THURSDAY, APRIL 29th, 1999
--- Upon commencing at 10:15 a.m.
--- Accused present
--- In the absence of the jury
THE COURT: Yes.
MS. MULLIGAN: Good morning, Your Honour.
THE COURT: Good morning.
MS. MULLIGAN: I'm hoping that you have I apologize for the cough today - the applicant's "Memorandum of Law, Relevance, Probative value" and "Adopted admissions".
THE COURT: "Memorandum of Law, Relevance, Probative Value, Adopted Admissions".
MS. MULLIGAN: Okay. And attached to that should be some 17 appendices.
THE COURT: Yes.
MS. MULLIGAN: Good. In addition there's a casebook with the same title with eight tabs.
THE COURT: Yes, I have that.
MS. MULLIGAN: Okay. And you need also for my argument the applicant's book of authorities on "Relevance/Probative Value: Denis Gaudreault".
THE COURT: With 10 tabs.
MS. MULLIGAN: Yes. Good.
THE COURT: I even brought all the right ones home last night.
MS. MULLIGAN: This I suppose it's several an argument based on several things, relevance is one of them.
THE COURT: M'hmmhmm.
MS. MULLIGAN: Obviously if the Crown gets over that hurdle, then prejudice versus probative value again.
There is an issue as to whether a comment made was adopted by Mr. Stewart, an admission the Crown will suggest. And then there are issues revolving around trial fairness, whether they're dealt with at the common law level or the Charter, it doesn't really matter I don't think, it's an issue of trial fairness with respect to identification procedures engaged in by the police with Mr. Chapman, and with respect to I suppose lost evidence of a taped interview.
I'm presuming because I haven't heard the Crown's position, I'm presuming that the Crown wants Mr. Chapman to testify about as much as possible, not what he said in his statements so I'm going to work on that basis. If there's something that I address that the Crown wishes to stand up and say 'no, we don't want that evidence' then I presume they'll let me know.
If Your Honour turns to the applicant's memorandum of law I think it's important that we look at the facts and how this situation arose with Mr. Chapman. At page 2 the summary of the facts begins and as far as I'm aware the first contact any officers had with Mr. Chapman is February 5th, 1991 in relation to this case and those officers were Officers Chevalier and Fortier and this would've been during the time,
Your Honour will recall from the evidence on the stay application, just after the arrest where Chevalier and Fortier came back on the team and they were going out and reinterviewing or trying to follow up on people they hadn't found before the arrest. In some cases ..... Oh I'm sorry, the 5th they were assigned the job and the 7th they went out and met with him. I apologize, Your Honour, Mr. Cooper is quite right. So it was February 7th they actually met with Mr. Chapman and their notes are attached of that meeting at tab 2, and I've typed them out to make it a little easier to read them. The entire note of Officer Chevalier at tab 2 indicates that they met Mr. -- "interview Mr. Chapman, he knows Robert Stewart, Rick Mallory and Michel Vanasse. Last summer he was threat- ened by Vanasse and Stewart for the $10,000. he owed". I assume that's the summer of 1990. "According to Chapman he was having financial difficulty. He approached Stewart for a personal loan. Stewart gladly agreed to lend him the money. One day he received a visit from Vanasse and Stewart and a person named John Hately. Vanasse struck Chapman on the head with a lead pipe wrapped in tape. They worked him up pretty good and had him sign the promissory note. Chapman did not wish to give a verbal statement nor a witness one. He agreed to assist us if anything came up."
Fortier's notes, a little more summary fashion, "borrowed $10,000. from Stewart for his house.
He was summoned to Vanasse and was forced to sign contract and cheques for 26 thousand. They threatened him and his family. He once went to John Hately at his request and was beaten by Stewart, Vanasse, Hately with lead pipes and had a handgun pointed behind his ear. Hately is exSatan's Choice."
Your Honour will recall that these two gentlemen testified and I apologize, I've come away without some material this morning and I don't know how that happened. Mr. Cooper had provided a copy of their evidence to me yesterday and I think I can probably borrow Mr. McKechnie's and I think Your Honour has a copy as well, the excerpts of their evidence.
