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Robert Stewart letter

Notice of Appeal

Robert Stewart: has a publication ban helped keep this man in Collins Bay, Kingston for 9 years after an unfair trial?

< < < continued from previous

January 7, 1994

Q. Sir, I just want to go over another area with you, and that's the area of this disk. And you'll remember
Mr. Edelson spoke to you and then told you exactly what the police had gone through and what they
were going through - the expense, etcetera, over this disk.
A. Like I said, I lied about the disk.
Q. No, I realize that, sir. I realize that. I'm just showing you - I believed that's Exhibit Number 70, if I'm
not mistaken. This is the disk. I think you've seen that before. We showed it to you last time you
were here.
A. Could be, yeah.
Q. Do you recall?
A. Yeah.
Q. This is the one you gave to the police.
A. Yeah.
Q. Did you give it to them scratched up like that, do you recall?
A. I don't know.
Q. You don't know, okay. And were you not concerned, sir, about all the work you were putting
them through when you knew the thing was bogus to begin with?
A. I didn't trust 'em. Like I told Mr. Ellison, and I'm gonna tell you the same thing, I just didn't trust 'em.
Q. What I don't understand, sir, is you give them something, you know it's got nothing on it, you know
that they're going to check into it, and they're going to come back to you and say, "Denis, this is
another lie!"
A. That's right. That's exactly what happened.
Q. And you knew ahead of time that that was going to happen.
A. Yeah.
MR. SCULLION: If I could just have a moment, please, Your Honour.
MR. SCULLION:
Q. I take it, sir, when you testified, that was back on October 17th, 1991, and you told
Mr. Edelson that the first time that you realized there was nothing on the disk was when
the police advised you of that, that would've had to have been a lie.
A. Correct.
Q. And that was under oath.
A. I don't believe so, but whatever you say.
Q. Well, do you want me to read it?
A. Go ahead.
Q. Do you recall Mr. Edelson asking that question?
A. I recall asking me a lotta questions.
Q. Well, I'm reading from page 19, and this is in the October 17th transcript:
"When did you first discover that it had nothing on it?
Answer: They just told me.
Question: The police told you some time afterwards?
Answer: Yes, yes, they did." So your evidence today is that you knew before you gave it to them
that it was bogus. Your answer to Mr. Edelson back on the 17th of October was that you didn't find
out until after they gave it back to you.
A. Correct.
Q. So which one is the lie, the one on the 17th? Which one is the perjury, the 17th of October or
today's answer?
A. I don't know what to say to that. I knew that there was nothing on it. Like I'm telling you, there
was nothing on the - on the disk, so....
Q. So your answer to Mr. Edelson back on the 17th of October would've had to have been the
perjured testimony if you're saying now that you knew there was nothing on it.
A. Correct.
Q. That doesn't bother you, Mr. Gaudreault, just to lie at the drop of a hat on a murder trial ­
a murder preliminary hearing?
A. I'm not lying today.
Q. No, but you lied back then! You sat in that chair - do you remember you told us you don't lie
when you sit in that chair?
A. See, when I sat in that chair, I had a lot to worry about. Lotta people were getting me off. It was the
first time that I ever did this. I was nervous. You're asking me a question and I'm answering you
the answer.
Q. Okay, so back in October, then, when you sat in that chair, you were quite prepared to
commit perjury...
A. No.
Q. ...and did.
A. It wasn't no perjury.
Q. Mr. Gaudreault, I just showed you perjury.
A. He asked me if I knew there something on it. Coulda been something on it!
Q. Mr. Gaudreault, we just went through this
A. Yeah, so there was not....
Q. You just admitted to me...
A. Yeah, there was nothin' on it.
Q. ...that you committed perjury back in October. Are you trying to get around that now and saying
now you didn't?
A. No. No.
Q. And you just went through a speech telling me back in October you were nervous.
A. Yeah.
Q. You didn't know what to say.
A. Yeah.
Q. My question to you, sir, is you testified in October for about 20 days. Give or take a few.
A. Yeah.
Q. How much of that, sir, was perjury? Because you told us just this week when you sit in that chair
you don't lie!
A. Not here, no.
Q. But you did back in October?
A. Like I said, I was nervous back then.
Q. Well, how much of it, sir?
A. Lotta questions was ask (sic) and that's all I'm gonna tell ya, I was nervous back then.
Q. Well, do we have to go through everything you did in October to find out where you lied to us?
A. No.
Q. So that's your explanation.
A. Correct.
Q. When you were nervous back in October, that's when you committed the perjury.
A. Correct.
Q. And there could be other areas back there as well.
A. Don't believe so.
Q. We just haven't found them yet.
A. Keep lookin'!
Q. Well, we'd be here for the next six months, Mr. Gaudreault!
A. You already got us here for two - nearly two and a half years!

Mr. Gaudreault has continued to tell lies and make up elaborate stories. His story about the actual events surrounding these murders, like almost everything else he told the police, ever-evolving and changing. His relationships with the Witness Protection police have been defined by lies he has told to them and frauds he has perpetrated against them.
Mr. Gaudreault's motivation for lying during this, and related, investigations has always been self-interest.

A good example of his reasoning can be found in his evidence given at the last trail on November 3. 1995, concerning lies he told in simultaneous drug investigation concerning Mr. Stewart and his associates.

Q. Why did you tell.... This would be - what-in the fall of 1990 that you were lying to the police ---
A. Yes.
Q. --- about going to Halifax with Vanasse; right?
A. Yes.
Q. Well this was, I take it, something like a little bit of a white lie, something the same as saying that you
paid Neville when you didn't pay him; right?
A. That's right.
Q. Now what was your reason for saying that you'd gone---
A. Because I overheard some conversation about with Stewart. And anyhow we went down, there was
a container that they found, which was registered to Michael Vanasse's wife. And there was also
a shipment, 44 million dollars worth of cocaine on its way, which they seized in the states, which
Michael Vanasse is waiting extradition back to the states on that one.Q. Why did you say---
A. So obviously I was pretty good.
Q. Why would you say you went with Vanasse? You personally? Why did you lie about that?
A. I went down.
Q. Why did you tell them that you were with Vanasse when you weren't?
A. I lied about it.
Q. Why?
A. I just lied about it.
Q. But, what, you were scared? You thought... You were scared of something if you told the truth?
A. To believe that what I was talking about is the same thing with the drugs when I was working the
drugs with the OPP when I asked them for 25 and the officer says, no way, there's that, like you said
there is about drugs. We'll have to see what happens. Meanwhile, they get a big bust, just over,
with seized and all that, from what I heard it was over a million dollars. And I still got $15,000. They
never cough up the extra ten thousand dollars, that he told me he'd give me if there was more.
Q. So you ---
A. So obviously these guys are not small time dealers. These guys are trying to make these guys pass
for saints. Meanwhile, you got a guy getting busted for 44 million dollars worth of cocaine, which is
850 kilos in a DC-9. You have over a million dollars seized there during December, during the arrest.
And these guys, oh they're just nickel and dime dealers on the corner streets. Yeah, okay. So I lied a
little bit to them to prove that I was serious about this.
Q. You were hoping to get more from lying? I mean, get paid more than your 15 thousand, or what?
A. I never got more than 15 thousand.
Q. But was that the reason you lied?
A. I wanted them to believe me, that when I was..... Like they always said that, when I told them they'd get
a lot more than what they could think of, these are not small players, they didn't believe me. He says,
well we'll give you 15 thousand. And like Miller says, if it happens to be more than what you said it
is, around what you says, we'll give you the extrA. They got a lot more. When they brought me here to
go testify against them, I had an argument with the Federal Crown. I said, I'm not taking the stand.
They promised me 25, they only gave me 15. Then Miller comes in and says, we don't need you, they
already plead.
Q. You just said a few minutes ago, sir---
A. So---
Q. Sorry to interrupt your dialogue there, but, sorry to interrupt, this really isn't a dialogue, but I'm sorry
to interrupt you, but you just said, you wanted them to believe you about this thing in Halifax. But what
was it to you this thing in Halifax? Were you working for the RCMP at this point as a drug officer or
what?
A. I was working with the drugs officer, on the Ontario. But, like I said the shipment of drugs was
confiscated in Pittsburgh in the States. Like I said, 44 million dollars, it's like 44 dollars.
Q. But what was there in it for you, whether they believed you or not about that?
A. Could have been some extra for me.
Q. Oh I see.
A. My ten thousand dollars

Mr. Gaudreault also continues to commit criminal offences, telling one recent informant against him, "I am untouchable" due to his relationship with the police and his involvement in this prosecution. The same informant told the police that
Mr. Gaudreault had discussed robbing a Brink's truck and had for some time been growing marijuana on the property rented for him with funds provided by the Ministry of the Attorney General. Once the marijuana was harvested, Mr. Gaudreault sold it through a series of dealers he had working for him. During his most recent testimony at Mr. Stewart's trial (about one month ago) Mr. Gaudreault admitted that the informant had told the truth about Gaudreault's drug plantation and drug trafficking activities, but denied any serious intention to rob a Brink's truck.

