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Tracey Marcotte


Continued from Prosecutors from Hell | transcript continues

  • Background: During the last week of August, 2001, Tracy Marcotte was arrested and charged with stealing more than $7,000 from her employer.
  • Roger Kergoat was appointed her Legal Aid Counsel. She did not think he was aggressively defending her and did not even know what the case against her was
  • We advised her to fire Kergoat, get her disclosure and get an early trial date.
  • She did so and was arraigned in September. She represented herself and was advised by the judge of her right to counsel. A preliminary hearing was set for November 20
  • During November, we helped Tracey get reinstated with employment insurance by successfully arguing an appeal. (We will post that judgment soon)
  • On November 16, the Friday before the Tuesday her preliminary was scheduled the Crown gave her a package of disclosure, printouts of alleged shortages from the gas bar till.
  • She went to Court prepared to ask for fuller disclosure. On November 20, after the adjournment, she verbally asked Tom McNab for documentation for the till shortages six months prior and six months after the dates they had provided her
  • On December 2, when she had not received such, she called the Crown office.
  • A new prosecutor called her back to tell her she would have to have a disclosure hearing on that and set the hearing for December 12.
  • On December 12 she was bullied by both the Crown and the Court, the new Crown lied in his teeth (particularly saying she was responsible for the delay) and Rick Klassen was ordered out of court and threatened with a contempt charge.
  • We immediately ordered up the transcripts which we proudly publish here.

This is a clear example of the Crown lying and railroading an accused. The insistence that she needs a lawyer because the case is complicated is absurd. They want her to have a lawyer because they can count on a member of their profession to go along with their lies. This is Saskatchewan. At Richard Klassen's civil hearing, David Gerrand pled with the court to see the disadvantage Klassen had put him in by representing himself. He could no longer hide within the cozy arrangement he previously enjoyed with Klassen's useless lawyer.

Transcription of proceedings so far against Tracey Marcotte

Nov. 20, 2001 for the Court: Bell, PCJ, Crown: T. Macnab, Accused: herself

Mr. Macnab: The next matter that's set into this Court, Your Honour, is the Queen and Tracey Marcotte. I met Ms. Marcotte just before court, she's present. And this is a matter that is set for Preliminary Hearing today -- and Ms. Marcotte you can go right there.

A couple of things just before we get started, Your Honour. . . . Again, this is set for Preliminary Hearing. Ms. Marcotte isn't represented by a lawyer, and as such I had brief contact with her by telephone.

One of the things that I wanted to alert the Court to, the Crown has -- is anticipating calling two witnesses at this Preliminary Hearing, and one of them would be a Mr. Roger Weibe (ph), and the other one would be Mr. Norm Beimus (ph), but this was a case, quite frankly, where the Crown didn't have all -- all the information before it, and as I indicated to Ms. Marcotte, a bunch of documentation came to my attention on Friday. I contacted Ms. Marcotte straightaway, advised her that this had come in and actually had indicated that in the circumstances, given the stack of documentation, I wasn't quite sure whether or not the Crown would even be in a position to proceed to Preliminary Hearing this morning or not. Ms. Marcotte had indicated to me that she was anxious for this Preliminary Hearing to proceed today and --

The Court: So when did she get disclosure of that material?

Mr. Macnab: I made it available to her as per her request on Friday, and I believe she would have picked it up on Friday, if I'm not mistaken, but the same day.

So given her comment, I took steps to, you know, ensure that the Crown witnesses would be present today in any event, but I did want to draw a couple of things to Your Honour's attention. I only came into -- I only became aware of this documentation on Friday, as I stated, and Ms. Marcotte isn't represented by counsel, and some of these documents would, during the course of testimony, be referred to and -- and relied on by the Crown witnesses to explain the course o conduct which --

The Court: Forms the basis for the allegations?

Mr. Macnab: -- forms the basis of the -- information in the charges. So I just want to draw it to Your Honour's attention that -- that I only came into possession of it on Friday, as such she just came into possession and knew about it as of Friday. Our Canada Evidence Act would normally require for business records, seven days notice unless that's waived. Again, I'm here today on the basis that Ms. Marcotte --

The Court: Well, are you ready to proceed?

Mr. Macnab: I'm ready to proceed to Preliminary Hearing today and I just wanted, out of fairness, to raise that on the basis that Ms. Marcotte seemed anxious that the Preliminary Hearing proceed today.

