FRIDAY, NOVEMBER 20th, 1998
--- Upon commencing at 10:00 a.m.
--- Accused present
--- In the absence of the jury
THE COURT: I'm going to begin this ruling by saying what I'm not going to do. I'm not going to decide the issue of the use of the notes of Detective Riddell until we have a voir dire. I think it's appropriate in the circumstances of this case to have the voir dire before I make the final decision on that, especially in the light of the ruling I'm going to make on the other matter, on the question of the use of the preliminary inquiry and the crossexamination of Mr. Edelson. I don't know if we can go right into that voir dire now or not. I don't know. I see Detective Lamarche is here but I don't know about Detective Riddell.
MR. COOPER: He's somewhere.
THE COURT: He's somewhere?
MR. COOPER: I haven't seen him this morning but I'm sure he's here.
THE COURT: All right. Thank you.
Anyway I'll give the ruling on the other part now.
McWilliam, J. (Orally):
(1)Ms. Mulligan has asked the Court to allow her to crossexamine Mr. Gaudreault using his preliminary inquiry answers to questions about the source of his funds allegedly used to pay Mr. Sauvé. In his evidence on this subject at trial Mr. Gaudreault was very succinct, he did not remember the conversation with Detective Lamarche; if he did say that, then it was a lie.
(2)Dealing with the transcript of the preliminary inquiry, Ms. Mulligan's principal argument was that although Mr. Gaudreault took the same position as he did at trial at the outset of his crossexamination, by the time it had con- cluded at the preliminary inquiry he had adopted the position of the crossexamining lawyer that he had at least remembered the conversation. I am not convinced that the contradictory admission is crystal clear, and even if I was so convinced there is another problem. There are several places in the transcript where the lawyer conducting the cross- examination says "It's in the notes" either expressly or by necessary implication. The problem with that is that I have ruled at this trial, where a jury is involved, the danger is that the notes become the evidence and the witness is reduced to a bit player while counsel makes a symphony out of the notes.
(3)I am satisfied that the reference to the notes here are an integral part of whatever admission may have been made. It is also not clear, as I said, whether the admission is the fact he said that Randy brought the 18,000 on Wednesday or that the statement is "in the notes."
(4)In these circumstances the transcript of the preliminary inquiry is not contradictory in the clear and unambiguous way required by the case- law for its use at trial. Given that Mr. Gau- dreault's original position at the preliminary inquiry was exactly the same as it was at trial, and given that Mr. Gaudreault, whatever reservations defence counsel may have as to his credibility, and I suppose I should add and they are legion, the Court must always be mindful that his command of the majority offi- cial language is syntactically sketchy. To quote Mr. Gaudreault, there have been many samples of that in this trial.
(5)Consequently, I would rule that the transcript of the preliminary inquiry cannot be used in this context for the purpose of contradicting the witness. I would have thought that the judgment of Mr. Justice Hill in Alexis would have become required reading by now. If a particular subject may be crucial at trial and if it may be particularly crucial out of the mouth of a particular witness, then counsel at a preliminary inquiry should ensure that the
transcript arrives with the bit player playing and the notes muted.
THE COURT: Now we could go into the voir dire now or take up with Mr. Gaudreault, whichever is more convenient to counsel. It doesn't matter to me. We could even push it off over when Mr. Gaudreault comes back or do it right away. I'm in counsel's hands.
MS. MULLIGAN: I don't anticipate it'll take very long and I'd kind of like to deal with the issue if we can. I expect it'll be just a few minutes of evidence on the voir dire. I can't imagine there's much more to ask.
THE COURT: Fine. Whatever counsel want and as long as the witnesses are here, that's .....
MS. MULLIGAN: Detective Lamarche was here.
HEATHER MARGARET LAMARCHE, sworn
MS. MULLIGAN: I wasn't intending to do this. If I could just have a moment.
THE WITNESS: Neither was I.
THE COURT: I'll set out my reason, I guess I should for the benefit of counsel, I didn't really articulate it, but I felt that if the result of the ruling were to be that counsel is restricted from crossexamining on the notes, then given that it's such a fundamental denial of full answer and defence to deny the right to crossexamine that we ought at least to have a voir dire on the matter, so it's all out there now.
EXAMINATION-IN-CHIEF BY MS. MULLIGAN:
Q. Detective Lamarche, you don't have your notes for July 30th, 1990, right?
A. No, I do not.
Q. Some time ago a notebook was lost, I under- stand?
A. I believe it was about 1991 when we were putting the 800-page brief together, I think that's the time period that it went missing and I've never been able to locate that particular notebook.
Q. Okay. On July 30th, 1990 there's an indica- tion in Officer Riddell's notes that you had a conversation with Mr. Gaudreault and I don't know what I can do to put it into context or time for you, but do you recall speaking with him several times regarding sending the disk, that he was going to send it by Purolator, after you'd been out there in July?
A. Yes, I do remember having conversations about the book and the disk.
Q. And in this particular conversation do you recall talking to Mr. Gaudreault and him saying he was going to send the disk now, he hadn't sent it but he was going to?
