MONDAY, JANUARY 4th, 1999
--- Upon commencing at 10:45 a.m.
--- Accused present
--- In the absence of the jury
THE COURT: Bring in the jury I guess.
Perhaps I should indicate that I'm not going to read all this material with the jury waiting in the light of what's happened this morning with the delay, so I'll just read the end and then you'll have the benefit of hearing my mellifluous tones perhaps tomorrow on your time rather than on the jury's time.
So I'll just read the ending. Someone said that that's really all the lawyers are interested in anyway, they want to see what's in the last two paragraphs and also they want to see if the last line, in civil matters, whether they got costs and after that they don't really care, but I think that's a bit cynical.
The last part of the ruling would be:
Here, the Court must give a limiting instruction to the jury as to the use that can be made of the information they receive as a result of the cross-examina- tion of Detective Lamarche. The jurors must be told that at this stage of the trial that the hearsay and informant information Detective Lamarche received cannot be considered by them as proof of the truth of any of it. That information only goes to the state of mind of Detective Lamarche at that stage of the investigation, and the steps she was taking in the investigation against the backdrop of all the information she was receiving
about the case at that time. In particular, the jurors will be told that the information about Dave Dunbar cannot be considered by them as evidence that Dave Dunbar was then or at any time, either before or after the information was received, an "other suspect" in the investigation. (I add, parenthetically, that should a voir dire establish an "other suspect" connection, and make the Dunbar evidence admissible for its truth, then my limiting instruction to be given presently would have to be amended at that time.) To help ensure that the jurors receive the evidence in its appropriate light, I ask defence counsel to indicate to me when that moment has arisen in her cross-exam- ination. I will, then, give the limiting instruction to the jury before they hear the evidence adduced in crossexamination.
All right. Bring in the jury then.
--- Upon resuming in the presence of the jury at 10:55 a.m.
HEATHER MARGARET LAMARCHE, previously sworn
THE REGISTRAR: Are counsel satisfied that all members of the jury are present?
MS. BAIR: Content.
MS. MULLIGAN: Yes. Thank you.
THE COURT: Happy New Year, members of the jury, and I'd like to explain this morning that what happened, you know the Grinch who stole Christmas?, well somehow or other he seemed to have gotten into this locked courtroom and got a couple of cables that were very vital to the technical operation of everything and we're hot in pursuit of the Grinch and we hope we'll find him eventually.
CROSS-EXAMINATION (continued) BY MS. MULLIGAN:
Q. Detective Lamarche, when we last left off, I won't redo everything we did but just to recap a couple of points, you had said that you had been in the criminal investigation office for about two years before becoming the lead investigator on this case?
A. Right, February '88 is when I entered the criminal investigations office.
Q. And during that time there were no murder investigations in your office.
A. No.
Q. And you yourself had never been a lead investigator, therefore, in a murder before?
A. No.
Q. You also told us there was a joint forces drug squad in existence at the time?
A. Yes, the regional drug force.
Q. So I take you in the detectives' office at Rockland wouldn't do a lot your major drug investigations.
A. Generally we would investigate at a very small level and we would pass on the information to the drug unit.
Q. And had you, in your office, had an opportunity to do any investigations, small drug investigations surrounding the Carlsbad Springs Hotel?
A. Not surrounding the Carlsbad Springs, no.
Q. And through your investigation at the Carlsbad Springs Hotel you came to believe in this investigation that Michel Giroux frequented there?
A. Yes.
Q. And sold drugs from that location?
A. Pardon me?
Q. Sold drugs from that location, at the Carlsbad Springs Hotel?
A. And from his home.
Q. Okay. So the two places.
A.Right.
Q. What was your understanding as to how long Michel Giroux had been living at the home on Queen Street?
A. Since the spring of '90.
Q. And prior to that he resided in Embrun?
A. Yes.
Q. Oh. And I wrote it down, too.
You said that Michel Giroux had been residing since the spring of '90, you meant the spring of '89?
A. Yes, I believe somewhere around there, spring, early summer of '89.
Q. And prior to that in Embrun.
A. Yes, they lived in a house owned by Manon father's.
Q. Did you receive any information as to where, if anywhere, Michel Giroux sold his drugs when he lived in Embrun?
A. No.
Q. This won't be obviously for the truth of it, but I'm going to suggest to you, Officer, that you received information from Sylvain Bourdeau, the brother to Manon Bour- deau, that Michel Giroux frequented the Club 17, does that sound ---
A. Club 18?
Q.Club 18.
A.You were close. Club 18 in Embrun.
Q. It's a numerically challenged day. Okay. Club 18 in Embrun. Does that sound familiar to you? Is that information you might've received whether true or not?
