kangaroojustice.orgkangaroojustice.org/.../2010/09/1998-10-20-Panye-Dr.-Silver.doc · Web view--- Upon commencing at 10:03 a.m.--- Accused present--- In the absence of the jury

TUESDAY, OCTOBER 20th, 1998

--- Upon commencing at 10:03 a.m.--- Accused present

--- In the absence of the jury

THE COURT: Sergeant Payne, would you wait outside

for a few moments, please.

--- Whereupon the witness retired at 10:03 a.m.THE COURT: Yesterday we talked about the possi-bility of perhaps giving the jury a small instruction with respect to Sergeant Payne's evidence, and I propose, subject to counsel moving me off base, to say something like this: Members of the jury, yesterday at the close of the day, Mr. Crystal was cross-examining Sergeant Payne about his evidence on prior occasions when he touched the body of Michel Giroux. Sergeant Payne had said, while being questioned by Mr. Dandyk in chief, that rigor mortis entered the body within 12 hours after death and left in the following 12 hours. He also said that rigor mortis was receding. Those statements constituted an opinion in forensic pathology, and it was an opinion that Sergeant Payne was not a competent witness to give. He is not a forensic pathologist as Doctor Johnston is. He was not qualified as an expert in that field. Consequently, you cannot use those statements as evidence because they are not evidence. You treat those statements as if they were never made. You cannot use those

(In the absence of the jury)

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statements as proof of the truth of what the state-

ments contain.Those statements are, however, relevant to Ser-

geant Payne's state of mind both when he was

touching the body in 1990 and to the evidence he

gives in the witness box in this trial. You may use

them to assess his evidence as a witness while

being examined and cross-examined and re-examined

by counsel. I repeat that you cannot use either of

those statements as proof of the truth of what is

alleged in them.

That's what I propose to read to the jury today.MR. CRYSTAL: Your Honour, I think that's fine. The only thing is towards the end when you said "you can assess his evidence" I think I would ask that you include the word credibility, assess his credibility as a witness because I think otherwise ---THE COURT: No, I'm not putting that in doubt. Assessing his evidence enhances his credibility, I thought about that when I wrote this. Ithought about that very point you're bringing up. I think assessing his evidence, in computer terms it's a subfolder of evidence.MR. CRYSTAL: Okay. I don't have anymore submis- sions on that but I did want to get clearance from you before I put some remaining questions to Sergeant Payne on that. I did want to probe the area of his credibility with regards to his comment


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that rigor mortis was receding, so I have a couple of follow-up questions on that


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and I just wanted to clear that with you before I started.THE COURT: Well, at that point in terms of the follow-up questions since they'd be related to credibility I would simply tell the jury whatever factual content is contained in his responses they are not to be taken as proof of the truth of those statements but merely as to his state of mind, in other words he may have honestly believed all this himself at the time, I mean that's a plausible explanation as well, he may have honestly believed every single thing that he said, even to the point that it was receding.

MR. CRYSTAL: Yes.THE COURT: That's a separate issue from whether or not that can be evidence of truth, it can be evidence that he believed that rigor mortis was receding because he heard somebody say one time in a lecture that dah dah dah dah.

MR. CRYSTAL: Sure. THE COURT: Okay.

The Crown, do you have any comments? MR. DANDYK: Nothing further. MR. MORRIS: Nothing from us, thank you, Your

Honour. THE COURT: Thank you.

Bring in the jury, please, not the witness, though, not until after I give this instruction to the jury.


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--- In the absence of witness

THE REGISTRAR: Are counsel satisfied that all

members of the jury are present?

MR. DANDYK: Yes. Thank you.

MR. CRYSTAL: Yes.THE COURT: Members of the jury, yesterday at the close of the day Mr. Crystal was cross-examining Sergeant Payne about his evidence on prior occasions when he touched the body of Michel Giroux. Sergeant Payne had said, while being ques-tioned by Mr. Dandyk in chief, that rigor mortis enters the body within 12 hours after death and left in the following 12 hours. He also said that rigor mortis was receding. Those statements constituted an opinion in forensic pathology and it was an opinion that Sergeant Payne was not a competent witness to give. He is not a forensic pathologist as Doctor Johnston is. He was not qualified as an expert in that field. Consequently you cannot use those statements as evidence because they are not evidence. You treat those statements as if they were never made. You cannot use those statements as proof of the truth of what the statements contain, in other words that rigor mortis comes after 12 hours and leaves after 12 hours.

Those statements are, however, relevant to Sergeant Payne's state of mind both when he was touching the body in 1990 and to the evidence he gives in the witness box in this trial. You may use them to assess his evidence as a witness while being examined and cross-examined

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and re-examined by counsel. But I repeat that you

cannot use either of those statements as proof of

the truth of what is alleged in the statements

because that is clearly hearsay and also an opinion

by a non-expert.

Yes, bring back Sergeant Payne, please.

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RANDALL DAVID PAYNE, previously sworn

MR. CRYSTAL: Thank you, Your Honour. THE COURT: All right, Mr. Crystal.

MR. CRYSTAL: Thank you very much, Your Honour.

CROSS-EXAMINATION (continued) BY MR. CRYSTAL: Q. Sergeant Payne, yesterday I was asking you

about your evidence to Mr. Morris that you observed rigor mortis

receding in the body of Michel Giroux. Do you remember giving that

response to Mr. Morris' questions?

A. I'm not exactly sure but that's probably correct, sir. I'm not exactly sure what I said to Mr. Morris. Q. Okay. But the seminal word in what you said was receding, that it was somehow leaving. A. Okay. Q. Now, not being an expert in rigor mortis there is no way to truly distinguish, as far as you know, your ability, whether or not rigor mortis is -- you're at the beginning stage, the onset of rigor mortis or whether or not rigor mortis is actually receding, isn't that correct? A. That is correct, sir. Q. So when you responded to Mr. Morris' question you chose to use the phrase or suggest that it was receding, correct? A. Correct, sir. Q. It could've been either of the two from what you observed. A. Yes, sir. I'm not a medical practitioner. Q. Because it comes, as far as you know, and it goes. A. Yes, sir.

PAYNE, cr-ex(Crystal)

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Q. And the various degrees of stiffness, as far as you know, are related to onset and recession, when it recedes, correct? A. Correct. Q. Okay.

Constable, I'm sorry, Sergeant, when you said yesterday that you observed it receding, and I did point out to you that this was the first time you had used that type of phrase, you'd always referred to the body as being stiff, were you trying to assist the Crown in their theory of the case that these offences had taken place on January 16th, 1990? A. No, sir, I was not. Q. You were aware of their theory, I think you said that yesterday, you were aware at some point that the Crown's theory was that these murders had taken place on Janu- ary 16th.

MR. DANDYK: Unless I'm mistaken I believe he said in his answer that he was unaware, so I think that's contrary to his evidence.THE COURT: Well, the jury remembers what the evi-dence was or what the evidence wasn't but this is a specific part of the theory, he may answer that question as to whether he thought about that speci-fic aspect as opposed to the whole theory.

MR. CRYSTAL: Thank you. Q. So Sergeant Payne, when you gave your answer, my question to you is this: Seeing as you don't know and didn't know in 1990 when you touched Michel Giroux's body whether or not or how to distinguish between the onset of rigor mortis and the recession of rigor mortis in the body, seeing as


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you don't know how to define or don't know how to distinguish, when you answered that it was in recession yesterday were you trying to assist the Crown? A. No, sir, I was not. Q. You weren't trying to make things look bad for the defence? A. No, sir. Q. Throughout your testimony to my friend Mr. Dandyk you referred to a white powdery substance that you found in the spare bedroom, correct? A. That is correct, sir. Q. And you told the jury that it was drugs as far as you were concerned. A. That is correct, sir. Q. Cocaine. But in 1990, January 18th when you came on the scene at 1806 and subsequently you had no idea what that white powdery substance was, isn't that correct? A. I did not locate the powder until the 19th of January. Q. Correct, you didn't locate it until the 19th of January, however when you were referring to it in this courtroom with regards to when it became known to you, you referred to that substance as drugs. A. Yes, sir. Q. Even though at the time you had no idea what that white powdery substance was. A. That is correct, sir, but I had a presumption of what it was. Q. You had a presumption. Well, I ask you, were you trying to assist the Crown when you gave that answer? A. No, sir, I was not.


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Q. We have heard about this 250-watt lamp that you used, correct? A. That is correct, sir. Q. This lamp was referred to you in earlier proceedings, by you, I'm sorry, by you in earlier proceedings as a tungsten lamp, isn't that correct? A. That is correct. Q. Giving off I think at one point a large light, basically you just referred to it as a tungsten lamp that gave off a large amount of light. A. That's correct, sir. Q. Okay. But throughout these proceedings you've referred to this 250-watt lamp that you were using. A. And that's what I was using, sir. Q. You weren't trying to impress the jury with that high wattage, were you? A. That is not a high wattage, sir. Q. High enough to do your investigation. Are you saying that you didn't have the proper equipment? A. No, sir, I had the proper equipment at my availability. Q. You couldn't use the lighting in the house, correct? A. Yes. Q. You needed something of increased wattage. A. Yes, sir. Q. Okay. 250 watts, I'm not going to argue about 250-watt light bulbs, I don't know if you have any in your house, I certainly don't have any 250-watt light bulbs in my house. It's an extraordinary amount of wattage for a very


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specific purpose, to illuminate things that would not otherwise be there for the naked eye, would you agree with me? A. It is a standard lamp that we use. We do have 250, we have 500-watt and we have 500-watt halogen. It is the type of bulb that we have available to us and that is what I used.

MR. CRYSTAL: I was just wondering, madam clerk, if I could see exhibit 67A to C. Thank you very much.

Q. Now you were giving evidence yesterday with regards to time of death, there were some questions about whether or not you found any newspapers in the basement of the house in a Minute Rice box, right? A. That is correct, sir. Q. And I think it was put to you in various ways that had you had an opportunity to look in the box and see if there were newspapers there you might have been able to establish time of death or have been assisted in your investigation, isn't that correct? A. I was asked that question, yes, sir. Q. And do you remember your response? A. Not exactly, sir, no. Q. Okay. Well I think you talked about the fact that you had observed a Loblaw's flyer and you talked about the fact that you had observed something from Canadian Tire, you talked about a smoke detector, correct? A. That is correct, that was on a flyer, sir, yes. Q. And you said newsprint, this was a word that you kept using - newsprint. A. Yes, sir.


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Q. Okay. So is it your evidence then, Officer, that you did not observe a newspaper in that Minute Rice box? A. To my best recollection, sir, I looked in the box, saw the papers and then carried on with my search. Q. Okay. I'm asking you a question about newspaper, do you remember seeing a newspaper in the box? A. No, sir, not in particular, no. Q. Do you remember giving evidence at a proceeding on March 3rd - excuse me, members of the jury - in a proceeding dated the first day of March, 1995, Officer, you were asked about ---

MR. DANDYK: What page? MR. CRYSTAL: I'm sorry. Page 12.

