1kangaroojustice.org/wp-content/uploads/2010/09/2000-Lawyers-no… · Web view[record doesn’t show Stewart was there, but he was, and this was established with subsequent questions

R. v. ROBERT STEWART – Trial Process Overview

Volume Event/Witness Pages Objection Ruling

1

16/12/96

Recusal motion before Mr. Justice Lesage - submissions by Ms. Mulligan

1 – 61 Pages 89 - 93 – Lesage CJOCGD finds that he has no jurisdiction to entertain the motion and it should be heard by the trial judge. Motion dismissed. It may be brought before the assigned trial judge, Justice McWilliam.

Motion supported by Mr. McKechnie 62

Submissions by Mr. Dandyk 62 – 84

Reply by Ms. Mulligan 84 - 88

Arraignment of the Accuseds 94 – 95

Recusal motion before Mr. Justice McWilliam – submissions by Ms. Mulligan

96 - 127

2

17/12/96

Submissions by Ms. Mulligan continued 128 – 162


3

18/12/96

19/12/96

Submissions by Mr. Dandyk continued 237 – 274

Submissions by Ms. Bair 274 – 341


Reply by Ms. Mulligan 354 – 413

Mr. Justice McWilliam notes that while defence counsel did not end up attending the gathering at his home following the first trial, one had originally accepted the invitation and then declined because of something to do with public relations.

413 – 416

Reply by Ms. Bair/Mr. Dandyk 416 - 421


Rebuttal by Ms. Mulligan 421 – 424

Mr. Justice McWilliam reserves his decision

424 Ruling missing.

Scheduling discussion 424 – 430

4

5/10/98

Arraignment of Mallory and Stewart, jury selection

2 – 9

Opening address by Bair 10 – 90

McWilliam addresses the jury 91 – 92

5

6/10/98

Motion for mistrial by Mr. McKechnie – improper opening address

93 – 97 Pages 114 – 117: McWilliam adjourns the motion pending receipt of the transcripts – trial can continue as a motion for mistrial is renewable and can be brought at any stage in the trial.

Motion supported by Ms. Mulligan 97 – 105


Submission by Mr. Dandyk 108 – 109

Submissions by Ms. Mulligan 109 – 110

Submissions by Mr. McKechnie 111 – 113

Discussion about seating 118 - 122

Opening address by Ms. Mulligan 122 - 143 p. 144 – Ms. Bair states that the opening address about Mr. Hayden was argument

Discussion about when Mr. McKechnie should open – and whether he may open later, or must open with Ms. Mulligan

144 – 145

Request by Ms. Bair for non-publication order in relation to the names of the police officers guilty of wrongdoing and protected witnesses (Winn, Gaudreault and Hayden)

145 p. 146 by Ms. Mulligan with respect to the police officers. No objection with respect to the protected

Pages 147 - 148 – Non-publication order granted in respect of the protected witnesses who have been named. Reserved on the police officers, but an interim ban will be in effect. [See Vol. 7 p.

R. v. Robert Stewart 2.


witnesses 385]

Further discussion about seating 148 – 152

Michael Andrew Winn

Examination-in-Chief by Cooper 153 – 195 195 – leading the witness (Mulligan)

195 – be more careful with the questions

Examination-in-Chief by Cooper cont. 195 – 197

Jury excused to clarify testimony regarding Debbie (Winn’s wife) cleaning up the house after Denis Roy shot himself

198 198 - 201 – relevance of who cleaned up (Mulligan). Establishes a bond between Mr. Stewart and Mr. Winn (Cooper)

Pages 201 – 204: questions allowed provided the witness sticks to the official version that it was suicide – not that Mr. Roy was killed.

Order excluding witnesses requested 202 – 203 Granted

Examination-in-Chief by Cooper cont. 205 – 230

Cross-examination by McKechnie 230 – 247

6

7/1 0/98

Cross-examination by McKechnie cont. 248 – 285 269 – 278 – reference to Mr. Winn’s detention records

Another record was used to indicate Mr. Winn’s arrest date. Jury addressed on the point that the evidence is in the witness’s answers, not in the questions.

287 – 298 – discussion about the police officer’s notes used to refresh Winn’s memory

Cross-examination by McKechnie cont. 298 - 331 305 – hearsay objection regarding Winn hearing about Tommy Craig’s interview

305 – Overruled – goes to his state of mind.

Jury excused to discuss Mr. Winn’s memory not being refreshed about whether or not Mr. Mallory was scared of guns

331 - 335 334 – can McKechnie ask Winn what he might’ve said re: Mallory is afraid of guns

335 – Question permitted.

Cross-examination by McKechnie cont. 336 – 345



Cross-examination by Mulligan 345 – 376

Jury and witness excused – discussion of video tape of Winn’s statement as a confidential informant, not as a witness

376 - 384 384 – required to contradict his evidence about whether he was on the range with Mr. Stewart, not to refresh his memory

384 – Crown doesn’t object. Video can be put to the witness to see what he says

7

8/10/98

Ruling on publication ban 385 Ruling missing.

Cross-examination by Ms. Mulligan cont. 385 – 388 389 – objection by Mr. Cooper about inaccurate detention records being used to refresh Winn’s memory

396 - 397 – Records may be presented to the witness in a voir dire, after informing him that they may not be accurate – then we will see if they may be presented to the jury.

Cross-examination by Ms. Mulligan (voir dire)

397 - 399 The records did not refresh his memory

Cross-examination by Ms. Mulligan 400 – 419 420 – Objection as to whether Mr. Cooper’s examination was oath helping when he referred to the number of times Winn has given evidence, with convictions being the outcome. Instructions to the Jury requested by Mulligan

423 – McWilliam will think about it. He may say that to the jury that it is up to them to decide on the credibility of the witness, and that other cases really don’t count in terms of saying that the witness must have told the truth. [See page 424 for McWilliam’s comments about how he can be pushed around and how everyone’s been pushing him around for years.]

Cross-examination by Ms. Mulligan cont. 425 – 460 460 - 463 - Discussion about transcription of taped interview with an OPP detective in November of 1992. Cooper hasn’t seen it.

463 – Statement put to the witness to refresh his memory. Copies provided to the Crown.

Crown stipulates that Mr. Winn received approximately $124,000 in maintenance

465



payments over 48 months.

Cross-examination by Ms. Mulligan cont. 466 – 475

Re-examination by Mr. Cooper 475 – 491 492 – Objection by Ms. Mulligan about the Crown reading and filing the one page hand written statement, the 10 page typed statement and the video taped statement

497 – 500: Crown counsel can re-examine on all questions of timing of the statement – how it was done, when it was done, when the clarifications were made.

Re-examination by Mr. Cooper 500 – 501

Discussion about diagram/floor plan of the house and markings on the diagram

501 - 509 Witness isn’t going to being able to testify to the markings. Defence objects to it being presented with the markings.

509: Diagram with the markings can go in as a lettered exhibit, and if proved by a subsequent witness then it will go in as a numbered exhibit.

Discussion about jury caution and timing regarding what they hear reported in the press vs. evidence in the courtroom

509 – 541 Report in the Ottawa Citizen

8

9/10/98

Discussion about an inaccurate article in the Ottawa Citizen and reminding the Jury to base their decision on hearing the evidence in the court room

544 – 546 Jury will be cautioned [See Vol. 8, pp. 549 – 551].

Slides and photographs removed from the evidence by agreement between Mulligan and Blair

547 – 548

Jury instructed – it is their role to determine the credibility of the evidence in this case based on what they hear in the courtroom

549 – 551

Earl Wayne Bowes

Examination-in-chief by Dandyk 552 – 561

Jury excused. Discussion about 561 – 565 565 - Let it percolate until the afternoon



newspaper article

Examination in Chief by Mr. Dandyk cont. 566 - 588 577 – Evidence would be better put in by the medical expert vs. the identification officer (per Mulligan)

577 – Crown can take this advice, but it’s not inappropriate.

589 – 593 Objection to one of the forms (Ex. 16) – it has the police theory noted on the top

593 – Form admitted but notation goes to the officer’s state of mind, not the truth of the note.

Examination in Chief by Mr. Dandyk cont. 594 - 617

Discussion about Manon Bourdeau’s murder – that she had to be chased to be killed and whether finding her print on a glass was consistent with what was found at the scene.

618 - 620 Speculative – it is the jury’s job to determine if there is a connection between the thumbprint and Winn’s evidence that Bourdeau had to be chased.

619 – 620: If the question was answered, there’s nothing to be done about it, and if it wasn’t there won’t be an answer. So we’ll forget about that little bit of the evidence.

Examination in Chief by Mr. Dandyk cont. 621 – 690

9

14/10/98

Examination in Chief by Mr. Dandyk cont. 691 – 699 699 – Ms. Mulligan asks about the significance of documents regarding phone number 613-824-9099

700 - The documents tie into the piece of paper that was seized in the car which had the phone number noted on it. They will be lettered exhibits.

Examination in Chief by Mr. Dandyk cont. 700 – 702

Cross-examination by Mr. McKechnie 702 – 726

Discussion about starting at 9 a.m. 727 - 728

Cross-examination by Ms. Mulligan 728 – 768 768 McWilliam objects to Ms. Mulligan’s question about why the door mat wasn’t collected as evidence

769 – Question rephrased and answered.



Cross-examination by Ms. Mulligan cont 769 – 808



10

15/10/98

Discussion about Ms. Mulligan approaching Officer Bowes about palm prints, about obtaining an undertaking regarding the results of the search of the back seat for blood and certain prints of Manon Bourdeau’s or Michel Giroux’s

837 - 840 840 – We will wait to see what the search for the blood in the back seat turns up before the results go to the jury. Questions about the prints can be asked now.


Re-examination by Mr. Dandyk 843 – 845 844 – how many points of comparison there would have been for the prints to be similar isn’t relevant – we want to know how many there were (Mulligan)

845 – it’s a comparative. How many points would there need to be in order for the witness to conclude there were similarities.

Re-examination by Mr. Dandyk cont 845 – 854 853 – concern raised about the witness’s ability to comment on residue left on gloves 7 months after the fact (Mulligan)

854 – witness asked, and he wouldn’t want to comment

Re-examination by Mr. Dandyk cont 855 – 860 857 – Objection about whether certain lights being on led to a conclusion about the time of death. Only whether there was a light on on the porch was raised by the defence.

858 - Sustained. Narrow the questions to what lights were on.

Discussion for the purposes of the record about Carlsbad Springs and rumour, cross examining on transcripts under the guise of

861 – 863



refreshing the witness’s memory requesting the CV or report from any expert the defense intends to have testify

Discussion about photographs 109 – 116 and Exhibit 49 – Laporte sign.

863 – 883 883 – Photographs are admissible because you can see the light post.

Randall David Payne

Examination-in-chief by Mr. Dandyk 884 – 966

Discussion about scheduling the application Mr. McKechnie brought with respect to the openings.

967 - 968

11

16/10/98

Brief discussion about Dr. Johnston’s notes 969

Brian Geoffrey Johnston

Examination-in-chief by Ms. Bair – qualification of Dr. Johnston as an expert

970 – 981

Examination-in-chief by Ms. Bair cont. 981 – 1015

Cross-examination by Mr. Morris 1015 – 1020 1018 – Misleading question about whether the refrigeration was as long as 48 hours or 72 hours (Bair)

1020 - Witness is going to be told about the 72 hours as was stated at the preliminary inquiry.

Cross-examination by Mr. Morris cont. 1021 – 1024 1021 – Objection about characterizing the refrigeration timing (Bair)

1024 – Delineate the timing step by step and straighten it out with the jury.

Cross-examination by Mr. Morris cont. 1025 – 1028

Cross-examination by Ms. Mulligan 1028 – 1046 1046 – Objection about not including the context of the transcript in the refrigeration questions – there are two contradictory

1052 – Both answers must be put to the witness as a total problem.



answers

Cross-examination by Ms. Mulligan cont. 1054 – 1061 1055 – Objection by Ms. Mulligan about Ms. Bair’s whispering about the evidence being inaccurate while within earshot of the jury.

1058 – For consultations within earshot, or possibly within earshot of the jury, the jury will be asked to leave.

12

19/10/98


Re-examination by Ms. Bair 1081 – 1090

Randall David Payne

Examination-in-chief by Mr. Dandyk 1091 – 1108 1108 – Objection that the questions had not been put to the witness (Crystal)

1109 – Counsel will go through it gradually, step by step.

Examination-in-chief by Mr. Dandyk cont. 1109 – 1111

Cross-examination by Mr. Morris 1111 – 1121 1121 – objection to a hypothetical situation being put before a witness who is not an expert (Dandyk)

Question asked a different way.

Cross-examination by Mr. Morris cont 1122 – 1145

Cross-examination by Mr. Crystal 1145 – 1149 1149 – objection by Dandyk – counsel is giving evidence

1149 – Counsel should put forth the version of events and ask if that expresses it more completely

Cross-examination by Mr. Crystal cont. 1149 – 1151 1151 – discussion by the court about Mr. Crystal’s hypothetical scenario vs. evidence (wet door mat)

1152 – objection by Mr. Dandyk about questions about the

1155 - Both counsel admit they either jumped the gun or were reacting rashly



wetness of the mat – if Crystal is going to ask questions, he needs to be accurate vs. leaving a false impression

Cross-examination by Mr. Crystal cont. 1156 – 1157 1158 – objection by Dandyk – witness is being asked for his opinion based on hypotheticals

1162 – Sustained.

Cross-examination by Mr. Crystal cont. 1163 – 1167 1166 - Objection by Dandyk about the nature of the examination

1167 – Crystal will refrain from the theatrics. McWilliam rules to carry on and wait and see how it ends up.

Cross-examination by Mr. Crystal cont. 1167 – 1172

Discussion about scheduling issues 1173 – 1177

Cross-examination by Mr. Crystal cont. 1178 – 1190 1185 – McWilliam objects to the line of questioning (12 hour time period and rigor mortis)

1190 - Crystal states the line of questioning goes to credibility – not to the science of determining rigor. McWilliam states that we will see tomorrow.

13

20/10/98

Discussion regarding the objection at 1185 – 1190 – time period and rigor mortis.

1191 - 1193 McWilliam puts to counsel his suggested address to the jury about Payne’s opinion evidence being of value not for its truth, but for the jury to use it to assess his evidence.

1194 – Jury addressed

Cross-examination by Mr. Crystal cont. 1196 – 1197 1197 – Dandyk objects to Crystal saying that Payne was aware of the Crown theory that the offences had taken place Jan. 16th

1197 – The jury remembers what the evidence was or wasn’t – witness may answer the question as to whether he thought about that specific aspect as opposed to the whole theory.



Cross-examination by Mr. Crystal cont. 1197 – 1207 1207 – Dandyk objects to counsel’s editorial comments

1207 – Counsel should just ask the questions – not editorialize

Cross-examination by Mr. Crystal cont. 1207 – 1221 1221 – Dandyk objects that counsel is being unfair to the witness in summarizing questions and answers

1222 – if there’s an unfairness, the jury can decide

Cross-examination by Mr. Crystal cont. 1222 – 1224 1224 – Objection by Dandyk about continuing to ask questions when the witness has stated he can’t answer

1224 – Questions asked a different way

Cross-examination by Mr. Crystal cont. 1224 – 1225 1225 – Crystal objects to Dandyk fidgeting in his chair – is he objecting?

1226 – Dandyk advises that when he stands up, he is objecting.

Cross-examination by Mr. Crystal cont. 1226 – 1233 1233 – Dandyk objects to questions regarding whether the room temperature could be a factor

Asked a different way.

Cross-examination by Mr. Crystal cont. 1233 – 1236 1236 – Dandyk objects to the witness being asked hypothetical questions

1236 – The witness can only be asked about his experience – not a hypothetical


Discussion about scheduling 1272 – 1276

Cross-examination by Mr. Crystal cont. 1277 – 1280 1280 – Objection about the witness answering a question about what “anybody” would see.

1281 – The witness can be asked about what he saw. [Question withdrawn.]




Discussion about the photograph showing the path of the bullet through Manon Bourdeau’s head – Exhibit 75.

1283 – 1288 Inflammatory, prejudicial.

1287 – For considerations of the splatter evidence it can go in. The jury will have to see the pictures - it is more probative than prejudicial on balance.

Stephen Stanley Silver

Examination-in-chief by Ms. Bair 1289 – 1331 1331 – 1335: objection about copies of Dr. Silver’s report being given to the jury when copies of Dr. Johnston’s report were not

1335 – Copies can be used as an aide-memoir, but then collected back from the jury again.

14

21/10/98

Examination-in-chief by Ms. Bair cont. 1337 – 1351 1351 – concern raised by Morris that the jury might be confused about gurgling respirations by Bourdeau and Giroux

1352 – 1353: Morris and/or Bair will clarify this with further questions.

Examination-in-chief by Ms. Bair cont. 1354 – 1356

Cross-examination by Mr. Morris 1356 – 1357 1357 – Objection about whether if the thermostat said 71 degrees, you could assume the house would be in the neighbourhood of 71 degrees

1357 – that is an opinion, and a matter that the jury can handle on its own.

Cross-examination by Mr. Morris cont. 1357 – 1365

Cross-examination by Ms. Mulligan 1365 – 1377 1377 – comments by Bair to clarify that the questions are to see whether his opinion has changed with respect to evidence of alcohol developed through putrefaction – not for

1378 – agreed



the truth of the evidence

Cross-examination by Ms. Mulligan cont. 1378 – 1381 1381: Bair objects to questions regarding Bourdeau’s position when she was shot because the photograph doesn’t show her head

1382 – Mulligan will use two photographs and put a hypothetical to the witness


Discussion about health of counsel. Mulligan has a tooth ache and Bair is ill.

1390

Cross-examination by Ms. Mulligan cont. 1391 – 1395 1395 – objection by Bair as to the procedure used to refresh the witness’s memory

Mulligan clears it up through questions.

Cross-examination by Ms. Mulligan cont. 1395 – 1398 1399 – Bair objects that Mulligan is cross-examining on evidence Blair didn’t elicit

1399 – Cross examination is a general right and questions can be asked on any area whether Bair elicited it or not.

Cross-examination by Ms. Mulligan cont. 1399 – 1410 1410 – Bair objects to Mulligan’s questions to contradict the witness regarding blood that was dry or drying

1412 – Mulligan concedes and leaves the question


Re-examination by Ms. Bair 1416 – 1421

Revelation by Cooper about Mr. Francis’ evidence regarding the thermostat – which appears to have been locked at 71 degrees, which is contrary to the evidence he gave in the previous trial – where he indicated the thermostat would be capable of a range of 10 degrees. As a result, he is

1422 - 1426 1423 – 1424: Morris wants to do research on whether the Crown is obliged to call him because hypotheticals were put to other witnesses

1425 – Let’s leave it all to a later point as to whether the Crown is compellable to call him or not and we’ll hammer it out then.



no longer useful to the Crown. Notes of this taken by Officer Ralko will be disclosed, but Francis will not be called as the next Crown witness.

Randall David Payne Continued

Cross-examination by Mr. Crystal cont. 1427 – 1430 1430 – Objection by Dandyk – there is no question only argument to the Jury

1430 – Agreed – is there a question?

Cross-examination by Mr. Crystal cont. 1430 – 1440 1440 – Dandyk objects to Crystal’s comments to the witness

1441 – The witness doesn’t need counsel’s approbation

Cross-examination by Mr. Crystal cont. 1441 - 1447 1447 – McWilliam interrupts Crystal based on a trace evidence argument but then allows him to continue because this is a new object and Crystal has some “great new hidden agenda”

[page 1448 McWilliams states he shouldn’t say “hidden agenda” – it is methodology.]


Re-examination by Mr. Dandyk 1466 – 1474 1474 – Objection by Crystal – leading questions; improper re-examination

1474 – McWilliam disagrees.

Re-examination by Mr. Dandyk cont. 1474 1474 – Objection by Crystal – questions about garbage were not raised in cross-examination or in chief

1484 – Question allowed about the garbage being searched because it goes to whether or not Payne was sloppy in his investigation. Questions not allowed about the hot dog.

Discussion about getting back copies of the document Ms. Bair handed out to the jury

1485 – 1487

15 Re-examination by Mr. Dandyk cont. 1488 – 1490 Objection by Mulligan – 1490 – relevant to his state of mind and how



22/10/98 question about hair falling out of the people who committed these killings is beyond the witness’s expertise

he searched

Re-examination by Mr. Dandyk cont. 1491 – 1492 1492 – Objection by Mulligan that the witness’s thoughts about whether the perpetrators covered their tracks are just musings

1492 – Dandyk states that the next question would be whether that thought process governed the collection of exhibits – allowed.

Re-examination by Mr. Dandyk cont. 1492 – 1500 1500 – Crystal objects: speculation as to where the witness would expect to find non-visible blood

1500 – Question is not inappropriate to his state of mind and why he treated the bedspread the way he did.

Re-examination by Mr. Dandyk cont. 1501 – 1502 1502 – Crystal objects that questions about prints on the glasses are hearsay

1502 – issue is seizure and state of mind – allowed

Re-examination by Mr. Dandyk cont. 1502 – 1503 1503 – Crystal objects that this is not re-examination – these questions amount to examination-in-chief.

1508 - Dandyk submits that he is only addressing why the glasses weren’t collected and the officer’s state of mind. Allowed

Re-examination by Mr. Dandyk cont. 1509 – 1512

Discussion about the back seat of the car being checked for blood – no blood found – and blood found on the cabinet

1513 – 1517

Vincent Nicholas Hawkes

Examination-in-chief by Mr. Dandyk 1518 – 1555

Cross-examination by Mr. Morris 1555 – 1564



Cross-examination by Ms. Mulligan 1564 – 1569

Address to the Jury on expert evidence and opinions

1569 – 1570


Discussion about a hypothetical being put to the witness about blood coming from Manon Bourdeau’s fingernail (the blood was never collected or tested) and the cigarette butt and the glasses – submissions by Mulligan and Dandyk

1595 – 1607 1605 – 1607 - The question cannot be asked. The evidence will come out with Ms. Davidson.

