THURSDAY, JANUARY 20th, 2000

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

--- Accused present

--- In the absence of the jury

THE COURT: Before I continue with the jury I thought I'd deal with all of those items with respect to the Crown's address that I can deal with on the basis of the submissions, and the Crown indicated that the Crown would deal with matters that I indicated to them I would like their submissions. The only matters of which I would like to hear from the Crown are 27 and 28, they're two combined - I don't have to do this right away - they are two combined ideas, and 32. The rest I can deal with without sub-missions from the Crown and I'll take those submissions later on today, I'm sure we're going into the afternoon so I may even take them this afternoon. The remedy would obviously be something I would say in the jury charge anyway, so we have time to do it.

MS. BAIR: Just before you commence, Your Honour, on page 420 in the middle of the page there's a "members of the jury" in it, "there is no evidence that Detective Riddell went to his apartment on December 19th."

THE COURT: That's wrong ---

MS. BAIR: Right. Okay.

THE COURT: --- because he went with another witness who said he went with him, and ---

MS. BAIR: Right.

THE COURT: --- I covered that off, and I forgot that reference before. You're quite right.

MR. COOPER: Your Honour actually has that covered off on page 8 of the supplementary materials with Jeff Graham.

MS. BAIR: It's in there, but ---

THE COURT: All right, but that's wrong and I've gone by that page.

MS. BAIR: No, it's on page 420 coming up.

THE COURT: Page 420 coming up, okay. When I get to it I'll say it's wrong. I think I did that because I transposed the fact that he didn't testify into the fact that there was no evidence that he went, which is telescoping it quite a bit.

MR. COOPER: I'm actually sitting, Your Honour.

THE COURT: You're actually sitting today?

MR. COOPER: No. No.

THE COURT: You're going back in your ---

MR. COOPER: I'm going back into my little hole there.

THE COURT: Okay.

MR. COOPER: And I am listening, by the way.

THE COURT: All right.

MR. COOPER: I hear all.

McWILLIAM, J. (Orally)

(1)Ms. Mulligan marshalled some quotations, this in respect to the Crown's address, that Ms. Bair had disparaged the role of defence lawyers and their role in the system. All of them, in my view, come within the forensic purview of adversarially acceptable. The use of the metaphor about the ink and the octopus and the elephant story are not beyond the pale in my opinion. As I heard those arguments develop they were not arguments ad hominem, and the names were used to distinguish positions taken on the evidence. These comments, in my view, do not merit either a mistrial or a "sharp redress" by me to the jury. The use of words like "absurd" and "ridiculous" for arguments are not foreclosed to objective and careful Crowns. So long as they are not used prejudicially, as they were not in Ms. Bair's address, then the jury is the ultimate arbiter of whether or not the descriptors of "absurd" and "ridiculous" missed the mark or not.

(2)Ms. Mulligan argued that Ms. Bair invited the jury to decide the case on an improper basis: how they felt about the police and the prosecution. During the trial, the defence, particularly Ms. Mulligan, developed a great many points about the inadequacy of the police investigation. I noted in her address that whole area was not developed head-on, with the possible exception perhaps of Dave Dunbar.

Since Mr. Gaudreault's role, in Ms. Mulligan's submissions particularly, was rooted in fabrication of himself and his family and his friends, then there seems to me to be forensic justification in saying that every police offi- cer missed it. That suggestion does not remind the jury of another jury who believed the police and the Crown's assessment of the case. I will tell the jury that this case has nothing to do with that case, along with a direction of the only area where that first trial deserves any consideration whatsoever is the evidence of the Potvins.

(3)I will remind the jury only that the fact that police officers believed, and I will say this to the jury, I will tell them only that the fact that police officers believed what Mr. Gaudreault was saying fundamentally about the events of January 16th, 1990 does not add any- thing to his evidence. Determining the credibility of Mr. Gaudreault is the function of the jury. No witness can vouchsafe the credibility of anyone else for there is only one opinion which is relevant, the opinion of the jury. A witness can support with his or her evidence the credibility of another witness, but there is no merit in the supporting witness going on to say "I believed Mr. X." What I am saying I will tell the jury is in no way an oblique reference by me on Mr. Gaudreault's credibility. It is only a proposition of common sense.

(4)I have read the excerpt from the transcript, and I have concluded that Ms. Bair did not comment on the failure of Mr. Stewart to take the stand. That was also my impression when she finished her address, and I indicated I would hold off making any final decision until I saw the transcript. I see no reason why the jury would think that the observations that Ms. Bair made in the transcript constituted a comment by her on the failure of the accused Mr. Stewart to testify. It also seems to me, as a matter of common sense, that where one accused testifies and the other does not, the jury does not need any subtle comment by any Crown attorney to remind them of the obvious. Of course, the legal issue is did she comment and she did not.