There are many more lies and examples of conduct engaged in by Mr Gaudreault that we believed should give the Ministry grave concerns about calling this witness in any proceeding, let alone call him in circumstances where the Crown's case really depends upon his credibility for a conviction.

There is also much more information available about benefits, both past and present, to this witness that we believe should be considered by the Ministry. For example, when Mr. Gaudreault appeared at the Courthouse in January, 1997 to threaten that he would not testify unless certain of his demands were met, Mr. Cooper (one of the prosecutors on the case) reassured Gaudreault by telling him that when he brought his law suit against the Ministry of the Attorney General and the Ontario Provincial Polices, Mr. Cooper would testify on Mr. Gaudreault behalf. There is not question that Mr Gaudreault has been led to believe by the Crown prosecutors and the investigating police officers that he has a very good law suit and he can expect to recover a very substantial sum of money from the Ministry of the Attorney General and?or the Ontario Provincial Police.

As to independent, non-informant type, corroboration of Gaudreault's evidence, there is very little that would support the Crown's position that this witness should be called at trial. Corroboration of bits and pieces of Gaudreault's version of events, imperfect through it may be, comes from Gaudreault's friends and relatives. Two of the most important witnesses corroborating portions of Gaudreault's story are his ex-common law spouse, Rhonda Nelson, and her brother, Garrett Nelson. Mr. Gaudreault, however, had occasion during the preliminary inquiry, on January 5, 1994 to comment directly on their credibility.

Q. Well, it's all a cock and bull story, isn't it, Mr. Gaudreault?
A. No.
Q. This whole black book thing is all garbage, isn't it?
A. No. When you ask Rhonda, she'll tell ya, she stripped the house looking for it. Rhonda's seen it,
Garrett's seen it. Lou Ok....
Q. Two credible witnesses.

MR. CAMPBELL: Is that a question, Your Honour?
MR. EDELSON:
Q. You're putting them forward as two credible witnesses?
A. Yeah.
Q. Um-hmm. Did you ever coach Garrett Nelson what to say when he met with the police?
A. No.
Q. Can you explain why he told the police that you had coached him on what to say?
A. I never told him what to say. I wasn't even with him when - when he talked to the police.
Q. Can you explain why he would say that you coached him on what to say to the police?
A. Maybe he doesn't wanna show up to court
Q. No, no.
A. You could only ask him. Don't ask me for a question, like I told yA.
Q. You knew, because you told Detective Riddell that Garrett Nelson forgot to tell him about the
white car.
A. Well, he was there!
Q. You knew Garrett Nelson had failed to tell the police about the white car, right?
A. You'll have to talk to Garrett.
Q. No, you knew it, you said it to Riddell, did you not?
A. I don't recall.
Q. Do you know Garrett Nelson to be a liar?
A. Yes.
Q. Do you know Rhonda to be a liar?
...Pause
A. Well, Rhonda - it's hard to say.
Q. You had to think about that one? Do you know Rhonda to be a liar or not?
A. I couldn't answer that.
Q. Well, look, you had a long relationship with her. You've known her for many years. Is she a liar?
A. She could....
Q. Does she tend to tell lies?
A. She could.
Q. She could?
A. Yeah. Doesn't mean she will.
Q. I'm not saying about this case.
A. Yeah, I'm not - I can't....
Q. I'm saying generally in your relationship with Rhonda Nelson, is she a liar?
A. I'd have to say sometimes, sometimes not.
Q. Does she lie more than you or less?
A. A lot less.

When one considers Recommendation 41: matters to be considered in assessing informer reliability,
(in combination with Recommendations 39 and 52, as well as others) we urge you to find that it would be unsafe
to call Mr. Gaudreault as a witness for the crown at Mr. Stewart's trial.

We have only just provided an outline of our concerns with respect to the Crown's intention to call Mr. Gaudreault
as a witness. We would, of course, be pleased to assist you in the review process with respect to Mr. Gaudreault
in any way possible.

b. Jacques Trudel

"I was untruthful, yes, I admit that and I'll admit that a hundred times if you want me to"
Jacques Trudel, January 29, 1996 Trial of Sauve and Trudel

Another of the central witnesses for the Crown at the first trial was Jacques Trudel. He received the benefit of a 14 years reduction in sentence on conspiracy charges (from life down to 7 years), a lump sum of $19,000 was returned to him from proceeds of crime seized upon his arrest, promises were made to assist him to obtain early parole and he was told that he would receive a Witness Protection contract and monthly stipends just like his life-long friend, Denis Gaudreault. He not only provided a statement in this case upon receiving promises of these benefits but also in other cases, but only after the deal appeared to be in place. The first two times he spoke with police on this case he gave false statements, claiming wouldn't give them the real goods until he had what he wanted. As a result, a new deal was arranged whereby he would received a sentence of 10 years, but if he co-operated with police on this case it would be reduced to 7 years on appeal
and it eventually was reduced to 7 years.

Once he received these benefits and was assisted by the police to get out of custody on parole, he was taken in
to the Witness Protection Program where he received further monetary benefits until he slit another man man's throat with a knife and re-incarcerated. Upon being released from serving his sentence on those charges, the Ontario Provincial Police provided funds to him of approximately $3500 per month until the Witness Protection Program finally rejected Mr. Trudel's re-application and instructed the O.P.P. to stop paying him money.

Interestingly, not long after his re-application was rejected by the Ministry, Mr. Trudel advised police investigators that he made up the testimony that incriminated his brother, Rick Trudel and his co-accused James Sauve, at the first trial. His testimony was crucial to the convictions register against these men. The impact on a jury of Trudel testifying that he received a confession from his brother and Mr. Sauve was devastating to the defence.

Mr. Trudel has recently offered to take a polygraph test to try to prove to the police and the Crowns that he lied about the whole thing, but the prosecution team has thus far refused to provide him any such opportunity. (They take this position despite the fact that they continue to claim reliance on polygraph results with respect to other witnesses, such as Mr. Gaudreault.) The Crown does not anticipate calling Mr Trudel at this trial but maintain that they will do so if it becomes necessary to their case.

Mr. Trudel was recently re-incarcerated for threatening with respect to Mr. Gaudreault, However, until his arrest he had been living, rent free, at a property owned by the Inspector in charge of this case and had the benefit of an O.P.P. long distance calling card.

c. Michael Winn
"I've had a long ongoing relationship with George and he asked me if I would help..."
Michael Winn, November 23, 1993 K.G.B. Statement
(Re: Relationship with Det. George Snider, investigator in this case)

Michael Winn is a jailhouse informant with an extremely long criminal record for crimes of dishonesty. When he testified
at the last trial Mr. Winn admitted to having committed many more crimes for which he had never been charged. He has
been in the Witness Protection Program in relation to various cases where he has acted as an informant. His first Witness Protection contract began in May, 1992 and his last contract finally came to and end in August, 1997. Throughout that
period of time he was receiving $2500 each month from the Ministry of the Attorney General due to his involvement as witness in one prosecution or another. His contract with respect to Mr. Stewart's case began in September, 1993 and continued until his removal from the Program in August, 1997

Michael Winn was interviewed by Detectives Lamarche and Riddell in 1991. At the time, he did not claim to have received confessions from the accused men while in custody with them not long before he spoke with these officers. On September 27, 1993 Det. George Snider became part of a team of investigators assigned to re-investigate these homicides (Mr. Stewart had, of course, been sitting in custody for almost three years by this time.) Det. Snider had a long relationship with Michael Winn as an informant and witness in various cases he
had worked on prior to this case.