Q. You were asked, and I believe there was a slide depicting the Minute Rice box but the question was: "Q. What is depicted in the bottom left corner of

the particular slide, sir?

A. Yes, sir, in the bottom left-hand corner there appears to be a box with newspaper items inside that box, sir.

Q. It's a cardboard box and it says Minute Rice on it, does it not?

A. Yes, sir, it does."So on March 1st, 1995 you appear to say that there were newspapers in that box. A. Yes, sir, newspapers. Q. Newspapers. A. Yes, sir. THE COURT: Newspaper items. MR. CRYSTAL:


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Q. Newspaper items.


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A. Newspaper items, sir. Newspapers, newsprint. Q. Okay. Well this is what I'm trying to clarify and, you know, cross-examination is the engine of truth and I'm trying to get out what you saw in the box. Were there newspapers in the box? A. What do you want as a newspaper? Are you referring to an Ottawa Sun, an Ottawa Citizen? It's newsprint, newspaper. It's all newspaper to me, sir.

Q. Officer, ---A. I did not look for a date on the paper to

specify what date was in the box, sir, no, I did not. Q. Well that's what I'm getting at. A. I did not look for any dates on any of the flyers or the magazines or anything else that may have been in that box. I did not check for any date. Q. Okay. And wasn't that -- I mean wouldn't you agree with me that that was an oversight on your part? A. Okay, it was an oversight, sir, yes. Q. Because I mean we're trying to obtain what might be relevant evidence as to the commission of these offences, correct? A. Yes, sir, you are. Q. And you agreed with me yesterday that there may never be any more evidence in a case such as this, you may only have the crime scene, correct? A. That is correct, sir. Q. So it's vital that anything that may become evidence is preserved and the integrity of that crime scene is preserved. Now, to be fair yesterday I asked you about that mat, I asked you about the mat, and I asked you about officers


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coming in and wiping off their feet and you did say that they did, it was dry when you first observed it or at one point and then it became wet later and you believed that was because officers came in and wiped their feet at different times, correct? A. Yes, sir. Q. And I think my friend will probably address it in re-examination, but having gone through the transcripts overnight I think there were other places where you mentioned that. In all fairness to you yesterday I think I suggested that there were not, so I want to raise that with you that you did say yesterday that officers came in and wiped their feet while you were investigating. A. Yes, sir. Q. Okay. And you have said that before. A. Yes, sir, I have. Q. Okay. In all fairness to you you have said that. My question to you today is this: Did you ever, while you were investigating, instruct those officers to take off their boots before they'd come in, remove their footwear, anything that contaminated the scene? A. I did not instruct them, no, sir. Q. Why was that? A. I never had the opportunity to. I was doing other duties. Q. It's not a big house. A. No, sir, it's not. Q. I mean surely, Officer, there you are, you spent three days and about 20 hours in this place working diligently, trying to do your job, surely, Officer, it would be all for naught if individuals came in and out of that house and


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contaminated the very evidence you were seeking to collect. It would totally defeat your purpose, would it not? A. It does cause problems, sir, yes. Q. So why were you not -- I don't understand, could you clarify why, when you were collecting this evidence, why you were not concerned about people coming in and just defeating the entire purpose of your being there? A. There was a certain amount of people that did enter the building, sir, the coroner and the coroner did wipe his feet on that mat, however the mat was dry at the beginning and once I did do the photography at approximately 8:20 p.m. on the 18th that mat was then wet. I have no knowledge of how many people came and went into that residence between the time that I arrived and the time I did my still photography. I know that the coroner was there and I know that Inspector Okmanas did show up and viewed the scene. I have no recollection or no record of who entered that building. Q. Well, Constable Fortier and Constable Heather Lamarche were there as well at first. A. And I don't know if they entered the building after I arrived, I'm not aware that they did. Q. It just seems to me, Officer, that - and correct me if I'm wrong - but the evidence that you're collecting is totally useless and meaningless as potential evidence if it's contaminated, correct? A. That is correct, sir, but I do not feel that this scene was contaminated. Q. Though I understand from your comments that you are not in charge of security, certainly as an Ident. officer and a senior Ident. officer or the one in charge of gather- ing the evidence in this house, surely you would've had a con-


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cern and would've been obligated to express a concern about individuals entering this house. A. Yes, sir, that is one of my duties to do, to make sure. Q. And you weren't doing it. A. Well I felt that the scene was secure, sir. I did not see any point in saying to Heather Lamarche I want it posted. The house was barricaded off with the yellow police line "do not cross", I saw no persons tramping through the scene. People had to go into the house to view the body, the coroner had to go in, other investigators such as Inspector Okmanas had to go into the scene. I saw no one else tramping through the scene. Q. Let's be fair, you know as well as I do that a murder, and certainly a double homicide, is a unique occurrence, it doesn't happen every day, correct? A. That is correct, sir. Q. And civilians and trained police officers for whatever morbid curiosity attend murder scenes to view the body, to see what happened, isn't that true? A. I would say not, no. Q. As a police officer, that's not true? A. No, police officers learn not to enter the scene unless it's necessary to, sir. Q. Now you were working away, and though you had told us, we're talking about the quality of your investigation here, though you've told us that people had to come in don't you think if people had to come in that you should have at least taken some proactive steps to make sure that there was steps taken not to contaminate the scene?


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A. The scene was not contaminated in my opinion, sir. Q. You told me you understood the theory of contact trace --- A. Yes, sir. Q. --- the contact theory of trace evidence, people coming into scenes, going into scenes, they bring stuff in and they take stuff away. A. That's correct, sir. Q. You can't tell us that that scene wasn't contaminated by people walking around. A. What was it contaminated with, sir? Q. Well now who's the Ident. officer? A. Exactly, sir, and I do not feel that that scene was contaminated. The bodies were intact at all times. No one was traipsing anything over the bodies, around the bodies or under the bodies. Q. You don't know because the only person you said -- you said more than the coroner entered that place? A. Yes, sir. Q. And you said the only person you observed -now correct me if I'm wrong - but the only person you observed wipe his feet was the coroner, right? A. That is correct, sir. Q. Okay. So there were other people coming in, conceivably, --- A. Yes, sir. Q. --- with their galoshes? A. Conceivably. Not as a possibility, sir. Q. I mean this is a crime scene and there may be no more evidence, the place is a sanctuary for God sakes,


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this stuff has to be treated as if it could be precious evidence, it may be all the evidence we have. A. I feel it was, sir. Q. You know, this is something that just drives me crazy. Look at that photograph.

MR. DANDYK: Your Honour, I think I may have a few comments about counsel's editorial comments.

THE COURT: Yes. MR. CRYSTAL: Well I think I can deal ---THE COURT: Well don't editorialize.

MR. CRYSTAL: I can't work that way.THE COURT: Just ask the questions, counsel. You'll get lots of time to argue it later.

MR. CRYSTAL: I'm sorry about that, Your Honour. Q. Officer, maybe you can take a look at that, I have it as slide 70. What is that supposed to be a photograph of? A. Pardon me, sir? Q. Why did you take that photograph? A. Prior to my examination of the lady's bureau and the drawer I was photographing the items from that angle to show the disturbance in the drawer. Q. Okay. So you wanted to show that there was a disturbance in that drawer. A. Yes, sir. Q. That drawer wasn't opened by yourself? A. No, sir, it was not. Q. It was found open. A. Yes, sir, it was.


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Q. The purpose of the photograph is to show a drawer that was open at the scene. A. Yes, sir. Q. As accurately as you can. A. Yes, sir. Q. Okay. To depict the scene as accurately as you can. A. Yes, sir. Q. As you found it. A. Yes, sir. Q. So on January, when was that January 18th or 19th? A. January the 19th, sir. Q. This is January the 19th? A. Yes, sir, it is. Q. January the 19th, and I put it to you that that scene wasn't as you found it, it's got a big fingerprint brush there and it's got a big can of fingerprint powder. A. Yes, sir, that's correct and that was there at the time the photograph was taken on the 19th of January. Q. So are you telling us that Michel Giroux and Manon Bourdeau used fingerprint powder? A. No, sir. Q. No. You put it there. A. That's correct, sir. Q. You left it there. A. Yes, sir, I did. Q. It should not be there. A. Yes, sir, it should. I was examining the scene at that time, then I was entering into the drawer. I


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photographed the drawer as I was doing it. The drawer had already been photographed on the 18th of January, sir. Q. Officer, I'm confused, are you telling me that you had to include the fingerprint brush and fingerprint powder so we would know what you were doing? A. No, sir, I didn't have to leave it there. Q. Is it a record of what you were doing? A. No, I was not concentrating on what was on the top of the lady's bureau, I was concentrating on the drawer. Q. Correct. A. Yes, sir. Q. It shouldn't have been there, that brush and that can should not be in that photograph, it's not appropriate. Wouldn't you agree with me? A. No, sir, I don't agree with you at all. Q. It's not professional. A. Yes, it is professional. Q. Why? What is the purpose of having that brush and that can there? A. It's showing that I am doing the function that I'm supposed to be doing. It was left there. Whether you want to say it was left there by mistake, that's fine. Q. Officer, I asked you, I said was it to show what you were doing, that you were fingerprinting, you just said no, now you're saying it's to show what I was doing. A. Upon taking the photograph, sir, I was taking it for the purposes of the drawer. Q. Right, and leaving that --- A. That's correct.


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Q. And what I'm putting to you, I mean you can answer it, I'm inviting you to answer it, I'm asking you whether or not leaving that can there with that brush when you were taking that photograph was an oversight. A. No, sir, it wasn't an oversight. I saw it, I photographed it anyways. Q. Because one thing we can say that on Janua- ry 17th and prior to 1806 on January 18th, that photograph would not be accurate, an accurate depiction of the scene. A. That's correct, but there is a photograph accurately depicting ---

THE COURT: There is an accurate photograph for January the 18th. This is a photograph for January the 19th.

THE WITNESS: Yes, sir.THE COURT: Thank you.MR. CRYSTAL: What I'm pointing out, Your Hon-our ..... Well, I take your point, Your Honour.

Q. What I'm saying to you is it's sloppy work. A. I disagree with you, sir. That is not sloppy work, okay? Q. Do you want to talk to me about the gold pillow on top of Manon Bourdeau's head and why that was not collected as a piece of evidence? A. I did not see any evidentiary value in collecting that pillow, sir. Q. At a crime scene of a double homicide you would have to agree with me that as we move geographically closer to the bodies the likelihood of obtaining relevant evidence increases. Would you agree with that proposition? A. Yes, sir.


