THE COURT: the Witness and the Jury I Guess

MONDAY, AUGUST 9th, 1999

--- Upon commencing at 10:00 a.m.

--- Accused present

--- In the absence of the jury

THE COURT: The witness and the jury I guess.

MS. MULLIGAN: Your Honour, when we had left off on the last day we were discussing Mr. Small- wood's answers, that he hadn't read any part of the legal papers, he took no information from them, learned nothing from them, didn't take anything away with him or gleaned anything from those papers and in his statements to the police it's quite clear that he did, and I was wanting to cross-examine on that area to contradict the witness, not only as it goes to his credibility but also to show that Mr. Stewart was impressing upon him not his guilt but rather his innocence and that Mr. Smallwood has mischaracterized the nature of their conversations. I had pointed out not only in the statements that he spoke about what the legal papers had said in the first statement and also when he was reviewing the body pack, but that later on when he's talking with Heather Lamarche and Officer Riddell he tells them that he knows what people have gotten in this case, he's seen the documentation. The people being witnesses. So it seems clear or can hardly be disputed that he has in fact taken some information from those documents and he's told me and Mr. Cooper that he hadn't. He told Mr. Cooper he hadn't

read them. He told me he took no information from them, didn't learn anything from them, didn't glean anything from them. So that

THE COURT: Can you show me the place where he says that Mr. Stewart proclaimed his innocence, beyond what he has already said, either in po- lice officers' notes or somewhere else? We're back into the same conundrum if we go at that directly.

MS. MULLIGAN: No, I'm not going at it directly in that it doesn't -- that the legal papers that he shows him, he's told, according to Mr. Smallwood, that these papers are for the purpose of having the case thrown out, that it talks -- it's mostly about wrongful actions of ---

THE COURT: But that has nothing to do with guilt or innocence. That has to do with getting the case thrown out. That has nothing to do with protests of innocence.

MS. MULLIGAN: I think when one considers all of the other evidence as to what Mr. Stewart was saying to the witness, it has everything to do with it, Your Honour. He's made every ---

THE COURT: Tell me about it.

MS. MULLIGAN: All right. He has in every sense

THE COURT: Mr. Stewart must have arguments because he's mouthing them. You'd better go get them. I can't get them from him but I'd take them if they advanced the project.

MS. MULLIGAN: In my submission, Your Honour, in every sense Mr. Stewart, when one looks at the entirety of their conversations and their rela- tionship, Mr. Stewart is talking about lying witnesses, he's talking about police officers who have misconducted themselves, he's talking about how he didn't do it. He's talking ---

THE COURT: And even the innocent, and especially the innocent, can talk about lying wit- nesses. It's not the same thing, counsel. There is a fundamental distinction.

MS. MULLIGAN: Yes.

THE COURT: The fact that the Crown's case is weak, the fact that witnesses lie and so on has nothing to do with a person's personal moral subjective innocence.

MS. MULLIGAN: When that is all combined with "I didn't do it", "I'd rather sit here than take a deal that would have me out of jail"

THE COURT: He never said he didn't do it.

MS. MULLIGAN: He does say that, Your Honour, in the tape, on the body pack.

THE COURT: The witness says he didn't say that. MS. MULLIGAN: Yes, but on the body pack it's quite clear that's what he said.

THE COURT: But that is also caught by the other rule.

MS. MULLIGAN: But what I'm being forced to do, Your Honour, in my respectful submission, is argue about a fiction, then. I'm being asked to argue about where Mr. Stewart said he was inno- cent except for those places where he said he

was innocent that have been excluded. I'm trying to put to Your Honour that in the overall context, his showing this witness a letter and talking to him about that letter and this witness taking away things from that letter is indicative of the entire nature of their relationship, that he was trying to impress upon him not only that the case had run afoul, that the prosecution was wrong, that the witnesses were liars but also that he had not done this as opposed to the characterization that Mr. Smallwood puts on it that all of these things happened but he still says he did it, he still says he had to kill these people, and in my submission when one looks at everything that's simply not the case. When we look at

THE COURT: I mean you've got the maximum benefit out of the 35 thousand. The witness put it together the wrong way, that it was the victims who owed the $ 35,000. In fact the explanation really probably is or could be, arguably, that the 35 thousand simply means money was owed and that's what it meant and that was the context and it was the witness who supplied the context. You've got it before the jury, fine, in the way that it suits you, you weren't hindered in any way whatsoever that the witness made a mistake in attributing the meaning in the wrong way, but there is a more general meaning to the statement and it's there, and the fact that the witness got it wrong doesn't change anything.

