THURSDAY, DECEMBER 2nd, 1999
--- Upon commencing at 10:05 a.m
--- Accused present
--- In the absence of the jury
THE COURT: Did counsel have any order that they want to deal with the matter?
MR. DANDYK: Your Honour, maybe I'll
THE COURT: I realize that the from my reading of the cases that the Crown ought to seek the judgment of the Court with respect to reply evidence, ---
MR. DANDYK: Yes.
THE COURT: --- at least it's said in one of the cases.
MR. DANDYK: Yes.
In relation to those cases the principles are pretty basic. It is the Crown's respectful sub- mission that each of them is proper reply. It's not the Crown's intention, in fact, to deal, at least at this point, in any detail with those cases, the material is there. As I understand as well, just so we can indicate, in discus- sions I understand there has already, well, there has already been a ruling in relation to the envelope.
THE COURT: Right.
MR. DANDYK: As I understand as well in relation to Miss Morin and her evidence as to the evening of the 16th and seeing two French males snow shovelling and overhearing those individuals, addresses evidence of Mark Potvin. As I
understand as well there is no issue or contention from counsel that that is proper reply. In relation to Glenn Miller and the issue of the guns and the restrictive ruling when he testified, I understand as well given the actions of counsel there is no issue in relation to that being proper reply. And in relation to Wendy Flaherty and the aspect of Whitley Clauzel when he was at the RDC arose, of course, out of the evidence of Mr. Mallory, and as I understand as well there is no issue as to that being proper reply. So it's not the Crown's intention, obviously, to argue what is in fact not going to be contested.
MS. MULLIGAN: I'm sorry, I don't mean to interrupt Mr. Dandyk, but I didn't -- I was putting the cases together and I understand what he was saying about Glenn Miller and the issue of the guns. He said something about guns.
MR. DANDYK: As I understand, counsel is acknowledging that that is proper reply in dis- cussions the other day.
MS. MULLIGAN: No, I don't ---
MR. DANDYK: Well, now we apparently have something new which we didn't prepare for. In any, case, it is the Crown's respectful submission
MS. MULLIGAN: Well, my problem is, just before Mr. Dandyk goes on, that wasn't something that I recall hearing about, and I could be wrong, on the discussion that Glenn Miller would be called in reply. So, Mr. Dandyk says 'well
that's something new.' It sounds to me like it's something new to me. If I could maybe just
MR. DANDYK: Okay.
MS. MULLIGAN: --- ask for a moment. Maybe Mr. Dandyk
MR. DANDYK: I'll speak to counsel briefly.
MS. MULLIGAN: There will be an issue with respect to that.
MR. DANDYK: All right.
MS. MULLIGAN: That wasn't part of our discussion that we had ---
MR. DANDYK: All right. Thank you.
MS. MULLIGAN: --- on Friday that I can recall and Mr. McKechnie didn't seem to remember it either, so .....
THE COURT: All right.
MR. McKECHNIE: Our discussion with respect to Miller was just that we were prepared to say that the video was the 16th of October. That was the only discussion we had.
MR. DANDYK: Okay, so that you're in a position to admit.
MS. MULLIGAN: Yes.
MR. DANDYK: All right.
Then it would be the Crown's intention, and I guess we're going to have to get some material together in relation to portions of the 6th and 7th of December, some of which restrictively Glenn Miller was allowed to refer to but not in detail, and it is the Crown's intention to go into them and I'll prepare that. I do note as
well that the issues were subject to cross-examination by Mr. Cooper, so if there's ultimately any issue as to, I suppose, prejudice and/or other bad conduct or something, of course it is a clear plank of the defence now as to this no gun policy and I think, with respect, that is now very apparent.
So it is the Crown's respectful submission now Glenn Miller is no longer or should no longer be restricted as he was when he testified and he should be able to detail discussions and information coming out of the mouth of Mr. Stewart as to gun discussion, reference to grenades and reference to dynamite, all of which in actual fact Mr. Cooper touched on in his crossexamination. So we will arrange, then, I suppose to, although I think in actual fact -- anyway, during the break we'll pull those additional references. We intend to have Glenn Miller testify as to what Mr. Stewart said and as to when it was said, and it is the Crown's respectful submission that that properly arises from the no gun policy and in fact obviously the Court ruled, at least in relation to crossexamination, that cross-examination or leading of certain evidence was now permissible as cross.
It is the Crown's respectful submission as well that entire no gun policy arising from Mr. Mallory, of course, now makes it proper reply. And it is, with respect, a very critical cen-
tral issue in this case. It is clearly, in the Crown's respectful submission, obviously therefore not collateral.
The final one I said was Wendy Flaherty and I think I've made reference. I don't believe there is an issue with that, is there, Ms. Mulligan?
MS. MULLIGAN: No, there's no issue ---
MR. DANDYK: Okay. Thank you.
MS. MULLIGAN: --- with respect to Wendy Flaher- ty assuming the issue is the same as to the records of Whitley Clauzel only.