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Q. Because we are approaching the deceased individuals, their blood, their clothes, whatever. Would you agree with me? A. Yes, sir. Q. Okay. When we get to the bodies of those individuals we're really at ground zero, are we not, in terms of evidence, potential evidence? A. Yes, sir. Q. That gold pillow is sitting at ground zero. A. And I examined the gold pillow, sir. Q. You don't have a luma light. A. No, sir, I did not in 1990 have a luma light or an omnichrome or any other type of U.V. lighting system. Q. So is it too much to ask or is it inappro-priate for you to seize that pillow and maybe have it investigated by the Centre of Forensic Sciences or the RCMP lab to detect things that may not be visible to the naked eye? A. It can be done, sir. I also seized the bed-spread that was right beside Manon Bourdeau. Q. Oh, well, let's talk about Exhibit 47. Could I see that? Because when you do seize something I would submit to you it is not done in a very professional manner and I will show you what I mean by that.

This is Exhibit 47. Now is that how you packaged the comforter that's beside Manon Bourdeau in that picture? A. The comforter was folded up to retain the powder propellant that was in it and it was placed in an unused garbage bag. This has now been in the court for the last seven years, sir.


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Q. Are you saying that that exhibit has since been contaminated since it was seized and packaged by you? A. Since it's entered this court, sir, yes, it has been. Q. What steps did you take --- You've got this in a bag here, I can see the pillow. A. It's not a pillow, sir. Q. The comforter, I'm sorry, this thing, was this ever hermetically sealed in any type of plastic packaging? A. No, sir, it was not. Q. I don't believe it was ever sent away for testing, was it? A. No, sir, it was not. Q. And obviously now, given its present state, it couldn't be, isn't that correct? A. I would have to say no, sir, it cannot be. Q. It's contaminated. A. Yes, sir, this court has contaminated this exhibit. Q. You see the thing is those things may not be important at the time, Officer. As an Ident. officer you know, you'd have to know that they may become important later, correct? A. That is correct, sir. Q. Because when you start to obtain exhibits, you yourself you are not a pathologist, you are not a forensic chemist or a forensic biologist, you are not a Crown attorney, these items to some other individual may have supreme significance. A. And when this item was in my security it was properly sealed and properly placed in my exhibit locker


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with no --- Q. Where did you get the garbage - I'm sorry, go ahead. A. --- with no other one that had availability to this exhibit. The garbage bag came from a quantity of garbage bags out of a box that we carry in our van, brand new. It is not --- Q. Like Glad garbage bags? A. Yes, sir. Q. They're not sterilized? A. We don't have sterilized bags, sir, no. As far as I'm concerned a green garbage bag out of an opened container, out of a box, is a sterilized bag. Q. And how was the bag sealed? A. It was tied --- Q. Do you remember sealing it? A. No, sir. It was tied off with the property tag that I utilized, however over the years in the proceedings the bag has ended up in this state. I had no control over this exhibit once it left my hands and it became an item back in 1991, sir. Q. So you seized the garbage bag, I'm sorry, you seized the comforter and you put it in a garbage bag and you tied it up. A. That is correct, sir. Q. Okay. And tell me something, when you packed up that comforter did you do it inside or outside the house? A. I did it right on the bed, sir. Q. You did it right on the bed. And that garbage bag, do you remember taking that garbage bag from the


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truck? A. Yes, sir. Q. Okay. And that garbage bag was used immediately to put that comforter into it or did it sit around for a while? Do you have a recollection of this? A. Not to my knowledge, sir. I believe it was the only thing that I could fit into it. I retrieved it out of my truck and put this item into the green garbage bag, but that's the only item that I required a green garbage bag for. Q. Okay.

Let me ask you something, that gold pillow, now you're not a forensic pathologist -- right? -- you have no expert-ise in that, that's fair to say? A. That is correct, sir. Q. You come upon a scene and I guess you would tell me that this was an accurate depiction of Manon Bourdeau when you saw her at this particular time on January 19th or 18th, correct? A. That is correct. Q. Okay. So, really, looking at this picture is it possible to dismiss the possibility that she was suffocated and then shot, suffocated with that pillow, from what we're seeing? A. I don't know how she'd be suffocated if she's facedown, sir. Now what are you referring to by suffoca-tion? Q. What I'm saying to you is, Officer, there are a million possibilities and scenarios that that pillow may have factored into and been important to, but you for some reason decided that a pillow sitting on the head of the deceased in a double homicide was not important.


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A. That's correct, sir. Q. I asked you yesterday to characterize the quality of this investigation, your answer to me was it was good work. A. Yes, sir. Q. And that's still your position? A. Yes, sir. Q. I put it to you, you can disagree or agree with me, that your investigation was a minefield of investigative error and mishap and polluted much of what could've been relevant evidence. You were careless, do you agree? A. No, sir, I do not. Q. Let me ask you something, I want to ask you about that cigarette butt. 74 and 75 are the numbers I have. See the butt right over there? A. That is correct, sir. Q. Exhibit 74. Can you tell from this photograph what colour the butt of that cigarette is? A. Yes, sir. Q. What colour is it? A. Brown, sir. Q. Brown. We know that in Manon Bourdeau's bedroom there was an ashtray with Players Light cigarettes, isn't that correct? A. Yes, sir. Q. In fact I think we can show it to the jury. MR. DANDYK: Number?

MR. CRYSTAL: I think it's 51. Let me just check. Okay, I believe it's 51.

Q. Okay. Now, you see up here, these are all white, right?


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A. That is correct, sir. Q. Now we know that there were DuMauriers in the living room, correct? A. That is correct, sir. Q. DuMauriers have the orange tip. A. Yes, sir. Q. Okay.

Now, you move a bed and beside the caster you find some wadding and, I'm just going to go back to it, you find an orange butted cigarette, okay? It's fair to say that that cigarette butt is somehow unlike the others in the ashtray. A. In the bedroom, yes, sir. Q. Because they've got white butts, okay?So let me just ask you this: doesn't that make you suspicious? A. No, sir, it did not. Q. We know that that's not a Players cigarette, we know that there are orange butt cigarettes from -- in the other room and this orange butt cigarette is found right beside the bed. Isn't it common sense, I ask you this, yes or no, isn't it common sense to think that that is suspicious? A. No, sir. Looking at the butt and looking at the crime scene and determining that the butt was crushed, it also had a scorch mark to it, it was not placed there by a suspect. Q. Oh, you knew that it wasn't placed there by a suspect? A. That's the opinion that I came to, sir. Q. That was the opinion you came to. A. Yes, sir. Q. Did you pick that butt up, do you remember?


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A. I cannot recall whether I did or not. Q. You cannot recall because you have, and I can show you the slides, but it's fair to say that in some proceedings you have testified that you had picked it up and in other proceedings you've testified you didn't pick it up, correct? You can't recall. A. I examined the butt and I came to a conclusion. Q. Okay. You can't recall whether you picked it up. A. No, sir, I cannot. Q. So now you're talking about examining the butt, right? A. Yes, sir. Q. But when you examined it you say you're not sure if you picked it up, so you may have examined it without picking it up, correct? A. Correct, sir. Q. That's a possibility?

A. Yes, sir.Q. Okay. So you're moving the bed during your

investigation and you see this cigarette butt and what do you do, you just look at it and leave it there, is that a possibility, is that what you did? A. Yes, sir. Q. Officer, from the scene we know that there were two brands of cigarettes, DuMauriers in the living room, Players in the bedroom, correct? A. That's correct, sir. Q. Do you know whether or not this was a third brand?


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A. No, sir, I do not. Q. But you examined the butt. Did you examine it for the brand? A. I cannot recall. Q. You cannot recall. A. That's correct, sir. Q. Well what were you examining it for? A. To see if there's any scorching to the carpet, any ash left behind. Q. The bed was moving around, you moved the bed around. Did you check all through the bedroom for the scorch marks? It could've been knocked around. A. The bed was slid to the east of the cigarette butt. If you're saying that the bed caused the butt to move, then that's a possibility, sir. Q. Well that bedspread was on the ground when you were moving the bed, isn't that correct? A. And the butt was underneath behind the bed-spread, sir. Q. It could've been dragged, though, by the bedspread, you would agree with that. A. At what point in time? Q. I don't know, we don't know, but the bedspread was on the ground, right? The bedspread touched the ground. A. Yes, sir, it did. Q. The butt was under the bed. A. And behind the comforter.

Q. Yeah.A. Yes, sir.

Q. And the bed moved at certain points.


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A. Yes, sir, to the east of the butt. Q. Okay. So all I'm saying is that though there may not be a scorch mark there, that may not have been its original resting place, correct? A. That's a possibility, sir. Q. That is a possibility.

Officer, I want you to -- I would ask you to think about this, I put it to you, Officer, that this butt was never seen by you at the scene, that this was a butt that you observed when you were looking at your photographs at a later time and you have no recollection of examining that butt at the scene, that this is an oversight and something that you are dealing with only from photographs, you never saw that butt at that scene, you saw it in the photograph for the first time at a later point. Would you agree or disagree? A. I disagree, sir. Q. Well, then maybe you can explain why your examination would not include any interest in who may have smoked that cigarette. A. Upon examining it or looking at the cigarette butt I felt that it was an old butt and --- Q. Okay. Fair enough. But what ---

MR. DANDYK: I think he was going to finish. MR. CRYSTAL: Yes, well let him finish.THE WITNESS: It was an old butt that was dropped there and placed underneath the bed prior to my arrival.

MR. CRYSTAL: Q. And just the mere fact that it was an old butt removed the possibility that it could've been in one of the perpetrators' or a perpetrator's pocket?


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A. I don't think a perpetrator would carry an old butt in his pocket, sir. Q. Some people use their packages as ashtrays. A. I'm not a smoker, sir. I don't know. Q. You don't know but you were quick to dismiss it like the pillow on the head of Manon Bourdeau, you made that decision not to collect it, it was yours. A. Yes, sir, it was. Q. Now cigarette butts, you will know from I guess your general knowledge as an Identification officer, contain -- quite likely contain or can contain samples of someone's saliva. A. That is a possibility, yes, sir. Q. And saliva can be used in DNA testing. A. Yes, sir, it can. Q. Okay. And DNA testing, the so-called genetic fingerprint, can quite often help reveal the identity of a perpetrator; is that correct? A. That is a possibility, yes, sir. Q. Okay. And without knowing the brand, without knowing whether it was the cigarette of some third party, a third brand, and with knowing the fact that it was dissimilar from cigarette butts in that very same room you made the decision not to collect it. A. That is correct, sir. Q. And you are still of the opinion that you did good work from January 18th to January 20th? A. Yes, sir. Q. You still hold that opinion. A. Yes, sir.