A. I don't remember where the information came from but yes, if he lived in Embrun he would be in all likelihood at Club 18.
Q. And did you spend any time investigating as to what he did while he was in Embrun with respect to drug sales or who he might have dealt with?
A. A year previously? No.
Q. And Mr. Giroux at the time of these of- fences he wasn't employed; is that right?
A. No, he had lost his licence for impaired driving.
Q. And do you know if he was receiving welfare; is that something that your investigation revealed?
A. I believe he was.
Q. Do you know when he last received a welfare cheque?
A. I'd have to research that. I don't know.
Q. Maybe that's something we can find out through the course of the day.
Now as far as supervision goes, you indicated that Inspector Okmanas was sort of hands-on and present during the investigation up until the end of the first meeting with Mr. Gaudreault, the February 13th meeting?
A. Without researching it I don't know for sure, but it was some time in that time frame that he went back to Kingston and we were conversing by phone.
Q. You would update him as to what you were doing?
A. Yes.
Q. He may or may not have given you any input on these various phone calls, sometimes he would, sometimes he wouldn't?
A. Right.
Q. You also told Ms. Bair when you were asked questions in chief that you just didn't have much enthusiasm left for this case because it's gone on too long.
A. Well, yeah, maybe I should've explained that a little bit better. I mean, certainly I'm here, I'm seeing it through to the end, but I mean eight years later it's kind of hard to keep the same enthusiasm as you had five years
later or six years later, but certainly I'm committed and dedi- cated to the end of this.
Q. Do you also lack perhaps some enthusiasm after all this time as a result of Mr. Gaudreault continually trying to make you and Officer Riddell look like, to use his terms, idiots?
A. No, that didn't figure into it at all. It's because it has gone on so long, and for me I've been involved in a very long paper trail. I was in charge of the case management and the disclosure of the paper, and if I was out interviewing people and physically doing something that would've been a lot different but for me it was taking in the paper, reading it, preparing it for disclosure; that's the part that I've lost my ---
Q.It's become tedious.
A.--- enthusiasm for the case.
Q. You did express that view, however, recently, did you not, to a colleague, that you were sick and tired of Mr. Gaudreault trying to make you and Officer Riddell look like idiots?
A. I don't remember saying that.
Q. You sat in through Mr. Gaudreault's evi- dence in this courtroom?
A. Yes.
Q. So none of his evidence troubled you in that sense.
A. Well, certainly I don't like to hear him say that but those are his opinions, that is his evidence, but that had nothing to do with my lack of enthusiasm in this case.
Q. And as you said you're committed to seeing this through?
A. Yes, I am.
Q. An example of that was when you went home and on your own initiative, knowing you'd be asked about the newspapers, you prepared an analysis.
A. Certainly. I, you know, want to do and present the evidence to the jury the best way I can. It's not
-- the usual cases, you know, you work on it a couple of weeks, by the time it gets to court it's maybe a year later, but this case has gone on so long that I need to research things and I know we have a lot of information but sometimes it needs pulling together for me, so I want to be able to give the jury the best possible information that I can.
Q. And that's certainly fair, I'm not criticizing you for that. We will come to that analysis a little later, but the work that you did, did you come in the next day and show it to the Crown attorneys?
A. Yes.
Q. All right. And the defence hasn't seen that yet, right?
A. No.
Q. And we'll come back to that, I will be asking some questions about it when the time comes.
When you went through police training one of the things you would've learned about, Officer, was photographic lineups, right?
A. I don't remember, and in fact I gave that some thought over the Christmas holidays, what I would've talked about all or what I would've learned in the course that I went on, the criminal investigation course, and you were asking me about statements and I don't recall ever having a course or a talk on statements. Photographic lineups, I'm going
to say I don't recall because I really don't remember any talk on it.
Q. So this course that you went through prior to going into the detectives' office, you said you don't remem- ber it having anything to do with the taking of statements, you don't remember ---
A.No.
Q.--- whether or not there was anything to do with photographic lineups.
A. Right.
Q. Do you remember at all what it was about, aside from these two or three general homicide investigations, where you did a homicide investigation that had already been done, so to speak?
A. I don't know, and I've been through -- I tried to find my books from that course but I've been through several moves so I wasn't able to find it but I don't know.
Q. Well, through experience, then, you've used photographic lineups?
A. Right.
Q. And you've seen other people put together photographic lineups in your office, I presume?
A. Yes. Sometimes the actual lineups aren't put together by us, they're putting together by our Identification office.
Q. And now there's actually fairly sophisticated ways of doing photographic lineups with the computer, is there not?
A. Well you've got me because they didn't in the last few years that I'm aware of.
Q. The police at one time in the past actually used real people, what we see on the movies, the lineup of real people and someone comes and looks through a twoway mirror. That isn't done really much anymore.
