me he told Dave Richardson everything in cross or Mr. McKechnie, but that's where it comes, not in the Crown's case in chief, in my submission. And Ms. Bair is ---

MS. BAIR: On her way up again. THE COURT: All right.MS. BAIR: Not so when there's a legitimate expecta-tion, Your Honour. Again the problem that my friend seems to have is that a proper examination-in-chief cuts the legs out of a cross-examination. Sorry, that's our job. Where you legitimately expect it you are entitled to lead it in chief. As I say, it's not just legitimate, it's inevitable.

MS. MULLIGAN: Your Honour knows I disagree. I don't think there's anything more I can add.THE COURT: All right.

MS. MULLIGAN: Mr. Stewart is indicating as well he needs to use the facilities, Your Honour.

THE COURT: All right. That suits me too for the

same reason.

--- Whereupon court recessed at 10:57 a.m.* * * * * * * *

--- Upon resuming at 11:30 a.m.


2376

--- Accused present


2376

THE COURT: Has anybody done some work that I should

get the benefit of?

MS. BAIR: We have tons of it. THE COURT: Tons of it?MS. BAIR: I was just going to give you a couple of pages from -- the relevant pages from the cases but this is apparently an argument Mr. Dandyk has been working on in the back room for some time so he's got a lot more than I have.THE COURT: All right.

MR. DANDYK: Well the big problem I have, Your Honour, is I haven't copied the caselaw in relation to what I was going to refer to so I can summarize it and refer to cases and authorities and so on but I'd have to make copies as well for all counsel.

What the argument summarily is is that counsel is

anticipating, and Ms. Bair is providing you

portions of Owens and Campbell and Garofoli, all

from our Court of Appeal in actual fact, and what

the basis is and authorities have said it as well,

Professor Paciocco has said it and Justice Salhany

has said it, that an opening can also be a

foundation for this. So we have to remember from

the opening that we have in this case is that there

have been allegations of Denis Gaudreault being

paid, and that is the Garofoli hook, because in

actual fact the basis of the recent fabrication in

Garofoli was that it was sufficient when there was


2376

an allegation that he was looking to be paid by the

Canadian authorities and that's one of the portions

or

claims that Ms. Mulligan made in her opening as to

Denis.

The other hook relates to whether it is an allega-

tion of recent fabrication and, with respect, that

exists also in the opening because she makes

numerous references to varying or different

versions of his evidence and so on, and she does so

on at least I believe three, if not four,

occasions in her opening. So in the Crown's

respectful submission that's the slant she's

taking. So on the basis of Garofoli we have one

direct virtually identical circumstance in Garofoli

where the allegation that at least one of Denis'

motives is to be paid for the benefits he wants,

and the other benefits as well of course, not just

being paid money, the other benefits that are

detailed in the opening. That's enough that alleges

fabrication on that basis, recent fabrication, and

Garofoli, the Ontario Court of Appeal reversed on

other grounds on the wiretap issues but in the

Ontario Court of Appeal found that to be an allega-

tion of recent fabrication. The others relate to --

it can arise in the circumstances and that's that

varying version aspect.

She will give the argument that was made in


2376

O'Connor where the Supreme Court of Canada, another court, this is the Ontario Court of Appeal, not the B.C. case, and in O'Connor it was a sexual assault case but defence made the same allegation, we're just saying it is an


2376

allegation of fabrication not recent, and Justice

Finlayson said wait a minute too smart by half and

suggested it clearly was in the circumstances and,

with respect, it is in this case. The allegation is

that in actual fact as well that he relies on

newspaper accounts and so on which obviously have

to occur between the time the offence occurs and

the time Denis comes forward. So when that

allegation is made, and it has already been a

number of times, then that's another foundation for

it being a recent fabrication and for the Crown

anticipating it.

And then the other cases you have, I guess O'Connor

in the Court of Appeal simply restates what

Campbell said and what Owens says and what F.J.E.

I believe says as well, that in actual fact you can

anticipate in those types of circumstances. I

believe actually those are essentially it. What I can do is I can provide a copy of O'Connor

here as well which summarizes it. You have

Garofoli. If we might have a moment, Your Honour,

we'll find it. I have since found a reported

version of it although I can give ..... There was

an Ontario Appeal cases version and I have a

version from the Ontario Reports which can be

provided. Ms. Bair can highlight the portion from

Campbell. Actually maybe we can hand up the Ontario


2376

Appeal cases and I can show counsel the other one.

There it is. What

I'm looking at are paragraphs 13 and 14, counsel can maybe use that copy there, which is the portion from O'Connor.

Starting at paragraph 13. Ms. Bair has suggested

that we continue right up to issue 2, so the

portion right up to issue 2 which is paragraph --

right up to the end of paragraph 20 is abuse, and I

suppose ---

THE COURT: Oh, I see. MR. DANDYK: At the beginning of 18 before a quoted portion here. Sorry. That's the summary argument. Ms. Mulligan is now suggesting it may be useful to finish earlier, I'm not sure if the Court needs that, because of the confusion now doing this sort of piecemeal. I'm entirely in the Court's hands, and I can arrange to -- I obviously referred to other authorities but I mean these are the basic ones. If somebody has an issue about an opening being able to trigger it, I can quote those authorities or give the references because I can indicate that ---

THE COURT: R.B.F.(J.E.) 1993 says openings can be a basis. MR. DANDYK: Thank you.THE COURT: Mr. Justice Finlayson:

In my opinion if the Crown is relying upon recent fabrication as the basis for the admissibility of a prior consistent statement it must wait until the defence has clearly


2376

opened the door by making an opening statement or through cross-examination of the complainant or other Crown witness ...

MR. DANDYK: Thank you, Your Honour.


2376

THE COURT: Ms. Mulligan? MS. MULLIGAN: I'm in the middle of reading Mr.

Dandyk's case and listening to Your Honour and reading ---

THE COURT: Never listen to the other side, just get your own thoughts on track and just run down the track.

MS. MULLIGAN: I've got the single pages that Ms.

Bair gave me. Your Honour, it becomes an interesting issue as to timing and as to what this witness can say. One of the things I was looking at McWilliams, I actually have the case now and I only have one copy of it but in McWilliams On Evidence it is summarized, the point, to admit a prior consistent statement on any kind of ground, first of all just taking a step back, whether there's been an allegation of recent fabrication or just an allegation of general fabrication or whatever may have happened, to admit a prior consistent statement the Criminal Appeal Court, and this was cited with approval in the Campbell case, the British Criminal Appeal Court, this is a decision, - I can't say the name - Oyesiku is the name of the accused, it's a 1971 decision, it's summarized in McWilliams as stating or standing for the proposition:

The earlier statement ...in other words the prior consistent statement

... must have been made contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that it is of late invention.


2376

et cetera. The trial judge must exercise care that the credit has been so impugned and that the earlier statement was confirmatory

And then there's this case and I haven't in fact

read it all through myself. I'll show it to my

friend. It's cited in a number of the cases. It

also cites the other case that Campbell relies on

for the same point, the case of Nominal Defendant

and Clements.

So, we have an earlier problem in this case, it

seems to me, as the Crown was providing this

caselaw and I was thinking about the issue of

recent fabrication, is that the first problem is

the prior consistent statement close enough and

contemporaneous enough to the events that it

couldn't be itself or Your Honour doesn't have some

doubts as to whether it was contrived or fabricated

such that it should go in as confirmatory evidence

of Mr. Gaudreault's evidence here. And the second

problem is the timing. This, in my submission, is

not an allegation of recent fabrication but I agree

to the extent that there is an allegation made by

the defence that some time after the events Mr.

Gaudreault through a number of ways, means and

sources came up with information that he provided

the police that was not true. He doesn't in fact

come up with his version of events, at least not in

statement form, until June 14th, 1990, I believe,


2376

when he tells the story that(In the absence of the jury)

2376

is at least substantially similar, although not

identical, to the story he's told here in chief. In these circumstances given that this prior "con-sistent" statement was made some months after the events, it's not made in writing, it's made orally and it's not noted down in Richardson's notes either, as I recall, there isn't even a police officer's note to go with that, in these circumstances I would submit that it should be left until the allegation is made in cross, if it's made. Mr. Gaudreault no doubt will treat the jury to that answer at some point during cross, I don't think there's any question about that, but then it is a matter for the defence to determine how to deal with that and how to raise that in cross with him in order to not suffer prejudice by that statement coming out at an earlier time, in chief. It is in part, I suppose, a tactical advantage that the defence does not want to be deprived of by the Crown leading it now, it's a bolstering technique. It's not, in my submission, the appropriate time, particularly given the nature of the alleged statement. But if Your Honour wants to hear more of course I only just read the one page of several of the cases, I haven't read all of Mr. Dandyk's cases, and I want to pass up to you this case from the Criminal Court of Appeal that Mr. Dandyk is highlighting but I don't have another copy of it for Mr. Dandyk.


2376

MR. DANDYK: I might only indicate that Justice Martin in Campbell refers to Oyesiku only for the foundation, and the factual underpinning or the portion that Ms. Mulligan is relying on isn't what Justice Martin endorses but I can provide it because that's a contemporaneous statement basically that is referred to that Ms. Mulligan is relying upon. If it is not a contemporaneous statement and, with respect, on our facts it isn't, there's an allegation of newspaper accounts and an allegation of doing it to get money, I'm suggesting it's a factual different situation.

MS. MULLIGAN: Your Honour, I should also point out on page 20 of Campbell, which I didn't have but Mr. McKechnie went and got it out of the library, Ms. Bair I think gave us page 18 and 19, I think it was. MR. DANDYK: Yes, 18 and 19.MS. MULLIGAN: Page 20 the Court of course indicates that the fact that the whole story of a witness is challenged does not by itself constitute an allegation of recent fabrication. It is never suggested by the defence that Mr. Gaudreault has told the truth about this story at any time, that he's changed, you know, his versions, the whole story is challenged from start to finish. So Your Honour must first satisfy yourself that it's an allegation of recent fabrication that's being made. Secondly, Your Honour must satisfy himself that this statement was made sufficiently contempora-


2376

neously, in my submission, to be a prior consistent

statement that is free from difficulty. And

thirdly, Your Honour must decide even if those two

factors are met, whether the timing of the

introduction of this statement should be in the

Crown's case in chief where it bolsters the

witness' credibility as a prior consistent

statement before the defence has even asked him

those questions.

Now, I realize that there were some things said in the opening but Your Honour also remembers the circumstances of the opening and why I made an opening and the circumstances under which that was done. So I would ask out of fairness, Your Honour, that this wait until Mr. Gau- dreault is challenged in cross-examination and then the issue arises there, not that the Crown be permitted to lead it in chief.

THE COURT: Mr. McKechnie? MR. McKECHNIE: I have nothing to add.


2376


2376

McWilliam, J. (Orally):(1) I will begin by reading from the part quoted by Mr.

Justice Boilard, I don't use McWilliams on the grounds of conflict of interest, but he says at page 2-6 in his Guide to Criminal Evidence:

As regards the operation of the rule Mr. Justice of Appeal Finlayson made the following comments in R.B.F. (J.E.) (1993) 85 C.C.C. (3d) 457 and 26 C.R. (4th) 220:

"In my opinion if the Crown is relying upon recent fabrication as the basis for the admissibility of a prior consistent statement it must wait until the defence has clearly opened the door by making an opening statement or through cross-examination of the complainant or other Crown witness, or as in R. v. Owens (1986) 33 C.C.C. (3d) 257 ...

and other citations by the allegation of fabrication becoming implicit from the defence's conduct of the case. If this door is opened during cross- examination questions directed to refuting the allegation can be asked in re-examination or, if necessary, by calling or re- calling the witnesses. This involves a little extra time and avoids the problem the Court had in considering a mistrial and the conse-quences of putting a youthful complainant through the experience of testifying again. When the justification for the evidence is to rebut an allegation of recent fabrication, the Crown should announce to the Court that that is the reason it is being led so that the trial judge is aware of this problem from the outset and defence counsel is firmly on notice. Another caveat, it is only consistent statements made prior to the time when it is alleged that the fabrication began that are

Ruling - McWilliam, J.

2379

admissible.Ruling - McWilliam, J.

2379

"That last statement referring to the time when the alleged fabrication began was revisited in the O'Connor case (1995) 100 C.C.C. (3d) 285 when Mr. Justice Finlayson said this:

"I am of the view that an allegation of recent fabrication is no more than an allegation that the complainant has made up a false story to meet the exigencies of the case. The word recent means that the complainant's evidence has been invented or fabricated after the event in question and thus is a "recent invention or fabrication."

(2) In these circumstances, in applying those

principles and considering the statements in the

opening such as Mr. Gaudreault had "a story,

several stories, different stories, lots of

stories", and there is also an issue with respect

to the timing of his stories, that the opening

remark that Mr. Gaudreault would say that he had

motives to lie and that he told a number of

different versions to the police, which was another

statement from the opening, he gave varying

versions of events therefore he admits that he lied

and the proposition put to the jury that he wanted

the police to trust him so he lied to the police.

(3) In these particular circumstances, given those statements in the opening, I am satisfied in all the circumstances that recent fabrication is fundamentally alleged in the sense that it was defined by Mr. Justice Finlayson in the part I read


2379

from his judgment in O'Connor, andRuling - McWilliam, J.

2379

that there is nothing improper about the Crown

leading that evidence in chief, it will be cross-

examined upon in any event, I am sure, and I see

nothing wrong with that.

(4) You might even argue in this case, although I'm not sure, you might even argue that it's just one of the stories told by Mr. Gaudreault on the defence's opening and it's merely completing all the stories for the benefit of the jury, if it's just another story like the other, that argument is open to the defence to make, but I still consider that given Gau- dreault's final position, if you want to call it that, before the jury as to what happened on January the 16th, that this constitutes an allegation of recent fabrication within the meaning of the case I cited from 1993 and in the meaning of the O'Connor case. So, yes, I would allow the Crown to ask those questions of Mr. Gaudreault.

MR. DANDYK: If I might be excused, then? THE COURT: Yes, certainly.


2379

--- Upon resuming in the presence of the jury at 11:53 a.m.

DENIS MARCEL GAUDREAULT, resumes on the stand

THE COURT: Mr. Cooper?

MR. COOPER: Thank you, Your Honour.

EXAMINATION-IN-CHIEF (continued) BY MR. COOPER: Q. Mr. Gaudreault, just before we broke, and this won't be verbatim but pretty close, closer than I would do without notes, you had been speaking of Sergeant or Staff Ser- geant David Richardson from Saanich and you said he respected you as a person, not just as a criminal, even though you were a criminal he still respected you and then you said he knew everything before the police in Ontario knew everything. What do you mean by that last comment, sir, first of all? A. Well, we were having a discussion and then I guess I just -- he was really the first person I ever broke down and got into the conversation and explained what happened. Q. What do you mean by "what happened"? A. Well about I was the driver and who the major players were with us. Q. Okay. Is that something that you had told the OPP at this point? A. No. Q. Okay. Maybe the easiest thing, sir, is to ask you approximately when and in what circumstances you ended up telling the OPP that you were involved personally. A. I don't get --- Q. Okay. Let me start over again. Do you remember when you first told the OPP that you were involved? A. Well I told them some stuff but never that I was involved, just little bits and pieces here and there.

D. GAUDREAULT, in-chf(Cooper)

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Q. Do you remember the time, sir, when you told the police that you were involved as the driver? A. A few months after. Q. Okay. How did it happen? Was it face-to-face? A. With the OPP? Q. Yes. A. I think it was in a phone conversation --- Q. Okay. A. --- with myself and Heather Lamarche. Q. Yourself and Heather Lamarche? A. Yeah. Q. Was it a calm, quiet conversation, sir? A. I don't think so. Q. How did it end up? A. Well she got me a little pissed off, a little scared, so I hang up the phone on her. Q. Okay. Did you tell Richardson about your own involvement as the driver before or after the conversation with Lamarche? A. Before. Q. Okay. And why hadn't you told Lamarche earlier than you did? A. I didn't trust them. Q. I'm sorry? A. I didn't trust them after what I was told in the hotel room at one point in Belleville. Q. Okay. You didn't trust who, sir? A. The OPP.