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Q. Did you have at any time during your investigation a working theory of who or how Manon Bourdeau and Michel Giroux met their ends? Did you have any working theory of how this crime may have been committed from what you had observed in the crime scene? A. They were both shot, sir, yes. Q. Did you look for signs of forcible entry? A. Yes, sir, we did. Q. Where did you look? A. At the point of entry, sir. Q. And that was basically? A. The one kitchen door. Q. And you did not look for any other signs of entry. A. Everything else was covered with plastic and sealed, sir. Q. So you did look in other places. A. Yes, sir. Q. Because you said just a minute ago that you looked at one place but that's not true, you looked in several places and you determined that the door was the likely source of entry.

MR. DANDYK: Counsel is being unfair with the witness. That was a different question and a dif-ferent answer.MR. CRYSTAL: Your Honour, I'm trying to summa-rize the inconsistencies to put the proposition to the witness.THE COURT: Well if there's unfairness the jury can decide that one. Go ahead. Continue.

MR. CRYSTAL: Thank you, Your Honour.


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Q. Now while we have this photograph I'd like to talk to you about the wadding.

Now there's Exhibit 15, 11 and 59 which I'd ask madam clerk to give me. Thank you.

Exhibit 11 I'm showing you, Officer, was the wadding that was taken from the chest of Michel Giroux, correct? A. That is what it says, sir, yes. Q. And I think the jury has seen these exhibits.

If I can show you Exhibit 15, that was taken from the head of Manon Bourdeau, --- A. Yes, sir. Q. --- correct? And Exhibit 59 is the - I believe the - that's Exhibit 59 right there. A. That is correct, sir. Q. Now Exhibits 11 and 15 were found in the bodies of the deceased and that's likely the result that they were shot at close range, isn't that correct? A. Yes, sir. Q. Exhibit 59 wasn't found in a body. A. No, sir, it was not. Q. Just working from first principles, it's probably likely that it was shot at a further distance than the other two. A. Yes, sir. Q. Where that wadding landed could become very important in terms of the ballistics investigation, the recon-struction of where the shooter was at the time that the shot was fired, isn't that correct? Where that wadding landed in


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relation to where the deceaseds were, that was an important step, right? A. I think a firearms examiner would be more apt to answer that question. I think the pellets are more important than the wadding itself. Q. Well you spent a lot of time with those pellets, correct? A. Correct, sir. Q. You took your 1x6, you took your trim with regards to those pellets, right? That was important so you seized that, correct? A. That's correct, sir. Q. You made a determination, based on your experience and your ability as an Ident. officer, that that was important, correct? A. That is correct, sir. Q. The wadding, you're saying, you don't want to take a position on the wadding; is that correct? You don't want to say whether or not it would be, in your opinion, relevant to the distance that the shooter may have been to Michel Giroux. A. That is correct.

THE COURT: I think he said it was more appropriate to ask that question to a ballistics witness.

MR. CRYSTAL: All right, it's more appropriate.THE COURT: That's what he thinks.MR. CRYSTAL:

Q. So you'd rather not answer that question. A. With reference to the wadding, that is correct, ---


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Q. Okay. A. --- for distance determination. Q. Yes. Okay. Well let's back off a bit from that and take it a

step back. Why don't we say this: That wadding, the placement of that wadding on the floor where it landed could've been -- could be, could be very important.

MR. DANDYK: I'm curious, the witness has just indicated he can't answer this. Why are we asking him further questions about it? We're pursuing an area he can't answer.

THE COURT: It seems to be what --- MR. CRYSTAL: I can approach it from another way. Q. You seized the wadding. A. Yes, sir, I did. Q. You didn't leave it on the scene. A. No, sir, I did not.

THE COURT: All right. That's fine.MR. CRYSTAL:

Q. You put it in a bag, correct? A. Correct, sir. Q. You put your initials on it? A. Yes, sir. Q. You didn't put it in a garbage bag? A. No, sir. Q. You put it in a smaller bag. A. That's correct, sir. Q. So it's important. You seized it, right? A. That's correct, sir. Q. You didn't seize this, you didn't seize this cigarette.


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A. That's correct, I did not. Q. You seized the wadding. A. Yes, sir, I did. Q. You did tell the jury that it's possible the cigarette was moved by the bed -- right? -- because of the comforter and so forth, when you moved the bed it may have been moved east, I believe. Was the bed moved east? I don't want to confuse you. A. The bed was moved east. As to whether the cigarette butt was moved, I have no idea. Q. But you agree with me it could've been because of the way that the comforter was sitting on the floor? A. That's a possibility, sir, yes.

MR. CRYSTAL: And, Your Honour, I have to say that I have been thrown off by my friend's gesticulations, I really don't know if he's coming at me or if he's just adjusting himself in his seat. I know that he has some objections from time to time but I'd just ask him if he could to at least ---THE COURT: Remain absolutely still? That's the first request I've ever had for that. If he's going to attack you I agree he has to give you notice.MR. CRYSTAL: I know he's a distance runner and I'm sure he's passed 12 kilometres already but I'm just a little concerned because he makes these moves as if he's going to object and of course I want to give him an opportunity if he has one but I'd just ask him ---


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MR. DANDYK: Oh, when I stand fully up counsel can assume I'm objecting, otherwise I'm just moving in my chair to be comfortable.

MR. CRYSTAL: Q. Now, I guess what I want to ask you is this: cigarette butt, your opinion, not potential evidence, wadding potential evidence. That's the determination you made on the scene. A. That's correct, sir. Q. And I think we have determined, and I think you'd have to agree with this but I could be wrong, but you would agree with me that you're making your judgment, your decisions are basically at the centre of what is being collected and what is not being collected, you decide, you're collecting evidence then so you decide what to collect and what not to collect, isn't that correct? A. Yes, sir, that's correct. Q. Because there's no one else doing what you're doing at the scene, isn't that true? A. That's true, sir. Q. That wadding may have been moved when the bed was moved east, isn't that correct? A. That is a possibility. Q. We may not be seeing that wadding in its original location when you arrived at the scene. A. Upon my search on the 19th that is a possibility. Q. Now, you have told us you had a 250-watt light and that though it is not an excessive amount of wattage or what have you, it is helpful to your investigation. Before moving the bed do you think it might have been a good idea to


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see what potential evidence may have been under the bed before you moved it? A. The bed was moved on the 18th of January for the removal of the body of Manon Bourdeau. Q. Officer, isn't it fair to say that due to the investigation of a crime scene sometimes bodies have to remain at the scene longer than one would normally like or they would typically because of the nature of the investigation of the scene? A. There is occasions where that's a possibility, yes, sir. Q. That in a competition between collecting evidence and getting the bodies removed just for the sake of removing the bodies, that the collection of evidence takes precedence, wouldn't you agree with me? A. It depends on the circumstances, sir. Q. Surely at this scene there was no pressing need to remove the bodies prior to investigating what may be under the bed, wouldn't you agree with me? A. You could examine it at that point, yes, sir. Q. I mean according to your estimation Manon Bourdeau was moved approximately three hours after the time she was found? I think she was moved around midnight? A. That is correct, sir, yes. Q. She was found by you at 9:02 when you stepped on her? A. Yes, sir. Q. In those three hours did it ever occur to you because you might have to move the bed to have Manon Bour- deau's body taken out, did it ever occur to you to use some


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light source, be it your 250-watt tungsten light or anything else that you had in your truck or van or vehicle, did it ever occur to you that it might be important to look under the bed before those bodies were removed? A. No, sir, it did not come to my attention. Q. Do you have your book there with the photos? I'm just looking for the one that has both bodies. MR. DANDYK: I believe it's 36. MR. CRYSTAL: 36? MR. DANDYK: I believe.

THE WITNESS: 39. MR. CRYSTAL: 39. There you go. Q. Officer, I'm not going to play games with you. I see a bed right between two bodies, is that what you see in photograph 39? A. Yes, sir, that's correct. Q. We talked about and for lack of a better term I used the term ground zero at a crime scene where evi-dence is most likely to be. Before I ask you the question, I think you did give the distance between the two bodies. Do you remember it? A. Yes, sir, I believe I said it was approxi-mately 10 feet. Q. Ten feet. There is a bed between two bodies at a double homicide, if evidence is to be found, precious relevant evidence, the possibility of evidence being found at a scene, isn't it likely in your opinion that it would be in that room somewhere? A. Yes, sir. Q. Okay. And wouldn't you agree with me that's not a big room.


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A. No, sir, it is not. Q. And the bed really takes up the lion's share of that room. A. That is correct, sir. Q. So the space under the bed, just working logically now, the first principles, would likely or could very well have underneath it evidence that would be relevant to determining who did this, right? A. That is a possibility, sir, yes. Q. It's not a probability, you're saying it's a possibility. A. Yes, sir. Q. But you moved the bed. A. That is correct, sir. Q. With a comforter on it, without looking underneath it with your light, your 250-watt light or any other light you had, you moved the bed. A. Yes, sir, we did. Q. And when you moved the bed you conceivably or possibly moved two pieces of evidence. A. That is a possibility, sir, yes. Q. At least two, one you would agree with me is you determined was evidence because you seized it, the wadding, and one you didn't seize, the cigarette, correct? A. That is correct, sir. Q. Because no one else moved that bed, it was you moving the bed east. A. Staff Sergeant Bowes and I moved the bed, sir, yes. Q. It was the two of you moving the bed. A. Yes, sir.


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Q. So it's very possible, you're not a ballistics expert so you can't talk about this in terms of you can't say how relevant the position of that wadding is, you can't give that answer, but you may have very well changed by your action, yourself and Sergeant Bowes during your investigation, changed the location of that wadding. A. That is a possibility. Q. And because you are not a ballistics expert you really don't know how important that action was, that oversight was. Well, I'm not going to call it an oversight in all fairness to you. You do not know because you're not a ballistics expert, I put it to you, the consequences of your actions. A. No, sir, I do not. Q. I mean you can't tell us whether or not the position of that wadding would've been important to determining where that third shot came from. A. The wadding itself? No, sir. Q. No.

MR. CRYSTAL: I'm moving towards the end, Your Honour. Maybe we can have the break now and I'll be able to finish up after the break probably.

THE COURT: All right.

--- Whereupon court recessed at 11:15 a.m.

* * * * * * * *

--- Upon resuming at 11:35 a.m.

--- Accused present

RANDALL DAVID PAYNE, resumes on the stand

THE COURT: Counsel, just before you start, I

received this note from the jury during the


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break. "The jury respectfully requests that counsel

refrain from placing any object or objects in front

of the witness blocking the head and face of the

witness from the jury's view." So I'm sure that was

done not consciously, I'm sure, and if it happens

again you don't have to wait and write me a note,

just say I can't see. Okay.

Yes, Mr. Crystal.

MR. CRYSTAL: Thank you very much.

