MR. COOPER: I'll Take My Turn at the End of the Line

WEDNESDAY, SEPTEMBER 8th, 1999

Upon commencing at 10:50 a.m.

Accused present

In the absence of the jury

MR. COOPER: I'll take my turn at the end of the line.

MS. MULLIGAN: Good morning, Your Honour. I should thank the Court for the indulgence this morning. I understand both Madam Registrar and myself were under the weather. I hope to be able to soldier on through the day, I'm sufficiently medicated that I think I probably will be able to, but I do have an appointment tomorrow afternoon at 2:45 on an emergency basis so I'm hoping that we will be able to accommodate that but I'm in Your Honour's hands.

THE COURT: All right.

MS. BAIR: Tomorrow is my doctor day, Your Honour.

THE COURT: At when?

MS. BAIR: 10:15 am.

THE COURT: 10:15 am.

Well, I'll wait to see how creative counsel can be in the trade-off.

Anyway, Mr. Cooper?

MR. COOPER: Yes, Your Honour, there's an issue that came to my attention this morning that I'd like to address the Court on. I received information from a confidential informant, well actually it was just Mrs. Neville

THE COURT: Ms. who?

MR. COOPER: Mrs. Neville informs me

THE COURT: Don't scare me to death, please.

MR. COOPER: this morning, and I stand to be corrected if I misstate this, that in a con- versation with juror number 1, juror number 1 indicated to Mrs. Neville that she, juror num- ber 1, "wishes that she could've been there yesterday to hear that ruling", being the ruling that's all in the front page of the paper today, in fact it's on the front page of every section except for the Sports section and the Classifieds, and, with respect, Your Honour, I think that causes us some serious concern as to, notwithstanding the publication ban that was honoured, some concern as to the effect of that newspaper report and of course the decision that spawned it causes on how this trial operates on the fairness of this trial and, with respect, Your Honour, I would be ask- ing the Court to caution the jury along the following lines, something to the effect of 'All or some of you may have read the newspaper accounts of a ruling made yesterday by another judge in another court. I caution you that that ruling means absolutely nothing to this Court', being Your Honour, 'nor to you.' The ruling or opinion of another judge hearing different evi- dence in another court has no bearing whatsoever on the task that is before this Court and before these triers of fact and they should ignore it if it's meaningless, and I'm stressing the word meaningless because I think the

caution has to be to that extent. It's very easy for the jury to misuse the sensationalized story that appeared in the leading newspaper in the Nation's Capital this morning and the only way to balance out that danger is with a clear- cut the only remaining way to balance out that danger is with a clear caution to the jury that it is a meaningless set of facts. It doesn't apply here at all in any way whatsoever.

Those are my submissions on that point.

My information my informant, Your Honour, indicates that it wasn't a discussion that Mrs. Neville had with the juror, the juror just spontaneously mentioned this to Mrs. Neville, which causes me a graver concern frankly.

THE COURT: All right.

MS. MULLIGAN: I would be strongly opposed to any such warning. All the juror has indicated is that she wished she'd been there for the ruling. She didn't indicate that she was going to misapply it. Nothing further than that. The jury, like everyone else reading this newspaper story, would take from it exactly what's there, that there was a breakdown in the Elliott case with respect to the way it was conducted by the police and the Crowns, that was the finding, and that as a result it wasn't in the best interest of the administration of justice or the public to continue the case. There is not a word about the Cumberland case in the article

that appeared this morning. So to go overboard and say that that judgment is meaningless, in my submission, it would be quite wrong. It may have some meaning to the jurors in the sense that it is important and it's part of their function to scrutinize and to look at the evi- dence objectively and not merely just accept, for instance, the police evidence or the position of the state. There's nothing wrong with that. There's nothing wrong if it cautions them to look carefully at all evidence that they're hearing, but I don't take the juror's comment "I wish I'd been there to hear that ruling" as anything more than curiosity and I don't think we can read anything more into it. To tell the jury that it has absolutely nothing to do and they can't use it and nothing to do with this case and that it's meaningless and all of that is an overreaction to a simple comment by the juror about wishing she had heard the judgment, the ruling. And there are lots of I've seen other jurors going from court to court in the building, when they're not sitting in here, sitting in on other cases. It's part of they're seeing what's happening in the administration of justice around the courthouse. I don't think that that's a wrong thing for the jurors to follow other cases or to be in other court- rooms, or whatever, I mean they're perfectly entitled to do that. There is no indication that this juror has made any connection between the Elliott case and the case at bar. None.

And to overreact, in my submission, and to give instructions that that has nothing to do with this case and that it's meaningless and all of that, in my submission, is to go too far. They're entitled to

THE COURT: Well it is to same investigating force. It is the OPP.