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Q. Okay. And what was the difference between your relationship with the OPP and your relationship with Dave Richardson? A. He respected me. Q. Okay. Except for a few trips to Ontario, sir, for the duration of this point in time up until you have the conversation with Lamarche on the phone, were you in Vic- toria? A. Yes I was. Q. Okay. And was Richardson there as well? A. Yes he was. Q. Okay. How frequently did you see Richard- son? A. On a daily basis when he was working or on his time off. Every week, I'd see him at least once or twice every week, sometimes more. Q. And in comparison how often were you seeing the OPP? A. Not that much, I was just on the phone when they wanted to know something so I'd lead them through one door and as soon as they were through that door I'd stop --- Q. Yes? A. --- and let them do their investigation from there. Q. And why is that? Why do you lead them through one door and stop? A. I didn't want to get involved in this because at one point I got scared, they wanted me back so they could talk to me. I even told Dave Richardson if he doesn't come with me I ain't going. Q. And what happened?


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A. And I felt secure with him coming down with me because if he came down with me then I knew I was gonna go back, that's how I felt at the time, and he did, he flew down with me. Q. Okay. So Staff Sergeant Richardson flew down from Victoria or Saanich to Ontario with you. A. Yeah, because they had me flying -- at one point they had me coming down by myself, I didn't feel good about that, ---

Q. Yes?A. --- coming down from Victoria, coming down by

myself, no security, no nothing, anybody would see me in the airport and I'm well known, so ..... Q. Right. So your relationship with Richard- son, you say there was frequent contact.

A. Yeah.Q. Was that by phone, in person or both?

A. In person and by phone, but I had nothing but respect for Dave Richardson, so ..... Q. Did you --- A. I knew -- in other words I knew Mr. Richardson from just talking to him and being around him I knew him more than I knew Heather Lamarche and Rick Riddell, like in the form of talking to somebody --- Q. Yes? A. --- and, you know, like it's a hard thing to keep for yourself and I guess once I told -- I never told the full story to anybody 'til I told Richardson and at that point it's just like it took a whole pile of weight off my brain --- Q. Yes?


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A. --- when I came out and told him everything because at the point like there was nothing, we met at first and we were like talking but I wanted to talk but I didn't know him well enough. Then he showed me respect, he showed me things. Then when I told him everything it was like a big pressure off my brain, I just got relief, --- Q. Okay. A. --- because now I wasn't the only one that knew the whole story, somebody else knew the real story. And even at that point I still just kept giving the OPP a little bit, and that was it. Q. Did you tell Richardson whether the OPP knew the whole thing or not? A. Yeah I told Richardson, like, he knew the whole story and these guys didn't even know the whole story yet. Then he asked me why I wouldn't go out and clean and -- because that happened at Smitty's, I remember Dave said "Why don't you just tell them? Heather is a nice person, she seems to be all right" and I told him, I said "No." I said "You know the whole story, --- Q. Okay. A. --- I don't want to get involved in that stuff and now they got me involved in the middle" and Richard- son respected me for that. So obviously as far as I'm concerned Richardson still never said what he knew to the OPP that I told him, but he knew the whole story before the OPP knew the whole story. They knew bits and pieces, what I wanted to tell them, that's as far as it went. Q. Okay. A. Then with Lou Okmanas at one point in the hotel room he goes up to me that the Crown wanted me charged


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and prove myself innocent. Now they're asking me what I want for me to come forward. First I told him a name change and left it at that. Then I told him a name change, you know, looked after, and a job, and then there was talk of money, I asked for a large sum of money which he didn't see no problem with it at the time. Then I get up to Brockville, the whole -- everything is changed, like the Crown wants me charged but he went to bat for me not for me to get charged, now it went from an amount of money that I've asked for to another amount of money. Then it went to I wasn't allowed to have that kind of money, they were only gonna give me so much every month 'til the money was over, and then after the money was over they kept paying a little bit, then they threw me in that garbage Witness Protection Program, a piece of fucking shit. Q. You're going to get the opportunity, sir, to share your experience under the Witness Protection Program with the members of the jury, but before we get that far along I'd like to back you up. The incident with Okmanas telling you that the Crown wanted you charged, do you know whether Okmanas was telling you the truth or not? A. He's a police officer, he has no reason to lie to me, but I got every reason to not tell him the truth just to prove a point because --- Q. Did you believe him when he told you this? A. Well he's a Chief Inspector, I had -- I believed him but I had a funny feeling about him, like he was too pushy. Q. Okay. And so he tells you this, that the Crown wants you charged. A. Yeah.


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Q. And prove yourself innocent. A. And meanwhile they're telling me before I speak to them, no they won't charge me, they just want to talk to me, and the next thing you know it's coming out that the Crown wants me charged and for me to prove myself innocent. I would've never even made it to court if that would've been the case. Q. What effect did that have on you, the fact that Okmanas tells you this? A. Well, I trusted the police less and less. Q. So at this point is your trust building or is it getting lower with the OPP? A. It got a lot lower. They didn't do anything to help themselves. Q. And in terms of whether you're telling them the whole truth, sir, how does that -- how is that affected by Okmanas telling you that the Crown wants you charged? A. You'll have to say it in a way I could understand that question.

Q. Okay. MS. MULLIGAN: Perhaps in a non-leading way too,

Your Honour. I'd just ask Mr. Cooper to be careful.

MR. COOPER: Q. Mr. Gaudreault, Okmanas tells you this business about the Crown wanting to charge you. A. Yeah, he told me that in I think it was the hotel room in Belleville, and at the time it was Jim Stewart that was the head Crown in this case.


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Q. Okay. The fact that Okmanas told you that, you said your trust was going downhill, you've just already told me that --- A. Yeah, I wasn't, ---

Q. --- a few minutes ago. A. --- yeah.

Q. Okay.A. By that time he had me scared a little bit

---Q. Okay.A. --- because now he's telling me that the

Crown wants me charged so I don't know what to think, so I'm trying to get myself away from it so I'm bullshitting them some more so I'm not trying to put myself in there. Q. You're bullshitting them some more and you're not trying to put yourself where? A. In the driver's seat. Q. Okay. So the trust is diminishing, you're bullshitting them more and you're a little bit scared and you're not putting yourself in the driver's seat, that's what you've just told us? A. Yeah, and I'm not giving them the shooter also by that point. Q. Okay. A. But then after that I remember having a conversation with Heather Lamarche, then she mentioned Jim Sauvé, a few names, then she got upset at me because then she found out that Sauvé was the shooter. Then I kept asking myself how the hell did she find that out because I know I never told her. Then I had no choice, I had to come out, and that was just to give them a little bit more. And then after that when I came


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as the driver, that I told them I was the driver, start getting into more detail, I still didn't trust them so I just left some things behind in case they charged me --- Q. Yes? A. --- so I'd have something to fight back with. Q. What were you afraid of being charged with, Mr. Gaudreault? A. Well I was afraid to be charged with all these guys, with the four accused. Q. With what? A. With the same offence as they are, murder, because I didn't know anything what happened. All I did is I was asked by my boss at the time to drive somewhere, drop some people off, where to go, how to turn around and go back home. My job was to keep his tools wiped and loaded and it was -- I was working for him, so I didn't know like what took place and I still don't know what took place. All I know is I dropped them off, went back home and checked on one weapon and it was short three shells in one weapon, and bits of conversation that I've heard in between, so ..... Q. You said, sir, that in this conversation, the phone conversation, Lamarche mentioned Sauvé and you said how the hell did she know that. A. Yeah. Q. Had there been any mention by you of Mr. Sauvé prior to this telephone conversation, that you recall? A. Well I told her at one conversation that he was muscle also, one muscle, but --- Q. Yes?


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A. --- that was it, that he worked for Rob Stewart, that was it, just as muscle. Q. Okay. Had you said anything about weapons? Had you said anything about weapons? A. I don't recall, no. Q. Would it assist you, Mr. Gaudreault, to attempt to refresh your memory from notes of police officers? MS. MULLIGAN: Your Honour, he hasn't said he needed

any assistance. He's answered all the questions. He hasn't said he needed any help to refresh his memory or ---

THE COURT: He said he didn't recall if he said anything about weapons at a certain point.

MR. COOPER: That's what I understood, Your Honour, too.

THE COURT: That was the last answer. MR. COOPER: That's the last answer and that's why I

asked him if he wanted to attempt to refresh his memory.

THE COURT: I think it's fair. MS. MULLIGAN: Your Honour, I respect Your Hon-

our's ruling, I'm just wondering what notes, if he's seen them before, maybe that can all be made clear, whose notes, that sort of thing, for the record and for the jury?

MR. COOPER: I don't know that any of that is necessary, Your Honour, but I'm happy to say that these are the notes of Heather Lamarche on the 20th of March, 1990 in a hotel room with Detective Fitzgibbons from the Nepean Police Force. Page 177 of those notes for your assis-


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tance. Okay, there's more than one source. It may be that the tape is helpful, and that would be the tape of the interview, Ms. Mulligan, March 20th, 1990 in Belleville, page 13.

Q. And I direct your attention to the second from the bottom paragraph, Mr. Gaudreault. A. Yeah. Q. And as well there's page 177 of the notes, as I indicated before there's a reference as well. A. Yeah. Q. Does that assist in refreshing your memory? A. Yeah. Q. It's your memory that we're after, sir. The notes in particular may not be complete. What is your recollec-tion, sir, now that you've had the opportunity? A. Yeah I did. Q. And what did you say about anything in relation to Mr. Sauvé? A. The .12-gauge was Mr. Sauvé's weapon, weapon of choice. Q. So the 20th of March you indicated Mr. Sauvé's weapon of choice was a .12-gauge. Had you made any mention of Mr. Sauvé previous to that date, sir, or was there mention made by Lamarche or by you? A. There could've but I just -- it's such a long time ago. I'm not saying that there wasn't, there could've been but ..... Q. Sir, do you recall --- A. I'm pretty sure that there was but ..... Q. Do you recall a conversation on the 20th of February with Officer Lamarche, a telephone conversation?


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A. That's a long time ago. Q. Would it assist you, sir, to --- A. Yes it would. Q. --- make reference to notes that may not be complete, may be inaccurate, would it assist you in refreshing your memory? A. Yeah. Q. Page 125, for the assistance of the defence, of Heather Lamarche. There's a reference about midway down the page, sir, that you may be interested in. A. Yeah. Q. Again, sir, my question was do you recall if Mr. Sauvé's name came up? A. Yes it did. Q. And what is your recollection of how that came up, sir? What was said? A. Well, they were asking me who was working for Mr. Stewart at the time --- Q. Yes? A. --- and then I just named the names. Q. Okay. A. Rick Mallory, Denis Roy at the time, Jim Sauvé, which were collectors. Bruce Shields was also a collector. Q. Okay. So on the 20th of February you had mentioned, ---

A. Sauvé.Q. --- for the moment I'm only interested in

Sauvé's name, as a collector for Mr. Stewart.


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A. That's correct. Well, for Mr. Stewart but he was under Rick. See, like every dealer had one guy, like Rob Stewart used Denis Roy and Rick Mallory. Rick Trudel, if he had any problem, would talk to Rob or if Rob was unavailable he'd go directly to Jim Sauvé and talk to Jim. Jim would do what he's paid to do, which is collecting and --- Q. Yes? A. --- talking to people. Q. Okay. So there's these two references, sir.

While I'm waiting, sir, could you define what you mean by muscle? A. Muscle is collectors. If somebody owes me money, I can't get my money, give a call to Rob Stewart, Rob Stewart would send -- usually Rick would be the first one in line, Rick Mallory, and when Denis Roy was there he called also Denis Roy, and when you needed some different kind of work then I guess you call Jimmy. MR. COOPER: May I just have a moment, please, Your

Honour? Q. So you said to me a few moments ago, sir, that when Lamarche mentioned Sauvé's name you wondered how the hell she could know that but now you've determined that --- A. Yeah, I'm the one that told her. Q. --- you had given some indications.

A. Yeah. Q. But had you ever, sir, said that Sauvé was

there that night? A. No. Q. I may return to something a little bit later, Mr. Gaudreault, in this area, but I'll just leave it for now.


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Okay. When Detective Lamarche mentioned Sauvé's name you indicated already that you said other things as well. What other things did you say? Can you reconstruct that at all, sir, for the jury? Do you remember that conversation? A. Well there was a lot of conversation like there was -- it's -- I'm basically describing the whole group, what we were, what we were doing, where people stood from the chart that was made --- Q. Okay. A. --- and, like in other words the players, who were the players. Q. Okay. And do you recall whether Mr. Sauvé's name came up in that context as well? A. Yes it did. Q. Okay. Now getting back to the telephone call, sir, that you had with Lamarche where you wondered how the hell did she know that. A. Well I already told her. Q. Okay. How does that conversation start off, do you recall? A. Something somebody told her or she found out information that I wasn't truthful and then she started wringing me out, like getting nasty on the phone. Q. Okay. Is this before or after your involvement is revealed? A. That's when she found out my involvement was revealed. Q. Okay. So what was - I appreciate you're on the phone so your observations are limited to what you're hearing - but could you tell from what you heard, sir, what


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Lamarche's demeanour was at the other end of the phone after you for the first time admitted to her that you were the driver? A. Well she wanted to know the story, she wanted to know the whole thing and the truth but I wasn't gonna tell her the whole thing and the truth. So I was just gonna open some doors and let them go do their job from there. Q. Okay. On that day, though, sir, did you change your plan? A. Yeah I did. I told her I was the driver and I told her Sauvé was the shooter. Q. Okay. A. And then when she found out she asked me why I didn't tell her, why I didn't come clean, why would I keep something like that. Q. And why did you keep something like that? A. I didn't trust them and I wasn't gonna tell them everything. Look what they want to do. The first thing they want to do is they just proved a point back in Brockville before I came out and told everything, they wanted me charged, they wanted to throw me in jail with the four accused. There was no way I would've made it out of there. Q. Was that Brockville or Belleville, sir? A. That's Belleville. In Belleville. Q. Okay. After this point in time, sir, when you have the conversation with Officer Lamarche on the telephone, do you thereafter tell absolutely everything --- A. No. Q. --- completely truthful? A. No. Q. Why not?


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A. I still don't trust them. Q. Now let's talk about your trust, sir. You started to say a little bit earlier that there was talk of money.

A. Well I haven't seen ---Q. I'd ask you to get back into that.

A. I know that I've asked at one point, she says the contract was up being signed. I still haven't seen anything, plus it was totally different than what I asked for. They asked me what it would take for me to come forward with the information I knew. I told them something. Q. What did you tell them, sir? A. I told them $ 100,000., name change, no criminal record, job, a future for me and my wife, well, for me and my child at the time, and then they didn't -- Lou Okmanas didn't see a problem with that, no problem with that, that's reasonable. The next thing you know I meet him, it's not $100,000. no more, it's gone down to 50 thousand, now they want me charged, the Crown wants me charged, but then he went to bat for me so he kind of put me in a situation that I had to agree to his term, you know, now it wasn't my term no more, what I wanted, it was what they were gonna give me and that was bottom line "This is what we're giving you". In other words in my feelings and in my mind if I didn't take that offer they were gonna charge me and throw in jail just to teach me a lesson. So I asked "Should I talk to a lawyer?", you know, like how can you trust them lawyers, you know? You can't. Then for the longest time that's the way I was, I couldn't -- then I've asked to have -- okay, I said "Well this is what I wanted then, I want half of that put in the account for my child for future for her and give me the other half", so $25,000. was to be put


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in her account and the other 25 thousand was supposed to come to me. They started paying me $1500. a month, instead of $3,000. a month. Then there was never no money put in my child's account, the contract got lost or shredded down with the time. Now I hired myself a lawyer, which has been representing me for four years, to find out what happened and the contracts and all. Then I found out that apparently one of them was shredded, so now I have nothing left to prove what happened at the time because I remember what I asked, I asked for half the money to be given to me, the other half to be given to my child.

Now they put me in a situation that I have nobody, like no lawyers, like I don't know the law aspect of contracts and all that, and usually in the drug world your word is good, when you say something to somebody that's the way it goes, and now I'm totally deceived, totally bullshit, now I'm looking at being charged, so obviously I'm gonna sign the papers because I'm forced to sign it, you sign or we're gonna do -- like, in my mind I'm forced to sign it because this is it. Then after that when I finally get myself a lawyer, the lawyer start even to try to find out things, he had so many doors slapped in his face. Then after that I said the hell with it after all these years, I said fuck with them all, I'm gonna give CTV a news things, so I went down to CTV and, sure enough, I gave them an interview that the Witness Protection Program will never forget because the day after they kicked me out of the program. Then they told the CTV that I was a danger for the community living around me, which I knew that I was a danger from the word go because if we're all together in one room and people know where I am ---


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MS. MULLIGAN: Your Honour, I don't mean to interrupt this but Mr. Gaudreault has told us a lot of things about what they told the CTV and his lawyer had conversations with other people and got doors slammed in his face. I don't know where all this is going but it is an awful lot of hearsay and I don't even remember the original question. If there's a basis for it or it makes some sense in the case, that's fine, but we've gone on for a long time about what people have said to his lawyer and what his lawyer said to people and what he said to CTV and what CTV said -- what Witness Protection said to CTV I think, I don't know.