A. I've done that several times myself. On cases that I was working with with Gloucester Police, and they had the ideal setup for it. It's very difficult to draw in 12 people. In our particular case, we were dealing with bank robberies and we went to the theatre at Gloucester - I forget what it's called - right at Blair Road anyways, and we picked them as they were coming out of there, but it's not always that easy to do.
Q. And in fact what you usually hope for in a lineup is not people who all look different but you look for people who have similar features, right?
A. Similar age, yes. Features.
Q. Age, hair colouring, mustache or no, that sort of thing, you try and get people who at least have similar features.
A. Right.
Q. And you can do that probably more easily with photographs than trying to round up 12 people.
A. Like I say, I've done that a few times and it is difficult to pull it together.
Q. Now the purpose of a photographic lineup is to test the ability of a witness to identify a suspect normally, right?
A. To identify a suspect, yes.
Q. And it tests the ability of the witness in a number of respects, doesn't it? Well first of all can they pick out the person from a similar group of individuals.
A. Yes.
Q. All right. One reason you don't just show a witness a single photograph, for instance, of a suspect is because it's too easy for them, whether they're motivated to help or whether they, you know, an honest witness who just sees the photograph and thinks you know something, it's too easy to say yeah that's the guy if you just show them one photograph.
A. Right, and for court purposes, for identification purposes, if they're able to look at a lineup of 12 people and pick someone out, then that's much better. Sometimes they come to court and they recognize the guy in the courtroom and that's perfectly acceptable as well.
Q. All right. But it's not as helpful to you, it's not as good evidence, in your estimation as an investigator, if they pick out one person from a oneperson lineup as opposed to one person from a 12-person lineup, is it?
A. No. What I was saying was sometimes they're standing outside, the accused might be standing outside with a group of -- with 50 people in the area and they may be able to pick out a person from there and that's what I was referring to, not a person sitting in a box or standing up when their name was called, that's not what I was referring to.
Q. Now aside from the honest witness who's motivated to help and picks out one photograph, you'd also want to, as an investigator, weed out a witness who might be pre- pared to lie -- right? -- so a photographic lineup may be helpful in that respect?
A. Right, and it's also to see how good a witness they're going to make as well. I mean if you have, for example, a sexual assault and she says "I'm pretty sure that it's number 7" then you know that you're going to have problems
when you get to court on identification, so it's a way of further investigation as well.
Q. And you also, when you're picking out photos for a photographic lineup, you're concerned that you don't have sort of bad photos of the person that you're inter- ested in or old photos or something like that. You try and get the best photo possible.
A. If it's available, and that's not always available.
Q. Now from January 18th, I guess, when you found the bodies or you were called to the scene, you and Inspector Okmanas were responsible for directing the investigation and ordering photographs, preparing lineups, that sort of thing?
A. Well I wouldn't necessarily say that we were -- I suppose the end result is we're responsible but it was more of a team effort.
Q. Well who directed that there be a lineup, for instance, of Michel Giroux, a photographic lineup created?
A. Oh, I don't remember now.
Q. Do you know when that was done?
A. No.
Q. Well as early as January 20th I had dis- closed to me an actual request form where a photograph of Michel Giroux was requested by someone, and I'm not saying it's you. Do you recall having had anything to do with that, wanting a photograph of him?
A. Well, I know that I went several times to the RCMP to pick up photographs but of who I don't know. At that point in time if we needed photographs the RCMP here in Ottawa were the people that we called, they kept a file on
everyone that had been ---
Q. Well maybe I can just show you this docu- ment to see if it assists you at all. It's some sort of request form. Does that assist you at all?
A. It's not my writing. I can tell you that down here at the bottom "Mayer" and "McFadden" are my printing, but the actual request I can't even tell you that I recognize the writing belonging to anyone.
Q. Okay.
A. And in fact any time that I've requested a photo from the RCMP I've never filled out a form, I've simply called them up and said "Hey, I'm looking for a photo of so-and- so and so-and-so" and I'd just go pick it up, it's usually at the front desk.
Q. Okay. So you had nothing to do with a request of a photo of Giroux in this fashion, ---
A. No.
Q. --- in this form fashion.
Okay. Did you receive a photo of Michel Giroux shortly into your investigation?
A. Yes.
Q. And it was a photo of him in a living state, while he was alive.
A. Oh yes, it would've been. The photos that the RCMP have is after they're charged with a criminal offence, they're the mug photos that are taken by the police, and the RCMP have a central file.