MS. MULLIGAN: Yes.

THE COURT: Yes. So you say so what?

MS. MULLIGAN: Yes, I think they know that they have to decide this case on the evidence before them.

THE COURT: "The OPP coopted the RCMP", that's a standard operating technique of the Ontario Provincial Police?

MS. MULLIGAN: It doesn't say that. The article doesn't say it's a standard operating technique of the Ontario Provincial Police.

THE COURT: No, but that's the kind of inference that's available maybe.

MS. MULLIGAN: Well, I think if anything is to be said, Your Honour, and I've certainly made my objection, I am strongly opposed to anything being said based on the minimal comment.

THE COURT: I would not have said anything had a juror not expressed an interest in knowing fur- ther details about it. That's the way I infer what she said. The inference I made from that was what was in the paper was sort of not suf- ficient, wetted her appetite and she would love to have more details. That's the way I would infer from that.

MS. MULLIGAN: Well, whatever inference Your Honour takes, I've argued that

THE COURT: I'm quite willing to have my inferences attacked. Feel free. Every time I do this people sort of say I'm making a finding, and I'm making rhetorical arguments, you know, so attack me. Tell me I'm stupid or anything you like, but I think I'm pretty broadminded about the way people can argue. That doesn't bother me very much. When I get mad you know it, and when I'm not mad you know that too.

MS. MULLIGAN: I don't want to attack you or tell you you're stupid, but

THE COURT: No, but what I'm saying

MS. MULLIGAN: I understand.

THE COURT: is people back away too quickly. I present a point of view and I'm prepared to defend it but if I can't defend it you'd be surprised how quickly I abandon it.

MS. MULLIGAN: I think, Your Honour, that it is what the juror said is consistent with the jurors

THE COURT: I may say having abandoned many positions with my wife for many years I'm very used to retreating.

MS. MULLIGAN: Perhaps I could just have a break to call her and get some advice.

Your Honour, I think that the juror's comment she wished she had been there to hear the ruling is not inconsistent with the way these jurors have behaved throughout the trial; they have been in and out of other courts and

watched other proceedings. They are curious about what goes on in other courtrooms in the building and they're part of the administration of justice now so that's hardly surprising. In my submission, based on the fact that they have been seen in and out of other courts and curious about other proceedings, I think that it's equally available -- the inference is equally available that they are just simply curious, it is quite a decision, and so to determine that it means one thing and not the other I don't think we have enough to work with on that basis.

If Your Honour is inclined to tell them anything I think that rather than make particular reference to say that the decision is meaningless and they ought not to think about it or they shouldn't be concerned about it, it has nothing to do with this case, I think that just a plain warning that they are or reminded that they are to decide the case here on the basis of evidence they hear in the court and nothing else would be sufficient given that there is an ambiguous sort of comment by the juror and it could be simply consistent with the curiosity of the other cases in the courthouse, any of the other cases. So, in my submission, just a mere reminder that they are to decide the case on the evidence that they hear before them at the end of the day and not to be influenced by anything outside the courtroom would be sufficient. To go further is to go too far, in my

submission, based on a simple comment of the juror. It might just be curiosity. It also sort of singles her out, I think, given that she made the comment this morning.

THE COURT: I'm going to disguise it by not doing anything right away, and I've already thought of that. I may do something at the break or at some later point. I will insulate the Court Reporter in the time reference.

MS. MULLIGAN: But I certainly wouldn't want

THE COURT: I should be on the CIA. Go ahead.

MS. MULLIGAN: I certainly wouldn't want the jury to take from that that they ought not to scrutinize all the evidence in this case, whether it comes from the police, or whomever, carefully. They are to scrutinize the evidence carefully

THE COURT: Yes. Yes.

MS. MULLIGAN: and not just accept it because it's the police. So this kind of press in fact reminds the public and the jurors and everyone else that their obligation is to do that, so I wouldn't want them to take away from it that they are to totally accept the evidence here.

THE COURT: No, I understand what you're driving at. Anyway, I'm going to

MR. DANDYK: Your Honour, might I say

THE COURT: think about what the proper words are. I think I will say something but I think I'll have to work on the wording a little bit.

MR. DANDYK: Your Honour, I have some additional comments and we haven't heard from Mr. McKech- nie yet.

THE COURT: Yes, Mr. McKechnie?

MR. DANDYK: Thank you.