THE WITNESS: And what you said to my lawyer too, Ms. Mulligan.

MS. MULLIGAN: Your Honour, I was addressing the Court, not Mr. Gaudreault.

THE COURT: I understand, yes. MR. COOPER: Your Honour, I was under the

impression from Ms. Mulligan's opening that Mr. Gaudreault's state of mind was a very live issue.

THE COURT: All right. Try to ask shorter questions and keep the witness on the track you want to go on, a little bit.

MR. COOPER: Thank you, Your Honour, I'll do that. He has only in time exceeded the question I asked him.

Q. Mr. Gaudreault, we're going to review all of this in some detail but what I'd like you to do for now is


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to stick to the point in time where you were still with Okmanas. A. Yeah, I was questioned over the whole operation. I put in the name, all the name of all the key players, the collectors, which Sauvé was mentioned a couple of times. There was a lot of things mentioned, like we're talking back seven years back or eight years back, that's -- there was a lot of things mentioned back then and I know that I mentioned it a couple of times and at one point Heather Lamarche found out some things and she came straight out on the phone and told me those things which kind of blew me out because nobody was supposed to know that I was keeping Sauvé and myself or trying stay myself out of it. Q. Yes? A. And then when I had to come out and mention about Sauvé was the shooter and I was the driver and then it all started fitting in her book the way it should've fit from the time she talked to me but I wasn't gonna make it happen for her, all I was gonna do is give a little bit and try to stay out of it because look where I am today, and that's the last thing I wanted to do was to be where I am today. Q. We watched a video, sir, near the beginning of your testimony where you take the police on a drive and they video --- A. Yeah. Q. --- the experience. Was that after or before this telephone conversation with Lamarche where you reveal that you're the driver? A. That's after. Q. Okay.


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A. I think the conversation took place with her around - Février, Mars, Avril, Mai - around April, May, --- Q. Okay. A. --- somewhere about there where I came out. It could've been in May. MR. COOPER: Oh, Ms. Mulligan, do you want the

little bit of French translated at this point? MS. MULLIGAN: I didn't even hear it.

THE INTERPRETER: February, March, April, May. THE WITNESS: Well because I got to get my months,

eh?, in order. MR. COOPER: Sure. I want to make sure the record

was complete. Unfortunately I lost my train of thought.

Q. Okay. The drive, as we've heard, when you saw it was in June, so this was -- the conversation with Lamarche was, by your estimation, about the month before; is that correct? A. That's correct. Then I came down and then there was something when I was in -- I was in Brockville when we went for the ride and I was in Brockville when I went for the polygraph. Q. Okay. We don't need to get into that, Mr. Gaudreault. MR. CRYSTAL: Your Honour ..... MR. COOPER: Well perhaps before Mr. --- MR. CRYSTAL: Maybe we should ask the jury to leave,

Your Honour.THE COURT: All right.

MR. COOPER: That's what I was going to suggest.

--- Whereupon the jury retired at 12:28 p.m.


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--- In the absence of the juryMR. COOPER: Mr. Gaudreault, if you could excuse yourself.THE WITNESS: Why? Did I say something I wasn't supposed to say or what?MS. MULLIGAN: Mr. Gaudreault, please.THE COURT: Well, we'll see, Mr. Gaudreault.

I don't know either. I have to wait. We all have to

wait.

--- Whereupon the witness retiredMS. MULLIGAN: That, Your Honour, in my submis-sion is the problem with the Crown not trying even to control its witness. We have the wit-ness in answer to no question at all, there was no question asked, in fact the last question asked by Mr. Cooper was "So this phone conversation, by your recollection, took place a month before the drive?" and the witness said "Yeah. Correct" or "Correct". And then he's allowed to just chat.THE COURT: Well, he was putting an association at the time around Brockville, that's what I got out of it. That was the time frame in which he was thinking about.MS. MULLIGAN: Well, he went on to say ---THE COURT: And then he said "this happened in Brockville" and "that happened in Brockville".MS. MULLIGAN: Yes, and I don't expect that any jury is going to believe that a man who took a polygraph and failed it would be called by the Crown to be a representative of the state, of


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the community. Now that he has said that, in my submission we are in a mistrial position, and I'm asking for a mistrial. Mr. Gaudreault has been blurting things. It was bad enough, and, you know, there's a certain amount of learning tolerance I suppose, that one thinks well maybe we can cover that off in cross, maybe instructions from the trial judge, so you tolerate a certain amount. One of them was "Oh now Mr. Stewart's told me about other ways to dispose of bodies", Your Honour recalls that one. Now we have a polygraph blurting, and Mr. Gau- dreault knows full well he said something wrong because he knew on the last occasion, it's men-tioned in his evidence that he knew he wasn't supposed to mention polygraph, so for him to stand and say "Did I say something wrong?" was just silly, frankly.

So, Your Honour, I'm asking for a mistrial. There

is no cure for that. There is no way that Your

Honour can cure that in instructions - polygraphs

and lie detectors, those kinds of issues. That is

the very reason we don't allow that in is because

they are unreliable and they do mislead, and there

is no way -- it's not good enough that he didn't

say 'I passed the polygraph'. This jury is not

going to believe he failed it and the

representatives of the state, as Ms. Bair put it in

her opening, the representatives of the community

would call Mr. Gaudreault to give evidence, having

failed. So,


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in my submission, the trial has to end and start over.MR. CRYSTAL: Your Honour, just before my friend concludes I must say, Your Honour, that under R. v. Ambrose, the Ontario Court of Appeal case that I won't cite but Your Honour knows that you are the guardian of a fair trial. Time and time again we have heard Mr. Gaudreault engage in a stream of consciousness. It has been obvious that the Crown attorney has not controlled their witness and, Your Honour, when the Crown attorney fails to control their wit-ness it falls to the Court.

My point is, Your Honour, that this witness has an

agenda and has blurted out things a number of times

but this in particular, Your Honour, I would submit

to you - I agree with my friend - I just want to

strengthen the point that this witness has said

something now which has taken us to the point of no

return and the issue falls to the Court as to what

limited role you can play in order to correct this.

It's the same thing that arises in a trial when

someone starts to talk about the penalty that the

accused will face if they should be convicted. I

would submit to you that is grounds for an

immediate mistrial.

THE COURT: Mr. McKechnie?MR. McKECHNIE: I'd agree. It seems to me that it was, given the prior history of Mr. Gau- dreault with respect to mentioning these things, it was a


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deliberate attempt to get this(In the absence of the jury)

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before the Court, his belief that somehow there's some scientific reliability from that particular polygraph test. And the further problem is that that test was rather a limited one and ambiguous in certain respects. Obvious-ly it can't be brought into the evidence and its mention does leave the jury with the impression, especially now that there's been an objection, and obviously there has to be an objection, but when the jury is sent out then they can start to speculate as to whether or not -- what is being kept from us and they would have to conclude from that that that polygraph is being kept from them and that it must have been one that he passed.THE COURT: The Crown?MS. BAIR: Mr. Crystal's premise is faulty in that our witness has been out of control and no efforts have been made to control him. The wit-ness has not been out of control. He has not been generally unresponsive. He often takes his answers longer in time but in a distance that will ultimately be followed by the Crown anyway. His answers have been appropriate 99.9 percent of the time. We're just checking on this particular circumstance, Your Honour, in that I believe it was Mr. Gaudreault who volunteered to take this polygraph, so there's some argument by analogy to be made with the recent Ontario Court of Appeal case that where an accused volunteers to take a polygraph that may in fact be admissible.


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As far as mistrial is concerned, I suppose we could adjourn and argue it fully. In my respectful submission it doesn't warrant that much time out of our days. Quite frankly, if the Court were to tell the jury that polygraph results are not admissible in a court because they are not scientifically reliable, that would take my friends where they want to go. Mr. Gaudreault has not said that he passed the polygraph. He has located a date, a place and time by virtue of this event, it's when he took the polygraph. He can be told not to mention it any farther. In my respectful submission, he has not exceeded the balance of what's appropriate even in this case.

My friend says the jury must conclude that he passed the polygraph. Hardly. We have a witness who's telling us, and we'll hear it confirmed from Detective Lamarche, that he lied to the police for six months and we're calling him. After the cross-examination they'll hear more of that. I think that a polygraph, particularly if the Court is prepared to put it in context for the jury, a polygraph that is scientifically insufficiently reliable to be led in court doesn't take them any farther than they ought to be, so I don't think it's worth really discussing beyond this.MS. MULLIGAN: Your Honour, Mr. ---MS. BAIR: Just a moment.MR. DANDYK: What may be of assistance is Regina v. B.(S.C.), the Ontario Court of Appeal, 16th


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of October '97. It's 10 C.C.C. (5th) at 302. Defence wish to lead evidence of after the offence conduct going to, I suppose, establish consciousness of innocence, and it was found that evidence of an offer to provide blood and hair was admissible, however evidence of polygraph was not admissible unless a foundation was established wherein the accused believed, and evidence will be led, that in fact a negative result could be used against him. So, that being said, for another witness, if a foundation were established, then the witness believed the evidence could be used, theoretically, in fact it may be admissible. So the issue becomes -- a further question could potentially be asked. Now I know there's the caselaw of Beland and Phillips and that entire caselaw about polygraph being admissible, but if a witness, at least from this recent case from the Court of Appeal, believed that in fact a negative result could be used against him or her, then potentially it has some weight. Now, maybe you balance it later on other bases but this is sort of the first case that suggests if that foundation is established, in B.(S.C.) it wasn't and no evidence was led to that effect so it was found to be inadmissible, but it suggests that's the law.

Beyond that, as I understand at least factually, all he said was that he offered or he did take a polygraph, the results of which have not been given. Now it's a question whether every-


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body wants to open doors wider, but I mean I just was alerted. I brought in my file, I haven't made a copy of this.MS. MULLIGAN: I'm well aware of the case, Mr. Dandyk. I don't need a copy.MR. DANDYK: Oh, okay.MS. BAIR: And to confirm factually, Your Honour, it was a polygraph at the request of the accused.MS. MULLIGAN: And factually, Your Honour, the witness Mr. Gaudreault is not an accused. It doesn't go to consciousness of innocence. It's a discrete category of evidence and has nothing to do with Mr. Gaudreault's evidence or Mr. Gaudreault blurting it out. That would be totally impermissible boostrapping and bolstering, in any event, if the Crown were to try and lead it for that purpose. That case deals with a case where it goes to establish the after-the-fact consciousness of innocence of an accused person. Entirely, completely different, it has nothing to do with what Mr. Gaudreault just did in the box.

As far as Mr. Gaudreault having volunteered to take it, so what. That isn't the point. If any of these jurors could reasonably come to the conclusion that having taken a polygraph he must have passed it, and if we don't tell them the results, we tell them that polygraphs are not admissible in court because they are scientifically not reliable enough to meet the standards of court, we've already heard some


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evidence from police officers about fingerprints, for example, where they don't meet the standards, where they could in a court of law but they were satisfied, and now we're going to do the same thing with this. He's mentioned that he had a polygraph. We can tell them it doesn't meet the standards for admissibility in a court of law and they ought not to consider it further, but they will. You know, it was like when we started this case, Your Honour, and we were talking about I think at one point newspaper reports because there was some inaccuracy in the newspaper reports potentially, and Your Honour had said, you know, 'it doesn't matter how many times we tell them not to read the paper, sure they're going to read the paper, they're curious, they're interested'. It's like when Mr. Gaudreault mentions polygraph and then we tell them not to consider it further, it's like telling them not to think about pink elephants. They're going to think about pink elephants. Their experience with polygraph is what they, I assume, ---THE COURT: Well don't prove too much, counsel. I did half a week in Toronto on leaves to appeal. One of the favoured arguments is counsel is to prove too much. When your argument proves it, then you shouldn't ever say anything to them because they don't follow anything. We obviously can't go that far.MS. MULLIGAN: No, but -- Your Honour, I apologize if that's where it's going but I'm not


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trying to go that far, but this is a polygraph, this is what we see on t.v., people are hooked up, it measures the truth, which is their job, and it's not Mr. Gaudreault's job to give them assistance with that by blurting that out, and in my submission ..... Personally, I hate the prospect of having a mistrial. I think we have a good, attentive jury. Mr. Gaudreault has, in my estimation, and it's just my opinion, but as far as Mr. Stewart's interest goes not performed as well as he might have or as well as he did in the last case for the Crown. So a mistrial is not something that I'm clamouring for but it's something that needs serious ---THE COURT: Maybe you'd like to take five minutes and discuss it with your client which you haven't had the opportunity of doing yet, given your comments about the jury.MS. MULLIGAN: I can do that, Your Honour, but in my submission this situation in law demands and dictates ---THE COURT: All right.MS. MULLIGAN: --- a mistrial and that ---THE COURT: No, I wasn't trying to trap anybody. I just thought you hadn't had a chance to discuss it with your client. Sometimes clients have a different view.MS. MULLIGAN: I think in this case the prejudice to the fair trial rights of my client is so great, but perhaps Your Honour is right and perhaps we should take five minutes and I can


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speak with Mr. Stewart further about the matter.THE COURT: All right, we'll take five minutes.

--- Whereupon court recessed at 12:45 p.m.

* * * * * * * *

--- Upon resuming at 12:53 p.m.

--- Accused present MS. MULLIGAN: Yes, Your Honour, Mr. Dandyk has come

in with a bundle of caselaw. I'm going to need to

do some research. Mr. Dandyk is going to give me

some copies of the authorities that he wants to

rely on. I wonder if perhaps we break now and do

that over the lunch and come back and address Your

Honour at -- maybe we can come back at 2:00 o'clock

as opposed to 2:15, if Your Honour wishes.

THE COURT: Is the Crown now seriously asking that I apply the case to a witness and that you're going to go on and try to establish a foundation to adduce this evidence in front of the jury? MR. DANDYK: I don't think we are, Your Honour. THE COURT: Okay.MR. DANDYK: I don't think we are. I mean I can

indicate if the Court wishes to refer to any case

whereby a strong charge was given or a strong

caution was given or if there was any caution

given, I can refer to a case to assist the Court if

the court wishes to see a recent case on that

point, as opposed to a mistrial,

---


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THE COURT: Okay. MR. DANDYK: --- and that was Siu and Lee, 1998, 124 Canadian Criminal Reports (3d) at 301, the B.C. Court of Appeal on this point if that assists. I think that's the only further thing. I've been told we're not, so that's --- MR. COOPER: Just one clarification, Your Honour. Mr. Gaudreault has just testified this morning he thought he was going to be accused with this murder. Okmanas, Inspector Okmanas had told him that that was going to take place or it was a possibility. In that context Mr. Gaudreault volunteered to take a polygraph. It's my respectful submission the Court of Appeal case, we're not going there today, but it's very close to being right on point. The fact of the polygraph or the fact of the volunteering for the polygraph could well be admis-sible but that's not a point that we're going to argue right now in any event, but we certainly reserve our right to renew this argument at a later point in time should it become relevant to any other developments. We're going to face it again with respect to Mr. Gaudreault and the whole Dougherty gun issue because that's another occasion where he doesn't want to be involved, he takes the polygraph, doesn't like polygraphs, takes the polygraph, volunteers for it, takes it, and then subsequently or just previously he testified in our other courtroom before Your Honour during one of the motions and ultimately it turns out that he's


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believable in that, but he, I know from chatting with him, took strong exception to this, having to be put through this polygraph, not- withstanding he volunteered for it, but he took strong exception to Dougherty putting him in a position where he had to volunteer to take a polygraph. So this is something that, in particular with the last one, meant a great deal to him and how we deal with it at that point, which may be later today or tomorrow, will have to be determined but I don't think that's as much of an issue for Ms. Mulligan because it's not about this issue, it's not about his involvement in this case, so to speak, it's about the other issue with the gun in the river. THE COURT: All right.

Ms. Mulligan, what did you want to do? MS. MULLIGAN: Your Honour, I should advise you that I did seek instructions from my client and my instructions are consistent with the submissions I've made so far.