Discussion about scheduling and witnesses

1607 – 1609

Re-examination by Mr. Dandyk 1610 – 1614

Jerome Corbeil

Examination-in-chief by Ms. Bair 1615 – 1627

Cross-examination by Ms. Mulligan 1628 – 1631

16

23/10/98

Motion for mistrial based on the impropriety on the Crown’s opening address

1632 – 1742

Submissions by Mr. McKechnie 1632 – 1656

Submissions by Mr. Crystal 1656 – 1694



Reply by Mr. McKechnie 1728 – 1731

Reply by Mr. Crystal 1731 – 1736



Discussion about an address to the jury if mistrial is an inappropriate remedy

1736 - 1742 1748 – Motion for mistrial denied. Reasons will be provided in 2 or 3 days’ time. [Ruling at Vol. 20, pp. 2146 – 2159.]

17

2/11/98

Discussion about Mr. Stewart’s new laptop, Ms. Mulligan’s broken laptop, conversations between Mr. Gaudreault and Mr. Stewart, but the video will not be adduced until later in the trial

1743 - 1749 We will deal with any issues regarding the conversations before cross-examination

Denis Marcel Gaudreault

Examination-in-chief by Mr. Cooper 1749 – 1757 1757 – Objection by Mulligan about mentioning Gaudreault giving evidence in other cases and the impact that will have on bolstering his credibility

1764 – 1765 – we have to wait for Ms. Mulligan to attack his credibility before we can allow this kind of questioning.

Examination-in-chief by Mr. Cooper cont. 1765 – 1773 1773 – Crystal objects to Exhibit 154 (in another trial) not properly being identified by the witness

Cooper establishes the exhibit.

Examination-in-chief by Mr. Cooper cont. 1773 – 1781 1782 – objection by Mulligan about evidence regarding a conversation with Wayne Shields and Bruce Shields re: .223 – it’s irrelevant and hearsay

1787 – 1790 – if Stewart was there, the conversation is relevant – if not, it’s problematic

[record doesn’t show Stewart was there, but he was, and this was established with subsequent questions by the Court]

Examination-in-chief by Mr. Cooper cont. 1791 – 1828 1828 – objection by Mulligan – relevance about Denis Roy and drug dealing

1838 – Denis Roy being an enforcer is relevant to how business was conducted and to the offence ultimately, and in relation to the accused

Discussion about the walkie-talkie phone and the sawed off gun and whether they

1838 – 1845 Both can go in as exhibits but it must be made clear to the jury that the gun is not the



should be exhibits murder weapon, and the phone is not Mr. Gaudreault’s phone.

Discussion about no likeness of this witness being published in any media

1846 1846 – no pictures and no sketches permitted.

Examination-in-chief by Mr. Cooper cont. 1847 – 1887

18

3/11/98

Discussion about a view Mr. Dandyk prepared of the Cadillac

1888 – 1889

Examination-in-chief by Mr. Cooper cont. 1890 – 1902 1903 – objection by Mulligan about the photograph of the briefcase located in Stewart’s house during the Denis Roy suicide

1909 – 1910 - Ruling will be made at the end of the day so the jury doesn’t have to hang around.

[1947 – Mulligan is content that the photograph go to the jury]

Examination-in-chief by Mr. Cooper cont. 1911 – 1924 1924 - Objection by Mulligan about relevance

1924 - Witness states we are talking about the black book


Discussion about the photograph of the briefcase and the viewing of the Cadillac

1947 – 1950

Discussion about comments being made to Ms. Mulligan by the witness

1950 – 1951 1951 – 1952 – witness addressed by the court

Examination-in-chief by Mr. Cooper cont. 1953 – 1962 1962 – Objection by Crystal – Gaudreault’s notes were not made at the time of the events and thus should not used be to refresh his memory, they are self-serving prior consistent statements. 1965 – McKechnie agrees. 1969 – Mulligan agrees

1972 – 1974 – He is using it to refresh his memory – it is not the totality of his evidence so it is allowed. We will see what happens on cross.



Examination-in-chief by Mr. Cooper cont. 1975 – 2006 2006 – Objection by Mr. Crystal – witness answered the question – Cooper can’t raise an alternative

2006 – 2007 – to refresh his memory is acceptable


19

4/11/98

Discussion about the car being in the courthouse basement, and some comments that Gaudreault made to the court reporter in French about “it’s boring”

2010 – 2020 2018 – 2020 – Interpreter will tell the jury that there was a sentence in French yesterday exchanged between the witness and the court reporter which was “It’s boring”. Witness will be instructed to cease his fireside chats with the reporter.


Viewing of the car 2026 – 2027

Court addresses the witness about his comments to the reporter (in the absence of the jury)

2028 – 2029


Discussion about the knuckle-less racing gloves and scheduling

2055 – 2059

Interpreter discusses Gaudreault’s comments (to the jury)

2060

Knuckle-less racing gloves – admission 2061 – 2062


20

5/11/98

Ruling on the Mistrial Motion 2146 – 2159 Motion dismissed.

Examination-in-chief by Mr. Cooper cont. 2161 – 2180 2181 – Objection by Mulligan about evidence on how Mr.

Cooper submits that how Gaudreault perceives Stewart’s mind to work goes to Gaudreault’s state of mind.



Stewart’s mind works and how he would perceive it if Gaudreault went to the police. McKechnie agrees.

[pp. 2189 – 2190 – goes to Gaudreault’s state of mind]

Discussion by Gaudreault that Mulligan and Crystal are looking at him and laughing when he enters the courtroom

2186 – 2188 2187 – 2188 – Counsel will do their best not to look at Mr. Gaudreault when he enters.

Address to the jury about Mr. Gaudreault’s state of mind and what he thinks Mr. Stewart was thinking.

2189 – 2190


Discussion about Mr. Gaudreault getting worked up about the tapes and maybe a break should be taken to calm him down.

2212 – 2218 Objection by Mulligan – his demeanour is relevant.

2216 – 2217 – the question will be put to the witness as to whether he wants to continue right now, because this must be a difficult thing for him to relive – his sister tricking him.


21

6/11/98

Discussion about hearing the pauses in the tapes, the tapes being played in context and a translation given at the same time.

2225 - 2227

Examination-in-chief by Mr. Cooper cont. 2228 – 2233 2233 – Objection by McKechnie – translation seems to be watering down the conversation.

2233 – 2234 – translation must be accurate. Gaudreault agrees that what is being translated isn’t what was said.

Examination-in-chief by Mr. Cooper cont. 2235 – 2239 2240 – Objection by Mulligan – still problems with the interpreter – particularly with respect to tenses and slang expressions

2244 – McWilliam agrees – counsel is to work it out with the interpreter and see what can be done.

[new interpreter brought in]

Examination-in-chief by Mr. Cooper cont. 2245 – 2265 2265 – Objection by Mulligan – hearsay –

2265 – Agreed. It is hearsay.



question about a discussion Stewart had with Wendy Bova

Examination-in-chief by Mr. Cooper cont. 2265 – 2293 2293 – Jury excused to determine a potential issue about Randy the runner


22

9/11/98

Examination-in-chief by Mr. Cooper cont. 2332 – 2361 2362 – 2376 – Objection by Mulligan – Cooper is trying to get out a prior consistent statement. McKechnie agrees. Submissions on the issue.

2377- 2279 – Based on the caselaw re: prior consistent statements and McWilliam’s finding that recent fabrication is fundamentally alleged, there is nothing improper about the Crown leading the evidence in chief – it will be cross-examined on in any event.

Examination-in-chief by Mr. Cooper cont. 2380 – 2389 2389 – Objection by Mulligan – witness doesn’t recall – doesn’t need his memory refreshed

2389 – Witness said he didn’t recall, so it is fair for counsel to ask him if he would like his memory refreshed – Cooper puts to Gaudreault Heather Lamarche’s notes of March 20, 1990.

Examination-in-chief by Mr. Cooper cont. 2389 – 2397 2397 – Objection by Mulligan – hearsay about what was said to CTV and his lawyers etc. Cooper submits it goes to Gaudreault’s state of mind.

2397 – Keep the witness on track.

Examination-in-chief by Mr. Cooper cont. 2397 – 2399 2400 – Objection by Mulligan – Crown is not trying to control the witness at all. Mistrial requested. [witness’s comments about taking a polygraph]. Crystal agrees. McKechnie agrees.



Motion for Mistrial because of comments re: polygraph – submissions by counsel including examination of Richard William Riddell

2400 - 2485

23

10/11/98

Ruling for Mistrial Motion 2486 – 2495 Motion denied. Evidence of the polygraph is inadmissible and must not be considered by the jury for any purpose whatsoever. McWilliam will not rebuke the witness in the presence of the jury – but the witness will be told in no uncertain terms that he must avoid certain issues when advised about them by Crown counsel. He should give focused answers.

McWilliam rebukes Gaudreault. 2495 – 2499

Discussion about how questions covering subject matter on the same tapes as the pig farm information will be dealt with [matters dealing with the videotaped conversation between Messrs. Stewart and Mallory]

2499 – 2503 Cooper is not going to be asking Gaudreault about his conversation with Mr. Stewart – he will be asking him about other matters.

Jury addressed about the polygraph 2504 – 2505

Examination-in-chief by Mr. Cooper cont. 2505 – 2523 2524 – 2531 – Objection about the Crown leading evidence about Gaudreault’s agreement with the federal crown – Stewart ended up pleading guilty.

2529 – Evidence is more probative than prejudicial – shows Gaudreault’s actions, attitudes with respect to the police

Discussion about clarifying Gaudreault’s evidence about the question “how did it go” and whether it was proper for the Crown to discuss this with him outside of court when he has testified about it already.

2531 – 2535 McWilliams will take further advice on this – he will look at the law on the issue and perhaps revisit this.



Examination-in-chief by Mr. Cooper cont. 2536 – 2544 2544 – 2602: Objection by Mulligan – jury excused to see where Gaudreault is going to go with his evidence on his conversation with Stewart in the hotel room. 2547: argument on the issue. Mulligan argues that by allowing the evidence in, the only way she can answer is to show the video tape which is prejudicial, but not probative to Jan. 16th.

Mulligan provides a list of the areas that will be problematic on the video tape. 2599 – 2602 - Cooper knows the hotspots, and he will stay away from them. We will deal with this objection by objection.

Examination-in-chief by Mr. Cooper cont. 2603 – 2615 2615 – Objection by Mulligan – where is Cooper going with the evidence on Jack Trudel. Cooper submits it’s relevant because Trudel was in the witness protection program and integral to Gaudreault’s experience in that program, as well as to the Dougherty incident. Trudel’s evidence will not be covered.

2621 – McWilliam agrees with the Crown.


24

12/11/98

Examination-in-chief by Mr. Cooper cont. 2643 – 2654 2655 – Objection by Mulligan about the Crown raising the events of 1997 and 1998 (Brinks job,

2668 – McWilliam can understand some of the arguments for relevance so wouldn’t exclude it on that ground, but would on the grounds that developing an antipathy between defence counsel and a crown



witness protection program), which aren’t relevant to January 16th, 1990. The defence can’t call witnesses to contradict any of this evidence – thus leaving a false impression with the jury

witness doesn’t help either side – if he had that overriding authority – but relevance still determines what a trial judge can do. Could revisit prejudice and probity if he had to – but doesn’t think he should go there at this stage.

Discussion about one other matter that Cooper will be raising – McWilliams cautions him not to ask a question for the sake of getting the question out – rather than for the sake of actually getting an answer. Cooper will circumscribe his examination rather than reveal his intentions in advance.

2668 – 2672

Remark to the jury about hearsay. 2673 - 2674

Examination-in-chief by Mr. Cooper cont. 2674 – 2684 2685 – Objection by Mulligan about putting to a witness counsel’s opening remarks and having him comment on the propriety of those remarks. Submissions by counsel.

25

12/11/98

Ruling on the appropriateness of putting counsel’s opening address to the witness

2694 - 2700 Putting the opening address to the witness is not allowable. Questions on the subject matter are acceptable, but quotations can’t be presented for comment.


Cross-examination by Mr. McKechnie 2717 - 2728 2728 – Crystal objects to Gaudreault’s language.

2728 – The Court is used to this language now. McWilliam condemning him now isn’t going to help.

Cross-examination by Mr. McKechnie cont. 2728 – 2730 2730 – Discussion 2739 – McWilliam is content that the



about whether defence counsel were involved in sending people to Gaudreault’s prelim in Victoria to gun him off (he ripped off $35,000)

warning he first gave was strong enough in that there was no evidence that any of the lawyers were involved.

Cross-examination by Mr. McKechnie cont. 2739 – 2760 2760 – Dandyk objects – counsel is wishing to put argument to the witness, which is improper

2763 - McKechnie decides to leave it for now.

Cross-examination by Mr. McKechnie cont. 2764 – 2803 Page 2804 is missing

26

13/11/98

Cross-examination by Mr. McKechnie cont. 2805 – 2815 Objection by Cooper – McKechnie cut off the witness

2815 – Answer seems to be part of the answer to a question – witness to continue.

Cross-examination by Mr. McKechnie cont. 2815 – 2842 2842 – 2855: Objection by Mulligan about Gaudreault’s answer including references to plea bargains, and Gaudreault surmising

2854 – McWilliams wants to know what was said, so he will deal with it after lunch.

2885 – Address to the jury – no evidence of any deal – evidence only goes to Gaudreault’s state of mind.

Cross-examination by Mr. McKechnie cont. 2855 – 2885

Address to the jury 2885 – 2886

Cross-examination by Mr. McKechnie cont. 2886 – 2910 2910 - Objection by Cooper, and then McKechnie, about whether Gaudreault is prepared to accept what was in Lamarche’s notes

2911, 2916 – notes are to be put to the witness to refresh his memory and be adopted. These notes haven’t been put to Gaudreault in their totality, and they are summaries, as well.

Discussion about scheduling the week off so Gaudreault could finish his evidence.

2916 – 2920

Cross-examination by Mr. McKechnie cont. 2920 – 2926 2926 – Objection by 2926 – Agreed. Frame the question.



Cooper that the notes are becoming evidence


27

16/11/98

Cross-examination by Mr. McKechnie cont. 2946 – 2961 2961 – Objection by Mulligan about the notes becoming evidence rather than being used to refresh Gaudreault’s memory.

2962 – The witness shouldn’t read the notes aloud, he should read them to himself to refresh his memory.

Cross-examination by Mr. McKechnie cont. 2962 – 2979 Comment by Cooper that the pages in the transcripts before and after what the witness is being asked about should be reviewed by the witness for context.

2979 – McWilliam agrees.


Request for a disclosure order by Mulligan for the landlord’s criminal record because McKechnie was suggesting the landlord did have a criminal record – potentially bolstering his credibility

3042 – 3047 3047 - McWilliam will think about it for an hour or so.

Cross-examination by Mr. McKechnie cont. 3048 – 3053 Objection by Cooper to a question about what the others in the car would have observed about Gaudreault’s behaviour

3053 – McWilliam agrees – counsel will have to come at it a different way – the way the question is framed, the witness cannot answer.

Cross-examination by Mr. McKechnie cont. 3053 – 3066 3067 - Objection by Cooper about McKechnie filing the letter to Gaudreault indicating he was no longer in the Witness Protection Program

3074 – Filing the letter is the problem – you can certainly go after all the subject matter – but the letter is written by people in high places and there is only so much you can disabuse the jurors’ minds of. Counsel can’t quote the letter – just ask him if he received it, agreed with the contents – but the letter



will not be broadcast to the jury.

3077 – Issue raised by Mulligan of Gaudreault hinting at a polygraph and how he would take one any day – he has nothing to hide - prejudicial. Application for mistrial renewed, and if not granted then requesting the witness be instructed.

3083 – 3084 – Witness instructed that he must not ever in this trial say anything more about polygraphs.


Discussion about scheduling. 3112 – 3114

28

17/11/98


Cross-examination by Ms. Mulligan 3116 – 3130 3131 - Objection by Cooper – Mulligan is putting things to the witness out of context; white icing sugar rather than pudding as a prior inconsistent statement that was later corrected under oath

3135 – Mulligan can put it to Gaudreault, and Cooper can correct it in re-examination.

3135 – Discussion by Cooper about letting Gaudreault know he can give a full answer, given that he has been careful not to mention his previous testimony based on previous objections

3138 – McWilliam will bear Mr. Cooper’s statements in mind and if he sees something unfair is developing he will let Gaudreault know he can answer fully but doesn’t want to go down that road now because it might act as a trigger.



Cross-examination by Mulligan cont. 3139 – 3186 3187 – Objection by Bair – relevance. Mulligan is trying to establish that Stewart and Vanasse were not together.

3192 – McWilliam doesn’t like what Mulligan is confronting Gaudreault with – the phone records for January 22 – Mulligan will leave this line of questioning since January 8 is much more important to her.

Cross-examination by Mulligan cont. 3195 – 3220

Discussion led by McWilliam about the disks filed – they weren’t filed as the electronic organizer that was dropped in the toilet – so where are we going with this?

3221 – 3223 Mulligan advises McWilliam that she can put to Gaudreault that he stated he wouldn’t have been able to buy the kind of disk unless he had the original disk from Stewart’s calculator.

3223 – McWilliam sees the relevance.

Cross-examination by Mulligan cont. 3224 – 3237 3237 - Objection by Cooper to Mulligan’s question that Gaudreault was never charged with providing false information to the police – that isn’t a charge.

3238 – McWilliam confirms for the record that whatever you can be charged with, Gaudreault was never charged.


29

18/11/98

Discussion about how Gaudreault will refer to when he testified in 1995 vs. at the preliminary inquiry

3298 – 3300

Cross-examination by Mulligan cont. 3301 – 3325 3326 – Objection by Bair – Mulligan is trying to discredit Gaudreault about what he told the police on February 13, 1995 (about Trudel leaving town), when he

3330 – Voir dire will be conducted to determine what the witness says about it



has admitted he lied, even though what he told the police was that Rob Stewart told him, and that was later repeated by Trudel.

Voir dire about what Gaudreault told the police on February 13, 1995.

3330 – 3335

Transcript references read in by Cooper from September, October, 1995

3336 – 3339

Submissions by Bair about her objection – Gaudreault was prevented from giving a complete answer because of the way the question was framed – “How did you know?” became “How did you know at that time?” i.e. February, 1995

3340 – 3341

Submissions by Mulligan 3341 – 3342 3342 - 3343– the problem is that Gaudreault has mentioned Trudel as the source for his information many times, and Mulligan has to put all those occasions to him, or none of them – then the jury can make up their mind as to whether he is lying [Mulligan decides to leave it alone]

Mulligan raises the issue with the Court about putting some press articles to Gaudreault to test where he got the information from

3343 – 3361 Dandyk objects – Mulligan is trying to argue through the witness – she has to lay the foundation first – did you read these articles. If the answer is no, that is the end of the matter.

McKechnie submits that the crown raised the issue and fairness dictates that the

3358 – the issue is if Gaudreault takes the position that he hasn’t read the paper, do you allow someone to go on and pound away for an hour on denying the assumption of his answer to determine his demeanour at that point – is that fair?

They will come back to this after lunch.



defence be allowed to put forward that the evidence was in the public domain.


Further submissions on the issue of the newspaper articles being put to Gaudreault

3409 – 3427 3427 – McWilliam wants to think about the issue and the case law overnight.

Cross-examination by Mulligan cont. 3428 – 3456 3456 – Objection by Bair – Gaudreault should take admonishment from the Court and not from Mulligan

3456 – Don’t know if Gaudreault was admonished, but he is free to answer fully and freely on any subject that is responsive to the question that is asked.

[Mulligan will be more direct in her questions]


Further submissions on the newspaper issue

3472 – 3480 3473 - Comments from Bair indicating she is coming close to requesting rebuke for Mulligan’s interrupting the witness and her theatrics

3474 – McWilliam does not do a lot of disciplining in jury trials

[He will rule on the newspaper issue tomorrow]

30

19/11/98

Ruling by McWilliam on the newspaper articles being put to Gaudreault

3481 – 3486 Counsel can ask whether Gaudreault based any of his information on articles in Ottawa newspapers. If he says yes, then counsel can put an article to him to see if the article was one that he based his information on. Once he has adopted some of the information, counsel is free to ask further questions. If there is no adoption of the fact that he based the information he gave to the police on newspaper accounts, then he may be shown a piece of paper [the article] which is not identified and ask if he still sticks to his answer.



Further discussion by Mulligan who wants to be able to identify the article so the jury knows what it is. Cooper objects.

3487 – 3499 3499 - Cooper suggests and counsel agree to approach it as follows – Mulligan to present the one article she wishes to – January 23 – indicating that it purports to be a newspaper article of that date – on Mulligan’s undertaking that she will call all the evidence about the newspaper clippings. Mulligan clarifies that if she does not show him information from the other papers that the Crown will not be arguing at the end of the day that she didn’t confront him with every item that she intends to argue from – she will confront him globally on newspapers, and this one in particular. Crown agrees.

Cross-examination by Mulligan cont. 3500 – 3536 3533 – Cooper objects - Gaudreault should be permitted to answer more fully or elaborate or correct anything

3533 – McWilliam reminds Gaudreault that he is free to elaborate etc.


Cross-examination by Mulligan cont. 3541 - 3581 3554 – Bair objects to the framing of a question – witness asked to comment on someone else’s state of mind

3581 – Bair objects to the misimpression that Mulligan has given that the statement lasted from 1:50 until 6:05 – it was interrupted according to Det. Lamarche.

Mulligan will rephrase the question.

Further submissions about Bair’s objection 3583 – 3586 Mulligan objects to how McWilliam states that Bair should not raise



to the duration of the statement Bair raised her objection and made her point in front of the jury

these things in front of the jury – if the evidence has been misstated, it should be raised while the jury is absent and he will get to the bottom of it.

Cross-examination by Mulligan cont. 3587 – 3591 3592 – 3617 – Objection by Cooper, and question by Mulligan about how to use Edelson’s cross-examination questions at the preliminary inquiry and how to deal with Riddell’s notes and his questions to Gaudreault

3613 – McWilliam wants to consider this further.


31

20/11/98

Ruling by McWilliam that a voir dire will be held on the use of Riddell’s notes on the issue of Randy Wara paying Gaudreault $18,000.

