Upon Commencing at 9:30 A.M
FRIDAY, DECEMBER 4th, 1998
--- Upon commencing at 9:30 a.m.
--- Accused present
--- In the absence of the jury
MR. COOPER: Your Honour, I can report back from our conversation with Ms. Bair. She cannot imagine she won't be here Monday afternoon and ready to do Officer Lamarche.
THE COURT: All right. Just tell her that, and the same goes for all counsel, if they're not feeling well we can take shorter breaks, rather than go the hour and a half we can go 40 minutes or 45 minutes and she can take a break, or whatever, the first day or so.
MR. COOPER: Thank you, Your Honour, I'll relay that.
And the other outstanding issue was Officer Savage and we had a brief chat about that. Ms. Bair didn't have the materials at her residence of course. What we've decided to do with Offi- cer Savage is adjourn him sine die. We may return to it later or we may not at all. We're not returning to it right now but that may arise later, but not likely but possibly.
MS. MULLIGAN: What about the statements and reading them in?
MR. COOPER: The statements, Your Honour, I'm going to continue. It occurred to us that we could file them and we have don't have any objection to filing them afterwards but we
won't know what's true and false if we don't have Mr. Gaudreault go through them. But the second statement, the 14th of June statement, will be much quicker because I've had Officer Riddell go through it and indicate what is the new parts. Your Honour may recall this is what Mr. Edelson ---
THE COURT: The correcting statement, yes.
MR. COOPER: --- first termed the correcting statement.
THE COURT: I remember the vocabulary.
MR. COOPER: And some pages of it won't be read out, several pages won't be read out.
MS. MULLIGAN: Well, my position would be, then, if we're going to read them anyway then they don't need to be filed. The only reason I was consenting to filing was to abbreviate the reading. If Mr. Cooper is going to read them all out they need not be filed. That was a concession I was making if Mr. Cooper wanted not to read them all out. In the normal course statements aren't filed.
With respect to the Savage issue, Madam Court Reporter did find the passage and just to put on the record clearly what
MR. COOPER: I'm sorry, I didn't hear you.
MS. MULLIGAN: On the Savage issue Madam Court Reporter found the passage where Mr. Gaudreault had indicated that he did tell John Savage and I think given that we've had the preliminary of that argument that should be on the record. Perhaps Madam Court Reporter can read it back?
THE COURT: All right.
MR. DANDYK: Actually, I'm wondering, until there's an argument do we need to do it at this point? If there's an issue later on then it can be fully argued on the basis of transcripts and so on, so I don't think we should waste time now doing it. If Ms. Mulligan wishes to have a motion whereby she is arguing it isn't collateral and she will be calling him or something else, that can be done at a later point, I'm not sure it's necessary now, because we'll all have transcripts eventually and then we can all relate to it and we can all comment on it, but at this point I'm just saying it's opening up an argument, it's not asking for a solution, so I don't think it's necessary at this point. I mean I'm not precluding it could be done later but .....
MS. MULLIGAN: Well I'm prepared to indicate that the question was asked and Mr. Gaudreault did say he told Mr. Savage right away about it, what took place and what happened, right away, so in any event we will deal with that issue later.
THE COURT: All right.
MS. MULLIGAN: The only other issue that arose yesterday, Your Honour, and there was quite a few interruptions, I certainly didn't want to be obstructionist, but Mr. Cooper stood up with the May 9th, 1990, the notes, and said to Mr. Gaudreault "this phrase was put to you from Heather Lamarche's notes of May 9th, 1990" and
then read from the notes which is precisely what I was precluded from doing with the May 9th, 1990 notes and I submit that ought not to happen. Unless Mr. Cooper is agreeing to the reliability of those notes and if he is, since he's putting them to him, then I'm quite prepared to ask Your Honour to allow me to re-cross-examine and put in the rest of the May 9th, 1990 notes that I was precluded from doing. Mr. Cooper ought not to be standing up and saying "and this phrase was put to you" and reading out the notes when that's exactly what they argued we couldn't do. So I would ask that Mr. Cooper be limited by Your Honour's ruling the same way that the defence is with respect to the notes.
MR. COOPER: Just with respect to that last issue, Your Honour, we're talking about two different phases in the reexamination. Ms. Mulligan, the part she's addressing was prior to the lunch break. After the lunch break of course the Court indicated that excerpts could be read from those notes. I intend to review those notes, the content of those notes paragraph by paragraph with Mr. Gaudreault today if it refreshes his memory and, if so, what was said, what is your recollection of what was said and in what order. If he adopts the notes, this is something Ms. Mulligan could've done and obviously chose not to, if he adopts the notes from start to finish then he's adopted them, there's no more issue, but Ms. Mulligan
didn't proceed in that fashion and to ask for a recrossexamination, in my respectful submission, there's no grounds for it at all, it's baseless. Ms. Mulligan may be correct in my phrasing might not have been quite right, it did ring a bell when she just mentioned it about how I posed the question to Mr. Gau- dreault, and that will become moot if he adopts the notes later this morning in any event, but that may be an error on my part, the phrasing does sound like something I said yesterday frankly and it should've been phrased more carefully. But as I say if I go through the notes with him today on those two days, and they're not long, just a few pages, three to four pages, it will become moot. Now I haven't reviewed these with him line for line because I haven't spoken with him about anything except for the weather since he's been under re-exa-mination, but I assume he's going to adopt most or all of them so after that point it becomes moot, and of course this was an avenue that was open to both defence counsel and they didn't avail themselves of it.