THE COURT: I have three of Chevalier and two I guess of Fortier, no, one of Fortier.
MS. MULLIGAN: Yes.
Specifically they were asked about -- the important area they were asked about was whether they showed any photographs to Mr. Chapman because in later statements as we will come to Mr. Chapman says he was shown photographs by these first two young officers, I think he at one point describes them as French officers, and he indicates that he knew at that time and was able to identify Michel Giroux as someone who had worked on the Blake Boulevard apartment renovations.
MR. COOPER: I disagree with several points on that, but go ahead, factually.
MS. MULLIGAN: I will come to what my basis for saying that and I assume Mr. Cooper will address it as well.
THE COURT: All right.
MS. MULLIGAN: The officers' evidence, Chevalier, beginning with the excerpt at page 32, talks about meeting with Mr. Chapman and at page 33 at the top at line 7 he's asked:.
"Q.Now in addition to the photos you had of the four accused men and Mr. Vanasse and the Cadillac did you also have pictures of the victims?
A.We carried the photographs of the victims with us.
Q.Sir ---
A.On this occasion I don't recall showing the photographs of the victims.
Q.All right. Are you -- I mean how certain of that are you you didn't show Mr. Chap- man the photographs of Michel Giroux?
A.I don't have a note of it and I don't remember showing the photographs.
Q.Okay. So your memory ---
A.Their photographs were, if I remember correctly, their photograph was in some of the newspapers so I think it was common knowledge at that point.
Q.So your memory of this occasion is that you didn't show, that's your best memory.
A.To assist the Court yes, that's got to be my answer.
Q.Okay. What about the photographs of the accused men, did you show them to Mr. Chapman?
A.The fact that he knew the names, I didn't make a note of the photographs.
Q.You may have, you might not have. Your note indicates ---
A.I ---
Q.Sorry. Go ahead.
A.Chapman advises that he knew Robert Stew- art, Rick Mallory, Michel Vanasse. These three individuals. As far as photographs are concerned again I don't have a note of showing them.
Q.Okay. You might have been interested to know whether he recognized Trudel or Sauvé though, right?
A.He knew the names.
Q.He knew the names Trudel and Sauvé?
A.Not Trudel and Sauvé, sorry. Stewart, Mallory, Vanasse he knew them. The other two parties I'm going by memory.
Q.All right. Your best memory, if you don't have one that's fine, of this event I mean.
A.I remember the interview but as far as photographs are concerned of the two other parties from my notes we didn't show the photographs unless Constable Fortier has otherwise.
Q.Do you have any note that you even asked him if he knew the two other parties?"
It goes on. I think that's it as far as photographs in that excerpt.
The next excerpt of Chevalier beginning at page 51 again talking about the meeting with Chap- man and there doesn't appear to be any discus-
sion about the photographs in that excerpt, just about the meeting and information he provided.
MR. COOPER: Actually that was just included, Ms. Mulligan, because Mr. Morris in the next excerpt makes reference to Mr. Dandyk's withering crossexamination so I included it.
MS. MULLIGAN: The next excerpt at page 62 at line 23 roughly:
"Q.Now Mr. Dandyk took you through a rendition of Mr. Chapman's allegations and I'm wondering if it helped you remember what photos, if any, you showed to him and what his response would've been, if it twigged your memory at all.
A.Like I said the names came out therefore I don't think the photographs were shown that time.
Q.You're not sure or you definitely remember?
A.My notes don't specify that I showed photographs and most of the interviews they do show photographs negative results.
Q.Is this the time you went to see Chapman when you're talking about the $10,000.?
A.That's correct."
And that would be it in that excerpt.
Constable Fortier, who was with Constable Chevalier, at page 100 at about line 14 the discussion begins:
"Q.Okay. I should come back a few pages, I'm sorry, page 73, then we're going to jump ahead several pages. On February 19th ..." which is not right but anyway
"Q.... February 19th '91 you meet with John or you phone actually, sorry, phone John Chapman back.