The Court: What is your position on this, ma'am; are you ready to proceed? You would have an automatic right to request an adjournment so that you have full opportunity to go through these papers and prepare yourself, and you would have to waive -- if you want to proceed today, you would have to waive the notice period and cannot later complain that you were caught short by -- by these documents if you do waive that. But you would have an automatic right to -- to have this matter adjourned because of the late disclosure of the material.

Ms. Marcotte: Okay. Well, as he -- as the Crown said, I did receive this, but --

The Court: But Friday.

Ms. Marcotte: --on Friday, and he did also say that --on -- in our phone conversation that there was going to be an adjournment, that he was going to ask for an adjournment today. And that's basically all he said, so I'm not ready. Like he -- he phoned me on Friday and told me there was going to be an adjournment today and that's what I based all my stuff on, so --

The Court: Well certainly -- certainly we can grant a request based on -- on the late disclosure of this material and you would not be required to waive delay so if there was too lengthy a time in getting this matter to trial, you would be able to raise an argument that you haven't had a trial within a reasonable time in accordance with our Charter of Rights, and ask the charges be dismissed or stayed against you. But that's a fairly long period of time, and you know, I'm not saying one way or the other with respect to that.

Did you tell her you were going to ask for an adjournment, Mr. Macnab?

Mr. Macnab: No, as I -- I was just going to rise on that point, and I appreciate that Ms. Marcotte may have misinterpreted, but I did raise the issue, quite frankly, because I got --

The Court: Of an adjournment?

Mr. Macnab: --all of a sudden I got this -- I got this stack of documents on Friday for this case and I'm looking at it and I, quite frankly, I didn't know what any of t was and how it fit into the case or anything like that. On Friday I'm thinking, well, I had serious doubts of whether I was going to be in a position from the Crown's point of view to -- to have the Preliminary Hearing, so I indicated to Ms. Marcotte that the Crown may be requesting. I didn't say that the Crown is definitely requesting an adjournment. Ms. Marcotte may have taken it --

The Court: Well, regardless -- regardless of the accused -- of the -- you know, what was said and what -- how it was interpreted, I -- I'm not going to interpret this as a request by defence for an adjournment. I'm just --

Mr. Macnab: Yeah. No, and -- and --

The Court: -- I'm going to grant the adjournment and the issue of delay will fall where it -- it may down the road.

Mr. Macnab: Oh, yeah, and I'm not -- I'm not even speaking to that, Your Honour, I'm just saying that I envisioned the possibility and I wanted to know Ms. Marcotte's position, and she made it clear that she would prefer if this matter proceeded today, and it was on that basis, you know, that she -- she indicated that --

The Court: But that's a stack of paper that somebody's going to need some time to digest and -- and try an figure it out.

Mr. Macnab: No, I appreciate that and I'm not -- I'm -- is she needs extra time, that's fine. I'm just making the point that if I'd thought that it was definitely an adjournment, I wouldn't have gone to the trouble to have the Crown witnesses appear today. I did that because Ms. Marcotte indicated to me that she was anxious for the matter to proceed, so I pulled this thing --

The Court: Well, I think in fairness to Ms. Marcotte, the matter should not proceed today and we'll adjourn it to a docket court to set a new Preliminary Inquiry date.

Mr. Macnab: Okay. I wonder if we might do that straightaway?

The Court: You could go down to number one.

Mr. Macnab: Yeah.

The Court: Or ten and set a date. Is that fine with you, ma'am?

(Court adjourned -, November 20, 2001)

(Court Reconvened - November 20, 2001)The Court: White, PCJ

Mr. Macnab: Good morning, Your Honour.

The Court: Good morning.

Mr. Macnab: My name's Tom Macnab, Your Honour. I'm a Crown Prosecutor. I was wondering if we could speak to the matter of the Queen and Tracey Marcotte. Ms. Marcotte's present in court here. This matter was set down to this Court from courtroom number six. An adjournment was spoken to on the record up there and it's simply set down here to get a new Preliminary Hearing date. We've got a date from Ms. Augustin of December 20th, 9.30, number four. Ms. Marcotte says that that's satisfactory for -- for her.

The Court: Have you got a lawyer that's going to appear with you on this?

Ms. Marcotte: No, I'm --

The Court: You're doing it yourself?

Ms. Marcotte: Yeah.

The Court: All right. And you're agreeable to that date for Preliminary Hearing?

Ms. Marcotte: Yeah.

The Court: That's fine, then, we'll order that it occur on that date and time.

Ms. Marcotte: Thanks.

The Court: If you'll just wait, we'll give you a slip of paper just to remind you.