3641 (from page 3646) If the result of the ruling were to be that counsel is restricted from cross-examining on the notes, given that it’s such a fundamental denial of full answer and defence to deny the right to cross-examine that we ought to at least have a voir dire on the matter

Ruling by McWilliam on the use of the preliminary inquiry and Edelson’s cross-examination

3642 – 3644 McWilliam is not convinced that the contradictory admission is crystal clear and the lawyer conducting the cross-examination refers several times to information being “in the notes” – McWilliam states that the danger with notes in a jury trial is that the notes become too important and the witness becomes a bit player. The notes were integral to the admission. In these circumstances the transcript of the preliminary inquiry is not clearly and unambiguously contradictory as required by the case law to be used at trial. Transcript of the preliminary inquiry cannot be used to



contradict the witness at trial.

Voir Dire on the Use of Riddell’s Notes

Heather Margaret Lamarche (Voir Dire) 3645

Examination-in-chief by Mulligan 3646 – 3651

Cross-examination by Cooper 3651 – 3658

Re-examination by Mulligan 3658 – 3662

Further questions by Cooper 3662 – 3663

Further questions by Mulligan 3663

Richard William Riddell (Voir Dire) 3664

Examination-in-chief by Mulligan 3664 – 3672

Cross-examination by McKechnie 3672

Cross-examination by Cooper 3672 – 3677

Portions of the transcript read in 3678 – 3682

Ruling on the use of Riddell’s notes [Executive Summary]

3682 - 3684 McWilliam would allow Riddell to testify now that Mulligan is definitely calling evidence, even though it’s technically hearsay – so the jury will hear that this witness said at one point that he got $18,000 from Randy Wara. In fairness to the defence and considering the original book was lost, the statement of Riddell’s should be able to go to the jury only on a hearsay basis – there is sufficient reliability in the statement. [See also pp.3917 – 3918].

Dennis Marcel Gaudreault Cont.




Discussion about Detective Savage and Gaudreault’s sister and a deal

3724 – 3727

Cross-examination by Mulligan cont. 3728 – 3729 Objection by Cooper that Mulligan is cutting off the witness and not allowing him to finish his answer

3730 – McWilliam thinks she did cut him off although she didn’t intend to.


32

30/11/98

Cross-examination by Mulligan cont. 3740 – 3844 3845 – Objection by Dandyk – Mulligan is cross-examining on officer’s notes. Crystal submits that actually what Dandyk is referring to is impeachment, but Gaudreault is adopting Mulligan’s suggestions, so it is not impeachment on the notes.

3849 – As long as the witness adopts – it’s all right – but counsel must be careful that the notes don’t testify.

Cross-examination by Mulligan cont. 3851 – 3855 3856 – Mulligan raises the issue of cross-examining about the casings relying on the notes. Submissions on whether that is permissible.

3864 - 3868 – You can cross-examine at large, and you can show the notes to the witness to refresh his memory, but the jury can’t see them.

33

1/12/98

Submissions on cross-examining on newspaper articles, and phone records

3869 - 3885 3885 – Mulligan concludes that questions can be put to the witness suggesting the information came from newspaper articles without the articles actually being put to him – same with the phone records. McWilliam agrees, and that is what the ruling would



have been.

Cross-examination by Mulligan cont. 3886 - 3916 3886 – Cooper wants to ensure that Gaudreault is going from his own recollection, not on what was in any materials he reviewed.

3904 – Objection by Cooper about Mulligan’s characterization of Lamarche’s notes on whether Gaudreault drove home, or whether Linda drove him home.

McWilliam reminds Gaudreault that he must answer based on what he recollects, and if he doesn’t remember, he should say he doesn’t remember.

3916 – Mulligan believes she got where she needed to go in her examination, so will leave it there.

3917 – 3918 Addendum to his ruling regarding Detective Riddell’s matter of the $18,000 and Randy – it goes in on the basis that it was proof that it was said and not for the proof of the allegation that Randy delivered the $18,000.

33-34

2/12/98

Cross-examination by Mulligan cont. 3919 – 4025 3990 – Objection by Cooper about whether the police or Edelson was the source of some of Gaudreault’s information, and about being hypnotized, and about how Mulligan is putting the questions to Gaudreault.

Discussion about the timing of Gaudreault’s request for hypnosis, and whether his information is from the police, or Edelson, or Declare. Discussion about the polygraph issue and case splitting.

4024 – proceed with the cross examination about the hypnosis, but start with more open ended questions and then go to the dates

34 Cross-examination by Mulligan cont. 4026 – 4080

Re-examination by Cooper 4080 – 4090 4081 – Objection by Crystal/Mulligan – Cooper is asking questions that he asked in chief – re-

Cooper asserts that he is simply clarifying matters that Mulligan raised in cross by using portions of transcripts, but not putting them in complete context.



examination is limited to what has come out in cross-examination.

4088 – McWilliam rules that it is proper for re-examination to continue because it was an attempt to divide Gaudreault

Re-examination by Cooper 4091 – 4124 4115 – Objection by Mulligan –(1) the way Cooper has left the hypnosis chronology by omitting Gaudrealt’s request on October 22 (2) Cooper is leading the witness by reading the transcript and then asking the questions and (3) Cooper is leaving the jury with the impression that Edelson is at fault for the delay and length of the proceedings

4123 – McWilliam adopts Cooper’s submissions on (1) and (2) – i.e. the two hypnosis issues are separate - whether Gauldreault offered to be hypnotized and whether he was fed information about Declare having been hypnotized and that the transcripts are necessary to put to the witness as a physical piece of evidence – it’s not to refresh his memory. For (3) McWilliam has issues with how the jury will perceive things – and he doesn’t want the jury to perceive that it was the defence’s fault. Cooper will apologize to the jury when they return.

Re-examination by Cooper cont. 4125 - 4140

35

3/12/98

Re-examination by Cooper cont. 4141 – 4149 4149 – Objection by Mulligan about Flynt Kaya and this line of questioning – not relevant. Cooper submits that Kaya is relevant because Gaudreault has claimed that he was frightened to give some answers at the prelim because certain people were present, and Kaya was one of those people because Gaudreault ripped him off of $100,000. Mulligan

4157 – The matters of the $35,000 and the rip offs and the people from BC will be allowed in because they were here to mark Gaudreault and find out where he was and it doesn’t really reflect on the accused. But if we will just generally say that Gaudreault got nervous because Kaya was there, there is a connection between Kaya and Mr. Stewart and that would be prejudicial – so the jury has enough, and we shouldn’t go any further.



submits its highly prejudicial considering Kaya was only present for part of one day and Gaudreault gave evidence for 23 days. McKechnie raises the issue that credibility wasn’t covered in cross-examination – the crown raised it so it is not properly covered in re-examination.

Re-examination by Cooper cont. 4160 – 4178 4178 – Objection by Crystal about Cooper’s questions regarding drug rips and whether there was violence used. Questions are leading and violence not suggested in examination-in-chief or cross-examination. Cooper submits that the defence theory is that this was a drug ripoff.

4185 – If the defence is not suggesting that Gaudreault is the perpetrator of these offences then this sort of rehabilitation of the witness to prove that he is a non-violent person is irrelevant.

Re-examination by Cooper cont. 4187 4187 – Objection by Mulligan as to how Cooper is characterizing Gaudreault’s evidence about the Bovas

4189 – Cooper will put it to Gaudreault again so there is no misrepresentation.

Re-examination by Cooper cont. 4191 - 4206 4195 – 4196 – leading questions (rephrased)

4206 – Discussion about Cooper’s questions on the

4215 – Questions are a device to repeat Mr. Winn’s evidence and it doesn’t add anything.



differences, if any, between “no problem” and “everything is alright – let’s go” [what was said in the car] and whether they mean the same thing. Mulligan submits that Cooper has the evidence of Gaudreault’s answers – it’s been answered.

Re-examination by Cooper cont. 4217 – 4221 4221 – Objection by McKechnie about the portions of the transcript that Cooper is putting to Gaudreault with respect to what was said in the car and when it was said.

4233 - Counsel discuss it over the lunch break and Cooper will lay out every thing as it happened, including any references in Lamarche’s notes, so that it is clear.

Re-examination by Cooper cont. 4232 – 4249 4250 – Objection by Mulligan about when Gaudreault reviewed Riddell’s notes for the first time.

4251 – Cooper admits he has it wrong and will make the correction

Re-examination by Cooper cont. 4252 – 4281 4282 – Mulligan suggests that rather than read everything in since it was covered in chief and again in cross, what could be done is file the statements as they were edited and let the jury read them.

Counsel will think about it overnight and move on to something else for the remainder of the day. (4284)

Re-examination by Cooper cont. 4288 – 4302

Scheduling discussion – Bair has 4303 – 4314



pneumonia and she was preparing Lamarche who is the next witness – question of what order the witnesses will be in.

36

4/12/98

Scheduling discussions. Discussion about the statements – Cooper will continue to read them, so Mulligan won’t agree to file them. Crown is not calling Savage.

4315 - 4325 4317 – Objection by Mulligan about Cooper reading to Gaudreault from Lamarche’s May 9 notes when the defence was precluded from doing that. [Cooper agreed and apologized]

4320 – Objection by McKechnie that if crown is not calling Savage, the jury will be left with a misimpression about hearsay regarding a shotgun and Richard Chabot since Savage was going to be giving them his version. Cooper states it’s not relevant for the truth – but for the impression on Gaudreault [Cooper will revisit this right off the bat]

4325 – Court cautions the jury about hearsay and the shotgun/Savage issue

Re-examination by Cooper cont. 4325 – 4346 4346 – Objection by McKechnie to Cooper’s leading and misleading question about the number of shells that are missing. Mulligan agrees.

4350 – Question was slightly leading but didn’t produce irrevocable difficulties. As to whether it’s misleading – leave that for argument.

Discussion by Mulligan about the proper 4351 – 4355 Dandyk states that this 4355 – This is not the same situation as



treatment of showing the officer’s notes to the witness so that it is in line with McWilliams’ ruling.

situation is different from when the defence was putting things to Gaudreault because in that situation he wasn’t adopting the contents, but here he is.

having the notes testify because Gaudreault is saying what is true in the notes that the officer has taken.

Re-examination by Cooper cont. 4356 – 4388 4389 – Objection by Mulligan about Cooper replaying the whole tape – it was played in chief, and briefly touched on in cross – to play it over again in its entirety is not necessary. Cooper suggests that the flow from the tape is important and that requires playing the tape in its entirety without interruption.

4398 – Playing the tape is a repetition of what has been said in chief – the jurors will have the tape and can play it – the witness has already indicated that it was a spontaneous conversation – the accused can’t understand French and should be able to understand what is going in as evidence in their trial – we will not play the tape. Tape can be played for the witness and he may be asked questions on it, but the jury won’t hear it again.

[Accused listens to the tape]

Re-examination by Cooper cont. 4403 – 4407

37

7/12/98

Heather Margaret Lamarche

Examination-in-chief by Bair 4409 – 4429 4430 – Objection by Mulligan about the relevance of the history of disclosure to the defence, and about confidential informants. Jury may be left with the impression that although there was not anything exculpatory disclosed by the

4444 – Relevance objection is not valid since it is relevant how expeditiously other things can be performed if one is busy making disclosure – so the crown can go into it on a bare essential basis.



informants, there must have been something inculpatory since they won’t be hearing from them. Bair is only pursuing this line of questioning so that the jury knows the Crown has the obligation to disclose everything. Relevance is that it has taken 9 years to come to trial and why it has taken so long should be explained (change in the disclosure rules)

Examination-in-chief by Bair cont. 4444 – Objection by Mulligan about Bair’s admission on the defence’s behalf that they would not be arguing that Gaudreault was the killer.

4449 – Court intends to tell the jury that it was not argued by the defence that Gaudreault was the killer

38

8/12/98

Examination-in-chief by Bair cont. 4452 – 4479 4479 – Objection by Mulligan [lengthy submissions about whether Lamarche should be excused or whether she should stay]

4485 – This will be a trial run. Lamarche will be excluded. Detective Riddell can pass along instructions. If there is nothing substantial argued, this will be taken into account in the future as to whether Lamarche must leave.

[4493 – Cooper states that he sees no reason, having heard Mulligan’s objections, why Lamarche had to leave.]

4485 – Mulligan objects about Lamarche’s testimony bolstering the Crown, and whether Lamarche thought

4492 – it’s evidence, not opinion

4506 – questions are relevant, but try to limit it to precisely this issue



Dougherty, Snider or McCharles had any tainting effect on central witnesses. Her opinion is not relevant and she is not qualified to give an opinion on that.

4493 – Objection by McKechnie about the filing of the brief because it contains his client’s record, Mr. Sauve’s record. It is currently a lettered exhibit but he would object to it being filed.

4494 – Crown will likely seek to file it eventually, but could undertake to edit it but articulate to the jury that certain things are missing from it.

Examination-in-chief by Bair cont. 4507 – 4524 4525 – Mulligan states that she received a blanket Canada Evidence Act notice and requests that she would like to know what is going to be introduced so that if there is an issue we can deal with it.

4529 – normally things are handed to counsel before they are handed to the witness

Examination-in-chief by Bair cont. 4529 - 4571 4556 – Mulligan notes that while notice was given in some form, there may still be an issue with respect to a particular exhibit.

Discussion about the ever-changing witness list. Mulligan raises for the crown to consider the fact that she will want to cross-examine Lamarche on the October 16th video. Question about whether Mitch

4571 – 4574



Four by Four was Michel Vanasse and how that should be put to the witness

39

10/12/98

Discussion about new confidential information disclosed by the Crown and how it should be passed on to Defence counsel. – Unedited copies to go to McWilliam, and then vetted by him.

4575 – 4576

Examination-in-chief by Bair cont. 4576 – 4578 4579 – Objection by Mulligan – Lamarche is testifying about what Sylvie Gravelle told her yet Gravelle has not yet testified herself and it is therefore hearsay. Bair states that we’ve heard the evidence in the tapes and from Gaudreault. Crown needs it to show how it moved the case forward.

4581 – Allowed but the evidence is not proof of the truth, but relevant to Lamarche’s state of mind and how the investigation proceeded.

Examination-in-chief by Bair cont. 4581 – 4647

Discussion about the witness list 4647 – 4649

Examination-in-chief by Bair cont. 4649 – 4677 4677 – Objection by Crystal about Bair’s leading questions

4680 – Caution to everyone about what their responsibilities are


40

11/12/98

Examination-in-chief by Bair cont. 4703 – 4724 Objection by Mulligan – inappropriate for Lamarche to comment on whether Gaudreault has made any changes to his version since June 1990

Pages 4707, 4711,4718, 4726, 4765, 4784, 4789, 4800 are missing



Examination-in-chief by Bair cont. 4727 – 4750 4750 – Objection by Mulligan and McKechnie as to the appropriateness of Lamarche being asked for her opinion on whether this was a drug deal or a contract hit. Bair submits that even if not appropriate for its truth, relevant for Larmarche’s state of mind in conducting the investigation

4757 – Lamarche cannot give opinion evidence, particularly objected to by the defence in terms of her time estimates, because she is not an expert. However, her evidence is admissible to determine her state of mind and how she handled Gaudreault’s evidence and how she conducted the investigation – i.e. if she thought it was a contact hit and drew inferences accordingly.

Examination-in-chief by Bair cont. 4759 – 4770 Objection by Mulligan to Bair’s questions about Jack Trudel, who was incarcerated at the time of the murders – how is this relevant? Bair submits that she is entitled to raise the issue and close off the possibility that Trudel was the perpetrator.

4774- Crown is entitled to rebut the suggestion, but I think we’ve covered it now. The jury knows that Trudel has nothing to add to this case because Cooper mentioned it. Bair can ask how long Trudel was in jail for – when his sentence started and how long it lasted.

Examination-in-chief by Bair cont. 4779 – 4800 Page 4800 is missing

41

14/12/98

Discussion about motions prior to Mulligan’s cross

4802 – 4810

Examination-in-chief by Bair cont. 4810 – 4813 4813 – Objection by Mulligan to Bair filing as an exhibit a summary of Rick Trudel’s phone records – the evidence is in the total records, already filed, and the Crown summary

4815 – the summary is more helpful and the defence can file its own summary at the appropriate time



doesn’t provide the whole picture.

Examination-in-chief by Bair cont. 4816 – 4830 4830 – Objection by Mulligan about Bair raising the ABC motion – Mulligan doesn’t want evidence of threats against Gaudreault’s life (presumably made by Stewart) being put forward through this witness – it’s not relevant and it’s highly prejudicial. Bair submits that the Crown is permitted to corroborate Gaudreault’s evidence.

4844 – it is relevant, and given what has already been said, it is not unfair to the accused in all the circumstances. It will be limited though – roles of the respective parties in the ABC motion will be spelled out – i.e. the accused were not the parties in direct opposition to the application but were there as intervenor – the opposed parties were Gaudreault and the Attorney General. As for the threats – what will be covered is that the information concerning the threat was provided at the request of Gaudreault’s lawyer and that they were subpoenaed witnesses for that purpose. That the information they provided was the same information that had been provided to Witness Protection and that it had been provided to them long ago.

4846 – Objection by Mulligan to Bair asking about the relationship between Gaudreault and his Witness Protection handlers – this should be limited to what Lamarche saw herself or what she was present for – and not a repetition of statements by Gaudreault.

Bair intends to ask only about her observations.

Submissions for the motions – prejudicial v. probative, the evidence of John Chapman, the admissibility of the October

4848 - 4868 4868 – Lamarche has very little to do with Chapman so it is not necessary to determine whether that evidence is



16th video tape, timing of revealing the Crown’s witnesses and having a fair trial

admissible or not at this time. If necessary, Lamarche can be recalled to deal with things if they arise.

4869 – No reason to rule on the admissibility of the tape at this time – it can be dealt with at a later time.

Submissions on whether this is the proper time to deal with whether the Defence will challenge Lamarche’s investigation – should be dealt with when Defence starts cross-examination

4872 – 4879 4877 – Should not postpone this until some later time – we have time now because the jury is out and we shouldn’t waste it. McWilliam can be educated this afternoon and delay making a ruling.

Submissions on the Other Suspects motion i.e. how the other suspects that arose during the investigation were dealt with

4879 – 4909

Dandyk

4888 – McWilliam could give the jury the direction once cross-examination starts that the evidence as to whether suspects were followed up on goes only to the officer’s credit and not to the other suspects


Submissions on the Other Suspects motion cont.

4911 – 4928

Dandyk

Discussion about the status of the edited down list of confidential informants and the hypnosis ruling

4928 – 4930

42

15/12/98

Discussion about locating the hypnosis ruling

4931


4932 – 4981

Dandyk


4981 – 5016

Mulligan

Discussion about Ralko’s video McKechnie introduced while cross-examining Gaudreault – it has been edited.

5105 – 5017



43

15/12/98


5018 – 5030

Mulligan



5032 – 5048

Mulligan

Discussion about the edited confidential information list which is sealed and filed

5048 – 5049


5049 – 5050

Mulligan


5050 – 5069

Crystal

44

16/12/98


5070 – 5094

Crystal

Scheduling discussions 5094 – 5095


5095 – 5118

Crystal

Submissions on the Other Suspects motion cont. [see also pp. 5179 – 5190 and 5247 – 5291]

5118 – 5124

McKechnie

Heather Lamarche cont.


Cross-examination by McKechnie 5134 – 5147 5147 – Objection by Bair – witness cannot state what is implied by four shells missing from Gaudreault’s gun. We heard from Gaudreault what this means –

5147 – Court agrees with Bair.



Lamarche can only state what is said. McKechnie is after her state of mind and frames the question that way.

Cross-examination by McKechnie cont. 5148 – 5152 5152 – Objection by Dandyk – relevance of the police’s newspaper file, and using Lamarche for argument, and bringing documentary evidence out unfairly in cross-examination

5169 – It’s Lamarche’s record, it’s her file, it may have some relevance to her state of mind and appreciation of Gaudreault’s evidence. It is appropriate to put the questions to her.


Scheduling discussion 5171 - 5174

45

17/12/98

Submissions by Crystal on the Other Suspects motion

5175 – 5190

Submissions by Dandyk on the Other Suspects motion (not completed)

5190 - 5196


Cross-examination by McKechnie cont. 5197 – 5203 5199 - Objection by Cooper about mentioning the date of the newspaper article – hearsay. Mulligan objects to how Cooper objected – in front of the jury.

5203 – The appropriate procedure is to make the objection in the absence of the jury. McKechnie isn’t going to pursue the date of the article.

Cross-examination by McKechnie cont. 5204 – 5214 5208 – Objection by Cooper that McKechnie is trying to limit the

5214 – The question was narrow, and answered, and then the witness went on to describe an overall picture – but to go there



witness’s answers – but she is entitled to provide the whole answer

is up to McKechnie. It is re-examinable, but it’s up to McKechnie to deal with it how he chooses.

Discussion about the production of Lamarche’s notes – are they an aid memoir?

5214 - 5221 5220 – No one has asked her yet whether she used the notes to refresh her memory. There is a way of doing this – and it can be done quite easily.



Discussions about warnings for the Jury regarding the Jack Martin murder and guilty pleas in that case

5233 – 5239 5239 – McWilliam decides to think about what to do, but he is inclined to wait until the charge to the Jury.



Submissions by Dandyk on the Other Suspects motion

5247 – 5284

Submissions by Mulligan on the Other Suspects motion

5284 – 5291

46

18/12/98



Discussion about the length of time it has taken for the case to come to trial, and the number of lawyers retained by the accused, and how/whether that will be dealt with vis-à-vis the jury

5312 – 5325

Cross-examination by Mulligan, cont. 5325 – 5340 5332 – Objection by Bair – answer to question about what

5339 – You can explore what she did and why she did it without the hearsay.



Jennifer Bourdeau said will be hearsay. Mulligan is not offering it for its truth, but as evidence of what Lamarche did in her investigation and her state of mind.

Cross-examination by Mulligan, cont. 5341 – 5357

47

4/1/99

Ruling (ending only) regarding the use of the hearsay and informant information received by the Jury through the cross-examination of Heather Lamarche

5358 – 5359 Ruling missing. The information received by the jury through the cross-examination of Lamarche only goes to the state of mind of Lamarche at that stage of the investigation. The information about Dave Dunbar cannot be considered by them that he was then or at any other time an “other suspect” (unless a voir dire establishes an “other suspect” connection.)

Cross-examination by Mulligan, cont. 5360 – 5385 5378 – Objection by Bair as to whether Lamarche’s answer that she “believed” they had a picture of Giroux while he was alive was a strong enough foundation to ask her why it wasn’t shown to Gaudreault on February 13th

5383 - Mulligan offers to see of she can find the original photo line up to see if that indicates anything that will make the answer more certain.