MS. MULLIGAN: All the more important then, Your Honour, that I be able to challenge the wit- ness' credibility, and the witness has said that he didn't take anything away from reading this letter, he didn't read it in fact and ---

THE COURT: Oh, I've got no problem with that. I'm sorry. I've no problem with challenging his credibility on what he took away and what he read and so on. That's not the problem. The problem is when you go to the next step then it's denying my ruling, in my view, by saying you're calling upon the witness to say what the accused said about his protestations of innocent.

MS. MULLIGAN: But what I need to do, Your Honour, in order

THE COURT: Because it's his statement that says "I took away", "I read it" or "I read the first couple of pages" or "I got this much out of it" or whatever, I have no problem with that, you know, he's got to live with that. That's what he said.

MS. MULLIGAN: All right. So that was what we were arguing about when we left on Friday is that I be able to crossexamine him about what he has previously said himself ---

THE COURT: Yes.

MS. MULLIGAN: --- about what he learned from the legal papers.

THE COURT: No problem about that. I don't see any problem. I don't see what the Crown could

argue about that but maybe there is an argument but I don't see what ---

MR. COOPER: There is.

MS. MULLIGAN: All right.

THE COURT: There is?

MR. COOPER: It's not a new argument, Your Honour, it's the same one I made on Friday.

THE COURT: Oh yes, the problem that it's somebody else's notes.

MR. COOPER: No, no.

THE COURT: No?

MR. COOPER: No. A different one yet.

THE COURT: A different one yet.

MR. COOPER: The problem is Ms. Mulligan - I almost spent the whole weekend to review this - is persistently mischaracterizing the documents in question. There were two documents viewed, one was viewed in the course of the interception on the 12th of May, 1999, the other was viewed prior to the interview with Lamarche and Riddell on the 3rd of May, 1999. Ms. Mulligan is transposing these as if it was the same incident and she persists in doing that notwithstanding I clarified it for her on Friday.

MS. BAIR: Well, I guess the problem then is that we should probably argue at this point, assuming Ms. Mulligan manages to establish the necessary foundation and that is a flatout denial that he ever took anything from the letter, then where do we go? The problem, as I see it, Your Honour, is that Ms. Mulligan can say 'yes indeed you did take something from the

letter, you took this information about what all the witnesses got for their involvement in the matter from the letter', and there's nothing problematic in that. The problem is that the rest of the letter is there for the jury to speculate about is that where he got all of his information.

So my request of the Court and of Ms. Mulligan would be that there be a stipulation that the factual details were not contained in that letter, that the letter is one that does not deal with the facts such that Mr. Smallwood could have derived his information on the facts from that letter. I don't want it out there as a source of his information in general, beyond what the witnesses got out of the case. So assuming the factual foundation can be met, which has yet to be determined I suppose, I don't suppose Ms. Mulligan would have a problem making that stipulation that the letter does not deal with the factual issues.

MS. MULLIGAN: And I wouldn't if the letter does and I don't know what parts of it he read. The letter certainly does contain factual issues and witnesses' testimony and excerpts of transcripts and all kinds of things, so that's the difficulty. I don't know which parts of it he read. He said he breezed through the first three or four pages.

THE COURT: That's his evidence, yes. So are there any facts in the first three or four pages?

MS. MULLIGAN: Well I have the first three here.

THE COURT: Then the next issue becomes he's not believable that he only read three or four pages, he read 120 pages, and that's fine, but you have to tell him what he did do, you have to put it back to him what he did do, what he admits to doing anyway. When we're talking about the letter, we're talking about the sub- missions to the Attorney General by Mr. ---

MS. MULLIGAN: Lockyer.

THE COURT: --- Mr. Lockyer, yes.

MS. MULLIGAN: Yes.

MS. BAIR: Wherein it's made clear that -- I mean, really, then this is the problem. This letter then has to go to the jury for them to determine whether it is the source, the possible source, and in that letter the jury will discover that two others have already been con- victed, so we walk into this very dangerous territory. I guess it's a calculation my friend has to make but you can't just extract the pieces you want. If the point is that he extracted his information from the letter then the letter, in my submission, becomes an exhib- it and then where are we?

MS. MULLIGAN: In my submission if the letter becomes an exhibit Your Honour always has the overriding jurisdiction and discretion to exclude anything that is horribly prejudicial.

MS. BAIR: There we go. And that's where we would go next. This letter is horribly prejudicial and I would submit that the probity

involved in this exploration is dramatically outweighed by the necessary admission of the letter which follows upon this exploration.