Having begun his new assignment on September 27, 1993, Det. Snider claims that he just happened to be speaking with Michael Winn on September 28, 1993 when Mr. Winn let it slip that he had been in custody with
the accused and had spoken to them about their roles in these murders. Mr. Winn's first hand-written statement was apparently delivered by him to the Det. Snider on November 15, 1993 and on November 23, 1993 Winn provided a sworn video statement wherein he claimed to have received jailhouse confessions/admissions from both Mr. Mallory and Mr. Stewart. On February 1, 1994, Mr. Winn signed a new Witness Protection Contract with the Ministry of the Attorney General.

In August, 1997, Mr. Winn's funding from the Ministry came to an end because he had apparently been self-supporting for some time. In response to being given notice that his funding would be coming to an end soon Mr. Winn warned "Maybe I'll have a memory lapse," He is, however, scheduled to be the Crown's first witness at trial.

d. George Metrakos

"... the star witness against him he said in fact that that was the man who committed the murder...
That it was over drugs. That the woman was a pregnant woman and her old man
and that it was drug related in terms of they owed... Stewart twenty-five hundred dollars."
George Metrakos, May 20, 1992 statement

"... Rob Stewart said that the star witness at the time when I was with him at O.C.D.C.
had actually committed the crime, but that it had been done both with Stewart's knowledge
and approval. The way it come to me from Stewart was that the two victims owed the star
witness at that time, his name I don't have any more, the star witness was owed twenty-five hundred
dollars for drugs which had been supplied by Rick Trudel..."
George Metrakos, November 30, 1993 sworn statement

In the above quotes from the statement of Mr. Metrakos he is telling the police that Mr. Stewart told him, while they were together in custody, that the person who actually committed these murders was Denis Gaudreault. His story about who was owed the money changes between the two versions, but he is always clear that it was the star witness who committed these crimes. In his first statement he tells the police that Stewart referred to the star witness as being the witness testifying at the time -- that witness was Denis Gaudreault.

By was of background, George Metrakos initially went to the police to inform about a friend, Roger Caron who had committed several robberies and with whom Metrakos had been living. In exchange for this assistance Mr. Metrakos requested favours with respect to a pending extradition to the United States to complete a sentence, crime stoppers money, the opportunity to make further money as an agent for the police, police assistance to obtain early parole with respect to an outstanding warrant in Canada and police assistance to obtain a placement in a minimum security penitentiary in a location of his choice while serving out the remainder of his sentence in CanadA.

Mr. Metrakos told the police primarily information that they already had about Mr. Caron and he did not immediately receive any of the favours he had requested of the police. Part of the difficulty was that the agency work Mr. Metrakos said he could perform -- the recovery of some stolen cheques from one of the robberies -- was not successful.

Mr. Metrakos kept in touch with the officers while in custody, however, to advise them about his attempts to assist them and to inquire as to what the police were doing for him. When the police appeared to be disinclined to fulfill much of Mr. Metrakos' wish list and he was unable of fulfill his role as agent, Mr. Metrakos began to
offer up confessions form other inmates. Some of them the police were not interested in, but then Mr. Metrakos offered information about Mr. Stewart and the Cumberland homicides.

Mr. Metrakos had a bit of a false start, however, when he first advised the police that Mr. Stewart had confessed to another murder which the police suspected Stewart had been involved in but with respect to which two other men (not connected to Stewart in any way) eventually pleaded guilty. However, once he started talking about Stewart, officers began to attend at the jail and put money in his canteen and listen to his concerns about the other requests he had made.

Eventually he claimed not only that Stewart had admitted involvement in the Cumberland Homicides (the present case) but also that he was planning to have two of the witness killed. Subsequent to passing on this information, Mr. Metrakos received either $500 or $1000 Crime Stopper's money for the case involving Mr. Caron, he was told that his extradition concerns were being looked into, and (although we cannot prove police involvement) he was transferred to a minimum security camp.

While at camp, Mr. Metrakos was interviewed for the Witness Protection program and made a number of further requests of the police. Perhaps the most interesting of these requests was a request that the police assist him in transferring the credits he had earned while studying Criminology at the University of Ottawa to any new name be may be provided. When confronted with certified transcript of his record from the University, showing the dates he had dropped courses and that in the end, he failed to complete even one course, Mr. Metrakos testified (October, 1997) that the records were wrong and maintained that he had completed a full course load.

The Ontario Provincial Police involved in Mr. Stewart's case, enlisted Mr. Metrakos assistance in 1992 to meet with Mr. Stewart while wearing a body pack. The purpose of the meeting was to get Mr. Stewart to say something incriminating with respect to the contract hits Mr. Metrakos claimed Stewart told him he had put out on Mr. Trudel and Mr. Gaudreault. Although a body-packed meeting eventually took place between Stewart and Metrakos, no inculpatory comments were recorded on the body pack and Mr. Metrakos never put directly to Mr. Stewart any suggestion about the alleged contract. Instead Mr. Stewart discussed his innocence with Mr. Metrakos and complains about the amount of money being offered to witnesses to commit perjury at his preliminary inquiry.

 

By the time Mr. Metrakos was to be called as a witness at Stewart's preliminary inquiry, he had been missing for about one year. The Crown sought and received a material witness warrant to bring him back to OttawA. As luck would have it, Mr Metrakos decided to offer his services as an informant to another police force who contacted the police in Ottawa and Mr. Metrakos was arrested. Once back in Ottawa, Mr. Metrakos negotiated a lump sum payment of 10,000 from the Ministry of the Attorney general, provided a sworn witness statement concerning his alleged jailhouse discussions with Mr. Stewart, and was sent on his was. He was to look after his own security concerns with the $10,000 provided to him.
It wasn't long after that that Mr. Metrakos offered up information in another high profile trial -- the MacArthur brothers trial in Durham region. The information he provided in that case was clearly false and the Crown chose not to call Mr. Metrakos because she did not believed he was telling the truth.

As to his background, His criminal records in the United States and Canada consist of mostly crimes of dishonestly and police records indicate that Mr. Metrakos used a total of 14 known aliases. In short, he is an experienced con man. As a self-aggrandizing con artist who, when he had the chance to get inculpatory statements form Mr. Stewart on tape failed to even try, Mr. Metrakos hauntingly reminds us of Robert Dean May in Mr. Morin's case.

e. Andrew Hayden

"When he was first seen at the detention center it was obvious that he was disoriented, thinking that he was
in hospital rather than jail, he didn't know the date and his memory was poor. He then complained of hearing voices, a male voice saying "do something for the country" and a female voice saying "drink and you will be alright." He also claimed hearing explosions in his head. He also had auditory (sic) hallucinations in the form of seeing the little mice on the walls that go very fast... On admission to the hospital... He was still hearing
the voices and still seeing the little mice on the walls. He felt frustrated that nobody has helped him. He claimed to have bad dreams of being shot at by Vietnamese. He get frustrated with his poor memory of
recent events. he expressed that at times he feels stupid because of his memory and because he knows at one time he had a future... He know he was Andrew Hayden but at time thinks he is Frank Mitchell...
Dr. Balmaceda,
Royal Ottawa Hospital
Court ordered Psychiatric Assessment,
June 24, 1987

Andrew Hayden has a long psychiatric history, organic brain syndrome and chronic alcohol abuse problems. He
ended up in a cell with Mr. Stewart and called the police to tell them that he had information to offer. Mr. Hayden wanted assistance with parole and money. The investigators offer him both without hesitation or investigation into
his claims. He told the investigator that he had read Mr. Stewart's disclosure but nevertheless maintained that Mr. Stewart had also discussed his involvement in these killings. Stewart, according to Hayden, did not come right out
and confess -- in fact he denied his involvement and explained to Hayden why the statements of various witness
could not be true. Mr. Hayden reasoned that such protestations by Stewart really amounted to admissions of quilt because, in his view Stewart would only know if the witnesses were lying if he were in fact at the involved in the crime. The investigators and prosecutors feel this evidence is worthy of being called at the trial.