As far as how or when or whatever about Dough- erty and the polygraph we'll leave that issue, as Mr. Cooper said he was leaving it for the time being. And with respect to this one, just so I'm clear from the Crown attorneys, they are not arguing that they want the result in in this case or that they want this evidence to go before the jury pursuant to what Ms. Bair was saying earlier I guess. I just want to know


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what I'm researching so that I don't come back and then we have to go away again. MS. BAIR: Not now. THE COURT: Perhaps not now. Perhaps not now. Perhaps not on this particular issue.

MS. MULLIGAN: Okay. Well, ---THE COURT: So my sole decision is mistrial or no mistrial, I guess, as it now stands? MS. MULLIGAN: Yes.

THE COURT: All right.And is there anything useful that can be researched beyond the case that the Crown has?MS. MULLIGAN: Yes, I think there is some caselaw.

I haven't had a chance. My friend referred to Siu

and Lee. Mr. Crystal has just gotten it and I

haven't had a chance to read that, first of all, to

make submissions on it with respect to instructions

versus mistrial. It seems to be also a case that

deals directly with polygraph examinations, and

Beland and Phillips and Phillion, and it is so

recent and it is of the Court of Appeal but it

might be, I don't want to mislead, it's the British

Columbia Court of Appeal but it may be of some

assistance.

MR. CRYSTAL: Your Honour, I can advise the Court that in that Siu case that the Court, while not bound to declare a mistrial, the Court of Appeal discussed the timely rebuke of the witness, and also an instruction to the jury to disregard the


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evidence regarding the polygraph.


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THE COURT: All right. I wonder if I could have that case over the lunch hour since obviously counsel will be referring to it.

MR. DANDYK: Your Honour, I only have the headnote so I'll go make a copy and I'll make sure it goes upstairs. THE COURT: All right.

And can we do it -- do you think we can do it in 15

minutes or should we come back at quarter to? MS. MULLIGAN: Well I'm just not sure that I can get the work I have to get done in less than an hour. THE COURT: All right.MS. MULLIGAN: I won't take any time for lunch but I'm just not sure that I can get it all done. MR. DANDYK: I'll refer to some additional caselaw that might be of assistance. THE COURT: Well, all right, we'll come back at 2:00 then. MR. DANDYK: To avoid making copies, I can make copies of Beland and Phillips, Siu and Lee, Alexis. MS. MULLIGAN: Ambrose. MR. DANDYK: Well, you can provide some. THE COURT: He doesn't want to have to photocopy any cases with nothing good in them, Ms. Mulli- gan, please.MR. DANDYK: Your Honour, I can always find something in those cases.


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THE COURT: With your imagination, Mr. Dandyk, I'm

quite sure.


* * * * * * * *

--- Upon resuming at 2:05 p.m.--- Accused present

THE COURT: I want to apologize to the officers, I

completely forgot about the 2:00 o'clock business.

The last time we did this at 2:00 o'clock they had

some difficulty getting Mr. Stewart and Mr. Mallory

their lunch, so I hope

it wasn't quite so bad today.

Ms. Mulligan? MS. MULLIGAN: Sorry, Your Honour, I had a few extra

copies and I don't know what I've done with them now, if I left them in the library or ..... MR. DANDYK: Your Honour, I've provided cases and I've given an additional case which was referred to by Justice Hill in Alexis, so I've provided a copy of that. It's similar to Smith that defence action can open doors, so that's the principle there.

THE COURT: All right. MS. MULLIGAN: I don't know, I had copied four

copies of this case, Your Honour, and I don't have them here. In any event, maybe I can begin. I know Mr. Dandyk is familiar with Phillion he mentioned I think this morning but I'll pass up to you.


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MR. DANDYK: I'm aware of it but I didn't make a copy of it. MS. MULLIGAN: No, I did, two of them, but it was a bit of a rush, Your Honour. THE COURT: All right.

MS. MULLIGAN: In any event, just to go back Mr.

Gaudreault has said unresponsive to any question

that he took a polygraph and I have indicated in my

submissions earlier that in my submission it

would be unrealistic to think that the jury will

assume he failed that polygraph. In addition, what

exacerbates that problem is that I cannot

cross-examine Mr. Gaudreault on that point, and

this jury is an intelligent jury, they're not going

to wonder for very long why I haven't gone there. I

think they would infer, and correctly, that I'm not

going there because of the results of Mr.

Gaudreault's -- that I'm scared of the results of

his examination. I haven't put to him that he

failed, and I don't put to him that he didn't do

well on it or anything like that, I think we can

reasonably assume that they will infer there's a

reason why I haven't. The silence on the issue will

be telling to them.

With respect to the cases, Your Honour, --- THE COURT: What do you do with the logical point that whether the answer is yes or no, he passed or he didn't pass, it's equally unscientific?


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MS. MULLIGAN: Well, I mean that's certainly why it's not admissible in a court of law. But the


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other reason it's not admissible in a court of law is because it's very prejudicial to the accused because jurors tend to have more lay persons' idea of a polygraph examination and they tend to hold fast to their beliefs in these sorts of gadgetry and things like that, and that's why it doesn't go in because it is unreliable, and if we let it in and we just tell them it's scientifically unreliable we still run the risk of prejudice because they have their own -- they come to this experience with their own beliefs and their own understanding of things such as lie detector tests. It doesn't make it less prejudicial, in my submission, and in this case where the entire case really hinges on Mr. Gaudreault's credibility, yes there's some corroboration from Mr. Gau- dreault, there's bits and pieces that the Crown will bring in to surround Mr. Gaudreault and corroborate him but, really, I mean there's been no secret about that, Mr. Gaudreault is the case, his credibility in central, and this central witness whose credibility is central has now blurted this out.

I spoke with Mr. Cooper and Mr. Ralko and I don't think there will be any dispute about this, I can call Detective Ralko if necessary, but my understanding from them was that before the last trial Mr. Gaudreault was told or knew that he wasn't to raise the issue of the polygraph and in preparation in this case they couldn't recall the same sort of instruction,


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but what they could recall or what Detective Ralko --- THE COURT: Well, all right, I'll just save you a lot of time. What difference does the animus of Mr. Gaudreault make? Does it make a difference? Does the caselaw say it makes a difference? MS. MULLIGAN: Well, I think ---THE COURT: I mean it's out before the jury, isn't that the issue? MS. MULLIGAN: Yes, Your Honour, but I also think that when we're looking at prejudice to the accused and what occurred, as far as the Crown has, in my submission, some responsibility this is their witness, I can't call a witness ---THE COURT: Well, that's a different issue. MS. MULLIGAN: --- I can't call a witness and have them say things or let them say things without first warning them that there are things that are inadmissible and I'm aware of that. In this case I'm told that Detective Ralko, and I'm not sure if it's him that said it, but Detective Ralko told me that Mr. Gau- dreault was told that results of polygraphs were not admissible, and nothing stronger than that, in preparation. In my submission there ought to have been, I'm not saying it was done on purpose but there ought to have been, it's the responsibility of the Crown to make sure as far as possible, especially with a witness like Mr. Gaudreault, that he doesn't blurt things


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that are inadmissible and prejudicial to a fair trial. THE COURT: M'hmm-hmm.MS. MULLIGAN: And it is -- the animus in Mr. Gaudreault may only come into play, in answer to your first question, Your Honour, with respect to if Your Honour does not declare a mistrial in this case and if Your Honour goes on to adopt, I suppose, the position in Siu, the cases Your Honour had over the lunch hour, the B.C. Court of Appeal case, Siu, that case suggests that an immediate rebuke to the witness and an instruction to the jury may have dealt with the issue in that case and because that wasn't done, so the rebuke to the witness may have something -- his animus may have some bearing on what the nature of the rebuke is but I'll come to that down the road.

THE COURT: All right. MS. MULLIGAN: Just turning to that case, Your Honour, I submit we're in a much much different situation, a much more prejudicial situation than in Siu and Lee. But even in Siu and Lee the evidence that came out there the Court held was prejudicial or so prejudicial to a fair trial of the accused that the case had to be returned for a new trial.

In Siu and Lee, the witness, the main witness is

Mr. Ivall was a witness of disreputable character

and all kinds of good things. Half the case deals

with the Vetrovec warning, Your Honour, but the

evidence that came out is set


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out in pages 312 to about page 317. I'm not going to go into it in detail through those passages but just to summarize, what happened in that case is that one officer, a Detective Clarke, when he's testifying in a manner that the Court characterizes as not responsive to the question being asked, testifies that Mr. Siu or, I'm sorry, Mr. Ivall had offered to take a polygraph. He was asked by one of the defence counsel something like "So Mr. Ivall had a free hand, you weren't checking on things that he was saying, he was just giving you infor-mation", something to that effect, and his response was "Well Mr. Ivall offered to take a polygraph." Later on defence counsel didn't object to some point after that. There was an argument for a mistrial; it didn't happen. There was an argument then for an instruction to the jury and the trial judge indicated that he would do it later on after a series of witnesses had testified, so it didn't happen at the time.

If we turn to page 326 that's where it really starts as to evidence as to the polygraph and

other oath-helping evidence, but to finish the summary of the facts what happens then is defence counsel then is able in that case to undo, I suppose, some of the damage in the offer, it wasn't even a polygraph test completed but in the offer to take one by asking another officer "Well, he wouldn't have been a very good candidate for a polygraph test, he


2485

likely wouldn't have passed it", and the other officer agreed that Ivall likely wouldn't have passed a polygraph test. We, of course, don't have anything to neutralize the fact that Mr. Gaudreault blurted out that he took a polygraph test like that. I can't ask an officer 'well, so he failed it' or 'he failed', you know, I can't do that, so it's not the same situation.

If we turn, as I said, to page 326 the Court begins

to speak about the issue:

The appellants say that evidence from the police officers concerning Ivall's offer to take a polygraph examination, and as to their belief in the credibility of both Ivall and Kawaguchi, was inadmis-sible, and that the learned trial judge did not adequately instruct the jury to disregard the inadmissible evidence.

I should add that there was another portion of evidence given that one of the officers had faith in or believed in those witnesses. He believed they were telling the truth to him.

Counsel for the Crown says the evidence as to the polygraph was elicited by Lee's counsel in cross-examination ...

Again a different situation than we're facing here. This didn't arise out of cross-examination.

... and that any harm caused was undone by the officer's subsequent testimony that Ivall would probably have failed the polygraph examination. Moreover, although Siu's counsel initially moved for a mistrial, the appli-cation was not renewed at the end of the police evidence, and counsel did not mention the matter in their addresses and did not


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clearly ask for a direction by the judge to the jury con-


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cerning the polygraph evidence before the judge charged the jury. The Crown says the evidence as to the officer's belief in Ivall's and Kawaguchi's credibility were satisfactorily dealt with in the judge's charge.

At paragraph [61]: There is no doubt that the evidence of

Detective Clarke concerning Ivall's offer to take a polygraph examination was inadmissible.

He relies on Beland and Phillips and Phillion v. The Queen.

So here just the mere offer to take a polygraph is inadmissible. In our case we have the fact that a polygraph was taken; it's another step further. My friend said well he didn't give the results. Well, there's no results except a probability of failure in the Siu case.

Nor can the evidence be excused on the ground that it was given in answers on cross-examination. The answer that "Mr. Ivall offered to take a polygraph" was not responsive to defence counsel's question. Once the answer had been volunteered, counsel for Lee apparently felt obliged to do what he could to diminish the damage done. However, at the conclusion of Detec-tive Clarke's evidence, counsel for Siu moved for a mis-trial. Although the Crown opposed the mistrial motion, Crown counsel properly took the position that the correct course for the judge was to instruct the jury right away to ignore the inadmissible evidence.

The Court then refers to Ambrose which I think Mr.


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Crystal mentioned this morning. The quote there is:


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In a criminal trial there is a duty on the trial judge to exclude inadmissible evidence even though adduced by counsel for the accused or not objected to, and should inadmissible evidence be adduced, the trial Judge should either instruct the jury immediately to disregard it or, if it is of so prejudicial a nature that the jury would not have the capability of disregarding it, he should discharge the jury and order a new trial.

And then it goes on to cite the Supreme Court of Canada cases that have endorsed -- or a Supreme Court of Canada case and the B.C. cases that have endorsed that view.

As we see at paragraph [63] "the trial judge" in Siu, did not take that course but "said he would tell the jury 'in due course' to ignore the inadmissible evidence." Nothing happened and then three days later we had the evidence in that case of Detective Pranzl who agreed that Ivall "was poor a candidate for the polygraph and was likely have failed it."

We're not going to have any kind of neutralizing evidence like that or anything that will assist us in that way.

The jury could only have thought at the conclusion of all the evidence that there was nothing wrong with the police testifying as to Ivall's offer concerning the polygraph, and that whether he would have passed such a test or not he had offered to take it, and his offer was a fact from which they could infer his truthfulness.

The matter did not come up in the jury's


2485

presence again. On 11 March, counsel for Lee referred to the issue of the


2485

polygraph, but did not clearly ask the learned trial judge to give an appropriate instruction. By that time the harm was already done, and might well have been compounded by an instruction to the jury reminding them of the offending evidence one week after it was first given.

The Court goes on at [66]: Having read and reread the tran- script,

I can only conclude that the answer given by Detective Clarke was a deliberate attempt to boost Ivall's credibility by evidence which the officer must surely have known was inadmissible.

Your Honour, the demeanour and conduct of Mr. Gaudreault, his comment to me "Good luck, Mulligan", in my submission it all adds up to he sees it as a context and it was deliberate, his blurting that out, in my submission. Your Honour can draw whatever inference you want, but clearly he was told about this at the last trial and there was another discussion at this trial and it was not responsive to the question. The fact that he took the polygraph had nothing to do --- THE COURT: You said that before about there was some comment at the last trial. During the trial or at the trial? I mean you seem to know about it but my memory doesn't twig. MS. MULLIGAN: I recall there being a discussion not in front of the jury but I recall reading sub-missions about it or some discussion about it but I can't tell Your Honour where it is exactly, I don't have my computer here with me. THE COURT: Okay.


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MS. MULLIGAN: But certainly based on what Detective Ralko and Mr. Cooper told me he was certainly told and was aware that he was not to say anything about the polygraph at the last trial, and he was told here that the results of the polygraph were not admissible, and I think it's consistent with the witness' conduct with respect, Your Honour, with the things he's been blurting and witness animosity towards Mr. Stewart and myself I think it's consistent.

In any event, if we move on in that paragraph [66]: While the judge was not bound to declare a mistrial as asked for by counsel for Siu, the only proper course would have been a timely rebuke to the police officer, ...

And I suppose that's what we'll come to if Your Honour chooses that as an alternative remedy perhaps.

... a timely rebuke to the police officer, and a prompt and clear instruction to the jury to ignore entirely the officer's inadmissible answer. The learned trial judge's failure to do so leaves a lingering doubt that the jury's acceptance of Ivall's testimony, central to the Crown's case, was based on an improper and inadmissible consideration.

There was other evidence as to belief and credibil-

ity in the next paragraph. The Court, at least this

Justice, said:

While this evidence should not have been given, it was, I think, less harmful than the polygraph evidence and, in any event, the judge told the jury that the officer's


2485

opinions were of no use in assessing Ivall's and Kawaguchi's credibility.


2485

There were also comments in Crown counsel's address in this particular case, I won't go through that section, I'll just take you to paragraph [74]:

In my respectful view, ...

This is whether to apply to proviso or not. In my respectful view, that disposition

is not open to the Court in the circum-stances of this case. The main issue at trial was Ivall's credibility. The jury were denied a fair opportunity to assess that issue because no adequate Vetrovec warning was given, and no instruction on the offer of Ivall to take the polygraph was given. The unfairness of the trial was compounded by the erroneous instructions to the jury ...

There was other evidence and he goes on.

There's a concurring judgment where it's just a

shift in focus. Mr. Justice Esson, I believe it's

Mr. Justice, --- THE COURT: Yes it is. MS. MULLIGAN: Okay. Mr. Justice Esson put the emphasis on the officers testifying that they believed in Ivall's credibility as being the more serious problem I think on the whole. But at page 331, actually beginning at the bottom of page 330 it puts it all in context so Your Honour knows what issues they were looking at. Page 330 paragraph [80]:

But those shortcomings did not stand alone. The scales of justice having been unbalanced as they were by the oath-helping by police witnesses and the attack on the integrity of defence counsel in the address by Crown counsel, it would be unrealistic to


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conclude that no substan-


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tial wrong or miscarriage of justice occurred. The accused and Ivall were persons of bad character, as were several other Crown witnesses. For that reason, it was particularly important that the credibility of Ivall and the other Crown witnesses not be buttressed by unfair and improper tactics by police witnesses or the Crown.