MS. MULLIGAN: I realize you can have him refresh his memory and I did try to have him refresh his memory and when I was doing it he said he didn't remember the phrase about picking up the shells, et cetera. I have no difficulty if Mr. Cooper goes through the rest of it, I think it may become almost moot, but what I'm concerned about is that he stood up and
said "this phrase was put to you by defence counsel from Heather Lamarche's notes" and then he read it, looking at it and read the phrase and that's precisely what Mr. Dandyk has argued repeatedly and Your Honour ruled we can't do, so I'm just
THE COURT: I realized that when he did it and I was a bit surprised but I had said that he could put, because of the difficulties with the notes as referred to by Mr. Edelson, I thought he was going to read that passage in as asked for but he went right to the notes and I said oh well, I'm not going to raise this, so I recognized the error when I heard it and no, he won't do it again and nobody will ever do it again. Okay.
MR. COOPER: I apologize, Your Honour. Until Ms. Mulligan mentioned it now that did ring a bell with me but it wasn't my intention to do that.
THE COURT: Okay.
MR. COOPER: I was just trying to focus in on an issue for re-examination and obviously .....
THE COURT: Yes, Mr. McKechnie?
MR. McKECHNIE: There's one other issue now that if the Crown is not calling Constable Savage, the last answer that Mr. Gaudreault gave with respect to that indicated that the person involved had been shot with a shotgun behind a certain location by Richard Chabot and that, of course, was all hearsay and was inadmissible and I think that the jury should be warned about it at that stage. I hadn't objected to it
yesterday because I assumed that we were going to be getting the true version of what happened from Constable Savage, but in light of that, then, I do have an objection to that material being left as it is before the jury.
MR. COOPER: Your Honour, it may be relevant not to the truth of its contents but for the impression on Mr. Gaudreault, that's the only reason this was relevant at all. The truth of what happened in 1978 in a certain location in the city of Ottawa generally speaking is irrelevant. It's Mr. Gaudreault's trust in a police officer once in 1978 and not again until 1990, that's the reason this was relevant to begin with, that's why Ms. Mulligan got into it in cross-examination, that's why it appeared in the transcript and in the audiotape we all heard with Sylvie, she said "These guys ...", Lamarche and Riddell "... you can trust them. Remember Savage? These guys are better." That's the whole reason Savage was in there. So it's not for the truth of the contents of what actu- ally happened that night, it's for the reliance Mr. Gaudreault placed on it, but I'll clarify that with him, we'll revisit that and I'll say is that something that you know, were you there, you know, do you know that, et cetera, et cetera. That's not a problem.
MR. McKECHNIE: Well, again the jury should be warned that it can't be considered by them.
THE COURT: Yeah, he just wants the jury get it now exactly what you said while it's still in
context.
MR. COOPER: Sure, and I'll just revisit that right off the top and then do you want me or does the Court want to say this is not for the truth of its contents?
THE COURT: I'll say that.
MR. COOPER: Okay. Thank you.
MR. DANDYK: If I might indicate this all came out in crossex. as well, we should remember, and it wasn't done at that point so if it's going to be done it can be referenced to both times because in actual fact it came up both times.
MS. MULLIGAN: But the point was that when we were crossing Mr. Gaudreault we believed Savage was to be one of the next witnesses and he could tell the truth of the facts.
MR. COOPER: That can't be true, Ms. Mulligan. It is not true because we said we were calling Savage after you brought up the issue of benefits with Mr. Gaudreault. Chronologically that cannot be the truth.
MR. McKECHNIE: Well, I have a letter from Ms. Bair saying that the next witness was going to be Savage, and that was several weeks ago.
MR. COOPER: Could you produce that for me, please?
MR. McKECHNIE: Yes, I have it.
MR. COOPER: I don't know when and why the deci- sion was taken. I've been wrong before but
THE COURT: Well, does it matter? You can solve these problems amongst yourselves, counsel. I
know I just have to tell them something about hearsay. Okay.
Bring the witness. Bring the jury.
--- Upon resuming in the presence of the jury at 9:45 a.m. (Nathalie Mackenzie, Official Interpreter, sworn, was made available for the witness)
DENIS MARCEL GAUDREAULT, previously sworn
THE REGISTRAR: Are counsel satisfied that all members of the jury are present?
MR. COOPER: Content.
MR. McKECHNIE: Content.
MS. MULLIGAN: Yes. Thank you.