Mr. Hayden never did sign a statement and on several occasions told the police he had decided not to testify. He had, after all, not received assistance with early parole and only canteen money had been supplied to him, rather that the $10,000 he had requested for relocation and $1000 per month as a living allowance.
Mr. Hayden was re-incarcerated several times over the next few years, often for impersonating a police officer and once for impersonating a homicide detective, until he dropped out of sight in 1995. The trial Crowns have indicated, however that Mr. Hayden, if located, will be called to testify at this trial. Mr. Hayden's criminal record, almost entirely for crimes of dishonesty, span three decades.

f. Richard Potvin

"I came to the jail here on May 2nd this year. I was in seg, straight to segregation.
I just couldn't handle it, I couldn't do time..."

Opening lines of Richard Potvin's statement
June 30, 1993

Richard Potvin has a long psychiatric and criminal history. He had been on a suicide watch at the jail when he called investigators to claim that the accused men had conveyed threats to him to have his father (a witness who found the bodies and whose evidence given at the preliminary inquiry advanced the theory of the defence) change his evidence. Richard Potvin was desperately trying to negotiate his release on bail through the provision of information to the police. When it became clear to him that he would not be immediately released, he demanded that he be moved to a jail he preferred in exchange for his evidence and sought other favours from the police including canteen money while in custody. Mr. Potvin was moved to another jail and did receive canteen money from the police while in custody.

Potvin has a long criminal history for crimes of dishonesty. He dose not do jail time well and is often on suicide watches at the jail. While in custody during the course of his dealing with police on Mr. Stewart's case, he also claimed that he had received confessions from several other inmates charged with murder at various jails. As far as the defence is aware, Mr Potvin was not called as a witness in any of these other proceedings. The investigators in Mr. Stewart's case have testified that they did not bother to follow up with the investigators in those cases to see if Mr. Potvin's evidence had turned out to be credible.

Mr. Potvin is presently incarcerated in Saskatchewan for Armed Robberies committed subsequent to his release from custody in Ontario.

g. Scott Emmerson

Q. Okay. Did you lie to the Police?
A. I didn't lie, I just hid things from them.

Evidence of Scott Emmerson at Trial,
Februaty 24, 1995

It is unlikely that Mr. Emmerson will be called at this trial, but he may be. He claimed to have received a jail house confession from the accused, but primarily claims to have spoken with Mr. Sauve. Mr Emmerson also has a long psychiatric history and substance abuse problems. As he was moved form institution to institution by the police, he, like Mr. Potvin, received more and more confessions from people charted with murder in other cases. Emmerson also received the benefit of police and Crown assistance with sentencing hearings.

Mr. Emmerson testified at the trial of Trudel and Sauve. He was about to be released form custody and claimed that no promises had been made to him about benefits he might receive following his testimony. However, as soon as he finished testifying he was placed on the Witness Protection Program and before being re-incarcerated a few months later for robbery, he received the benefit of approximately $17,000. The fact of his being accepted into the program and the amount of money expended on him were not disclosed to the defence at the first trial. We, in fact, only received this disclosure about 7 months ago during the Stewart Mallory stay application.

It is of note that Mr. Emmerson is another of the Crown's witnesses who admits to having lied repeatedly to the police and to having committed perjury during the course of this investigation. A portion of his evidence, given on February 28, 1995, is reproduced below.

Q. So by the time we're all done that, you know how important this statement is, don't you?
A. That's correct.
Q. You know you've got to tell the truth.
A. That's correct.
Q. The whole truth; is that right?
A. That's right.
Q. And nothing but the truth.
A. That's right.
Q. It isn't what you do, is it?
A. No. I lied.
Q. Under oath.
A. That's correct.
Q. Do you have any idea how stunning that is for all of us?
A. Pretty well stunned.

MS. BAIR: Maybe my friend could just speak for himself.
MR. BARNES: I asked him a question; he answered it.
MS. BAIR: Well, I'm still making the point that it's an inappropriate question. I don't think he can say
how stunned I am.
THE COURT: He may not know how stunned we are, I suppose.
MR. BARNES: Well, with the greatest of respect, Your Honour, I disagree, I think he does know how stunned
THE COURT: All right. He's answered the question anyway. It's in the gray areA.

MR. BARNES:
Q. When you gave the answers in that statement you knew you were telling a lie, didn't you?
A. Yes, I was.
Q. You knew you were under oath.
A. That's right.
Q. You knew you were committing perjury.
A. That's correct.
Q. Why didn't you tell them right then and there, 'I lied to you again about Mallory'?
A. I didn't want to bring up charges of perjury against myself and at the same time I still didn't want to
expose Rick. Whether he knew or not, I don't know.
Q. But when you're under oath why don't you tell them before you say the lie, 'Look, I know I told you back
in November and September something it isn't quite true. I'm under oath now. I can't say it now.'?
Why didn't you say that to them?
A. Because I just didn't want to.
Q. You thought they'd never find out. Right?
A. That's right.
Q. It's okay to lie as long as you don't get caught; is that right?
A. No, it's not.
Q. But you did it anyway.
A. That's correct.
Q. Now, they find out you lied.
A. Yes.
Q. And they come and take another statement off you. It would be Gary Dougherty again, I take it?
A. That's correct.
Q. I guess this is another one of those occasions he's pretty upset with you, isn't he?
A. Yes.
Q. And he tells you what a mess you're making.
A. That's right.
Q. Does he mention the word "perjury"?
A. No.
Q. Anybody ever mention that word to you?
A. No.
Q. Did you ever talk to your lawyer about that?
A. No.
Q. Yesterday you didn't seem to realize the possibility of being charged with a breach of probation.
A. That's correct.
Q. Are you telling me today that it has never crossed your mind that you could be charged for perjury for
what you said on the 6th of December, 1993?
A. No, it hasn't.
Q. It's never crossed your mind?
A. Well, it has from time to time but not until later on.
Q. When was that?
A. When I decided to give the statement to Dougherty.
Q. Okay. And when you give that statement to Dougherty and you say 'I lied. I committed perjury',
do you say to him, 'Are you going to charge me with it'?
A. I don't recall.
Q. I take it you don't have an upcoming court appearance for perjury, do you?
A. No, I don't.
Q. They haven't charged you at all, have they?
A. No, they haven't.
Q. Have they told you that they're not going to?
A. No, they haven't.
Q. Aren't you a little curious about that? You never asked them?
A. No. If they do, they do; if they don't, they don't.
Q. When you appeared here the other day to testify, you knew you'd still have this hanging over your
head, don't you?
A. That's correct.
Q. And you know that if you had changed your story in the witness stand here, they would have charged
you with that perjury, wouldn't they? You knew that.
A. True.
Q. So you've got to keep coming through for them, don't you?
A. That's correct.
Q. When you finally do tell them about it, I think you told us you don't ask about perjury and you're not
told about it?
A. That's correct.

Not only was Mr. Emmerson never charged with perjury, he was the recipient of police assistance and benefits following his testimony.

 

h. John Chapman

" I understand that Mr. Chapman is currently facing charges of assault and failing to appear
in court. I understand that Assistant Crown Attorney Nathalie Cote has already taken a position
that she would withdraw the failure to appear upon a plea of guilty to the assault. In light of
the genuine danger which your client would be facing in jail due to his cooperation with the
police I would be prepared to recommend a non-custodial sentence to the judge. The Court would,
in an appropriate way, be fully advised of all of the circumstances of the offence and of your
client's cooperation with the authorities and of his concerns."