Clearly Detective Clarke should not, by an unresponsive answer, have brought out the matter of the polygraph test. But, in my view, the more serious aspect of his evidence was his assertion that he believed Ivall to be truthful.

And he goes on to say -- to talk about the high regard that the public in general, and no doubt members of the jury, hold police officers in and properly so, and that it is regrettable when a police officer creates the potential for them to unfairly prejudice the fairness of the trial.

At paragraph [83]: All too often, the Crown must base a

prosecution on the evidence of witnesses such as Ivall, persons of low character and suspect motives. It is not wrong to call such evidence, provided of course that the Crown is not aware that it is false. But it is wrong for the Crown, in which for this purpose I include the police, to use its reputation for integrity to give the appearance of certifying the truthfulness of the evidence called by it.

Now this wasn't obviously a police, this was Mr. Gaudreault, but ---THE COURT: Obviously that is a more serious


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dimension than this case.


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MS. MULLIGAN: Yes. The only reason I go through

that is because, Your Honour, I'd made the sub-

mission that this is a witness put up by Ms. Bair

and Mr. Cooper, Mr. Dandyk, and as Ms. Bair said in

her opening this investigation really belonged to

Detective Lamarche and Detective Riddell. So are

those five good people, representatives of the

state just as the officers in the Siu case, going

to put a witness before this jury that had failed

his polygraph test. In my submission, a reasonable

jury or a reasonable juror would draw the inference

that they wouldn't, particularly since we know the

law, at least amongst ourselves, that the Crown

cannot call someone they believe to be lying, and

the Crown clearly believes in this polygraph

results, they've said it many times in argument.

Finally at paragraph, I won't go through every-

thing, but at paragraph [86]: In respect both of the oath helping and

the address by Crown counsel, the defence applied for a mistrial. In each instance there were reasonable grounds for that application but in each case the trial judge refused it. That is very much a matter of discretion for the trial judge and I would not find in either instance that it was error in law to refuse that extreme remedy. But, in each case, the circumstances called for prompt intervention by the trial judge to undo the damage by advising the jury of the impropriety and by instructing them to ignore the inadmissible evidence and improper sub-


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missions. In some cases it will be sufficient to deal with such a matter in the


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course of the charge but this, in my view, was not such a case. That is most clear in the matter of the Crown address ...

and I won't go through that. So in the end result the concurring judgments of

that Court that in the circumstances of that case

at the very least there had to be an immediate

rebuke and instruction to the jury. I have made

submissions, Your Honour, to try to persuade you

that the circumstances of this case are far more

serious than the circumstances in that case in

that we don't have evidence that Mr. Gaudreault

probably would've failed the polygraph, and we

don't have evidence of a mere offer, we have

evidence of the taking of the polygraph exam. So

those two regards it's very much different and very

much more serious in this case.

Your Honour has received the case of Beland and

Phillips, a Supreme Court of Canada decision on the

issue of prior consistent statements and the

willingness to take a polygraph test. And the case

refers to, and maybe I don't need to worry too much

about Phillion because the Supreme Court of Canada

at page 485 about the third paragraph down refers

to:

The leading case in this Court con-cerning the admissibility of polygraph evidence is Phillion v. The Queen in which it was held that such evidence should be rejected.


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And then he goes on to quote from that case. On

the following page, page 486, the Court turns to

the general rule against oath-helping:

The Crown appellant ... and in this case bearing in mind it was the Crown that appealed the admissibility of the accused's offer to take a polygraph, and to have taken one I think is the end result. I'm sorry, I didn't get time to get all the facts down pat over the lunch hour, Your Honour. Yes, he did in fact take it. What had happened is I believe the accused when testifying indicated he was willing to take one and then following the close of the case the trial was adjourned and he came back and asked to reopen to admit the results of the polygraph he had taken. The Crown appealed and argued

... that the admission of polygraph evidence offends the rule which prohibits a party from presenting evidence which has, as its sole purpose, the bolstering of the credibility of that party's own witnesses. This is sometimes referred to in the earlier cases as oath-helping. There does not appear to be any decision of this court which has dealt specifically with the rule, but there is other substantial authority supporting it. The leading decision on this point in Canada is R. v. Kyselka ...

and then it goes through that case, talking about how "... the credit of any witness may be impeached by the opposite party" but that the Crown or the party calling the witness is not entitled to testify in such a way or to call such evidence to support the oath as an oath-


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helping. It also offends the polygraph evidence, that he took a polygraph offends the rule against past consistent statements and you see that at page 489. The Court says:

The rule against oath-helping is also consistent in principle with other rules of evidence which in some degree may be said to overlap it and which are based on similar principles. An example is the rule against the admission of previous consistent statements of a witness. McWilliams discusses this rule, at p. 353, and refers to the frequently quoted words of Neville J. in Jones v. South-Eastern and Chatham Railway, that "... statements may be used against a witness as admissions, but ... you are not entitled to give evidence of statements on other occasions by the witness in confirmation of their testimony". This was said in the context of a case where an injury was alleged to have been suffered by the plaintiff while at her work, and it was sought to adduce evidence of a statement she had made after the accident to a third party.

McWilliams, the Court says, also cites the case of

Campbell which has been before Your Honour already

today and refers to Wigmore.

It also talks about, and I'm just skipping over

them, but it also talks about character evidence

and expert evidence. The Court refers to all the

principles in these areas as they overlap

surrounding this issue of leading evidence with

respect to polygraph examinations and comes to the

conclusion on page 494, the first full paragraph

starting with "Here":


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Here, the sole issue upon which the polygraph evidence is adduced is the credibility of the accused, an issue well


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within the experience of judges and juries and one in which no expert evidence is required. It is a basic tenet of our legal system that judges and juries are capable of assessing credibility and reliability of evidence. This question has been the subject of a comment by Michael Abbell in "Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials ..."

And it gives the cite there.

At the bottom of the quote: I adopt these words, and I am therefore of the view that polygraph evidence aimed at supporting the credibility of the accused is not receivable as evidence in Canada.

In conclusion, it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judi-cial process where it is employed as a tool to determine or to test the credibility of witnesses. It is frequently argued that the polygraph represents an application of modern scientific knowledge and experience to the task of determining the veracity of human utterances. It is said that the courts should welcome this device and not cling to the imperfect methods of the past in such an important task. This argument has a superfi-cial appeal but, in my view, it cannot prevail in the face of the realities of court procedures.

He indicates that the "... view is not based on a

fear of the inaccuracies of the polygraph." They

weren't supplied with sufficient evidence to reach

that conclusion.

My friend has provided the case of Smith, I'll just


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make brief comment on it because I haven't had a

full opportunity to review it. It's the


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Nova Scotia Supreme Court Appellate Division from 1985 where an accused was charged with possession of a stolen motor vehicle. The headnote says "In a statement to the police he indicated they did not know the vehicle was stolen and offered to take a polygraph. He later contacted and stated he no longer wished to take the polygraph." This evidence was admitted and the trial judge was entitled to consider it as a piece of evidence. The accused's appeal from conviction was dismissed. Now the reason why it was admitted, it seems to me, was that it was to explain why having offered, the accused having offered to give a polygraph, that they did not then have one, and it's also the accused and it's also after the fact conduct and we're back into the same -- it's a completely different situation but just reading the headnote, if that's accurate at page 50:

In the present circumstances an adverse inference could have been drawn against the Crown if it had failed to explain the omission to give the accused the requested polygraph test. Accordingly the trial judge did not err in adducing evidence concerning the polygraph test and the trial judge was entitled to consider it as any other piece of evidence.

In my submission that doesn't have much to do with

our facts, if any.And Phillion, which Your Honour doesn't have yet, it's just a passage at page 539 and I'll pass it up to Your Honour:


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Polygraph evidence was sought to be introduced ...

and there's a question and ab answer:Q. Mr. Reid, on the basis of your

experience and the reportings that you made of Mr. Phillion during the course of the polygraph test, did you form an opinion as to whether he was telling the truth when he answered no to the relevant questions?

and there was a response that he was telling, in his opinion the witness was telling the truth, or the accused.

Among the relevant questions were the follow-ing: Did you kill Leopold Roy? Did you stab Leopold Roy?

the very thing that was the issue before the Court.

The Court finds in this case that the polygraph evidence was inadmissible, as all our courts. The opinions of a polygraph are inadmissible, and I'll leave it for Your Honour because I don't, as I said, I don't know what I did with the other two copies.

THE COURT: Thank you. MS. MULLIGAN: My friend also supplied the case of Minhas and again it's a different situation, but if we turn to page 205 you see the discussion:

The evidence that Gurmit Minhas had taken a polygraph test ...

again it's a different situation The evidence that Gurmit Minhas had

taken a polygraph test got on the record in this way. Crown counsel asked Sergeant Cziraky whether he had investigated Gurmit


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Minhas and whether he had been able to deter-mine whether Gurmit Minhas had a driver's licence. Sergeant Cziraky said that he had ascertained that Minhas did not have a driver's licence. Crown counsel then asked him to state generally the nature of the investigation the police had conducted with respect to Gurmit Minhas. Sergeant Cziraky testified that Gurmit Minhas had initially been interviewed by Staff Sergeant Wilson and himself. They searched Minhas and checked the papers in his wallet, and that evening, April 1, 1982, they caused officers of that unit to check with Gurmit Minhas' place of employ-ment. Sergeant Cziraky testified that the investigation continued over a period of a week. He mentioned that with Gurmit Minhas' agreement a polygraph examination was conducted. He was not asked and did not state what the result of the polygraph examination was, and the matter was not pursued by Crown counsel. Defence counsel (who was not Mr. Rosenberg) ...

who argued the appeal ... in cross-examination, however, returned to the subject of the polygraph test, and elicited from Sergeant Cziraky that Gurmit Minhas, at Cziraky's direction, had been taken to the Peel Regional Police for a polygraph test.

If I could just have a moment, Your Honour, for a

drink of water. THE COURT: All right. MS. MULLIGAN: Okay.

Defence counsel then suggested to the officer that the appellant had asked if she could take a polygraph test and Cziraky replied: "Not to my recollection." Defence counsel


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then elicited from the witness that he had not at any time during the investigation offered the appellant an opportunity to take a polygraph test, although the police had given Gurmit


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Minhas that opportunity. The trial judge then interjected that the results of that polygraph examination would not have been admissible in any event.

Gurmit Minhas, of course, was not the appellant, was not the accused. It was another person that the police were investigating in relation to this and they were unsure as to who had been involved as between the Minhas' family so that's why, I presume, defence counsel did not at trial object because he was able to make some use out of that and there was no results given, he was able to say 'you did a different kind of investigation with this particular suspect than you did with my client.' I can make no use of Mr. Gaudreault's blurting out that he took a polygraph.

The Court goes on at page 207 near the bottom of

the very long paragraph there, Your Honour, the

sentence beginning with "Defence counsel": Defence counsel for tactical reasons chose to raise the subject again in cross-examination for the purpose of showing that the police had not afforded equal treatment to the appellant by providing her with the same opportunity to take the polygraph test as they had provided her husband. The trial judge would naturally be reluctant to interfere with defence counsel's line of cross-examination, but he did state to the jury that evidence of the result of a polygraph examination was not admissible.

So, a much different situation. Defence counsel in fact used that evidence at trial and then defence


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counsel on appeal, or appellate counsel, tried to argue that that evidence


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shouldn't have gone in. It seems to me that we're not in that situation either.

And then my friend provided the case of B (S.C.) and I think this is the one that was discussed this morning which was the after the fact conduct of the accused, evidence of consciousness of innocence by offering the accused or offering and providing blood and hair samples, and there's nothing on whether a witness who has said something like this, a witness upon whose credibility the case turns, whether that evidence should be admissible or whether it's okay. In my submission, it's just not the same thing at all, by any stretch.

And I don't know why my friend provided Alexis, so I think I'll leave it to him to address that and I may say something in reply.

But just in conclusion, Your Honour, in this case, in my submission, my first submission to you is that there is no remedy. This was not created by Mr. Stewart in any way. This was not a situation where defence counsel blundered into it or asked a question that opened any doors. Defence counsel has not had an opportunity to ask Mr. Gaudreault any questions yet. This was a case where Mr. Gaudreault, for reasons best known to himself, decided he wanted the jury to know this, to the very much, in my submission, to the prejudice of these men who are on trial. So in my submission there is nothing that can be said that will not leave


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the taint of prejudice with the jury. There is nothing that the defence can do to fix it, there are no further questions the defence can ask. How-ever, Your Honour has the case of Siu and if Your Honour rejects that submission then it is possible that Your Honour may choose to give a timely rebuke to Mr. Gaudreault and, in my submission, that must happen before the jury, in front of the jury, and prompt and clear instructions to the jury to ignore entirely Mr. Gaudreault's answer or blurt or whatever it was on its own. And in my submission it would have to be fairly strong language both to Mr. Gaudreault and then directed to the jury, something to the effect of, and this is a suggestion or a submission as opposed to any sort of trying and put words in Your Honour's mouth, but something to the effect of 'Mr. Gau- dreault you knew better than to make comments about a polygraph test, you were told about this before you testified in another proceed-ing in 1995, you were told again in preparation for your evidence here. I caution you not to delib-erately say things you know you're not permitted to say. In the future I'm asking you to restrict your answers to the questions you have asked.' That kind of rebuke. A rebuke is a fairly strong thing and that's what seems is called for to the witness who has blurted something he ought not to have and can reasonably be inferred to know they ought not to have.


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We have to, in my submission, if this trial con-tinues, and of course I've asked Your Honour to stop it at this point because I don't think it can, but if this trial continues Mr. Gau- dreault must be reined in or we're just going to carry on for another week or two and it's going to happen again and again and again. And in my submission, Your Honour, with all due respect Your Honour has to sort of take the bull by the horns with respect to Mr. Gau- dreault if this trial continues in accord-ance with what the Court says in Siu.

With respect to the jury, Your Honour can instruct them that the polygraph was not responsive, his answer about that was not responsive to a question. THE COURT: What's that?MS. MULLIGAN: The answer about the polygraph of Mr. Gaudreault, as far as your instruction to the jury if you were to choose that route, and that they must ignore the answer completely, that they cannot draw any inferences whatsoever about what the results of that test may have been, they do not know the results, and even if they did they could not properly draw any negative or positive inference regarding Mr. Gau- dreault's evidence or credibility because as a matter of law polygraph examinations have been held to be scientifically unreliable as indicators of truth, and inadmissible as evidence in any trial. That kind of instruction, and of course Your Honour is better at giving juries


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instructions than I am so Your Honour would have the words for it, but in my submission while I make comments about these other remedies they simply can't undo the prejudice and the taint, and far better, as Your Honour has said before, that we stop now at the relatively early stage of this trial and declare it a mistrial than two or three or four or five years down the road Mr. Stewart finds himself back here for a new trial, and nobody wants to see that. We want to get this matter resolved for the sake of the community, for the sake of Mr. Stewart and for the sake of everyone. But in this case to have it resolved where there is this prejudice, in my submission, may well result in the matter just returning back and Your Honour has made clear that, you know, it is far better that we deal with the issue now and quickly and decisively. THE COURT: I still agree with that. I still agree with that. MS. MULLIGAN: Thank you. Those are my submissions, subject to what Mr. Dandyk says about these cases.THE COURT: All right.

MR. McKECHNIE: I will rely on Ms. Mulligan's review of the law, and I'm just concerned with what kind of instruction, if Your Honour goes the route of instructions to the jury, my concern is what kind of instruction is going to undo the damage that is done. The problem seems to be that everything that happens after Mr.


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Gaudreault makes -- blurts out that comment, no matter what it is, seems to confirm somehow to the jury that the results of that test were favourable to him and that no matter what happens after that it will always be in the back of their mind the idea that he must have passed some kind of lie detector test. The reliance generally in society on the belief in the infallibility of science is certainly very strong today, and certainly strong in this type of jury that comes from a government town, but the obvious implications from the fact that he would even try to blurt it out is that they must conclude that he would only blurt it out if he had passed it or thought he had passed it, and obviously as well the defence would only object to it if -- so that it's very certain that they have come or would come to the conclusion, I don't think there can be any doubt that any reasonable person would conclude from those circumstances that he must have passed the test when in fact, I think, when we look at this test you can't even say whether there was a pass or a failure. So in fact it's misleading to that extent.