CROSS-EXAMINATION (continued) BY MR. CRYSTAL:

Q. While we're on the topic of Exhibit 47, the

comforter, I would like to ask you one last question about that. I

think you testified - and correct me if I'm wrong - that the

comforter had a propellant on it, gunshot propellant on it? A. That is correct, sir. Q. And the density of propellant can sometimes be useful in some sort of ballistics reconstruction, firearms reconstruction as to where the shot originated from, isn't that correct? A. Not to my knowledge, sir, no. Q. Okay. You would agree with me that the density of gunshot propellant, you can't talk about the dis- persement of the shot in a particular point in time. A. I'm not really sure, sir. Q. Okay. Do you know anything about gunshot propellant? A. Not a great deal, sir, no.


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Q. Okay. Because there was gunshot propellant on that comforter. A. Yes, sir, there was. Q. And you say that you simply folded up the comforter and put it in a bag. A. That is correct, sir. Q. You put it in a garbage bag. A. Yes, sir. Q. You did it up and you put a tag on it. A. That is correct. Q. And in terms of whether or not the density of the propellant on that comforter, whether or not that was disturbed and the evidence subsequently contaminated or destroyed, you really don't know, do you? A. As to the density of the? Q. You don't know if by the way that you folded up that -- by taking that comforter and putting it in the bag as you did, you don't know if you may have destroyed evidence. A. No, sir, I do not know. Q. Because you really don't know the meaning and the use of gunshot propellant and the density of gunshot propellant on a comforter --- A. That is correct, sir. Q. --- at a crime scene. A. That is correct, sir. Q. Now you're not an expert in pathology and you may or may not know this so I'll ask you, the temperature in a particular room or in a house at a crime scene, do you know if that in any way could factor into --- MR. CRYSTAL: It goes to his state of mind.


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MR. DANDYK: I'm seeing a difficulty. We're saying he doesn't have the expertise and then we're asking him and, with respect, I don't see the relevancy.MR. CRYSTAL: We started off this same way with rigor mortis this morning.THE COURT: Not necessarily. I'll have to hear the question first and then I'll see.

MR. CRYSTAL: Q. Well maybe I could just rephrase it this way and spare us all a lot of grief. Did you think that the tempera-ture in the bedroom where you found Manon Bourdeau and Michel Giroux was important? A. No, sir, I did not. Q. Can you tell us whether or not in the bedroom itself you observed any heating vents? A. I cannot recall. Q. Before we leave the bedroom I'd like to ask you about the conclusions of your examination of that cigarette butt. You said you felt it was an old butt, that was one of the conclusions you drew. A. That is correct, sir. Q. And that was based on what? A. The state that the cigarette butt was in. Q. And that was from -- what? -- a visual observation of the butt at the scene? A. Yes, sir. Q. And are you saying that -- was it the scorch mark that made you think that it was an older butt? A. And the fact that it was also crushed, sir, yes.


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Q. Crushed. Well was there something about the way that it was crushed that would lead you to believe that it had been crushed some time ago as opposed to recently when you were moving the bed for example? To be more clear and precise, is it possible that it may have been crushed by the caster running over it? A. I don't believe that would be a possibility, sir, no. Q. And you conclude that on the basis of what? A. The bed was just slid to the east of the room, it was not moved in any way other than directly to the east. The caster would not have gone over that cigarette butt. Q. So you believe that it was crushed some time ago. A. Prior to. Yes, sir, it was prior to. Q. Some time prior to you observing it. A. Yes, sir. Q. But you can't really say how long ago, that's a conclusion you've come to. A. That is correct, sir. Q. But you don't have a basis for it. A. Other than the appearance of the cigarette butt in itself, sir. Q. Now if we could just go back to the age of the butt. A. The? Q. The age of the butt. You concluded that or the fact that it was an old butt by seeing that it was crushed and I think the scorch mark. A. That's correct, sir.


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Q. That's correct? Now you can't recall whether you picked that butt up. A. Not at this time, sir, no. Q. And you certainly can't tell us whether it had a brand name or what the brand name was. A. Not to my recollection, sir. Q. And I put it to you that if you were basing your examination on an observation as opposed to picking up the butt, you can't really say for sure that there's a scorch mark on that butt. A. Yes, sir, there was. Q. Well, you didn't pick it up or there's a possibility you didn't pick it up, how do you know it's not a piece of dirt? It's just a little black mark. A. No, it was not a black mark or a piece of dirt on the cigarette butt. Q. And you're sure of that. A. Yes, sir. Q. You're sure of that because you probably did pick it up. A. I'm not sure if I did or not, sir. Q. Okay. So you were very careful to observe that this isn't a piece of dirt or this isn't a scorch mark but you weren't interested in the brand. A. Not at the time, sir, no. Q. When you knew there were two different brands of cigarettes in the house. A. Yes, sir. Q. And this could be a third brand. A. That's correct, sir.


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Q. And it had a different coloured tip than the brands in that room, this Players Light. A. That is correct. Q. Okay. I put it to you, sir, that that was sloppy work. A. That's your opinion, sir. Q. That examining that, being more interested in that mark, that scorch mark, than that brand is confusing and just from the point of view of an investigation that that was sloppy. A. I don't feel that way, sir, no. Q. You don't smoke. A. No, sir, I do not. Q. So you don't know if the tobacco in that cigarette was old in the sense that it was stale? A. No, sir, I do not. Q. You didn't smell it? A. No. Q. If I could give you a hypothetical, had a third party --- THE COURT: Yes, hypothetical. MR. DANDYK: He's not an expert.

THE COURT: Yeah. You could only ask him about his experience, you can't ask him a hypothetical.

MR. CRYSTAL: Fair enough, Your Honour. Q. My point is simply this: that you are not an expert with regards to saliva, you are not an expert with regards to DNA, you are not an expert with regards to the forensic testing that that cigarette may have been subjected to


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and you, you alone, determined that that was not relevant evidence.

MR. DANDYK: I think there were about four questions there.

THE COURT: Yes, at least.MR. CRYSTAL: It was a compound question but he can answer each point. Q. You're not a forensic expert?

A. That is correct, I'm not. Q. And you're not completely familiar with DNA testing or obtaining saliva samples? A. No, sir, I'm not. Q. And you're not fully aware of the various samples that that cigarette butt may have been subjected to. A. By the way of samples, I'm not sure what you mean. Q. The testing, the forensic testing that that cigarette butt may have been subjected to, you don't know the range of testing that that butt may have been subjected to to find out who actually smoked it. A. That's correct, sir. Q. Okay. Yet you and you alone determined that that was not valuable to this investigation. A. That is correct. Q. Do you know where that butt is now? A. No, sir, I do not. Q. Now while we're on the subject of saliva, there were drinking glasses found in that house, in the bedroom and in the living room, correct? A. That is correct, sir.


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Q. Do you know what happened to those drinking glasses? A. They were examined by Staff Sergeant Bowes. Q. So you didn't have any involvement in the examination of those. A. No, sir, I did not. Q. You observed that there was sort of a Cola substance in one in the bedroom. A. That would be correct, sir, yes. Q. And it's hard to tell, and maybe you can assist us, was there anything in the other glass in the living room? A. To the best of my recollection, yes, there was, sir, again a Cola substance. Q. Now we know that your senior, Sergeant Bowes, a man who at one point taught you your skills, was busy conducting a fingerprint investigation, he was collecting fingerprints, and you were collecting other samples, other pieces of what might be evidence, correct? A. At which particular time, sir? Q. Throughout the investigation. During the 18th, 19th Bowes, I'm not trying to pin you down with regards to time, but generally speaking or certainly on the 18th Bowes, among his duties, was collecting fingerprints and you were going around collecting other pieces of evidence, correct? A. That's correct, sir. Q. Why did you not collect samples of fluid that was found in those drinking glasses? A. I did not examine the glasses, Staff Ser- geant Bowes examined them but ---


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Q. I'm not talking about what's on the outside of those glasses. I'm not talking about fingerprints. A. And Staff Sergeant Bowes picked up the glasses, I did not. Q. Okay. We're talking about contents. A. Yes, sir. Q. All right. Now what I'm trying to get at, Officer, is simply this: Were you familiar at all with the possi-bility that saliva could determine -- could lead to the determina-tion of identity in an investigation, saliva samples? A. At that time, yes, sir, there was a possibility of obtaining saliva samples from an object. Q. You did not observe signs of forced entry at this residence, ---

A. No, sir.Q. --- correct?

A. That's correct. Q. It is a possibility that whoever or whom- ever committed these offences was known to Manon Bourdeau and Michel Giroux, correct? A. That is one possibility, sir, yes. Q. Well, let me put it to you this way: It's not a remote possibility, is it? I mean there were no signs of forced entry. A. No, sir, there was no sign of forced entry to the house, that's correct. Q. And did you think there was a struggle from what your observations were, did you observe anything that would suggest there was a struggle? A. No, sir, there was not.


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Q. Those two facts were known to you when you were conducting your investigation. A. Yes, sir. Q. So I submit to you there's a very good possibility, given those two facts from your investigation of the crime scene, that the individuals who committed this offence may have been known or were known to Michel Giroux and Manon Bourdeau. A. That is a possibility, sir, yes. Q. Okay. And that these offences may have taken place on the occasion of what started out as a social visit, that was a possibility, right? That whoever did this had come to their house and socialized with them prior to the murders. A. I had no basis for that conclusion, sir. Q. Well, you're right, you had no basis for it because you didn't look at the cigarette butt to see if it was some third brand, and you didn't check the glasses to see -- take samples from those glasses to see if maybe a third party was present, but there were indications that someone else had been to their house because they were both dead, someone killed them, and there were indications to you, road signs, saying no forced entry and after that road sign no signs of struggle, so the conditions were rife for this to have been an offence committed on the occasion of a social visit. That's a possibility, right? A. That is a possibility, yes, sir. Q. And if people socialized with Manon Bour- deau and Michel Giroux prior to these offences they may have very well have had a drink or a smoke, correct? A. That is a possibility, yes.


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Q. Well, when you go into a crime scene, because this is about the quality of your work and I want to ask you, when you go into a crime scene are you at all motivated by some sort of general theory of what might've happened, does that factor into it somehow that this offence happened some way, is there a big picture, do you have a big picture in your mind or are you just going around collecting things randomly? A. No, sir, you have many theories --- Q. Okay. A. --- that come into your mind as to what may have happened. Q. All right. What was your theory, what was going on in your mind? A. The theory was with the location of the body of Michel Giroux and the location of his footwear, his slippers in the bedroom, the t.v. in the bedroom, that it was on, that he exited the bedroom and was shot and then he landed where he did and then was shot again.

Manon Bourdeau was either in the bedroom or could've been placed there and was shot in the bedroom. Q. Okay. That's fair enough.