A.Yes.
Q.Do you have a recollection of having met with John Chapman at any point during your investigation?
A.I believe I did if it's the same person I'm thinking of.
Q.All right. Maybe we can find that out at lunch. Do you have a recollection, sir, of any time during either the first part of your investigation in 1990 or the second part in 1991 having had photographs of the deceased persons that you were also showing?
A.I think I did have pictures of the deceased, I don't know at what point in time but that does sound familiar, yes.
Q.And you in fact have a note, just to be fair to you I just recalled it, 30A, what I was calling 30A I think it says 'showed photos' way back in, I'm sorry, way back in January 1990 you have a note at the bottom of your things to do list 'showed their photos around'.
A.Yes.
Q.Would that refer to Giroux and Bourdeau or someone else?
A.I don't recall.
Q.Would you write -- when you interviewed people do you recall showing their photos, though, to people?
A.Well, like I said I remember having these photos, I can't say for certain if I showed them or who I showed them to.
Q.Do you have any recollection of ever having shown them to John Chapman?
A.No I don't.
Q.And your actual meeting with John Chapman appears to be February 7th, 1991 at page 68. I'm sorry, I referred you to a phone call he made but the meeting is February 7th '91.
MR. COOPER: What page is that?"
We discuss the page.
"Q.Okay. Does that assist you to recall whether or not you showed Mr. Chapman photos of the victims and what his response might have been?
A.No it doesn't.
Q.Is it possible that you did?
A.Possible that I did what?
Q.Showed Mr. Chapman the pictures of the victims.
A.I suppose it's possible.
Q.And if you had ---
A.I don't recall but .....
Q.If you had shown anyone pictures of the victims and they had a positive response 'yes, I knew these people' would that be something would you note down?
A.I would think so, yes."
And then I take him to another part of the evi- dence.
So neither officer, as it turns out, can remember having shown photos. Chevalier doesn't think he did because his note doesn't indicate
and he usually would note it down, and Fortier says it's possible but he has no note and if he had shown anyone pictures and it would've been a positive recognition of the victims then he would've written that down.
MR. COOPER: He thinks he would've "I would think so, yes."
MS. MULLIGAN: He would think so, yes. One would think so. In general if they're showing pictures of Manon Bourdeau and Michel Giroux and someone associated to Mr. Stewart knew them I would think so too, I mean it seems obvious but .....
That would be the first meeting with these officers and Mr. Chapman. It's not 'til January 18th, 1993 that officers Benson and Davidson again begin to look for Mr. Chapman. By that time there's an outstanding warrant for Mr. Chapman's arrest and they want to speak to him regarding these homicides. By January 27th '94 they speak with Nathalie Coté, a Crown attorney, about Chapman's outstanding charge and warrant. On February 21st '94 John Chapman, the officers had been looking for him and leaving their cards around, et cetera, called Detective Benson to indicate that he was tired of calls to his mother's home looking for him and that he did not feel he would be safe if he had to go to jail. So that's in relation to the outstanding charge.
During this time
THE COURT: What's that date?
MS. MULLIGAN: That's February 21st '94.
THE COURT: February 21st? Thank you.
MS. MULLIGAN: "During this call he indicated that he knew nothing about the murders. He refused to leave a phone number but said he would call Inspector Davidson the following day" and he did. On February 22nd '94 he did speak with Inspector Davidson and those notes are typed out at tab 3. He indicates to Inspector Davidson that he doesn't want to be put in jail on his outstanding charge he'd be in trouble, that he's been beaten in the past, that owes Rob Stewart $6500. - this is all at tab 3 - "for money Rob lent him to close the deal on a farm." Then Rob's sister was going to -- the real estate agent was going to develop the land for a subdivision, things didn't hap- pen that way, they went bad, and Rob never got his money back. He also set up a deal between someone named Ivan and Rob, a drug deal. Ivan ripped Rob off and this is all, Your Honour, just contextually so you have the background, this is all apparently happening in the summer of 1990. "Ivan ripped Rob off so they said that John Chapman owed 20 thousand for that rip."
