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WEDNESDAY, FEBRUARY 3rd, 1999--- Upon commencing at 10:05 a.m.

--- Accused presentTHE REGISTRAR: Counsel satisfied that all members of the jury are present?

MS. BAIR: Yes. Thank you. MS. MULLIGAN: Yes. Thank you.

MR. McKECHNIE: Yes.

MIKE McFADDEN, previously sworn THE COURT: Yes? Ms. Bair.

MS. BAIR: Thank you, Your Honour.

EXAMINATION-IN-CHIEF (continued) BY MS. BAIR: Q. Good morning, Mr. McFadden. A. Good morning. Q. I just have a couple of questions for you this morning, I think about five or six before we're finished, and the defence lawyers will have questions after that. A. Okay. Q. Yesterday we were talking about conversations you had with various people at the Carlsbad Springs Hotel on the Thursday night, and one of them was with the little guy Danny you said. A. Yes. Q. Do you know his last name? A. I can't say for sure. Q. Do you know anything else about him, do you know where he worked or works or anything like that? A. No. Q. And what about his height?

McFADDEN, in-chf(Bair)

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A. He's short, small. Q. How short? Shorter than you? A. Yes. Q. And how tall are you? A. Five-eleven, five-ten. Q. Okay. Do you know any other Dans at the Carlsbad Springs Hotel, or did you? A. There might be a few but that's the one I know. Q. All right. I have a question, you said that you went to Giroux's house and you were explaining where you parked and I'm wondering if you can show the jury on a photograph approximately where you parked and in what direction. I'm show you the aerial photograph, except I just unplugged it. This is slide number 1, do you recognize this photograph? Do you recog-nize the area? A. Yes, that's the main highway. Q. Can you get up and show the jury Michel Giroux's house? A. It would this one here. Q. And can you see the parking area in front of the house? A. Right here. Q. There's a car there? A. Yes. Q. Can you tell us in relation to that car and in that general area where you parked on the Tuesday and the Wednesday? A. Around this area here. Q. Okay. And you're indicating on the screen just to the left of the car that's parked there, and there


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looks like there's a path from Giroux's house to the parking lot. A. Right here. Q. Is that the path you walked on? A. Yes. Q. Which direction were you facing when you parked there? A. My car would be facing down towards -- back towards the hill. If you turned around it would be facing this way. Q. Facing as you say back down towards theroadway and down the driveway. A. Yes. Q. Thank you. Did Michel Giroux have a pager, by the way? A. Not that I know of, no. Q. Okay. You never used one, if you did. A. No. Q. And one last area, this is exhibit 58 for the record, it's the wallet of Michel Giroux inside of which we've already heard evidence was located this cheque and it's another cheque marked Drytex Division of - and this time we can see - JWI Ltd. and it's a cheque in the amount of $ 278.69 made out to Mike McFadden. That's you, is it? A. Yes. Q. And it seems to have a signature on the back. Whose endorsement is that? A. That's mine. Q. The date of this cheque is the 12-29-89, so the 29th of December '89?

A. Yes.


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Q. Do you have any specific recollection of when you picked that cheque up or when you gave it to Michel Giroux? A. I'm not exactly sure. It could've been the week before, I'm not sure. Sometime in January maybe.

Q. Okay.A. I'm not exactly sure.

Q. Do you specifically remember giving it to him? A. As far as I know, yes, but exactly what date it was I can't say for sure. Q. Okay.

Now do you have a specific recollection as to why you would endorse a cheque in the amount of $ 278.69 over to Michel Giroux? A. Sometimes I'd owe him $ 100. or $ 50. and instead of going to the bank he would cash it and I'd take the money, I'd pay off what I owed him and then take the money or, you know. Q. From time to time he would be a banker, sort of. A. More or less, yeah. Q. Are you saying that that is definitely what happened this time? A. It could've been. No, I can't say for sure. It could've been maybe I owed him that much, I don't think I would've owed that much but I probably gave it to him and he gave me back some change I guess you would say. Q. Okay. So that's possibly what happened and it's possible that you owed him that much, ---

A. Yes.


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Q. --- you're not sure which. A. Yeah.

MS. BAIR: I wonder if this should be a made a separate exhibit.

THE COURT: If you like.MS. BAIR: Outside of the wallet, Your Honour, so the record is clear that that's where it was found.

THE COURT: All right. THE REGISTRAR: Exhibit 179, Your Honour.

EXHIBIT NO. 179: Cheque from Drytex Division of JWI Ltd. in the amount of

$ 278.69 to Mike McFadden MS. BAIR: Thank you. And I'm returning Exhibit 58 in its bag.

MS. BAIR: And I have no further questions, Mr. McFadden, but I think the defence lawyers will.THE WITNESS: Thank you.MS. MULLIGAN: Your Honour, Mr. McKechnie and I have agreed on this occasion for me to cross- examine first.

THE COURT: Oh, all right. Thank you.

CROSS-EXAMINATION BY MS. MULLIGAN: Q. Mr. McFadden, as I listened to your evidence yesterday you said that you'd been using cocaine for a long time now and you have now been clean for about 10 months -- is that right? -- a little over 10 months? A. About eleven months now, yes. Q. And you were asked specifically by Ms. Bair in relation to previous times when you testified and you said you feel better this time; is that right?


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A. Yes. Q. But you're not saying that on any previous occasion when you took the oath and gave your evidence that you lied under oath, you're not saying that? A. Can you repeat that, please? Q. You're not saying that you lied on any previous occasion under oath because of your drug use. A. No. Q. And when you recalled something previously when you testified under oath you told the Court and when you didn't recall it you told the Court that, right? A. Yes, I remembered it as best as my -- as best I could to the best of my knowledge. Q. You didn't make anything up. A. No. Q. Now you said that the longest you had ever quit using cocaine for was eight months after you were married, -- is that right? -- prior to now? A. Yes. Q. And you were married in June '94; is that right? A. Yes. Q. So that would take you from about June '94 to February '95? A. Yes. Q. All right. I'm just going to ask you some questions about that because in your preliminary inquiry evidence ..... Prior to that, when you say that you had -- the longest was eight months, I guess you maybe had from time to time for a week or so tried to stop or two weeks at a time; is that right?

McFADDEN, cr-ex(Mulligan)

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A. Yes. Q. Never really much longer than that? A. It could've been. Like I said, it's been a long 12 years, you know, ups and downs and stops and starts and to say for sure exactly if it's been two weeks or maybe three months it's hard to say, but I know there was an eight-month period, I was clean for eight months. Q. All right. And any other time prior to that was shorter. A. Yeah, more or less, I guess to remember things like that it's, you know, over 12 years it's hard to remember everything, you know. Q. At the time of the preliminary inquiry for instance in September '91, you testified September 30th '91 and October 1st '91, I take it you were still using cocaine at that time. A. I think there was a period I had to quit around that time, I think, you know, maybe I quit for a little while, you know. Q. So you remember that period of time that maybe you'd quit. A. Well, it was in my testimonies. Q. You've had your preliminary inquiry evidence and your evidence given on a previous occasion in 1995 and your statements to review, right? A. Yes. Q. You've had those at home with you? A. Since '95? Q. Since 1995? A. No.


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Q. Okay. You had them at home with you recently. A. Recently, yes. Q. Okay. And you've reviewed all of that evidence? A. As best as I could, yeah. Q. And you met, of course, for preparation. How many days did you do that for with the Crown attorneys? A. It would be Friday and Monday. Q. Okay. All day? A. Friday was all day. Q. M'hmm-hmm? A. And Monday was a partial day. Q. After Mr. Giroux was killed did you continue using cocaine? A. Not -- not right after but later on I did. Q. What does that mean, how long after? A. It could've been a month there or three weeks, I'm not exactly sure but I know I started again. Q. And then did you stop again, did you quit again after that, sort of a month after or two months after? A. I might've stopped for a little while and then began again. It's like I said there was a lot of periods where I stopped and started. Q. When you were asked some questions about your drug use, I want to see if this assists you, September, 30th, 1991 you were asked a question at page 130. Page 130, September 30th '91, do you have it there? A. Just a sec. Excuse me. Q. I can just read it to you if you like. A. Okay, go ahead, I think I have it.


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Q. You were asked a question in the middle of the page: "Q. And how long have you been an illegal drug

user?

A. Three years.

Q. Three years as of when, today or then?""then" meaning the time that this happened. A. M'hmm-hmm. Yes. Q. "A. Then.

Q. So three years prior to 1990 in January you'd started using illegal drugs?

A. Yes.

Q. What type of drugs were you using?

A. Cocaine.

Q. Is that the only drug you used?

A. Yes.

Q. So you didn't start off with hash or pot or anything, you went right to coke?

A. Yes I did.

Q. And you were snorting, mainlining, free-

basing?

A. Snorting. Snorting."

A. Yes.Q. "Q. Just snorting?


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A. Just snorting.

Q. Still using coke to this day?


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A. No.

Q. When did you stop?

A. About a month after this episode happened.

Q. So even after you made this observation you kept using coke?

A. Just a couple of times.

Q. Yes, obviously Mr. Giroux was your supplier in the area?

A. Yes he was.

Q. He was your sole supplier?

A. Yes he was."Just stopping there, sir, do you agree you gave those answers to those questions? A. Yes, like as best as I could -- best to my knowledge I gave them, you know. Q. Were you trying to leave the impression, sir, when you answered that you weren't using coke and you had stopped about a month after this episode had happened that as of September '91 you'd been coke-free since January or February 1990? A. No, well like I said there was times you stopped and times you kept going, you know. There might've been a two-week span where you didn't touch it, you know. Q. But you didn't say that on this occasion when ---

A. No.Q. --- you were asked about it.

A. No.


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Q. Perhaps just to be fair to you we should see what you say in May 1995. May 11th, 1995 at page 9, you were asked about your cocaine use about line 8, page 9: "Q. When did you quit, sir?

A. About -- I'm not exactly sure when it was.

Q. Have you quit?

A. Yes.

Q. Did you quit with the help of a program or?

A. No, just out of cold turkey they call it I guess.

Q. You don't recall when you quit?

A. It was a while ago.

Q. Months? Years?

A. I can't say for sure."

Do you remember those questions and answers? A. Yes. Well I remember them by reading them, yes. Q. Had you in fact quit in May of 1995 for several --- A. Like I say I might've stopped, you know, a couple of months here, a couple of months there.

Q. So it was just fortunate ---A. Like I was stopped, you know, like maybe I

was stopped for two weeks and considered -- to me I guess I considered that I was stopped. Q. Okay. And it was just fortunate that every time you testified you had stopped so you were able to say you had


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quit; is that right?


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A. Well like there could've been times where, you know, there could've been a couple of weeks span or, you know, maybe if I knew I was coming, I don't know. Being a drug addict, you know, there's times when you think you stopped and you haven't and then you continue again. Q. Well, just to complete the picture, at page 41, the same transcript on the same date, you're being asked about where you bought drugs after Mr. Giroux died. Line 10: "Q. Where did you buy your drugs after Giroux

died, who did you buy them from, or was your habit miraculously cured the day he died?

A. It was ---

Q. Pardon?

A. --- from a friend there.

Q. Who?

A. From a friend from Vars.

Q. Who?

A. Andy Hanson.

Q. You went back to buying them from?

A. Just -- it didn't last very long.

Q. How long?

A. I can't say for sure.

Q. A week, two weeks and you were cured?

A. Maybe a month or something.


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Q. And you were all through, you'd managed to kick the habit right after he died, is that what you're saying?


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A. Pardon me?

Q. Did you kick the habit within a month?

A. No, no, I'm not -- I can't say for sure, I'm not sure when I quit.

Q. When did you last use cocaine?

A. Quite a while ago.

Q. When?

A. I can't say for sure what day.

Q. This year did you use cocaine?

A. No.

Q. Last year did you use cocaine, the year

before?

A. I can't say for sure when it was."Do you remember those questions and answers? A. Yes. Q. Again, you're saying that what you really meant to convey was that you'd quit and you'd start and you'd quit and you'd start? A. Yeah, there was -- there was, you know, it wasn't a definite time when I stopped, I guess it was, you know, like I said you went a month without it or a couple of months, you figured you were doing good and then you'd fall back again. Q. Back around January 1990 you said that you were using three to five times a week; is that right? A. Yes. Q. How much were you using, what was your weekly intake of cocaine roughly or approximately?


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A. Three quarters of a gram per week.


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Q. So sometimes you'd use less than a quarter of a gram at one time, right? A. No, I was using quarters. I usually bought quarters. Q. So if you were using three to five times a week, then it wasn't -- the average wasn't three-quarters of a gram. A. Well it depends, if it was three days a week it'd be three quarters, if it was three to five days it'd be three quarters to a gram and a quarter. Q. And that was it, that was the extent of your use. A. Yeah, it never went beyond. Q. And I didn't understand, yesterday you talked a lot about your family situation. You weren't suggesting that you started using because you were upset at your father and the farm, is that what you were saying? A. It was around that same time. Q. But is that why you started using, is that what you're suggesting? A. It wasn't the main reason. Maybe it had something to do with it but it started around that time. Q. On previous occasions have you not answered that you just started using because you were bored? A. Yeah, that was -- yeah, like I said you asked me if it had to do with the farm and I just answered what you asked me. Q. M'hmm-hmm.

After you met up with Mr. Giroux your intake of cocaine or your use of it increased, did it not, after you started getting it from him?


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A. It increased? Q. Yeah. A. It may have a little bit, like it never went beyond the amount I just told you. Q. And you never owed him more than $ 100. as far as you're aware. A. Not that I know of. Q. Now you said you owed Mr. Giroux $ 100. at the time of his death? A. As far as I know, yes. Q. Well is this something that you remember or something you'd refreshed your memory about? When you say "as far as I know" I'm not sure --- A. Well just by reviewing my ..... Q. So that's something that you previously told the police or testified to. A. Previously? Q. Yes. Before this. A. Before today? Q. Yes. A. It was in --- Q. You'd already said it to the police under oath, right? A. In my statement I think or ..... Q. Okay. I'm not asking you to try and remember where ---

A. No.Q. --- in all the materials, I'm just saying

it's something you've said before ---A. Yes.Q. --- that you owed $100.


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A. Yes. Q. And you in fact wrote Mr. Giroux a cheque out for that amount, did you not? A. Yes I did. Q. You were in fact supposed to meet Mr. Giroux on Friday, February 12th, were you not? A. That was -- like I said that was in my evidence, I guess I mentioned it, or somehow it came up that I was supposed to meet him. Q. Okay. You were supposed to meet him to deal with this debt on Friday, February 12th and we know that's the day you ended up -- you were at another bar and you got stopped for impaired. A. Yes. Q. Do you recall now why it is that you went somewhere else rather than meeting Mr. Giroux? A. Well, like I said we went with my brother and another guy from work to celebrate our new short-term jobs I guess you'd call it. Q. So you weren't avoiding Mr. Giroux. A. No. Q. And I guess if it's a hundred-dollar debt you said sometimes you'd pay cash for your drugs and sometimes it was fronted; is that right? A. Most of the time it was cash. Q. Most of the time it was cash? A. Yes. Q. So $100. might have built up for a week, a week and a half, two weeks, something like that? A. Yeah, a week or so. Q. Not too much longer than that usually?


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A. No. Q. And so if you were to meet Mr. Giroux on that Friday to pay it, you might've been at about a week or a week and a half of owing him that money; is that correct? A. Yes. Q. And in fact you didn't meet him on the Friday. Did he call you, was he upset, did you learn anything about that? A. No. Like I said we never had a problem with one another. Q. I'm sorry, I may have said Friday, February 12th, I meant Friday, January 12th. You knew which Friday I was talking about? The Friday before --- A. I didn't hear the date. I heard the 12th, I figured it was January. Q. January the 12th. All right.

But you did see him on Saturday, did you not, Mr. Giroux? A. I can't -- I can't say for sure if I'd seen him Saturday or that weekend. Q. Okay. I'm just looking at your preliminary inquiry evidence of October 1st '91, page 14 beginning at about line 4: "Q. And I understand as well that on the Friday

prior to the -- the Friday before he was killed you were to have met Giroux" ---

I'm sorry, I'll give you --- A. Can you repeat that again, please? Q. Yeah, I'll give you a chance to find it if you want. A. I've got it here.


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Q. October 1st, page 14. A. Yes. Q. Okay. Line 4: "Q. And I understand as well that on the Friday

prior to the -- the Friday before he was killed you were to have met Giroux at the Carlsbad to pay back a front debt?"

A. I guess I was supposed to, yes. Q. The answer you gave then was "Yes"? A. Yes. Q. It was a lot closer in time I guess when you testified in October '91 than now. A. Yes. Q.

"Q. Okay, and how much was the debt itself?

A. $100.

Q. And I gather as well that you did not meet him on the Friday.

A. No I didn't.

Q. Okay. And in fact you never actually did meet him, period.

A. Yes I did, yeah, I paid him the -- I gave him

a cheque for $100.

Q. You gave him a cheque?

A. Yes.

Q. And where did you give him the cheque?

A. Where was it? No, it was at the Carlsbad.


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Q. You wrote a cheque for the coke at Carls- bad?

A. No, I just gave him a cheque at Carlsbad."


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A. M'hmm-hmm.Q.

"Q. Okay. And when was that?

A. I think it was on the Saturday. The Saturday.

Q. And this would be in the daytime or in the evening?

A. In the daytime.

Q. And then were you by yourself at the time?

A. Yes.

Q. Did anybody else see this?

A. I don't think so, no. No."

So stopping there, does that help you at all with whether you saw him on the Saturday and gave him a cheque? A. It might've been the Saturday I guess if that's what I -- I've been reviewing this stuff but it's very difficult, there was a lot of things you can't --- Q. But if you testified to that in September '91 you would've been doing your best to tell the truth? A. Yes. Q. And your memory was fresher at that time. A. A lot fresher, yeah. Q. And that Saturday we're referring to would've been Saturday the 13th, then, right? A. Yes. Q. That cheque bounced, did it not? A. As far as I can -- as far as my knowledge goes I think it did, yes. Q. Okay. Do you recall having testified previ-


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ously that the cheque was returned NSF?


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A. Whether it came back to me, I'm not exactly sure if it came back to me or I was notified from the bank. Q. All right. Just if we go to the next page, sir, it might help to refresh your memory. Just read it to your-self. And also page 27 may assist you, the same transcript. A. 27? Q. Yes.

A. Okay. Q. Does that refresh your memory as to whether the cheque -- whether there was insufficient funds for that cheque? A. Yes. Q. And you knew that when you testified at least in September 1991 that that's what had happened. A. Yes. Q. Common sense tells us, sir, and you'd agree, that that means that Mr. Giroux or Manon Bourdeau or someone on his behalf would've had to try to deposit that cheque or cash it. A. Yes. Q. Now as to whether or not Mr. Giroux knew you can't say, as to whether or not he knew whether it bounced prior to his death? A. Yes. Q. But certainly when you went -- when you went over there on the 17th would you have known by then or did you think that you were all paid up at that point? A. I realized after I guess by what it says here that other money -- another cheque had gone through and there wouldn't have been enough in there.


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Q. And prior to that, that hundred-dollar debt would that likely have been all that you would've owed Mr. Giroux on front in January since you usually paid cash and this was only January 12th by the time you owed it? A. Can you repeat that again, please? Q. Okay. You said you had a hundred-dollar debt by January 12th, you were to meet Mr. Giroux to pay it? A. Yes. Q. You actually tried to pay it on the 13th. A. Yes. Q. Okay. Given that you said you usually paid cash would that $ 100. represent your entire debt for the month of January to Mr. Giroux by that time? A. That week, yes. During that week, probably. Q. Had you paid Mr. Giroux any other money on front in January that you can recall, or had you paid cash for your drugs? A. Well I gave him that one cheque we discussed earlier, the other one. Q. Okay. But you don't know when you gave him that cheque. A. I'm not exactly sure when that was. Q. And given that he put this $ 100. or someone put this $ 100., tried to put it through, this hundred- dollar cheque, and it came --- MS. BAIR: Objection. THE COURT: All right. Members of the jury,

please retire.

--- Whereupon the jury retired at 10:40 a.m.


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--- In the absence of the jury THE COURT: In the absence of the witness? MS. MULLIGAN: I would prefer it, yes. THE COURT: Yes, all right. Fine.

MS. MULLIGAN: If the witness could just step out for a moment.

THE WITNESS: No problem.

--- Whereupon the witness retiredTHE COURT: Yes?MS. BAIR: I think my friend is not nearly in the position where she can state to this witness as a fact given that the cheque went through the bank, given that it bounced. We have only his common sense supposition that Giroux must have tried to cash it and, quite frankly, if you read the entire record at the preliminary hearing there's no foundation, the witness doesn't remember being notified by the bank, he can't say for sure. All he knows is that there was enough funds in that account for the cheque to go through. So we don't have a foundation to argue with this witness as a fact which my friend just did, that the cheque went through the bank and therefore anything. Her question to him was "common sense tells us that either Giroux or Bourdeau would have had to try to cash it." I don't think common sense gives her the foundation to put it as a fact.

MS. MULLIGAN: Or someone on their behalf.

I can give you the foundation, Your Honour. Mr. McFadden now said he was aware that the

(In the absence of the jury)

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cheque bounced or there was insufficient funds, and if we read his evidence at the preliminary inquiry which I asked him to read to himself he talks about giving him this hundred-dollar cheque and he's asked:

"Q. Okay, and I gather the cheque was never cashed?

A. Supposedly it went through, yes, but I

haven't -- actually it bounced.

Q. Ah!

(Witness laughs)

Q. Okay. So the debt was never paid.

(Pause)

A. I guess it wasn't, no."And then on page 27 at the preliminary inquiry under oath Mr. McFadden is again asked about this by Mr. Addelman:

"Q. Mr. McFadden, you bounced a cheque to your drug supplier.