To go the step further and suggest to them, to the jury, that it isn't admissible in law, which is what Phillion talks about, is to qualify it to an extent that the jury says well fine, lots of things aren't admissible in law, it doesn't mean they are not true, and I think it has to be made clear to them that it's not


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good science as well and that that's part of the

problem with polygraphs because they see them every

day on television and hear about them in the

newspapers. So that my concern is that any

instructions to the jury tend to confirm them in

their prejudices because of those -- because of the

initial circumstances under which it came out. And

I think it's as well, as Ms. Mulligan pointed out,

that we're not in the position of being able later

on in cross-examination to cross-examine Mr. Gau-

dreault about this particular point, about the

polygraph, and we can't tell the jury that we can't

cross-examine him about it and our failure to

cross-examine him on it will further shore up their

belief that he must have passed it and I think that

that is the major prejudice, with respect, that

it's not something that is just now and will die in

a few hours. It's something that will continue to

grow, and it's a seed planted in their mind that

will continue to grow throughout the trial and we

know with Mr. Gaudreault that he's going to try ---

THE COURT: Why can't I say the defence are even proscribed from cross-examining him under the rules? MR. McKECHNIE: Well certainly that would have to be part of the instructions.

MR. DANDYK: Yes, Your Honour, there's a factual aspect which, given the submissions, has to be put on the record. It is related, and it is


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more for purposes of the record so I will be calling Officer Riddell briefly for that point, it will become apparent at least as to the context.

RICHARD WILLIAM RIDDELL, sworn

EXAMINATION-IN-CHIEF BY MR. DANDYK: Q. Officer Riddell, as I understand it last week

you had occasion to have some discussion with Mr. Crystal in

relation to Denis Gaudreault being tired and how he behaves when

he's tired, and I believe Mr. Crystal gave you a certain response.

Do you understand what I'm asking about?

MS. MULLIGAN: Well, how is this -- first of all, I don't know anything about this, but how is this possibly relevant to something that Mr.--- MR. DANDYK: There has been an allegation that the Crown intentionally put forward a witness in certain circumstances and this is a bit of the colour and background as to the words of Mr. Crystal as to what the defence attitude has been when Denis Gaudreault -- well, I'm actually not going to lead the witness.

Officer, could you step outside for a second? I'll indicate what the area is because I don't want to alert the witness. MS. MULLIGAN: I can say while the officer is leaving that the premise upon which Mr. Dandyk says this evidence is relevant has not been laid or is not there. I said in my submissions to this Court that I was not saying it was intentional but that


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the Crown had a responsi-


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bility to ensure that this witness did not or knew that he could not mention the polygraph. I didn't say that there was anything intentional about it in my submissions, in fact I said the opposite. MR. DANDYK: And that's not my point.

Your Honour, what the officer I expect will say is that when Officer Riddell indicated that when Denis Gaudreault gets tired and in fact at that point then we should take a break because he's upset, because he has a tendency, and I believe it'll be something to this effect, a tendency to blurt things out if he's tired or upset and therefore it would of use to have a break, to take a break to calm him down, and apparently Mr. Crystal responded something to the effect of 'let's get it on'. In that context it is, with respect, important for this Court's consideration in this matter as to that attitude about Denis Gaudreault blurting things out and knowing the nature of the witness, and it's on that basis, and it's for purposes of the record as well should another Court wish to look at this as to what is said because Ms. Mulligan very clearly wishes to impugn the Crown without calling any evidence, I noticed, because that's the other problem I have with her lack of a factual foundation and purely submissions, none of which is accepted, with respect, as far as submissions.


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And in any case on this basis we would like this on the record for that purpose, simply to give colour to the remainder of it, because counsel keeps saying well it wasn't done intentionally and she keeps making some wide brush comments and, with respect, it is relevant for that. MS. MULLIGAN: Well, Your Honour, first of all I'm surprised that what Mr. Cooper said to me is not being admitted and what Detective Ralko said to me in Mr. Cooper's presence is not being admitted and I said if it wasn't, that was just moments ago, like at the break, if it wasn't then I would be happy to call Detective Ralko if there was some problem and no one alerted me to any problem, and I don't think Mr. Cooper would deny that that was the discussion that we had. Mr. Dandyk seems to.

But, in any event, with the jury waiting I thought

it was more expedient to just repeat what had been

said at that moment so that Your Honour knew the

circumstances, that there was some attempt by the

Crown and Detective Ralko to not have Mr.

Gaudreault blurt, but if I need to call evidence I

will.

As far as what happened last week, Your Honour will

recall the context of this Mr. Crystal and

Detective Riddell thing, is that Mr. Gaudreault was

flaring up on his own during the tapes of himself

and his sister and we, I think, all agreed that if

we could continue we'd like to


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because we had two short days and that was put on the record, Your Honour even said you would like to continue if we could but we were going to ask Mr. Gaudreault if he was prepared to continue. THE COURT: I said we'll ask Mr. Gaudreault. MS. MULLIGAN: Yes, that's what Your Honour said. But Mr. Crystal's position and my position at that time was that we wanted to proceed if we could. Detective Riddell's position was that --- THE COURT: And I'm not stupid and I know why you want to go on and I know why Riddell doesn't want to go on. I'm not up here learning how to suck eggs, okay? MS. MULLIGAN: Exactly. THE COURT: Okay. MS. MULLIGAN: I agree, Your Honour, but Mr. Dandyk now wants to call Detective Riddell to say that on that occasion with a half an hour, or whatever it was, left in the day we wanted to proceed and somehow that taints or does something to this argument. In my submission it's wholly irrelevant. It's not the same context. It's not the same issue. Detective Rid- dell told us that he would blurt out something when he was tired. He was blurting out things. Those things that he was blurting out was his opinions about his sister and about how she ruined his life and those sorts of things, not inadmissible evidence prejudicial to the accused.


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THE COURT: All right. If you want to see it as different or arguably different I can understand that, but I can't say that it's absolutely irrelevant since it has to do with blurting out and whether this is the same kind of blurting out or not the same kind of blurting out, let me hear it, it'll take a shorter time to hear it, and then I'll either count it in or I won't, I'll either accept it or I won't, but it's not irrelevant. MS. MULLIGAN: Well I admit if it helps Mr. Dandyk - I think that is what the purpose, is it not? - if that assists then we don't need to call the evidence, we can argue about whether it has any bearing on the situation where he wasn't arguably tired or upset and he blurted it anyway. THE COURT: Well maybe Mr. Dandyk would like it for the record.MR. DANDYK: Well, maybe I could ask. I mean, is counsel indicating that Officer Riddell - this is what the admission is? - Officer Riddell ---MS. BAIR: Just have him in here. MR. DANDYK: Well, yeah, we can have him in here. We can clarify the facts, maybe it'll save time, that's fine. THE COURT: All right. Okay. MR. DANDYK: I'll just put the officer up and he can tell us what he recalls. That will probably be quicker because it's only like two or threequestions.

THE COURT: Okay.


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RICHARD WILLIAM RIDDEL, resumes on the stand

EXAMINATION-IN-CHIEF BY MR. DANDYK:

Q. Now then, Officer Riddell, do you recall I

tried to focus you in on the area? A. Yes but it wasn't because Mr. Gaudreault was tired. It was because he was getting visibly upset --- Q. Okay. A. --- that caused my concern. Q. And you had a concern? What did you do about your concern? A. I asked Detective Lamarche to approach Vikki and advise her that Gaudreault is in a mood where I think it's best that we sort of tone it down because he's -- he's angry, visibly upset, and my concern is exactly what happened is that he blurts stuff. Q. Okay. Did you raise the concern of his blurting stuff with anyone on the defence team? A. Well, Mr. Crystal was sitting beside me or I was sitting there, and the conversation was very short, but he was -- his feeling was that it didn't matter if Gaudreault was upset or angry, or whatever. He was being questioned and he was giving the evidence that way and so be it, and he knew that I had concerns and he turned to me and he said: "What is it that you're worried about?" and I said "Because he blurts stuff." He says "Well that's kind of too bad. We're gonna get it on", so with that I said "It's your client. Let's get it on."

Q. All right. Thank you.

CROSS-EXAMINATION BY MS. MULLIGAN: Q. Sir, you didn't have this discussion with me, first of all?


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A. No I didn't. Q. And you know that in fact I'm lead counsel for Mr. Stewart, right? A. Correct. Q. With respect to that, however, just so to set the record straight, when I made submissions were you present when I made submissions as to continuing or not continuing that day? A. To be honest I don't know.

Q. Okay.MS. MULLIGAN: Well, it's on the record, Your Honour. I think it's clear that I submitted that we should try and continue if we could and that I didn't want to stop, so I put that out there so Detective Riddell knows that.

THE WITNESS: No, well that was -- yeah, I knew that you wanted to go ahead that's why I was -- that's why I did what I did. MS. MULLIGAN: Q. Okay.

A. That's what I found a little bit out of whack today when Mr. Crystal stood up and said we weren't trying to control the witness because as far as I was concerned that's exactly what we tried to do last week. Q. All right. Last week, was that the Thursday or the Friday, or do you recall? A. I believe it was the Thursday. Q. All right. And you recall that Thursday and Friday were both short days of sitting in this matter? A. We sat 'til 1:00 on Thursday and 3:00 on Friday, if I'm correct.


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Q. And when this whole argument arose, Offi- cer, do you recall it was about 12:30 and we were finishing at 1:00 that day? A. Yes, it was near the end of the day but that wasn't my concern what the time was. My concern was what could happen with him at this stage in his demeanour. Q. And we proceeded for the next half-hour or so having inquired of Mr. Gaudreault, the trial judge, Judge McWilliam, said that he would inquire of Mr. Gaudreault. Were you present went he inquired of Mr. Gaudreault? A. Yes I was. Yes I was.

Q. And Mr. Gaudreault said he could continue? A. Yes, but my concern wasn't that aspect of it, if he was asked if he could continue. I just saw the way things were going when he was testifying that at any minute he's going to say something here that can't be put back because that's the way he is. Q. All right. And he was very upset and ---

THE COURT: You can be stronger than that if you prefer, Detective, because you don't have to agree that I was right. In other words, don't be intimidated by the fact that I ruled that we would continue. If you think I ought not to have con-tinued in this context you say so, okay?

THE WITNESS: Well that's not the point, Your Honour.THE COURT: No, no. I know. THE WITNESS: He was willing to go ahead too. It's just that I was concerned that he was going to say stuff that can't be put back. MS. MULLIGAN: All right.


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THE COURT: Okay.MS. MULLIGAN:

Q. And that day you've already said you were concerned because he was very upset, he was animated on the record, and he wasn't upset in particular, it appeared, with the defence but more the tapes he was hearing, is that fair? MS. BAIR: Your Honour, these are all matters of record. My friend can make submissions from the record. We were all there for all of that. The only part the officer is testifying about is the part we weren't present for, so this strikes me as a bit of a waste of time at this point. MS. MULLIGAN: Well, my friend chose to call this witness. I don't have that many questions and, you know, Your Honour can, as you said, at the end of the day either use the evidence or not but I think it has some relevance, so I'd ask for five minutes. THE COURT: Well, it would be even shorter if the officer could give a nice crisp answer than that, okay, if he wants to.MS. MULLIGAN: All right. THE WITNESS: What's the question? MS. MULLIGAN:

Q. Mr. Gaudreault was very upset and seemed to be upset by listening to these tapes with him and his sister. A. That's correct. Q. And before the day was done he didn't in fact blurt out anything that couldn't be undone, did he, on Thursday? A. No, he didn't.


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Q. Now today, sir, have you been sitting in for his evidence? A. No I wasn't. Q. You weren't sitting in when Mr. Gaudreault raised this issue about the polygraph? A. No. Q. So you have no idea whether he was upset or what his demeanour was today or whether it could've been prevented. A. I wasn't here.

THE COURT: I think now we're really into Crown counsel's point now. I was here. The witness says he wasn't here. That's it. MS. MULLIGAN: Well there's --- THE COURT: I mean he said he wasn't here so whether it was a blurt situation or whether it wasn't he can't add to anything, you know. That's my point. MS. MULLIGAN: I'm just concerned that the witness' evidence, Your Honour, is being used to draw an inference about the general attitude of the defence and that we somehow let this happen today, which is the only relevant time, and ---THE COURT: Okay. MS. MULLIGAN: --- there was no such upset or any-thing like that, but in any event those are all the questions I have.

THE COURT: Okay. Thank you.MR. COOPER: Any re-ex?THE COURT: Any re-exam?

MR. McKECHNIE: I have no questions for the officer.


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THE COURT: I'm sorry, Mr. McKechnie. No questions? Thank you.

MR. DANDYK: No re-ex. THE COURT: No re-examination? Thank you. MR. DANDYK: Given the evidence we've just heard,

what we have what appears to be at least an

entirely different position being taken by counsel.

Last week in submissions on the basis of

continuing, her comments to continue, they were

relying or wanted the jury to see Denis

Gaudreault's demeanour and attitude and wanted it

to continue on that basis, and today it's being

used as the basis for a mistrial, Denis

Gaudreault's demeanour and behaviour.

The other aspect is a sense of reality. Is that

sense of reality of, I suppose, of allegations and

impugned allegations or suggestions that we have an

obligation to control? Okay, there's no actual

intentional malfeasance and all of those types of

comments is -- I think we're being a little

unrealistic to suggest that at various points Denis

Gaudreault will be his own man, and to suggest

differently, I mean, let's keep that in mind

because that's a reality here. And the comment made

by myself in relation to the factual foundation is

this: while there is discussion and while it is

acknowledged there was discussion with Denis

Gaudreault on the last trial, and I'm not sure


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about this trial, as to exactly what Denis

Gaudreault was told, as to exactly what Denis

Gaudreault understands, isn't and cannot be

admitted. So that yes,


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there was discussion but as to the exact nature of

it, with respect, then we get into misunder-

standings and that's why I made that comment. It

becomes a difficulty and I suppose, as the Court

said, how relevant is that? Apparently a run has

been made on the computer at least as to the tran-

script and at least we could not find anything as

to reference on the record. So the only danger, the

only concern that at least I have, since I guess

I'm the one making the submissions here, is that

if we are to refer to factual foundation that it

should be entirely accurate and that was the

comment. I didn't want it to be inaccurate. I know

there was discussion but as to the exact extent of

it and the nature of it and how Denis understood

it, we cannot acknowledge because we don't know.

The other point I'll make at the beginning is the

caselaw does not say that polygraph evidence is

excluded because it's unreliable, in fact Beland

says specifically that is not the foundation for

it. The foundation for it is that at least if it is

solely, and this has to be recalled throughout, if

it is solely being raised to bolster credibility

then it is inadmissible because it breaches a

number of evidentiary rules, if it is solely, and

Beland emphasizes it extremely strongly, solely in

fact. Ms. Mulligan in referring to page I believe

494 referred to a portion of it where it referred


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to that. What we know here is it's not being raised

solely for that, and that


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isn't the sole issue, so that has to be recalled. It is because if it is solely raised for that purpose it breaches those rules.

And the other, I suppose, sense of balance of reality we must take in the context of considering mistrial is --- THE COURT: Well presumably if it seeks to bolster credibility, if I was to give a warning, if that was to be the result of the ruling, maybe I shouldn't beat the drum so hard on the unscientific nature of the polygraph but I should say that it's unreliable for truthfulness. I should not talk in terms of admissibility but talk in terms of unreliable as an adjunct to truthfulness; our courts have not accepted that. MR. DANDYK: Okay. If the Court is going to ask me that point I'll -- the same page, 494, Justice McIntyre ---THE COURT: Where? No, I know the unscientific, I came across that one when I was going through it. MR. DANDYK: Okay. I guess --- THE COURT: Phillion? MR. DANDYK: No, this is in Beland and Phillips.THE COURT: Oh, I'm sorry. Yes. MR. DANDYK: Page 494. If the Court's asking I'll make reference to this point at this point. I'm only actually just beginning.

The last ---


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THE COURT: That sounds like a song "I've only just begun."

494, yes. Where were we? MR. DANDYK: Okay. The last full paragraph on the

left-hand side. THE COURT: Oh yes. MR. DANDYK:

I would say at once that this view is not based on a fear of the inaccuracies of the polygraph.

So even to use the term colloquially, the Court has suggested if that is the route the Court takes the danger we face is that's where we're going and we cannot be -- I think the only thing -- if the Court is of the view that a warning is to be given, then, with respect, it is a warning that the rules of evidence precluded as opposed to any suggestion of inaccuracy, unreliability and so on because unreliability goes the same place. It is simply to say the rules of evidence do not allow you to consider it and you have to ignore it and so on to be entirely, I suppose, accurate. That's the point I would make there.