5385 - Photos are put to Lamarche who states that she believes they had the pictures of Giroux and Bourdeau by February 13th

Cross-examination by Mulligan, cont. 5386 – 5459 5455 – Objection by Bair about Mulligan rephrasing, but changing, her question just before the witness is going to answer, or as the witness is in the process of answering –

5403 – Limiting direction to the Jury about some evidence being admissible in order to assess the state of mind of the person who heard the hearsay – the evidence re Dave Dunbar is this kind of evidence – you cannot consider the information about Dave Dunbar to make him an “other suspect” in the case – this information can only be used to



if it happens again she’ll object more quickly

assess the state of mind of Lamarche at that stage of her investigation

Cross-examination by Mulligan, cont. 5459 – 5463 5463 – Objection by Bair – repetitive question about Harkness going to get Gaudreault

5464 – We’ll leave it with the jury.


48

5/1/99

Ruling on the Other Suspects motion 5466 – 5481 TK

Cross-examination by Mulligan, cont. 5482 – 5491 5487 – Objection by Bair about Gaudrealt’s evidence re timing of an argument Stewart has (suppertime vs. early morning)

5491 – We’ll put it as “morning” rather than “first thing in the morning”.

Cross-examination by Mulligan, cont. 5492 – 5506 5499 – Objection by Bair – Mulligan is asking Lamarche about whether she was concerned about the timing of the events – and then rephrases the question because she gets an answer she doesn’t like. Mulligan submits that Lamarche did not answer the question that was asked. (Lamarche got into why she believed Gaudreault)

5506 – Avoid references to whether Gaudreault was believed. If there are factors other than what is being asked about what the witness took into consideration, McWilliam is prepared to listen to them.

Cross-examination by Mulligan, cont. 5507 – 5525 5523 – Objection by Bair about evidence vs.

5525 – When Lamarche is asked about witnesses she shall not reveal tips and if the



tips from confidential informants and whether Mulligan has now opened the door to putting tips (as a basis leading to the arrests of Stewart and Mallory) to Lamarche in re-examination. Mulligan submits that Stewart and Mallory were arrested on the basis of Gaudreault as a witness and then corroboration happened after that.

Crown wants to re-examine on the basis of tips we’ll argue then whether tips come into this. Lamarche is to use “witnesses” and that means Mr. Gaudreault and anybody else who’s going to be a witness.

Cross-examination by Mulligan, cont. 5526 – 5551 5530 - Admission by Bair that Lamarche believed that the phone records (Exhibit 146) were Michael Vanasse’s phone records (cannot be proved through this witness)

5548 – Objection by Cooper about the Lamarche’s summary of calls - hearsay

5549 – McWilliam can find some relevance in this – if it doesn’t go anywhere we’ll straighten it out at the end of the road.


Comments by Dandyk, Bair and Mulligan about the Lamarche hearsay issue since the jury wasn’t excused for the exchange and McWilliam’s quick ruling that the summary phone list is admissible – Dandyk asserts that we are telling the Jury it’s admitted to show state of mind, but in

5557 – 5568 5564 – Witness has testified that there is nothing connecting these accused, that she knows of, to Giroux or the house and their names are not on Giroux’s debt list. The list represents Lamarche’s operating material – this what her mind works on and she’s made conclusions that none of the accused



actual fact it’s showing the truth of what’s on the list (or not on).

were on that list and she’s checked it out. If the evidence is going to go further, the truth may need to be proved.

5567 - If it’s a problem that the list is being admitted for it’s truth, McWilliam will sort it out in the charge.

Cross-examination by Mulligan, cont. 5569 – 5615 5610 – Objection by Bair – records from an institution indicate Sauve was in the area and not out west as Gaudreault indicated

5611 - (seems to go in anyhow)

Discussion about Summary of the Evidence that McWilliam is going to prepare to give to the jury

5616 – 5617 See Vol. 59, pp. 6883 – 6884.

49

6/1/99

Scheduling discussion regarding re-examination

5618 – 5619

Cross-examination by Mulligan, cont 5619 – 5669 5667 – Objection by Cooper over Mulligan asking questions about Lamarche’s analysis, and requesting a copy. Mulligan asserts that the earlier ruling was that if Lamarche mentioned it, it could be covered. Cooper agrees that if Mulligan wants to get into it and start if off properly to raise the issue of the analysis, then Lamarche can get into it.

5636 – Caution to the Jury that information from an informant about Robert Leeman is to go only to the state of mind of Lamarche and not for its truth.

Cross-examination by Mulligan, cont. 5670 – 5745 5683 – Objection by Cooper - Lamarche

5684 – if the witness would like to complete the answer, she may complete the answer.



didn’t finish off her answer from the question before the break when there was reliance on things picking up where they left off (disclosure of Lamarche’s analysis was provided during the break)

Lamarche answers and reads her analysis.

50

7/1/99

Cross-examination by Mulligan, cont. 5746 – 5754 5750 – Objection by Cooper – Mulligan is confused when she says that Gaudreault stated that Jack Trudel had a contract out on his brother Rick Trudel. It was Rick Trudel who was conspiring to kill Jack Trudel when he came for Paulo’s funeral.

5754 - Evidence was reviewed, and it could be either interpretation – so foundation exists for Mulligan’s question. She can continue on.

Cross-examination by Mulligan, cont. 5754 - 5763 5759 – Discussion about the press – what was in the press and what was omitted, and could Gaudreault have gotten the information elsewhere.

5761 – 5762 McWilliam is concerned about testimony support

Cross-examination by Mulligan, cont. 5764 - 5822 5804 – Discussion about where the information came from that Bourdeau was sleeping on the bed when she was shot. Gaudreault testified that he overheard Trudel say that to Stewart.

5820 – No clear admission that Gaudreault said she was sleeping



Cooper disagrees that Gaudreault’s evidence was that she was sleeping. Mulligan suggests that while sleeping was not mentioned in the papers, lying on the bed was and Gaudreault changed it.


Scheduling discussion 5850

General objection by Bair regarding hearsay eg. Babineau information. How does that affect the officer’s state of mind? Mulligan submits that Babineau had a problem with Stewart – she might be the “some other bitch from Cumberland” – like Jamie Declare, Lynn Chapman, Lorraine Benac. All of this goes to whether Lamarche investigated other possibilities – bias

5855 – Jury will decide whether Mulligan’s inference is reasonable.


51

8/1/99

Cross-examination by Mulligan, cont. 5864 - 5878 5867 – Objection by Bair about Mulligan cutting off Lamarche when answering her questions about investigating Lorraine Banac. Mulligan submits Lamarche was answering a question that was not asked. “Did you” (her question) vs. “Why didn’t you”.

5870 – Distinction by Mulligan has validity as a matter of logic, but the distinction should have been brought up before, which wasn’t done. McWilliam isn’t going back to the jury with anything on this except generally in the charge.



5874 – Mulligan submits that to allow the jury to hear about Rick Trudel and James Sauve from a witness the crown doesn’t intend to call (Dave Dunbar) is prejudicial.

5874 – Provisional ruling that we won’t go into these admissions and McWilliam will think about this further.

Cross-examination by Mulligan, cont. 5878 – 5939 5927 – Objection by Cooper about the relevance of Mulligan’s question re: Marjorie Prevost and the information Manon Bourdeau apparently confided to her. Objection by Mulligan to the Crown interrupting because then she has to go back and revisit each area. Crystal agrees with Mulligan and advises that the Crown’s behaviour is distracting the jury.

5938 – McWilliam disagrees that there’s commotion.

Cross-examination by Mulligan, cont. 5939 – 5987 5969 – Objection by Cooper about Mulligan’s question regarding what would have happened if Lamarche had discovered Gaudreault was lying about police officers disposing of a gun in a river. The evidence that Gaudreault took and

5982 – Lamarche answered the question and Mulligan is happy with it, so anything further goes over to reply. McWilliam doesn’t want to make a quick, off the cuff ruling. Cooper objects that Lamarche was cut off and Cooper wants her to be able to answer in cross, and not wait until reply. Mulligan submits that if a more complete answer is sought, then a voir dire needs to be held to hear from the Crowns about why the charges would have been withdrawn.

5985 – McWilliam says he doesn’t have to



passed a polygraph must be disclosed to the jury because it goes to Lamarche’s state of mind. Mulligan submits that Bair opened the line of questioning in direct, and Lamarche’s evidence that had Gaudreault been lying about the officers, the murder charges would have been withdrawn.

do any of that – if Mulligan is happy with the answer given, then that is how it will stay and the Crown can raise it in reply and if we need a voir dire we will do it then.

Scheduling discussion and consideration about addressing some of the things Bair wants to raise in reply because they are contentious.

5987 – 5991

52

11/1/99

Scheduling discussion since transcripts are required for argument prior to reply beginning.

5992 – 6000


Re-examination by Bair 6008 – 6020


53

13/1/99

Re-examination by Bair, cont. 6027 – 6039 6031 – Objection by Mulligan about Bair showing Lamarche a photograph of a woman she has seen once to see if she can recognize her (drawing the analogy that if she can, Gaudreault could have done the same)

6038 – Introducing the photograph may be misconstrued by the jury, but she may be asked whether in her opinion it was a reasonable step and whether in her experience people can make an identification from a single photograph

Re-examination by Bair, cont. 6040 - 6088 6071 – Objection by 6080 – McWilliam will let the Crown go



McKechnie about Bair’s question as to whether Mr. Winn’s information that Mallory knew ahead of time that these murders were going to take place was consistent with her theory. McKechnie asks how it’s relevant. Mulligan objects that Lamarche is then performing the jury’s role. Bair submits that Mulligan opened up the area on cross when asking Lamarche about her theory and whether Winn fit in. Dandyk submits that this was brought up to determine the reasonableness of Lamarche’s investigation and her state of mind and any other use must be done with caution

down this line a bit because it is entitled to present that the officer has a point of view of the situation that does not involve an acceptance of Winn’s position – so we could say that she did not think it was reasonable to accept Winn’s statement in all the circumstances as she understood them.

6082 – Discussion about the nature of Winn’s statements and that some of them were not developed through Winn

6083 – McWilliam can caution the jury about hearsay again to remind them.

6084 – Discussion about Emmerson’s statement and how that went to Lamarche’s state of mind



6085 – Discussion by McKechnie about Roy’s suicide and that he was despondent – Lamarche stated that she didn’t have any information that Roy was despondent, but she had Menear’s statement that used that very phrase.

6085 – that will be the argument – prejudice v. probative. Mr. Menear is here so he can be called about his evidence – it doesn’t need to be corrected through Lamarche.

Re-examination by Bair, cont. 6089 - 6101 6091 – Objection by Mulligan to a question about Eddie Emond (Stewart’s wife’s ex-lover – deceased) and whether Lamarche found a connection between Giroux and Stewart. Emond is dead, has not given a sworn statement and is not available for cross. Cooper submits he doesn’t need to be cross-examined because his evidence only goes to state of mind.

Submissions by Mulligan about the Emmerson and Emond objection and what can be properly covered in re-examination

- polygraph (no)

- withdrawing the charges based on the second polygraph about the gun and the police (no)

- Sauve’s record (no)

6101 – 6137



- information the police had up to the time of his arrest (informants etc.) provided it has been disclosed (okay)

- post arrest investigation (no)

Submissions by Crystal 6137 – 6148

54

14/1/99

Address to counsel by McWilliam about the death of Mr. Justice Kovacs

6149 – 6150

Submissions by Crystal, cont. 6150 – 6175

Submissions by Morris 6175 – 6176

Submissions by Bair 6177 – 6212

Submissions by Cooper 6212 – 6225


Submissions by Dandyk 6228 – 6253


Submissions by Dandyk, cont. 6256 – 6283


55

15/1/99


Submissions by Dandyk, cont. 6288 – 6354

Submissions by Mulligan 6354 – 6444


56 Submissions by Mulligan, cont. 6446 – 6461



18/1/99

Submissions by Morris 6461 – 6478

Submissions by Bair (re-reply for the severance issue)

6478 – 6496

Submissions by Dandyk 6497 – 6505


Submissions by McKechnie 6510 – 6512

Discussion among counsel regarding editing

6512 – 6513

Ruling on the Emmerson and Emond objections re: what can be covered in re-examination.

6514 – 6531 It is not possible to limit the state of mind evidence of Lamarche to the period between the murder and the arrests. All post-arrest matters will not automatically be included, but nor will they automatically be excluded. 6521 – the introduction of Sauve’s record for the witness-shooting in Hull is more probative for her investigative state of mind than prejudicial to these accused. Jury will be given a limiting instruction about guilt by association. 6523 - Criminal records of Stewart and Mallory will be more prejudicial than probative and they have not called their character into question or testified. 6524 - Emmerson told the police that Sauve had told them that Mallory had tried to stop him from shooting Manon Bourdeau by putting his hand on Sauve’s arm – but Sauve shot her anyway. The prejudicial impact of placing Mallory at the scene with this evidence outweighs its probative value to determining Lamarche’s state of mind. 6530 – the Emmerson material will be edited and the evidence that shows that Mallory was there will not be



mentioned. 6528 – the polygraph evidence is more prejudicial than probative because even if the results are not made known to the jury, the fact that Gaudreault took a polygraph and the case continued indicates the results. 6529 – severance arguments do not have merit at this point. Leave to re-cross is denied – these things can be addressed in the defence’s own case.

Submissions by Dandyk regarding Crown counsel being able to speak with Lamarche about the rulings during re-examination.

6531 – 6535


Submissions by Dandyk 6543

Discussion with counsel clarifying rulings with respect to Sauve’s record

6544 – 6549 6548 – the fairer thing to do is to put out what the charge was, put out what the conviction was for and let it rest there.

Re-examination by Bair, cont. 6550 - 6573 6561 – Objection by Mulligan about what Crispin said about the accused and Giroux – Bair wanted them to be connected.

6573 – Question is appropriate the way it was asked “without telling us precisely what he said, did Mr. Crispin ever give you any information concerning the accused and Mr. Giroux?.”

Re-examination by Bair, cont. 6574 – 6581 6576 – Objection by Mulligan about information re Detective Paul Henry, who could be present to testify.

We will wait for the transcript to decide this one.

57

19/1/99

6582 – Objection about Paul Henry’s evidence cont.

6585 – This is a discrete topic – let’s leave it for now and we can go back and review the evidence.

Submissions by Mulligan and Bair on the issue of Amy, the confidential informant the

6582 – 6595 6595 – McWilliam is satisfied that the areas that the Crown wants to cover are



defence isn’t entitled to know the identity of; Lamarche’s use of Riddell’s notes of interviews she was present for [Harkness and Henry] (where her notes are more favourable to the defence)

appropriate.

Address by McWilliam to the Jury about hearsay evidence – it cannot be used for proof of its truth

6596 – 6597

Re-examination of Lamarche by Bair, cont. 6597 - 6615 6605 – Objection by Mulligan about Bair’s question regarding whether or not the jury has all the information that points away from Mr. Dunbar and towards Stewart, Mallory, Trudel and Sauve.

6610 – Go into the specifics of what is not admissible – a list of the witnesses i.e. Metrakos, Bard, Chapman, Jack Trudel, Emmerson – and that they are not being called and that is why it is inadmissible

6614 – Objection by Morris about whether McKechnie cross-examined about Dunbar

6615 – McWilliam is not going to bother straightening that one out with the jury given everything else that is going on

Re-examination by Bair, cont. 6616 – 6655 6652 – Objection by Mulligan – Bair is mischaracterizing what was asked regarding Mr. Declare so his whole statement need not be read. Also, this infringes on the areas of prior consistent statement of Mr. Declare – he will be here.

6654 – We’ll figure it out with the transcript and drop this at the moment.

6675 – transcripts have been reviewed – corroboration at large is what is at issue and there are mentions of January 8th and January 16th and that is sufficient foothold to go on to ask what happened on those dates.

Re-examination by Bair, cont. 6656 – 6668 6663 – Objection by Mulligan – police

6668 – Leave the wiretap for now and argue it – if it goes in, it goes in – but to mention it



information and intelligence about Stewart and Vanasse are more prejudicial than probative. Mulligan has no information about these memos that Bair is relying on. Mulligan raises the issue of whether Lamarche can testify about the wiretap where Stewart says he’s the best hit man in town and whether it’s admissible and whether its probative vs. prejudicial.

now would invite speculation.

Submissions by Counsel on the issue of Jamie Declare’s statements

6668 – 6675 6675 – transcripts have been reviewed – corroboration at large is what is at issue and there are mentions of January 8th and January 16th and that is sufficient foothold to go on to ask what happened on those dates.

6675 – Mulligan raises the issue of the materials that the Crown is seeking to rely upon to show Stewart’s disposition for mass murders including Sauve’s prior conviction, Amy, Paul Henry, Riddell’s notes from January 26th, 1990, Kevin Trudeau May 92, Harkness February 6th, 1990,

6676 – Motion for mistrial denied – no need for submissions. McWilliam will take under advisement the question of whether or not he should say something to the jury with respect to all of this material and how it should be phrased.

The basic difference with the records is that the records are part of the history of the accused whereas these other things came in as tips from the Ottawa police and memos and so on and have that kind of standing in the jury’s mind.



Riddell’s notes, Brennan page 97 – these materials go to the area that the ruling indicated they should stay away from. At this point, Mulligan feels she is in a position to ask for a mistrial since it’s highly prejudicial.

Re-examination of Lamarche by Bair, cont. 6678 – 6723

Discussion about editing out information from certain witnesses including Metrakos, Bard and Trudel. Discussion about how to deal with re-examination topics and the notice Lamarche and the defence should/could be given about these topics.

6724 – 6731

58

20/1/99

Submissions by Mulligan about Metrakos and using Lamarche to deliver his evidence thereby causing Mulligan to call Metrakos as a witness in order to make a full answer.

6732 – 6737

Re-examination by Bair cont. 6738 – 6741 6742 – Objection by Mulligan about hearing about Sigouin’s visit to Trudel after his arrest – one of his versions is too prejudicial and not probative – all versions must be put in or the one is misleading. Sigouin is going to be called and that is the time to deal with this. Bair responds that Mulligan’s cross dwelt on Sigouin for some

6748 – This goes to the witness’ state of mind as to what she thought from the information that she had and it goes only to that. It is relevant.



time. He can be cross-examined when he is called.

Re-examination by Bair, cont. 6750 – 6767 6768 – Discussion about how far the scene was from Stewart’s place according to Gaudreault.

6773 – Bair agrees not to pursue this line of questioning.

Re-examination by Bair, cont. 6774 – 6785 6786 – Objection by Mulligan about questions regarding Stewart’s statement to Jesty and Baker about the size of the debt. This is a statement out of Stewart’s mouth and to let it go in this way is highly prejudicial and for a non-probative purpose.

[There is no ruling, but questioning re-commences and Bair asks Lamarche for Officer Baker’s recitation of the information Stewart gave him concerning the debt, which is answered – that Stewart said he would not kill a pregnant women who owed him $120,000 for drugs – you can’t collect from a dead person.]

Re-examination by Bair, cont. 6795 – 6803 6804 – Objection by Mulligan about Lamarche’s comment that “we can’t call a witness who’s lying, who lies” and the inference to be drawn by the jury when putting the polygraph comments together with respect to Gaudreault. Instruction requested that it is improper for any counsel to knowingly call a witness to give false or perjured testimony as well as

6814 – A limiting instruction isn’t necessary now. McWilliam needs to consider whether at the end of the day in charging the jury the reference to the polygraph could be handled differently but to do it now would just highlight the whole thing.



some pointed direction so that the jury isn’t left with the impression that Larmarche is vouching for the witness. Morris agrees. Bair feels Lamarche’s answer is accurate in law, and no mention was made of the polygraph so no limiting direction is necessary.

6815 – Discussion about Chapman – Chapman’s wife complained to the police about her husband’s drug dealing friends – and she’s still alive (the premise being that Gaudreault testified that if you went to the police on Mr. Stewart, you were cooked, and here is Mrs. Chapman who did just that and is still alive). Apparently Stewart found out that she’d gone to the police and told Randy to have her shut up. In addition, at some later stage Chapman is beaten up by Stewart, Vanasse and John Hately and during that beating one of the three says “we could just dump him like the

6825 – Bair abandons the issue about “why don’t we dump him like the couple in Rockland” – we can deal with that another day.

6827 – McWilliam allows the part about the reaction to Lynn Chapman going to the police, namely that Stewart told Chapman, according to Chapman, to shut her up or they’d shut her up.



couple in Rockland”. Mrs. Chapman may have been “that bitch from Cumberland” or the Chapmans may have been the couple that Jamie Declare was having trouble with.

Re-examination by Bair, cont. 6829 – 6838

Renewed motion for re-cross-examination made by Mulligan now that re-examination is complete. Specifically the right to cross-examination on Emmerson, Trudel, Claude Bard, George Metrakos, Michael Winn and Ken Herman – the Crown won’t be calling them as witnesses and we don’t know how these witnesses impacted Lamarche’s state of mind. In addition, certain matters require clarification – for example how Lamarche’s notes differed from Riddell’s, and where some of her information came from (which wasn’t stated). Information about the Den. Speaking again to Linda Beland who had received legal advice not to speak with her. Information Lamarche had from Lynn Chapman contrary to John Chapman’s information. John Harkness’ phone number…

Submissions by Crystal (law), McKechnie, Bair and Dandyk (law)

6839 - 6878 6879 – Ruling on the application by the Defence to re-cross-examine Lamarche. Motion denied. Both the Crown and the Defence have cherry picked the issues each side felt best illustrated the officer’s state of mind. Both sides had their run and parts were presented that showed Lamarche was reasonable, and unreasonable and the jury has to make up its mind. To allow re-cross-examination at this juncture would change this issue into a trial.

59

21/1/99

Brief address to the jury by McWilliam about Lamarche’s evidence

6883 – 6884



ROBIN YVES THERIAULTExamination-in-chief by Dandyk

6885 – 6918 Expert in firearms and toolmark examination

Cross-examination by Morris 6918 – 6933

Cross-examination by Mulligan 6934 – 6978

Re-examination by Dandyk 6978 – 6989

60

McWilliam discuses evidence of Lamarche with jury. Provides them with written material.