A. That's what I said yes.

Q. It was 100-dollar cheque?

A. Yes.

Q. And it was the first cheque you'd given him?

A. Yes.


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Q. It's a little risky bouncing a cheque to the fellow that's supplying you with all these drugs.

A. Yes.


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Q. What was the reason for the cheque not going through?

A. There wasn't enough funds in the account.

Q. That's generally the reason. You didn't know that?

A. Well I figured there was enough but there was -- I was short.

Q. How long have you had this account, this particular banking account?

A. Oh, it's one I never used often, it was my only chequing account I had.

Q. So you had a chequing account ..."

And there's talk about how many accounts, he says where the account is, at the top of the

next page he gives the account number, he remembers the chequing account number. He said it's been closed, by the time he testified, for three or four months, it was closed because of NSF cheques. He's asked:

"Q. Had there been prior NSF cheques on that account?"

MS. BAIR: Wait a second. MS. MULLIGAN: Page 29.

MS. BAIR: Where does it say it was closed for NSF cheques?

MS. MULLIGAN: Oh no, sorry, you're right. "Q. Did the bank close it because of ---

A. No, I did.


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Q. --- NSF cheques?

A. No, I did."You're right.


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"Q. Had there been prior NSF cheques on that account?

A. A couple, yes.

Q. A couple?

A. Yes."

It didn't result in criminal investigation, and

there's talk about the fine that he owed.

Then on page 31: "Q. When you gave Mr. Giroux this cheque it's the

first time you had ever given him a cheque; is that correct?

A. Yes.

Q. And you just assumed there was funds in it?

A. Well there was, there was funds but I had a

previous cheque come out before which I forgot about, well I really didn't forget about it, it just slipped my mind.

Q. It slipped your mind. How much money did you have in the account when you gave him the cheque?

A. There was $185.

Q. In the account?

A. Yes.

Q. So it would've cleared.

A. But this previous cheque came through.


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Q. How much was that previous cheque to your recollection?

A. It was 105, $105.


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Q. All right. So you would've -- you would've been just a little under what you required.

A. Yes.

Q. Now did Mr. Giroux ever say anything to you about this cheque?

A. No.

Q. He must've put it through if you say it

was returned.

A. Yeah, he went through -- it went through, yes.

Q. It went through? Did it go through Mr. Giroux's account, are you able to tell?

A. I don't know.

Q. Any endorsement, have you seen that NSF cheque?

A. No I haven't.

Q. But Mr. Giroux when you spoke to him never

commented about the money that was owing to him ---

A. He never mentioned it, no.

Q. --- by way of this NSF cheque?

A. He never mentioned it, no."He goes on about having given the cheque on the Saturday, that he didn't know it wasn't going to go through then.


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I think that covers his evidence to that point. I don't have the actual trial records but my recol-lection is that he couldn't recall all that at the trial. But in any event he tes-


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tifies under oath it went through but there was insufficient funds. So I don't know how much more foundation I need to put the question to him. I don't know who put it through but obviously if he's aware that there was insufficient funds and he's telling us under oath ---THE COURT: That has nothing to do with the cheque going through. One is presenting the cheque at the bank and the other is the knowledge of the state of your balance, which are two separate things.MS. MULLIGAN: Except that Mr. McFadden says, when he's asked that question: "Q. He must've put it through if you say it was

returned?

A. Yeah he went through -- it went through, yes.

That's his evidence on a previous occasion so while there's some ambiguity surely I'm entitled to ques-tion about that area.MS. BAIR: I haven't said you can't question about the area at all. I said she has not established the foundation to question in the manner that she did. That's the problem. He says there was insufficient funds in the account, definitely that's what he says and I'm sure he'll say that again, there were insufficient funds in the account. She can't put it to him as a fact at this point on the basis of what my friend has done in front of the jury that that cheque went through the bank. She hasn't established that. She has "common sense


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tells us that they must have put it through." Maybe. Yes, common sense tells us that. Well it's not a fact to say given that it did then, how about this. She can say if it did, she can't say given that it did as a fact because we haven't established that.THE COURT: Well, even under the clearing rules I don't think that between Saturday and Tuesday people have got to be going pretty good.MS. BAIR: Well there was a great deal more cross-examination about this and the sum total of it is he can't recall ever having heard from the bank, he says he has never seen the cheque. What we do know is that he knows he didn't have enough funds in the account.MS. MULLIGAN: I wasn't, just for Your Honour's query, I wasn't suggesting that he had gotten notification of it by that Tuesday or Wednesday, whenever it was that Michel Giroux was killed. I was suggesting that at some point he became aware because it went through which would've meant that, in my suggestion, that someone had tried to cash it.THE COURT: Well I would think it would even be doubtful that Giroux would know by Tuesday if he presented the cheque on Monday or Tuesday, Giroux would not know either.MS. MULLIGAN: I'm not suggesting he would. That's what I said, "you don't know whether Mr. Giroux had any knowledge of it not going through", but if it did go through the account in some fashion, returned or whatever, and


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that's at least one answer that Mr. McFadden gives suggests, that meant that somebody had to go and try and put it through and if he gave it to Mr. Giroux I was suggesting to him that common sense was that someone on behalf of Mr. Giroux, Mr. Giroux, or someone he gave it to, or something. But in any event I can try and do it another way, go at it one step at a time. Instead of trying to take big leaps, I'll try and do it in small steps.

THE COURT: I think there's some foundation for what

the Crown is objecting to, given all the other

answers.

All right, bring in the jury.

Well anyway, Ms. Mulligan, you aren't going to save

the cheque stamped on the 17th from the witness too

much longer.MS. MULLIGAN: No.THE COURT: No. Good.


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--- Upon resuming in the presence of the jury at 11:50 a.m.

MIKE McFADDEN, resumes on the stand THE COURT: Yes, Ms. Mulligan.

MS. MULLIGAN: Thank you.

CROSS-EXAMINATION (continued) BY MS. MULLIGAN: Q. Getting back to the hundred-dollar cheque that you -- that would've been a personal cheque that you wrote out to Mr. Giroux, right? A. Yes. Q. And at the time when you wrote it I take it you didn't mean to be writing a cheque that wouldn't have gone through, you thought you had sufficient funds at the time you wrote it? A. Yes, and then I realized after. Q. And how did it come to your attention after that you didn't have sufficient funds? A. I probably went to the bank or I just realized after there was a cheque going through. Q. But when you say "probably" I'm wondering what you actually remember how you found out. Do you remember or do you not? You're saying "probably", "maybe". I don't want you to guess. A. I might've been informed. I can't say for sure. Q. So you don't know how it is that you became aware that there was insufficient funds. A. To remember, no. Q. Did you get at that time statements on your account? A. I don't think so, no. I'm not exactly sure.


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Q. It was a chequing account? A. Yes but I don't know if I had statements come or not. Q. Did you get your cheques back when you wrote a cheque, did you get them returned from the bank? A. I think it was an option whether you did or not. I don't think I did. I'm not sure. I can't say for sure. Q. So what is your state of knowledge as to whether anyone ever tried to cash that cheque, do you have any knowledge or not? A. It might've been tried to cash -- it must've been because -- or whether I was informed, I was informed probably, that's how I found out, so somebody tried to probably cash it. Q. You understand the difficulty I'm having, you're saying "it must've been", "probably", "I might've been." A. Well, unless it's in my previous testimony. Q. Well there's a whole bunch about it in your previous testimony. Do you want to turn to --- A. But I mean whether it was actually stated that it was tried to cash, I don't know if that was in there or not. Q. Do you want to turn to October 1st '91.

THE COURT: Q. Don't approach the problem from the cashing

in, approach it from what your knowledge is. Do you understand what I'm saying? A. Yes. To my knowledge whether I know if it was tried to cash, I probably heard that it was tried to -- I probably was notified from the bank. Q. No, not probably.


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A. I think I was notified --- THE COURT: On this one "not probably".

THE WITNESS: Okay. MS. MULLIGAN: Q. What's your best recollection?

THE COURT: Yes. Thank you, counsel.MS. MULLIGAN: Q. What's your best recollection?

A. Just give me a second here and I'll --- Q. Okay. It may help you if you go from page 31, 32 of October 1st. A. I'm sorry about this. To read everything word for word and remember everything it's very difficult, for me anyway.

Well the reason I figured it didn't go through was because there was a previous cheque came out for $ 105., so that was the reason I guess I figured it wouldn't go through. Q. So you had $ 185. in your account and a previous cheque came out for 105. A. Yes. Q. All right. And if you go on on that page maybe you can just explain your answer, then: "Q. He ..." meaning Mr. Giroux

"Q. ... must have put it through if you say it was returned.

A. Yeah, he went through -- it went through, yes."

Are you able to explain if you actually knew that or what you were talking about in that answer? MS. BAIR: Go on a couple more lines.


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MS. MULLIGAN:


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Q. Okay. "Q. Now, did Mr. Giroux ever say anything to you

about this cheque?

A. No.

Q. He must have put it through if you say it was returned.

A. Yeah, he went through -- it went through, yes.

Q. It went through. Did it go through Mr. Giroux's account, are you able to tell?

A. I don't know.

Q. Any endorsement, have you seen that NSF cheque?

A. No, I haven't."So when you say "it went through", "it went through" can you explain why you say that? A. I don't know. I guess I might've been confused by the questions or, you know. There was a lot of questions that day, you know. It's --- Q. So there were a lot of questions and you may have been confused? A. Well about this certain incident about this cheque episode. Q. Okay. And the best we can do today is you don't know whether or not you were ever notified by the bank. A. Yes. I don't think I was ever. Like to remember that, I don't know if I was notified or not. I guess I don't know would be the answer. Q. As opposed to "probably I was informed", "I


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don't know" would be the answer. A. Yes.


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Q. One thing we do know the cheque that was just made a separate exhibit, however, Exhibit number 179, you recall somewhere somehow giving this cheque to Mr. Giroux. A. Yes. Q. This was the cheque from Drytex for 278.69? A. Yes. Q. You don't know where you gave it to him at, like whether it was his home or the hotel? A. To say for sure, I can't recall when I gave it to him or where. Q. And you're not entirely sure whether it was for a debt or more drugs or some combination, or cash and debt, you're just not sure. A. It could've been for drugs, it could've been for a small debt. Q. You had -- this is your signature on the back, you had endorsed it over to Mr. Giroux? A. M'hmm-hmm. Yes. Q. Did anyone tell you -- when you were speaking with the police did anyone tell you that this cheque had been found in Mr. Giroux's wallet uncashed? A. Yes. Q. Were you ever shown a similar cheque, a hundred-dollar cheque that was found, you know, a personal cheque, in Mr. Giroux's home or anywhere, did the police ever show you anything like that? A. If it was the police or whether it was in the previous exercise I guess you'd say. Q. A 100-dollar cheque? I'm talking about this personal cheque you wrote him. A. I can't say for sure.


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Q. Did you ever see -- you don't know if the police ever showed you something like that. A. Not that I don't know, it's I don't remember if they did or not, you know. Q. All right. A. I'm trying to remember everything as best as my knowledge. Q. It's also difficult, would you agree with me, when you're using a fair bit of cocaine to remember precise events and dates and times, and things like that, is it not? A. I don't think so. Q. It doesn't affect your memory at all, the use of cocaine? A. I don't think so, no. Q. So it's unlikely you'd have dates and events mixed up or have two events that happened on one day separated into two days or anything like that? A. The only problem I'm having right now is remembering nine years ago, you know. There's a lot of things you do during the day that you don't, you know, like you don't recall, well you recall doing them but exactly what time it was, but there are certain things that you do remember. Q. Well you said in your evidence a few moments ago when Ms. Bair was asking you questions that you would sometimes give Mr. Giroux a cheque and you'd take some cash back from him, you'd give him more money. A. Yes. Q. Was that also a paycheque or some kind of cheque from work, or was that personal? A. Sometimes if I had -- sometimes it would be -- it was a paycheque usually, you know, sometimes if I didn't


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-- from my remembrance, you know, I'd usually go to the bank but then sometimes on the way home if I met up with him in that case it was a small cheque, so to me I didn't think it was ..... Q. Prior to this hundred-dollar cheque that you gave him on the Saturday before he was killed, had you ever given him a personal cheque before either for a debt or for cash or for both, for drugs? A. As far as I know it was just the work cheque. Q. Okay. So that would've been the first personal cheque you gave him. A. As far as my knowledge. Q. And you never had any kind of arguments, I think you said, with Mr. Giroux over your debt, you never had any problem with him? A. No. Q. Did you ever meet anyone named Serge Nadon? A. No. Q. You said that you paid your bills and then what was left over went to cocaine, is that your evidence? A. That was one of my -- yes. Q. So you would pay your bills, it wasn't that you were actually way behind in your bills, you'd pay them but then every other cent that you had that was extra, not every other ---

A. No.Q. --- but pretty close, you'd put into drugs.

A. I tried to pay my bills, you know, and if I had any left it went towards my habit.


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Q. In and around January 1990, sir, you had a chequing account, you were dealing at the Royal Bank; is that right? A. Yes, in Navan. Q. And you had a chequing account and a savings account? A. Yes. Q. Do you recall in and around that time being overdrawn by about $ 711.? A. No. Q. Money starting to -- finances starting to become more of a problem around that time? A. You know it was -- I don't know if you'd say it was a problem but ..... Q. Well, were debts starting to build up, bills and debts and money owed to friends? A. I never owed friends, just the $ 100. the odd week and stuff like that to Mike but that was about it. Q. Did you ever sit down with your father at some point and discuss your financial situation and see if he could assist you with either co-signing a loan or getting a loan? A. I might've when I bought a car, I forget what year that was. Q. Okay. And did you have problems paying that loan because of your cocaine --- A. Eventually, yeah. Q. And was that because of your drug use? A. It probably was. Q. And did you sit down with your father then and discuss what the problem was?


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A. Eventually. I'm not -- like I said I'd have to -- I forget exactly what year it was I told him, I eventually came out and told him that I had a problem, that my loan wasn't paid -- being paid, that I was using. Q. Did you pay it for very long on time? A. Pardon me? Q. Did you pay your loan payments for very long on time on that loan? A. I can't say for sure. As far as my knowledge I was paying them when they had to be and then eventually I got behind a little bit. Q. Back to your ---

THE COURT: Q. Just to make the time line abundantly clear,

this was after the death of Mike Giroux, was it, when you came clean with your father? A. Yes, it was. Q. Okay. MS. MULLIGAN: Q. And you're sure that you never spoke to him about your drug use prior to the death of Michel Giroux. A. I'm pretty sure it was after. It was after, yeah. Q. Did he ever speak to you about his suspicions of your drug use prior to his death? A. He might've talked to my mother about it but he never confronted me about it I don't think. Q. Well did your mother speak to you about prior to Michel Giroux's death? A. Maybe she had've. I don't know. Q. Is it possible?


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A. Yes, it's possible. Q. Looking at your records, sir, the first thing on your criminal record you said was that broken truck window as a youth, right? A. Yes. Q. Were you actually going to break into the truck and then got scared or you just broke the window? A. I think I just did it out of spite. I was with older guys and --- Q. Okay. A. --- young and foolish I guess you'd say. Q. The next entry was an April 13th, 1986 offence, I don't know when the entry actually was but it was stealing of a credit card you say. A. Yes. Q. And as I understood your evidence you sort of said you were with someone else and you were hanging out with the wrong people I guess, eh? A. Yes. Q. So you were influenced into doing it? A. No, I think I just did it, like I said, out of, you know, --- Q. But you had said something about a friend, an older friend that was with you, right? A. Well I was with an older fellow, a couple of years older than me. Q. And did he have something to do with getting you to do this crime? A. No, it was -- it was done on my own -- out of my own -- I did it on my own but he was present at the time.


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Q. In fact did he even know it was a stolen credit card? A. I don't think so. Q. You told him it was your mother's, did you not? A. I can't recall that far back. Q. You were actually arrested after you tried to use the credit card to buy a pair of boots for $144., does that ring a bell? A. Something like that, yes. Q. And this had been you had gone to someone's house to play cards? A. Yeah, it was a party at night, I forget which, it was a Friday or a Saturday or a Monday, I don't know. Q. But you were playing cards with a bunch of people. A. Playing cards and drinking and stuff like that. Q. And you got up at some point to go to the washroom and you went into the bedroom instead. A. Yes. Q. And you saw, the person whose house it was, you saw their wallet there. A. Yes. Q. So you helped yourself to a bank card and a credit card and a cheque, did you not? A. I don't know if there was a cheque but I remember the credit card. Q. You don't recall a 200-dollar cheque, the back of which you endorsed before you were arrested? A. No.


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Q. Now, your date of birth I believe it's February 1967, right? A. Yes. Q. So you would've been about 19 years old when this occurred. A. '86? Q. Yeah. A. Yes. Q. Okay. Now the $ 3,000. from your parents, you claim that you used that money to fix up a car; is that right? A. Yes. Q. When did you get the Chrysler Laser that we've heard about that you had in January 1990? A. I forget what year that was. I had a Buick Regal prior to that but the exact dates I ..... Q. Well the loan, you said you had a loan for a car. Which car was that, the Laser? A. Yeah because I had the Laser at the time, yes. Q. A seven thousand-dollar loan, does that sound about right? A. Six or seven. Q. And the $ 3,000. was to fix up which car, then? A. It was for the other car.

Q. The Regal? A. Yes. Q. And just while we're dealing with your Laser for a moment, were there any primer spots on your Laser in January 1990, spots that had primer instead of paint?


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A. I can't recall that. Q. Was there a time when you were in the process of painting your Laser and it wasn't finished? A. I don't think so, no. I can't recall that. Q. Well this $ 3,000., sir, I suggest to you most likely occurred some time near the end of '89 or beginning of 1990. Does that sound right to you? A. It was before I bought this other car because I used it to fix up the other car. Q. And you don't know when that was? A. It was when I had the other car but what the dates I can't -- it was before the Laser. Q. Okay. And when you say used it to fix up the other car, what did you use it for, what kinds of things? A. Tires, rims. Q. Tires and rims? And that wasn't just something -- a story you made up for your parents, that's in fact the truth. A. That's what I told my mother, yes. Q. And that's true. A. Yes. Whenever I gave the reason why I said it was a story but it was a story that I told my mother, like I mean it was -- the way it was I worded it, I worded it. Q. You've read this part of the transcript obviously, you're preempting my question. A. No, but I'm just explaining to you before you get to it that, you know, it was a story but it sounded like it was a made up story but it was the story I told my mother what the money was for, it was the story. Q. Okay. So that the jury knows what we're both talking about, ---


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A. M'hmm-hmm.Q. --- page 167, May 10th, 1995 you were asked a

question about line 11. A. What page did you say that was? Q. 167. A. Okay. Q. "Q. Didn't you once use a bank card to defraud

them ..." Meaning your parents.

A. Yes.Q."Q. ... $3,000.?"A. Yes.Q.

"A. Yes.

Q. When was that?

A. I'm not sure what year it was or what date.

Q. And I take it they would've confronted you about that and you talked to them about it?

A. My mother.

Q. Yeah. And you would've told them that the

reason you were in such financial difficulty was because of your cocaine habit.

A. I never mentioned it then.

Q. They surely must have asked you what you did with the money. Did they ask you what you did with the money?

A. My mother did. I just -- I made up a story


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about putting tires and rims on the car or


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something like that."

And what you're saying now is that when you said that you made up a story that you didn't actually make up a story, it was a true story. A. Yes, I stated that in the previous -- previous exercise. Q. And your explanation for that is that it just was the way you worded it. A. More or less, you know. Q. Sir, the $ 3,000. in fact you had taken a loan ---

MS. BAIR: Objection. Surely my friend is going to continue with the rest of the explanations from the same proceedings that round out the record.MS. MULLIGAN: Well, my friend can do it in re- examination but if she wants to tell me where they are then I will read them to the witness.MS. BAIR: I'd be happier to leave it to re-examination if you'd like to leave the impression you've left.

MS. MULLIGAN: Well, Your Honour, that's ---THE COURT: The jury is alerted. The witness won't be that long. We'll do it in re-examination. We should be to that reasonably soon, I would think, I don't know, within a day unless I'm wrong, I don't know.MS. MULLIGAN: Well, Your Honour, I'm more than happy to put everything before this jury but I don't know what references my friend is referring to.


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THE COURT: Well, all right, then let's do it in re-examination and that's fine.

I mean I'm assuming my premise is right, he's not a witness like Mr. Gaudreault that we're going to have for a couple of weeks or something.

MS. MULLIGAN: No. THE COURT: No. Okay.

MS. MULLIGAN: But it's also not correct charac-terization to say that I wanted to mislead the jury. I don't know of the other references. If my friend wants to point them out I'll put everything before the jury.THE COURT: No. We're not misleading, we'll get it all out there somehow.

MS. MULLIGAN: Okay. Q. The following day, apparently, you're asked about this again. A. Yes. Q. On page 20 you're asked by Mr. Orr: "Q. Okay. The $ 3,000. from your father that was

stolen just for something to do?

A. It was for tires and rims for my car."And then you're asked some questions about your conscience.

A. Yes.Q. And page 36?A. 46.Q. 46?

"Q. Did you say this morning, sir, that the money that you ripped your father off for, that was for tires, I take it?


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A. Tires and rims, yes.

Q. That's what it was for, am I right?

A. Yes.

Q. Well did you not say yesterday that that was a story that you told your mother?

A. No, I said that's what I told my mother.

Q. Well you said nothing about it being a story

that you'd made up?

A. I think I told her ,whatever I said it was for, tires and rims.

Q. You said nothing yesterday about it being a story?

A. No, I said the story was I told my mother I

got tires and rims.