A. Well, I remember having conversations with him about that but to say that it's that date, no, I can't even be certain about that.
Q. Was it a concern of yours around that time, you had been out I guess in July, you had talked to him about these papers?
A. Yes.
Q. The papers with his debt list and all that?
A. Right.
Q. Was it a concern of yours to find out where he got the $10,000. he says he paid Sauvé?
A. Yes, and in fact for the time period that my notebook was lost I do have other papers, notes that I had made as well and I do have those, and I know on the 17th of July we had had a meeting and that was one of the issues that we wanted to clear up with Mr. Gaudreault.
Q. Okay. And can you recall whether -- I'm going to suggest to you it was July 30th, 1990, can you recall speaking to Mr. Gaudreault about that issue and what he might have advised you at that time frame?
A. I don't remember the conversation on July 30th. I have reviewed Detective Riddell's notes and quite often when I would get off the phone I would relay to him what I had just heard or learned.
Q. Okay. And you said you have reviewed Detec- tive Riddell's notes?
A. Yes.
Q. Did that help you refresh your memory as to what you learned from Mr. Gaudreault about the source for this 10,000?
A. I know that we later went and asked Mr. Wara about that, so I would I can only assume that that's what was told to me on that day.
Q. And when you say that's what was told to you, in Detective Riddell's notes, which you've reviewed, it says "Also asked him about money $10,000. he paid Sauvé. Advised Randy brought him 18,000 that Wednesday". So what you're saying is you know subsequent to that you went and interviewed Randy, being Randy Wara.
A. Right.
Q. About this issue of whether he brought money to Mr. Gaudreault?
A. Right.
Q. Were you asking him if he brought $18,000.
to Mr. Gaudreault?
A. I didn't review my notes for that particular day when we spoke to Mr. Wara.
Q. Do you know when that date was?
A. I think it's the 1st of May, it would've had to be in '91 because we didn't know who Randy Wara was until we did a search warrant at Mr. Stewart's cottage and found Mr. Wara's name on a phone bill.
Q. And could you get your notes for the 1st of May '91, Detective?
A. It'll just take me a few minutes.
Q. Okay.
A. Okay, it was the 1st of May, 1991 that Detective Riddell and I went to see Randy Wara and I don't particularly have in my notes a question, a direct question
about whether or not he supplied 18,000, it may be in Riddell's notes, but I do have that he rarely picked up money for Stewart unless he specifically asked him to.
Q. And you have a recollection that this was one of the things you wanted to talk to him about was whether he gave Mr. Gaudreault money.
A. Yes.
Q. Now you often would speak to Mr. Gaudreault you said and you would then tell Officer Riddell what had occurred?
A. Right.
Q. And you had no reason to mislead Officer Riddell, you would tell him to the best you could exactly what was stated?
A. Of course.
MR. COOPER: What do you mean would tell him?
MS. MULLIGAN: In this case.
MR. COOPER: What she did on that day, not her normal practice.
MS. MULLIGAN: Well, I don't necessarily agree, Your Honour. She doesn't have a recollection of this.
THE COURT: Well, there's two possibilities, you can cover both if you like.
MS. MULLIGAN:
Q. You have no recollection of this particular conversation?
A. No.
Q. However, you would routinely tell Officer Riddell what information or new information you might have received from Mr. Gaudreault over the phone.
A. Yes. We were working together.
Q. And did you ever lie to him about what Mr. Gaudreault told you?
A. No.
Q. You've reviewed most or all of Officer Rid- dell's notes at some point or another, right?
A. I reviewed a lot of notes. Yes, I would've gone through all his notes.
Q. And did you have occasion to correct any- thing that he had written down that came from you in that sort of situation when you had spoken to Mr. Gaudreault, would you have occasion to speak to him about it or say that's not what I said?
A. About this particular situation?
Q. About this one or any other, has there been a problem with the information that you conveyed and Riddell put in his notes?
A. I haven't specifically noted anything like that when I was going through the notes. However, I know we do disagree on something that's in his notes from the 15th of June.
Q. But in this particular situation you can't say whether you in fact told him that or not. You assume you did?
A. I assume I did.
Q. And there's no chance I guess at this late stage that your notebook is going to be recovered or located?
A. Well, no, I wouldn't think so at this point in time. The detachment that I was working in was well searched at the time. I've been through everything, all briefcases that I would've had.
Q. Would you have this note you've reviewed of Officer Riddell's "never sent disk, going to do it now. Also
asked him about money $10,000. he paid Sauvé. Advised Randy brought him 18,000 that Wednesday", would you have necessarily told Officer Riddell any unimportant details about what Denis was doing that day or would you only pass on or did you only pass on ---
A. No. No, I would've probably given him the whole conversation, I mean if he had said -- I know that when I routinely spoke to Denis Gaudreault we spoke about family, how Rhonda was doing or the baby, that kind of thing didn't go in my notes and I would've probably, if that was discussed, would've told Riddell.