Letter from Crown Attorney Andrejs Berzins to
Mr. Chapman's lawyer, dated February 28, 1994.

As noted above, Mr. Chapman's counsel and the Crown Attorney of Ottawa reached an agreement respecting Mr. Chapman's outstanding offenses. The agreement reached was a conditional one upon Mr. Chapman cooperating
with the police in this investigation. Mr. Chapman's first statement to the police was taken on March 7, 1994 from 10:30 A. m. to 2:30 p.m. He was then escorted to Court and received the deal that had been negotiated on his behalf at 4:10 p.m. the same day. Unfortunately, the tape recording of the first interview did not turn out the interview had to be redone one week later.It is clear that John Chapman came forward only after he was charged was assaulting his wife and failing to appear for Court, several years after the events about which he wanted to give information. St that point, he was interested in exchanging information for the withdrawal of the charges. He did not want to go to jail and knew he would very likely have to go to jail given the nature of the beating on his wife. he contacted the investigators and through his lawyer offered information and drafted a contract with the police. His initial thought was to give the information, have the charges withdrawn, be granted immunity with respect to any other criminal conduct that might be revealed, be relocated to a new area, received a new mane, and never have to testify.

Ultimately, the Crown and Mr. Chapman reached a compromise. He would have to enter a plea of guilty to his outstanding charge of assault, the charge of failing to appear for Court would be withdrawn, and the Crown would recommend that he not spend any time in jail because, assuming he gave a statement to the police regarding Mr. Stewart, his safety in custody would be in jeopardy. He was also told that he may have to testify at trail.

In return for not having to go to jail, Mr Chapman told police that he had been involved in the drug business with Mr. Stewart and had owed Mr. Stewart a substantial sum of money (between $20,000 - $30,000). He had not paid the money and had lied to Stewart, who had several times taken post-dated cheques from Chapman in order to try to recover the money. In the end, Mr. Chapman claims he was beaten up by Stewart and two associates over the this debt. There is evidence that these events, although not exactly as told by Mr. Chapman, may well have occurred. However, Chapman adds that while being beaten up, one of the three men said something like, "Why don't we just dump him like the two in Rockland." This is the evidence the Crown seeks to lead.

Further, Chapman claims that he saw the deceased Giroux working at an apartment owned by Stewart,
doing renovations. He claims that when he saw Giroux's picture in the newspaper in January, 1990, he recalled having seen him there. However, he was interviewed in 1991 by two investigators and sown pictures of the deceased. They have no notes as to what Mr. Chapman said at the time -- i.e. whether he identified him or not -- but claim they would have likely noted it down if he had identified Giroux as someone he knew.

It is not until 1994 that Chapman comes forward, having been charged himself, with this information and makes the claim that he saw Giroux at Stewart's apartment. This is one of the very, very few pieces of evidence linking Stewart in any was to Giroux. Unfortunately, it is flawed and difficult to deal with for the defence because of the failure of the police to keep notes of have any memory concerning the previous identification procedure with Chapman in January , 1991.

Mr. Chapman also offers up some "strange look" evidence. He claims that a few days after the murders, Mr. Stewart and an associate met him for coffee and that Mr. Stewart never spoke, was physically shaking, and appeared "white as a ghost." The Crown would like to lead this evidence as well.

Interestingly, days before he was scheduled to testify at the first trial (just before Stewart was severed) he claimed to have been home alone and received several intimidation phone calls. The police were never able to verify any such calls. One might be forgiven for thinking that Mr. Chapman was trying to get his original deal after all -- that he would give the information, receive the benefit, but never have to actually testify. As it turned out, Stewart was severed, and Chapman will only be called at his trial.

III FORENSICS

Forensic evidence that might otherwise have been available to refute the testimony of informants
was either not collected, not preserved, intentionally destroyed of lost forever.

We have set out below examples of how, in various instances, this failure to collect and preserve
forensic evidence has prejudiced Mr. Stewart's defence and actually enhanced the Crown's case:

i. The Missing Gold Pillow:

It is the theory of the Crown that a small gold pillow was used by the person who shot the victim, Bourdeau, to shield himself from any blood flying back towards him and his clothing. The sole basis for this theory is that Manon Bourdeau was lying face down on the floor when found by the police and the gold pillow was on her upper back. Having presented the theory that the pillow was used as a shield at the last trial, the Crown was able to lead evidence surrounding a previous conviction of James Sauve for manslaughter (despite the fact that he never testified). The Crown successfully argued that the use of the gold pillow in that fashion went (at least in part) to the issue of identity of the shooter because Mr. Sauve would have known form the previous shooting incident that he was involved in that when one shoots a person blood might end up on one's clothing.

The theory of the Crown is sheer speculation, but it was held to be a sufficient basis -- by the same trial judge as is conducting Stewart and Mallory's trail -- to lead a number of other pieces of evidence that are very prejudicial to the defence. The real problem is that the defence is not in a position to refute the speculation because the gold pillow was either never taken from the scene or was taken and subsequently lost by the police. There was never any examination
of the pillow for the trace evidence before it went missing. The photographs of the pillow, which do not show the underside of it, do not assist us.

The defence theory is that it is equally liked that the victims' cat knocked the pillow off the bed long after the shooting,
or that the officers in the efforts to step over and around the victim. Giroux, (who was laying in the doorway to that room) may have bumped the bed inadvertently knocking the pillow of the bed. It must be remember as well that the officers were in the residence and in and out of the room for five hours before even locating the body of Manon Bourdeau lying
on the floor beside the bed.

There may or may not have been blood on the pillow. Based on the state of the bedspread and other evidence conceding the nearness of the shooter to the victim, it stands to reason that if the pillow was in the position it was found in when the fatal shot was fired, there would be significant propellant residue on the pillow. Unfortunately, we will never know because the failure to preserve and test this evidence has opened the door to a very prejudicial Crown theory being presented to the jury.

ii. Newspapers left Unchecked, Now Destroyed

Time of death is a significant issue in this case because at the time when the defence believes the murders occurred, at least one of the accused has an air tight alibi -- his presence in a federal halfway house was documented for the entire evening. Since the main witnesses, including Gaudreault, have testified that all four men went to commit this offence, it would be an absolute defence for all of them if even one had an air tight alibi. It has been difficult for the accused men to prove where they were on the night the Crown suggests this murder happened because they were not arrested until a year later and their movements on that date are not documented by any official source.

In photographs of the crime scene one is able to see newspapers in a box downstairs by a wood burning furnace/stove. Not one officer ever looked at these newspapers. It is the defence's position that they may well have assisted in determining the time of death. If the newspapers had been collected or if, at the very least, the dates had been noted, there is a reasonable possibility that that evidence would have supported the defence theory that these murders
occurred on January 17, 1990 not the 16th as alleged by the Crown. January 17th is the date when halfway house workers documented Mr. Sauve's movements for the entire day and evening.

iii. Manipulation of Pathology Evidence by Crowns and Police

The evidence of the two pathologists has been an evolving work. Their original reports suggest a time of death in keeping with the defence theory, but they have moved away from that time of death -- further and further -- as the matter has proceeded through the Courts. Perhaps not surprisingly there time of death estimate has been pushed back and has become much more helpful to the Crown's case.

How this transpired is not entirely clear since no records were kept of meeting between the Crown, police and the pathologists about this issue. The Crown, Ms. Bair admits that she asked the pathologists if they would change their opinions if they knew about a witness who claimed to have seen the victims dead on January 16, 1990 and also whether it would change their opinions if the room in which the decease were located was much colder that one would normally find in a home.

The pathologists have now testified that the best evidence of the time of death is a historical witness and temperature in the room would be significant with respect to the rate of decomposition of the bodies. In addition to bringing forward these factors in evidence, they have altered their estimates of time of death so that instead of the initial position of the pathologists that the victims had been dead approximately 24-48 hours, the ranges now run the from 9 hours to 72 hours. The trend, however, is for the pathologists to now prefer the longer period of time consisted with the Crown's theory.