Q. That was a true story.

A. Yes.

Q. You bought tires and rims for what?

A. For my previous car I owned before the Laser.

Q. So the tires were how much, what would be

good tires -- what? -- they'd be 500 dollar tires?

A. For four tires, five tires, it was -- I'm not sure of the exact amount but it was $ 700. I think for all the tires together.

Q. Yeah. And then how much money are we talking from your father?


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A. Pardon me?

Q. How much money are we talking that you got

from your father, you ripped him off?


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A. Three thousand.

Q. Three thousand. Okay, that accounts for seven off, even back on the farm seven from ---

A. Twenty-three hundred.

Q. Twenty-three hundred, yeah. And then where did the other 23 go?

A. For rims.

Q. For rims?

A. From rims.

Q. Twenty-three hundred. So this is for which car, sir?

A. I had a Buick Regal prior to the Laser.

Q. Okay. Now you weren't on drugs or anything

when you did that, when you -- when you ripped him off?

A. It was three years before. I'm not sure what

year it was when I got the tires, it was probably '88."

Well it goes on and on about those tires and rims. "Q. Okay. How much out of that 3,000?

A. I'm not exactly -- I don't have the receipts or bills for those tires and rims.

Q. Well the tires you say were seven hundred.

A. Roughly seven hundred.

Q. Each or for the whole bunch? A. For the whole bunch of them, for five tires


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it was around seven hundred.

Q. The rims were how much?


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A. Three something apiece.

Q. So three something apiece. So that -- well, let's be generous, let's say there were four that would be 1600 and seven is 23, that leaves another -- what? -- 700 I guess?

A. Roughly that.

Q. Where did that go?

A. I'm not sure, it might've went for drugs. I'm

not sure."

I think I've covered everything I possibly can. My question was, sir, when you said initially that you had made it up or made up a story for your mother about spending it on tires and rims, your answer today and subsequently was that that was a true story, it wasn't something you made up. A. Yes. MS. BAIR: Today and earlier, not subsequently. MS. MULLIGAN: Q. Subsequent to the answer you gave about making up to your mother, the next day you said no, it was in fact what had happened. A. Yes. Q. Okay.

The $ 3,000. took a little planning, right? You had to get the bank card from your parents? A. Yes. Q. You had to get the PIN number? A. Yes. Q. How did you do that? A. I can't recall how it happened.


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Q. Okay. And Ms. Bair had asked you well didn't you think they were going to notice, and certainly they'd notice money missing from their accounts. A. Yes. Q. It was in fact more than one account that you took the money from, right? A. I think it was just one. I can't say for sure, it was a while --- Q. Did you leave anything in the account? A. Pardon me? Q. Did you leave any money in the account? A. I can't say for sure. It's been so long ago, it's not something I want to remember. Q. But what you actually thought, sir, I suggest to you, is that you wouldn't get caught, they would think that they'd either lost their card or it had been stolen, they wouldn't know you'd done it. A. I never -- I guess I never really thought about it at that time. Q. Well how did you get caught? A. I'm not quite certain how it came out. Q. Did you pay it back? A. No. Q. Were you charged? A. No. Q. Were you able to take out 3,000 at one time from a bank card or was there a limit on that card so you had to do it sort of --- A. I think it was intervals. Q. So you had to do it over a period of time, stealing from your parents.


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A. I guess so, yes. Q. And I guess you must've put all that money away sort of in a safe place until you had enough to buy the rims and the tires. A. I'm not sure what I did with it at the time. Q. With respect to when the police came to question you initially about these incidents, you said that you had made up a cover story to your parents about why you were being questioned, just that they were questioning everyone at the Carlsbad or everyone who knew these people; is that right? A. A cover story? Q. Well you said that you didn't want your parents to know that you were using drugs? A. Yes. Q. You didn't want your parents to know necessarily that you had been at Giroux's house on either Tuesday or Wednesday night? A. Yes, that's one of the reasons why I left. Q. So you told your parents when the police came to talk to you that they were just talking to everyone who knew Michel and Manon or hung out at the Carlsbad. A. Yes, that's what I mentioned, yes. Q. That's what I meant by a cover story, nothing nefarious, but you told them that instead of --- A. Yes. Q. And, sir, do you recall your father having questioned you at that time, being upset and questioning you about your involvement? A. I think like I just mentioned to them like what you said about they were asking questions to people that


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had been at the Carlsbad that knew Mike -- Michel Giroux. Q. And you don't recall your father questioning you about whether you had anything to do with these killings. A. No. Not that I know of, no. Q. As far as Tuesday nights go, sir, your father bowled you said every Tuesday night for about 30 years? A. Yes. Q. The same time every Tuesday night? A. Yes. Q. So if someone asked you where your father was on a Tuesday night it wouldn't be hard for you to come up with the answer, you'd be able to tell them for sure. A. That's right. That's right, yes. Q. Yeah. And Matlock, you said that was a regular thing that you watched on Tuesday nights? A. Yes. Q. So you knew that was on on Tuesday nights and you knew what time it came on. A. Yes. Q. And as far as whether you in fact went to Mr. Giroux's house on Tuesday night, there isn't anyone who saw you there, I take it, that you're aware of? A. No. Q. And there's no one that you told you were going? A. No. Q. And the time when you say you left the house, your mother and brother were both already in bed. A. As far as I know they were in bed, whether they were sleeping or not that's another thing.


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Q. Did you ever become aware that they heard you leave or saw you leave or anything like that? A. No. Q. And in fact when you got home your father wasn't home yet? A. No. Q. And did you wake up your mother or brother when you got home? A. No. Q. So with respect to this going to Mr. Giroux's, anything you did there and your returning on Tuesday night, what we have is your evidence about that, there's no one who's able to verify that, no other witness. A. No.

THE COURT: "Returning on", am I hearing this right "returning on Tuesday night", did I hear that?THE WITNESS: Tuesday night, yeah.

MS. MULLIGAN: Yes. MS. BAIR: Returning on Wednesday night.

THE COURT: Wednesday?MS. MULLIGAN: Oh, I'm sorry, I'm dealing first with Tuesday, he went and he returned on Tuesday.

THE COURT: Oh, returned home. MS. MULLIGAN: Yes.THE COURT: All right. Okay.

MS. MULLIGAN: Sorry. Q. Now on Wednesday night you say you stopped by Michel Giroux's home again? A. Yes.


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Q. And again you told no one you were going? A. Wednesday night? Q. Yes. A. No. Q. You actually stopped by, I think your evidence was, on your way home from your girlfriend's house. A. Yes. Q. And you went alone. A. Yes. Q. And when you got home you didn't tell anyone that you had been there. A. No. Q. And we'll get into the other people that you say you spoke to after the fact at the Carlsbad Springs, but as far as anyone in your home, anyone of your family you certainly didn't mention that to them, or to your girlfriend. A. On Wednesday morning I mentioned it to my brother but as far as the nights go, no, I mentioned it to nobody. Q. Now this mentioning it to your brother, what did you tell your brother Wednesday morning? A. Like I said it's been a long time. I think I had mentioned to him about I think what I'd seen but to remember exactly word for word what I told him I can't, you know it's not something I can remember. Like I said there's a lot of things you can't remember over a certain period -- a certain amount of years. Q. Well what did you think you'd seen? You told us that --- A. Pardon me? Q. What did you think you'd seen?


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A. What do you think I seen? Q. Well, you told us you saw Michel Giroux lying on the floor --- A. Yes. Q. --- in blood. So would you have told your brother, for instance, that you saw Michel Giroux had hit his head badly or would you have told him --- A. I can't say for sure exactly how I worded it or what I told him. Q. Because you didn't know whether or not Michel Giroux had been shot in fact at that point. A. I wasn't certainly exactly what happened at that point. Q. And you don't know what exactly you told your brother about that. A. I can't -- still today I can't remember exactly what I told him. Q. Were you ever present when your brother was interviewed by the police? A. No. Q. Did you ever become aware of him talking to the police? A. They might've talked to him. I don't know if that's --- Q. You don't know. A. I don't know. Q. Have you ever talked to your brother about it since that Wednesday? A. Since that Wednesday? Q. Yes. A. I seen him last night.


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Q. Did you talk to him about it last night? A. I just said I was back on the witness stand again. Q. So between Wednesday January 17th and last night, have you spoken to Terry about this incident? A. Oh, I might've, I don't know. It's family, I see him here and there the odd time. Q. We've had some evidence that, aside from dealing in drugs, Michel Giroux occasionally would take in stolen property in exchange for drugs. Did you ever do that, did you ever give him something stolen in exchange for drugs? A. No, I don't think so. Q. Or not even stolen, did you ever give him something, electronics or something that wasn't stolen in exchange for drugs? A. I don't think so, no.

MS. BAIR: I don't think we have evidence that occa-sionally he did take in property. This is exactly what the jury was warned about, Your Honour. We have from Detective Lamarche hearsay information along those lines and one piece of stolen equipment in the house. I mean we can't, even counsel, start using this stuff as though it's there for the truth of it.

THE COURT: All right. MS. MULLIGAN: All right. Q. Did you ---

I stand corrected on that.THE COURT: But you can ask the question of him if you like, did he ever present any stolen property, that's fine.


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THE WITNESS: No. MS. MULLIGAN: Q. And you never sold anything that was in fact your own like a Nintendo game or a television or a stereo. A. No. Q. On January 31st, sir, you delivered a car stereo to an Officer Fortier who had been the officer who interviewed you in this case. So on January ---

A. Delivered? Q. Well January 31st, 1990 did you not hand over a car stereo to Officer Fortier? A. I might've. I don't know. I don't recall but I might've. I don't know. Q. The first officers you spoke to, one of them was Officer Fortier, right? A. Mike Fortier, yes. Q. Yeah. Ontario Provincial Police. Did you know him prior to this, did you know Mike Fortier prior to speaking to him about this? A. I don't think so, no. I might've crossed paths with him before, I'm not exactly sure. Q. Okay. And you spoke to him on January 20th and gave a statement; is that right? A. Yes. Q. Okay. And you can't recall if on January 31st you handed him a car stereo. A. I don't, but I remember giving the statement to him because it's all -- everything -- it was on the Saturday after, but as far as the stereo goes, I don't recall that.


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Q. Can you think of any reason why you would be giving Officer Fortier a car stereo? A. No. MS. MULLIGAN: I guess it's break time.

THE COURT: Oh, all right. That's fine.

--- Whereupon the jury retired at 11:30 a.m.


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--- In the absence of the juryMS. BAIR: Just before you leave, Your Honour, ---THE COURT: Yes.MS. BAIR: --- I just want to put my friend on notice that going down the road of "we only have your word, all we have is you" puts us right back to the polygraph again.MS. MULLIGAN: No, I asked if there were any witnesses who could verify, and frankly the answer ---

MS. BAIR: I'm just warning you.THE COURT: Everybody knows. Okay. Whenever I have to deal with it I'll deal with it. Okay.


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--- Upon resuming at 11:50 a.m.

MIKE McFADDEN, resumes on the stand THE COURT: Ms. Mulligan.


CROSS-EXAMINATION (continued) BY MS. MULLIGAN: Q. Sir, on the Saturday when you first spoke with Officer Fortier, and I guess he had a partner with him as well; is that right? A. Yes. Q. You don't remember who that person was at this time? A. I think his last name was Matte. I don't know his first name. Q. When you first spoke to the officers I guess -- did they come to your house? A. Yes. Q. And initially you were, at least for the first few seconds, you were reluctant to tell them about this? A. Yes. Q. You in fact told them that you had gone up to the door, didn't get an answer and so you left, and then you corrected that, right? A. Eventually I told them the whole story. Q. And shortly after, I'm not suggesting there was days gone by, right? A. No, it was all -- the whole story was out. Q. Do you recall telling them initially that the interior door had been closed when you first got there? A. You mean locked? Q. Closed, not locked but closed.


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A. I -- from what I can remember the door was -- I had to turn the handle to go in, whether it was open a couple of inches or ..... Q. Well let's just be clear now. We're talking -- there's a screen door, that was closed? A. Yes. Q. And now we're talking about the interior door. A. Yes. Q. And you say you had to turn the handle and push the door open. A. As far as I can recall. It could've been open. Like, to remember a detail, I don't know, you know, like it's ..... Q. If you had told the police initially that it was closed would that have been accurate, or do you remember were you telling them part of the truth at that time or? A. Everything that I told them was to the best of my knowledge what I could recall from that night. Q. Okay. You, before I move on, you've been asked before, you don't know Rick Mallory, do you? A. No. Q. You don't know Rob Stewart? A. No. Q. Jim Sauvé or James Sauvé? A. No. Q. And you don't know Rick Trudel. A. No. Q. And in fact in January of '91 you were shown photographs. I'll show you those photographs, they're


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marked as Exhibit 134, 135, 133 and 132. Do you remember seeing photographs like that? A. Yes. Q. Okay. You had never seen any of those people at the --- A. Prior? No. Q. You'd never seen them at the Carlsbad Springs Hotel? A. Not that I know of. Q. You never saw them at Giroux's house. A. No. MS. MULLIGAN: I'll show them to the jury so they

can see them again, which four people. Q. I want to show you Exhibit 96 in a prior proceeding actually. Let's see if you recognize that person. A. That looks like Dave Dunbar I do believe. I was shown that before. Q. You've been shown that before? A. Yes. Q. Okay. And how do you know Dave Dunbar? A. I think he was -- I met him at the Carls- bad. Q. Okay. A. This was later -- later on I think, eh? Q. Later on from what? A. At first I didn't -- I don't think I remembered him but then when I seen the photo in the prior proceedings I think it came to me that I remembered seeing him or something.


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Q. Okay. So when you first spoke to the police early on you didn't know who Dave Dunbar was and then when you saw a photo you were able to put the two together? A. Well later on I think I -- that's fuzzy. Now I know him, the photo, but I can't say for sure at the time, the first proceeding, whether I was -- I'd have to review, go over that again. Q. Okay. Just going from your memory this is someone that you had seen at the Carlsbad Springs Hotel? A. I might've seen him there, yes.

Q. Okay. THE REGISTRAR: Exhibit 180, Your Honour. THE COURT: All right.

EXHIBIT NO. 180: Photograph of Dave DunbarMS. MULLIGAN:

Q. I'd like to turn to people you spoke to, before going to the actual events, people you spoke to after these events. A. Yes. Q. Ms. Bair asked you questions about not only what you told them but what their responses were to you, right? Do you remember those questions? A. Yes. Q. I want to go through that again. You indicated that on Thursday you spoke to this Danny, a little guy with blond hair. A. Yes. Q. You're sure that was Thursday. A. Yes.


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Q. It couldn't have been Wednesday, you weren't there on Wednesday, right? A. That's right. Q. And did you see Danny on Friday? A. I can't say for sure. I might've seen him. Q. And as far as you were aware Danny was a friend of Michel Giroux's? A. Well he knew him, whether -- how long he knew him that was something I didn't know but --- Q. You'd seen them together before. A. Yes. Q. Did you tell him, Danny, that Michel Giroux was breathing when you left? A. Whether he was breathing or whatever, it sounded -- to me, whether I told him, it sounded like he was -- I probably mentioned it to him, that he was, well I don't know if he was breathing but whether, you know, it sounded like he was. Q. So making some sort of noises? A. Yes. Q. And you may have mentioned that to Danny. A. Yes. Q. Nevertheless, your evidence is that Danny said he would've done the same thing, he would've just left? A. Yes. Q. You also indicated to Ms. Bair that you spoke to Marge Provost. A. Yes. Q. That's someone whose last name you knew as well as the first name? A. Yes.


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Q. You knew her for a while, did you? A. I can't say for sure how long but I knew her from the Carlsbad, yes. Q. As far as you could tell was she friends with Michel Giroux or Manon Bourdeau, did you see them together? A. Through I guess a business transaction type thing but I don't know how close they were as friends. Q. And did you mention to -- you said Marge, you were speaking to Marge but her boyfriend Roger was there; is that how that occurred? A. Yeah, he was in the vicinity, how close he was ..... I was speaking at Marge. Q. And did you mention to her that Michel Giroux was still breathing when you left or making noises? A. I might've. Q. And your position again is that she said she would've done the same thing, or words to that effect? A. Yeah, well nobody really asked me, I don't think, why. Q. And nobody challenged you on it and said 'geez, you should've called the ambulance, you should've called the police, or why didn't you do something.' A. No. Q. Nobody did that. No? A. No. Q. Now those are in fact the only two people that you recall telling what you saw to at this point in time; is that not correct? A. My brother. Q. And your brother ---


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A. M'hmm-hmm.Q. --- on the Wednesday morning. But as far as

people from the Carlsbad I think you said you don't know whether you actually had any conversation with Conrad Mayer about it? A. It was on Friday. Whether it was Thurs -- whether I spoke to him on Thursday was -- I don't remember if it was on Thursday but I know I spoke to him on Friday. I'm pretty sure. Q. Okay. But your evidence, as I understood it, was you weren't sure if you told him anything when he said -- anything about it, you weren't sure if you told him about your involvement. A. I don't -- I know I spoke to people, the names that I was asked about, and if I told them the whole incident was another ..... Q. Maybe at page 121 of your statement, the typed version. I don't know which version you have.

A. Typed.Q. I don't know which numbers you have.

A. 120 what? MS. BAIR: He doesn't have that.

THE WITNESS: 121?MS. MULLIGAN: He doesn't have that? Ms. Bair tells me you don't have it.THE WITNESS: Okay.THE COURT: Perhaps, members of the jury, you should understand that page 121 of his statement, it's a continuous record so he didn't necessarily make a 121-page statement, all right? I just want to clear up that little


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ambiguity. MS. MULLIGAN: It's a four-page statement typed.

THE COURT: Yes. Okay. Thank you. MS. BAIR: Which date?

MS. MULLIGAN: January 20th, 1990. THE WITNESS: It's in written.MS. MULLIGAN: All right, if you want to find yours that's .....

Q. Okay. Midway down page 121 of the copy I've been given, you indicate you were playing pool when Conrad Mayer came in? A. Yes. Q. Okay. And maybe we can just make sure we're talking about the same night.

A. That's Friday night.Q. That's Friday night?

A. Yeah, this is Friday night. Q. Okay. So we're talking about Friday night when you were playing pool when Conrad Mayer came in. A. Yes. Q. "He came and asked me if I'd heard about it. I didn't tell him about it" and then you go on to someone else. A. I guess I didn't tell him about it, then. Q. Similarly Reynald Desjardins, he asked you if you'd seen a ghost, you said it may be because you looked pale and maybe someone told him --- A. Yeah. Q. --- what you had said I guess to either Marge or to Danny. A. Yes.


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Q. But beyond that, did you have further conversation about it with Mr. Desjardins that you recall now? A. I might've mentioned to him what I had seen. Like I said, he might've known what I had seen prior to approaching me. Q. But I'm asking you do you recall yourself telling Reynald Desjardins about what you had seen? A. Give me a second and I'll look. Q. Sure. Did you want the statement back? A. Yeah. I don't know if it says --- Q. I don't know that it makes it clear but go ahead. A. No, I don't think I mentioned it to him. Q. So you don't think you did? A. No. Q. But he nevertheless, why you believed he knew something about it, he nevertheless told you that he would've done the same thing; is that right? A. Yeah, he mentioned something like that. Q. And then the other person Ms. Bair spoke to you about was this Stephanie and you didn't tell her anything about what you had seen. A. No. Q. So the people that you told in fact at the Carlsbad Springs were Marge Provost and Danny. A. Yes. Q. With respect to what you told them, do you recall telling Danny at all that you had called Michel Giroux before you went over to his house? A. Can you repeat that? I'm sorry.


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Q. Do you recall at all telling Danny that you had called Michel Giroux before you went over, about 15 minutes earlier? A. I think I did, yes.

MS. MULLIGAN: Ms. Bair is up. MS. BAIR: I have a brief objection to make, Your

Honour.

THE COURT: All right. Thank you. Please, members of the jury.

--- Whereupon the jury retired at 12:05 p.m.


7433

--- In the absence of the jury THE COURT: Should the witness leave? MS. BAIR: Probably.

THE COURT: All right. Thank you.

--- Whereupon the witness retiredMS. BAIR: My objection, Your Honour, is to the form of the question. When we're talking about conversa-tions that other people alleged they had, to frame the question "do you recall telling" suggests that he did and he just doesn't recall it. I think the question should be "did you tell" otherwise the jury is left with the impression that he did, and he just may not recall it, which is far from anything that is established or even capable of being established in many of the cases in past instances anyway, so my objection is to framing the question "do you recall" rather than "did you}.MS. MULLIGAN: Well, Your Honour, in my submission it's cross-examination. I can attempt to have him adopt these statements that other people claim he made, other people told the police he made, by saying "do you recall ever having said this to so-and-so", particularly so if I'm going to ever call any of that evidence if it's relevant and not collateral, I mean there's a number of statements here that are relevant and not collateral that other people made. So whether I say "did you ever make it" which would be an open-ended question that the Crown might be limited to in chief, or whether


7436

I say "do you recall ever having said this to this person" I have to give him the name, when he spoke to the person, sufficiently alert him to the circumstances that he spoke to Danny, he's agreed to that, he doesn't recall the exact details.

MS. BAIR: She may be right.THE COURT: I think she is.

MS. MULLIGAN: Okay. MS. BAIR: Stop.

THE COURT: Yeah, I think she's right. It doesn't go very far, though, if you don't follow up. I mean it's sort of left hanging there in the end of the case but ---

MS. MULLIGAN: Unless he adopts them of course. THE COURT: Unless he adopts them, yes, of course.

MS. MULLIGAN: Yes.THE COURT: Okay, bring in the jury.