The other aspect, and I guess while I'm at it I

should say that, I strongly object to the sug-

gestion of rebuking a witness in front of the jury

because that, with respect, isn't what Siu

suggests, and it ultimately becomes ridiculous in

the face of the caselaw because prejudicial/

probative is it and what the Court does is alert


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the jury in relation to the warning as to


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what they should not consider. To rebuke the wit-

ness is a different issue, and a rebuking of a

witness in front of the jury doesn't in the least

assist them in their function. They are --- It is

to assist them in their function. All it does, with

respect, is assist defence in prejudicing the

witness. The rebuke is the Court trying to control

the witness so they don't get into these areas and

if it is done it would be done in the absence of

the jury; if it's done in front of the jury, with

respect, that only leads to prejudicial effect and

the prejudicial effect is stamp on the witness'

forehead in front of the jury and hammer it home

that this witness is entirely uncontrollable, this

witness will do improper things and, inferentially,

don't believe him and, with respect, that is highly

prejudicial and it doesn't assist them, as I said.

It's not in the least probative of any function the

jury has. So the rebuke would clearly be outside, I

would respectfully submit, outside of the jury.

Now I'll move into the caselaw because that's where

I was about to start, and I guess I can actually

start with Beland and Phillips now. Beland and

Phillips, 1987, 36 C.C.C. (3d) at page 481. Counsel

went through it in detail, emphasized the portion

about solely going to boast the credibility and I

suppose both counsel referred to it, and we see as

well when discussion of past consistent statements


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is given that as with polygraph, as with the rest


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of the areas, as with what we have just I guess discussed with this Court, you can trigger prior consistent statements by an allegation of recent concoction or recent fabrication. Well, that has already been found by this Court to have been done and that's why the Crown is allowed to lead in chief such evidence. That's one trigger.

A further one is looking at page 390 (sic), further in the reasons Justice McIntyre, looking about the middle of the page, the middle of the paragraph which begins -- the paragraph begins a third of the way down just after the quote on 490 "The rule is generally expressed"? THE COURT: Yes. MR. DANDYK: Okay. And if we go about halfway down that paragraph, maybe slightly past that, with "Assuming, as in ..." it's a sentence that --- THE COURT: Yes, I have it. MR. DANDYK: Okay.

Assuming, as in the case at bar, that the evidence sought to be adduced would not fall within any of the well-recognized exceptions to the operation of the rule - where it is permitted to rebut the allegation of a recent fabrication or to show physical, mental or emotional condition -it should be rejected. To do otherwise ...

And then it goes on and on about -- and then it goes on:

To do otherwise is to open the trial process to the time-consuming and confusing consider-ation of collateral issues and


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to deflect the focus of the proceedings from their fundamental issue of guilt or innocence.

Now, what's the hook here or what's the interesting

point? In Beland and Phillips it was solely to

bolster credibility. Were it a rebuttal of recent

fabrication or were it -- or if it were to go to

physical, mental or emotional condition, or some

other exception to an evidentiary rule, it would

be admissible and that's why Smith and that's why

Minhas are provided because if defence open doors

it can become admissible, or if it is admissible,

if it is an exception to an evidentiary rule it can

be admissible. So what do we have here? We have

Denis Gaudreault whose state of mind evidence is

relevant and he blurts it out and clearly it goes

to his mental or emotional condition and is a

foundation as to his evidence and his state of

mind. It is the exception Beland speaks of, aside

from just the one we've gone through about recent

fabrication which is also alleged. So that's sort

of one aspect here as to the background.

B.(S.C.) was provided, 1997, 10 Criminal Reports

(5th), a decision of our Court of Appeal at page

302, and that is the one where a new trial was

ordered and it was ordered on the basis of defence

evidence being led, psychiatric evidence being led

that the mental makeup of the accused was

inconsistent with the offence, and then that was


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found to be inadmis-


2485

sible and a new trial was ordered. In discussion of, and obviously it's obiter discussion ultimately, there is discussion of the after offence conduct and it relates to polygraph evidence of the accused, and it relates as well to the accused's offer to provide I believe it was, yes, blood and hair, being admissible, and in fact the discussion makes it clear that were it just polygraph the Court has concerns, and the Court can read it at its leisure at page 310, 311, but it indicates in the context of the admission of the rest, and if evidence were led as to the accused's state of mind as to the belief that the results may be admissible, if in fact it plays on the, I would suggest, emotional or if it plays on the psychological state of mind of the witness, and, with respect, the distinction that Ms. Mulligan wishes to make is not an appropriate distinction. If it be a witness or an accused, and if following the comment in Beland it plays a part in that witness' state of mind, it may well be admissible on that basis. And then it would be, though, I suppose, a caution in relation to it as to what use could be made of it but it doesn't make it inadmissible. So that's the important aspect there and, with respect, we don't have I suppose the additional information that the Court asks about B.(S.C.) either, but the Beland point is made and we do have, obviously, the state of mind point that can be made.


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The further case that can be considered I guess is the Siu case, and in Siu I suppose with the

greatest of respect to the B.C. Court of Appeal I think they overstate how unresponsive the question was, because if we look in Siu, 1998,

124 C.C.C. (3d) at 301, when the question and answer of Detective Clarke is given at pages

312 and 313 it does bear, I suppose, repeating: Q. When Ivall was brought to you, Detective

Clarke, what steps did you take to investigate whether or not Ivall had shot Tim Cooper?

A. Well, we were still interviewing other

witnesses and anybody who would provide us with any information. We were taking that. But we were getting little in the way of corroboration at that time. We had really nothing to corroborate what he had said other than the recovery of the handgun, which we got. Other witnesses from the Franklin Street address just refused to talk to us, wouldn't talk to us.

Q. So you had nothing to - to bump Ivall's evidence up against, to do a reality check on it, let me put it that way?

A. Not at that time, no.

Q. So at that point Ivall had pretty much a

free hand to say what he wanted without you being able to cross-check it or double-check it, right?

A. Well, I believe, and having only been with Ivall a short time, I believe he was telling us the truth at that time.


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Q. Well, you know, that's - that offering doesn't assist and doesn't answer the question either. Do you understand? Did you ask Ivall, for example, whether he had shot Tim Cooper? Did you ever ask him or even think to ask him?

A. I - we asked him, yes, we did.

Q. And what did you do to pursue it? A. Mr. Ivall offered to take a polygraph.

And then it goes on.

Now, with respect, it is overstating it to suggest it's entirely unresponsive. I mean, the Court ulti-mately finds an officer trying to sneak in some other evidence. Well, he's being asked about the credibility of a witness - do you test the credibility and so on. Anyone, with respect even a Crown, would suggest if I get an offer of a polygraph in that context and I'm asked about the veracity of a witness or checking or cross-checking it, that, in my mind, is relevant, and it's especially relevant because the caselaw and the courts have told us very clearly that polygraph is, and the results of polygraphs are, proper investigatory measures. So in the context of that I think the B.C. Court of Appeal slams the officer far too quickly. I think it is responsive. I mean, the other issues become does he plan to put it, I mean that's a different question, but I think it's overstated.


2485

THE COURT: That was the one question too many he had.MR. DANDYK: Yeah, I believe it was. I mean they keep asking and asking about veracity and testing it and then he comes out with it and I think, with respect, it's a little unfair to the officer to overstate that.

THE COURT: All right. MR. DANDYK: If I might have a moment. I was going

to refer to something else in this case. We are

rushing quickly here and so on, so I do note at

least I'm glad the accused had a decent lunch. I

didn't.

Oh yes. Justice I believe it's Esson on page 331 in paragraph [84], the second sentence on the right-hand side of the page at the bottom:

In this case, had the officer been asked whether he did anything to satisfy himself of Ivall's truthfulness, and if the fact had been that Ivall had taken and passed a polygraph test, it would have been open to the officer to say that.

I found that a very interesting comment in context because at least the questioning seems to go in that area.

The other aspect, the other aspect in the factual foundation we need here is as to admissibility, is, I suppose it's another reality check, what is the allegation from the opening in relation to counsel. That allegation is that police in this case have not done everything they could, that while denying or sort of turning away from Ms. Bair's "rush to


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judgment"


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comment she ultimately adopts it and suggests they had a closed mind and they fixed on Denis Gaudreault quickly without -- disregarding other things. Well, I think there's a denial of conspiracy but there's a quest to save the case and these officers, along with other officers, it was a number of times in the opening that reference was made. Well, at that point when you take a slam at the investigation then, with respect, and you have an investigative tool the police are allowed to use, it's suggested at this point already polygraph as far as the investigation and as far as the police are concerned is admissible for that purpose as to what was done in relation to the investigation and, therefore, Denis Gaudreault's reference to it it simply becomes a further investigative tool not only as to his state of mind, as to the nature of the investigation and how comprehensive it was and what proper tools they used. It doesn't change the fact that the Court ultimately cautions the jury you cannot use it for the truth of it and it cannot supplant your truth-finding function. It simply puts it into context as to what it is admissible for, and that leads us to Alexis and the reason Alexis was provided, and I provided sort of limited pages of Alexis because I used Alexis before, it's a polygraph statement case from 1994, 35 C.R. (4th) at 117, a decision of Justice Hill, the Ontario Court of Justice (General Division), and when he summarizes at page 159, he


2485

summarizes a portion of the law and that's what I provided from Alexis. The Court has it? At page 159 under heading "4. The Polygraph and the Eliciting of Statements."THE COURT: Yes. MR. DANDYK: Okay.

Paragraph 155 Justice Hill indicates: It is settled law that the results of a

polygraph test are inadmissible in a criminal trial: ...

Beland. We have Beland and the limitations and so on. And it becomes very interesting because the inadmissibility as we know now isn't based on inaccuracy and so on, it's based on evidentiary rules.

However, ...

Justice Hill goes on ... on occasion, a reference to a polygraph test may appear in the evidence at trial, for example, in the following circumstances: as an aspect of an explanation by the police as to the manner in which an investigation was conducted.

Minhas is referred to, which is provided. And fur-ther then it is cited:

... as an aspect of a sequence of police investigative activity culminating in the taking of statements; ...

that's usually -- it doesn't cite a case but that's usually polygraph cases where a statement is obtained subsequently. In fact, I guess Alexis is an example of it.

... a refusal to take a polygraph test at a


2485

pre-detention stage ... Smith and then it goes on.


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And then further at 156 it continues: While the polygraph machine results are

by no means infallible, the investigative measure has justifiably proven itself to be useful during the course of police inves-tigations. The use of the polygraph by the police, as an investigative tool, is not per se unlawful or unfair.

And it continues.

So, I mean we know it's a proper investigative tool and they refer to it as being a proper investigative tool, and if it is admissible pursuant to Beland or pursuant to B.(S.C.) then to another purpose it is admissible at the trial.

Minhas is provided and so is Smith and those are really cases, and it's clear from there, if defence opens certain doors or certain defence action or allegations are made that makes such evidence admissible, then in fact it becomes admissible and, with respect, they're, while not all on all fours as to the facts, it is on all fours based on the allegation from the opening that Ms. Mulligan has made and that is that in fact attacking the police investigation, so they've opened the door to making it admissible. And it is interesting from the facts as well that while that, when the discussion at 205 through 207 in Minhas is given, the Ontario Court of Appeal in Minhas, when that discussion is given there doesn't seem, and the Court can read it at its leisure there, there doesn't seem to be any issue as to it


2485

being led in relation to that witness or discussion of the polygraph and admissibility. They seem to -- in fact there's really no major argument given at that point. It's rather interesting because it is then in context where they sort of argue in hindsight that because defence raises it in cross again that then it becomes admissible but the Court doesn't seem to have any major discussion or problem and, in fact, seems to speak of it as narrative in relation to the other witness when it's mentioned. There doesn't seem to be any major concern. It seems to be logical as to the behaviour of Sergeant Cziraky and interaction with that wit-ness.

Smith is there as well as suggested because the

defence opens the door as to the refusal by the

question they asked. So what are we left with? We are left, with

respect, a situation. Well, maybe I should clarify

here. I'll try to be brief now. I was trying to

clarify the tactical point because I didn't want --

I have taken myself in argument to make it admiss-

ible. I understand, though, we will not be arguing

consistent with before that it is now admissible,

but the caselaw provided clearly suggests that it

may and could be in such argument may well follow

at a later date. So that leads us and that's why I

had to ask to clarify, that leads us to where this

takes us now and that, with respect, takes us now


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then


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as to what the Court will do and, with respect, given what has been said this trial is obviously not appropriate. If the Court is to caution, the Court is to caution on the basis of it is the -- the results of any polygraph are inad-missible.

Okay, I guess I'm in a bit of a conundrum now.

Exactly what the jury is told, I guess the jury is

told that the results and/or discussion of

polygraph is not to be considered by them as to

truth, however it may be relevant to other issues

such as state of mind, be it state of mind of the

witness who we're speaking of now, or state of mind

of an officer using it as an investigative tool,

and that there it is relevant to that issue, but it

is not relevant to the truth of it, and therefore

the jury must be told that they are not to consider

it as corroboration of truth. They are to assess

that on the basis of everything else.

And I guess that takes us back to, and I don't know now if I did this as a starting point but it'll be a useful point to do it now. We have a jury and this jury was vetted on information of individuals having been previously convicted and if that will affect their judgment and if they can set that aside, and we accept that these 12 triers, as any single trier, are able to make that distinction in their mind and in fact they were challenged for cause on that basis. Therefore, taking that reality and


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taking that faith carries over to this area and that faith then will allow them to properly, as any single judge would, consider the use to be made and the limited use to be made, and obviously it is clear from those submissions that Ms. Mulligan's extreme caution goes far too far, is inconsistent and contrary to what the caselaw in fact indicates and very definitely a rebuke in front of the jury of the witness would also, with respect, go too far, and given the submissions would be inappro-priate because Denis Gaudreault's state of mind in fact does allow him to say that.

Actually maybe I should clarify here. I noticed the rebuke, maybe counsel can give me assis-tance here, the rebuke in Siu I noted was in the headnote but in skimming the decision I had trouble finding "rebuke" in the decision. MS. MULLIGAN: Paragraph [66]. I read it out, Mr. Dandyk. MR. DANDYK: [66]? Okay. Thank you. Oh yes, yes, that's right. " ... the only proper course would have been a timely rebuke to the police officer ..." and then "a prompt and clear instruction to the jury ..." It would appear to be in the middle of paragraph [66] where it refers to "rebuke". In any case, very clearly Siu does not say it has to be in front of the jury and the submissions previously made, I would respectfully submit, would be contrary to principles as previ-ously stated by myself.


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Subject to any questions, and I apologize for the

rambling nature of those submissions, but those are

my submissions.

MS. MULLIGAN: The court reporter has been working

since 2:00, Your Honour. Perhaps a break might be

needed.

THE COURT: All right. Fine. Mr. Stewart and I have

to go.


* * * * * * * *

--- Upon resuming at 3:50 p.m.--- Accused present

THE COURT: Ms. Mulligan? MS. MULLIGAN: Yes. New information ---THE COURT: New information? MS. MULLIGAN: --- has come to light and it would

require Detective Riddell's evidence for about two

questions.

RICHARD WILLIAM RIDDELL, resumes on the stand MS. MULLIGAN: The detective was just sworn, Your

Honour.

THE COURT: Yes he was. MS. MULLIGAN: Welcome back, Detective Riddell. Q. We just had a discussion. Mr. Cooper approached and advised us of something you had advised him on the break with respect to Denis' preparation to testify, Mr. Gaudreault's preparation to testify.

Can you tell us, sir, what, if anything, was said


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to him in preparation for testifying at these proceedings regarding the polygraph evidence?


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A. Yes. It would've been the Sunday, November the 1st or Saturday October 31st, it was the weekend that he was here for prep. I was part of the prep. Detective Ralko, myself and the Crown, Mr. Cooper, and I just don't remember exactly how the conversation came up but I know that the gist of it was that how many guys have taken one polygraph, let alone two, and been successful in two polygraphs and it was at that time that it was explained to Mr. Gaudreault that has no bearing on the court procedures, "in fact you cannot even use the word polygraph when you testify, you can't -- you're not to mention it in any way." Q. Do you recall who it was that told Mr. Gau- dreault that? A. It was Mr. Cooper and myself, and it was said in the context of the same as last time "when you can't -- remember the problems we had the last time when you kept going to refer to the video that included the pig farm conversation", we said "it's the same, you cannot do that, it's the same kind of thing this time, you cannot mention polygraph at all", and that was -- and now I do know how the conversation come up about the polygraph, it was in regards to Detective Dougherty and the gun incident.