And in terms of the possible perpetrators, now I'm not looking for identity or anything like that, did you have any sort of big picture as to, you know, whether or not the perpetrators may have been known to, like, you know, did you have any sort of working theory or a sort of idea of, you know, whether the perpetrators were known? A. No, sir, I did not. Q. Okay. So you basically -- I guess you were working from the last minutes of their lives backwards, I mean


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that's certainly the way you approached it, and really you drew the line at how they'd basically come to meet their ends, not really who the perpetrators might be, isn't that fair to say, you sort of worked backwards? A. That's correct. Q. Okay. That's fair enough.

Now, as you are working backwards, why don't we move to the diagrams then, just very briefly I want to touch on the diagrams because we have Exhibit, is it 46? THE REGISTRAR: The diagram? MR. CRYSTAL: Yeah. 45A. THE REGISTRAR: Yes.

MR. CRYSTAL: Maybe I can just show it to the officer, and the jury has seen it.

Q. It has some numbers on it, I don't want to go into -- I don't want to go into it in any great detail, but could you just very briefly just talk about why you put those numbers in the diagram? A. I was advised to by the Crown attorneys. Q. Okay. And the numbers in that diagram, could you just maybe read them into the record or tell the jury about them, just the numbers that are found on diagram Exhibit 45A. A. Yes, sir. The first number is in the upper left-hand corner and it has a degree symbol beside it which is 52 degrees. To the right of that would be a number 11 indicating 11 feet, and just below that to the right of the number 11 would be 15 feet. Q. Okay. Now that diagram and those measurements, that wasn't the first diagram you were requested to compile, isn't that right?


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A. That is correct. Q. There were earlier versions. A. Yes, sir. Q. I'm just showing you a diagram and I ask you to identify it and I'd like to enter it as an exhibit if you can identify it. Maybe you could tell the jury what it is. Do you recognize it? A. Yes, sir. It's a diagram that I prepared at an earlier trial and again there are numbers on this diagram. Q. Okay. And what are those numbers? A. Again it is 52 degrees and then there is a three-foot mark above the 52. Q. Yes?

A. And then to the right of that the number 12. Q. Okay. And those numbers are different than Exhibit 45A. A. That is correct, sir. Q. Okay.

MR. CRYSTAL: And maybe I could just, madam clerk, enter that. I don't know where you are on the exhibit list.

THE REGISTRAR: Exhibit number 70, Your Honour. THE COURT: Exhibit 70? Thank you.

EXHIBIT NO. 70: Diagram - layout of house - 1222 Queen Street

MR. CRYSTAL: Q. Now if we go into the spare room, and maybe I could just get that picture up again that shows that fallen plastic plant. Maybe you could assist me there. That's great. Good. Now aside from the bedroom, would you agree with me that there is a possibility from just looking at this photograph


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that there may have been a struggle of some dimension in this room? A. There's a possibility, sir. Q. I mean the house was tidy, I think when you were going through the pictures I mean you did mention that the house seemed to be quite tidy and neat. A. Yes, sir. Q. And here in this picture there's a lumber jacket, what looks to be a blue lumber jacket on the floor? A. Yes, sir. Q. And there is a plastic tree that's on its side. A. That is correct. Q. Now, you said that really when you were investigating this double homicide that you, you know, you were working backwards, you were trying to figure out how this had all taken place, what led to this. Did this room initially pique your interest at all? A. No, sir, it did not. Q. All right. And is there any reason for that? How did you -- why was it -- why did it not pique your interest? A. There's nothing to really -- that I could detect that would be out of place. Q. Okay. So there were coats that were hung up in the closet. Can you tell me which one is the picture? A. 29? Q. 29. Yeah. There you go. Okay. All right. The coats are hung up there and obviously there's one coat that is not hung up and then there's a tree on its side, and that to you just did not pique your interest at all.


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A. In what way, sir? Q. Well, for example there may be fingerprints in that room. A. No, sir, it did not. Q. Now I know you weren't conducting the fingerprint work but did you speak to Sergeant Bowes about taking fingerprints in that room? A. I don't recall if we had any conversation in that respect, sir. Q. So is there any reason -- I just -- I mean there you have it, I mean there are coats hung up, one's on the floor, there's a tree on its side. As far as you're concerned that's just the messy room? A. I wouldn't indicate it to be messy, sir. One coat is on the floor and whether the tree was upright or not I have no idea. The tree was definitely down upon my arrival. Q. So you were interested really -- isn't it fair to say, as you move away from the various rooms -- as you move away from the bedroom you really didn't see anything that seemed all that important, like there was nothing in the dining room that really seemed important to you.

If I can just maybe go back to my thought. THE COURT: If there's a question there, we're

getting there. MR. CRYSTAL: I'm getting to it.

THE COURT: Okay. Fine. MR. CRYSTAL: I've just been given a news flash from my friend.THE COURT: I just thought I didn't want you to lose track.


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MR. CRYSTAL: Yes. Q. Actually Ms. Mulligan raises an interesting point which I didn't cover but that is to say that I think you were responsible for the fingerprint work in this room, were you not, in terms of the living room and this room, were you not responsible for the fingerprint work? A. No, sir, I was not. Q. My understanding, sir, and I will look at this over the break, but my understanding was that Sergeant Bowes was not responsible for these rooms and that you were responsible for the fingerprints in this room. Are you saying that that wasn't the case? That if fingerprints were to be taken in this room you would be responsible for it. A. Not to my knowledge that was ever discussed, sir. I know that Staff Sergeant Bowes did the kitchen and the dining room area and I did the master bedroom. Q. So you did do one of the rooms. Okay. So maybe I've got it a bit backwards but the thing is Sergeant Bowes wasn't doing all the fingerprint work in the house. A. No, sir, he was not. Q. Okay. You were doing some of the rooms too. A. Yes, sir. Q. Okay. Now as to who did which room, how was that determined? A. Staff Sergeant Bowes started the fingerprint examination on the 18th of January and concluded that night on the 18th finishing, as far as I understood, the kitchen and the dining room area, the points towards the body and the master bedroom. Q. Okay. And you did the living room? A. No, sir, he also did the living room.


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Q. Okay. And which rooms did you do? A. I just did the master bedroom. Q. Oh, you just did the master bedroom. A. That is correct. Q. Okay. So you did the master bedroom and obviously we did see your fingerprint brush in that photograph. I guess my point is this: Either of you could have taken fingerprints or done a fingerprint examination of this room, you were both doing fingerprint work, correct? A. That's correct. Q. Okay. Now Sergeant Bowes has testified, now you're here testifying. Maybe I could put it to you this way: This room has a coat on the floor and a plant tipped over, correct? A. That's correct. Q. The rest of the house, aside from the master bedroom where Mr. Giroux is lying in the dining room, is quite neat and tidy. Now, would you say that this room in relation to the other rooms is at all unique given the way the objects are found, the way you found those objects when you entered that building on January 18th that has a uniqueness to it? A. Other than the coat being on the floor that was the only uniqueness about it. Q. So there was a coat on the floor and to you that did not suggest the possibility of a struggle. A. No, sir, it did not. Q. You see, because the thing is the -- I mean the coat is some distance from the closet so I don't think, and I think it's common sense to suggest that the coat didn't just fall off the hanger, slip off the hanger, correct?


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A. I don't even know if the coat was ever hung up, sir. Q. Exactly. You don't. We don't even know who the coat belongs to. A. That's correct. Q. It could belong to a friend, correct? A. Yes, sir. I have no idea who the owner of the coat is. Q. It could belong to a perpetrator. You don't seize that coat. A. No, sir. There was no identifying marks on the coat or anything in the coat. Q. There are certain things you can see with the naked eye and there are certain things you cannot, isn't that correct? A. Yes, sir. Q. Now, I mean there's a door jamb right near that coat, isn't there? A. Yes, sir. Q. There is a possibility that the person who that coat belonged to may have put their hands on that door jamb, is there not? A. There's a possibility that he did not. Q. That's right. So you've got to find out, but you didn't try to find out. A. No, sir, it was not done. Q. But you wouldn't agree with me that that was sloppy work. A. No, sir. Q. You felt comfortable and assured in the assumption that that coat belonged to Michel Giroux or Manon


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Bourdeau and was at a place where they would just leave things, I mean that wasn't anything that aroused your suspicion, right? A. That's correct, sir. Q. You were comfortable in that assumption even though you really couldn't -- you couldn't exclude the possibility that at this crime scene where two people have been murdered that that coat -- you couldn't exclude the possibility that that coat belonged to someone other than them, possibly the perpetrators, there was nothing you did that would exclude that possibility, correct? A. That would be correct, sir. Q. So, like the cigarette butt and the blood spatters that you didn't swab, there's no way of knowing that -- right? -- we don't have that coat? A. That's correct. Q. And that is as a result of decisions you made. A. Yes, sir, it is. Q. Okay. And you would still insist that the work you did at the crime scene was of a good quality. A. Yes, sir, it was. Q. Because, you know, there were pools of blood beside Manon Bourdeau and Michel Giroux, correct? A. That is correct, sir. Q. And as an Identification officer you would have to agree with me that pools of blood have a remarkable ability to attract hair and fibre, do they not? If there is any hair or fibre in the area, a pool of congealing blood is a very good sticky surface for those fibres to land on, -- right? -- hair and fibres? A. To land on?


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Q. Yes, they stick to it. THE COURT: He's not saying it's magnetism.

They're not drawn to it. MR. CRYSTAL: There's no attraction there. THE COURT: No, no. They'll stick to blood, okay? MR. CRYSTAL: They'll stick to blood. THE COURT: Okay.

MR. CRYSTAL: Okay.THE COURT: Do you agree with that?

THE WITNESS: Yes, sir.THE COURT: Okay. Good.