MS. BAIR: Sorry. THE COURT: It's okay. Nobody can have a perfect

day.MS. BAIR: I stood up slowly. When I stand up slowly I should sit down.THE COURT: Somebody said when they asked Babe Ruth how come you got 120,000, and he said well he had a better season and more than the president got, and he said in 1927 when he hit 60 home runs he said because I had a better season than the president, so you can't be perfect every day.


7436

MS. BAIR: I hope to have a better season, Your Honour.THE COURT: Yes. Although it must be unusual even in the quasi-judicial process for a group of lawyers to be prepared to cross-examine a witness and then say to the witness we'd like to apologize for any difficulties our client might have caused you. That's got to take the cake.


7436

--- Upon resuming in the presence of the jury at 12:08 p.m.

MIKE McFADDEN, resumes on the stand

THE COURT: Yes.

CROSS-EXAMINATION (continued) BY MS. MULLIGAN:

Q. Sir, I was asking you about what you might

recall having told Danny and I think you agreed with me that you

likely did tell him that you had called Michel Giroux before you

went over to see him, about 15 minutes before?

A. Yes.

Q. You had told us about that phone call and you

said all that was said was you said "Hi, how are you?" or

something and he said "It's okay."

A. More or less, yeah.

Q. Something like that. A. Yeah. Q. There is no further conversation, any detailed conversation? A. No. Q. Did Michel Giroux, did he tell you he was in bed at the time that you called, do you recall that? A. No. Q. And therefore that's not something that you would've told Danny, I take it. A. No. Q. Do you recall having told Danny that you saw Michel Giroux lying with blood all over him, is that something you would've told him? A. I might've said there was blood around his head or something like that. Q. And you would've told him that you left, you


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took off.


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A. Yes. Q. Did you ask Danny to keep it confidential, what you told him? A. I might've mentioned it to him. I might've mentioned it to him but, like I said, if I had mentioned it, maybe I did, maybe I didn't. Q. And you're absolutely certain that Danny didn't say to you 'why didn't you call an ambulance or you should've called an ambulance.' A. From what I can remember, no. Q. Do you recall having some discussion with Danny with respect to your fear that the police might blame you? A. No. Q. Nothing like that. A. No. Q. When you spoke to Marge Provost do you recall having spoken to her about Michel Giroux telling you on the phone about some yellow lights being on outside the house? A. That night? Q. Yes. A. Not that night, no. Q. You didn't have a conversation about that with Michel Giroux on the phone that night before you went over. A. No. Q. So that's not something you would be telling anyone at the Carlsbad Springs Hotel after the fact. A. At the Carlsbad, I don't think so, no. No.

Q. Did you tell Marge what position Michel Giroux was lying in on the floor, described how he was lying? A. I might've. I don't -- it's hard to say.


7467

Maybe I did, maybe I didn't. It's another thing, if I said it it would be in here, I don't recall, though. Q. And then you said you may have told them that Michel -- you may have told Marge that Michel Giroux was still breathing or moving or moaning. A. I may have, yes. Q. And she wasn't upset with you. A. No. Nobody -- nobody ever really asked questions. Q. It's similar, I guess, when you told your brother about it he didn't mention anything about do you think you should call an ambulance or police either. A. No. Q. Wednesday, on the Wednesday when you say you went back to Mr. Giroux's house, you've told us several times you never went in. A. Yes. Q. And you never told any one of these people at the Carlsbad Springs Hotel, or anyone you spoke to after the fact, that you did go inside on the Wednesday, I take it. A. No. Q. And you're positive about that. A. As positive as I guess I can be, yeah. Q. Okay.

I just want to show you Exhibits 55, 56 and 60. 55 is a book we're told or we have evidence was found in Michel Giroux's home.

A. Okay.Q. Do you see your phone number on there any-

where? A. Yes. Q. At the time.


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A. Pardon me?Q. At the time.A. Yes.

Q. Your phone number at the time.A. Yes. Q. Where is it?

A. It's right here. Q. All right. So you're pointing to the one that says "Mike Mc." A. Yes. Q. And then 835-2472? A. Yes. Q. Looking at the numbers on the list, do you recognize -- I know it's a long time but do you recognize any of the others and who they might be? A. No. Q. No? Okay.

A. No.Q. Did Michel Giroux have a nickname for you?

A. I never spoke French and he was French of course, he might've called -- said Anglais or something like that. Q. All right. I'm going to hand back Exhibit 55 and I'm going to show you Exhibit 56 and 60 and I'm going to set them beside each other. A. Okay. Q. So you can see the top of the page with the numbers down it is Exhibit 56. Exhibit 60 is just a list of names. A. Okay. Q. All right? Now excluding the first entry that says "Dan 2.5", if we look down there seems to be "Roger"


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written out and on the list with numbers it says "Roge" and a number, right?

A. Okay.Q. And then "Sylvain" on the one page and on the

other page "Syl" and a number. A. Okay. Q. "Larry", right across on the other page when we lay them out this way at least "La" and a number. A. M'hmm-hmm. Q. Okay. It's the same all the way down it seems to correspond, "Ozinga" we've got "Oz" on the other page. A. Yeah.

Q. Now where you are "Mike Mc.", on the other page it says "Ang." A. M'hmm-hmm. Q. Would that be consistent with what you've just told us, --- A. It could be. Q. --- Anglais, Anglo? A. It could be. Q. Okay. It says "12.0" do you have any idea what that stands for? A. Not that I know of, no. Q. Okay. You never owed for 12 grams I guess? A. I don't think so, no. Q. It would be $ 120., is that possible? A. It could be or maybe he had, I don't know, some kind of code or something. I don't know. Q. You don't know? A. No. Q. All right.

I'll show these to the jury.


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Turning to the Tuesday when you say you first went to Michel Giroux's after this phone call about 10:00 o'clock or thereabouts, a little after that, --- A. Yes. Q. --- you said the weather that day it was snowing at that time of night? A. Yes. Q. Lightly? A. Light snow, yes. Q. The roads weren't slippery? A. They didn't seem to be, no. I don't know how long it was snowing for before I left or whatever. Q. This little pathway up to the house, was that kind of snow covered when you got there? A. Not really, no. It was, you know, it was a common path travelled and it was light snow so it didn't -- there wasn't a lot of snow there. Q. I'm just going to show you this, it may help your memory. I'll show my friend. I'm just showing you your evidence from May 10th '95, page 55. You can just read it to yourself. A. Okay. Yes. Q. Does that assist your memory at all? A. Yeah, it was snow covered a little bit because of course it was snowing. Q. The pathway. A. Yes, but I mean the existing path, like you noticed there was a pathway there. Q. Let's talk about what you could see, we went through it a little bit.

You said you went into the door, you stood at the door, you were no more than a couple of steps into the


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door? A. Yes. Q. You never let your hand go of this door handle? A. As far as I know I never let it go. Q. Is there a reason for that? Why were you hanging on to the door? A. I don't know. I guess, you know, you open the door and then what I seen I guess, you know, I was shocked by what I seen. Q. And what you could see in fact when you looked I guess sort of to your left ahead of you was a man or someone lying on the floor. A. Yes. Q. You couldn't -- from where you were standing you couldn't see the person's face. A. Not really the face, no. Q. And I suggest to you you actually couldn't see where the hands were. A. Well they were up the top of his head, so they had to be close to his head. Q. Did you ever tell the police that you thought it looked like he was fighting or doing something with his thumb, would you have been able to see that? A. No. Q. So that's not something you would've told the police officers. A. Well maybe, like, you know, by the way his hands were it looked, you know, it was hard to tell if his thumb was in his mouth or he had one hand in his mouth, I don't know.


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Q. Okay. That slide, exhibit -- whatever exhibit number it is, --- THE REGISTRAR: 69. MS. MULLIGAN: Q. --- 69, photograph 20, I'm going to show you the photograph too because it may actually be clearer ---

A. Okay.Q. --- and I want to give you every opportunity

to see it, this is photograph 20 and photograph 21. A. Okay. Q. Now you would've been, sir, I suggest to you, no further in than where that photo was taken from. You see the door there on the left? A. Yes. Q. That's about it, isn't it? A. Yeah. Yes. Q. And if we go to the next photograph, which is photograph 21, that's a little further in, you weren't even that far, you weren't standing by that counter, were you? A. Just probably to the edge of the counter type thing like I mentioned yesterday. Q. There we go. Looking at slide 23, you're saying you kept your hand on that doorknob, so what did you do, leaned in over towards that counter? A. Well I just went to the edge -- to the carpet more or less, like I mean just in that general area, like right in here, right in this area. Q. With your hand still on the doorknob. A. As far as I can recall I guess my hand was still ..... Q. So you may have been able to see roughly what's depicted there.


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A. Something like that, yeah. Q. Now I want you to look at the photograph too because it may be clearer than the slide, it's photograph 21. A. Yes. Q. Can you see blood in that photo around the face? A. It's hard to tell in the picture. Q. Can you see where the hand is? A. It's hard to tell by the photograph. Q. But you saw blood that night. A. Yes. Q. Can you tell where the hands are at that point? A. Not really. Well one arm is -- it could be in his face. It's hard to tell exactly where it is. Q. And you couldn't see the face I presume, correct me if I'm wrong, that you assumed this was Michel Giroux from what you could see. A. From what I could see, yeah. Q. Did you call out 'Mike, are you okay?'? A. I don't think so, no. I think I just got out of there as fast as I could. I was in, you know ..... Q. Did you call out for Manon? A. I don't think so.

Q. And for all ---A. Like I said I wasn't -- I couldn't've been in

there too long. I was in and out. Q. For all you knew at this point Michel Giroux had fallen down and cracked his head open. A. Could've been but, you know, from the time I had called him 'til the time I got there something had to


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have happened, you know, like what it was I wasn't too sure, I wasn't a hundred percent clear what it was. Q. And if the man had, for instance, just fallen down and cracked his head open why are you hightailing it out the door, what's so scary about that? A. I don't know. Like I mean it's just to walk in on a situation like that, you don't know, being into drugs and everything you never know. Q. You did know he needed help? A. Yes. Q. You could see that much. A. Yes. Q. When you parked there that night there's a little garage up at the top of the hill, isn't there? A. Yes. Q. Did you see any vehicles around it? A. There might've been a vehicle there, I'm not exactly sure. I don't recall remembering. Q. Did you see any lights on around that area? A. I can't recall. Q. So there might have been people around in this garage or the other houses, you just don't know. A. There could've been, yes. Q. You didn't alert anyone, of course, to your presence or what you'd seen? A. No. Q. You were able, you said, from that distance to hear I suppose life sounds, breathing, that sort of thing? A. It sounded like it, you know, it sounded like he was gasping or gurgling. Q. And you were able to hear that over these two -- well, over the television, I guess the noise, you heard


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a television or a radio or whatever? A. Something like that, yeah. Q. You were still able to hear this breathing? A. Maybe it was imagination but it sounded like it, you know. Q. Was it loud? Was he breathing loudly? A. It's hard to -- with the radio going or whatever it was, t.v., radio, I don't know exactly what it was, it was hard to tell. Q. But in any event it was your impression that the man was alive at that point. A. Could've been, yes. He seemed to be. Like it was -- I was shocked, you know, just by entering the house and, you know ..... Q. There's a phone in that photograph just above Mr. Giroux. You didn't think to use that at all? A. No. Q. Now, you drove home after that, you say. A. Yes. Yes. Q. Did you go straight home? A. Yes. Q. Did you pass any phone booths? A. I don't think so, no. Q. I mean the reason you say that you didn't call for any help or do anything about this was because you didn't want your parents to know you were using drugs. That's your reason? A. And I was scared at the time. I didn't know what to expect, what was --- Q. Scared of what? A. I didn't know what had happened, you know, I was frightened, and at the time of course I was doing drugs


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without -- you know, living under my parents roof and using drugs and stuff like that. Q. Were you frightened that you would be blamed for this? A. No. Q. That never crossed your mind? A. No, it was -- the biggest thing that was on my mind was, I guess, getting out -- you know, not being -- let my folks find out because to me it was a secret the whole time. Q. Well if you'd stopped and made an anonymous phone call saying 'there's a man at this house and he needs help'? A. I never ..... Q. You never thought of that. A. No. I wish I had've, though. Q. And you not only didn't think of that on Tuesday night when you say you were there, you didn't think of that on Wednesday all day when you went off to work? A. No. Q. You didn't think of it Wednesday night when you were -- did you go drinking Wednesday night ---

A. No.Q. --- or were you home?

A. I went home eventually, yeah. Q. You didn't think of it then. Well you went home after you say you stopped in, right? A. Yes. Q. Or stopped at Michel Giroux's place. A. Yes. Q. Thursday you went to work? A. Yes. Q. And Thursday night you went out drinking.


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A. Yes. Q. And you didn't think of it all that time that maybe a phone call --- A. No. Q. --- was in order. A. No. Q. So you wanted to hide the fact that you were using cocaine. A. Yes. Q. And that interest was so great that that caused you to leave this house and not do anything to assist. A. Yes. Q. And you say you were never afraid that any-one would suspect that you were the person who had done this. A. I don't think so, no. Q. I'd ask you just to refer to your preliminary inquiry evidence at page --- A. I might've mentioned it but like I said unless I read this stuff every day it's going to be hard to, you know .....

What page you said? Q. September 30th '91 page 154. In the middle of the page: "Q. No. I take it what you're saying, Mr.

McFadden, is the reason you didn't ...and that means didn't run for help or call anyone

"Q. ... is you're a man with something to hide, right?

A. No.

Q. You wanted to hide the fact that you're a coke user.


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A. Well, maybe, yeah.


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Q. What else were you trying to hide?

A. I guess that's it, yeah.

Q. You guess? What is the answer? Are you guess-ing?

A. I was afraid to be -- to be there whenever like to prove that I was doing coke because no -- nobody in my family knows.

Q. Well are you sure you weren't afraid to be there because they would suspect that you were the person who did him harm?

A. Maybe.

Q. Yes, exactly. That they would suspect that you were the killer if in fact he had been seriously hurt.

A. Maybe.

Q. That in fact someone might think you were doing a drug ripoff of a drug dealer for drugs that you needed and wanted.

A. No, not really, I never thought about that."

Stopping there for a moment. You at least admitted as a possi-bility on September 30th, 1991 that you may have been concerned that someone would think you had done this. A. M'hmm-hmm. Q. Right? A. Well, when they asked you five ,six times in a row. Q. What, you just give them any answer? A. No, it's, you know, that was the first time I ever been in a witness box and putting, you know, to go through


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all this stuff so, you know, it was questions after questions after questions, you know. I don't know.


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Q. You had said about the timing --- A. Pardon me? Q. You'd said about the timing of this that you had just called and within minutes this had happened. A. Yes. Q. It didn't cross your mind that that might make someone think you had something to do with it. A. Like I said, you know, maybe there was a thought or two there but it was, you know ..... Q. You were concerned, you figured your fingerprints would be found on the door, right? A. Yes because of the mischief charge way back when. Q. Have you ever been told or advised by any police officer involved in the case as to whether your finger-prints had actually been checked against any of the prints in the house? A. I don't know. Q. Because you say you didn't actually go any further in, you don't know whether anyone's checked to see if there are any fingerprints of yours in the house. A. I don't know if it was checked or not.

Q. All right. A. It wasn't one of my questions.

Q. When you go back Wednesday, you said you go back Wednesday, according to your evidence, because you were curious, right? A. Yes. Q. You'd parked in a way on Wednesday that you are actually further from the door if you'd just parked instead of backing in or reversing and pointing down the hill. A. Farther away?


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Q. Yeah, you'd be closer if you just pulled up directly straight up the hill and parked, you'd be closer to the house, sitting in your car. A. That's what I did previously I think, pulled up, turned around and ..... Q. Okay. And what you can see from there is the door, on Wednesday. A. The door, yes. Q. And you say you see some condensation on the windows? A. It looked like ice or frost. It looked like it was fogged up or steamed up or something. Q. Do you know which - was it foggy, steamy, ---

A. It's hard ---Q. --- icy, ---A. --- to say.Q. --- frosted?

A. I didn't touch the window so I don't know, you know. Q. All right. And you didn't actually get that close to it --- A. No. Q. --- so you don't know. A. No. Q. And when you see that everything is the same as the way you left it, and it was, right? A. Well just the way, you know, it seemed to be from what I could remember. Q. Your concerns must be increased that --- A. Pardon me?


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Q. You must have increased concerns about Michel Giroux at that point, given that it's all the same? A. Probably, yes. Q. And still you don't call anyone? A. No. Q. And when you get home --- I suppose the longer you wait to call as well, sir, the more suspicious it would look, wouldn't it? A. I guess so. Q. And did that cross your mind? A. It might've. I can't recall. Q. I refer you to your evidence on the same day, September 30th '91, page 156. In the middle of the page you're asked: "Q. Why? Why didn't you call?

A. I don't know.

Q. You don't know. Why don't you know?

A. Well I -- I was just I don't know, I figured out I was at home, I should've called when I was there, it would've made me look more suspicious by calling from home.

Q. Exactly. Now you've run from the scene and it might even look worse for you, right?

A. Yeah.

Q. And of course you couldn't call a day or two later because it would look even worse.

A. That's right.

Q. You'd have to explain to someone why you hadn't done anything, right?


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A. Right."


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I guess I should continue. "Q. When you heard that they were killed later

on, that both of them were dead, what went through your mind then?

A. I don't know, it was a while ago, it's hard to remember.

Q. Fear?

A. No.

Q. They're going to blame me?

A. Some -- some part, yes."Do you remember those questions and answers? A. Well I guess so, they were written down. Q. Are you prepared to accept that you gave those answers to those questions? A. As far as I can remember, yes. Q. Well, are you prepared to accept that the transcript is accurate or not? A. Yes. Q. Okay. And on that occasion you said it wasn't fear, there was some part of it that they were going to blame you that concerned you, and also that you thought it would look more suspicious because you hadn't called right away.

So, sir, I put it to you you were concerned about --- A. A little, I guess, yes.

MS. BAIR: Well, the question initially was "at the time when you left" and this reference is to the day after.MS. MULLIGAN: There's reference in fact as to both,


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if my friend reads it in context.


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MS. BAIR: "So having had your concern increased?"

MS. MULLIGAN: That was after he went home and phoned and got no answer on Tuesday.

MS. BAIR: Okay. MS. MULLIGAN: Q. That did increase your concern when you went home and phoned Tuesday night and Wednesday and there's no answer, right? A. Yes. Q. After Michel Giroux died you didn't have a coke supply for -- what? -- about a week, cocaine? A. It's hard to say. Maybe a month. Q. And were you using any in that period of time? A. Which period of time? Q. Right after Michel Giroux died, right after you found him on -- you say on the Tuesday, --- A. No. Q. --- from that period of time for the rest of the week were you using? A. No. Q. You're sure of that. A. Yes. Q. Do you know a man named Lorne Troutman, sir? A. I do now, yes.

Q. What do you mean you know now, did you ---A. Well, I know his last name now, yes.

Q. Okay. Did you know of a Lorne back then? A. Yes.


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Q. Someone who frequented or went to the Carlsbad Springs? A. Yes. Q. Can you describe that person? A. I think he had brown hair, I don't know what colour his eyes were, he was about my size maybe, maybe a little bigger it's hard to say. Q. Do you know roughly how old he was back then, what age he would've been? A. No. Q. Did you know what he did for a living? A. Yes. Q. What did he do? A. He worked at auto parts I think it was, recycling or something like that. Q. And in these few days, this Thursday and Friday when you say you were at the Carlsbad Springs Hotel in the evenings, did you see Lorne there, do you recall? A. I think it was on a Friday, I think it was Friday night. Yeah, I think it was Friday night. Q. And did you see him in the washroom, sir, by any chance? A. Yes, I did. Q. And did you have a quantity of cocaine in magazine folders with you that evening? A. No, I didn't. Q. You weren't doing a line in the washroom? A. No. Q. You certainly weren't doing anything like that in a position where Mr. Troutman could've seen you doing it.


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A. No, I was doing nothing, no. I went to the washroom. Q. And that you're positive about. A. Yes. Q. You had told Ms. Bair that on the Wednesday when you were there and you came back or when you went back on the Wednesday you recalled or you thought that the two cars, Manon Bourdeau's car and Michel Giroux's car, were down at the bottom of the hill. A. Yes. Q. Okay. Are you sure about that? A. As sure as I'll ever be I guess, yes, but, you know, they probably were as far as I can recall, yes. Q. And I'll just ask you to refer to your evidence September 30th '91, page 171. Have you got that? A. Yes.

Q. "Q. When you went back on Wednesday where were

those cars located?"And you see up above we're talking about the Chevette and Mike's car? A. Yes.

Q. "A. I don't remember seeing them.

Q. They weren't there or you don't remember?

A. I just don't remember noticing them." A. So I guess I didn't remember. Sorry. Q. Okay. Is it that you remember now, you sort of --- A. No.

Q. --- recovered this or you just -- you don't


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know.


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A. It's hard to say, yeah.THE COURT: You put the question as far as he recalls, that's part of the danger. MS. MULLIGAN: Yes.THE WITNESS: I'm sorry if ---THE COURT: It's when you ask a specific question he says he can't remember but as far as he recalls they were there, whatever that means.THE WITNESS: I'm sorry, it's hard to recall every little ---

MS. MULLIGAN: Q. No, I understand that. A. --- detail. Q. That's why we're trying to clarify it.

When you had told Ms. Bair as far as you could recall they were there, and you told her that yesterday, and in September '91 you said you didn't remember at that time seeing them or you didn't remember noticing them. A. Yeah. Q. Can you assist us any further to clear that up? A. It's hard to say if they were there or not. Maybe ..... Q. And you said when the police first talked to you about these events and you indicated to them that you had been there Tuesday and seen Michel Giroux on the floor, they gave you the impression that they believed it took place on Wednesday. A. Yes. Q. Did they give you any indication as to why they thought that?