It is the widely held view of forensic pathologists the world over that the best was to determine time of death is taking a room temperature and a body temperature at the place where the victims were located. The coroner in this case did neither. I will have more to say about the issues. arising from the failure of anyone to take a room temperature at the scene below.

Obviously this is significant forensic evidence that was capable of assisting the accuse men to raise a doubt about their innocence that has been eroded both by the desire of the experts to assist the prosecution and by the failures of the police and coroner to preserve vital evidence in this regard at he scene.

iv. The Garbage Left Unchecked, Now Destroyed

It is routine at the scene of a homicide to inventory all items in the household, to photograph same, and to seize many more exhibits that will ever actually be used by the prosecution. One of the items normally checked is the garbage.
Often the garbage is seized and taken back to the identification lab for inspection and photographing. If the garbage is in
a state of decay it may assist with the time of death. If there is fresh food waste that appears to be recently deposited in the garbage that may assist the applicant in establishing the time of death (ie. some fruit cores are known to turn brown
in colour within hours of being exposed to the air, some take longer; some foods that are moist will dry quickly when exposed to the air, some take longer to dry; if indeed there were coffee grounds in one of the garbage's it would have
been helpful to the applicant to know whether or not they were still moist or whether they were completely dry, etc.)

The applicant is prejudiced in his defence by not having the evidence from which to attempt to establish the time of death. In this case there is the additional feature that garbage is collected on Tuesday morning and it was routine of the police living in this area to put the garbage out on Wednesday evening.

Further, the Crown Attorney has led evidence from a witness named Lois Davidson which the Crown suggested to the
last jury corroborated the Crown theory that the deaths occurred on January 16, 1990. This evidence relates to a broken fingernail or splinter over which Ms. Bourdeau placed a bandage on the evening of the 16th. Of course, if there were 5 or 6 bandages (perhaps with Bourdeau's fingerprint inside them) in the garbage near the bed or in the bathroom it would not be corroborative at all of the time of death suggested by the Crown. We will, of course, never know because the garbage was not examined, noted, photographed or collected.

As to late breaking evidence, however, there is some in relation to the garbage. For the first time, in 1998, after being questioned on the issue of the kitchen garbage at the preliminary inquiry and at the last trial, and without any notes to aid his memory, one of the identification officers testified on the abuse motion that he could recall coffee grounds and a hot dog wrapper in the kitchen garbage. This is a real break for the Crown since a neighbour has said since he was first interviewed in January of 1990 that he saw Manon Bourdeau and Michel Giroux eating hotdogs on the evening of Tuesday, January 16 1990. Of course, this helps the Crown because if they were eating hotdogs that evening and were killed that evening. then it makes perfect sense that the hotdog wrapper would still be in the garbage because they never had an opportunity to take their garbage down to the road on Wednesday night.

This epiphany, eight years in the making, cannot be challenged in any meaningful way by the defence since there is absolutely no record of what was in the garbage and no photographs of the garbage. None of the other officers, including a second identification officer, have any recollection of the contents of the garbage at all.

v. Failure by Police and Coroner to Note Temperatures at the Scene

As mentioned above, the failure of the police to note the temperature at the crime scene throughout their attendance there has made it possible for the Crown and their experts to speculate about time of death in a manner most favourable to the Crown theory. In addition, the Crown has suggested that they may have been a marked drop in temperature in the house in the evenings. This marked drop in temperature, if there was one, assists the Crown to explain the absence of signs of decomposition on the bodies that would otherwise have been expected if they were still in full rigour normally have been absent if the Crown's theory respecting time of death was correct.

Had a proper (or any) record been kept of the temperature in the home throughout the crime scene investigation, and in particular at least until both bodies were removed, there is a reasonable probability that the evidence would have assisted the applicant to defeat the Crown's theory as to the time of death.

The Crown suggested to the jury at the last trial that there was likely a substantial temperature drop in the evenings at the scene due the fact that there was a programmable thermostat in the house and a wood burning stove in the basement. There is of course no evidence to suggest that the wood burning stove was ever opened and checked for warm embers or any other evidence that may have resided inside its belly. As to the programmable thermostat, the police who were working at the scene in their shirtsleeve didn't even bother to read the temperature on the thermostat. A blown up photograph of the scene shows the temperature was set at 71 degrees Fahrenheit. There is no evidence, one way or the other, as to whether the thermostat was programmed to turn down the heat in the house in the evenings. Given that the female was seven months pregnant at the time, one doubts that it was turned down to refrigerator temperatures, if at all. Based on the lack of proper record keeping by officers at the scene, it could just as reasonably be speculated speculation is all that the applicant is left with because the evidence was not properly preserved.

 

vi. Failure by the Police to preserve Footprints in the Snow

Some work was done in relation to observable footprints in the snow of the pathway leading up to the victims' home. Unfortunately no effort had been made by the officers to preserve footprint evidence on the walkway that was most likely used by those who penetrated this offence. The failure to preserve evidence that may have been available to the defence from that pathway resulted in the collected of footprints matching the officers' boots and boots of Ronald Potvin who first located the bodies, and no others.

vii. Failure of Police to Conduct a Thorough Search of the Scene

Although the identification officers claimed to have done a detailed search around the house, the time spent at the scene in total and the manpower devoted to the task suggests otherwise. The results of the "thorough" search also suggest otherwise. Drugs (100 grams of hashish and traces of cocaine on a mirror) not located by the police, were apparently later found at the scene by members of the victims' families. The police then failed to retrieve narcotics from the family members who had located them.

Bags were not opened to inspect their contents, allowing the Crown to lead evidence that there could have been garbage in those bags. Based on the work at the scene, there could have been another body, too, but the defence has been deprived of that evidence and the results of the investigative failures have benefited the Crown's case.

viii. Failure to Locate and Preserve the "Louis" Necklace

According to one witness, the victim's sister, a necklace was located at the scene by her near where the body of one
of the victims had been laying. She claims that she found this necklace the day after the bodies were removed by the police. The police were still conducting intensification work in the house at this time and had taken Ms. Jennifer
Bourdeau into the house so that she could identify palaces where drugs and money had been stashed and assist the police to search for any remaining drugs and money had been stashed. It was during this foray into the crime scene
that Ms. Bourdeau has testified that she spotted a necklace covered in blood on the floor near where her sister's body had been. She picked the necklace up and took it with her. The following day she told the police what she had done
and turned the necklace over to them.

When the necklace was removed from the envelope during her testimony in 1997 she claimed that it had been cleaned since there was no blood on it and that she did not recall the ends of it having been broken (the clasp) when she had it. The pendant on the necklace had the written name of "Louise" on it. It is not known who the necklace belonged to and Jennifer Bourdeau in any way to any of the accused men.

The police and Crown claim that she is lying about the necklace, that it was never at the scene and she never picked it up form there. It is difficult to understand why the victim's sister would make up such a story and present this evidence
to the police the day after she attended at the crime scene.

If the necklace had been located by the police and photographed in the position it was found it may have been obvious that whoever did the killing had that necklace and either dropped it there or had lost it somehow during a struggle. The necklace may have also had trace evidence attached to it at one time, according to the evidence of Jennifer Bourdeau.

ix. Failure of Police to Preserve Clothing at the Scene

There was never an inventory or even a note made of the clothing found at the scene. Again, this is routinely done by identification officers in homicide investigations. Indeed, often all of the clothing from a residential crime scene is seized
so that if the clothes later turn out to be relevant either to some aspect of identification in the case or with respect to the elimination of known fibres in the home, they are readily available for comparison.