Q. But certainly anything that was important to the investigation you would've also told Officer Riddell.
A. Yes.
MS. MULLIGAN: Those are all my questions.
MR. COOPER: Mr. McKechnie?
MR. McKECHNIE: I'm not in a position to ask anything, I'm sorry.
THE COURT: All right.
CROSS-EXAMINATION BY MR. COOPER:
Q. Officer Lamarche, there's more than one occasion your notes and Officer Riddell's notes about the same conversations don't match up.
A. I could only think of the one example right now but ---
Q. Which example are you thinking of?
A. The 15th of June where Gaudreault was in the back of the vehicle and Riddell was driving and I was a passenger and he was talking to us about Trudel and another fellow that lived down the road coming with the boat to Rob
Stewart's place, and the type of car that was used was different in my notes from his notes.
Q. And that's a conversation where you and Riddell are both there contemporaneously listening to Mr. Gau- dreault.
A. Yes.
Q. Yet you copy down one car in your notebook, a car which exists, right?
A. Right.
Q. Riddell in his notebook copies down another car which exists.
A. Right.
Q. Not the same car.
A. Right.
Q. You're both hearing the same conversation at the same time, taking contemporaneous notes, and Riddell makes an error or you make an error
A. Right.
Q. when listening to Mr. Gaudreault live.
A. Well I would think I -- I would like to think it wasn't me that made the error but .....
THE COURT: We'll hear the other version of that, I suspect, shortly.
MR. COOPER:
Q. Officer Riddell in that case was driving the car.
A. Yes.
Q. His notes were not contemporaneous.
A. No.
Q. You say his is a mistake.
A. Well .....
Q. In this conversation, Riddell's not listen- ing to the conversation.
A. Right.
Q. It's not a Sylvie Gravelle, I'm on the extension phone situation.
A. No.
Q. Riddell is not there, he's not a party to this conversation.
A. No.
Q. Mr. Gaudreault is difficult to communicate with?
A. Very.
Q. This is early on in the relationship with Mr. Gaudreault, correct?
A. Yes.
Q. Would that be '91?
A. 1990.
Q. 1990, the 30th of July, you've had at most in your whole life maybe six hours of conversation, eight hours of conversation in total with Mr. Gaudreault thus far, 10 maybe?
A. I would think more than that.
Q. You had one experience in ---
A.Victoria, ---
Q.--- oh, actually you've had a couple of extra days I'd forgotten about.
A. --- Belleville and then Brockville.
Q. So you've had ---
A.So it would be more than that.
Q.--- conversation with Mr. Gaudreault over the course of about several live occasions and a bunch of tele- phone conversations.
A. Right.
Q. Correct? Have you had over the course of the years have to ask Mr. Gaudreault again and again to clarify things because you couldn't communicate with him very well?
A. Yes.
Q. And in this case it's you on the telephone in conversation. Mr. Gaudreault is searching some sort of bank records or something, is he? Did he tell you that?
A. I don't know.
Q. Mr. Gaudreault would say 'Gee, I don't know, it might have been something about Randy maybe that's it, can I get back to you then?', did Mr. Gaudreault say something like that?
A. I don't know. I don't remember the conversation.
Q. So is it fair that well, you don't have any recollection of the conversation?
A. No.
Q. But certainly you've never had a conversation with Mr. Gaudreault that was three lines long.
A. No.
Q. You couldn't ask Mr. Gaudreault what he wanted for lunch and get away with three lines of notes.
A. No.
Q. And have complete notes, could you?
A. No.
Q. Ms. Mulligan asked you if you'd reviewed Officer Riddell's notes. You've reviewed everybody's notes ---
A. That's right.
Q. --- many times over. Your latest review of Officer Riddell's notes for the 30th of July was yesterday when you were asked to photocopy them.
A. Well that's right because I was sitting in court thinking I don't remember him being back here in July unless he was here on a drug operation and we met with him briefly, but I kept thinking that that wasn't I didn't think it was the end of July, and when I got a copy of his notes to photocopy them that's when I realized what the error was.
Q. Right. And so initially you're probing your mind to think geez did I have a conversation with him? I don't recollect having a conversation one on one with Mr. Gaudreault?
A. One on one, right.
Q. Face-to-face rather. And not until you read the notes on your way to the photocopier that you realized that you were able to reconstruct it partially.
A. Right.
Q. But you have never been able to reconstruct it totally.
A. No because I don't particularly remember that specific conversation.
Q. Okay. There's one more thing that I was trying to find here and if I may just have a moment. Oh yes. Your last review of this yesterday, your latest review of these notes
A. Yes.
Q. isn't exactly contemporaneous, it's eight and a half years later, right? These notes were taken on the 30th of July, 1990, so they indicate, and you're eight and a half years later looking at them.
A. Right. If I had been asked about that with- in a year or two perhaps I could've remembered but not now.
Q. So your review of it is -- it's not like Riddell takes notes and you read them and initial them?