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A. Unless I mentioned it, I forget now. I don't think so. Q. And I think that was on that line of questioning where you told Ms. Bair that you were 110 percent sure that it happened on Tuesday; is that right? A. Yes, but I mean if the police told me I'm just answering your question which you asked me before --- Q. Yes. A. --- about whether or not they ..... Q. You don't know if they told you and you don't remember at this point if they did. A. That's right. Q. About why they thought it occurred on the Wednesday. A. Yes. Q. But as far as your knowledge that this occurred on Tuesday, your answer is you're 110 percent sure. A. Yes. Q. That drawer that was out in the photograph, did you have any thoughts about that when you were there? A. Just whenever I opened the door like I seen where Mike was and then the drawer was open. You know, whenever I visited there before the place was always tidy, you know, Manon kept a very clean house, so like just by seeing where Mike was and a drawer, it looked like, you know, --- Q. And you had been there -- A. --- it wasn't usual, it wasn't normal I don't think, you know. Q. And you had been there you can't say how many times but certainly dozens or more. A. Yeah, it's hard to estimate exactly how many times I'd been there.


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Q. And any time you had been there it would've been for the purpose of purchasing drugs. A. Yes. Q. And is it your evidence, then, that you had never seen that drawer open on any of those occasions? A. I never noticed it being open. I may have but I don't -- I can't recall if I have or not, but it was unusual to see it open like that. Q. When you went to purchase drugs at the home, Michel Giroux's home, and Manon was home, --- A. Yes. Q. --- would she normally absent herself from that transaction or would she stay right in the same area? A. It's hard to say. Sometimes it would take place around the table and, you know, sometimes she wasn't there, other times she was. It's hard to say exactly. Q. Would she sometimes go into the bedroom? A. Could be. I can't recall. Q. You said most of the time Michel Giroux, as far as you can recall, carried drugs in his cigarette pack or in his pocket. A. Yes. Q. Would that be a coat pocket? A. In his shirt, coat. It depends. His coat probably. Q. Do you have any recollection today of what kind of coat he wore? A. I think I was asked before but I can't recall. Q. Did Michel Giroux, when you were at his house, ever go into his bedroom to retrieve drugs and/or money? A. He could've.


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Q. You just don't --- A. It's hard to -- I'm sorry but it's hard to recollect, I guess you'd say, recall. Q. Just with respect to any concern that you had that you might be suspected, I should've also referred you to page 197 and 198 of your preliminary inquiry evidence. A. 191? Q. 197 and 198. A. Sorry. Okay. Q. And this is, I guess I have to start at about line 8: "Q. Right. In fact in the end, Mr. McFadden,

after you claim you knew what had happened and you had heard it at the hotel no later than Friday, you don't call the police, do you?

A. That's right.

Q. I suggest, sir, that's because you feared, as you told a witness, that you would pin it -- they'd pin it on you.

A. I don't want my family to find out that I was doing drugs."

A. "didn't want my family".MS. BAIR: "didn't want".MS. MULLIGAN: "didn't". Sorry.Q.

"Q. Well, at this point are you saying that your sole concern was that some members of your family would discover you were doing drugs, or your real concern was that you thought the police would pin it on you?

A. It was more or less the drugs, the drug part.


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Q. So you're saying that the fact that you were concerned that your family might


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discover you were using cocaine on a weekly basis was so great that you never called so this dying man could get help and perhaps save his life.

A. That's right.

Q. You're so concerned about your self-interest that you wouldn't do that.

A. No.

Q. Well you didn't.

A. I know.

Q. So your concern must have been that you'd be a suspect, right? Isn't that true, Mr. McFadden? You're under oath.

A. Right."Do you remember those questions and answers? A. Vaguely, yes. Q. And again does that assist you in refreshing your memory as to whether you really did have concerns that you you'd be considered a suspect? A. I think my sole concern was, like my main concern was family, that was probably the main concern overall. Like I said, if I had've been back then I wish -- if I knew now what I know then -- no, if I knew now what I knew then I wish I had've called, it would've made it a lot easier, like I said. Q. You said that several times in answer to Ms. Bair's questions too, it would've made it a lot easier andmaybe Giroux would still be alive.

With respect to "it would've made it a lot easier" what are you talking about, what would've been easier? A. Well maybe it would've, you know, it would've


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helped -- it could've helped Mike, it could've helped Manon at the time.


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Q. That's what would've been easier? A. Well, and maybe, you know, it would've been a lot easier on myself and other people, their families and everything, you know, the whole thing. Q. These people that you told, Marge and Danny, they were just mere acquaintances, weren't they? A. Yes. Q. Yet you told them before you told the police. A. Yes. Q. They weren't close friends, they weren't people you'd normally confide in. A. No. Q. You weren't, sir, trying to set up some sort of story to cover the fact that your prints might be there when you were telling this to these people? A. No, I had no reason to. Q. Do you know someone named Merilyn McNeil? A. Vaguely, yes. Q. How did you know him? A. I met him at the hotel I think. Q. At the Carlsbad Springs? A. Yes. Q. Back around that time? A. I can't say for sure what date it was or what year it was, but I remember the name. Q. And Ms. Bair asked you questions about whether this was a biker bar. I'm not suggesting it was a bikers only bar, but you did see bikers in there? A. The odd time you'd see a bike outside. Q. You'd see a bike outside. A. Like a Harley-Davidson.


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Q. Would you see someone who appeared to you to be a biker inside? A. The odd time but it's hard to, you know ..... Q. You can't say how often or when? A. No. Q. Did you have -- you said it was common knowledge, I think you said something like that, that it was common knowledge and easy to see that Mr. Giroux was selling drugs at the hotel. A. Yes. Q. And he was, as far as you could see during the time you were dealing with him, the only one who was selling drugs at the hotel. A. As far as I know, yes. Q. And were you able to see or was there similar-ly -- sir, were you able to ever see who it was that Mr. Giroux seemed to be getting his supply from? A. No. Q. Did you ever express any beliefs about that to the police? A. Beliefs, that I knew? Q. About where ---

A. No.Q. About where Mr. Giroux was getting his

supply. A. I don't think so. Q. So you never said anything to Officer Fortier about that, for instance. A. As far as I can recall, no, but I might've mentioned something but I don't think so.


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Q. Did you ever mention anything to Officer Fortier about two narcs being in the bar on Thursday and Friday, narcotics officers? A. I might've. It sounds familiar but ..... Q. You have a memory of that happening? A. I think I -- it's hard to say. I could've. Q. Did you know someone named Rick and Phil, Rick Burridge maybe and a Phil Bush? A. I think so, yeah. I think they might've been there or something. Q. Do you remember Phil Bush being a deejay there? A. It sounds familiar, yeah. Yes. Q. Do you remember talking to the police about those people at all? A. I could've. I could've mentioned something to them, yes. Q. Did you know who dealt at the Carlsbad before Mr. Giroux, who dealt cocaine? A. It's hard to say. Q. You didn't have any understanding that it might be this Rick and Phil that dealt drugs at the Carlsbad? A. I don't know. It could've been after, it could've been before, I can't recall. I'm sorry about that. Q. You called on February 7th, 1990 to Crime Stoppers, did you not? A. When? Q. February 7th 1990, did you call Crime Stoppers? A. 1990? Q. Yeah. A. I don't think so. No.


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Q. All right. Did you call Fortier and give him a tip on a Crime Stoppers form? Did you phone Officer Fortier and give him some information after you had already given your statement? A. Phoned and gave him a tip? I don't think so. Maybe I did, I don't know. You're going to have to help me on that one. Q. I'll try. I'm just going to show you this document and see if it assists you. The yellow highlighting is mine, just ignore it. A. I don't remember this actually, to tell you the truth. Honestly, I don't remember -- recall that. Q. Do you know a Mike Lapensée? A. I don't know. I don't know. It doesn't sound familiar but ..... Q. Someone who lived just down the street from the Carlsbad Springs Hotel on Russell Road? A. It doesn't sound familiar, honest. Q. As soon as I have it back I'll ask you another question. A. No problem. Q. And the person's name Rachel on here doesn't sound familiar to you? A. No, it doesn't sound familiar at all. Q. All right. So just to put it to you, you never -- you don't have any recollection of telling Officer Fortier on February 7th, 1990 --- MS. BAIR: This is ---

THE COURT: You're making it the evidence, the very problem we've talked about before, counsel.

MS. MULLIGAN: Maybe we can ---


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THE COURT: Yeah, we'll talk about it again.

Yes, members of the jury. Okay.--- Whereupon the jury retired at 12:55 p.m.


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--- In the absence of the jury

MS. MULLIGAN: It doesn't matter if the witness

stays or goes for this one.THE COURT: Okay. MS. MULLIGAN: I understand Your Honour's concern and Ms. Bair's concern but my difficulty is at some point should I need to call Officer Fortier about this, and not having put the statement in order to try and prove a previous oral statement, not having put it to this witness in any shape that the jury can understand what he was looking at or what was presented to him as far as the information goes, then we just keep calling witnesses back and forth, I'd have to call Officer Fortier and then call the witness back and say 'well now that we've proven this, it's prior oral statement to the officer do you have any memory of it now?' and then we can just keep calling and calling. I thought it was easier to do it this way, but if Your Honour has some suggestion. I think he's entitled, the witness, to have it clear what the information is, right now the jury is sort of lost on that, and he says he doesn't remember giving it and doesn't remember it at all, so it would be something I'd have to prove through Fortier.

MS. BAIR: Which could be difficult given that this is Riddell's writing, so I think there are a number of us who have to figure out where this came from. It says it was received by Fortier, it's in Riddell's writing, this wit-


7469

ness doesn't remember it, Riddell doesn't remember it. Maybe we'll have it all sorted out after lunch.

MS. MULLIGAN: Okay.THE COURT: All right. All right. It's just that you can't sit there and feed it up and have the witness deny every detail of it by saying he's not permitted, we've got to be reasonable about this, and you've got "don't remember", "not familiar", "doesn't know" ---

MS. BAIR: It's already there. THE COURT: --- for about five times, two or

three different people. Anyway, figure it out. MS. MULLIGAN: Okay.

THE COURT: I'm sure you'll work it out.

--- Whereupon court recessed at 1:00 p.m.


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--- Upon resuming at 2:15 p.m.

--- Accused present

MIKE McFADDEN, resumes on the stand

THE COURT: Ms. Mulligan?


CROSS-EXAMINATION (continued) BY MS. MULLIGAN:

Q. Mr. McFadden, the whole time that you were

dealing with Michel Giroux you said about a year, buying drugs

from him about a year before his death? A. Yes. Q. I take it you didn't notice any difference in the quality of the drugs you were getting, it was always about the same? A. I never noticed really. Q. And I asked you about a nickname this morning, you said Anglais. What about did he ever call you Mikey, did Michel Giroux ever call you Mikey? A. Not that I know of, no. Q. No? A. No. Q. Now between the time on the Saturday when you give Michel Giroux a cheque for $ 100. and the Tuesday when you say you see him on the floor in his house, did you see Michel Giroux in between those two times at all? A. It's hard to say. I don't recall seeing him. I don't know. Q. Okay. You don't know. A. No, I don't know if I seen him. Q. Did you smoke cigarettes back then, sir? A. Yes.

McFADDEN, cr-ex

(Mulligan)

7481

Q. Do you remember what brand you smoked? A. Export A Light. Q. You obviously saw no one else at the house when you were there you say on the Tuesday, you didn't see anyone else there? A. No. No. Q. You didn't hear any noises that suggested there was someone else in the house? A. No. Q. Now on January 1st '91 you gave a further statement to Officer Fortier. A. January? Q. 1st, '91. A. Okay. Yes. Q. You recall that's when you were shown the photographs? A. Yes. Q. Do you recall telling Officer Fortier that you remembered hearing a fence or something squeak off to our right before you entered Mr. Giroux's house on the Tuesday? A. Yes, I do. Q. All right. Can you tell me about that? A. It's just -- it's one thing that came back after the year, it's the only thing -- the one thing I remembered it sounded like I heard a fence, it sounded like a squeaking fence because on a farm you hear when you cross the fence it squeaks and that's what it sounded like. Like I said maybe it was something else I heard, I don't know, but that's what it sounded like to me. Q. And you've ---

McFADDEN, cr-ex

(Mulligan)

7481

A. That's what I told him, yeah. Q. And you've seen photos of the houses that you were shown the other day, of the houses up there, Mr. Giroux's house and the other residences. Have you seen those? A. I seem a photo of Michel's house and just in that one photograph with all the other houses around it, and I seen that one. Q. I'll find it. Okay. That may be the best one, that's photo 15 from Exhibit 69. That's the door to Michel Giroux's house? A. Yes. Q. There seems to be a residence of some kind to the right of it? A. Yeah. Q. Is that where you thought the sound came from, that area? A. It's hard to tell where. It seemed like that's what I heard for some reason. Q. But the sound was emanating from somewhere to the right. A. Off to the side, yeah. Q. You didn't see anybody. A. No. Q. At least in that photograph you don't see fences there? A. No. No. Q. You didn't see any vehicles coming up or down the driveway when you got there? A. No. Q. Do you remember what the traffic was like that night, a lot of cars on the road on your way?

McFADDEN, cr-ex

(Mulligan)

7481

A. I couldn't remember too much. I don't -- I don't really know or remember, rather. Q. At some point or, rather, you have testified that the blinds on the door were damaged; is that right? A. Yes. Yes. Q. You saw damage to the blinds on the door to Michel Giroux's house? A. The inside door, yeah.

MS. BAIR: I don't know that that is the evidence actually, so I wouldn't like my friend to unintentionally, I'm sure, mislead the witness. There's nothing about damage anywhere, it says scuffled.

MS. MULLIGAN: Oh, I'm sorry. I'll clear that up, then.

Q. You saw scuffling to the --- A. It looked like they were out of the ordi-nary type thing. Q. Maybe I'll just find exactly. A. Yeah, I mentioned it was scuffled. Q. You said scuffling means they were out of whack? A. Yeah, they didn't seem to be the way they usually were. THE COURT:

Q. Mis-hung, you mean, not hanging straight or what? A. Yeah, they were just bent out of shape type thing, you know, --- Q. Oh, okay. I see.

McFADDEN, cr-ex

(Mulligan)

7481

A. --- like they weren't the way blinds should be. THE COURT: Okay. MS. MULLIGAN: Q. And when you looked at the photographs here, did you see that in the photographs of the blinds? A. No. Q. Now just to recap a bit, Tuesday you were there for a few seconds and you left, you said, Tuesday, the 16th. A. Yes. Q. Wednesday you're there in a car outside, you didn't go in. A. No. Q. Thursday, based on your statement, you go to work. Wednesday you'd been there out of curiosity, right? A. Yes. Q. Thursday you go to work, you finished at about 4:30, you go home for supper, you get showered and relaxed 'til about 6:30 and then you go pick up this paycheque for your brother? A. Yes. The timing, I think it was right after supper I went I think. Q. I can give you your statement, there's no trick to this, I just wanted to put your evidence on the record. A. Yes. Q. And where was that that you had to go to pick up the cheque, how far from where you were? A. Ten minutes, 15 minutes or something. Q. In what direction?

McFADDEN, cr-ex

(Mulligan)

7481

A. Southeast I do believe. Q. Okay. Nowhere near Michel Giroux's house. A. No. Q. Then you go home after picking up the cheque, it appears in your statement, and you play some ping pong with your dad? A. Yes. Q. Or you actually drove to the bank at Navan. A. Oh yeah, sorry, I missed that. "Turned home, dropped off the cheque at the barn, drove to the bank." Q. At Navan, and then you went home and played some ping pong with your dad, right? A. Yes. There was -- that was Thursday night? Q. That's what it says. A. Yes. That's what it says there, yes. Q. Is that right? A. Can I look at something? Q. Sure. A. I think Thursday night I went to Orleans too I think for a few minutes. I don't know where it is now. I think I went to Orleans for a few minutes I do believe, it was after the bank. It's on the back of my statement I do believe. Q. Okay. On Thursday after you went to the bank you drove to Orleans? A. Yes. Q. To see Shelley. A. Yeah. Q. She wasn't home, you went to the bus shel- ter, you saw her for a few minutes? A. Yes.

McFADDEN, cr-ex

(Mulligan)

7481

Q. And then you go back home, you play some ping pong and later you go to Carlsbad Springs. A. Yes. Q. Okay. And my point is, sir, you're out and about that day, you go pick up this cheque, you go to the bank, you go to Orleans, you come back home. A. Yes. Q. Had you lost that curiosity from the day before, you didn't go back to Michel Giroux's house on Thursday. A. No. Q. Why not? A. I don't know why. I don't know. I still don't know why. Q. We have talked a bit about people you had talked to at Carlsbad Springs in the bar on Thursday or Friday, the Carlsbad Springs Show Bar. A. Yes. Q. On either of those dates, sir, do you recall Dave Dunbar approaching you? A. No. Q. And in any event, I think you've told us many times, no one seemed to be angry with you or upset with you. A. They didn't seem to be, no. Q. You said you hardly knew Dave Dunbar? You hardly know Dave Dunbar? A. Yes. Q. And have you had any opportunity to have a discussion with him recently about these murders?

McFADDEN, cr-ex

(Mulligan)

7481

A. There was once at the Navan Fair, I think it was last year, '97 I think. '97 I do believe. Q. Did he approach you? A. Yes. Q. Some of these people that you spoke to on the Thursday or Friday night at the Carlsbad Springs Hotel, ---

A. Yes.Q. --- you told some of them, I suggest to you,

that in fact Michel Giroux had been shot, did you not? A. I think I mentioned it to one. Well I said it looked like he had been shot. Q. It looked like it. A. It seemed like it, due to the fact the time period I called him and then the time I showed up, with the blood and whatever else. Q. When you got to the house was there any distinctive smell or odour in the house when you say you were there on Tuesday? A. No. Q. I'm not suggesting on this occasion, sir, but on any other occasion have you ever fired a shotgun? A. No. Q. You've never been around one when it was fired? A. A shotgun? No. Q. No? You certainly didn't smell anything like burning or anything like that when you walked into the house? A. No. Q. Sir, I suggest to you that you had more to hide than just your drug habit.

McFADDEN, cr-ex

(Mulligan)

7481

A. Pardon me? Q. I'm going to suggest to you you had more to hide than just your drug habit and that's why you didn't call or tell anyone about it that first night. A. No. Q. You initially told the police, sir, did you not, that just before you came out with this version, that you had just gone to Mike's house to pick up a radiator, didn't you? Isn't that what you told the police right at the very beginning? A. Yes.

MS. BAIR: I didn't hear that. To pick up what?MS. MULLIGAN: A radiator.

Q. You could've told your parents that, 'I was at Mike's to pick up a radiator.' A. I could've but I didn't have nothing to hide, so ..... The only thing I had to hide was the fact about my parents about the drugs, that's the only thing that I had to hide. Q. Yes, and if you'd told them the reason you had been there was to pick up a radiator then you could've stayed and done something or try to get help for Mr. Giroux, right? A. I could've but I didn't. Q. We already covered the fact that you could've made an anonymous call for help but you didn't do that. A. I didn't do it and ---

Q. You could've ---A. --- I regret today for not doing it.

Q. You could've ran around to the houses

McFADDEN, cr-ex

(Mulligan)

7481

around there to see if there was anyone available to help and then left the scene. A. I could've. Q. And I don't understand, maybe you can help me, why it is that if you were so concerned that it not get back to your parents why you would tell these mere acquain-tances not knowing who they might tell. A. I don't know. That was a mistake on my behalf. Q. So you went back there the Wednesday night, sir, whenever you went back, sir, did it occur to you that maybe you should go back and wipe some fingerprints off the door or whatever? A. No. Q. That didn't cross your mind? A. No. Q. So it was just mere curiosity. A. That's it. Q. Your curiosity didn't take you out of your car. A. No. Q. It didn't occur to you, did it, sir, to go back and help yourself to perhaps some cocaine and some money in the house? A. No. Q. You didn't do that. A. No. Q. You were 23 years old at the time that this occurred? A. 24 or 23.

McFADDEN, cr-ex

(Mulligan)

7481

Q. What was it that you were concerned -- you said you were concerned about your parents' reputation or standing in the community? A. Yes. Q. And yet you indicated to us you didn't have a close relationship with your parents? A. No. Q. In fact you said you may have -- at one point you may have partly been using cocaine out of spite against your parents. A. Yeah, boredom I guess. Q. Sir, I suggest to you the worst thing your parents would've done had they found out about your problem was try to get you to get some help. A. That's right, it would've been the best thing for me but at the time I guess when you're -- the biggest thing for a person who's using drugs is to admit they have a problem.

Q. The other ---A. It took me 12 years to realize that there was

a so-so problem. Q. The other big thing for someone with a problem with cocaine is getting more cocaine, is it not? A. I never -- to me if it wasn't around it didn't -- it didn't bother me, you know, like if it wasn't anywhere around I wouldn't -- I just wouldn't get it. Q. You said you'd call first, sir, and when you did that Michel Giroux would unlock the door and then you'd usually just knock and go in; is that right? A. Well whether the door was locked before that's one thing I don't know, but when I went over the door

McFADDEN, cr-ex

(Mulligan)

7481

was usually unlocked. Q. And you'd usually call first. A. Yes. Q. Have you not told people, sir, that you had some other system, that if the yellow lights were on by the patio doors that you could just go up? A. There was a yellow light code I guess you could call it but I usually called first before I went. Q. Okay. Well what's the yellow light code? A. Well if the yellow light was on or something he'd be home. Q. So you didn't necessarily have to call first, you could just go up --- A. Just drop in, yeah. Q. --- if the yellow light was on.