6992-6996

MICHAEL LEFEBVRE SWORNExamination-in-chief by Mr. Dandyk 6997-6998

no questions by any other counsel

MISSING PAGES: 6998-7002

JAMES MacWHAExamination-in-chief by Dandyk

(presumably from 5999) 7003-7031

cross-examination by Mr. Morris 7032-7041

Cross-examination by Mr. Crystal 7041-7086

Re-examination by Dandyk 7086-7091



7091-7094 In absence of Jury Mulligan raises lack of disclosure issue. Defence filled application for disclosure of John Kelsalls notes (witness protection officer), Sergeant Moshers notes, further disclosure of Angie Howes notes. Came in up during Geaudreault testimony. Without disclosure doesn’t know what kind of remedies to ask for.

Crown will try to produce as soon as possible. After they have been reviewed defence can determine if further remedies need to be requested.

61 7095-7099 Witness who had previously testified has died. Defence wants to edit some of previous proceedings. (voir dire on car and at previous trial)

7099 Dandyk responds that he only wants to put trial matters in.

7100 Cooper continues that editing not necessary so long as they don’t refer to fact there was another trial. No prejudice this way. Simply refer to “other proceeding’ jury knows there were many other proceedings, prelim for example



7101 Mulligan responds that crown must be careful about referring to the dates as the jury knows the dates of the preliminary.

7101-06 Cooper still says there is no reason for the editing

Counsel agree to adjourn and edit it together.

PREVIOUS TESTIMONY OF MR. J. MENEAR READ IN 7107-7156

7157 Mulligan does not want the names of lawyers and who they are counsel for to be read as part of the evidence. Reveals to much to jurty

7158 Crown Dandyk agrees to stop reading at this point anyway

7159 All counsel agree they will simply state that there was admission that witness did “in court ID” of Stewart and Mallory. These facts are told the jury and that they are to take it as evidence from mouth of witness

EVIDENCE OF ROGER DIONExamination-in-chief by Dandyk

7161-7164

x-exam by Mulligan 7164-7165

Re-exam by Dandyk 7165

EVIDENCE OF CONSTABLE ANTHONY COSTANTINI 7166-7171



In-chief by Dandyk

7171-7172 Objection by Mulligan that witness is giving hearsay evidence

Crown will re-phrase question

In-chief will continue 7172-7178


Re-exam by Dandyk 7188

7188 Objection by Mulligan that Dandyk is trying to lead hearsay in relation to what was said about a Stewarts car on a night in a bar.

Court says can’t ask those questions

Re-exam resumes 7189-7191

EVIDENCE OF SERGEANT MICHAEL CALLAGHANIn-chief by Dandyk 7192-7193


Re-exam by Dandyk 7195-7196

EVIDENCE OF OFFICER SCOTT FITZGERALDIn-chief by Dandyk

7197-7204

7204-7206 Mulligan specifically says not motion, but wants to raise issue of late disclosure again

62 In-chief of Fitzgerald to continue 7207-7215



x-exam by Crystal 7215-7217

7217 Mulligan objects to Dandyk referring to “previous trial”

7217 Dandyk apologizes, says it was honest mistake

Court says he will deal with it as counsel wants but suggests you just let it go. Mulligan agrees

7217-7220 Further objection form Mulligan that Dandyk should not interrupt and try to put words in witness mouth.

Dandyk says won’t do it again

x-exam of crystal continues 7221-7231


7234 Objection form Cyrstal about putting a statement taken by Officer Riddell from Mr. Erskine to the witness to refresh memory. It is hearsay.

7234 Mulligan agrees.

7236-7240 Cooper says it is not to refresh memory to address issue of whether officer made mistake several years ago. This possibility was raised in cross, and he is trying to neutralize this, exactly what re-exam is for.

Court says it goes to state of mind and will allow limited questioning



Re-exam continues by Dandyk 7241-

EVIDENCE OF WILLIAM JAMES MACKAYIn-chief by Dandyk

7242-7248



EVIDENCE OF SERGEANT KEITH ERIC PATRICKIn-chief by Dandyk

7259-7265

EVIDENCE OF SERGEANT DAVID TURNBULLIn-chief by Dandyk

7266-7268

EVIDENCE OF STEPHEN HOWARDIn-chief by Dandyk

7268-7280



7286-88 Mulligan and Morris do not think it is a proper re-exam. Says that Dandyk already asked his questions about this topic and the x-exam does not give rise to his re-exam questions.

Judge allows the line of questioning

Re-exam by Dandyk continues 7289-7291

Mulligan and Morris both have one 7291



question for the witness

Dandyk with a few more questions 7291—93

EVIDENCE OF MIKE MCFADDENIn-chief by Bair

7294-7365

63 In-chief continues by Bair 7366-7370


7387-7394 Objection by Blair. Mulligan putting as a fact that the cheque he would know who tried to cash the bounced cheque.

Judge agrees with Crown after counsel and judge review the prelim transcripts as to what the witness knew then.

x-exam by Mulligan continues 7395-7420

7420 Blair has a hearsay objection

Court corrects Mulligan


7434-7436 Objection from Blair. Mulligan asked witness “do you recall telling” which suggests that he did, yet witness does not recollect so Blair wants question formed as “did you tell”

Mulligan says in cross she can attempt to have witness adopt statements that other people claim he made.

McWilliam agrees with Mulligan

x-exam continues by Mulligan 7437-7467



7468-69 Blair objects- same as earlier, that Mulligan is forming the question as to make a previous statement by Officer Fortier the evidence of this witness.

Problem is it is unclear where the statement came from. It is in Riddells writing.

Court wants Mulligan to be careful. Says “I am sure you will work it out” breaks for lunch


Re-exam by Bair 7482-7487

7487-7522 Jury and witness retire as Blair wants to ask the Court about polygraph test. Also wants to be able to question witness in order to rebut the implications in cross examination that the essence of McFaddens evidence is fabricated. As to question of polygrpah witness admitted to stolen stereo in a polygraph and for this reason turned it in. Blair wants to question him about that. Dandyk makes caselaw submissions.

Issue is did Mulligan somehow open this door in her cross-exam

McWilliam reserves his judgement on this objection until next day and wants to continue with this witness where possible without going to this issue or else hear another witness



Re-exam of by Bair continues 7523-7528

EVIDENCE OF MARGARET TREMBLAYIn-chief by Dandyk

7529-7536

ADMITTED EVIDENCE READ IN 7536-38

7539-7544 Mulligan wants to add to polygraph argument

64 7545-7558 Ruling on the objections of previous day: McWilliam reviews the evidence given in-chief and cross by the witness in order to be able to determine how the re-exam should be dealt with.

One first issue: CROWN WILL BE ALLOWED TO ADDUCE EVIDENCE it considers consistent with what witness said in-chief

As to polygraph: ALLOWING POLYGRPAH TEST TO BE ELICITED BEFORE JURY IS MORE PREJUDICIAL THEN PROBATIVE

EVIDENCE OF DIANNE JONESIn-chief by Dandyk

7559-7567



7575-7580 VOIR-DIRE OF MCFADDEN ON STATEMENT GIVEN DURING THE POLYGRAPH. McFadden takes the stand in the absence of



the jury

Crown Blair questions him on what he remembers of the polygraph

7580-82 Mulligan makes submissions

7582 McWilliam will allow limited questioning in regard to the witness turning in the stereo but Crown can not make mention of fact that witness took a polygraph

MCFADDEN RE-TAKES STANDRe-exam continues by Blair

7583-7588

7589 Crown wants to have a seriously ill witness have her evidence read in under s.715

Defence opposes- or at very least call a doctor to so defence can examine the issue. Crown proposes calling a police officer.

Judge decides to hear the officer in absence of jury

EVIDENCE OF OFFICER RICHARD WILLIAM RIDDELLIn-chief by Dandyk

7590-7594


7598-7610 Submissions with respect to this question.

They will have to hear from the doctor. First the doctor will talk to defence counsel, and if defence counsel is satisfied then that will be it. If not then the doctor will have to take the stand and McWilliam will have to decide the ultimate issue



7610-7618 Mulligan moves for a mistrial. Her position was that Crown did not follow agreement in relation to McFadden re-examination. She says the crown did mention the polygraph

7619-7620 McWilliams takes position that it was inadvertent and that only very few people could have heard it, as several court staff did not hear crown say the word “test”. They file some material as a lettered exhibit.

65 EVIDENCE OF BLACK KNOXIn-chief by Bair

7621-7685



Objection by Mulligan. Issue of what Crown hopes to elicit in relation to the evidence of DAN CHARBONNEAU. It has to when certain conversations took place between himself and Charron, and himself and McFadden. Defence wants Crown to call Charron instead (or maybe first- ahead of Charbonneau)

Crown submits that

McWilliams rules that Crown can do exactly as crown proposes.



Charron is available to them in the defence case if they want.

66 VOIR DIRE IN ABSENCE OF JURY TO DETERMINE WHETHER SICK WITNESS CAN GIVE EVIDENCE BY WAY OF S.715

EVIDENCE OF DR. RONALD DANSEREAUIn-chief by Dandyk

7746-7750



Submissions by Dandyk 7759

Submissions by Mulligan 7760-61

7762 Ruling: McWilliam adopts the submissions of the crown seriatim. Charbonneau will testify next

EVIDENCE OF DANIEL CHARBONNEAUIn-chief by Bair

7763-7803



TESTIMONY OF CATHERINE MINOGUE READ IN BY CROWN 7836-7850

7850-56 Mulligan still has problem with how Dandyk reads evidence to the jury. She does not want him to use previous counsel’s names as it may

McWilliam rules in favour of Mulligan and says to keep previous counsel’s names out of the evidence as it is read in.



indicate to the jury there has been a previous trial.

Dandyk does not want to have to change the evidence at all.

Resume evidence of C. Minogue 7857-7868

EVIDENCE OF DAVID DECLAREIn-chief by Cooper

7869-7923

67 In-chief by Cooper 7923-27

7927-7933 Mulligan objects to certain hearsay evidence regarding a man named “Kenny” telling the witness that there was a hit out on Stewart.

7933-34 McWilliam rules in favour of Crown. It is relevant to Stewarts state of mind with respect to his business at this time. He will warn jury it can not be used as proof of the truth that there w3as in fact a threat on Stewarts life

D. Declare in-chief continues with Cooper 7935-7990

7991-8013 Mulligan objects. Crown wants to lead evidence of what Stewarts dad (Stewart Sr.) said to witness about Denis Gaudreault. Mulligan submits it is hearsay



and massively prejudicial. This is first time witness gives this evidence- did not at prelim or previous trial.

8014-8021 McWilliam rules in favour of defence. Crown will not be able to lead new explanation of who told the witness to keep his mouth shut. To prejudicial to accused.

McWilliams clarifies where counsel can go with respect to this witness. McWilliams warns witness not to volunteer any information about Stewart Sr.

Evidence of Declare continues in- chief with Cooper 8022-8023

x-exam by McKechnie 8023-8067

68 x-exam by Mulligan begins 8068-8081

8082-8086 Cooper objects to how some notes are used. Witness did not make the notes, notes can only be used to refresh memory. Witnesses memory can not be refreshed so this is forbidden questioning.

Mulligan says that the witness reviewed these officer notes before giving evidence in-chief and therefore she is allowed to cross-examine on them.

8086 McWilliam says that defence can use the



notes in cross to show that the witness in fact had no memory of certain thing during previous testimony and it is only through the use of the notes on this occasion that he has been able to fill in some gaps in his testimony

8086-92 Further concern of Mulligan that she will not be able to use the times the officer records in his notes.

McWilliam says see where we go on this as the questioning proceeds.

x-exam of Declare continues by Mulligan 8092-8097

8097-8106 Cooper wants to edit some of the notes

McWilliam allows the use of the notes by defence as she wants to use them, Judge will warn jury regarding the notes

X-exam by Mulligan of Declare continues 8107-8125

8125-8131 Cooper objects because Mulligan wants to ask questions that witness has never before faced, in any of the other proceedings or in this trial.

McWilliam will allow the questions- Mulligan simply has to state that he has never before been asked about his area in ‘any other previous proceedings’

x-exam of Declare by Mulligan continues 8132-8157

69 8158-8192 There is an issue raised by the Crown that juror 12’s daughter was told by a handyman in her home that as her mom should be careful if she is a juror on a murder trial as those guys have a long reach. There is no allegation that this



treat came from any of the accused. Police already investigated the handyman and found no connection to him and the accused. Problem is that now all the jurors know something of this event. What to do to ensure fair trial. Defence counsel wants court to make individual inquires of each juror

Submissions on how to question jurors as to what they know of this type of threat, have any of these jurors suffered prejudice, how to proceed with this jury.

8193-96 McWilliams will not question each juror individually, but will give the whole jury a warning about what happened. Will tell the jury that the accused had nothing to do with this, and the handyman has watched to many bad movies. Will tell them that no juror that he knows of in Canadian history has ever been harmed. Will tell them if they still feel like they can not proceed then they can approach him.

8197-8200 McWilliams warns jury


8223-8228 Objection by Cooper as to defence use of a photo line up exhibit

McWiliam says that Mulligan can use the photo line-up as it was filed by Crown and crown was able to use it.



that the crown initially filed. Nasty submissions back and forth between Mulligan and Cooper.

x-exam continues by Mulligan 8229-8299

70 x-exam by Mulligan continues 8300-8343

8344-8350 Judge raises concern of how jury will interpret evidence that at one point this gave a statement while under hypnosis. Everybody agrees that jury must be warned that people can still lie while under hypnosis

x-exam by of Declare by Mulligan continues 8351-8353

Re-exam of Declare by Cooper 8353-8361

8362-8369 Mulligan objects because Cooper incorrectly quoted Mulligan as suggesting the witness reviewed material over the weekend in preparation for further testimony.

McWilliams wants to stay away from discussion of counsel conduct. He understands both defence and crown position. He believes that they can get it all out by sticking to issue of whether the witness is telling the truth or not and questions should be limited to that area. Ask witness ‘did we tell you X or Y’ do not insert himself into questions

Re-exam by Cooper of Declare continues 8370-8375

8376-8390 Objection by Mulligan. She says witness is still trying to get in his conversation with Stewart Sr. through other line of questioning that Crown is pursuing.



8391-8394 McWilliams says that now that the jury has heard about the phone call between Stewart Sr. and Declare he is going to give it all to them with the appropriate warning as to how to use the conversation. It is all he can do.


8407-8412 Mulligan objects again to references to the notes and whether the witness is refreshing his memory or using them for other purposes- how the questioning about the notes proceeds

Cooper agrees to try to straighten it up in way that will satisfy Mulligan


EVIDENCE OF RHONDA NELSONIn-chief by Bair

8419-8459

71 In-chief of Nelson continues by Bair 8460-8568

8569-71 Mulligan wants McWilliam to warn jury that it doesn’t matter if Ms. Nelson (Gaudreaults girl friend) does believe Gaudreaults version of events.

x-exam by McKchnie 8472-8594

8595-6 Objection by Bair- McKchnie is breaking is putting as previous transcript to the witness in

McKchnie will read the whole paragraph and then he can suggest whatever he wants



such a way as to break up the evidence and leave the jury with the wrong impression of what was really being said.

x-exam by McKchnie continues 8597-8629

72 x-exam by McKchnie continues 8630-8638



8823-28 Objection by Mulligan to Crown request for adjournment to prepare a witness.

They will check with Cooper to see if he is prepared to lead the witness later in the day. For now move to the next witness

EVIDENCE OF DAVID MURDOCHIn-chief by Dandyk

8829-8859

8860-62 Objection by Morris is that Crown is taking witness outside of expertise- witness is a climatologist and not a footprint impressions expert.

McWilliam has some reservations about footprints and will allow Crown counsel to lay a foundation but to limit the questioning.

In-chief by Dandyk continues 8863-8866

x-exam by Mr. Morris 8866-8871



8878-8884 Submissions on the Crown adjournment request

McWilliam reluctantly adjourns



74 EVIDENCE OF GARRETT NELSON Mulligan makes submissions on how Crown can lead evidence of what Nelson was told by his wife about an execution being ordered from Montreal.

McWilliam will allow the evidence to be lead as the Crown wants BUT they must omit any reference to Mr. Stewart- simply that the witnesses wife told him something, it goes to the witness state of mind and what the witness did as a result

In-chief by of Nelson by Cooper begins 8899-8955

8955-8959 Objection by Mulligan that Cooper keeps asking the same question and that it clearly is a form of leading- he is not happy with the answer he is getting.

8959-60 McWilliam wants the witnesses memory to be refreshed one more time, if he still is not saying what they are arguing about, then they can have a voir dire to determine if Crown can lead the evidence in anyway.

In-chief of Nelson by Dandyk continues 8961-9014

x-exam by Mulligan begins 9014-9038


9065-9073 Objection by Cooper that Mulligan is not putting a prior statement and transcript of the witness to him properly. There was some confusion when the last time the witness testified, and Mulligan is not clearing it up appropriately. Has to do

McWilliam is of the opinion that witness is probably confused as to what was said and that Mulligan should clear it up for witness and jury.



with the witnesses memory of the chronology of statements he gave to the police.


9082-9089 Cooper objects- he has read ahead in the statement Mulligan is putting to witness. It is a previous cross-examination and Cooper says there are no corresponding questions and it seems Mulligan is reading it for the sake of reading it.

9090 McWilliam says that Mulligan can ask him about what he previously said but can not ask point-blank what is the witnesses opinion as to what motivated the accused.

9090-9100 Before jury comes back same objection to the next series of questions and answers in the transcript.

Same ruling- can put what he said, and what witness says he was told to the witness. Stay away from opinion stuff.

x-exam by Mulligan resumes 9101-9139

9140-9148 Cooper objects to how previously given evidence is being put to the witness- not in its entirety, in chunks, with Mulligan omitting the parts she wants to omit.

McWilliam rules for defence. They can question on any discrete point that defence wants and does not have to read every statement in its entirety to witness. If there is context to give witness to be fair to witness, then do that.





9260-62 Submissions on who is the next witness. Not opposed to breaking early after this witness, get next witness ready and Mulligan is sick anyway

Re-exam of Nelson by Cooper 9262-9265

9266-9270 Objection by Mulligan that Cooper is re-examining on issue that was thoroughly canvassed in-chief. Not proper.

McWilliam says that Cooper can ask the questions.

Re-exam of Nelson by Cooper continues 9271-9272

77 9273-9284 Mulligan objects that the crown proposes to lead hearsay with the next witness, Lois Davidson.

Will have voir dire on whether the proposed hearsay evidence meets the reliability and necessity.

In absence of jury will hear evidence of Detective Heather LamarcheIn-chief by Bair

9285-9287

e-exam by Mulligan

Submissions on whether to admit hearsay evidence. *(one of the witnesses is dead- Manon Bordeau)

9291-9330 McWilliam adopts the submissions of the Crown seriatim. The evidence will go in.

EVIDENCE OF LOIS DAVIDSONIn-chief by Bair

9332-9355

78 Entire volume is submissions in absence of jury



Mulligan received new disclosure for a witness Deana Declare (Mr. Declares mother) the night before Mrs. Declare was going to testify. Two issues- one was that the crown brought mrs. Declare up the list without much warning, result is that Mulligan is not fully ready to cross-examine, other is new disclosure gives raise to legal issues, admissibility issues, and she has not done adequate research in order to be able to argue the matter. Problem of oath-helping by allowing this new disclosure (which is 7 pages of police notes)

9360-9364

Cooper opposes the request for adjournment very strenuously. Doesn’t think defence even tried to prepare, Crown expended lots of money to have this witness here today.

9364-9377

Mulligan responds- making arguments as to why the officer notes should not be allowed in.

9377-9430

McKechnie makes submissions on why notes should not be allowed in. 9430-9431

Cooper makes submission on why to allow notes. 9431-9457

Bair makes submissions 9458-9465

Mulligan responds 9465-9479

McKechnie responds 9480-9481

Bair makes more submissions 9481-9484

Mulligan responds to the Bair response 9484-9486



79 9487- McWilliams rules on the various evidence:

Mrs. Declares assessments of her sons belief not reviewable in court

Detective Lamarches assessments of Jaime Declare- YES reviewable.

Mrs. Declares statements about a list Jaime prepared in 1990 will be allowed in

The use of the phrase “in Rockland” would have changed Mulligan’s cross-exam of a cop, issue can go to jury says McWilliams

Evidence of two threatening phone calls- admissible for state of mind of Jaime Declare , not truth of statements, jury will be warned to that effect

Submissions that all this is oath-helping and inadmissible- only the declaration that went from Gauderault to Declare, to Mrs Declare that Jaime might have been driver the night it happened had things been different- will go in, but only as state of mind and jury will be warned to this effect

EVIDENCE OF DEANNA DECLAREIn-chief by Cooper

9501-9521

9521-9525 Witness asks if she can say that Jaime told her “it was likely Robs [stewarts] father” who made various calls.

McWilliams will allow her to say that with a warning to the jury that it is clearly speculation.

In-chief continues by Cooper 9526-9528





9568-9570 Mulligan receives further disclosure over lunch, will try to incorporate into her cross, is not as of yet seeking a remedy


80 EVIDENCE OF LOIS DAVIDSONIn-chief continued by Bair

9685-9636

9636-9641 Objection by Mulligan

Davidson is giving opinion on how a cigarette butt would have gotten to a place. She is not expert she should not be giving any opinions.

McWilliams can says that counsel can ask what she does with her cigarette butts, but not her opinion of what she thinks of the cigarette butt in the picture

In-chief to continue by Bair 9642-9665

9666-9668 Objection by Mulligan on basis of relevant and probative value in regards to questions about Mr. Last.

Counsel consults and Bair agrees to go a different direction in her questioning

9669-9672 Problem with ordering transcripts of these proceedings

In-chief by Bair of Davidson continues 9673

x-exam by Morris 9673-9693



x-exam by Mulligan of Davidson 9693-9712

9712-9714 Bair objects- Mulligan is making an inaccurate characterization of what happened.

Mulligan reviews her material and admits she asked the wrong questino

x-exam by Mulligan of Davidson continues 9715-9720

Re-exam by Bair of Davidson 9720-9735

EVIDENCE OF CONSTABLE MARY COOKIn-chief by Bair

9735-9750

Submissions with respect to scheduling 9750-9754

81 In-chief of Cook continued by Bair 9755-9759

x-exam of Cook by Morris 9759-9760

x-exam of Cook by Mulligan 9760-9765

EVIDENCE OF SUSAN FLEMMINGIn-chief by Dandyk

9765-9772

x-exam of Flemming by Mulligan 9772-9774

There is an application by the Crown to introduce a number of items obtained in search executed by warrant of Trudels house.