MR. COOPER: I don't think it's the summer of '90, I think it's the summer of '89.
MS. MULLIGAN: Yes, he's right, the summer of 1989. Therefore the total money Rob says he's owed is 26,500. He indicates that Rick Mallory and he (John Chapman) went to Toronto three
times to try and collect from this Ivan but every time Mallory let Ivan go. On this occasion he says Mallory had a .12gauge for protection when they went to Toronto, a .12gauge shotgun I'm presuming. John was given $160,000. in cash one time to make a drug deal in Toronto but he didn't go through with it. Rob Stewart was mad at him, that deal was to be made through the bikers.
He also tells Inspector Davidson that a few months after the murder he was beaten by John Hately, Rob Stewart and Mike Vanasse. So that now gives us some time frame. He says it's a few months after the murder. He got out of it by telling them he had money in an account. He and Mr. Hately went to see a lawyer, Steve Cooper, and we'll later hear about a wiretap conversation that he has with Mr. Cooper so we know we'll learn the precise date.
MR. COOPER: I'm sorry, what did you just say?
MS. MULLIGAN: We'll hear a wiretap conversation so we'll know the precise date or we'll hear about it.
MR. COOPER: Yeah. I didn't hear you, sorry.
MS. MULLIGAN: "Cooper pretends to know John, Hately was happy and let John go. He" (Mr. Chapman) "says he knows they are responsible for the murder but doesn't know much about what happened. Says the victim, doesn't know his name, worked for Rob Stewart, he helped gut Rob's apartment that he bought but put in his sister's name. He knows for sure the victim
worked for Stewart as his own company Diversitech was doing the tile floor in the place. He's shown photos and recognized the victim" is what he tells Ian Davidson, and we know that by this contact the only contact he's had with the police prior when he could've been shown photographs it's been disclosed to me would be with Fortier and Chevalier. "He saw the victim at the apartment. Knows Jack and Rick Trudel, Rick Mallory very well as he also knows Rob Stewart and Mike Vanasse. His family has been threatened by Doug Lefebvre. Notes made after the call" Ian Davidson says. "He will call his lawyer and set up a time to turn himself in. He was relaxed and polite. Concerned about his safety. He will think hard about getting involved."
MR. COOPER: "Conversation was relaxed and polite". You're not pretending to read verbatim here anyway, are you?
MS. MULLIGAN: No. No. Just to give you an idea of what the conversation was about. The "conversation was relaxed and polite."
So that's the first conversation with Inspector Davidson on February 22nd '94.
On February 23rd '94 Inspector Davidson speaks with both Mr. Chapman and his lawyer Kevin Mullington and the conversation surrounds his likely sentence on the domestic assault charge he is facing and his involvement with this case, and Davidson's notes on that date are
typed out at tab 4 where he speaks to Kevin Mullington about John Chapman having to do 20 days for the assault. "Mullington says he would convey the message but John is terrified, it may as well be a death sentence" and Davidson indicates he would look into it. Then John Chapman calls Davidson, he's angry about having to do 20 days. He says that "they have eyes and ears all over the province. He hit his wife so it's politically correct for him to go to jail but it's his life and if he's in jail for 20 days he will be killed. He said he was going to jump in for the whole deal." "Ian" I guess it's a quote "Ian, you asked me if I was going to jump in with one foot or both feet. Well I'm jumping in with both feet but I don't want to get killed, I'm prepared to testify." Inspector Davidson tells him "you want me to go to the Crown but I don't know if you know anything or if you just heard things. He said he was not going to show his hand until he knew how long he had to go to jail. 20 days was too dangerous, he could live four to five days." Davidson says "I have to have an idea if you have any direct evidence. He said all I'll say now is remember when I got the beating from these guys we talked about yesterday? I said yes. Well something was said to me. I'm willing to give you it all but only if you can go to the Crown about me going to jail, then you call my lawyer."