(Court adjourned November 20, 2001)

(Court Reconvened - December 12, 2001)

The Court: Irwin, PCJ; The Crown: Brent Klause; The accused: herself

Mr. Klause: Good afternoon, Your Honour. Your Honour, the Information I have here, Your Honour, is Tracey Marie Marcotte. I have my copy which I'm pleased to let you work off for now. You'll note there's some endorsements. Ms. Marcotte, I think, is here. Just come forward, Ms. Marcotte.

Where this is at no is, Your Honour, it was last time was adjourned to December the 20th for a Prelim. That's where it's presently set. What has now happened is that -- I'm not sure what's happening. Ms. Marcotte contacted our office on December the 2nd requesting more disclosure. That's a fairly lengthy request for disclosure in terms of what was actually asked of us to produce and we haven't -- I've contacted the Co-op, who is the victim, and they can't have the disclosure ready by December the 20th. She's asking for six months of till receipts, which I think is probably bogus. The theft is from a gas station where she was an employee, a teller. We're literally talking about boxes and boxes of receipts they have to go through, so it's going to take some time to put that together.

The bigger issue, I suppose, is that Ms. Marcotte hasn't got counsel and I've -- I've talked to her on I think one or two occasions imploring her to seek counsel. I think this is -- it's an employee theft situation, it's fairly complicated. There's boxes and boxes of documents. I think a lawyer would be a good idea.

I contacted Legal Aid and they tell me she's qualified for Legal Aid, but for whatever reason, hasn't decided to go with a Legal Aid Lawyer. So the last time we talked I left her with a very firm impression that she should get Legal Aid or any lawyer of her choice. So that's where it's at.

The other, sort of, contributing factor here is that she has a friend who's allegedly acting for her, Mr. Klassen. Mr. Klassen is here today, and I told her that in my opinion he's not a lawyer, he can't act for her, he can't ask any questions on her behalf, he can't make any arguments on her behalf, and I'm quite concerned that he is somehow taking over the proceeding, which I do not think is to Ms. Marcotte's advantage. Mr. Klassen's well-known to our department as a -- as a victim, as an accused, and now as a plaintiff in a civil lawsuit. So there are lots of issues he has with our department, aren't necessarily Ms. Marcotte's, so my discussion with her has been quite frankly to get her to see a lawyer, and that's where we're at today. So we're here today to discuss the disclosure issues, who can act for her and whether or not she's going to obtain the services of a member of the Law Society of Saskatchewan.

The Court: Has there been, Mr. Klause, has there been any disclosures so far?

Mr. Klause: She has had the first parcel of disclosure the last time it was set for, so that she had, I would say, about 100 pieces of disclosure material, paper, but what she's asking for now, -- I'm not submitting it's completely irrelevant, I think it may be relevant, she's asking for -- in a nutshell the case is she was employed as a teller or selling gas at the -- at the pumps in -- at the Co-op station and on every receipt where her initials appear there's an allegation that she stole that money by ringing it through the tills and actually taking the money out of the till, so the allegation is that no one else took it, but the ones that she signed are all unaccounted for.

So the defence, I guess, then becomes well, maybe I took some, but maybe someone else was taking it as well. So her disclosure request, she's asking for six months of receipts of all the shifts, of those who had signing authority for those shifts, so that I can be assured there was no shrinking of the fuel during those times.

But really, I think it's something a lawyer would likely ask for. Now, whether or not every lawyer would ask for that and what they do with it once they got it is something else, but I don't think it's particularly speaking out of line.

So that's the request for disclosure at this time. She has had the bulk of the disclosure, but not all of it, but it's going to take us quite a bit more time to get that disclosure for her.

The Court: All right. Are we on the record? Good. Ms. Marcotte -- Marcotte is it?

Ms. Marcotte: Marcotte.

The Court: Marcotte. Ms. Marcotte, as the Crown has said, this is a very serious charge, it's an indictable offence. Is there some reason why you haven't got a lawyer?

Ms. Marcotte: I -- I feel that I know my case better than a lawyer would, so that's why I'm representing myself. And with the matter of this disclosure I'm asking for --

The Court: Okay. Well, let's -- let's just stop at that point. You may well know your case better than anyone else, but I really don't think you'll know the law as well as a lawyer, nor would you be able to present your case as well. I think it's in your best advantage -- best interest, rather, to have a lawyer acting on your behalf. If you don't have a lawyer acting on your behalf and you're convicted, you can't use the fact that you didn't have a lawyer as grounds for appeal.

Ms. Marcotte: No, I'm aware of that. I'm very aware of that. Mr. Klassen has -- he hasn't been acting for me, and in no way did I ever say that I wanted him to act for me. I just -- he's just walking me though this.

