THURSDAY, OCTOBER 8th, 1998
--- Ruling on publication ban
Upon resuming in the presence of the jury at 10:20 a.m. --- Accused present
MICHAEL ANDREW WINN, previously sworn
THE REGISTRAR: Are counsel satisfied that all members of the jury are present?
MR. COOPER: Content.
MR. McKECHNIE: Content.
MS. MULLIGAN: Yes. Thank you.
CROSS-EXAMINATION (continued) BY MS. MULLIGAN:
Q. All right, sir, yesterday when we left off, and I'll try not to cover an area I already have but just to get us back to where we were, the last question I think you answered was that you had never in the fall of '91 been in range 2B for any entire period of time you were in custody there.
A. That's correct.
Q. And I was about to show you a video or part of a video statement you had given on January 16th, 1992.
A. Right.
Q. I want you to watch that and I'll have some questions about it. I want to make sure everyone can see it.
- Videotape played from 10:20 a.m. to 10:23 a.m.
MS. MULLIGAN:
Q. I'm just going to pause it for a moment, sir, and you can maybe explain, this was the interview, was it not, where you were being interviewed on a number of other I guess a number of other investigations.
A. That's right.
Q. And you had just finished telling them everything you knew, the question was "Is that everything you know about the murder of Lenny Rousseau?", right?
A. Right.
Q. Those other investigations have nothing to do with the case before the court.
A. Right.
Q. And you're going to go on now and talk about being in custody with someone named Nick Franco?
A. Right.
Q. And Nick Franco is someone that the police were investigating for murder.
A. That's correct.
Q.Okay.
--- Videotape played from 10:24 to 10:32 a.m.
MS. MULLIGAN:
Q. If I can just pause it there for a moment, sir. That was all to give you background. Do you remember the conversations you're telling the police about?
A. Yes, I do.
Q.It help put it in context?
A.Yes.
Q. Do you remember now when or where you had those conversations with Mr. Franco?
A. In jail.
Q. Do you remember specifically where or not?
A. OttawaCarleton Detention Centre.
Q. Do you remember the range, the time?
A. I think it was 2B. I'm not a hundred per- cent sure.
Q.We'll continue on.
--- Videotape played from 10:33 a.m. to 10:37 a.m.
MS. MULLIGAN:
Q. First of all, sir, you'll agree with me that you were talking about the second period of time in 1991 when you were at the detention centre?
A. Yes, I was.
Q. Okay. And you indicated that you were in 2B with Nick Franco?
A. That's correct.
Q. And you spoke -- at the beginning of that section you explained to the police that you were speaking with Nick Franco every day, he was talking about the murders to you every day?
A. Yeah. I talked to a lot of people every day.
Q. And you told the police in that video that you were in 2B maximum, he was in 2B maximum, that he was always in 2B the whole time you were there.
A. That's what I said.
Q. And I suppose the way you would know that, sir, is if you were in 2B as well.
A. That's right.
Q. So you were in 2B for that entire time period as well, weren't you?
A. No, I was transferred over when they were doing the painting or renovations.
Q. But you managed to be able to keep tabs on where Mr. Franco was?
A. I remember him being in 2B with me.
Q. The answer was "All that time at RDC Nick Franco was in 2B? Yes he was."
A. I might've been mistaken. I'm sure you have the placement sheets you could look over to see if I was trans- ferred.
Q. You seem to have a placement sheet in front of you there, or something. Do you recall what it was that you looked at on the video to find out the dates and whatnot?
A. No, I don't.
Q. You don't. All right.
Did you want to see your or at least what the records say for where you were at the RDC?
A. Sure.
Q. Do you think that might refresh your memory?
First let's deal with the one that deals with this time period and then I'll get the other one for you.
MR. COOPER: May I just see whatever you're showing the witness, please?
MS. MULLIGAN: Yes.
MR. COOPER: Your Honour, I'd I'm afraid I have to address well, maybe not. May I just have a moment, please?
THE COURT: Yes, certainly.
MR. COOPER: May I address the Court in the absence of the jury, please?
THE COURT: All right, members of the jury, would you take a short break, please.
In the absence of the witness?
MR. COOPER: Oh yes, please, in the absence of the witness as well.
Whereupon the jury and witness retired at 10:40 a.m.