In this case, the clothing became extremely important but the defence has been deprived of any evidence as to what clothing belonging to the victims was in the house. This evidence is crucial to the defence since Denis Gaudreault has testified that he saw a man wearing a brown parka with fur around the collar driving a truck with Mr. Stewart. Mr. Gaudreault later claimed that this man was the same man who was in the pictures shown to him by the investigators (Michel Giroux)

Once the investigators realized the significance of the clothing in the house, instead of trying to retrieve that clothing from the family, some family members were asked if Giroux ever owned a coat described by Gaudreault and those were asked did not believe he had.

Clearly, the possibility remains open that Mr. Giroux had such a coat that had simply not been seen by the particular family members who were asked. The ability of the Crown to leave this possibility with the jury would have, in all likelihood, been foreclosed had proper crime scene work been conducted. Moreover, it would have been damaging to Denis Gaudreault's credibility if the police had bothered to preserve the evidence of attempted to retrieve it. There is very little, if any evidence, connecting any of the accuse men to the victims in any way, so this piece of evidence is extremely helpful to the Crown and impossible to refute entirely by the defence through no fault of the defence. Again, the failure of the investigation has benefited the Crown at the expense of the ability of the men charged.

x. The failure to preserve hair and fibres evidence

There was an absolute failure to attempt to collect hair fibre evidence other that a few strands of hair that were ultimately submitted for analysis in May, 1995. One had to be concerned with respect to the storage and preservation of those hairs in the interim. The defence is also very sceptical off the value of any hair evidence so little reliance is place on this issue.

However, aside form the hair evidence, no taping or vacuuming were done of the areas surrounding the victims, the area surrounding the open drawer, etc. Nothing was done with respect to fibres of hairs that may have been on the victims' clothing. The car that the Crown alleges was used by the accused men was vacuumed very carefully, but nothing was
ever done with the debris collected.

Obviously if fibres of unknown origin could be identified as having originated from another suspect's clothing, it may very well have eliminated the three men who the Crown alleges were in the home. For instance, if fibres originating from any
one of the other viable suspects, who claimed never to have set foot in the victims' home, were located in that home that would be evidence capable of supporting the defence.

It is admittedly speculation as to whether or not any such evidence existed, but it is speculation only because the police failed to do properly examine and preserve evidence from the crime scene and other locations. For instance, the areas of carpet that were stained with blood beneath the victims were not cut and seized by the police. Indeed at least one piece was cut out and thrown away to assist the owner of the home. Every crime scene expert knows that while hairs and fibres may become air born and float away before they can be collected, those stuck in dried blood tend to be more stable. No examination of course could be done in this regard by the defence because the carpet was discarded long before these men were ever charged.

xi. Failure of the Police to preserve the Bedspread

We know that the bedspread on the bed in the room where Manon Bourdeau was found laying on the floor next to the bed was covered in trace evidence that was observable to the naked eye. It would appear, however, that it was seized and stuffed into a garbage bag. The shape, size, type, colour, and amount of the propellant residue on the bedspread may have proved very useful to the defence upon analysis in an effort to refute the evidence of Denis Gaudreault and to identify the real shooter, but is absolutely useless to the defence now because the bedspread, despite the obvious trace evidence on it, was not been properly stored and preserved for examination by experts. The defence could not have known that evidence as important as propellant residue from a firearm at the scene would not be stored properly or analyses by C.F.S. in a timely fashion. The defence, it is submitted, had every reason to believe the opposite based on a reasonable assumption of minimal competence in those responsible for this evidence.

xii. Failure of Police to Collect and Preserve Ashtrays/Cigarette Butts/Lighters

The contents of the ashtrays were not seized. This, of course allows the Crown and its witnesses to look at the photos and say that they all appear to be the same brand in each ashtray and the brand appears consistent with the type of cigarettes being smoked in that area by one or the other of the victims. All well and good, unless of course a visitor borrowed a cigarette form one of them and smoked it there or happened to smoke the same brand.

There are several possible scenarios that could find the ultimate killer or killers having sat down with the victims some
time shortly before the shootings. The victims were, of course, drug dealers and sold drugs to acquaintances out of their home. Evidence properly preserved, such as cigarette butts, can provide useful D.N.A. profile which may have led to other suspects and even eliminated the three men alleged by the Crown to have entered the home to commit these offences. While the D.N.A. tests available to the police at the time may not have yielded conclusive results, the test available now certainly are capable of such results. Even blood typing may have been helpful to the defence.

The cigarette butt on the floor beside the body of Manon Bourdeau poses another problem for the defence. It was never seized and it is more than arguable on the evidence that no one ever picked it up and inspected it. Therefore, any evidentiary value arising from that cigarette butt is lost to the defence. The Crown's witnesses speculated that it was an
old butt that had fallen from an ashtray and had not been noticed by the victims because of the bedspread.

One wonders how such rank speculation could be probative of anything. The officers, after the fact, have studied the photograph of the butt. Of course, it could be a slightly burnt edge to the underside of the butt. Of course, it could be lighting, it could be a fold in the butt that due to the positioning of the butt and the camera appeared to be a dark area, it could be anything really. However, given the very clean state of the house, it seems unlikely such a butt would be missed for long, particularly in the absence of any evidence that other out of place items were found under the bed, such as
socks, cat toys, dust balls, other cigarette butts, ect. Thus, it is equally as speculative and persuasive to suggest that
the killer butted a cigarette there. Indeed, the brand of cigarette was not the same as that being smoked in the bedroom
at the time of the offence. However, any value that butt might have had for the applicant in his defence has been lost and the absence of the butt has allowed the Crown's witness to speculate an form theories about its origin that may be
entirely inconsistent with the state of the actual butt. Without the but, the defence is at a lost to refute such theories.

xiii. Failure to Test Cocaine in a Timely Manner

The police did locate and seize decks of cocaine from a coat pocket at the scene. Unfortunately for the applicant,
however, they failed to test the cocaine for several years. Had it been tested in a timely fashion, it may have led the police to the likely source or sources of the cocaine based on the quality and specific nature of the cocaine based on the quality and specific nature of the cocaine. There is a very reasonable possibility that such an investigation, if it had been pursued in a timely fashion, would have provided exculpatory evidence for the accused men who claim never to have supplied
Mr. Giroux with Cocaine.

xiv. Failure to Preserve and Test Blood Splatter at the Scene

In a location away from the bodies, on the glass door of a china cabinet, the police photographed directional blood splatter. However, they failed to take a swab or scraping of the blood after it was photographed. it may very well, given its location, have been the blood of the killer(s). We will never know and never had the opportunity to pursue that evidence in defence
of Mr. Stewart.

xv. Failure to Locate and Preserve Fingerprint Evidence

The failure to conduct a thorough fingerprint investigation in the house is only the beginning of the problems in this areA. Perhaps more significantly, it became apparent in the evidence for the first time in 1998 that three prints had been discovered at the scene that were not identified but were capable of comparison to known print.

xvi. Other Failures at the Crime Scene

There are other issues that arise from the failure to properly preserve evidence at the crime scene, such as untimely photographic work, failure to check the date on the mail and mail pick up from the post office, failure to preserve potential fingerprints in obvious and meaningful places, failure to take swabs of blood from potential blood spots of the wall, china cabinet and other locations at the scene (failure to perform even presumptive tests for blood at the scene), failure to conduct a thorough search around the outside of the house, the perimeter of the scene, the lane and roadway, the adjacent building, ect. All of the failings at the scene, and there are undoubtedly more than listed here in this brief summary, have assisted the Crown's case and impaired the applicant's ability to make full answer and defence.

IV. TUNNEL VISION

The investigation by the police and the approach by the Crown Attorneys to the prosecution of
this case make the tunnel vision of police and prosecutors in the Morin case appear insignificant.

The tunnel vision of both the police and prosecutors in this case can best be illustrated by looking to the beginning of the investigation.