And as far as you could tell, sir, from your relationship with Mr. Giroux, he trusted you? A. I guess as much as -- I don't know, I guess he would, yeah. Q. And I guess it really doesn't matter how many times I ask you, you're going to tell you me you had nothing to hide other than your drug habit; is that right? A. That's it. That's all. MS. MULLIGAN: Thank you. Those are all my ques-

tions. MS. BAIR: What about --- THE COURT: Mr. McKechnie? MR. McKECHNIE: I have no questions for this wit-

ness. THE COURT: Thank you.

McFADDEN, cr-ex

(Mulligan)

7481

MS. BAIR: I have a couple of questions, Your

Honour, and then I'm going to have to ask the jury

to step out to ask the Court something.

RE-EXAMINATION BY MS. BAIR:

Q. But, first of all, what did you think Ms.

Mulligan meant when she just asked you whether Michel Giroux

trusted you? Trusted you for what? A. I guess for paying him or whatever, you know, like if I got something from him for one week he knew that I was going to pay him the next week, so I guess you could say he trusted me in that sense. Q. He trusted you to pay him. A. Yeah. Q. Okay. That's what you were answering. A. Yes. Q. This yellow light, do you know which light, on the outside or the inside of the house? A. On the outside towards the front I do believe. Q. Let's see if we can find a picture of that light anywhere. Is it in this photograph? A. It could be that one. Like I said I never really went by the -- sometimes, you know, but never -- it was usually a phone call prior before going over. Q. Could we have the lights down a little bit? I think you can see it more clearly. This is photograph number 13, I just showed you 14 and just to the right of the sliding door there seems to be a yellow light and in the forefront of this photograph is the driveway. A. Yes.

McFADDEN, re-ex(Bair)

7486

Q. Do you know if that's the light in question? A. It could be. I don't know, maybe there's another one too, I don't know. It could be the light but like I said I usually called first before I went over. Q. You didn't use this system? A. No. Q. But you were aware of this system. A. Yes. Q. Was it common knowledge, sir, this system, amongst the people who bought from him? A. Yes, it was known that this was one of his codes I guess you would say. Q. Was there any other way that you could tell if Mr. Giroux was home, if you happened to drive by? A. His car would be there. Q. Did you ever use that? A. Maybe I did. I guess sometimes. Q. Okay. But you would phone ahead. A. Most of the time I'd usually call. Q. No point in driving over if he's not going to be there. A. No. Q. Ms. Mulligan said to you if you had nothing else to hide -- well, there are a lot of questions - anyway, why would you tell mere acquaintances if you were so concerned that your parents not find out about your drug habit not knowing who these people at the Carlsbad Springs Hotel would tell. Did your parents go to the Carlsbad Springs Hotel with you? A. No. Q. On their own?


7486

A. No. Q. Hang out with Marge Provost? A. No. Q. Good friends with Roger? A. No. Q. Know Danny, the scrawny guy? A. No. Q. Ever been to your house? A. No. Q. Do you think these people were going to talk to your parents? A. No. Q. All right.

The blind, you said not the way that -- the blind was scuffled, you agreed that that's what you had said before, and it was not the way it should be, it was not normal, ---

A. Yeah.Q. --- bent out of shape, and that that is not

the way the blind is depicted in the photographs. A. No. Q. Do you know what happened at that house ---

A. No. Q. --- between the time you saw the blind

scuffled and the time that whoever took the photograph took the photograph? A. Maybe somebody was there since. THE COURT: No, no, no. THE WITNESS: Pardon me?

THE COURT: He's saying maybe somebody was there. You're asking if he knew in the period


7486

between when he saw the blind.MS. BAIR: When he saw the blind and when the photo-graph was taken does he know what happened at the house and he's saying maybe this, maybe that, and that is the answer that I expected, Your Honour.

Q. You don't know, do you? A. No. Q. I'm trying to see if we have a photograph of the door that shows the type of blind. I should have looked earlier, sorry. I didn't know we were getting to the blind. There it is. Is that the sort of blind that you recall? A. Yes. Q. It looks like a small flat venetian blind? A. Yes. Q. All right. And you're saying it was just not hanging properly. A. It was just like it was out of whack I guess you would say. Q. Okay. You're talking about Dave Dunbar. A. Yes. Q. Ms. Mulligan asked you about a photograph and whether you recognized him, you said you didn't recognize him at first. The first time you were asked about that, sir, was that during the previous proceedings? A. Yes. Q. Okay. You said you'd since seen Mr. Dunbar at the Navan Fair --- A. Yes. Q. --- in 1997, and Ms. Mulligan got from you that Dunbar approached you.


7486

A. Yes. Q. What happened? Tell the jury about that. A. I guess, I don't know if he was drinking or whatever, but I was with my wife just being normal and he came up and asked me if I'd been charged with murder lately or yet or whatever. Q. Did you say anything to him? A. I just shook my head and I guess we walked the other way, said "no" or I shook my head, you know. It was a surprise for me. Q. And what sort of attitude did he have when he said that to you? A. It was like obnoxious, sarcasm, I don't know what he meant by it. He was probably -- I don't know if he was drinking by then or whatever, but it surprised me. MS. BAIR: Maybe I should ask my question now, Your

Honour, if the jury can ---

THE COURT: All right, members of the jury. Thank

you.

--- Whereupon the jury retired at 2:40 p.m.


7486

--- In the absence of the juryMS. BAIR: I mean other than he's going to be bored by the argument, there's no need to leave.MS. MULLIGAN: Perhaps the witness ---

THE COURT: I'm sorry, I didn't hear.MS. MULLIGAN: Perhaps the witness could step out too. I don't know exactly what's going to be argued but I suspect.THE COURT: I guess counsel is a little afraid of where she might go with her argument, so perhaps as a matter of caution the witness should go out.

MS. BAIR: Save him from a degree of boredom he

doesn't need to endure either I suppose.

--- Whereupon the witness retired

THE COURT: All right. MS. BAIR: We're back to the polygraph, Your

Honour. THE COURT: Oh yes.

MS. BAIR: The line of questioning proceeded gen-erally along these lines: "Your father was bowling every Tuesday therefore it's not hard to say if anybody asks you where your father was on Tuesday night, and you watch Matlock every Tuesday night." It's an allegation of recent fabrication clearly in that context. But beyond that "it's an easy story for you to make up because this is something that was done every Tuesday night and you knew you could be corroborated." Moving from there to "You didn't


7522

tell anyone you were going, you got home before your father, you didn't wake your mother or your brother. About you going to Michel Giroux's there's only you, there's no other witness. On Wednesday you went again, you told no one you were going, you went alone, you told no one" et cetera. "There's only you." Well, there's only him and his polygraph, Your Honour, but that's not the end of it. The jury has also heard the question "Can you think of any reason why you would be giving Fortier a car stereo? Did you give Fortier a stolen car stereo?" along the lines of were there other crimes that you have gotten away with, I gather.

The circumstances of that, Your Honour, that Mr. McFadden went for his polygraph examination on the 30th of January, and there's a page from that, and I apologize for the quality of the photocopy, but if I could hand it up there are three columns "lie", "offence" and "shame", "things that you've lied about, offences you've committed, and things you're ashamed of" and under the "offence" category there are a number of things, the last of which is "Stole a stereo out of a car and never caught, at Navan Fair two years ago, stereo is in my bedroom" and the day after that he turns that stereo in to Fortier. So you're asked what is the reason? Well the reason is I admitted it in the polygraph, really he believed it had the ability to discern truth from fiction and he turned in the


7522

stereo because he'd had to admit it during the

polygraph. So it's directly at issue from that

question. Those are the facts.

Mr. Dandyk has the law.MR. DANDYK: Your Honour, I apologize, I had to put this together quickly, they are cases we've been referring to throughout in actual fact. We're aware from Beland and Phillips in the Supreme Court of Canada (1987) 36 C.C.C. (3d) at page 481. That case of course relates to polygraph and in discussing polygraph there is an indication as well in the arguments that basically the Crown is normally not able to bolster a witness' credibility until it has been attacked, that being an exception, and it's clearly said and it's repeated a number of times. As well and I guess one of the exceptions that is then discussed is a prior consistent statement, which a polygraph may be, and the suggestion being that prior consistent statements of course are admissible as well if in fact recent fabrication is alleged which, with respect, it is here.

So in discussion at page 490 of the case there is discussion by the Court, Justice McIntyre indicating at page 490:

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 ...

we're saying that exception does apply here


7522

... or to show physical, mental or emotional condition - it should be rejected.

So we have that exception arising and of course we have a further exception when defence counsel make an issue of it, which they clearly have in relation to the question about the car stereo. So it has, at least as far as the Crown is concerned, become relevant under those bases.

The aspect of or that point of law that Beland and Phillips also indicates that generally speaking before a witness' credibility has been attacked a party is not entitled to lead evidence to bolster the credibility. Well, we're there, and that principle was restated by our Court of Appeal on December 5th, 1996 in the P.(G.) case, 112 C.C.C. (3d) at page 263, and the discussion and reference to the principle I just indicated is at page 275 and Beland and Phillips is cited as the authority in support of it.

Counsel may try and suggest that somehow this is not an allegation of recent fabrication and there, of course, and it's been referred to previously, we can look at the O'Connor case and specifically the comments of Justice Finlayson from that case. We're aware, of course, that O'Connor that leave was dismissed by the Supreme Court of Canada (1996) 27 O.R. (3d) at roman numeral lower case (i) and the decision itself appears, it's (1995) 84 O.A.C. and we can look at page 118 and the indication


7522

clearly is, and in fact it's very clear as well,

Justice Finlayson relies as well on --basically

suggesting that the argument is too clever by half

and the quote I've given before, and then quoting

Campbell, a previous Ontario Court of Appeal

decision, suggesting that such an allegation can

arise from the circumstances of the case and Ms.

Bair has just clearly out- lined that aspect.

The additional case and looking at recent fabrica-tion and that allegation is the issue of credibility, and that arose as well in the case of Evans, which we've dealt with before, we dealt with it in relation to previous consis-tent statements and we dealt with it in relation to re-examination, and in that case defence counsel cross-examined and tried to attack the credibility of Linda Sample and Justice Cory for the Court indicates at pages 348 and 349, and it's been read to the Court numerous times, bottom of 348:

It is sufficient if, in light of the circum-stances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance. In those situations, fairness and ordinary common sense require that the jury receive a balanced picture of the whole of the witness's conduct throughout the police investigation.

Later on in the next paragraph: The nature of the cross-examination involved an attack on the truth of her testimony and of her statements given to the police.


7522

And clearly that is the nature of the attack here, and we know from Evans, of course, it was found to be proper re-examination to put those prior consistent statements in and, with respect, it's no different and if it arises in the circumstances of a polygraph that those statements are provided it becomes admissible as well.

The interesting thing is, and I'll say it at this point, Ms. Mulligan clearly seems to be of the view that the Court has ruled and will never let it in and she can keep pushing the envelope and, with respect, the caselaw is very clear that at certain times a polygraph does become admissible and I mean she cannot say she hasn't been warned, this argument has arisen numerous times, and again during examination the point was made and very clearly now, with respect, she's there.

The point as well was made that the Court, and spe-cifically the trier, is entitled to a balanced picture of the whole of the witness' conduct throughout the police investigation that's the Evans quote I just gave and our Court of Appeal in relation to the Royer case in fact quoted that in allowing in a subsequent fifth statement by the witness, and that same point was being made, the Supreme Court of Canada supported our Court of Appeal, the Supreme Court decision was (1996) 91 O.A.C. at 398 and the Court of Appeal decision was (1995)


7522

77 O.A.C. at 309. The relevant quote and endorse-

ment of the comments from Evans are at page 312 of

that decision.We then move into the polygraph cases, in addition to Beland now, B.(S.C.) we're aware of and that was the Ontario Court of Appeal case from (1997) 10 C.R. (5th) at 302. This was the case where in addition to polygraph an offer to provide certain bodily samples were posited to be potentially evidence of consciousness of innocence, I suppose it could be characterized, in relation to an accused, that type of discussion, and the Court, at least in obiter, suggested that if evidence were led that an accused were under the belief that the results would be -- a negative result would be useable against him or her then that may well be admissible evidence and, with respect, we have a situation in this case, and I should indicate in the discussion in the case at the bottom of 311 there is reference to a similar approach relating to evidence tendered by the Crown and obviously it posits, and it's been said before, admissibility in that context. In our situation it's very interest-ing because clearly we have an individual, Mr. McFadden, who knew and was questioned about other criminal activity and under the belief, and clearly as to his consciousness of innocence, under the belief that such things could be used, under the fact that it had arisen, very clearly it was his state of mind that he then turns over that piece of


7522

equipment the next day. So we have a double aspect here, it seems to fit B.(S.C.) from our Court of Appeal, and become relevance and it is in his context as a potential accused in relation to that offence, and additionally we have the direct factual trigger which is a separate basis and which, with respect, makes it entirely admissible just on that basis because Ms. Mulligan asked about turning over the car stereo and tries to leave an impression. The jury is now entitled to know why it was turned over. And in that context as to the state of mind, if we will recall one of the excep-tions in Beland and Phillips was to show a physi-cal, mental or emotional condition, effectively issues of state of mind, so that also fits into that aspect of what's going on in Michael McFadden's mind and why did he turn over that car stereo to the officer.

And the additional basis, and we've had the Siu case from the B.C. Court of Appeal, and this was in fact very recently argued, Siu is (1998) 124 C.C.C. (3d) at 301, and specifically in the decision at page 331 we have the quote at paragraph [84] which has been quoted to the Court before:

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.


7522

Well now let's look at what that says because, with respect, it is an entire parallel and applies. If you want to keep asking Michael McFadden "we only have your word", "we only have your word", "you've got nothing to corroborate it" it's identical. What else does he have in his mind? What else is there when you test his credibility and say you're lying and we only have your word. No, we have something additional - it goes to his state of mind, which is the Beland and Phillips exception, it goes to exactly the type of question that arose in Siu and, with respect, it becomes admissible on that basis as well. She's done it, she's asked exactly that type of question.

I guess the final area or the final area I'll make,

and I've already referred to it is somewhat, is at

times, separate from the aspects of bolstering

credibility, of making credibility an issue, of

recent fabrication and so on, and recent

fabrication I guess is an example of this, is

defence action can trigger the admissibility of

these things. They may not be admissible, however

if the defence does something to make them admiss-

ible, we know that from the Minhas case and the

Smith case, and we've argued before on polygraph,

because defence questions on certain issues. We

will recall in Minhas there were issues of ques-

tioning and offers to take a polygraph and so on,

and actually Smith as well I guess there was an


7522

offer to take a polygraph or the accused(In the absence of the jury)

7522

offered to give a polygraph and subsequently when the police offered it to him, he offered to give it during his statement, when the police offered it to him he then refused and because of that the refusal became admissible in front of the jury, the refusal to take the polygraph, and that became admissible. In this case we're suggesting the Fortier questioning makes it admissible and relevant and it's similar to the Romeo case. Now we'll remember Romeo because that was the Supreme Court of Canada case from 1991, 62 C.C.C. (3d) at page 1, that was the case wherein it was the explicable absence of the accused at a certain time in relation to the murder going to the issue of insanity, it became admissible evidence to show that the accused charged with murder was in fact attending at a required appointment in New York State in relation to other murder charges to provide samples, bodily substances, and that was only because defence had made the issue that somehow this was an inexplicable absence as it occurred before going to insanity, a very strong prejudicial -- potentially prejudicial piece of evidence, however the probity and because defence triggered it outweighed the prejudice. Well, with respect, we're not even anywhere near the type of prejudice here but, with respect, we are there with the probity and counsel has triggered that aspect. There are umpteen cases in relation to defence action triggering admissibility of things that would


7522

otherwise be inadmissible but what we are, with respect, left with then to conclude is that there has been an allegation of recent fabrication and therefore that becomes admissible. It has triggered, consistent with the polygraph caselaw, the admissibility both as to the consciousness of innocence as to that action and both in relation to the questioning of "only you" and so on, consistent with Siu and it has directly triggered it in relation to the questioning about Fortier and the car stereo as to specific defence action making otherwise potentially inadmissible evidence, although obviously here we got it on the basis of inadmissibility, admissible. So on that basis, with respect, we're there and Ms. Mulligan can't keep hiding behind some hope as to these cases, they are not absolute as to the exclusion of this evidence and it may well become admissible and has become admissible, and, with respect, we're there.MS. BAIR: Your Honour, just before we sit down I neglected in reviewing the facts to point out one other area, two others actually, when Ms. Mulligan was saying to the witness "You told acquaintances before you told the police" and said to him "that was because you were trying to set up a story to cover your prints in there", and in addition towards the end "You had a great deal more to hide." These are also relevant to the argument Mr. Dandyk made.


7522

THE COURT: I'm sorry, I didn't get that one. Covering your prints and what was the second

one?MS. BAIR: The second one was the most recent cross-examination about "You had a great deal more to hide it wasn't just your drug habit." In these circumstances this willingness to undergo the polygraph is relevant to the argument Mr. Dandyk made.THE COURT: All right.

MS. MULLIGAN: Dealing with the -- Ms. Bair has one more thing.MS. BAIR: And one more thing, the fact that the police didn't believe him when he said it was Tues-day.MS. MULLIGAN: Dealing with the last one, Ms. Bair led that from the witness in chief. I was just exploring how that came about. I don't think that could possibly trigger anything, not that the police didn't believe him but the police had a feeling it was Wednesday and he maintained it was Tuesday, and Ms. Bair brought that out in chief.

With respect to the other issues, January 16th and

17th were the dates I was asking him about, "Was

there any witness who saw you leave the house? Did

you tell anyone you were leaving the house that you

were going to Michel Giroux's? Did anyone see you

come in? Ergo no one saw you, what we have is your

evidence on that." It's interesting that Mr.

Dandyk said you can keep asking him "all we have is


7522

your word",(In the absence of the jury)

7522

"all we have is your word." I didn't do that. In

fact that was done at the previous proceeding in

'95 repeatedly "all we have is your word", "all we

have is your word", "all we have is your word", and

I didn't in fact do that. But in any event I asked

him if there was any witness who could say that he

had left at a particular time or arrived home or

whatever. Now, Ms. Bair makes the argument on the

basis of a prior consistent statement so that this

polygraph should go in because it's a prior con-

sistent statement concerning I guess what time he

left and that he did go on the Tuesday and did go

on the Wednesday. The prior consistent statement

is the statement of January 20th, and I don't think

the jury is confused about the fact that he said

that right away, and if Ms. Bair wants to put that

to him and point out that he said that he went on

the Tuesday, he went on the Wednesday and the times

and everything exactly as to what he's told us,

then she can but the polygraph doesn't do it. The

polygraph doesn't ask him if he was there on the

16th, it doesn't ask him if he was there on the

17th, those questions aren't even tested upon. The

question he's asked, the only question including

the 16th that he's tested upon is "On the 16th of

January, 1990 did you shoot Mike Giroux and Manon

Bourdeau?" Another test question was "On the 16th

of January, 1990 was it you that shot Mike Giroux


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and Manon Bourdeau?" And finally "On the 16th of

January, 1990 were


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you the one that shot Mike Giroux and Manon Bourdeau." It has not been suggested to him that he shot Manon Bourdeau and Michel Giroux, and the way my friend wants to get it in is that I said there are no witnesses that could confirm he went there on Tuesday or Wednesday or what time he went. There's nothing in the polygraph that assists her in that.

If my friend wants to use the statement he gave in addition to the polygraph and use it as a statement, I think it would be fascinating because there are a number of inconsistencies, I certainly have no objection to using it as a statement without the mention of the polygraph. We'd hear for the first time that he told someone about this named Brenda Atkin. We'd hear for the first time that he could see through the window or the door and could barely see someone laying on the ground before he opened door. We'd hear for the first time that on Wednesday he actually went to Andy Hanson's house at some point. We'd hear a lot of things that we haven't heard in evidence if we want to use the interview he made while he was thinking he should be telling the truth. In my submission it just doesn't go there. The question was very limited in that "Was there someone else who was able to say what time you left, that you in fact went there and what time you got home?" and there isn't, that's true.


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The defence is entitled, in my respectful sub-

mission, to explore this gentleman's credibility

without the Crown being able to come along and say

we have a truth machine and we can prove he's

telling the truth, and that's precisely the purpose

that Mr. Dandyk wants it in for, we want to be able

to prove that he's telling the truth about this and

so we want the polygraph in, and that's exactly the

wrong purpose, that is just the impermissible

purpose. So on the January 16th and whether the

anyone saw him coming or going, the polygraph (a)

doesn't address that issue; (b) the interview that

goes along with the polygraph is almost entirely

inconsistent with what he said about what he did on

those days, not entirely but there are a lot of

inconsistencies; and, (c) it just doesn't -- Ms.

Bair has her prior consistent statement given

January 20th, no one has disputed that he said

that.

As far as the car stereo goes, this one is interesting. The gentleman on the stand says he doesn't remember ever giving the car stereo, that's the evidence. He doesn't remember ever giving one, he has no recollection of such a thing at all. I don't know how it is that we're going to go from there that not only does he now remember it when the Crown showed him this document, but also he knows what his state of mind was and his reasons for doing it. When I asked Constable Fortier on the


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stay application(In the absence of the jury)

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why he was receiving a car stereo from Mike McFadden he didn't know, he couldn't remember. When I asked Mike McFadden, he didn't know and couldn't remember. Yet I am to divine that this is the car stereo that is indicated on this bad photocopy "stole stereo out of a car and never caught, at Navan Fair two years ago, stereo is in my bedroom." How I would divine that I'm not sure. Secondly, he's asked on the polygraph one of the test questions is "Do you remember committing even one other offence for which you were not caught?", his answer is "No" and I'm told he passed this test. So I'm not sure where that goes.THE COURT: "Do you remember any other offence for which you were not caught?", is that what it says?