Submissions on the probative vs. prejudicial effects and relevance of the evidence by Crystal

9774-9799



Submissions by McKechnie- wants Crown to outline relevance first and he will respond to that

9799

Submissions by Dandyk on relevance- stuff about character, bad character. All this relates to Gaudreaut

9799-9825

McWialliam wants to know if counsel thinks he should warn jury about Edelson at prelim suggesting Gaudreault did the killing, that is how G would know about this.

9826

82 Submissions by Dandyk on relevance and character continue 9827-9885

Submissions by McKechnie 9886-9892

Submissions by Crystal 9892-9926

Response by Dandyk 9928-9938

Rebuttal by McKechnie 9938-9943

Crystal wants to make one comment 9943-9945

9945-9947 McWilliams decides right there that everything will go in. whether it goes in for its truth or not is a separate issue, but it will go in as “being associated with the guns and they’re at the same time”. Will rule with the jury on whether it can go in for its truth or not.

With respect to the pictures: the pictures will not go in. McWilliam will permit the officer to say pictures were found, what it was of, where it was found, but NOT the picture itself.



83 McWilliam reads a further ruling in respect of what he decided the previous day.

Same stuff. The stuff associated with the sale of guns (receipts of purchase of shotguns, money counter, cash, receipt for sale of harley Davidson) GOES IN

Picture depicting Trudel and Sauve in 1930s gangster clothes and with Tommy Gun machine guns NOT IN.

EVIDENCE OF GWENDOLYN DEERINGIn-chief by Dandyk

NOTE THAT PAGES 9953/4 ARE MISSING

9953-9969




9982-9988 Objection by Mulligan first witness is asked to second guess actions of an officer witness has never met

Secondly Crown presumes ultimate issue that he jury has to decide.

Crown will not ask any further questions of the witness

EVIDENCE OF RICHARD GRAVELLEIn-chief by Bair

9989-10041

10041-47 Mulligan wants to discuss the potential for Gravelle to be getting into some



evidence where he will recount a conversation between Sylvie and Denis Gauderault that witness was not party to

Bair responds 10047-10050

10051 Evidence can be lead, as to timing, circumstances, but not for the truth.

In-chief of Gravelle continues by Bair 10053-10119

84 x-exam by McKechnie 10120-10127

x-exam by Crystal begins 10127-10128

10129-10132 Objection by Bair. Crystal is ask about a hearsay conversation between Jack Trudel and Denis Gauderault

Crystal must set up the foundation of the previous conversations very carefully, then see where they are going. Can’t ask the specific question right off

x-exam by Crystal continues 10133-10178

10178-10181 Objection by Bair. Misleading the jury and witness by to say “oh, so you do remember” as though the witness claimed he didn’t remember the conversation.

Crystal will rephrase the question and put transcript to witness properly



x-exam of Gravelle continued by Crystal 10182-10185

10185-10189 Objection by Bair. The transcript from the prelim is not clear, and as such the questioning is getting confused. Crystal phrased question as though there was contradiction, but Bair submits there was not.

Crystal will put the prelim transcript to witness and re-phrase the question.

McWilliam will explain to the jury the use of transcripts in a trial

X-exam by Cyrstal continues 10190-10215


85 Mulligan raises some concerns about what the next witness – officer Perron- has in his will-say statement. They discuss

10224-10229

EVIDENCE OF OFFICER PIERRE PERRONIn-chief by Bair

10231-10240





10246-1048 Objection by Mulligan. Bair going in re-examination where she said she would not in the previous objection

10249-10252 McWilliam rules in favour of Mulligan. Does not want to hear that evidence.

Re-exam by Bair continues 10252-10253

EVIDENCE OF DENIS SIGOUINIn-chief by Cooper 10254-10276

10276-10281 Objection by Mulligan. Hearsay.

Cooper will skip the area and move on. Even though McWilliam says it is relevant.

In-chief continues by cooper 10282-10300

10301- Objection by Mulligan. Going into another hearsay area. Has to do with Ty-Guy Trudel telling the witness that there was a statement of his :out on the street:

Submissions by counsel 10302-10312

10313-14 Evidence is relevant. Rules in favour of Crown. Will allow the evidence and will also give limiting instructions with respect to the use to be made of the evidence to jury.

In-chief of Sigouin continues by Cooper 10315-10328



10328-10337 Another discussion in absence of jury about hearsay evidence. Again Crown is arguing state-of mind exception.

Mulligan says that it amounts to evidence of after-the-fact conduct and sate of mind. Not admissible

McWilliam will give limiting instructions. (big surprise) all counsel agree this is best.

In-chief continues by Cooper 10337-10340



Re-exam by Cooper 10385-10392

86 EVIDENCE OF SYLVIE GRAVELLE

Immediately before testifying Gravelle has a break down. Says she can’t do it. Crown requests a publication ban in respect of her name and that the courtroom is closed during her testimony.

10393-10409 McWilliam will order a ban on the publication of witnesses name.

Will not order the courtroom closed. There was a class of students who b/c of the adjournment have left. Mcwilliams thinks that will suffice.

In-chief of S. Gravelle by Bair 10411-10491

10492-10513 Some issue as to the translation of some of what the witness had previously said in French and has been translated by a court translator.

Some changes are R. v. Robert Stewart

100.


made by the witness, Mulligans student goes through some of it,

87 10514-10569 More about the changes being made and issues with the French to English translations that have occurred over the years

10569-10570 Gravelle is the best source of the evidence. The best evidence is her explaination of what she said in French. Crown will tell the jury what Gravelle did, how she reviewed the translation by another and what if any changes she made.

10570-10581 Mulligan now raises issue that if French tape is played for the jury Accused need a court interpreter.

Crown submits that this will ruin the affect of the speed and tone of the conversation, which is important evidence itself.

10581-83 Accused will get their own interpretation so that they understand. Counsel will have to follow along as best as possible.

In-chief by Cooper of S. Gravelle continues 10588-10640

88 x-exam by McKechnie begins 10642-10653


R. v. Robert Stewart

101.


10707-10710 Issue going into questioning that will involve where witness lived and lives

McWilliam will allow

x-exam by mulligan continues 10711-10733

Re-exam of Gravelle by Bair 10733-34

10734-10737 Objection by Mulligan. Bair is going into hearsay that was not opened in cross.

10737-38 McWilliams thinks evidence is appropriate. Subject is broad enough, there is enough relevance.

Re-exam of Gravelle by Bair continues 10739-10758

89 Submissions. Crown changed witness list and as such defence not ready to deal with “the Miller legal arguments” today.

10759-10773

EVIDENCE OF WILLIAM MAJORIn-chief by Cooper 10775-10787

10788-9 Mulligan objects. Hearsay.

Not for truth.

In-chief continues 10790-10798





102.


Cooper gives supplementary material for the legal arguments tomorrow. 10812-10814

89 Crown outlines the rest of their case and which witnesses will be called and which they are eliminating from their list.

10815-10820

Crystal Submissions

Now counsel will make submissions on Sergeant Glenn Millers evidence. Miller was an undercover officer who was targeting Stewart back in 1990. he testified in 1996. problem for Crystal is that Crown intends Miller to a sort of hybrid witness- expert and non-expert. This is dangerous type of witness.

10820-10897

Submissions by Dandyk 10898-10927

91 No reply.

10928 McWilliam rules that the witness Millers evidence will be admissible. Wants the Crown to as best as possible separate opinion evidence from factual material.

Miller will need time to review some video and audio tapes 10928-10931

Witness after Miller may need interpreter 10931-35

EVIDENCE OF GLENN MILLERQualification as expert by Dandyk 10935-10941

10942-44 Crystal objects. Relevance of asking the witness about having entered jails undercover as part of his expert qualification

McWilliams thinks it is relevant


103.


Qualification continues by Dandyk 10946-10955

x-exam by Cyrstal 10955-10960


Submissions on whether Milller is an expert. 10961-63

10964 McWilliam will qualify Miller as an expert in the areas the Crown is seeking. Will warn jury about how Miller is both regular and expert witness.

In-chief of Miller by Dandyk 10965-10973

10973-76 Crystal objects. Phrasing of question is blurring witnesses two roles

10977 Develop facts first, then ask witness his opinion on them

In-chief of Miller by Dandyk continues 10978-10987

10987 Objection by Crystal. Hearsay. Witness going to say Levesque told him that if he wanted larger amounts of cocaine he had to ask Stewart.

Submissions 10987-995

10995 Admissible.


11023 Objection by Mulligan.


104.


Leading inflammatory evidence about Stewart and his son.

Submissions 11023-11031

92 Decide to proceed with Aliette Gaudreault as she and her interpreter were present on this day.

EVIDENCE OF ALIETTE GAUDREAULTIn-chief by Cooper 11034-11049

11049-11056 Objection by Mulligan as to relevance of family illnesses.

11057 McWilliams rules it is admissible

In-chief continues 11059-11062

x-exam by McKechnie of A. Gaudreault 11062-11069

x-exam b Mulligan of A Gaudreault 11069-11079

11079-11085 Mulligan wants to be able to put to witness a comment she made to an officer that is in his notes that witness now denies making. Cooper opposes

11085 They will refresh witnesses memory in the absence jury, and if refreshed then will do so in front of jury

A. Gaudreault resumes stand in absence of jury to be examined by Mulligan 11086-11088 (she remembers that

conversation now)

X-exam of A. Gaudreault by Mulligan resumes in presence of jury `11089-11097


105.


Re-exam of A. Gaudreault by Cooper 11097-11098

Discussion as to timing 11099-11103

EVIDENCE OF SERGEANT MILLER RESMUESIn-chief by Dandyk

11104-11134

11135 Objection by Mulligan as to how wiretap evidence is being read in. leads to bits of conversations going in that are taken out of context.

Counsel discuss of the record


Discussion as to the next witness. Who defence must prepare for- Chapman (who has legal argument) or Linda Beland

11143-11148

93 More argument about scheduling 11149-11156


11165-11178 Mulligan objects as to relevance of some bad character evidence- various characters, Denis Roy, Claude Meunier, and Stewart

Dandyk responds to Mulligan submissions 11178-11181

Mulligan responds 11181-11186

11187 McWilliam rules it is admissible through the


106.


principled analysis

In-chief of Miller by Dandyk contiues 11189-11213

11214-11218 Mulligan objects to relevance of a story that Stewart tells Miller and stewart heard from Roy.

McWilliams rules relevant on basis of issue of what Gaudreault spoke about.

In-chief continues by Dandyk 11219-11220

11220-11222 Objection by Morris. Crown is using “Mallory” but there is only reference to “rick”

In-chief continues by Dandyk 11224-11233

11233-34 Objection by Mulligan. Witness cant say “rats” are truthful

Danydk agrees. Will leave it alone


x-exam by Morris 11137



Re-exam by Miller 11297-11307

11307-11313 Mulligan objects as to how line of questioning arises out of cross.

11314 Crowns re-exam is appropriate


107.


Re-exam continues 11317-11333

11333-36 Mulligan objects as to this arose out of x-exam

11337 Appropriate and relevant re-exam


11342-45 Mulligan objects to question by Crown. Question framed more as a closing argument.

McWilliam rules for Mulligan (first time???) Inappropriate question.


Discussion about scheduling 11350-11356

95 Submissions in absence of jury

Fresh disclosure on Beland reveals that crown may try to bring in hearsay evidence of Jaime Declare. Mulligan says can’t do it- Declare was here and nobody asked him about these conversations.

11357-11382

111382-84 McWilliam says most of it can go in.

But then there is a further discussion. Mulligan argues some more 11385-11396

EVIDENCE OF LINDA BELANDIn-chief by Bair 11396-11409

11409-11446 Objection by Mulligan as to relevance of marital history and Stewarts reaction to divorce request.


108.


11447-50 McWilliam adopts position of crown as to this matter.

Beland in-chief continues by Bair 11450-11472

11472-11481 Objection by Mulligan. Evidence about he children.

11481 McWillam says can ask Beland did she want to know where the children where and proceed from that point.

In-chief of Beland by Bair continues 11483-11490

96 Further submissions by Mulligan as to the previous objection. 11491-11496

11496 Mcwilliam rules for crown.

In-chief of Beland by Bair continues 11498—11538

11538-11543 Objection by McKechnie and Mulligan. Evidence of some statement alleged to made by Mallory to prejudicial.

11544 McWilliam says it is not evidence against Stewart, and it is not evidence against Mallory for the utterance. Agrees with Crown submissions that there is a connection and that there is relevance. Will instruct the jury

` In-chief of Beland by Bair continues 11545-11556


109.


11557-11558 Mulligan objects. Crown trying to bring in the evidence that Mulligan objects to coming from John Chapman through this witness. Mulligan wants to have argument as to whether this evidence is admissible before going to jury.

Bair agrees to only lead evidence that both counsel agree is relevant.

In-chief continued by Bair. 11559-11571

11572-11575 Mulligan objects to the continual mention by witness of getting beaten by Stewart. Mulligan feels it is getting overly prejudicial and there is only one beating of relevance to the trial.

McWilliam would rather have counsel explain to witness and have the evidence controlled that way. Does not want to have to admonish witness in front of jury of he can avoid it.

In-chief continued by Bair. 11576-11590

11590-11593 Issue of the 1991 and 1994 letters and what exactly will be going in. Court is set to adjourn for one week for the crown conference and judge


110.


wants counsel to meet over the week and reduce the contentious issues during that time.

97 11595-11631 Counsel still has issue with some of the letters. What can go to the jury and what can not. Arguing over whether passages in the letters are overly prejudicial or not.

97 11632-11711 Continue to argue law around the editing of statements, in this case the statements being letters.

11711-11721 McWilliam rules step by step what parts of each letter will be edited or not and what he finds relevant, what he does not find relevant and why.

In-chief of Beland continued by Bair 11722-11758

11758-11761 Objection by Mulligan to question of whether Stewart knew John Last.

Question can be asked

In-chief of Beland continued by Bair. 11762-11768

99 X-EXAM OF BELAND BY MULLIGAN 11769-11815

PAGES MISSING. FROM 11816-11825

11826-11830 PICKS UP IN THE MIDDLE OF


111.


SUBMISSIONS IN ABSENCE OF JURY REGARDING CONTRADICTING BELAND WITH PAST SWORN TESTIMONY

X-exam by Mulligan continues 11831-11874

11875-11881 Objection to how Mulligan is posing her questions that are meant to refresh the witnesses memory.

Mulligan agrees to rephrase the questions.

x-exam of Beland by Mulligan continues 11882-11885

x-exam by McKechnie of Beland begins 11885-????

MISSING PAGES 11886-11896

Re-exam by Bair has started by page 11896 11896-11897

11897-11902 Objection by Mulligan to question by Crown regarding who Beland was subpoenaed by on the last occasion and how much preparation and review she got on that occasion compared to this occasion.

11902 McWilliam says that it makes no difference who calls the witness. Bias is inherent in


112.


what the witness is saying.

Re-exam of Beland by Bair continues 11905-11917

11917- Bair stops to ask the judge whether he will allow some questioning the issues of: the pictures of the trip to Wonderland and whether the trip was a family vacation or whether Stewart was hiding out.

The conversation Beland had with the girlfriends of the other accused, does it go to state of mind.

And what Stewart told Beland about Michel Giroux and Manon Bourdeau before the arrest.

11925-27 McWilliam rules that the Wonderland issue is going to far and he doesn’t want to hear any more about the trip.

With respect to the issue of what Stewart might have told Beland about Giroux and Manon and the nature of Stewart/Beland relationship and whether Beland thinks Stewart would lie to her is to far also. McWilliams doesn’t want to hear any of that.

The conversations with the girlfriends of Sauve and Trudel- that can go in so long as there is a proximity in time between the statements and it is only good for state of mind.

100 Lengthy legal submissions regarding the evidence of the Crowns proposed next


113.


witness John Chapman.

11931-12038 Mulligan makes submissions on relevance, probative v. prejudice, trial fairness with respect to ID procedures engaged by police with Chapman, and issue of lost evidence.

12038-12054 Cooper makes submissions for Crown in response to the defence application. Cooper is making submissions with respect to facts.

101 12055-12079 Cooper submissions continue.

12079-12134 Dandyk makes submissions on the law on behalf of the Crown

NOTE THAT PAGES 12088-89 ARE MISSING

12134-12161 Mulligan makes her reply

102 12162-12175 Mulligan continues

12175-12180 McKechnie makes his submissions

12180-12183 Cooper replies for crown with respect to factual aspects.

12184-12195 Dandyk replies for crown with respect to legal issues

12196-12212 McWilliam rules on each discreet aspect of the proposed evidence of Chapman and whether it can be used.


114.


EVIDENCE OF JOHN CHAPMANIn-chief begins by Cooper

12215-12328

103 In-chief with Chapman by Cooper continues 1232912357-

x-exam by McKchnie 12357-?? NOTE PAGES 12362-12367 MISSING

12368-12378 IN THE MIDDLE OF SUBMISSIONS IN ABSENCE OF JURY.

Appears to be submissions on whether Mallory and Stewart are in a ‘common enterprise’

Voir dire in absence of jury with Chapman on the stand answering questions as to who he was referring to when he said “these guys”

12379

x-exam by McKechnie continued 12380-12385

12385-12399 Objection by Crown as to how McKechnie puts an oral statement reduced to writing by the witness to the witness

Chapman will be given an opportunity to review the statements- they were taken by a wiretap and are conversations the witness was party to.


x-exam by Mulligan begins 12406-12452

104 12453-12499 Objection by the Crown to the use of tapes that defence wants to use. It is tapes of the witness talking, but the witness

McWilliam acknowledges the loss of surprise to the defence but rules that this will proceed by way of voir dire and the witness will listen to the tapes and either acknowledge it is his voice or not.


115.


has not heard them, and they have not been verified. Crown alleging that this is ‘trial by ambush’ and that these tapes can not go in front of the jury at least until the witness has heard them first.

Defence submits that these tapes came right of crown disclosure and that it is fundamental to a cross-examination to be able to surprise a witness with the questions counsel asks, and that it makes no sense to allow the witness to prepare his answers for questions posed in cross-examination.

Voir dire with Chapman on the stand reviewing the tapes in question. 12500-12517

105 12518-12536 Mulligan makes an adjournment request to go through more tapes, Crown opposes. They argue at length about disclosure requirements and how long Mulligan had to make get these tapes and prepare herself.

12537 The cross-examination shall carry on. Mulligan can lay the foundation and can get the tapes in during the course of presenting the case for the defence.


116.


x-exam of Chapman by Mulligan continues 12542-12601


12629-12646 Objection by Crown. Mulligan wants to play other tape and crown objects because does not know whether this is a refresh of memory or whether it is a tape to be played.

12646 Same procedure as the previous time. The witness will be afforded the opportunity to hear the tape first.

x-exam by Mulligan continued 12651-12703

107 x-exam by Mulligan continued 12704-12732

Re-exam by Cooper begins 12732

12733-12758 Objection by Mulligan. Trying to lead hearsay that is very prejudicial

12758 Save for the issue of one anonymous phone call in 1995, McWilliam rules that the rest of the issues can be put to the witness with proper instructions and cautions.

Re-examination of Chapman by Cooper continued 12761-12818

108 Submissions by counsel on the legal principles regarding the wiretap evidence.

Crystal starts- making submissions on his position that the Crown must prove each voice and that this is not a matter of admissibility as much as weight, and the

12819-12913


117.


jury must have an evidentiary foundation on which to weigh the evidence

109 McKechnie makes submissions on the wiretaps. 12914-12922

Bair makes the reply for the Crown. 12922-12936

Dandyk continues the reply for the Crown 12936-13012

McKechnie makes a reply 13012-13014

Mulligan makes a reply 13014-13048

110 12049-13067 McWilliams rules on the wiretap evidence. In general terms he rules that many of the wiretaps contested by defence counsel are relevant to the issues at trial. McWilliams then goes through each intercept and indicates what, if anything will be edited.

111 McWilliam made a few errors in the edits to the wire tap evidence. Counsel and the court correct them before the jury comes in.

13068-13076

Submissions by counsel on the transcript of the Smallwood video that will be provided to the jury for them to follow along with as they view the video. As well there are seven hours of audio tape taken from the Smallwood bodypack, much of which is inaudible. The defence does not have the technology to listen to the material as it is on CD-ROM. Defence counsel has not been given adequate time to deal with the Smallwood evidence.

13076-13105

13106 They will first calling police officer who will explain how the intercepts work. They will then have a voir dire as to the admissibility


118.


by calling the officer who swore the affidavit to obtain the warrant

EVIDENCE OF OFFICER HEATHER LAMARCHEIn-chief by Dandyk`

13107-13130

13131 Objection by Mulligan. Officers purpose is to authenticate the tapes for the jury, but Crown is asking her to interpret the tapes. Classic hearsay. Crown says he will re-phrase his questions.

in-chief of Officer Lamarche continues with Dandyk 13133-13148

112 Defence filed three motions.

1. constitutional challenge to s.184.2

2. a Broyle/Hebert motion

3. and a s.7 motion

all regarding the Smallwood evidence.

13148-13160

VOIR DIRE.

EVIDENCE OF OFFICER ROBERT MULLIGAN (OPP)In-chief by Dandyk

13161-13165


x-exam of Officer Mulligan by McKechnie 13249-13272

113 SUBMISSIONS 13273-13288 Mulligan wants to have access to computer with her client and to go over the transcript of the

McWilliams rules that they will come back on July 5th, as that is the soonest date on which they can get some materials to go before the jury.


119.


Smallwood tapes.

There are issues about obtaining the background information on Smallwood from the States, and his role as an informer in the past.

VOIR DIRE on Smallwood evidence continues.EVIDENCE OF MICHEL CONNELLY from Department of ImmigrationIn-chief by Mulligan

13291-13317

x-exam by Dandyk 13317-13319

Re-exam by Mulligan 13319-13323

Legal Argument on this matter.Submissions by Defence- Mulligan starts

13323-13371

Submissions by Crystal 13371-13392

114 Crown makes application to re-call Officer Riddell as their position is the Defence has broadened the scope of the voir dire.