MR. McKECHNIE: My only comment is that to call it meaningless would certainly draw their attention to it, those that haven't been paying attention to it would suddenly become interested and of course Mr. MacCharles and the others they will recognize the names and it'll suddenly become meaningful to them when you call it meaningless. So that's

THE COURT: It's always the classic conundrum in this situation, you're quite right, Mr. McKech- nie.

MR. DANDYK: Your Honour, the comment I was going to make is it's rather interesting what Ms. Mulligan has suggested. This jury cannot take from that decision that they must look at the evidence of these witnesses or scrutinize them. That, with respect, is irrelevant. The fact that they're cautioned to consider each witness in this case is one thing. The fact that they take anything from that decision, anything, and use it here is improper. It is irrelevant. If counsel wishes to lead evidence, convince this Court that certain evidence is relevant and can be heard either as part of the trial or the abuse motion they can so do and the jury can then consider it after the Court has ruled it to be admissible or relevant to

either hearing. However, with respect, they cannot walk away and it would be wrong in law, it is entirely prejudicial and irrelevant what happens in that courtroom. It may not be meaningless to society or to what goes on or whatever else, but it is irrelevant to this court- room and it is prejudicial to this courtroom, and it is interesting that Ms. Mulligan has suggested they are to rely on the evidence but somehow they can take that away from it, because they cannot, because they do not know, all they have is a decision, an opinion by a judge in another courtroom and it is the same basis upon which underlying facts become relevant, the fact that the charge may not, and then we are telling them that the conclusions, without them knowing all of the facts, all of the bases, are proper for their consideration and that they can take those conclusions and therefore question police, question Crowns, and they cannot, they have to do it on the basis of evidence led. That's the critical danger. And the interesting thing is, and let's not lose sight of where Ms. Mulligan is going and what her opening was, that's exactly what she wants them to do, she wants them to improperly use that judgment in this courtroom and that they cannot do and, with respect, therefore because of the connection the caution must be stronger than what Ms. Mulligan has suggested and that in fact for their purposes it is irrelevant and only evidence called here. They cannot consider

it on any other basis than to say 'There were other facts, other situations of which we do not know and which we do not need to know. We only concern ourselves with evidence led in this courtroom.' So with the greatest of respect that connection cannot be made and Ms. Mulligan, of course, very clearly wants it to be made and therefore wishes to in fact totally circumvent the rules of evidence and in fact consider improper, irrelevant and prejudicial information and affect this jury and this courtroom, and that is totally impermissible.

MS. MULLIGAN: I just have to respond. Yesterday there were some comments made by Ms. Bair that I was trying to work myself into a position when I expressly said I wasn't, on the record. Mr. Dandyk today says I want jurors to impro- perly use something and I want to totally wishes to totally circumvent the rules of evi- dence. I don't wish or want to do any of those things.

THE COURT: But he's saying that's the effect, though.

MS. MULLIGAN: Well that isn't what he's saying. I realize that that should be what he's saying.

THE COURT: All right, but the effect of it is that and that's all he's saying.

MS. MULLIGAN: But, in my submission, I wasn't trying to say that they use the evidence in that proceeding or anything, but to tell them that they I'm just concerned about the oppo- site effect, that by telling them that it is

meaningless, as Mr. Cooper put it, then they will find that they can do the opposite, that they don't have to scrutinize the evidence in this case from the OPP or from the words of the Crown in some cases.

THE COURT: We can't stop it in a sense from being part of their life's experience once they read the story. In that sense, that's true. The way that they might use it, though, could be wrong. For example, at a crucial point in deliberation someone says something like 'Remember that judgment that came out'. If I don't say anything about it now, then when they come to that point in their deliberations who will stand up and say 'The judge says that's irrelevant'. That's part of the problem. There's a concrete example of how it could be brought up in deliberations and if I don't say anything now there is no one to give the rebuttal to the wise juror who says 'Remember what that judgment was that came out just before we got the case about a month ago or whenever', and that's precisely why I think I have to say something. But I'm going to work on what I'm going to say because I have to find language that comes in between both positions. I can't deny them their life's experience in a sense but I've got to say that it's irrelevant as well. So there we are, between a rock and a hard place as usual. Anyway. But I'm going to think about it for a little bit. I'm not going to do that right away off the top of my head.

Bring in the jury.

MR. COOPER: Your Honour, do you want me to attempt to go right through 'til 1:00 o'clock or take a short break in the middle or?

THE COURT: Well maybe around 12:00 we could take maybe a short break or ten after 12:00, somewhere in there, wherever is convenient for you.

MR. COOPER: Thank you.

MS. MULLIGAN: We have to get Mr. Andrews before the jury is brought in.

THE COURT: We'll get Mr. Andrews up and then we'll call the jury. Maybe we'll take the break now too.