MS. MULLIGAN: Yes. THE COURT: And he says no? MS. MULLIGAN: Yes.

THE COURT: Well, he's discloseable.MS. MULLIGAN: Oh, okay. That may be.

THE COURT: I mean there are no others.MS. MULLIGAN: You're right, Your Honour. I didn't read it that way.

I also note that when the polygraph examiner came back into the room, and maybe that's why I read it wrong, the polygraph examiner comes back into the room and says "What questions were bothering you on the test? A. The ones about the offences I haven't been caught for and the lying ones." "The polygraph examiner


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advises McFadden that as far as he was concerned

there were a lot more skeletons in your closet than

what you've told me about" and he's asked to stay.

The examiner, his opinion is that "he'd been

truthful to questions whether he knew who shot Mike

Giroux and Manon Bour- deau, that he was not

withholding information about the shootings and

that he did not participate with anyone to shoot

them." As to the rest of the questions we know

naught I guess. In any event, the car stereo, Mr.

McFadden's memory is that he doesn't know why he

gave it to him, Fortier's memory on the stay

application under oath as well. It's not a central

issue to this case. My friend quotes Romeo and

other cases such as B.(S.C.) where it went to

consciousness of innocence of an accused was at

issue in B.(S.C.), it's the central issue to the

defence. In Romeo it was the central issue of the

defence, whether the defence could stand. Whether

or not Mr. McFadden had an attack of conscience

over a car stereo or not, one that he no longer

remembers even giving, is not a central issue in

this case. Right now as it stands the jury doesn't

know anything more about it, that's it, he doesn't

remember having ever given him one. So in my

submission that certainly can't open the door to

that kind of oath-helping that my friends seek. It

just doesn't go there. Moreover, it would've been


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nice to have known it's the selfsame car stereo,

you know, that's not made clear at all


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in the disclosure.

Trying to set up a story to cover for your prints being there, a great deal more to hide. I went on about the fact that I thought he had perhaps gone there to steal or pilfer drugs and money from the house, that that may be why he returned. His evidence is no and there is nothing again in the polygraph that's going to assist my friends but his evidence is no, he didn't do that.

So in my submission I've done no more than a tradi-tional cross-examination. I've not opened any doors to having the Crown or having Mr. McFadden able to say that he is telling the truth because he passed a polygraph, and I don't know what other purpose it could be used for by the Crown based on their argu-ment. It doesn't make sense to me. I mean there's nothing, nothing that would suggest that this should go in. It hasn't been suggested that he didn't say this before and Ms. Bair has the ammunition to show he said it January 20th the first day he spoke to the police about going there Tuesday and Wednesday night and the times, but beyond that, in my submission, the Crown ought not to go, we end up putting it in for the truth machine, it ends up being the ultimate in oath-helping and the cross just simply doesn't give rise to that. This is not an accused person, this is a witness about whom defence counsel is entitled to question about


7522

their motives and their credibility and whether any other witness, which I made clear, is able to verify what time they left the house and that sort of thing, and the polygraph did not assist my friends in that regard anyway. In my submission the Crown wants it in but it doesn't assist them on the issues they actually raise which is telling, in my submission. It's telling that the Crown want it in as an oath-helper and nothing more.THE COURT: Of course the validity of the statements of the 20th as recent fabrication depend on how recent fabrication is defined. If you do it as Mr. Justice Finlayson does, that any explanation subsequent to the events in question when offered are recent fabrication in that sense. I mean in other words, if they're presented in such a way that sort of said you made this up, it doesn't have to be recent, I mean that's what I understood from that point by Mr. Justice Finlayson. So the 20th that it's available doesn't exactly bail the Crown out. Probably the Crown could argue well you cer-tainly always took that position from the 20th of January, four days after, and, you know, so it isn't recent but that's not the point about recent fabrication.MS. MULLIGAN: No, and I mean there's no suggestion that he ever said anything else, in fact that's what he said to the police other than that brief moment in time when he first met with the police and I've made it clear that was


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a very brief moment and he ---THE COURT: But you did the first time through. The second time through you kind of dwelt on it a little bit I thought but anyway I thought you gave and took away at the same time. MS. MULLIGAN: I certainly didn't mean to if

that's the impression I left Your Honour with. THE COURT: No, no, but that's the impression I got. I said we went through this before and I thought it was all, you know, a concession on your part but then later on it came back again but it's all right, it's fair enough.

MS. MULLIGAN: But certainly Ms. Bair --- THE COURT: No major forensics.

MS. MULLIGAN: Ms. Bair can certainly clear that up. I tried to leave the impression, at least I was trying to, that he had only just initially said something different, the police then said no, this is really what happened. But there's no other suggestion that he ran around telling a different story. This is the story he's always told so. But in any event asking merely if there was someone who can witness what time he left the house I cannot imagine that that opens the door to a polygraph, the same with this car stereo which is collateral, not central at all.THE COURT: Does it open the door to suggesting that he voluntarily took one as opposed to the results?MS. MULLIGAN: I don't know how it would. If a witness has taken a polygraph defence counsel


7522

are never entitled to ask if there is an inde-pendent witness to their actions as opposed to an independent machine. I mean that would forbid or forbade -- defence counsel would be forbidden from ever asking it and somebody else could come forward to say what time he left the house, and those aren't tricky questions, I mean there's nothing special in that, that's the kind of questions a witness is asked every day on the stand is there somebody who's going to come forward or somebody you know of who can say that they saw you leave or what time you got home, were your parents asleep. These aren't questions that were terribly challenging for him, he said no there wasn't, you know, they went to bed, I came home. That's it. I don't see how that opens the door to saying 'but I offered to take a polygraph' on an entirely different topic by the way, I mean there's no question about did you go at a particular time on the 16th, did you come home on the 16th, did you go on the 17th, did you come back on the 17th, there's no questions about that, so how that assists I don't know but in my submission any mention of a polygraph is so prejudicial, it's not probative on these issues. It is ---THE COURT: That's another point, why is it so prejudicial in this context? It goes to a witness who's describing the time of death.

MS. MULLIGAN: And the time of death is an issue.


7522

THE COURT: Time of death is an issue, yes, but it's not an issue of prejudice in the same way that I edited the matters which went back to the accused and so on, and that's why I did that because, of course, anything leading back to the accused has some prejudice written all over it, and I'm just wondering if this is exactly the same kind of situation in terms of prejudice, that's all I'm wondering. I mean you can't assume prejudice in every situation, which is I think the point the Crown was trying to make. MS. MULLIGAN: Oh no, and I don't assume it in every situation, but where we have a situation where the defence suggests that the witness may not be giving accurate evidence about the 16th and the 17th and what time he went there and what time he came home and if he in fact went on both days because it is central to the issue of time of death, it's central to the issue of whether these gentlemen in fact may end up, at least Mr. Sauvé end up with an airtight alibi on the 17th, so it's central, it's central to the defence certainly.THE COURT: But the Crown's position is simply that the airtight alibi is true for the 17th because it is in fact true. I mean, the Crown agrees with you that the 17th alibi is true, ---MS. MULLIGAN: Yes.THE COURT: --- and that's the whole point.


7522

MS. MULLIGAN: The Crown disagrees with me, though, as to when the offence took place, --- THE COURT: That's right.MS. MULLIGAN: --- and they rely on McFadden to do that in large measure.

THE COURT: Yes, I understand. I remember what the pathologists said about a believable

witness, we've been through all that with them. MS. MULLIGAN: And there's also an admission coming with respect to the temperature in the rooms, as I understand it, that the temperature was in fact maintained at 71 degrees and didn't fluctuate so that may also assist the jury with that evidence. We're still waiting to sort that out but my friend had given it to me some time ago and I gave it back and I haven't heard it yet. In any event it's certainly an issue.

If Mr. McFadden is allowed to say I offered to take

a polygraph on the basis that I asked him if anyone

saw him leave his house at a particular time or

come home at a particular time on the 16th, there's

nothing in the polygraph about that. How does that

assist us? It's oath-helping on an issue that is

important that the jury be able to assess his

credibility, yes. The polygraph may or may not

assist them in that regard and they can't use it

for that purpose, in any event. Offering to take a

polygraph generally speaking is not admissible, it

again is oath-helping. In this case there's nothing extraordinary, in my submission, that's happened in


7522

cross that so challenged or tor-

mented this witness that he needs to be able to say I offered to take a polygraph. He isn't making full answer and defence like the accused person in the one case.

In my respectful submission it is prejudicial because it is a central issue for the defence and if this kind of oath-helping evidence goes in then the danger is, and prejudice is always where the danger lies, the danger is that the jury will over-look other problems with his evidence because he offered to take a polygraph, and of course we have Heather Lamarche's evidence prior to this that they would not put a witness on the stand if they knew he was lying. So you tie it all together and what we have is not only did I offer to take one but of course we already know that the Crown and the pros-ecution team wouldn't put one on the stand if they knew he was lying, so he must've as well passed it, and if he passed it well we can assume he passed all these crucial issues that the defence are harping about, the 16th and the 17th. It isn't that he passed it, in fact it's not entirely clear that he passed the entire thing. So, it's a dangerous road to go down in that the jury can draw wrong inferences that will speculate, they may use it for an improper purpose, it is a central issue for the defence as to the time of death and, in my submission, there is nothing, nothing that I have done in cross-examination of this witness that opens that special door and allows that kind of


7522

pre-(In the absence of the jury)

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judicial evidence in and it may be not the same kind of prejudicial but it's certainly far more prejudicial than it is probative on either of these two issues, on either of them. And whether or not Mr. McFadden offered to take a polygraph, it's also interesting because - I don't have that - what happened as far as I can recall from Fortier's evidence is that he was being investigated as a suspect and they'd gone and looked through his bank accounts because all of a sudden they have the first person they know of to be on the scene at that time, and it was a very short investigation but they'd gone to his bank accounts, they'd gone to his schools, they were checking out his back-ground and he had a polygraph exam, whether that was offered or asked for or suggested or whatever I don't know, but in any event it's the kind of evidence that just isn't necessary.THE COURT: Dare I suggest that, even though the question wasn't asked, they probably thought somebody has got to convince us about Tuesday, we're still convinced it's Wednesday.

MS. MULLIGAN: I'm sorry?THE COURT: I'm just saying that the opinions of bureaucracies, whether police departments or lawyers associations, the wisdom of the association remains the wisdom for a long time until it's upset, it's just human nature, and he was the only one out there yelling for Tuesday.MS. MULLIGAN: And Heather Lamarche has testified ---


7522

THE COURT: And plus he was the last one to find the body and it was within 15, 20 minutes according to what he was saying, so they had to eliminate him somehow ---

MS. MULLIGAN: Yes, absolutely, and I'm not suggesting that ---

THE COURT: --- on the fundamental issue.MS. MULLIGAN: I'm not suggesting there was anything wrong in that, --- THE COURT: No.MS. MULLIGAN: --- but I know some polygraph examiners who say you shouldn't use them to elimin-ate people but I'm not suggesting there's anything wrong in them at least doing this one step, but, you know, Heather Lamarche has testified we were satisfied once we had McFadden we had the right date. I mean it's all there. I don't .....THE COURT: All right. I understand your point. Thank you.

I wonder if we should have the break now and

I'll hear the reply after. We'll have to hear

from Mr. McKechnie.

--- Whereupon court recessed at 3:20 p.m.

* * * * * * * *

--- Upon resuming at 3:40 p.m.

--- Accused present

--- In the absence of the jury


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THE COURT: I'd best hear the submissions first, I think, and see how long they take and then I may make a proposition.MS. BAIR: Do you have any submissions?MR. McKECHNIE: Yeah, I'll just be very brief because, really, I haven't as yet in this trial raised the issue of the time of death or raised the time of death as an issue in this trial, so I'm not really involved in this argument, so any comments I make are really just on principle that I am alarmed at the thought of introducing polygraph evidence as somehow a guarantor of truth of a witness because that really is to take the truth determi-nation func- tion away from the jury and put it in the hands of a machine, it also opens up a can of worms getting into having to call evidence as to whether or not there is any scientific basis for the use of polygraphs. That is what I sense the Crown is seeking to do in this case is to use it as -- it doesn't have anything to do with Mr. McFadden's state of mind, because there's no action or behaviour related to the polygraph that they seek to introduce, it's the actual determination of the polygraph that they're seeking to introduce to somehow to bolster his credibility in response to an attack on his credibility, and I think that the caselaw that Mr. Dandyk cited does not ever suggest that polygraph would ever be admissible for the ultimate question but only in relation to some state of mind of a witness, and I think


7522

that distinction perhaps has not been clearly set out here. I haven't clearly heard from the Crown what exactly they seek to prove by that. Although it doesn't apply to my client, I just have those concerns.

THE COURT: All right. Thank you very much.MS. BAIR: Your Honour, the credibility of Mr. McFadden is quite clearly a central issue, but the question with respect to the car stereo stands on a slightly separate footing. He was obviously asked about turning that car stereo in only because somehow the defence felt that that would impact negatively on his credibility. It could be that they believe that the suggestion that he's -- I, quite frankly, am not sure except that they think that it leaves some sort of negative inference, here's Michael McFadden all of a sudden bringing in stolen stereo equipment, so when he's telling us that these are the offences he's committed, well here's another one he didn't volunteer earlier, he's a liar. Something along those lines.

Ms. Mulligan says in response to the car stereo questions he says he doesn't remember. The fact of the matter is that on the 30th of January he does the polygraph, he mentions the car stereo, it's the very next day he turns in the car stereo so no one has to do a great deal of divining to discern the connection, it's an obvious connection between the two of them. He mentions it, he turns it in, it's clear that he felt there was some impact on his state of


7522

mind, that the polygraph could tell whether he's lying is what I'm saying.

Be that as it may, in order to bring the circum-stances of this car stereo to the mind of this witness it is necessary to put to him that it was in the context of his polygraph examination, that is relevant, that's why he turned it in the next day, and Ms. Mulligan's question was "Why did you turn it in the next day?" He is entitled, in my respectful submission, to refresh his memory from the entire circumstances, 'I was undergoing a test, I thought they could tell if I was lying, I therefore told the truth about something I hadn't told about for two years and the next day I turned it in.' Polygraph is the answer to why that was turned in. Of course Mr. McFadden has been told in preparation that he cannot mention polygraph and in preparation we did not dwell on the polygraph, we did not read it over, I didn't want him to inadver-tently slip into this. Ms. Mulligan advertently walked into it. That's the car stereo.

The next point, Your Honour, is that the suggestion

was indeed made clearly that he was the perpetrator

of these murders. Ms. Mulligan said that her "more

to hide" was actually a reference to the

possibility that he pilfered the drugs and the

money on the 17th. In my submission that explana-

tion holds no water because if he's pilfered on the

17th that is no explana-


7522

tion for why he didn't report it on the 16th, and the suggestion is "you didn't report it on the 16th because you had something to hide", the 17th takes us nowhere along the lines of explaining why he didn't report it on the 16th. Ms. Mulligan says "you have more to hide, you have a great deal more to hide" and my submission to the Court is that it was obvious that her suggestion was that it was something much more sinister than going back to get drugs and money on the 17th. She says early this morning that he went to the Carlsbad Springs and started sending out a cover story to explain his fingerprints at the scene and then at the end of today she says to him as her last omnibus question "no matter how many times I ask you whether you have something more to hide you're still going to say no", well that's clever I suppose, but, you know, if she had asked him 50 times by the 50th he could say 'Look, I took a polygraph. I have nothing more to hide.' That's the obvious answer. A guy who has all this to hide, the suggestion that he did it is obviously out there, if he has that to hide he does not voluntarily take the polygraph, he refuses.

In my respectful submission, he is entitled or we ought to be permitted to lead that he took the polygraph, not the results of it, and I think that prejudice can be dealt with very easily by telling the jury that the results are not for them to even think about, that they're


7522

not admissible, that it's only relevant to his state of mind in as far as his willingness to take the test reflects on whether he has something more to hide or not because, after all, it is its impact on his mind that matters, all of his statements he thought they could tell, obviously he thought they could tell whether he was lying, it isn't just the test questions, it's the whole thing, that's why he turned in the stereo. It had an impact on his state of mind and that's all I have to say.MR. DANDYK: Well actually I was just going to quote Evans:

... fairness and ordinary common sense require that the jury receive a balanced picture of the whole of the witness's conduct throughout the police investigation.

That's effective what's being asked.MS. MULLIGAN: If I could, Your Honour, just to clarify a couple of points.

First of all, the evidence that he offered to take it as opposed to asked, I'm not sure that that is clear.

MS. BAIR: I didn't say offered. Voluntarily.MS. MULLIGAN: Voluntarily, so he didn't have to be tied down, I guess, I don't know, but he didn't offer. "Advertently walked into the car stereo", it may be obvious to Ms. Bair that this is the same car stereo but all of the disclosure and all of the evidence I have does not make that obvious that this is the same car stereo that he's talking about on the day of


7522

the polygraph as he hands in the next day. There is a note that he says he stole a car stereo and that it's in his bedroom on the 30th. He turns over a car stereo on the 31st. When Fortier is asked about it he doesn't know what that car stereo relates to. When McFadden is asked about it it had such an effect on his state of mind he doesn't have any memory of even doing it. He's never asked about it before, that I can see, so it's one of those questions I suppose where you don't know the answer, there's no sinister suggestion, it's how is this connected, why are you giving it to Fortier? Obviously if I thought the answer was because 'I'd taken a polygraph and felt I had to turn it over' that might not have been a question I'd ask, but in this case, you know, ---THE COURT: But the make of the stereo is mentioned in the statement taken in the polygraph?MS. MULLIGAN: No, it's mentioned on a little piece of paper, it's not in his statement, it's that little piece of paper that says "shame" and "offences" and ---THE COURT: No, no, no, no, no. But that's a polygraph-related document.

MR. McKECHNIE: Yes. THE COURT: And then the next day his notes

reveal or something or other, his notes that he got a stereo delivered to him?

MS. MULLIGAN: Fortier's notes, not this officer that did the polygraph, Fortier's notes indi-


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cate that McFadden, and it's one line in his notes ---MS. BAIR: "1709, 31st of January, 1990, McFadden arrived and handed me a car stereo" in the notes of Fortier. MS. MULLIGAN: And then when I asked Fortier about it under oath he has no idea what that was about, but I should be able to tell even though Fortier was part of the investigation at the time and doesn't remember and neither does McFadden.THE COURT: He wasn't part of the polygraph team, was he?MS. BAIR: No.MS. MULLIGAN: He came into the room -- he brought him there, he came into the room before the polygraph and went into the room after and received the opinion of the polygrapher, he was also the first person to interview him, and he still didn't know what the car stereo was about when he testified. He wasn't there present during the polygraph, as far as I know.THE COURT: Don't be so fast with the polygraph facts, counsel. MS. MULLIGAN: Sorry?THE COURT: It's not a solid position. Don't be too fast with the polygraph facts. You know, you're the one who didn't understand it and referred to the one mentioned in the polygraph.MS. MULLIGAN: No, I'd still make that connection that there was -- I'm fast with the facts and yet I know that Fortier drove him there


7522

because while the polygraph was going on Fortier goes out and investigates his bank accounts and that sort of thing and then he's brought back into the room after but I don't think he was in the room during it at all. He may not even have known why he was getting the stereo I guess in that circumstance. In any event, as I said before it's not a central issue about which the Crown needs to lead polygraph evidence given the state of the witness' memory.

With respect to the suggestion that this man com-mitted these murders, surely if I was going to make that suggestion I'd at least have to put it to him. Your Honour will not be telling the jury at the end of the day that this man is a suspect in the murders and could possibly have done it. I didn't put to him that he did it. I said in fact in relation to shock, and I'm not suggesting on this occasion, but have you ever in the past or any other time fired a shotgun in relation to the smells. To suggest that I was putting to him somehow that he actually committed these murders without ever even having broached that subject with him, in my submission, is ludicrous. It's just another way of the Crown trying to get this test in. I did put to him that he maybe went and helped himself to some drugs and some cocaine and my friend says well the suggestion is that he didn't report it on the 16th but that he went back and pilfered on the 17th. No. The sugges-


7522

tion is that there weren't two dates, that he could've only been there on the 17th since that's the time of death and that that was the time that he helped himself to things.

"Something more to hide" was said in connection and

in conjunction with all of those questions about

taking the drugs and taking the money and someone

seeing him with drugs. And the polygraph of

course doesn't ask him if he stole anything out of

the house either.

Explaining the fingerprints at the scene Ms. Bair added as a fact. He had said that those finger-prints were a concern to him because his parents might find out that he had been there or that the police might find his fingerprints there and all of those various things, so he's telling people that he was there, I assume, he was there and this is what he saw and he left. It's not that he was there and stole anything, he's telling people he was there and this is what he saw because he knows his fingerprints may be found at the scene, but to suggest that I put to this witness in any way, shape or form that he went in and murdered these two people doesn't arise out of the cross-examination.

So in my submission the fact that he didn't in fact offer to take it, but did take it, the fact that it's not obvious about the stereo nor is it central or crucial to anything, and the fact that there will be no suggestion that he shot these people,


7522

and wasn't, and again the(In the absence of the jury)

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fact that he took one just has no bearing on any issue in this case and it is just meant to bolster his credibility, the impermissible use.MS. BAIR: Your Honour, I have the transcript of Fortier on this point from the motion ---

THE COURT: Oh, thank you. MS. BAIR: --- which adds very little, and I also

have the form that Mr. McFadden signed in advance of taking the polygraph.

MS. MULLIGAN: I'm sorry, I don't know what you have.THE COURT: This is Fortier and the abuse evidence and the form of -- well, the polygraph examination consent. MS. MULLIGAN: Oh, okay.THE COURT: It's just a standard form I guess. All right.