MR. CRYSTAL: Q. So, seeing as you have a -- you had a lot of blood in that house which may have had in it the fibre and/or hair of the perpetrator or perpetrators, you would have a very good source to match any hair or fibres found on that coat, correct? A. I'm not sure if I follow you. Q. All I'm saying is the perpetrators may have had hair or fibre on that coat. A. On which coat, sir? Q. The one right there. A. Okay. In the second bedroom, sir? Q. That's right, that blue coat. A. Yes, sir. Q. It may have belonged to a perpetrator. A. Okay, sir, it may have. Q. And we have all that blood in the master bedroom. What I'm saying to you, Officer, is there was an obvious opportunity to exclude that coat and I'm not saying -- I'm not coming in here and suggesting that it could've been


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that the perpetrator could've wore any of those coats in the closet, I'm not giving you pie-in-the-sky, I'm putting to you that a coat found on a floor in a room where a plant's been knocked over in a tidy house may have belonged to someone who committed those crimes. Isn't that a possibility? A. That is an assumption, sir, yes. Q. That's an assumption? A. Yes. Q. Did you even take a look at the size of the coat? A. To the best of my recollection, sir, yes, I did look at it and I searched it. It was a coat laying on the floor. I cannot remember the size. Q. Now, I'd like to ask you just to -- the temperature in the house as best as you recall was? A. It was normal, sir. Q. It was normal temperature. A. That's correct. Q. Do you recall whether you heard the furnace kicking in and kicking out while you were there? A. Yes, I did. Q. And how were you dressed, Officer? I understand you were wearing a police uniform. Were you wearing a coat while you were in the house? A. No, sir, I was not, I was just in my regular shirt and pants. Q. Were you wearing latex gloves? A. Yes, sir, I was at points in time. Q. And when were you wearing latex gloves? A. During the examinations of the fingerprint work, the collection of evidence but not when I'm doing the


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photography work. Q. Okay. Do you use tweezers? A. Yes, sir. Q. You had tweezers with you? A. To the best of my recollection, yes, sir, I did. Q. You mentioned fingerprints and I just wanted to ask you, in your opinion as someone who does finger-print work I understand that the way fingerprints are matched is by points of comparison; is that correct? A. That is correct, sir. Q. And though fingerprints may have several points of comparison which are similar, they may belong to two different individuals, correct? A. Referring to only one or two characteristics? Q. Well this is what I was moving to. Yes, if you want to start there. So different individuals may have one or two similar characteristics in terms of their fingerprints but obviously they're not the same person, the fingerprints belong to different individuals, correct? A. That is correct. Q. So they become sort of a threshold where one must reach in order to determine or come to the conclusion that fingerprints belong to the same individual and that would be after a certain number of points of comparison had been established, correct? A. That is correct, sir. Q. In your opinion and the way you conduct yourself, would it be fair to say that if you had eight points of comparison you're looking at the fingerprints of the same


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individual? A. Yes, sir. Q. And where do you draw the line? If I had six, if I came to you with two fingerprints and there were six points of comparison would you feel comfortable drawing the conclusion that that was likely the same individual? A. It depends on the types of points in the impression but, no, I would not be satisfied with six points. Q. Okay. So all things considered, and certainly I don't want to diminish the technology that is behind this form of identification, anything under eight points of comparison would draw your concern, is that what you're saying? A. Yes, sir. Q. Now I'd just like to move to some photographs of the vehicles and I just have a few very brief questions for you on this. These are the two vehicles at 1222 Queen Street and I think we can sort of see it there, 86, 87 and 88. This is 86 for my friend's benefit and your benefit, and in terms of snow accumulation can you comment on the difference between the two vehicles, if there in fact is any, the snow accumulation around the two vehicles? A. There's minimal snow accumulation around the vehicles, more so to the front of the garage. Q. But in that picture, which is photograph 87, there seems to be a little bit of snow accumulation behind the white vehicle? A. Yes, sir, there is. Q. Okay. And that doesn't seem to be behind -- the same emphasis doesn't seem to be behind the red vehicle. A. The Cordoba? No, sir, it is not.


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Q. So did you draw any conclusions from that? Can you draw any conclusions from that? A. No, sir, I did not. Q. So if I asked you what did that indicate to you, you would not be really able to say it indicates anything? A. That's correct. Q. I mean, I put it to you that it could be an indication that the red vehicle was driven some time after the snow accumulated and has just through its movements displaced the snow that may have been there. What do you think of that possibility? A. It's always a possibility, sir, and the persons owning that vehicle could've shovelled the snow away from the red vehicle and did not shovel the snow away from the white vehicle. That is a possibility. Q. And you were at that scene, correct? A. That's correct, sir. Q. And you really can't come to any type of conclusion one way or the other. A. In what regards, sir? Q. Why the fact that there is snow behind the Chevette and not behind the Cordoba. A. The snow may also have slid off the hatch- back of the Chevette onto the ground. No, sir, I never came to any conclusions on that aspect of it. Q. Why did you take that photograph? A. Showing the location of the vehicles, sir. Q. There are three shots basically that are all I guess about the location of the vehicles. A. That's correct, sir.


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Q. And, you know, we talked about your photogra-phy when we -- just briefly when I raised the issue of your fingerprint brush and your canister, remember when we were talking about the shot in the bedroom and the drawer we talked about this before, and I want to talk now about another photograph that you shot and it's 112, it's of the Laporte sign.

And, madam clerk, I'm going to be entering as exhibits these exhibits from an earlier proceeding and maybe I will do that now. I'll just show it to the officer.

Officer, I'm showing you a number of photographs. Do you recognize these photographs? A. Yes, sir, I do. Q. Yes. Now I guess the best way to do this is the photograph that is in this carousel exhibit, and it's photograph 112, this photograph is roll 8 frame 24 taken by you at some point in time in the past, correct? A. What is the roll number and the frame number again, sir? Q. Roll 8 frame 24. A. I don't believe so, sir. Q. Do you want to --- A. It would not be roll 8 number 24. Q. Okay. Well, of those photographs that you took, can you tell me which one this slide is? A. I believe it's roll 8 F-17, sir. Q. Roll 8 F-17.

A. M'hmm-hmm.Q. What I'd like to do is I'd like to enter all

five of these exhibits as photographs you took. You took these on January 15th, 1991?


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A. That is correct, sir. Q. Okay. And maybe I can just show them to the jury and they're just a number of photographs you've taken of the Laporte sign.

And maybe, ladies and gentlemen of the jury, I will just show them to you and you can take a look at them. This is a little complicated but, Officer, in your

photo book could you just tell me, you have roll 8-17 for 112, is that it? A. That is correct, sir. Q. Okay. Now while the jury is taking a look at that, Officer, that is roll 8 frame 17. Do you remember - we'll wait 'til the jury passes it around - but the question I have for you, maybe you can think back to it, is on January 15th, 1991 with regards to this photograph, what were your instructions first of all? A. To proceed out to Queen Street and photograph the Laporte sign during the daytime and the nighttime to show the sign and the lighting conditions. Q. The sign and the lighting conditions. And in terms of where the picture was to be taken from, were you given any instructions with regards to that? A. No, sir, I was not. Q. Now the photograph here, maybe you could just tell me, the photograph is taken at approximately what time? A. Approximately 1945 hours on the 15th. Q. And you were standing how far away, would you say, from the Laporte sign when you took this photograph?


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A. I'm not sure if I have that in my notes or not, sir. Just one moment, please. It would be approximately 25 metres, sir. Q. Now, would you agree with me first off that the distance from the base of that Hydro pole to the sign is about 30 feet? A. I'm not sure of the distance between the pole and the sign itself. Q. Were you not at all interested when you were taking a picture of that Laporte sign as to the distance of the light on the Hydro pole -- the distance between the light on the Hydro pole and the Laporte sign? A. It was not brought to my attention that that was required, no, sir. Q. And the distance from the house to the sign, do you know? A. No, sir, I did not note the distance. I estimated the distance to be approximately 70 feet. Q. Okay. I put it to you, Officer, that you should've known that because you were asked to take an accurate depiction of the lighting of the Laporte sign at that time of year at that time of night. A. And what would the --- Q. You should've known the distances. Would you agree or disagree? A. What was the purpose of knowing the distances between --- Q. Because you were trying to take an accurate picture of the Laporte sign and that Hydro light and that house light, you were trying to depict it as you saw it as accurately


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as possible when you were photographing, you were trying to take an accurate photograph. A. Yes, sir. Q. Okay. So the distances would have been relevant because you don't want things to appear differently than they actually are, so you'd like to know the distances. You're disagreeing with me. A. I'm not sure if I follow you, sir, no.

Q. Okay. A. You're saying that I should've measured the

sign and the Hydro pole and the light stand and the light in the back. Q. That's right. I'm saying ---

A. I was not aware ---Q. --- they would've assisted.

A. I was not aware that that was required. II took a photograph as a series of photographs on the 15th of January. Q. And that's what the jury has right now, the jury is holding the photographs that you took that night. A. Yes, sir. Q. That series. A. Yes, sir. Q. Okay. And maybe I could just have those photographs back. I'll enter them as an exhibit.

MR. CRYSTAL: Madam clerk, maybe I could enter this as an exhibit.

THE REGISTRAR: Exhibit number 71, Your Honour. THE COURT: Exhibit 71.

EXHIBIT NO. 71: Six photographs of Laporte sign (nighttime)


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MR. CRYSTAL:


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Q. I'd like to show you the exhibit, the series of photographs and maybe we could approach it this way. Could you - thank you, madam clerk - could you, Officer, tell me of those photographs which one most accurately depicts what you observed on January 15th, 1991 at some time after 1700 hours? A. They all depict what I saw on the 15th of January. Q. They all depict what you saw, and you don't actually remember the conditions of that particular evening, do you? A. What do you mean by the particular conditions? Q. Well because you're not able to tell me of those photographs which one most accurately depicts the lighting of that Laporte sign that night. A. They all depict the lighting in the photographs, sir, of the Laporte sign. Q. Okay. You have your own eyes. A. Yes, sir. Q. And you had an opportunity on that evening to look at the Laporte sign, right? A. That is correct, sir, yes. Q. The photograph, you would agree with me, any photograph it is not as accurate as the way the human eye sees an object, isn't that correct? A. No, sir. Q. So of those photographs which one comes closest to what you actually saw? A. They all depict what was there.


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Q. Sure. There's no argument with that. Which one does it best? A. Out of these six that you've produced in front of me, is that correct? Q. Yes. Maybe to assist you, Officer, they show different exposures, do they not? A. Yes they were, sir. Q. And I guess obviously you saw -- well, you're holding a photograph there. I guess you've sort of decided, you have a choice? A. It's the photograph that I feel that does depict the scene. Again, they all depict the lighting at that location. Q. But the one that does it best, the one you're holding there, you've chosen a picture. Why don't you tell us which roll and which frame you've chosen? A. I believe it's roll 8 F-24. Q. Roll 8 F-24. So let's take roll 8 F-24 part of --- this is exhibit number? THE REGISTRAR: 71.

MR. CRYSTAL: 71. Let me just show this to the jury again and I'll just take these. Just put them off to the side here.

Q. Okay. Now just to clarify and this is a very -- I apologize if I'm not as -- I'm doing this in a bit of a clumsy fashion but it's a bit technical. I don't want to make a mistake here, but the photograph that is in the carousel was not chosen by you as being the most accurate because the one in the carousel that's roll 8 frame 17, isn't that correct? A. That's correct, sir.


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Q. And the reason why roll 8 frame 17 was not chosen by you as the most accurate, what was the basis for that conclusion, that decision, that choice? How does roll 8 -- okay, how does roll 8 frame 17 differ than roll 8 frame 24, which the jury has, in terms of what you viewed that night, why was roll 8 frame 17 not your choice in terms of accuracy? A. I think with the colour lab the colour of the photograph is not that accurate as a nighttime shot. Q. Okay. So the colouring of the photograph is not as accurate in frame 17 as it is in roll 8 frame 24 A. Correct.