MS. MULLIGAN: It's my submission that it is not necessary for the letter to be admitted. The issue here is whether he read anything or took anything from it. He says no, he didn't. His statement suggests otherwise. He's made a prev- ious statement to the contrary inconsistent with his evidence under oath. He merely needs to be crossexamined on those statements. To have to go as far as to admit the -- out of how many pages the letter it was, I don't know, 50 some pages, about counsel's view of the case seems to me to be silly, I mean that doesn't seem to me to follow from what I'm asking to do. He's made a prior inconsistent statement, I'm simply asking to crossexamine on it. That's it. To go so far as to say the whole letter would have to go before the jury and all the rest of it, he can tell us what he took from the letter. He says there was no factual details in the pages he read.

MS. BAIR: Well, then, if that is the concession that there was no factual details in the pages that he read, then we're fine, otherwise it's a matter the jury will have to decide and then the letter goes to the jury.

My friend says he can tell us. Well, he can only tell us and we can only be satisfied with that with a stipulation from my friend that his evidence is to accepted at face value on those

points, otherwise the Crown has re-examination and the jury then has the opportunity to decide whether in fact it's reasonable that he took no factual matters from this. I mean, my friend may only want to make a certain point but it doesn't mean that that's where the matter stops.

THE COURT: Well, are you going to let the wit- ness read what he's already said, the three or more pages?

MS. MULLIGAN: I'm sorry, read before I cross- examine him?

THE COURT: Or while in the process of because otherwise I don't know how the witness can inform himself of the contradiction you're seeking because you're seeking to say he took his knowledge of the facts from the letter and if he only read three or four pages of the letter and it contains relatively few facts, then that's his defence. If it contains some things that he I mean, you think he's in trouble anyway on the general denial basis but as to what he actually took out of it I think he'd have to read it in order to know what he took out of it, in fairness.

MS. MULLIGAN: So I'll

THE COURT: So you begin by crossexamining, as I see it, on the issue of the fact that he must have taken something from it. Then the issue then becomes well what did he take from it and if he stays with the three or four pages then I think he must be entitled to say 'I read the

three or four pages and there's nothing in there that I took from it that has to do with the case' because I agree with the Crown we can't leave the jury with the impression that after the three or four pages of a lengthy document everything else is contained in there, so he went further than that, without letting him read the whole thing and putting the whole thing to the jury. So that's the way we'll proceed.

MS. BAIR: I think that the starting point, though, Your Honour, is back farther.

THE COURT: Excuse me?

MS. BAIR: The point that Mr. Cooper made that Ms. Mulligan has it to date that he's saying he never read the letter whereas what he said is he didn't read the letter at the time that it was handed to him with the newspapers, if I've got that correct.

MR. COOPER: Yes, it's right here and I believe I can just help you, Your Honour. The transcript has arrived. At the bottom of page 65 it says, and this is in chief and it's in reference to the newspaper clippings being handed to him during the course of the interception:

"A.At the time I had a stack newspaper clippings and underneath it I had some legal papers that were stapled together which I never did read. I had the papers in my hand kind of like so and newspaper articles were laying across them."

And then he goes on to other areas, Your Honour. Oh, actually no, there's another question.

"Q.Okay. You told us where the newspapers came from. Where did the legal papers come from?

A. Mr. Stewart.

Q. I don't have ...

A.You can't actually hear it on the tape that clear but first he handed me the newspaper articles and then he hands me the stack of legal papers and he says 'And this'. So I'm more interested in the newspaper articles than I am the legal work, so I set the legal work under this and go over it reading the newspaper articles."

And that's the end of the relevant portion.

MS. BAIR: Would the Court like the opportunity to see the first few pages of this document?

THE COURT: Yes, please.

MS. BAIR: There are the first four.

THE COURT: Any suggestions on how to proceed with respect to the two -- there are two time frames involved which seem to have been collapsed into one.

MS. MULLIGAN: I think I was clear in my cross- examination but I'll be clearer and I'll go back over it and ask the witness if he ever saw a legal brief or a letter written by Mr. Stew- art's law firm prior to the body pack or if he ever saw one during the body pack or after the body pack, cover all the time frames, and at any time, if he saw that letter, if he answers yes, at any time did he read any portion of that letter and take any information from that

letter. I think that's the best I can do to clear it up, just to say at any of those times.

THE COURT: M'hmm-hmm.

The Crown, any views on that?

MR. COOPER: I'm just trying to find the actual passage, Your Honour. Yes, that is the way to go, Your Honour. The line of questioning was clearly pursuing the 12th of May interception and then Ms. Mulligan, without mentioning any dates, well, I'm sorry, I shouldn't say without any dates, immediately turns back to the May 3rd interview and this is the contradiction. Of course the May 3rd interview is nine days before the interceptions.