MR. DANDYK: Whitley is at the Regional Detention Centre, correct.
The two expected issues, then, relate to Offi- cer Morrissette receiving a phone call from a person identifying himself as Richard Mallory and comments that he makes, and I understand Mr. Cooper has provided that. He can illuminate somewhat in relation to the factual aspect on that. What I will indicate, though, it is, in the Crown's respectful submission, effectively part of the narrative in relation to the arrest and it is part of the evidence that belies Mr. Mallory's entire stance that he was in fact going to turn himself in. It effectively is, number one, a trial issue for that purpose because that's the impression he tried to leave, and it, as to timing and so on, in fact contradicts what Mr. Mallory has testified to. What Mr. Mallory has effectively presented,
aside from the narrative of that arrest and the narrative or a claim of turning himself in, it becomes a trial issue as I've said. He's effectively tried to present -- I guess it's almost -- it's after-the-fact conduct but consciousness of innocence as to his claim, that's what his claim is, but interestingly enough it is one of the aspects that shows that he is not credible on that basis and in fact makes it afterthefact conduct going to guilt and, at the very least, contradicting that direct evidence. Those are both direct trial issues and relevant issues as to the afterthefact conduct. In fact, it becomes clear in relation to that phone call and comments made by Donna Delaney that what was occurring was he was evading the police, he was evading the police in relation to the information we've already had in crossexamination as to his brother going to the Butler Hotel, he went to the Butler in between, and then in fact he goes to Donna Delaney's and we will hear from Donna Delaney, of course, and it's clear from the notes of Officer Davidson, that Donna Delaney, as was Wayne Maksymonko, was assisting Mallory and, in the Crown's respectful submission, this is where the aspect of sort of common enterprise comes in, and when we have circumstantial evidence, which this is, showing a series of events that show in actual fact it belied his turning himself in but show evasion and avoidance of the police, then it becomes after-the-
fact conduct. When we have Donna Delaney later, number one, lying to the police about Mallory being there, number two, contradicting herself in statements she makes, and, number three, making reference to what, in the Crown's respectful submission, is a proper inference, the information she received from Mallory; I'll address this in a moment in more detail.
Obviously there's another inference to be drawn but unless I'm mistaken that would be an inference to be drawn based on what the Crown respectfully submits are lies by Mr. Mallory because the newspaper -- the origin of the newspaper comes from Mr. Mallory and, with respect, that's a lie. It didn't come from there. In the Crown's respectful submission what we have is a killer who is minimizing his role, and I said I'll make reference to it. The point being that the Morrissette evidence does not sit by itself, number one, and, number two, it is relevant as part of the circumstantial evidence belying that issue.
The only issue I am aware of mentioned in dis- cussions in relation to Morrissette is reference to, I believe Ms. Mulligan has some concerns about it being -- just because the person identified himself as Richard Mallory that's not enough, and all I've provided is I've provided an extract from Rowbotham, 1988, 41 C.C.C. (3d) at page 1 and I specifically refer to pages 50 and 51. This comes from wiretap law
but the principles are the same. At the bottom of 50 and the top of 51, it's the last portion I've actually copied, obviously there's more discussed. It's the last page of the brief decision.
THE COURT: It's the voice identification.
MR. DANDYK: Yes, exactly. The last partial line of page 50:
... in some of the interceptions a particular accused would identify himself or herself and the trial judge correctly told the jury that in that event they were entitled to assume that the identification was correct.
And then it goes on to other issues, as to other types of identification. In any case, there's our Court of Appeal clearly saying when someone identifies himself that's a sufficient identification for the jury to consider. If counsel wants to contradict it or suggest something else it's for the jury to decide, but clearly they get it, and in the Crown's respectful submission that is actually the only consideration that I'm aware of in relation to if I might have a moment in relation to Morrissette. Maybe there was something else. Oh yes, actually there was another. Mr. McKechnie suggested it was collateral and I think I've addressed that issue, of course. With respect, it is not collateral. An entire basic issue in this trial and the entire claim of sort of consciousness of innocence by Mr. Mallory trying to suggest that he was turning himself in, trying to suggest he was arranging it
through Harold Emmerson, trying to suggest he was not evading the police is contradicted, and how consciousness of or afterthefact conduct of an accused, especially when in fact Mr. Mallory makes it a direct issue as well, is collateral I don't understand. It is, with respect, directly relevant and relevant to the offence that goes on because, of course, Mr. Mallory is suggesting his behaviour is incon- sistent with the crime. The Crown is suggesting in actual fact, when we know the actual fact, those facts which are clarified by the reply we then understand in actual fact that the actions are consistent with him being the murderer. So it is directly relevant, it is a direct trial issue that Mr. Mallory has raised, it is a direct trial issue that the Crown, therefore, could not have foreseen because until Mr. Mallory testified it was not available. It is, therefore, in the Crown's respectful submis- sion not collateral, properly admissible and proper evidence.