THE COURT: Thank you.
Mr. Cooper?
MR. COOPER: Thank you.
RE-EXAMINATION (continued) BY MR. COOPER:
Q. Mr. Gaudreault, we're going to - I've got a little more voice now, probably just as boring - we're going to resume where we left off on the statement, shortly, from the 21st of March, 1990 but first, sir, yesterday you discussed the incident that you spoke with Mr. Savage about in 1978 or when- ever that was.
A. That's correct.
Q. Now we don't need to go into the whole thing again ---
A.No.
Q.--- but at the end of it you indicated, sir, that he didn't take it too seriously because obviously the guy was shot at some location with a .12gauge.
A. That's correct.
Q. Okay.
MR. COOPER: That part of the evidence the Court has a caution to the jury about.
THE COURT:
Q.Mr. Gaudreault, I assume you were not there the second time when he was shot with the .12gauge so you don't know that of your own personal knowledge, do you? You know, you weren't there when the man was shot later with the .12gauge shotgun or whatever?
A.No, but I was in jail after with the guy that did the ---
Q.Somebody told you.
A.Yeah.
THE COURT: Okay. That's the point.
It's hearsay evidence, members of the jury, with respect to the death and with respect to whether the person was shot and so on and so forth, so his evidence is not admissible for the purpose of proving the death, all right?, but it is admissible to the issue of what he thought in his mind in terms of his relations with the police at that time.
MR. COOPER:
Q. Now Mr. Gaudreault, we'll resume from 1978 to 1990, the 21st of March, there's a little dot on page 12, that's where we left off. And once again, sir, you've been indicating what portions of this could be mistakes, misleading, reversed or names have been changed.
A. Yeah.
Q. "Rob said". I'll just back up just a mo- ment. We'd just gone past the part where they'd come in your apartment, Mr. Stewart had come in your apartment with Mike the Million Dollar Man in the morning.
They came in about 11:00 a.m. I had company in my house. Lorne Houston was there Chantal Laurin, Sylvie, I don't know her last name, she lives at the Concord apartments number 903, myself and Rhonda and the baby was there.
That's where we left off, sir?
A. Yeah, but Sylvie I do know her last name now, it's Sylvie Garneau.
Q. Garneau?
A. Yeah.
Q. And I'll begin the next line, sir:
Rob said "Do you think this is a joke?" I told him I had guests in my house. He said "I don't give a fuck." He says "That's what happens when people don't pay." He looked proud of it. He put the newspaper headline on my wall, it was the Ottawa Citizen. The headline said something like "double slaying". There were no pictures. Everybody there saw him do it. Stewart called me outside.
Up to this point, sir, what's your comment on this part of it?
A. That's true.
Q. Okay.
Stewart called me outside and he said "I want you to keep a package for me." I asked what it was. He said "What do you usually keep for me, my tools, my equipment."
Is that part true, sir?
A. No.
Q.
Mike opened up the back of the Bronco (his truck) lifted up the carpet and pulled out a green garbage bag. I took the package inside to the basement.
Is that part true, sir?
A. No, it's the opposite.
Q. What do you mean by the opposite?
A. Well, he told me to go grab the tool, --- Q. Yes?
A.--- making the hand commotion, then I went downstairs, grabbed the tool. I went outside and put it in Vanasse's truck but I just mixed it up a little bit.
Q.Okay.
When I opened up the package I saw a sawedoff .12gauge pump shotgun, it's a Remington, the stock was cut off and the barrel was shortened down to the spring tube.
That part, sir, the description of the gun?
A. That's correct.
Q.Okay.
I pumped it once back and there was a single shell left in it, it was a live shell in it.
What about that part, sir?
A. That's true I pumped it back but that's the night that I came back home after the drive.
Q. Yes? And what about this business with the single shell left in it, "it was a live shell in it"?
A. There was two shells left in it. That was a mistake on my part.
Q. The next entry says:
1245 hours took break
1345 hours resumed statement
I cleaned the gun all up, Rob told me to clean it all up, make sure there was no prints on it and to oil it.
What about that passage, sir?
A. That's true.
Q.
And I did this the same day they brought it over.
What about that sentence, sir?
A. No, I did it the same day that I went back to the house with it, that same evening.
Q.
I opened up the duct beside the furnace and put it on a rack that Jamie had built for me to store the gun. I had the gun a few days.
Absent the last sentence about having the gun for a few days, sir, what about the duct work?
A. That's correct.
Q. Okay. What about "I had the gun for a few days"?
A. That's not correct.
Q.Okay.
On the 30 Jan. Rob came to my place with Rick Mallory. He gave me a key and a half of hash. He gave me two days to sell it to come up with the money to pay them off.
What about that passage, sir?
A. That's correct.
Q.
Stewart told me I was like a cat, a cat has nine lives and I have three and I've already wasted two and this is my last chance to make up the money but he would not have me killed because there was enough killing so far, he said they were going cripple me. They left after that.