* * * * * * * *
--- In the absence of the jury
MR. COOPER: Your Honour, we're back to these records that we know to be inaccurate. Now, Ms. Mulligan is, I gather, intending to put records that she knows to be inaccurate to this witness under the guise of refreshing his memory. I mean, this would be analogous to putting something that's deliberately she's not trying to refresh his memory, she's trying to taint his memory in front of the jury. If she wants to refresh his memory now she can interview him right now, I suppose we can arrange that imme- diately. She hasn't made any attempt to interview the witness outside of court. She's trying to do this, what I suggest is a completely improper exercise of not refreshing a memory but tainting a memory with information we know to be incorrect, inaccurate, information which has the mantle of authority attached to it of the Regional Detention Centre computer records. She wants to take this information that she knows is inaccurate and put it to the witness under the guise of refreshing his memory when it can't possibly refresh his memory because they're inaccurate and she wants to do this in front of the jury. I have no objection to her interviewing the witness on this privately. I have no objection to her doing it with the jury being absent, but she can't do it with these documents because we know they're not accurate. It's like taking a witness' statement that she knows is full of typographical errors and
putting it to the witness and having them try and refresh their memory from that. It's just completely improper. We know they're not reliable business records, and you could no more do this, Your Honour, than you could crossexamine somebody on a completely inaccurate transcript of a conversation or a court proceeding or something like that under the guise that it is accurate when you're apprised of the facts and you know it's inaccurate, then it's something that simply cannot be done.
If Ms. Mulligan wants to try and refresh this witness' memory from accurate records, that's fine. I haven't had any objection up to this point but now she's taking the stance that she wants to put information that we know to be inaccurate before this witness for, in my view, a completely improper purpose.
MS. MULLIGAN: Your Honour, I know nothing of the sort. I have re-read Ms. Flaherty's evidence from another proceeding. I submit, first of all, I'm not bound by it, but secondly what Ms. Flaherty says or the flavour of her evidence is that the log books on the corridors or on the ranges would be better evidence but we don't have those, those were destroyed. The computer system came into effect in about May 1991 and it may not have been too good when it first came into effect, there were only two computers in the maximum area for people to input movement of inmates but by the end of the year it was muchbetter. Butof course like any
record, she admitted that like any record the records are only as good as the person entering the information, that's the same if they write it down, if they enter into the computer, if they post it on a wall, it's always going to be that way. That's the gist of her evidence.
As far as this gentleman saying that he was moved because of renovations, I don't know that that's true, in fact we have evidence, if my friend wants to rely on evidence at the other proceeding, from Mr. Emmerson, renovations that he was subjected to were in July 1991. So I don't know that there were renovations in October or November or September 1991 that caused anybody to move. That's this witness' evidence and frankly I don't find much that this witness has to say to be reliable and I ought not to have to rely on his evidence to say that I know something else to be untrue. I know nothing of the sort, that these records aren't accurate or the best records we have, the closest thing we have, because any record may of course contain errors, but these are what we have, these are what was disclosed to me. Ms. Flaherty can come and be called and give evidence during the defence case that, you know, - and I would ask at this time these would only be lettered - but in the defence case if they are to go in she can say they're the best records we have, the log books are destroyed, we had a computer system, it was up and running sort of close to the end of or in
May but it was probably more accurate closer to the end of the year in '91. So that was her evidence, not that these records were a bunch of malarkey, and I have reread it and re-read it and I fail to see how my friend can stand up and say I'm putting records to the witness that I know to be inaccurate. They're the best records we have. The witness has asked to see them, the witness has obviously seen something similar before based on that video, he was looking at something that showed him dates and ranges, so in my submission he ought to be able to look at these again and decide whether that affects his memory at all or whether he maintains his position.
The records, just so Your Honour knows what they deal with, the records for Mr. Winn are unit range records, range assignment history. They show quite accurately that when he's entered on September 25th '91 that he goes to A and D, admitting and discharge, so that seems to be accurate. They show that on September 25th '91 to October 7th '91 he is in 3 Wing. The next record for the second period of time shows quite accurately, I would think, October 28th '91 that he's admitted into A and D. They show that on October 28th to November 5th he is in 2 Wing, and then on November 5th to November 6th he is in 4 Wing, not moved to 3 Wing but 4 Wing, these recordssuggest, and then on the 6th he is sent to the federal penitentiary.
So if the witness asks to review them, they are the best records we have and I would undertake to call evidence to prove the records, that they are the best records we have, they're most accurate that we are able to have. I don't think my client ought to be deprived of relying on the best available records given that the state has destroyed the other records, the log books that were kept on the corridors.
THE COURT: I think you just very slightly, for the record, you very slightly overstate what he looked at. I thought we looked at the video and he just gave him the date November 5th. I don't know that he gave them 2B necessarily, I think that came from his head, so to that extent ..... But beyond that I just accept what you say, that's what the record seems to say and that's what counsel's argument is, it's the best record available and if
MR. COOPER: Your Honour, I don't disagree that she can give it to the witness, 'Does this refresh your memory, yea or nay?' THE COURT: Okay.