I wonder if (a) you have other matters to deal with sufficient to go to the break; if not, I'd like to think about this overnight and maybe we could deal with another witness in the interim, a short one, is it possible, and come back with Mr. McFadden tomorrow?

MS. BAIR: I'll deal with Mr. McFadden in every way but that, and then we'll move to the next witness.

THE COURT: All right. Thank you.

Bring in the jury, please.


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--- Upon resuming in the presence of the jury at 3:55 p.m.

MIKE McFADDEN, resumes on the stand THE COURT: Yes, Ms. Bair.

MS. BAIR: Thank you, Your Honour.

RE-EXAMINATION (continued) BY MS. BAIR: Q. Mr. McFadden, you were asked a number of questions by Ms. Mulligan about when you stopped and when you started using over the 12 years of your addiction to cocaine, and you said that you thought you had quit in and around Sep- tember of 1991 when you testified.

You said in chief, sir, that you didn't generally use drugs in the summer, that you would start again in the fall at around the time that the farm was sold. A. Yes. Q. When was the farm sold, do you remember the month? A. I think it was October or September. I think it was October actually. Q. So would you generally be using in September? A. Probably not usually but, like I said, it depends. Usually the winter months was my main time for using. Q. And you said that the winter ran 'til March I think you said. A. Yes. Q. So the other time you testified and said you weren't using was May. A. Yes. Q. All right.


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There were some questions about telling your brother and who you told and whether they were upset with you, and Ms. Mulligan asked you whether your brother ever suggested that you ought to have called an ambulance. A. Yes. Q. Do you remember your brother Terry's emotional reaction, whether he had an emotional reaction, anything about his reaction? A. I can't. To say if there was any reaction, there probably was but to remember exactly what it was ..... Q. Generally are the McFaddens an emotional family? A. No. Q. An emotional bunch? A. No. Q. Are you an expressive group? A. Not really, no. Q. Would you expect an emotional outburst from your brother? A. I didn't know what to expect but no, I don't think so. Q. You were asked whether it was possible when you saw Mr. Giroux -- whether in your mind when you saw Mr. Giroux it was possible that he had fallen and cracked his head and you said he could have but in the time something had to have happened. What did you think had happened? Did you think he had fallen and cracked his head? A. No, at the time it seemed to be a lot worse than, you know, it looked like he had been shot for some reason due to the fact of the timing, the phone call and this and that.


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Q. You also said "you never know in a situation like that being in drugs and all that, you never know." What did you mean "by being in drugs and all that"? A. You know he could've, you know, like he could've had enemies or he could've had people after him or something like that. With drugs you're always taking a risk whether it's the police or in somebody else's territory or whatever. Q. Okay.

A. That's the type of situation I guess.Q. You said that you know -- you were asked "Do

you know Lorne Troutman?" and your answer was "I do now." A. Yeah, I mean by his last name. I knew a Lorne but I didn't know his last name was Troutman at the time. Q. Okay. And you've been asked about this a couple of times and you've learned the last name Troutman from cross-examination by lawyers, right? A. Yes. Q. Okay. This Lorne who worked at the auto parts place, you were asked whether you saw him on the Friday night at the Carlsbad. A. Yes. Q. You were also asked whether you had cocaine in a magazine type paper and whether you were doing a line of cocaine in the washroom. A. Yes. Q. You said you weren't doing those things and you didn't have cocaine. A. No. Q. What can you tell us about Lorne when you saw him in the washroom on that Friday?


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A. Well, he was the one with the drugs, with the cocaine -- with the little packages. Q. Lorne had drugs. A. Yes. Q. Okay. In the washroom that Friday. A. Yes. Q. Not you. A. No. Q. Okay.

You were asked about the cars being at the bottom of the hill by the garage, whether they were still there at the bottom of the hill on Wednesday and you said you thought they were. Ms. Mulligan referred you to your transcript of Sep- tember of 1991. I'd like to refer you to your transcript of May 10th, 1995 at page 69. Maybe 68 would be a better place. A. I think I have it mixed up here. Q. Okay, I'll bring it up.

A. Sorry about that.Q. I'll share. Page 68 about halfway down the

page you're being asked: "Q. Do you remember anything else you did on

Wednesday night?" Okay?

A. Yes.Q. So that's what we're talking about is

Wednesday night. "A. I was heading towards home and then I decided

to stop, go back to Mike's place to see -- to find out what was going on.

Q. What was going on in your mind at that point when you decided to go back to Mike's place, what were you thinking you were going to


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find?


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A. I thought maybe I'd see Manon or somebody but when I drove up the driveway the lights were still on and the door was left the same way whenever I left and nothing, the windows were steamed up a little bit.

Q. Did you go right up to the house, sir?

A. No, I stayed in my vehicle.

Q. Can you describe that, then? You came up the driveway, and we've already looked at the photograph of the driveway?

A. Just turned around and I looked towards the -- I looked to my right through the window and I looked, I seen the same -- everything looked the same, the vehicles hadn't been moved."

That was your evidence, ---A. Yes.Q. --- was it, sir?

A. Yes. Q. And that was talking about the Wednesday. A. Wednesday, yeah. Yes. Q. You said that it was common knowledge and easy for you to see that Michel Giroux was selling drugs in the Carlsbad Springs Hotel and that as far as you know he was the only one. My question is whether during the time that you were being supplied by Mr. Giroux were you looking for anyone else? A. No. Q. There is one other area that I have to wait for a ruling on, sir, so you're finished for today. A. For today. MS. BAIR: I had to tell him that in here.

THE COURT: Yes. All right. That's fine. Come back


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tomorrow, sir.


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MS. BAIR: And at this point, Your Honour, the Crown's next witness is Margaret Tremblay and ---

THE COURT: All right. MS. BAIR: --- she's ready to go as far as I

know.


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MARGARET TREMBLAY, sworn

EXAMINATION-IN-CHIEF BY MR. DANDYK: Q. Now then, Mrs. Tremblay, as I understand it along with other things in your life you are an executive member of the Navan Bowling League? A. Yes, that's correct. Q. And I understand that's a fun league? A. Yes, it is. Q. Okay. And when did you start bowling? A. I started bowling in the late '60s. Q. Okay. And as I understand it since the Orleans Bowling Centre opened in 1987 your league has been bowling at the Orleans Bowling Centre; is that correct? A. Yes, we have. Q. Okay. And I understand as well you've been on the Executive since I believe 1993? A. This is my sixth year. Q. Okay. And as I understand it you're both statistician and tournament coordinator; is that right? A. That's correct. Q. That's your title? Okay. And what does a statistician do? A. A statistician maintains records on attendance, on awards and on averages. Q. Okay. And I'm going to refer to a record in a former proceeding, this was Exhibit 98, and I want you to take a look at it, it's titled Navan Bowling League April 10, 1990. Take a look at it. Do you recognize that document? A. Yes, I do. Q. Okay. As I understand it that is the year end statistics for your league running from September of 1989

TREMBLAY, in-chf(Dandyk)

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to April of 1990; ---A. That's correct.Q. --- is that right? Okay. And if we look at

that -- well, actually first of all, at that time what night of the week did you bowl? A. Our league has always bowled on Tuesday nights. Q. Throughout the entire period, including that time. A. Yes. Q. Okay. Now, in relation to keeping the statistics, as I understand it the Orleans Bowling Centre has a computerized record system. A. That's correct. Q. Okay. And it does statistics? A. That's right. Q. Okay. And I understand as well you, or at least the team captains of the teams also keep statistics and you have pink slips that are produced that keep those statistics. A. Yes, the team captain of each team writes in the scores ---

Q. Yes?A. --- and the original is handed into the

centre and a copy is kept by the statistician. Q. Okay. Now, do you do anything to reconcile or to look at the comparison between the computer printouts from the centre and those pink slips? A. Yes I do. The following week when I get their report I check it over to make sure there's no mistakes. Q. Okay.


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A. And I also check from the slips, the pink slips. Q. Okay. And if you would find an error on the computerized records what happens? A. I would advise the bowling centre. Q. Okay. And then changes are made to correspond with the pink slips. A. That's right. Q. Okay. And as I understand it, then, with the corrections you then in fact compile the document that's in front of you. A. That's correct. Q. Okay.

Now in relation to that, I think you said there are scores there, or people's averages, and additionally it has attendance; is that correct? A. Yes, this report shows the number of games played --- Q. Yes? A. --- and it says that season covers 30 weeks and three games per week for a total of 90 game. Q. Okay. Now as I understand it Basil McFadden ---

A. Yes. Q. --- well actually maybe the first thing I should do is, I notice at least you're at the top of this list in relation to the women with the highest score? A. Yes. Q. That's right? And I understand in fact it's improved since then. A. That's right.


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Q. Okay. Well, that's good. Now, I understand as well, looking at the list on

the left-hand side we have a series of names, we've said yours is at the top, and I gather in relation to the women we have a Doreen McFadden? A. That's correct. Q. Okay. I understand that's Michael McFad- den's mother. A. That's correct. Q. Okay. And then in relation to the men I understand we have a Basil McFadden. A. Yes, we do. Q. Okay. And I understand in fact that's Michael's father. A. That's correct. Q. Okay. Do you by any chance know Michael McFadden or his wife in relation to the bowling league? A. Yes, I do. Q. And were they ever a member of the bowling league? A. Yes, they were, I just don't remember what year they joined. Mike bowled with us a few years ago, then he left and he came back. Q. Okay. I understand it was after this time period but he and his wife had been members of the league as well? A. That's right. Q. Okay. Now in relation to his father Basil, if you can take a look in relation to attendance what the indication is. A. He has 90 games. That's perfect attendance.


7535

Q. All right. And since in fact you have always played on Tuesdays, and since the 16th of January, 1990 is a Tuesday and during that time period, what does that tell us? A. Well it tells us that Basil was in attendance that evening because he had a perfect attendance. Q. Okay. And just as well in relation to Doreen I notice it says 84. A. Doreen missed two nights. Q. Okay. And at least from this information are you able to tell us what nights or just that it was two nights during that season? A. I can't confirm which nights but she did miss two nights. Q. Okay. And then her husband attended the entire time. A. That's correct. Q. Okay. And I notice as well by the way we have a Jean Tremblay, I gather that's your husband. A. No, that's my son. Q. That's your son? A. My husband hates bowling. My husband hates hockey, he doesn't like any sports. Q. Okay.

MR. DANDYK: I wonder if that could be the next exhibit, 181 I believe. THE REGISTRAR: Yes, Exhibit 181, Your Honour. THE COURT: Exhibit 181.

EXHIBIT NO. 181: Attendance report from bowling league

MR. DANDYK:


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Q. In relation to the games, could you indicate when they were played on Tuesday nights? A. Our contract states that we're supposed to commence bowling at 8:45 --- Q. Yes? A. --- and we bowl three games. Q. Okay. A. More often than not we didn't get on the lanes 'til 9:00 o'clock because there's a league before us. Q. All right. And when you say your contract that's with the Orleans Bowling Centre. A. That's correct. Q. Okay. And the contract as of 8:45 normally don't get on until 9:00 o'clock. With three games, how long on average would that take? A. I would say on an average the games are 45 to 50 minutes. We never really get out of there 'til about quarter after 11:00 and I of course don't get out until 11:30 because I have to wait for all the sheets. Q. You have to wait for? A. I have to wait until all the teams are finished bowling ---

Q. Okay.A. --- so I get all my sheets.Q. Right. Okay.

THE COURT: The pink slips. THE WITNESS: The pink slips. THE COURT: Yeah. Pay attention, counsel. MR. DANDYK: Yes.

THE COURT: You'll be getting another kind of a pink slip. I'm sorry, Mr. Dandyk, it's the time


7535

of day. MR. DANDYK: Is that a promise?

THE COURT: It's the time of day.MR. DANDYK:

Q. In relation to perfect attendance, was there any kind of award connected with that if someone attended? A. We used to give a small award. Our league, we don't spend a lot of money because we don't charge that much --- Q. Right. A. --- we give small a token which could be lottery tickets but not anything to take home and keep and bring back. Q. Do you recall if in fact Basil would've gotten even a small award back at that time? A. He probably did. Q. Okay.

MR. DANDYK: Thank you. MR. McKECHNIE: I have no questions. THE COURT: Thank you. MR. CRYSTAL: No questions, Your Honour. THE COURT: Thank you very much. Q. And in the league there's men and women and they both compete against each other? A. That's right. Q. And you're on the top, of course? A. I'm one of the top bowlers. Q. Oh good because that makes it easier because you're a woman, as Charlotte Whitton used to say, you


7535

know, competing with men it's easy when you're a woman, you see, because you're always going to end up on top. A. Well, I don't know about that.

THE COURT: Well thank you very much for your evi-dence ---

THE WITNESS: Thank you. THE COURT: --- and have a nice day.

THE WITNESS: Thank you.THE COURT: Thank you.

I don't think we have another witness and we

won't be able to get the witness finished.MR. DANDYK: Your Honour, though, I can indicate, as I understand it - it's okay, you're finished, thank you - we had another witness waiting but I have spoken to counsel and I understand that her evi-dence is admitted so I can put that on the record at this time.

THE COURT: All right.MR. DANDYK: It will add another minute or so. THE COURT: All right.MR. DANDYK: It is a Joanne Métivier, she is with the region, the Regional Municipality at this time, and she was formerly with the Township of Cumberland and her testimony would be that garbage collection, specifically at 1222 Queen Street in Cumberland, in January of 1990 was on Thursdays, and she would additionally indicate that normally the garbage pick-up would be at the street level, so that being down at Queen Street.THE COURT: Picked up on Queen Street, and I assume that's at the relevant time in December,

TREMBLAY

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January, February of 1990?

MR. DANDYK: Yes, the indication was January 1990.

The Court is correct.

THE COURT: Okay.

MR. DANDYK: As I understand it, the contract was

between 1988 and '93 and it was always on Thurs-

days.

THE COURT: Always on Thursdays. And picked up right

at the street. Okay. Thank you.

MR. DANDYK: Yes.

MS. BAIR: We're getting the really pithy stuff now. THE COURT: Yes.

MS. BAIR: There's another admission, Your Hon- our,

which saves a witness from having to come and wait

all day and that's evidence from Mr. Ron Clarke. We

would've called Mr. Ron Clarke who is the master

control technician at CJOH television, and by way

of agreement and admission I'm going to read in

what he would've told us.

THE COURT: Yes.

MS. BAIR: "On January the 16th, 1990 I was working

the evening shift in master control at CJOH

television. At 8:00 p.m. that evening, as per our

broadcast schedule, I took the CTV net- work feed

of the program Matlock and aired it on CJOH TV. A

photocopy of our program schedule for that week is

attached" and I would ask to file the program

schedule as an exhibit.


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THE COURT: All right. The next exhibit?

THE REGISTRAR: Exhibit 182, Your Honour.

EXHIBIT NO. 182: Program schedule from CJOH TV

for January 16th, 1990

MS. BAIR: So Matlock was on at 8:00 o'clock on the 16th of January.

Does that earn us 10 minutes, Your Honour?THE COURT: Yes, I guess you did reasonably well today. There will be no pink slips today, members of the jury, you may retire until tomor

row.

--- Whereupon the jury retired


7544

--- In the absence of the juryTHE COURT: Yes?MS. MULLIGAN: Your Honour, I was thinking about the argument earlier, and I'll be two minutes just to add one thought that I had that came to me since Your Honour is going to be thinking about it overnight. With respect to how this could be drawn to Mr. McFadden's attention as to why he was giving the stereo, and when I was thinking about it I could see no reason why Ms. Bair couldn't put to him that he had been interviewed in relation to this case on January 30th, that he had been asked if he had committed any offences other than what was on his record, that he admitted and owned up to the fact that he had in fact stolen a car stereo and that it was sitting in his bedroom and that he subsequently on his own brought it in the next day to turn it in to the police. Surely that adds more to his credibility than a situation where he thinks if he doesn't say it he's going to be caught out if it's left in a situation where he says it voluntarily, he tells the police about it and voluntarily goes in and turns in the stereo the next day. It seems to me that that can be handled that way and that was the only suggestion I had that came to me after.MS. BAIR: Your Honour, I have more comments and not


7544

about polygraph but about scheduling for tomorrow, if I may.

THE COURT: Yes.


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MS. BAIR: We have for tomorrow Dianne Jones who is the Drytex cheque person who testified in the last trial, I don't expect she'll be very long. I expect to have Mr. Daniel Charbonneau tomorrow as well, he won't fill the morning. We have Mrs. Minogue. Mrs. Minogue testified the last time but Mrs. Minogue has a doctor's letter, she can't be here, so it's another 715 application, and that's what we have for tomorrow. We were expecting to call Lois Davidson, I thought actually Mr. McFadden would take longer, but we were expecting to have Lois Davidson on Thursday. Mr. Morris asked me not to do since he was dealing with her and he couldn't be here and I was going to do it anyway because that's where we are, only Lois is ill, she's the one we were expecting and prepared for, we spoke to her and she can barely speak, she can't get off the couch.

My request, then, is could we have the rest of the day tomorrow afternoon to fill in with someone else and that would be Rodney Blake- Knox that I would be preparing to go on Friday given Ms. Davidson's unexpected unavailability.THE COURT: So we'd get as much as we could tomorrow from these other witnesses and then perhaps adjourn in the afternoon, you would prepare Blake-Knox and go with Blake-Knox ---MS. BAIR: On Friday.THE COURT: --- on Friday?


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MS. BAIR: Yes. And, of course, in the event that we have Mr. McFadden for anything it would be him as well.

THE COURT: Yes, of course.MS. BAIR: But I told him to not come until we got the ruling tomorrow. He said it would take him half an hour. I'm sure we have half an hour's work to do, it's just that I've had him away from his work Friday, Monday, Tuesday, Wednesday and I told him to stay at work until he got the call tomorrow.THE COURT: Well, all right. He'll probably have the time to do it, then.

MS. BAIR: Yes. THE COURT: That's fine. All right.

MS. MULLIGAN: Your Honour, in that regard we have a bit of a problem in that I had, of course, been preparing for Mr. McFadden and the next two major witnesses that I was preparing for, and they are major witnesses, are Lois Davidson and Jamie Declare. On our list that we were given there's 17 witnesses and Dan Char- bonneau doesn't figure into it, so I haven't even looked at Charbonneau.

MS. BAIR: It's on mine.MS. MULLIGAN: It's not on mine. In any event, they'll find it and correct me if I'm wrong but I've been preparing for the two major witnesses to come and expected them to come in that order.MR. DANDYK: Well I recall it being -- I believe it was in a letter as well, but, with respect,


7544

we're in a situation of preparing also witnesses for an entire period and having to scramble and, with respect, I've handled all sorts of witnesses I wasn't anticipating doing.MS. MULLIGAN: I appreciate that but Mr. Dandyk isn't also doing a number of other major witnesses at the same time. In the letter that I had I don't recall seeing Dan Charbonneau on it that Ms. Bair gave me, if I'm wrong I'll be corrected, but in any event the major witnesses are Davidson and Declare. Mr. Crystal won't be with me tomorrow, he can't be here tomorrow and is not in a position to sort of jump into that and take over Dan Charbonneau. Blake-Knox is also Mr. Crystal's witness and that's fine for Friday, I mean if Mr. Crystal can't be here because I didn't expect we'd get to him by Friday, then I'll certainly be able to do it by then but I'm not sure about Charbonneau if I'm going to be in a position to start preparing that.

Dianne Jones is another 10-minute witness. There's Dianne Jones who was also Mr. Crystal's witness but I can do that one, that's fine, she's 10 minutes and there's nothing very spectacular about it and I have no problem being prepared to go with Blake-Knox on Friday. My only difficulty may be Charbonneau tomorrow.

MS. BAIR: I remember the last time I asked for

time, right? It's all coming back to me now. Anyway

---


7544

MS. MULLIGAN: I gave it to you once.MS. BAIR: And vice versa.

I guess it makes no difference to me, it's the defence who have the greater interest in proceeding expeditiously I suppose, at least theoretically on some levels. We can have Mr. Charbonneau at a later date, it just means we'll have more time out of court tomorrow. This is the problem with giving a -- I'm pretty sure Charbonneau is there, so I don't want to get way up on my horse 'til I see the letter.MR. McKECHNIE: I have a copy of the letter. It's not in the letter.MS. BAIR: Actually it's on my list. It didn't make it to the letter. MS. MULLIGAN: I didn't think so.MS. BAIR: It's on the original list. I didn't recopy it for typing I guess. It's on my list beside my desk.MS. MULLIGAN: I do have an interest, as Ms. Bair says, in proceeding expeditiously but also competently. That's the other problem.THE COURT: Well if we can't get Charbonneau in tomorrow I guess we'll have to call him at a later time in light of the fact that there appears to have been no notice through inadvertence.MS. BAIR: So we'll deal with Dianne Jones, Minogue and that's it for tomorrow, and McFad- den and that's it for tomorrow.

THE COURT: Yes.


7544

MS. MULLIGAN: Can I just ask, on Mrs. Minogue will there be a doctor attending? I don't understandMS. BAIR: No. MS. MULLIGAN: Maybe that's something I can

discuss with my friend.THE COURT: All right.

I would just like to get a general view of counsel.

I have the feeling that we're proceeding relative-

ly expeditiously, relatively, and that's all to the

good, you know, I don't want to rush anybody, I'll

certainly rush if we're not proceeding

expeditiously but we seem to be, so that's good.

We're not at the end but we may be at the beginning

of the end as Churchill once said, this is not the

end, this is not even the beginning of the end but

it may be the end of the beginning.

MS. BAIR: I think we might be at the beginning of the end, that's certainly the feeling we've been getting today.

THE COURT: All right. Thank you.--- Whereupon, at 4:25 o'clock p.m. court was adjourned to reconvene at 10:00 o'clock a.m., Thursday, February 4th, 1999

* * * * * * * *

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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