13393-13399

13399 McWilliams will wait to end to decide if he will hear Officer Riddell.

Submissions by Crystal resume 13400-13490

Mulligan makes submissions on the cases the crown filed. 13491-13509

115 Mulligans submissions continue. 13510-13543

Submissions by the Crown-Bair to start 13543-13569


120.


Submissions by the Crown- Dandyk to continue 13569-13615

Defence Reply: Mulligan will reply to Bair 13615-13638

116 Mulligan makes submissions on her constitutional motion re: constitutionality of 184.2

13639-13684

Morris adopts Mulligans position 13684

Crown replies to Mulligans motion: Dandyk 13684-13705

Mulligan replies 13705-13712

Court discusses scheduling 13713-13729

117 Submissions by counsel- moving on to the Defence Hebert/Broyles application. 13730-17368

Evidence of Michael Cyrstal (voir dire still- counsel for Stewart) to be cross examined on an affidavitx-exam by Cooper

13768-13794




118 Submissions by Mulligan continue 13852-13869


13929-13935 McWilliams gives an outline of his ruling. He adopts crown submissions with respect to Kutynec. Even if he found that Smallwood’s role was exactly as Mulligan described he would exercise his discretion


121.


under 24(2) to let the evidence in.

119 13936-13938 McWilliam reads his written ruling. To exclude the evidence of the interception in these circumstances would bring the administration of justice into disrepute.

120 Motion on how the cross-examination of Smallwood will proceed. The whole body-pack wire evidence or not. Crown would like to delete all the transcript except portion they intend to lead. Defence wants all of it.Submissions by Mulligan

13952-14037


Submissions by Cooper 14055-14073


121 Motion re: Smallwood cross-examination continuesSubmissions by Dandyk continued

14088-14102

Reply by McKechnie 14102-14110

Reply by Mulligan 14110-14152

122 Smallwood motion on hold. Out of town counsel for Constable Jesty motion. MOTION RE: INTERVENOR STATUS of the OPP Association on the Stinchcombe motion for Jesty’s records.



122.



Submissions by Mr. Nolan (behalf of OPP Association) 14156

Reply by Mulligan 14157

Submission by Dandyk 14157-61

14161 Intervenor status granted by McWilliam

Motion re: Disclosure- Stinchcombe or O’ConnorEVIDENCE OF INSPECTOR FRED HAMLINKIn-chief by Mulligan

14164-14175

x-exam by Dandyk 14175-14177

x-exam by Nolman 14177

Re-exam by Mulligan 14177-80



Submissions by Nolman 14247-14252


14252-53 McWilliam decides that the records are subject to a third party application and not Stinchcombe disclosure.

Motion re: disclosure of Cst. Jesty’s fileEVIDENCE OF OFFICER PENNY BARAGER

14254-14261


123.


In-chief by Mulligan

submissions by Mulligan 14261-14265


Submissions by Nolan 14266-68

14268 McWilliam will look at the Cst. Jesty’s file.

McWilliam recesses to read file

14273 McWilliam rules that with respect to credibility there was one matter. The decision was appropriate, the investigation was appropriate, the result was appropriate.

Return to the Smallwood x-exam motion.Submissions by Bair

14275-14295


Submissions by McKechnie 14302

Reply by Bair 14302-14306

123 Note that while the volumes continue sequentially, there appears to be days missing as 122 finished on July 8, 1999 making reference to what time they would start “tomorrow” and this volume commences on August 3, 1999.

Discussions regarding various disclosure requests made by the defence. One of which deals with an RCMP report ordered by Cosgrove J. on the Elliot matter.

14307-14325

14325-6 McWilliam rules that if there is some relevance to witnesses at this trial then it


124.


should be disclosed. It has no bearing on upcoming witnesses so McWilliam puts off ordering disclosure, suggesting the defence talk to Kevin Murphy. “I have ruled and haven’t ruled at the same time”.

EVIDENCE OF HEATHER LAMARCHEx-exam by Mulligan continued

14327-14337

re-exam by Dandyk 14337-14338

Submissions on an alleged statement that Stewart made when being transported in August 1994

14338-14346

EVIDENCE OF MIDREN BAKER. Retired OPP officerIn-chief by Bair

14347-14363


14392-3 Mulligan informs court that Cosgrove released the report to Crystal who attended in Cosgroves court


EVIDENCE OF OFFICER DANIEL JESTYIn-chief by Bair

14403-14416



14439-14445 Mulligan objects to inappropriate question

14445-6 McWiliam rules that the question was appropriate


125.


Re-examination by Bair continued 14447-14450

124 EVIDENCE OF JOHN SMALLWOODIn-chief by Cooper

14455-14481

14482-14487 Mulligan objects on basis that Cooper is leading prior consistent statements from the witness.

14488 McWilliam rules that he will allow this line of questioning.

in-chief of Smallwood by Cooper continues 14491-14522

X-exam by McKechnie of Smallwood 14522-14552

14553-4 McWilliam rules on the publication ban of Smallwoods name. he grants it.

x-exam by McKechnie continues 14557-14572

125 x-exam by McKechnie continues 14574-14582

14583-14605 McKechnie makes submissions about Smallwood not saying what he had said in the past regarding Stewart allegedly admitting or not admitting to the crime.

All parties make submissions on how to question Smallwood

14606 McWilliam will allow one further question in this vein “You said that he never denied it point blank to you. Has he ever said to you that he’s not guilty of the offence?”


126.


x-exam by McKechnie continues 14612

McKechnie wants to refresh the witnesses memory after another denial. Crown argues that he cannot contradict because witness said “not that I can recall” and did not deny anything. They can’t continue to try to contradict him. Defence cannot use this as a self serving statement

14612-14615

14616 McWilliam agrees with Crown and rules that the matter is closed.


x-exam by Mulligan of Smallwood 14618-14632

14633-4639 Cooper objects because Mulligan is asking Smallwood to reveal the name of an internet chatroom that Smallwood administers but the problem with this is that it will reveal confidential information about various people whose identity the court has been trying to protect.

14639 McWilliam wants a voir dire on some of these issues.

SMALLWOOD BACK IN ABSENCE OF JURY- Voir DireIn-chief by Mulligan

14640-14642

14642 Mulligan decides in light of Smallwoods answers she will not pursue the matter any further.


127.


Cross examination of Smallwood by Mulligan continues 14643-14693

126 x-exam of Smallwood by Mulligan continues 14694-14697

14697-14702 Cooper objects because Mulligan is asking about Smallwoods legitimate business interests and this would compromise Smallwoods security.

Mulligan wants the nature of the business as opposed to the name.

Cooper says it is irrelevant.

14702 McWilliam rules that Mulligan can put the prior document to the witness.

X-exam by Mulligan of Smallwood continues 14704-14730

14730-14734 Witness has a question for the court

x-exam by Mulligan of Smallwood continues 14735-14749

14750-52 Bair makes a complaint about McKechnie’s cross examination on the record, essentially alleging he acted in contempt of court.

14753 No contempt motion, no motion for mistrial. Nothing for McWilliam to rule on.



128.


14762-65 Cooper says that Mulligan is putting a statement to the witness that comprises some of same material as was ruled out in the body-pack voir dire.

Mulligan will be careful and witness will be instructed to only answer what he is asked.


14783-14794 Mulligan needs clarification of what she can ask about in the statement.

127 More submissions about Stewart having alleged to the witness that he was innocent.

14795-14808


14822-14842 Mulligan seeks further leeway to cross Smallwood on his previous statement and what Stewart allegedly said to him.

14844 McWilliam will not change his previous ruling on this matter. The law is that you cannot believe Stewarts own utterances.


128 Mulligan seeks a warning regarding jailhouse informants 14875-77


129.


14877 McWilliam will repeat the warning given in relation to the witness Winn


Re-exam by Cooper of Smallwood 14893-14898

14898-14905 The witness wants to use the computer to some how assist in the playing of part of the evidence. Mulligan objects, witness is not an expert witness, just a witness to the conversation.

14905 McWilliam will have a voir dire for the witness to be able to show what he intends to do with keyboard

Smallwood evidence in voir direIn-chief with Cooper

14906-7


14917 Smallwood can use the keyboard to show the jury how he listened to the tape.

Re-exam by Cooper of Smallwood continues 14917-14922

14923-14940 Mulligan objects that crown is trying to make final argument through the witness by getting the witness to comment on newspaper articles and asking him if Stewart said anything consistent with them.


130.


14940 McWilliam rules that counsel cannot ask the witness what Stewart meant, just can ask him if he had those articles and what they contained.

Re-exam of Smallwood by Cooper continues 14944-14970

14971-74 Mulligan states that Smallwood has now been discussing what his lawyers told him, as such has waived solicitor-client privilege and defence can now further explore the area.

14975 McWilliam will allow the following question: do you have any expectation that you’re going to be able to serve your sentence in Canada? Has anybody ever promised you that that would ever happen?

Re-exam by Cooper of Smallwood continues 14976-77

EVIDENCE OF SUPERINDENT IAN DAVIDSONIn-chief by Bair

14978-14990

14990-97 Mulligan objects to the witness using a timetable of police operation “Project Octopus”. He is there to give evidence on Mallory’s statement only.

14998 McWilliam thinks there is some relevance but requests counsel to “be reasonable”

in-chief of Davidson by Bair continues 15000-15013


131.


15014-15025 Mulligan objects to the questioning as she believes that by asking the witness what the Crown Office wanted they are putting the Crown Office credibility before the jury.

129 15031 McWilliams finds that it is relevant. But can not get into Crown or other officers state of mind.

15038-9 McWilliams warns jury

In-chief of Davidson by Bair continues 15041-15065

15066-71 Mulligan objects, says Bair has gotten into officer Lamarche’s state of mind.

15071 McWilliam wants Bair to stay away from officer Lamarche’s state of mind.

15072-75 Witness seeks clarification

In-chief by Bair of Davidson continues 15077-15093

15093-15103 Mulligan objects, getting into opinion evidence and the witness is not an expert.

15103-4 McWilliam will only allow how he felt about the scene of the crime and how he conducted himself at the investigative stage. That is it.


15131-15143 Mulligan objects to the relevance of whether there is a pattern of drug


132.


bosses killing those who work for them.

15144 McWilliam will not allow the question.


x-exam of Davidson by McKechnie 15148-15160

130 x-exam by McKechnie of Davidson continues 15161-15163

X-exam of Davidson by Mulligan begins 15163-15205

15205-08 Bair objects that a line of questioning is being made up by the defence.

Mulligan will go to her office at lunch and retrieve the materials that prove it.

x-exam of Davidson by Mulligan continues 15209-15225

15225-15237 Discussion on how far Mulligan can go with this line of questioning.

x-exam of Davidson by Mulligan continues 15237-15238

Re-exam by Bair of Davidson 15239-15246

15246-50 Mulligan objects to Crown asking Mallory’s feelings of remorse being consistent with a planned and deliberate murder.

Bair says it was raised in x-exam.

15251 McWilliam says that it is a matter for legal


133.


argument and not to come in through the witness.

131 Re-exam by Bair of Davidson continues 15255-56

15257-60 McWilliam stops the witness to discuss whether by having the witness give evidence on the Winn statement whether it raises right to silence issues

NOTE: MISSING PAGES 15261-3

Re-exam by Bair of Davidson continues 15263-15276

15377-15282 Mulligan objects to improper re-examination. Crown is trying to rehabilitate witness.

McWilliam thinks it is alright.

Re-exam of Davidson by Bair continues 15283-15290

CROWN RESTS ITS CASE

Mulligan moves for mistrial. Last thing Davidson said was that “there was absolutely no evidence tending to point ot anyone else in nine years of through investigation” and this has so prejudiced the fairness of these proceedings that nothing can be done to remedy it.

15290-15300

15300 McWilliam rules no mistrial.

Next motion brought by Mulligan/Crystal is a motion in respect to the Francis evidence relating to the thermostat. Mulligan says that because of thermostat evidence hypothetical’s were put to the pathologists.. Mulligan argues that if a matter can’t be proven by admissible evidence then its irrelevant. Therefore the defence wants to

15300-15336


134.


call Mr. Winn again as a crown witness t o cross-examine on two very narrow issues.

132 Above motion continues. 15337-15418

133 15420-24 McWilliam rules that Winn will have the right to cross examine Winn on the two points they wished to.

15424-15430 Mulligan does not want her witness who is in custody (Andrews) to be in cuffs etc

McWilliam rules that the witness can attend court without cuffs etc.

EVIDENCE OF HILLIARD JOHN FRANCISCross-examination by Mr. Crystal

15438-15481

15482-4 Dandyk objects. Does Winn ruling of no re-exam apply to Francis also?

McWilliam rules that the Crown can re-exam Francis

` x-exam by Crystal of Francis continues 15484-6

15487-115492 Dandyk objects to a leading and misleading question about “expert shopping”

McWilliam tells Crystal how to word the question.

x-exam by Crystal of Francis continues 15493-15496

EVIDENCE OF CATHERIN FLEGT in chief exam by Cystal 15496-15500

x-exam of Flegt by Bair 15500-15509

Re-exam of Flegt by Crystal 15509-15510

EVIDENCE OF LOIS KIRKUPExamination in chief by Crystal

15511-15514


135.


X-exam by Bair of Kirkup 15514-15515

15516-15521 Mulligan objects to the Crown entering various newspaper articles from 1990 through this witness.

Counsel will edit the articles and then let the judge have a look at them.

x-exam of Kirkup by Bair continues 15522-15530

Re-exam of Kirkup by Crystal 15531

EVIDENCE OF JOHN ANDREWSIn-chief by Mulligan

15534-15571

15572-15575 Crown clarifies when at what Andrews heard of the Smallwood tapes

15576-15593 Defence just made aware of over 1000 pages of disclosure relating to Andrews. Since he is already testifying then Mulligan submits that neither defence or crown can read or use the reports.

McWilliam rules that until the Crown asks for an adjrounment there is nothing to decide.

In-chief by Mulligan of Andrews continues 15595-15608

x-exam by Cooper of Andrews 15608-15628

15629-15683 Mulligan objects that Cooper is trying to get the witness to talk about notes he made that may or may not exist and the defence does not have to disclose notes unless he reviewed them before testifying,


136.


which he did not.

Cooper says he can refresh a witnesses memory with anything he wants.

Cooper wants to subpoena Crystal to testify about the possible notes.

135 15685-15715 Submissions on disclosure continue.

15716-8 McWilliam will adjourn the defence motion to quash the Crystal subpoena to allow Cyrstal time to retain counsel.

In meantime Crown will cross-examine Andrews in voir dire to determine whether he remembers notes being taken, whether he needs them etc.

135 15719-15748 Mulligan moves to have the subpoena motion first, and then the Andrews voir dire.

136 NOTE THAT WHILE THE VOLUMES CONTINUE GOING UP SEQUENTIALLY WE ARE MISSING THE PORCEEDINGS OF TUESDAY AUGUST 31ST AND WEDNSDAY SEPTEMBER 1ST OF 1999.

136 X-exam of Andrews by Cooper (in presence of jury) CONTINUES 15752-15808

EVIDENCE OF RICHARD MARTIN FROM REV CAN. Has some documents about Andrews to enter. In absence of jury.In-chief by dandyk

15808



137.



Submissions on a video tape of Andrews committing a robbery. 15815-15830

15831 McWilliam rules that start with the photos if the witness denies the robbery they can deal with video in camera and if he still denies, then will see about going in front of the jury

x-exam of Andrews by Cooper continues 15832-15841

15842-48 Mulligan objects. Cooper is trying to suggest that Andrews is responsible for what Mulligan did or did not show to Smallwood.

Further crown is wrong to suggest to Andrews that Smallwood did not see statement, first Smallwood did see it, and second how can Andrews answer to that.


15871-76 Further submissions by counsel regarding the notes and solicitor client privilege, cant even mention them.


138 15894-15933 Crystal makes further submissions on privilege and notice production, refreshing memory.


138.


Mulligan makes submissions Crown conduct and suggestion of defence conduct.

15933-34 McWilliam will instruct the jury NOT to go in the direction of finding anything about professional error or illegality or unethical conduct.

McWilliam cautions jury 15940-41

x-exam by Cooper of Andrews continues 15941-15956

15956-15973 Mulligan objects that Cooper asked witness about his defence counsel, who is Mr. Addelman, and Mr. Addelman’s practice is all Andrews could testify to, and that has no relevance.

The witness is being cross-examined on his experience and that is it.

139 x-exam of Andrews by Cooper continues 15976-15999 Mulligan objects to Cooper asking the witness if Stewart ever told the witness about Mulligans standard practice.

15999 The questions about Mulligans practice are prejudicial.


16031-40 Cooper wants to read in a police synopsis as a basis to what the witness pled guilty to 3 years ago with no actual transcript of the proceedings.


139.


16040-45 Judge satisfied that there is a danger of mentioning anyones names, officers, counsel, ect- so there is a Dagenais publication ban.

140 16046-16059 Considering the ban ordered Cooper wants a caution to the jury regarding a ruling that was on the front page of the newspaper from another trial.


16083-84 Crystal objects to Crown pushing the witness on some of his past criminal activity

McWilliam will allow for a bit longer.


16120-28 Mulligan objects to the crown going into details of Andrews past offences.

16129 McWilliam will allow the questions.

x-exam of Andrews by Cooper continues 16129-16134 Mulligan is concerned that Crown intends to use the video already ruled on. Crown wants to use it in violation of the collateral fact rule.

16135 McWilliam will allow, he doesn’t think it is prejudicial or in violation of the rules.


16164-16182 Mulligan objects to Cooper getting into


140.


charges that were withdrawn against Andrews, and her position is Crown can not do that.

16182-3 McWilliam interrupts the legal arguments to caution jury about Cosgrove J.’s reasons for judgement released where he dismissed the charges.

16184-16222 Back to legal argument.

141 16223-16227 McWilliam rules in favor of Crown. Crown may cross-examine on the underlying facts of the events irrespective of whether charges were dropped or not. However McWilliam instructs Cooper not to suggest the guilt or innocence or outcome of these charges. Just the events.


26229-16240 Witness refuses to answer questions regarding a robbery where the charges were withdrawn against him but the matter is proceeding against another individual.

Court will allow the questions, but if witness refuses to answer the Court will NOT direct him to do so, thereby allowing the Crown to cite the witness in contempt. (Mr. Addelman had to attend briefly to give Mr. Andrews some legal advise)


16286-8 Mulligan objects to Cooper editorializing the evidence.

16289 McWilliam rules in favor of Mulligan and Crown can only indirectly characterize the former incidents.

x-exam of Andrews by Cooper continues. 16293-16295


141.


1629616335 The witness stated in front of the jury that the Crown had offered the accused time served. Everybody got fired up.

Crown says that Stewart rubbed his hands together when this was blurted out. Wants to be able to cross examine the witness on sorts of new issues that are very prejudicial.

Defence argues that admonishing the witness is all the court can do. As in keeping with the previous treatment of Crown witnesses.

16335 Judge cautions jury that it is never the role of the jury to consider penalty.

VOIR DIRE.Question Andrews in relation to his outburst about time served. x-exam by Cooper of Andrews

16337-16359

142 Counsel makes submissions on whether Crown can ask witness about Stewart being the “puppet master” and orchestrated the outburst by the witness.

16360—16378

16379 McWilliam wants another voir dire where counsel calls evidence.

VOIR DIRE. EVIDENCE OF OFFICER RIDDELLIn-chief by Cooper

16379-16391


142.


X-exam by Mulligan of Riddell 16391-16404

Re-exam by of Riddell by Cooper 16404-06

EVIDENCE OF RICHARD ADDELMANIn chief by Mulligan

16409—11

X-exam by of Addelman by Cooper 16411-16432

EVIDENCE OF SHERRY BISAILLIONIn-chief by Mulligan

16432-35

x-examination by cooper of Bisaillion 16435-16444


143 Submission by Mulligan that crown can not ask Andrews about Sauve and the prior trial.

16490-95

16496 McWilliam rules that counsel can not talk to the witness about dates. If they want to , then they will have another ruling depending on what the witness has said


16512-16532 Objection by Mulligan on how some audio tapes will be listened to and reviewed by the witness


Re-exam of Andrews by Mulligan 16601-16616

144 EVIDENCE OF WENDY FLAHERTYIn-chief by Mulligan

16622-16632


143.


x-exam of Flaherty by Bair 16632-16658

EVIDENCE OF WENDY BELLEFEUILLE- VOIR DIRE FOR JUDGE TO DETERMINE IF A DAGENAIS ORDER IS NECESSARY In-chief by Mulligan

16658-16661

X-exam of Bellefeuille by Dandyk 16661-16663


16666 McWilliam will not ban the name of the witness

EVIDENCE OF ROBERT BOVAIn-chief by Mulligan

16668-16683

X-exam of Bova by Cooper 16684-16699

16700-16713 Objection to the questioning of crown that implies defence was sneaky by not disclosing this witness to the crown.

16714 McWilliam will instruct the jury there was nothing wrong with what defence did, but they will adjourn to give the Crown time to properly prepare.

EVIDENCE OF WENDY BELLEFEUILLEIn –chief by Mulligan

16274-16739

x-exm of Bellefeuille by Bair 16739-16754

145 x-exam of Bellefeuille by Bair continues 16755-16838

16838-16845 Mulligan objects out of concern for the factual


144.


basis for Bairs questions.

Counsel agrees how to clear it up.

x-exam of Bellefeuille by Bair continues 16846-16848

Re-exam of Bellefeuille by Mulligan 16848-16851

16852-55 Bair objects to Mulligan trying to change an answer obtained in cross-examination.

Objection withdrawn

Re-exam of Belleuille by Mulligan continues 16856-16871

BACK TO BOVA- X-EXAM OF BOVA BY COOPER CONTINUES 16871-16908

16909-16937 Disclosure issues raised by Mulligan.

Re-examination of Bova by Mulligan continues 16938-16945

146 EVIDENCE OF RANDALL WARAIn-chief by Crystal

16946-16994

16995—17000 Objection by Bair, Defence is trying to have hearsay admitted through this witness

Crystsal proposes an acceptable question that all can agree on

Examination in chief of Wara by Crystal continues 17000-17020

x-exam of Wara by Cooper 17020-17052R. v. Robert Stewart

145.


147 x-exam of Wara by Cooper continues 17021-17112

17112-17114 Cyrstal objects- the witness expressed an interest to review the transcript o refreshe his memory.