MR. COOPER: That's the end of it, surely. She also, when she's refreshing his memory, has to inform him of the fact that these are derivative records that were not in use at the time. Ms. Flaherty indicates in answer to the question on page 105 of her testimony:
"Q.There's no way at this point that you or I or for Barnes or anyone else at the RDC can give us with one hundred percent
accuracy who was on 3B that week in July, isn't that right?
A. That's correct.
Q.The computer system, although it was up and running probably by the end of 1991, certainly wasn't anything that you would vouch for its accuracy in July of '91, isn't that right?
A. That's correct."
That, Your Honour, combined with the following:
Mr. Mallory was all material times on the same range at the detention centre when jailhouse confessions and other admissions are alleged against Mr. Stewart, including Winn, Hayden and Metrakos, and would be in a position to give evidence about the activities within the range at the jail and these three witnesses' interactions with the applicant.
That comes from Susan Mulligan, that as an officer of the court was part of her factum that she filed, Your Honour, with the notice of application or shortly thereafter the notice of application the 15th of February this year. She has brought forward to this Court, with a view to supporting Mr. Mallory's severance, information as an officer of the court which states this is not an issue. Now, she's saying that she has the opposite information. In my respectful submission that is also a factor that ought to be weighed here in terms of the Court's understanding of Ms. Mulligan's representations.
MS. MULLIGAN: The allegations made by the Crown is that Mr. Mallory was at all material times
on the same range, therefore Mr. Mallory could in fact give evidence as to whether these con- fessions were made or observations. To suggest that I somehow misled the Court on that fact or made some admission of what the Crown was alleging is ridiculous. The allegation, it is alleged that Mr. Mallory was at all material times on the same range when these witnesses say that they took confessions from Mr. Stew- art.
MR. COOPER: Your Honour, if I may, just to assist the Court by filing as the next lettered exhibit page 7 of the factum in question which does not, in my respectful submission, coincide with the submissions just made by counsel.
THE REGISTRAR: Exhibit C, Your Honour.
THE COURT: Yes.
EXHIBIT C: Page 7 of factum submitted by
Ms. Mulligan
THE COURT: Well let's present it to the witness in a voir dire, let's see if it helps to refresh his memory, but anyway let's proceed step by step and see where we go. Then we'll see if it goes before the jury.
MS. BAIR: Your Honour, when we present it to the witness to refresh his memory are we not obliged to tell him that it may or may not be accurate? Because there's the problem ---
THE COURT: Yes.
MS. BAIR: --- in giving him an ---
THE COURT: The document can't stand for more than what the document is and I think we have to tell him that it may not be accurate but
MS. MULLIGAN: I'll certainly explain that to him ---
THE COURT: Yes. Thank you.
MS. MULLIGAN: --- when I show him the record.
THE COURT: Yes.
MICHAEL ANDREW WINN, resumes on the stand
MS. MULLIGAN:
Q. Sir, you thought that perhaps the records might refresh your memory. I want to caution you, first of all, that records may or may not be accurate, that they're made by people and we don't know whether these are accurate or not, so if they refresh your memory that's fine, if they don't that's fine as well. Do you understand?
A. Yes.
THE COURT: But this is not just a general observation about people making records and the record-keeper may not make accurate records. It's more precise than that. These records are themselves maybe not because of the general reason but because the record-keeper themselves about these particular documents are not neces- sarily confident about the accuracy of the documents. It's not a general proposition, do you know what I mean?
THE WITNESS: Yes.
THE COURT: In other words, they say at the RDC that they themselves may not be satisfied or
are not satisfied that the records are totally accurate, okay?
THE WITNESS: Okay.
MS. MULLIGAN:
Q. Now I'm showing you first of all page 47, the 25th of September to October 7th '91.
A. Okay.
Q. And I'm showing you the next one which is page 49, it shows the 28th of October to November 6th.
A. Correct.
Q. Having looked at those documents, does that help refresh your memory as to where you were inside the jail or does it not?
A. I think if I had complete things with who I was in with it would probably help me, complete records.
Q. I wish we did, sir, but this is what we have. This doesn't help you?
A. No. As a matter of fact I was in jail in OCDC in 1990 even though it says there's no file.
Q. Okay. That's a handwritten note on the record that's been provided to me by somebody named Wendy, right?
A. Correct.
Q. Okay. What I'm concerned with, sir, are the records from September 25th to October 7th and October 28th '91 to November 6th '91. Do those assist you in any way to know where you were inside the detention centre?
A. No.
MS. MULLIGAN: Your Honour, what I propose to do then, subject to my friend's comments, before the jury is just to indicate that he's seen some records, they don't assist him in refresh-