Michel Giroux, the deceased, was a small time drug deal who sold drugs at the Carlsbad Springs Show Bar and out of his home in Cumberland. He sold 1/4 and 1/2 grams of cocaine mostly to local patrons. After his
body was found, the police quickly learned of his drug dealing and his associates at the Carlsbad Springs Hotel. All of his close friends, who would be in a position to know, claims that Michel Giroux supplier was a man named Dave Dunbar. Mr. Dunbar was an Outlaw Motorcycle gang member. It is apparent from an ongoing undercover drug operation at the hotel that he and his associated kept watch over who sold drugs there and likely gave Giroux permission to do so. According to at least one close friend Giroux had, just prior to his death, expressed concerns about owing Dunbar money. According to another , Giroux was concerned that Dunbar thought he was a police informant and Giroux, therefore, had been staying away from the Hotel.
Again it is evident from the parallel drug investigation that Dunbar was very aggressive with those he suspected of being police or informants in the bar. There are several witness, as well, who dealt drugs for Dunbar in the past at the Carlsbad Springs Hotel, and who built up a small debt to Dunbar who were physically assaulted, threatened and/or run out of town by Dunbar.

The investigation continues from January 19, 1990 to Feb. 3, 1990 when Mr. Gaudreault first became involved with the police. Once the police had spoken with him, the size of the investigative team was cut and the focus shifted to Robert Stewart and his associates. That is where it has remained.

When the defence raised concern and questions about Dunbar and other suspects around the Carlsbad Springs Hotel or known to associate with the deceased, the police would occasionally go back out to re-interview some of the Witnesses
-- usually three or four years after the fact and usually with a view to trying to get them to connect the four accused with Giroux in some way.

Mr Dunbar, for instance, was interviewed once in late January, 1990. He clearly lied to the police about his involvement with Giroux at the time, but was not even asked where he was on the night of January 16th or 17th, 1990. Since the defence seemed to be focussing on Mr. Dunbar, he was interviewed for a second time in 1994. He was told by the investigator that the police were satisfied that they had the right quys in custody for these murders, but that the defence had been asking questions about him. The investigator explained to Mr. Dunbar that he didn't expect him to remember where he was that night some four years later but that he had been sent out to ask him anyways. Mr. Dunbar told the officer, not surprisingly, that he had no idea where he was when the victims were shot. The officer thanked him and
noted that it confirmed for him that Dunbar was telling the truth because if he had known where he was after so much time had passed, it would be suspicious indeed !

The prosecutors and police in this case are prepared to go to any length to try to explain away lies and
false evidence by their witnesses and to provide excuses for them with respect to their current conduct.
There are many, many examples of tunnel vision in this case but one would need to review the case as
a whole to fully appreciate the single-minded determination of the prosecuting team to convict these
men no matter what the costs.

Perhaps an example from the preliminary inquiry will assist. One of the Crown Attorneys, Mr. Cooper, has been involved with this case from the beginning. At the preliminary inquiry, the Crown determined that it would call a witness named Wayne Stovka, Who claimed to have confession evidence. Mr. Stovka requested and expected much in the way of benefits in exchange for his evidence. Interestingly, he had been sharing a cell with Jacques Trudel, one of the other informants on the case. When Stovka came forward the first time, his story was really quite bizarre, but became refined to come more into line with the Crown's case. However, before he was called, Jacques Trudel warned the police and Crowns that Stovka was lying because some of the things he said didn't make sense, but also because Jacques Trudel was with the accused at the time that Stovka claims he was receiving this confession elsewhere. In essence, one Crown witness provided an alibi to the accused with respect to allegations made by another Crown witness.

Furthermore, a police officer, Ron Angeli, who was very familiar with Stovka came forward and told the Crowns that Stovka was a liar and manipulator, and was in all likelihood not telling the truth. The investigator from this case made notes of that interview suggesting that the police officer may have ulterior motives for coming forward. In the end, Mr Cooper and an investigator reviewed Stovka's evidence with him and decided to call him. Mr. Cooper's thoughts in this regard were, "If he wants to lie on the stand, that's his problem." Then, without disclosing the information provided by Jacques Trudel, he was called. His credibility was ultimately shattered in cross-examination and he will not be called at the trial.

I cite this example only because it suggests that there has been a refusal by the Crowns and police to critically assess their witnesses with a view to determining whether or not the interests of justice are served by calling these witnesses. Rather, witnesses are called because their evidence may assist in gaining a conviction. This tunnel vision is so entrenched that there is not longer any possibility that the prosecution could objectively assess any of the witnesses they plan to call at this trial.

Indeed, the testimony of one of the main police investigators, Det. Gary Dougherty, in relation to a witness named Paul Beland, suns up the general approach to the assessment of witnesses' reliability by the prosecution. The Crown presently does not intend to call Paul Beland as a witness, but has indicated a willingness to do so if necessary to make out their case:

Q. Have you ever, sir reviewed a psychiatric report or assessment on Paul Beland to see if he has delusions, if he's a pathological liar, to find out what his diagnosis is?
A. No, and I think I said that the first when we were on Paul Beland I don't recall ever seeing a psychiatric
assessment.
Q. Having never found out about any of that, it's your view that he should be called, he's credible.
A. Sure. Jack Trudel was a witness in this case and he had psychological assessments done
on him and we still called him.
Q. Did you know the results of his thought?
A. Actually, yes.
Q. His most recent on for Witness Protection. The chief medical officer at Penetang said that he was
worth the risk after interviewing him and reviewing his materials that Witness Protection supplied, that
he was worth the risk. So just because someone has a sociological disorder or something, how does
that deter form being a witness in this case?
A. That's not a criteria for me.
Q. The difference, sir, would be that you knew what Jack's was, you don't have a clue what Paul's is,
you don't know.
A No. Even if I did know, it's something for a jury to consider.
Q. It doesn't make any difference to you to assess the credibility of witnesses before they sit in that stand.
A. He satisfied me on my first interviews with him that he was a credible witness.

This excerpt of evidence is repeated, in slightly different word and in relation to various witnesses, by almost every officer who testified with respect to Mr. Stewart's abuse of process application. The sentiments are also echoed by the Crown Attorneys in their submissions.

V. CONCLUSIONS

There is an urgent need for an independent review of the conduct of this prosecution.

It is our position that a review of the investigation and prosecution of this case is mandated by the recommendations of Commissioner Kaufman which you have indicated will be adopted by the Ministry of the Attorney General in Ontario.
It is our very grave concern that two innocent men have been convicted and two more will very likely be if this prosecution continues unchecked with the single-minded devotion of the prosecution team to pursue convictions at any cost.

In summary, we feel the following issues arise that must be reviewed:

1. Prosecutorial and investigative tunnel vision,
2. Lost evidence and failure to preserve evidence (forensic and other evidence)
3. Failure to maintain complete records and notes respecting interactions with informants and other witness,
4. Failure to preserve institutional records, and
5. Failure to objectively and adequately investigate and assess the credibility of jailhouse informants and other like witnesses being called by the Crown.

Trial counsel defending Mr. Trudel and Mr. Sauve, Appellate counsel and all defence counsel who have been involved in
this case over the years -- Michael Edelson, Patrick McCann, Michael Neville, Mark Wallace, Kerry Scullion, Gary Barnes, Ian McKechnie, Richard Morris, James Harbic to name but a few -- have all raised similar issues both in and out of Court and have strenuously expressed their belief that the accused men are all factually innocent of these offences. Any or all of these counsel would be pleased to speak with an independent Crown or committee assigned to review this case.

We must stress here that a jury is to be selected in this matter on June 2, 1998 and, therefore, time is short. We request that you advise us of your position with respect to whether or not this case will be reviewed prior to that date so that we might advise the Court and seek the Court's direction on how (and whether) to proceed.

We are confident that your office will readily recognize the need for a review of this case and trust that we will be able
to work co-operatively with you in an attempt to ensure justice for all parties that have been affected by this tragedy.

Yours very truly,

PINKOFSKY, LOCKYER

James Lockyer
Barrister & Solicitor

cc: Mr. Murray Segal, Assistant Deputy Minister
Ian Mckechnie, counsel for Richard Mallory
Phillip Campbell, appellate counsel for Richard Trudel
Danna Venner, Counsel, Ministry of the Attorney General