Now in relation to the facts - if I might have a moment - Mr. Cooper can give the factual aspect, but I indicated timing and so on, it contradicts Mr. Mallory and the version he tried to give, its actual underpinnings Mr. Cooper can give, and then I'll move to the Delaney aspect.
MR. COOPER: I'm not so sure what Mr. Dandyk has been talking about because I've been in and out of the courtroom getting stuff together, but
the information from Morrissette has been handed up to the Registrar. It's a typed document, Your Honour.
THE COURT: Yes.
MR. COOPER: For our purposes it begins on page 2. Morrissette is also the detachment shift commander, or whatever, on the 18th of January but skipping over that part, on page 2:
On the 19th of December '90 at about 10:05 I was on duty at the detachment when I received a telephone call. The caller requested to speak to the Detective Division. I advised him that there was no one in that office at the present time. The caller identified himself as Rick Mallory and wanted to know ...
- I expect the word "why" is missing -
... the detectives were at his place tonight. He stated that he was not there at that time but a friend told him the OPP were looked (sic) for him. He also stated that if the police wanted him for something he would rather give himself in. Page 3:
I told him I knew nothing about the reason for the police visit but I would try to get a hold of the detectives and advise them to see the caller at home. He stated that he was not at home now, that he was calling from somewhere else. I then asked him for his address, that I would advise the detectives to see him there, he replied "I'm not that stupid". I then asked him for a phone number but he refused, saying he would call back in about 15 to 30 minutes. The caller had a deep voice and sounded to be about 30 to 40 years old.
At 10:53 p.m. the same caller called again and he was advised that I was unable to
get a hold of any detectives. He said that he would be at Rockland detachment tomorrow at about 10:00 a.m., 12 noon at the latest, to see them. He never called again.
That is the relevant evidence of Sergeant, now retired, Sergeant Morrissette, Your Honour, with respect to what is essentially a narrative of Mr. Mallory's arrest.
Your Honour may recall through the questions, at least, that I put to Mr. Mallory that Detective Riddell and Detective Graham attended at Mr. Mallory's residence and spoke to his brother Wayne Maksymonko.
Excuse me, I had those documents in front of me. Actually I need Officer Riddell in here.
You may recall, Your Honour, that Riddell and Graham were at Mr. Mallory's door speaking to his brother, it's on the same night in question, and on the 19th, I just don't have the time at my disposal, and they showed the warrant to Mr. Maksymonko, and then we have the next sequence that Mr. Mallory admitted, the next sequence and that was the stop at the Butler Motel, although I don't know that he had -- Mr. Mallory had them nailed down in the same order, and thereafter he ends up at Delaney's house.
So with respect to Morrissette that's the beginning of the narrative. It's not only identification by virtue of the name, it's identification by virtue of the deep voice and
the approximate age of the caller and, of course, when it's put together with the evidence of Graham and Riddell the sequence is important too, it becomes a narrative, and it may well be that we'll be asking to call Graham in reply as well to establish that sequence of the attendance.
THE COURT: Detective Riddell is here now.
MR. COOPER: Okay.
The Court may note that Sergeant Morrissette actually has an earlier time than the questioning I was doing with Mr. Mallory. He's got 10:05, and Officer Riddell and Graham actually attended there at about 10:20 so watches are now synchronized or something with respect to that, but in any event it's obviously in response to the attendance at the residence of Mr. Mallory. "This individual identifying himself as Mr. Mallory has called the detachment", in fact that's contained in the willsay of Sergeant Morrissette.
Some of the information with respect to David- son, Your Honour, has also been handed up although it was some missing pages which I understand have since been put on my desk here but I haven't read them yet.
The relevant portions of the report are highlighted in my copy. It would be the last two paragraphs on what is the first page numbered 04 where Davidson is describing his attendance
with Sergeant Erfle at Old St. Patrick. They started at 439 and then they knock on 441.
Donna Delaney opened 441 and spoke with us. The writer recognized her as being with Mallory on the earlier date.
That's explained in the first two paragraphs.
She was advised that we were looking for Rick Mallory and asked her if she had seen him. She responded that she had not seen him for about two weeks. She was advised he was wanted for a murder investigation. Further, permission to search her residence for Mallory was requested. She advised the writer and Erfle that she under no circumstances would let us search her residence without a search warrant. At that time she closed the door. The writer and Sergeant Erfle stayed at the residence and called for Sergeant Couture to attend at the address.
On his arrival the writer again knocked on the door and was met by Ms. Delaney. At that time she was advised that we were of the opinion that Mallory was inside and that we were obtaining a warrant to search her residence. However, when we returned there would be many heavily armed police officers, Mr. Mallory could take his chances at that time or give up peacefully. She was informed that she was fully aware Mr. Mallory was wanted for murder and as such she would be arrested and charged with obstruct justice.
And this is the key part here, Your Honour:
She responded that she didn't know he was wanted for murder. All she thought was that he was driving the car. It should be noted that at no time did the writer or Sergeant Erfle mention any vehicle or had we any knowledge of Mallory's involvement in this matter.