McWilliam rules that the witness can read the transcript.

x-exam of Wara by Cooper continues 17115-17214

17215-17239 Mulligan objects to the Crown leading evidence of guns and drugs seized by asking the witness about that. There is no real remedy she can ask for.

148 Submissions by counsel as to what can be lead in cross-examination without any direct proof in the Crown’s case.

Crown makes submissions about what the relevant facts are.

17243-17283

149 Submissions by Dandyk 17284-17297


Submissions by Morris 17342



17360-3 In the prior ruling the 1995 anonymous allegation over the telephone “testify and you are dead” could not be referred to

1999 discussion between Smith and Chapman regarding Stewart Senior can not be referred to.


146.


Previous ruling stands via-a-vis this witness.

X-exam of Wara by Cooper continues 17364-17404

17404- Mulligan objects to hearsay testimony.



17455-58 Objection by Cyrstal- witness is being asked to speculate.

Crown will explore further and see what they get.


17562-67 Mulligan objects- Crown is making argument in their cross.

17468 Objection premature- only 4 questions since the last objection, will see “how it all hangs together”


17495-17504 Mulligan objects- Crown did not close the circle.

17504 McWilliam will allow the crown to continue along these lines.

x-exam of Wara by Cooper 17507-17518

17519-17551 Mulligan objects on a factual basis. Crown questioning without factual basis.


147.


17552-54 McWilliam does not think the evidence is hearsay to say that the meeting happened and so forth, but the information itself is hearsay.


17588-17602 Mulligan objects to hearing the Chapman tapes through this witness simply to have the witness comment on whether Stewart sounds angry

17603 McWilliam will allow the evidence because he can craft a limiting instruction.

151 X-exam of Wara by Cooper continues 17605-6

17606-17616 Objection by Crystal because Crown isn’t respecting previous ruling regarding unfounded suggestions.

McWilliam rules that it can be corrected in re-examination


17671-6 Mulligan objects to Crown asking the witness to comment on Stewarts concerns

McWilliam will allow the next question by the Crown because they got the answer they needed for the previous question.



17809-17811 Crystal objects. Objects to Cooper suggestion to witness about what jury does or doesn’t know.

Crown can risk the questioning if they want,


148.



Re-exam of Wara by Crystal begins 17814-17835

17835-40 Crown objects because they believe Crystal is going to play an audio tape that is different from the one read in during cross-examination.

17841 McWilliam rules that he can play the tape for one purpose. To meet the “Tony Montana” point.

Re-exam of Wara by Crystal continues 17842-43

153 EVIDENCE OF STAFF SARGEANT MIKE STANFORDIn-chief by Mulligan

17848-17860

x-exam of Stanford by Cooper 17860-17905

Re-exam of Stanford by Mulligan 17905-17911

Submission by the Crown regarding the next potential witness Officer Vallincourt, who is being called to possibly establish an alibi for Sauve, is that is the case then the crown wants to be able to call other witnesses.

17911-17920

154 Submissions on Vallincourt continue 17921-18027 Will rule tomorrow, in the intern, proceed with other witness.

Brief submissions on whether the evidence of the next witness Officer Fortier is hearsay because defense wants to lead his conversations with neighbours and friends during the first 10 days of the investigation.

18027-18034


149.


EVIDENCE OF OFFICER MICHAEL FORTIERIn-chief by Mulligan

18034-18060

18061-18071 Crown wants Mulligan to establish the relevance of asking this witness about how he re-interviewed some individuals after the accused were arrested.

They decide to let the officer refresh his memory with his notes

155 Defence bring motion to lead Officer Fortier during in-chief in certain areas. Crown can’t respond because they just got the materials this morning.

Mulligan makes her submissions.

18072-18127

18128 McWilliam will allow Mulligan her leeway.

In-chief of Fortier by Mulligan continues 18133-18146

x-exam of Fortier by Bair 18146-18148

18149—18154 Mulligan objects to questioning about whether there were any other suspects.

McWilliam rules that the question should not be phrased “no suspects” framework.

x-exam of Fortier by Bair continues 18155-18168

18169-18176 Mulligan objects because she fears that the line of questioning may lead to talking about he polygrpah test, she doesn’t want that to happen.


150.


18176 McWilliam will allow the questions.

x-exam of Fortier by Bair continues. 18177-18180

Re-exam by Mulligan begins 18180-18190

156 EVIDENCE OF MICHAEL WINNMulligan gets to finally continue her cross-examination

18194-18201

18201-18208 Crown objects to the relevance of asking whether Winn has served his sentence, not relevant

18208 No questions about where he is serving his time, but can ask about the other considerations that went into his plea.

x-exam of Winn continues by Muligan 18210-18214

18215-18222 Mulligan has a problem because the witness denied what several officer notes suggests.

18222 McWilliam will allow the questions and if necessary can have a voir dire where they call the officers.

x-exam of Winn by Muilligan continues 18224-25

x-exam of winn by cooper 18225-18234

Re-cross-exam of Winn by Mulligan 18234-36

18244-18308 There is some issue of Juror #9 approaching Officer Lamarche about getting her help becoming a police officer.


151.


Is this some form of bias is the issue.

18308-18312 McWilliam will have a voir dire to hear from the juror.

157 Submissions 18313-18323

EVIDENCE OF JUROR #9COURT QEUSTIONS THE WITNESS

18323-18328

SUBMISSIONS ON THIS ISSUE 18328-18352 McWiliams adopts the Crown position- witness can stay.

ISSUE OF NEXT WITNESS MARK POTVIN AND HIS EVIDENCE IS POTENTIALL HEARSAY.

Cooper makes submissions on this issue

18352-18365

Dandyk makes submissions 18365-18368

Mulligan makes submissions 18368-18406

Morris makes submissions 18406-18408

Cooper makes reply 18408-18417

Bair has submissions 18417-18422

Everybody has something to say 18422-18431

158 18432-18436 Potvin Ruling:

Long ruling made short: Reference to both the convictions of Sauve and Trudel can be made mention and the Mallory threatening the Potvin brothers with limiting instructions.

EVIDENCE OF MARK POTVIN 18443-18496


152.


In-chief by Mulligan


x-exam by Cooper 18498-18564

159 Submissions on the Wendy Bellefuielle statement being made an exhibit- how to edit.

Submissions also on the issue of the report in the possession of officer Nugent and whether they need to have a voir dire to determine whether th Crown can call evidence to contradict Winn.

18565-18612

18612-18614 Mcwilliam will allow all three of the Bellefuielle statements to go in.

160 Mulligan files motion to lead other suspect evidence in relation to Dave Dunbar and Merilyn McNeil.

McWilliam wants to here the outline of what will be argued to decide if he must hear the evidence in voir dire, but not now.

They argue whether they will delay the cross of the current witness because if the motion is allowed this witness may have something to say about it. However they decide to continue with the current witness regardless, and the crown can recall if they want.

18615-18637

x-exam of Potvin by Cooper continues 18638-18693

18693-18703 Mulligan objects because crown trying to suggest that the witness is less credible because he can’t remember exactly what he wanted to say.


153.


18704 If the Crown asks for something very specific out of the statement Court will give him the opportunity to see the statement if he wants.


18774-79 Crown asks for the witness to be able to see his statement.

Defence is okay with that

161 Crown seeks an adjournment before continuing the cross-examination until they can generate a transcript of a statement the witness gave in order to contradict the witness more effectively.

18879-18806

18806 Adjournment will not be granted.


18822-18837 Crown tries again to adjourn for the same reasons.

18837 Adjournment not granted


18865-68 Mulligan objects that crown is misstating the facts as they are put to the witness

18869 Can correct in re-examination


18912-18920 Mulligan objects to questions about what


154.


Russ Taylor said or knows are unfair and prejuidcial

18920-1 Court will allow the crown to pursue this line of questioning.

162 x-exam of Potvin by Cooper continues 18924-18934

18935-18938 Mulligan objects to Cooper is mischaracterizing the evidence that he is putting to the witness.

18939 McWilliam will allow the evidence to be described that way.



19097-19110 Objection by Mulligan, again crown is misstating the facts, regarding alleged threat to Ron Potvin by Mallory (threatening witness?)

19110 Stupid ruling: judge doesn’t want to go back and determine the facts so he asks counsel to be fair.



19261-67 Mulligan objects to unfair questioning of what witness said in his statement.

No ruling: judge thinks the jury will make a determination of whether crown counsel is being fair or not.

x-exam of Potvin by Cooper continues 19268-19357R. v. Robert Stewart

155.


Re-exam of Potvin by Mulligan 19357-19361

19362-19375 Crown objects that a statement being raised in re-exam was not raised in cross.

165 Submissions on the statement continue. 19376-19405

19406 Defence can re-examine with respect to date and time of statement.

The cars have relevance, will allow that.

With respect to the cocaine, it was not raised and does not need to be met.

Submissions with respect to a photo being shown to the witness from a photo line-up, 19407-19418

Re-exam of Potvin by Mulligan continues 19419-19433

19433-19447 Mulligan wants to show the witness another picture that crown objects to.

Re-exam of Potvin by Mulligan continues 19452-19461

MOTION BY STEWART TO LEAD OTHER SUSPECT EVIDENCE BEGINS.

Mulligan makes submissions

19466-19522

166 Motion continued; Mulligan submissions

Mulligan wants to be able to call witnesses five witnesses.

19523-19641

Bair makes some submissions 19641-190679

167 Bair continues her submissions 19680-19686R. v. Robert Stewart

156.


Dandyk makes submissions on this motion 19686-19704

McKechnie makes submissions 19704-19709

Bair makes more submissions 19709-19728

Dandyk makes submissions 19728-19761

Mulligan makes reply 19761-19785

Dandyk makes response 19786-19802


19809 McWilliam will not allow the other suspect evidence.

168 Mulligan says in light of yesterdays rulings, Stewart will not be taking the stand.

McKechnie has some submissions before Mallory takes the stand

19810-19823

EVIDENCE OF RICHARD MALLORYIn-chief by McKechnie.

19823-19912

x-exam of Mallory by Mulligan 19912-19928

19928-19932 Both McKechnie and Mulligan object to Bair saying that if stewart wanted to testify it should not be like Mallory.

19932 McWilliam warns Mallory that he is not able to lead hearsay evidence regarding things he heard stewart say.

x-exam of Mallory by Mulligan continues 19934-19949


157.


19949-19962 Crown seeks an adjourment on the basis that they were not warned by defence that Mallory was testifying, as such they were not prepared.

They also discuss the problem of possibly having the jury sequestered over Christmas

McWilliam allows a brief adjournemt to give the Crown time to prepare a cross.

169 X-exam of Mallory by Mulligan continues 19968-19971 Crown objects to Mulligan asking the witness to say his understanding of Mark Potvins evidence.

McWilliam agrees with the Crown, don’t answer.

x-exam of Mallory by Mulligan continues 19975-19986

x-exam of Mallory by Cooper 19986-20036

20037-20064 McKechnie objects to a question of what the bail judge may have asked the witness during his bail hearing.

They have to adjourn to read the bail ruling, and then come back and argue.

20064 Mcwilliam does not think that the section was violated by the court in the bail hearing.

Judge does not think the evidence was illegally obtained so he would allow it even in s.24 analysis

x-exam of Mallory by Cooper continues 200662-20090


158.


20091-20100 Mulligan objects because the Crown questions are trying to lead bad character evidence, and the witness is an accused person.

Crown will argue a motion to call this evidence

170 CROWN MOTION TO USE BAD CHARACTER EVIDENCE IN EXAMINING MALLORY

Submissions by Dandyk

20101-20180

McKechnie makes submissions in reply 20181-20205

Mulligan makes submissions 20206-20236

Dandyk makes submissions in reply 20236-20241

171 20242-20247 McWilliam reviews the positions of counsel and then finds that since the good character of neither accused has been put in issue then the accused cannot be cross-examined on prior specific acts of misconduct on the premise that the good character standard has not yet been raised.


20284-20291 Mulligan objects to question of Crown saying that it comes under character evidence.

(20291) McWilliam rules that this question is the Davison exception and will allow the question.


20310-6 Mulligan objects to Cooper saying “the defence theory put


159.


forward” Mulligan says defence does not need a theory. Cooper should be asking questions and not summarizing what he feels the defence theory is for the jury.

20317 McWilliam says everyone should avoid referring to theories. But nothing wrong with asking how the collection was done with respect to mr. Cullen.

Judge also warns Cooper when he seemingly refers to notes and how he puts what others said to the witness.

x-exam of Mallory by Cooper continues 20319-20344 `

20344-49 Mulligan objects to Cooper taking facts out of context and misleading in his suggestions.

20349 McWilliam says that the witness is free to say no


20368-20371 Mulligan objects, the line of questioning about Mike Vanasse and his character is not relevant.

McWilliam will allow the court to go down this road a little bit.


172 x-exam of Mallory by Cooper continues 20422-20463

20463-20478 Mulligan objects to Cooper asking the witness to comment on Stewarts reaction to a video tape of


160.


Gaudreault that was never but in to evidence. Improper cross.

Also Cooper is sliding in facts that the witness has denied in his long questions.

20478 Mcwilliam rules that questions go to far and will not allow it.

20479-20484 Mulligan objects to evidence of Mr. Cullens motor cycle going in, as there is nothing to link the bike to Mallory.

20485-6 McWilliam rules that they can ask the questions and the witness can deny it if he wants.


20511-20544 McKechnie objects to Cooper acting as though he is checking a statement when in fact he is not, simply for the jury- misleading. Also objects to asking the witness about what Ms. Delaney said to Mr. Davidson, Davidosn was a witness and they could have asked him.

20544- McWilliam will allow some of the questions as they relate to circumstances of the arrest.


161.


x-exam of Malllory by Cooper continues 20545-20570

20570-20595 Defence wants to have legal argument about Mallory’s brother Wayne being a confidential informant for the police.


20619-20648 Defence objects, says that there has been a mistrial. Cooper has made suggestions regarding Denis Roy and his relationship with Michel Giroux- improper as the police tried to develop this theory during investigation and got nowhere. It was never raised in crowns case.

Further Cooper has produced an envelope that was never made an exhibit through officer Lamarache who would have been the correct witness to do so with, and is asking the witness to comment on what amounts to a piece of disclosure.

20649 McWilliam rules that there is no mistrial on the inflammatory issue.

He rules that he has heard no evidence that suggests the Crown must disclose the name of a confidential informant to the defence


162.


He wants to hear more submissions on what they can do with the document

Further submissions on the objection by defence 20649-20671

Crown submissions 20671-20693


Crown replies 20703-20738

Defence replies 20738-20746

Crown replies 20746-20751

174 20756-58 Mcwilliam rules that he will allow the cross-examination on what the dead police informant said. But Mallory will either be able to adopt or deny the questions, and McWilliam will warn the jury that what is said in the questions is not evidene, only what the witness adopts and says.

McWilliam does not think there is any proof of a relationship between Manon Bourdeau and Denis Roy.


20888-20931 Cooper wants to put to Mallory what the judge had previously ruled was inadmissible, and that was intercepted statements of Stewart saying he is gun fanatic. Cooper submits that the landscape has changed.


163.


20931 They all agree on the appropriate editing and McWilliam says the jury can sort it out. With defence having a chance to rehabilitate in re-exam

175 20934-37 McWilliam gives a formal ruling to how the intercepted statements and the “pig farm” video and why he changed his mind from the last occasion.

Before it related more to Stewarts son, but now because of Mallory’s evidence, it has shifted to Stewart himself and the jury can see the new focus and purpose of the evidence.


21011-21016 Defence objects questions about Ken Miller, and whether it was disclosed to the defence.

It was, and the witness will be able to review a document and the questions will be allowed


176 Submissions- Bair wants to tell the jury the procedural history- ie that there has been a past trial, and that the other two were convicted in yet another trial.

21077-21082

21082 McWilliam wants defence to draft something and he will review and on that basis possibily say something to the jury.

X-exam of Mallory by Cooper continues 21084-21151

21551-5 Mulligan objects to a misstatement of the evidence.

Mcwilliam will allow the question (about yellow cocaine)

x-exam of Mallory by cooper continues 21156-21198


164.



21216-21225 Crystal objects to a question about disclosure and counsel trial preparation, not an issue.

Also, Cooper is using this as a backdoor to attack Stewarts credibility

Court will review case law as to how this can be put to the witness.


Before re-examination McKechnie wants premision to play a tape on an issue that was raised in cross.

21268-21275

21275 McWilliam will not allow

Re-exam of Mallory by McKechnie 21276-21287

178 EVIDENCE OF RONALD POTVINIn-chief by Morris

21290-21337

x-exam of R. Potvin by Mulligan 21337-21367

x-exam of R. Potvin by Bair 21367-21441

21441-5 Morris objects to inappropriate x-exam and wants witness to have his memory refreshed in absence of jury as he is illiterate.

It is ok for x-exam.

x-exam of Potivn continued by Bair. 21447-21475

179 SUBMISSIONS ON REPLY EVIDENCE- crown is seeking a judgement from the court regarding proper reply evidence

21476-21512


165.


Crown submissions

McKechnie submissions 21512-21520

Mulligan submissions 21520-21537

McKechnie makes submissions 21538-39

Counsel argues 21540-21571

180 21572-79 Evidence will go in as reply evidence (evidence of Denis Roy)

X-exam of Potvin by Bair continues 21582-21608

Re-exam by Morris 21610-21627

Further submission so the reply evidence that the Crown intends to call with respect to Miller

21629-21653

21654 McWilliam will allow the questions to Miller as they are very focused

181 EVIDENCE OF OFFICER GLEN MILLERIn-chief by Bair

21657-21664

x-exam by mcKechnie 21664-21668


21680-21696 McWiliam stops Mulligan because he thinks that she is getting the witness to repeat a great deal of evidence that has already been heard.

After hearing from counsel he rules that Mulligan can continue and see how it goes

x-exam of Miller by Mulligan continues 21698-21701


166.


Re-exam of Miller by Bair continues 21701-21706

EVIDENCE OF SGT. GRAHAMIn-chief by Cooper

21712-2172



EVIDENCE OF OFFICER MORRISSETTEIn-chief by Cooper

21743-21750

x-exam of Morrissette by McKechnie 21750

x-exam of Morrissettte by Mulligan 21751-21752

EVIDENCE OF LARRY COLOTELOIn-chief by Cooper

21753-21759

x-exam of Colotelo by McKechnie 21759-21762

X-exam of Colotelo by Mulligan 21762-21765

Re-exam of Colotelo by Cooper 21765-21770

EVIDENCE OF WENDY FLAHERTYIn-chief by Bair

21774-21780

x-exam of Flaherty by McKechnie 21780



EVIDENCE OF IAN DAVIDSONIn-chief by Bair

21783-21795


167.


x-exam of Davidson by McKechnie 21795-97

x-exam of Davidson by Mulligan 21797-21814


Mulligan makes submissions that calling mrs. Bordeau is not proper reply evidence after she received further disclosure today.

21817-21838

21838 McWilliam will hear the witness

EVIDENCE OF YVETTE BOURDEAU In-chief by Bair

21840-21845

x-exam of Bordeau by Mulligan 21845-21849

21850 Counsel will come back to make submissions on McWilliam’s draft charge to the jury.

183 SUBMISSOINS BY COUNSEL ON THE DRAFT CHARGES






Reply by mcKechnie 21999-22003

184 COUNSEL’S ADDRESSES TO THE JURY BEGIN

McKechnie’s address to the Jury 22014-22087


168.


Mulligan’s address to the jury 22087-22138

185 Mulligan’s address continued 22147-22174

22174-76 Bair takes position that Mulligan put her integrity out for the jury to consider

McWilliam thinks it can be rephrased, that is all.

Mulligans address continued 22177-22242

22242-47 Issue of how to repeat the evidence to the jury, can they have transcripts?

No, McWilliam wants her to read it to them at this stage.

Mulligans address continued 22248-22283

186 Mulligans address to the jury continued 22287-22362

LEGAL ARGUMENT RE: MULLIGAN MAKES REFERENCE TO MORIN/MARSHAL/MILLGARD IN HER ADDRESS

22362-22423

187 22424-29 McWilliam rules that no further details of the wrongfully convicted is to be included in the address

Mulligan’s address to the jury continued 22431-22500

22501-06 Bair asks that since Mulligan used the videotape and auidotape excerpt the way she did, then can she invite the jury to speculate what else might be on there.

So long as she uses it how the Court directs, yes.

188 Address to the jury by Bair 22510-22620

22621-22626 Mulligan objects, to Bair referring to a “prosecution

Mcwilliam will deal with it at the end

Page 22625 line 22R. v. Robert Stewart

169.


that disclosed everything” as a evidence of a right minded prosecution. And of saying would the prosecution go to such lengths for a “frame up”

Mulligan wants the Crown to stop this, and for there to be direction to jury on this.

Address by Bair continued 22627-22665

189 Address by Bair continued 22666-22704

22704-7 McKechnie objects because he believes that Bair has asked the jury to draw inferences from his behaviour.

They must get the exact words and argue at that time.

Address continued 22708-22833

190 Address continued, with no objections! 22834-22964


23015—23025 Bair wants to adjourn for the afternoon. Wants to edit some of the Chapman evidence so as not go for days.

Defence opposes as the longer time that passes

McWilliam grants.


170.


since Mulligans address, the greater the prejudice


23114-23117 Muligan has an objection , saying that Bair may have commented on Stewarts decision not to testify.

Also submits that Bair was inflammatory and did not fairly state the evidence.

The reporter says that Bair did not comment on stewarts decision, so they decide to wait for the transcript

Address by Bair continued 23119-23147

23147-23151 Mulligan wants to deal with the objections today or on the weekend. She submits that there were either improper or inflammatory remarks made by the crown where the evidence was not summarized properly.

23152 McWilliam will try to deal with these issues Monday morning before he starts the charge to the jury

193 SUBMISSIONS ON BAIR’S CHARGE TO THE JURY 23153-23167

Mulligan is seeking a right to reply 23156

23164 Mcwilliam will not grant a right to reply


171.


(23164)

He will allow other submissions on whether he needs to change his charge, but he will start the charge and here the rest on the breaks.


172.

Documents

1kangaroojustice.org/wp-content/uploads/2010/09/2000-Lawyers-no… · Web view[record doesn’t show Stewart was there, but he was, and this was established with subsequent questions