The Court: Well, that's probably -- it's probably important that you have someone to, as you say, walk you through it, but I think you'd be far better off to have a lawyer walk you through it because Mr. Klassen, I take it from what the Crown says, is not a lawyer, it's an indictable offence, he cannot at law act on your behalf.

Ms. Marcotte: I'm aware of that.

The Court: Is it a matter of -- of money that you can't afford a lawyer?

Ms. Marcotte: No. It's -- I don't know.

The Court: Because if it -- you know, if it's an issue you can't afford a lawyer, Legal Aid is available. If you don't qualify for Legal Aid, the the Court can, in certain circumstances, appoint a lawyer to act on your behalf.

Mr. Klause: She has qualified for Legal Aid.

The Court: So you don't want a lawyer to act on your behalf?

Ms. Marcotte: No, I don't.

The Court: And you fully understand the consequences?

Ms. Marcotte: I do. Yes, I do.

The Court: The fact that you can be convicted, that you can be imprisoned?

Ms. Marcotte: Yes, I do.

The Court: All right. Has the Crown subpoenaed witnesses for the 20th?

Mr. Klause: Two under subpoena, Your honour, yes.

The Court: The matter was set for November 20th for Prelim?

Mr. Klause: That's correct.

The Court: And on the 20th the matter was adjourned at the request of the defence?

Mr. Klause: Yes. I'd like -- I'd like to just clarify that, Your Honour. There's been some problem with -- as I understand it Ms. -- Mr. -- this all started, Mr. Macnab contacted Ms. Marcotte directly and every time we contact Ms. Marcotte we usually get a -- it's followed up with a fax from Mr. Klassen giving us disparaging remarks or criticisms about us talking over and intimidating, his words not mine, Ms. Marcotte. Mr. Macnab assures me he's never intimidated Ms. Marcotte. I certainly never intimidated her. Maybe -- maybe a phone call for, say, from the Crown office is intimidating, but that wasn't my intent.

I called her to suggest it's a difficult case, get a lawyer. I must have said that ten times. So we're a little reluctant to talk to Ms. Marcotte off the record. Anytime I'm going to talk to Ms. Marcotte, it's either going to be in the context of a courtroom or on paper. I'm not going to phone her any more, so it makes -- makes that whole disclosure process a little more difficult.

As I understand it, Mr. Macnab, on the date in question, there was -- up to the very end he didn't think the matter was going. He thought that Ms. Marcotte was, in fact, actually entering a plea of guilty, so he was talking to her about various options, and that's when he gets the letter from Mr. Klassen suggesting he's intimidating, there'll be complaints to the Law Society and lawsuits and et cetera, et cetera.

So the matter was adjourned. I think Tom had his witnesses there on the date, we were ready to go, but the matter at the end of the day adjourned because she'd just got the disclosure, and I don't know if it was a Crown request for adjournment or defence, but I think it was pretty much a joint conclusion that, yes, it would be adjourned to allow Ms. Marcotte a chance to review these documents, but -- for late arriving in our office, but we were ready to run the case on December 20th. The two -- sorry, the last date. Both the Crown witnesses were actually present and ready to go. But what I'm suggesting today is we can't have the documents Ms. Marcotte wants by December 20th.

The Court: When was the request?

Mr. Klause: It was December 2nd I got her faxed letter outlining what she wanted. I tried calling several times that week to Mr. Roger Weibe, who is the -- does -- performs the auditing function at the Saskatoon Co-op. He says given what she wants, it'll take him several weeks to get that together. It's not something he can just pull up. It's something he has to actually go through longhand looking at boxes of documents which is what he told me. So I have to respect his opinion, and that it's just that close to Christmas. He said there's no way he can have it by September the 20th.

. . . transcript continues

All over the country people are dumping their defence lawyers who in many instances have been seen to prefer a quick deal with the Crown to a good defence for the client.

In Saskatchewan, relations between crown and defence counsel (that goes double for Legal Aid) are way too cozy. Harry Kopyto got into trouble in Toronto years ago for stating on the courthouse steps that the Crown was in bed with the Court or words to that effect -- in Saskatchewan there is a kingsize bed that also accomodates defence lawyers.

Now that Richard Klassen has won a clear victory in his civil suit and we have managed to make the story nationally known, many are telling him "All he needs now is a real lawyer to finish off the case." Didn't he just get rid of his bona fide member of the Saskatchewan Law Society? The suggestion that he got this far by a fluke is insulting.