Q. But part of that conversation just said it was about not only had he taken one but he had taken two polygraphs. A. He's quite upset that he can't mention the video the last time and this time he can't mention that, and like it's a real thorn in his side the fact that he gets cross-examined like he does and he figures that those are his aids and he can't even talk about them, like it's a sore point with him.


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Q. Is there anything further that you can tell us about, any instructions to Mr. Gaudreault regarding blurting out regarding polygraph or is that it? A. I'd have to think that that's it. He was told that he can't mention polygraph, "don't go there."

MS. MULLIGAN: All right. Thank you. Those are my questions. Mr. Dandyk may have some.MR. DANDYK: No questions.

THE COURT: No questions in cross? All right. MR. McKECHNIE: No questions. THE COURT: Thank you, Mr. McKechnie. All right. MS. MULLIGAN: I think now we run into a bit of a problem. When we left, Your Honour will recall, to go research this over the lunch hour I specifically asked whether admissibility was being argued, the admissibility of the polygraph. Mr. Dandyk ended -- did about 20 minutes on the admissibility of polygraph and ended his submissions with the instruction suggested was that it's not admissible for its truth but as it goes to his state of mind, so clearly Mr. Dandyk did come back and argue admissibility and argued it quite extensively. I did not research or turn my mind to that issue having inquired specifically of the Crowns before we left for the break as to whether they were seeking to argue that it was admissible as opposed to just arguing whether now that it's been said there needs to be a mistrial. They weren't seeking to have it admitted when they left and now when we come back they're arguing it. So that is the difficulty, in my submis-


2485

sion. I can address a couple of points that Mr. Dandyk raised.

First of all the vetting of the jurors he raised on when they were challenged for cause they were asked, he said, if they could still decide this case despite knowing that other people have been convicted. Well that wasn't what they were asked. They were asked that if they knew that other persons had been convicted or acquitted, and not in this case but in the same factual matter, I forget exactly how the wording was, but it certainly was more --- THE COURT: It had to go to acquitted as well, yes. I remember that. MS. MULLIGAN: Yeah. It was more ambiguous. THE COURT: I heard it enough times. I know acquitted was there.

MS. MULLIGAN: And as far as - I just lost my train of thought - the issue of controlling the witness Mr. Dandyk made submissions that -- and called evidence to the effect that defence counsel didn't want the witness controlled the other day and we did today. Controlling the witness' general emotional state and how he presents himself to the jury is one thing. Controlling the witness in the sense of ensuring that the witness is focusing and answering the questions and is not blurting inadmissible evidence is another thing altogether.

There was nothing today, in any event, that should change or shift the responsibility of


2485

what Mr. Gaudreault did to the defence. Mr. Gaudreault was perfectly calm today, he wasn't upset about anything at least visibly. There was nothing to indicate to defence counsel that we were proceeding at our peril with the examination-in-chief. THE COURT: Well maybe the short answer to all of that is to say that maybe the Crown didn't know that Mr. Gaudreault was going to drop it in either. MS. MULLIGAN: Oh, I'm not saying that the Crown did. I'm not suggesting at all that the Crown knew that Mr. Gaudreault was going to throw that in, but it has gone on and on for days now where Mr. Gaudreault has been permitted to ---THE COURT: No, no, no. See, that's a different issue, that's sort of -- it's prolix sometimes with his evidence. He does sort of a preview and then the Crown always has to say "But we'll take you all back there, Mr. Gaudreault, don't worry, you're going to get your story out" and that's really what's been happening. That's a problem of prolixity. This is a slightly different problem. I mean, to make the Crown accountable because Mr. Gaudreault is prolix, you can't just say automatically therefore, you know, they violated on this occasion, you know, exactly as it happened. MS. MULLIGAN: But the point here being that I was trying to make, Your Honour, was not that the Crown is responsible, the Crown is trying to make the defence responsible.


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THE COURT: Well no, I'm by that. MS. MULLIGAN: Okay.THE COURT: I'm already by that and you don't have to worry about that, and I don't think you can make the Crown responsible either. That's my point. Now you get by that one. MS. MULLIGAN: No, once I heard Detective Rid- dell clearly it's the witness who chose to do this despite instructions to the contrary.THE COURT: Okay. MS. MULLIGAN: The witness has his own agenda, there's no doubt about that, and the witness is determined to, as Detective Riddell testified, he's very upset that he can't mention these things so he's done both already in his examination-in-chief. He mentioned other means of disposing of bodies and now he's mentioned polygraph, so he's got them out there despite he hasn't been asked one question by the defence yet. So he's taken care of that himself.

I don't -- if Your Honour is giving any consid-eration to telling the jury that this evidence may be admissible for some other purpose, then I'm going to have to research that issue. My understanding when we left was that we weren't arguing that it was admissible for any purpose, just argue about what we do to remedy the problem. So if Your Honour is inclined to tell the jury that it's admissible for any purpose then we'll need to come back tomorrow and argue further; in my submission, that's the only fair


2485

thing to do given that that was not part of the argument when we left for lunch.

As far as the rebuking, I should make clear, Your Honour, in my submission the language of the case itself makes it clear that this happens before the jury because if it didn't then it wouldn't need to be a rebuking, it would need to be an instruction in the absence of the jury by the judge to the witness not to raise those issues. A rebuking is something much stronger. It doesn't say, as Mr. Dandyk read it, "... the only proper course would have been a timely rebuke to the police officer, and a prompt and clear instruction to the jury to ignore entirely the officer's inadmissible answer." Just experience, I've been involved in many cases where officers have blurted out hearsay, or whatever, and the judge will rebuke him or her in front of the jury. It is appropriate in some cases, and in this case where the witness has his own agenda, if Your Honour decides that a mistrial is not appropriate and we're going to continue this trial, it has to stop. It's in everyone's interest that this be a fair trial and Mr. Gaudreault has some other agenda in mind for this trial. And again subject to any argument Your Honour may wish to hear about the actual admissibility of this I would submit it is not enough to warn the jury, it is not enough to rebuke the witness, that in these circumstances the only just and appropriate remedy is a mistrial. It's not as mild a


2485

situation as Siu had, it's not the same. I mean, Mr. Dandyk made that clear in Siu, in fact maybe the witness was being responsive to the question. In this case that's, you know, maybe it wasn't such a bad thing as Mr. Dandyk pointed out but even in that case in those circumstances a warning and a rebuking was appropriate. In these circumstances a mistrial is appropriate.

If we are going to -- if Your Honour does determine to warn the jury and give the jury the warning that -- originally when Mr. Dandyk wasn't arguing admissibility what he suggested was that Your Honour could simply tell the jury that this evidence wasn't admissible or was inadmissible would be enough and that you shouldn't go further and tell the jury that it wasn't reliable or they couldn't use it or all those other things.

Your Honour, the cases that Mr. Dandyk cited were

1994, '95, and even earlier, as to not relying --

not saying that the polygraph results would be

inaccurate. I think Beland and Phillips is much

earlier and the reason they said that, they didn't

base their decision on the inaccuracy of the

results was because they didn't have any evidence

of it and they say that in the judgment - we have

no evidence as to whether it's a reliable thing or

not, we have other concerns about it such as oath-


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helping and it goes to credibility. We know from --- THE COURT: It's amazing how lawyers can read exact-ly the same paragraph and get two totally different things out it, but, anyway, be that as it may.MS. MULLIGAN: Well I can turn to it, Your Honour, --- THE COURT: I'm just saying that about lawyers, not judges of course. We always get the same thing out of everything. Okay.MR. COOPER: I think, Your Honour, that Justice of Appeal Cory that was later, say after Askov, said he didn't get the same thing out of his judgment that he wrote.

MS. MULLIGAN: Okay. If we go to page 494 of Beland and Phillips which is the part where Mr. Dandyk read the first line of the bottom paragraph:

I would say at once that this view is not based on a fear of the inaccuracies of the polygraph.

The next line says: On that question we were not supplied with

sufficient evidence to reach a conclusion. So if that is meant by Mr. Dandyk to be somehow a holding of reliability it certainly doesn't, in my submission.

Furthermore, Your Honour, since the Kaufman review

or the Kaufman --- THE COURT: Well then you have to read the next sen-tence:


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However, it may be said that even the finding of a significant percentage of error in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific.

So ... MS. MULLIGAN: M'hmm-hmm, but they didn't have the

evidence before them. THE COURT: If that isn't sashaying down the middle, I don't recognize sashaying down the middle. MS. MULLIGAN: Well it may well be but it doesn't go to the end that Mr. Dandyk took it and maybe it doesn't go to the end that I took it, it's somewhere in the middle. Your Honour is quite right. However, it's a 1987 decision. Since then we've had the Kaufman Inquiry and we know there was evidence before the Inquiry, my friends certainly have copies of it. The two jailhouse informants, Mr. May and Mr. X, in that case both passed polygraphs, two of them each, and there was other evidence and Mr. Justice Kaufman made some comments about the use and reliability of polygraphs in his report. THE COURT: Yeah. I thought there was some sugges-tion somewhere in the literature or in the lawyers' pocket of stories that congenital liars always pass polygraphs because --- MS. MULLIGAN: Well, yes, there is some evidence that if you're really a good liar you can lie with-out being nervous and having the physio-


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logical symptoms. There's also some more recent

studies that show us if you have told the lie sev-

eral times prior to sitting down at the polygraph

machine you are less nervous about telling the lie

because you've repeated it several times, and you

may then also be able to pass a polygraph when you

otherwise wouldn't. The other problem ---

THE COURT: Part of your new-found skill comes from the fact that you're now believing it if you tell it enough times. MS. MULLIGAN: Yes, I guess so, or you're just less nervous about saying it to someone ---THE COURT: Yeah.MS. MULLIGAN: --- or to a police officer because you've told maybe six or seven police officers the same thing. MR. COOPER: This has become an anecdotal depiction now I think, Your Honour. THE COURT: Yeah. All right. Fair enough. MS. MULLIGAN: In any event, Your Honour, we do know there are problems with the reliability of the polygraph.

The other problem in this case too, and I raised this earlier, it occurred to me is that we know Mr. Gaudreault didn't in fact entirely pass his first polygraph, that there was one question on which he did not, so I don't know whether you call that a pass or a failing of the polygraph. There's some other problems with the polygraph. They were very general ques-


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tions. None of that, of course, can the defence elicit to try and undo any damage without the Crown legitimately at that point saying yes but you passed this and you passed that. We can't go there and the jury is going to see that, and there were problems with this particular polygraph that he's referring to. So ---THE COURT: I asked Mr. Dandyk if it would assuage his problems which, of course, doesn't take too much, I suppose, given his argument, that I would say something like, you know, the defence is precluded from even inquiring into his polygraphs because of its inadmissibility. So therefore, you know, how can you possibly think about them? MS. MULLIGAN: It would certainly assist, Your Honour. It still obviously my position is that it's a mistrial, but --- THE COURT: I know what your preferred position is. MS. MULLIGAN: Yes. I think if there was to be ---THE COURT: Yeah. I have both options.

MS. MULLIGAN: Yeah. If there was to be any kind of

warning at all that would at the very least have to

be included so the jury understands why we're not

going there or has some sense. Subject to any additional argument Your Honour may

wish to hear on the actual admissibility of the

evidence in this case that I didn't think we were

arguing, that's all I have to say. If Your Honour

wishes to hear that argument then I


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will need to prepare for that argument properly. THE COURT: Well let me put it this way: given the instructions which Mr. Dandyk fairly described as tactical which he got at the end I think from Ms. Bair, I'm prepared to treat it as it was before lunch and I will not treat it as a full-scale argument for admissibility. The Crown presumably is keeping its powder dry for another occasion when it will be of more value to them, I presume is what they're saying, so I will respect that tactical decision. MS. MULLIGAN: I certainly just -- my only point was that if Your Honour was considering telling ---THE COURT: Yeah, you want to argue further. Well no, I don't think that will be necessary, and I'm only saying this in front of the Crown so it's absolutely clear that that is the situation.MS. MULLIGAN: Thank you.

MR. McKECHNIE: In that case I won't launch into the three-hour argument that I had prepared.THE COURT: Thank you, Mr. McKechnie. Thank you.

MR. COOPER: I'd be interested in that read after work, although ..... MR. DANDYK: Your Honour, might I add a couple of things because we called a little evidence, or at least Ms. Mulligan did, --- THE COURT: Yes. Yes.MR. DANDYK: --- and I just wanted to comment on that.


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THE COURT: M'hmm-hmm. On the evidence, yes. Subject to Ms. Mulligan getting the final. MR. DANDYK: I believe Officer Riddell said some-thing to the effect "he's quite upset he can't mention it" --- THE COURT: M'hmm-hmm. MR. DANDYK: --- "it's a thorn in his side when he's cross-examined like that and he can't even talk about it", talk about these things. That, with respect, is Denis Gaudreault's state of mind and in fact that's evidence that goes to his state of mind, and clearly that's what's playing on in Denis Gaudreault's mind, at least that point.

And the other, I guess, the other aspect we have to

be careful about here is, and Ms. Mulligan just

referred to "when the witness has his own agenda".

Let's not jump to speculation or massive conclusion

here. Speculation -- inference is the only logical

inference from a set of facts. Speculation is

jumping to a conclusion when other options are

available. In relation to Denis Gaudreault and his

blurting it out, there is another possibility here

which makes that speculation. He may, in fact, have

simply inadvertently referred to the polygraph in

context of what he was talking about. It may not

have been intentional. There may be no agenda in

relation to that. So to be fair at least there's no

evidence of it, so that's mere speculation. I think

those are the only additional .....


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Oh yeah, and the further point I make is as to the issue of rebuke, well I think it's there. I mean the Crown's -- the only issue becomes, I guess, you rebuke a police officer because you have a pro-fessional witness as opposed to a civilian and different considerations apply, obviously.

MS. MULLIGAN: I don't know if Mr. Dandyk has been here throughout Mr. Gaudreault's evidence, but I don't think I'm unfair in characterizing Mr. Gaudreault has having his own agenda, his own fight to fight here, and Your Honour can draw whatever ---THE COURT: Well, no, no, I don't think Mr. Dandyk was arguing you were unfair and I don't think I would either. He just says you're wrong. It's not the same thing. MS. MULLIGAN: Well, I think that Your Honour ---THE COURT: Yeah. Okay. MS. MULLIGAN: --- has seen the witness give his evidence to determine.THE COURT: Okay. MS. MULLIGAN: And as far as the rebuke, Mr. Gaudreault is probably more of an expert at being a witness than most police officers, he's probably testified more than most police officers have, in fact, so for Mr. Dandyk to use that as the reason why we don't rebuke Mr. Gau- dreault, in my submission he's well in the position to know what he's doing and he needs


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to be rebuked or stopped, or something at least, if this is to continue. THE COURT: Yes. I was thinking, having nothing to do with this argument, I was thinking a couple of days ago or over the weekend of Mr. Gaudreault and the fact that he -- I hope he's not going into his last third of his 90 days as a witness, he having had about 60 roughly between the preliminary and the first trial, so I thought to myself, you know, that's a lot of time in the witness box and it's also something, quite apart from expertise in tes-tifying, to be frank and to be honest it also has something to do with the ability to not get impatient and to be "plate aussi". MS. BAIR: "plate aussi". THE COURT: So we have all those before us in this trial and we have to keep all the balls in the end. Okay. I think there was a bilingual joke there. All right. The fact that Ms. Bair heard it adds nothing.

That's it for today, everybody. I let the jury go early because I thought we'd probably finish around this time and I thought I'd let them go about quarter to 4:00, and as to whether or not tomorrow morning, if the warning has to be given on this trial is given, if it's a mistrial they'll be gone soon enough and if it's a warning I hope it's timely enough that other places will not consider it untimely that I didn't give it today. I'd just like to have that on the record.


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MS. BAIR: It could've been before lunch, Your Honour, if anybody ever chose to listen to me. THE COURT: All right.

Thank you very much everybody.

--- Whereupon, at 4:30 o'clock p.m. court was adjourned to reconvene at 10:00 o'clock a.m., Tuesday, November 10th, 1998

* * * * * * * *

Certified correct to thebest of my skill and ability

________________________________Gloria D. Neville, C.S.R.Chartered Shorthand ReporterOntario Court (General Division)


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