(5)I do not think any of the alleged misstatements of the evidence require any comments by me, subject to what I have said. If every factual nuance is to be debated in a case that lasted 15 months, this case can never be brought into a shorter compass. For example, Sauvé allegedly got the money on Friday, January the 19th, and was he going for the weekend to Constance Bay, or was he going to Hull? Obviously the defence says Hull and the Crown says Constance Bay. What else is new.

(6)I do not intend to review again the evidence of who was sitting where at the Newfie Pub. It is a crucial issue to the defence because the differences amount to repudiation of both the evi-

dence of Denis Gaudreault and Jamie Declare for the defence, and invite an inference of fabrication on Gaudreault's part. For the Crown the discrepancies are natural and minor, and they support each other in broad terms. The jury sense that I am sure. The difference I mean. It is their decision. There is no "unfairness" in what the Crown said.

(7)Ms. Bair did not invite the jury to conclude that Mr. Mallory was guilty because he had alternative defences. Instead she posed the real world problem. The classic factual alternative is the putative father affidavit. "I am not the father of this child, but if I am I want reasonable access." Mr. Mallory's evidence is he never spoke to Winn. The alternate defence is: "If you find I did, then believe it, and convict me of manslaughter." In the circumstances Ms. Bair's observations were within the forensic pale. It seems to me it might have been foreclosed had the Court been relied on to put the alternative defence based on belief in Winn, and belief in Mallory.

(8)The evidence about how drug dealers act is rel- evant in this case because of Mr. Stewart's "no gun policy" in relation to Mr. Mallory and Mr. Stewart's interest in owning and possessing guns himself as support evidence for Mr. Gau- dreault's role as the weapons quartermaster, and Richard Gravelle's consideration of a similar role, and in relation to Mr. Miller's evi-

dence. My charge is replete with warnings about the use of bad character evidence including two I have already given, and I have yet to charge on the law per se. The issue is: It goes to the likelihood of guns, and it can never go to the likelihood of murder. I have already said that drug dealers do not, ipso facto, murderers make.

And I'll take those submissions at any time prior to this afternoon when the Crown is ready and when the defence is ready.

Bring in the jury.

--- Upon resuming in the presence of the jury at 10:20 a.m.

THE REGISTRAR: Are counsel satisfied that all members of the jury are present?

MS. BAIR: Yes. Thank you.

MR. McKECHNIE: Content.

MS. MULLIGAN: Thank you.

THE COURT: Members of the jury, we will pick up at the heading Can't "Name Names" at 415.

Apart from Gaudreault and Chapman, Mr. Mallory can't think of the names of any big collections he made in the $10,000. to $25,000. range. Names don't ring a bell with Mr. Mallory. Mr. Mallory said he did not change his position as to the large amounts he collected at trial from the much smaller amounts he alleged at the bail hearing in order to fit into the defence's position that Mr. Stewart would not be involved with quarter-gram drug dealers. He changed his evidence because he decided to tell all. All he knew was that Stewart was never broke. Still, Mr. Stewart would complain to anyone how much he was in debt. Stewart "could've" complained in 1990 that he was in debt $250,000. because, as Mr. Mallory said, he, Mallory, was not doing his job. Denis Roy's death was part of it, and "blossoming" cocaine use was the "most" of it. Stewart was also complaining about the $12,000. and the $7,000. that Linda got for her Florida trip. Mallory used to get cocaine from Mr. Gau- dreault and other dealers in part at least because they were afraid of him. He admitted

that by consuming without paying he was part of Rob's problem, and by getting cash and not working. He only heard of two runners named Jamie Declare and Randy Wara, but that was not "his end of it." Unlike Trudel, Stewart had no Corvette. He had a "low profile." Mallory did not think that Mr. Stewart was not capable of doing his own collecting, and that he simply did not like doing it. When he was looking for the gun it was not because of a man called Mike, although he agreed Vanasse had threatened him. He said he was not afraid of Mike Vanasse because he was a talker with [Mallory]." He said: "I wasn't really scared of Mike that much, no." Mallory agreed that if Vanasse was prepared to do his collecting job for free it suggests that Vanasse had some investment in Rob Stewart being successful in his business. But ultimately their relationship was only a matter of suspicion for Mallory. When Mallory was still working for Stewart (about 12 or 13 days before the falling-out ripoff for $12,000.) Stewart never mentioned to him that day that Trudel was arrested on a big drug bust. Mallory agreed that Stewart probably said that "every friend he had had taken a piece out of him in 1990."

Death Threats to Mallory: When Detective Rid- dell delivered the message to Mallory shortly after Roy's death that there was a Montreal hit out on him, Mallory did not have to go far for advice. Michael Vanasse was waiting in Mr.

Mallory's living room while he talked at the back door with Detective Riddell. He can't recall the names of Mr. Stewart's big debtors or little debtors. Rob might have had a cash crunch when Mallory was not around at the end, but not when he was working for him. Just before Denis died he was collecting at his peak. When Mr. Mallory began "piping" with Wayne Leduc, and he began to owe Stewart money, then Mr. Stewart realized what Mallory was doing. Mallory said when he told Chapman that Rob had "no fucking cash" to pay off Chapman's mother's credit card, that was only a device to get John to pay his bill. There was no cash crunch Mallory insisted. Mallory identified the voice as his, but he does not actually recall the conversation. But the transcript accurately reflects the tape. Mallory agreed that in the second bail hearing he "misrepresented" how well he knew Chapman when he said: "I knew the name. Again I don't say that I knew him that well." Mr. Mallory explained the collection process, and said in relation to those six steps, after the failure of the slap, that he never broke an arm or a leg for anyone, including Mr. Stewart. Eventually everyone paid. Mallory agreed that stealing from stash required immediate action, that they had to be slapped right away, no chatting. The stash would be taken away so it could never happen again. The word would go out to Rob's organization that no one can rip off coke and money.

That was because, as Mr. Mallory said, no one can rip anyone off. And if someone stole all the coke, all the money and put everyone in jail they would have to be dealt with somehow.

Gravelles Not A Normal Collection: The visit to the Gravelles was not a normal collection because as Mr. Mallory said:

A.Well, I could understand for the Denis thing because Denis took off on him so he wanted to find out where they were so that's why he came over to me and me and him went together on that one, yes.

Mr. Stewart and Mr. Mallory wanted to talk to Richard Gravelle first but "Sylvie jumped in." Richard owed nothing, and it was not a collection. It was an "intimidation." Rob is "pretty upset", "mad", and Mallory thought he was mad at Denis. Mr. Stewart also asked Jamie Declare where Denis Gaudreault was, but he did not threaten Declare's family, Mallory said. He and Rob Stewart went to Rockland from downtown by way of Queen Street, Mallory testified at least twice. About 10 pages later in the transcript he said they drove down the Queensway to avoid the lights. They asked for Richard when they arrived at the door. They were prepared to shove their way in the door, but they were invited in, and that was not necessary. His assignment was to be Mr. Stewart's bodyguard, and to be "intimidating." Mallory said he was told things by Stewart on a "need-to-know basis." Mallory said he was not concerned when

Trudel was picked up on August 1st, 1990 because if he gave him up as a drug collector and enforcer, then Mallory said he had been "pinched" for extortion before, "it's not as if I did anything, you know, really bad I guess." The demand for money from the Gravelles was just a "show demand." That was not a "real demand."

Real Objectives: Finding the whereabouts of Denis Gaudreault was the real objective. In order to find out where Denis was it was "a perfectly acceptable practice for Mr. Stewart and [himself] to threaten an entire family", Mr. Mallory said. "It's all talk, though", he continued. In the end the Gravelles gave up the address of their niece, Ashley, in Fort Saskat- chewan on Exhibit 117. Mallory read no disclo-sure, as "Rob, Ricky and Jimmy were doing a good enough job, you know." Mallory agreed that the threats continued on to Saskatchewan to Rhonda Nelson. Mallory agreed that he did noth- ing further to collect Denis' debt. Rob never asked him to do anything. In all his collection work that was the first time Rob ever threat- ened to kidnap a baby and sell her in the black market. Mallory agreed that the whole family had been threatened including grandparents and dogs. Mallory said these threats were for the money and not to find out where Denis was in order to keep his mouth shut. Mallory agreed that the Gravelle threats were at an "extreme" level compared to his normal intimidation.

Mallory said he did not know where Mr. Cooper got the threat for Gaudreault to keep his mouth shut as the objective in the Gravelle incident. Then this exchange occurs:

Q.You never made an honest attempt to collect the money at any time, sir.

A.No. I know, I know that, I was slacking off I guess, you know.

Mr. Mallory still maintained "it was always about a debt." It was a debt "Rob was following up on ..."

Mallory's Arrest with Donna Delaney: Concerning his arrest Mr. Mallory said in chief that the first knowledge of the "murder of the couple" came from someone who called him or someone mentioned to him that his name was in the news- paper connected with a murder. He went and got a paper and remembered reading the article at Donna Delaney's house. She was there at the time. He is "sure" of those things. Mr. Mallory recalled that he wanted to give himself up. He wanted to "straighten out" a few things with Donna Delaney, for example, whether she would "stay with [him] and stuff like that." He did not recall Detective Riddell coming to his door with an arrest warrant on December 19th, or talking to Sergeant Morrissette later in the early morning hours of December 20th. Members of the jury, there is no evidence that Detective Riddell went to his apartment. That's just plain wrong. If you look at the supplement you will see in one of the witnesses called in