MR. CRYSTAL: And let me just pass that around, if I could.

Q. Now I'd like to move to daytime shots. I want to tell you exactly where I'm going with this, Officer, because I put it to you that the Laporte sign in that photograph, and we're looking at frame 17 roll 8, is an optical illusion showing a much brighter and well lit depiction of the Laporte sign than actually exists. Would you agree with that or not? A. It is a representation of the lighting conditions of roll 8 F-17 which is consistent with the other photographs that I had taken on that night. Q. Before I move to showing you the various daytime shots, the distances of that Hydro pole light and the light on that house and the position of that house, before I move to that I would like to ask you whether or not you would agree with me, and this is a proposition I'm putting to you and I admit it is technical and I don't want to confuse you, but my proposition to you is that that sign in that picture is an optical illusion, it looks that the -- if you were to see that


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sign at nighttime it would not appear anywhere near as bright as it does in that photograph. Agree or disagree? A. Again that would be to an individual's perspective as to whether it's an optical illusion or not. Q. Okay. Well let's work through the elements of that photograph, okay? Let's do that and sort of look at where things actually are as best we can because before I ask you questions about this I want to tell you that I will be putting to you that in that photograph for example the Hydro pole looks much closer to the Laporte sign than actually is the case, and I would ask you first I guess would you agree or disagree with that proposition that in that photograph the Hydro pole, the light coming from that Hydro pole looks much closer to the sign than actually is the case? Agree or disagree with that? A. That the Hydro light looks much closer to the sign than it actually is? Q. Yes. A. No, sir, I would not say that it looks like it's closer. Q. I just want to be very clear about this, Officer, and I don't want to mislead you, so just bear with me. Now, Officer, I want to show you a photograph, and we'll have it entered as an exhibit, I'd first ask you if you can recognize this photograph, tell me what's on that photograph. A. Yes, sir, this is a photograph taken on the 15th of January '91 and I would be to the west of the two Laporte signs standing in the middle of the road and I'm facing to the east.


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Q. Now the Hydro pole that appears in roll 8 F-17, does that Hydro pole appear in this photograph? A. In this one here, sir? Q. Yes. A. Yes, sir, it does. Q. Okay. And can you tell me if, based on your recollection and looking at that photograph what you would -- you were there and you took that photograph, what you would actually estimate the distance to be between the Laporte sign and that Hydro pole? A. From this photograph here. Q. Yes. A. Estimate the distance. Q. And also from the fact you were there. A. I would estimate anywhere between 30 and 40 feet. Q. Thirty and 40 feet? A. Yes, sir. MR. CRYSTAL: Maybe I can have that introduced as

an exhibit. THE REGISTRAR: Exhibit number 72, Your Honour.

EXHIBIT NO. 72: Photograph of Laporte sign (daytime)

MR. CRYSTAL: Now I'd just like to have that shown to the jury. Members of the jury, this is Exhibit 72, a daytime shot.Madam clerk I believe these are the remaining two photographs. Okay. These go with that as well.

THE REGISTRAR: Thank you. MR. CRYSTAL:


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Q. I guess what I'm getting at, then, and I know this isn't very smooth but I guess my point is that - the jury is now looking at the exhibit of the daytime shot - in this photo-graph the pole with -- the Hydro pole with the light in this photograph, I put it to you it looks much closer to that actual Laporte sign than it actually is in the daytime shot. Would you agree? A. You're looking at two different perspectives from --- Q. Exactly. A. --- roll 8 frame 4 and roll 8 frame 17. Q. Exactly. A. Two different locations on the road, and one is on the road and one is on the shoulder from a different distance. Q. And do you know why you were asked and the relevance of this particular -- this particular sign in this particular case, were you told anything about that? A. No, sir, I was not.

MR. CRYSTAL: If I might just have the Court's indulgence.

Q. I guess the thing is that we can say it this way: You have actually just told us that the photographs look very different because they're from two different perspectives, are they not? A. Yes, sir, they are. Q. Okay. The photograph of the daylight -- the daylight photograph, I'm sorry, of the pole is taken from which perspective, just to clarify it? A. You're further back to the west of the Laporte signs and you're on the south shoulder or in the middle


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of the roadway of Queen Street. Q. Okay. And you were -- in this picture where were you in terms of the road? A. I was standing on the north shoulder of Queen Street. Q. Okay. Very good. Now, another thing that we sort of notice, and this goes back to the optical illusion, is the house. The house in this photograph behind the Laporte sign at night, can you tell whether or not it has a light on in that photograph, can you tell whether or not the house behind the Laporte sign has a light on? A. The house itself. Q. Yes, the house itself. A. Yes, sir. Q. And isn't it fair ---

THE COURT: You keep using the phrase optical illusion, counsel, and I'm assuming you're not using that in any technical sense, you mean just the optics are illusory.

MR. CRYSTAL: Exactly.THE COURT: Okay. You're not trying to say this is not like magnetic hill near Moncton where you're going uphill when you're really going downhill and so on. It's not that kind of optical illusion.

MR. CRYSTAL: No. THE COURT: Okay. I'm just trying to get it

clear. Okay. MR. CRYSTAL:


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Q. But what I do want to ask you about is the house in this particular picture, this nighttime photograph, looks as if the A frame, let's say it had an A frame, you know, I don't know houses that well but it has sort of a peaked roof, does it not? A. Yes, sir, it does. Q. It's not an A frame but it has that sort of peaked roof and it looks almost as if from this point, from the point you took that photograph, your vantage point, it almost looks as if the middle of or the peak in that roof has a light on it and it looks like it's almost very close or almost directly above that Laporte sign; is that correct? A. Yes, sir. Q. From your shot. But that actually is not the case in reality, isn't that true? It doesn't -- it isn't lined up that way with that sign. A. No, sir, it is not. It depends where you stand and where you are for your perspective. Q. Yeah. Okay. So why don't we take a look at this photograph and maybe you can identify it as a photograph you would've taken. A. Yes, sir, this is the photograph that I took on the 15th of January, 1991. Q. And could you say something about the picture itself, what is it a picture of? A. Yes, sir. I'm on the south side of Queen Street in a driveway that goes to the south of Queen and I'm facing to the northeast showing the two Laporte signs, the driveway to the Laporte sign and the house and the Hydro pole.


1271

Q. How far away is that house, from your own recollection and from looking at that picture, how far do you recollect that house being from the Laporte sign? A. Approximately 70 feet. Q. Seventy feet? Would you give a range or you're just saying 70 feet? A. I'm just approximating. It could be 70 to 80 feet. Q. Okay. As opposed to 60 to 70 feet, right? A. It could be 60 to 70 or 60 to 80, I mean it was never measured. Q. I know, but I mean ---

MR. CRYSTAL: Maybe I should just have this entered as an exhibit.

THE REGISTRAR: Exhibit number 73, Your Honour. EXHIBIT NO. 73: Photograph of Laporte sign

(daytime)

MR. CRYSTAL: Q. I mean, you know, I don't want to be difficult but you do a lot of measuring in your job -- right? -- as an Ident. officer? A. To a certain extent, yes, sir. Q. So I suspect you've become quite good at it. A. Using tape measures, yes, sir. Q. Yeah.

A. Yeah.Q. And you probably have a pretty good eye.

A. Yes, sir. Q. So when you look at that photograph and your recollection, what's your best estimate? A. Approximately 70 feet, sir.


1271

Q. Okay. I want the jury to see this. Thank you, madam clerk.

Now perspective, I think you would agree with me, is everything in a photograph, is it not? A. Yes, sir, it is. Q. And given the various degrees of sophisti-cation of a camera, you can make things appear -- well, let me show you where I'm going. If I wanted to, okay?, if I wanted to go out to this scene, okay?, where you were with a camera at night, okay?, and I'm not saying you're an expert photographer but I mean you do deal with a lot of photography in your job, if you wanted to go out to this scene at night and show that Laporte sign in its best possible light, meaning to say as light as possible, not using a flash but let's say given the natural light around, using the light in that environment you could take a photograph and line up the lighting in such a way as to make it much brighter than it would actually appear if one were just walking by that sign at night, isn't that correct? A. Depending on your exposure, yes, sir. Q. Sure. And we do know - and if I could have that exhibit of five pictures back again. THE REGISTRAR: Exhibit 71, Your Honour. MR. CRYSTAL: Thank you. Q. We do know that on the night in question - I'm just looking through these - we do know on the night in question that you took photographs of varying degree of exposures, that's one of the things you told me before, correct? A. That is correct, sir.


1271

Q. And you told me that the photograph in the carousel, frame 17 roll 8, wasn't as accurate, for whatever reason, as accurate as frame 24 roll 8, correct? A. That is correct, sir. Q. Okay. Now, Officer, I want to put this proposition to you and you can tell me whether you agree or disagree and maybe I'll give you a moment to think about your instructions that you were given when you were asked to go out and take a photograph. I put it to you, Officer, that on Janu- ary 15th, 1991 you were asked to go out to Queen Road in Cum- berland and take a photograph in the evening of a Laporte Nursery sign, and in addition to those instructions you were told to photograph that sign in its best possible light, and I can clarify by making myself clear, I will say that you were asked to take a photograph that would show the Laporte sign to be as bright as possible. A. No, sir, I was not asked that. Q. You don't even have to think about it? A. No, sir, I do not have to think about it. Q. Did you take any photographs of that La- porte sign from the south side of the road that night? A. No, sir, I did not. Q. You know, because both photographs, those daytime photographs that the jury has seen have been photographs that have shown the house facing closer to the road and in your estimation 70 feet back, and a Hydro pole 30 feet back, correct? A. That's correct. Q. And even here, in this photograph right here, we can see that -- you can see that that is really the spot that the light has fallen on from the Hydro pole and that


1271

that, and I'm no expert and there'd have to be expert evidence, but that is possibly any light that is looking at that sign or is moving towards that sign may very well have been a reflection off the snow. My point is simply this, Officer, that from where you were you photographed the Laporte sign in a situation that would show it to be as bright as it could be. A. No, sir, I did not. Q. Because --- Well, okay, you did not, but I put it to you that you took no shots of that Laporte sign from the south side of the road, shots that showed that house facing out to the road, showed the actual distance of that Hydro pole, you didn't take those shots. A. No, sir, I did not. Q. Why not? A. Because for my officer's safety I stayed on the north side of the shoulder because there was traffic going by and I had no one stopping traffic for me. Q. You were concerned about your safety? A. Yes, sir, I was. Q. And that ---

A. It was dark.Q. Sorry.

A. It was dark out, I only had one vehicle with its emergency flashers going and I did not want to ob- struct traffic in any way and that is the reason why I took it from the north shoulder, sir.

Q. All right.MR. CRYSTAL: Maybe we could just continue after the lunch break, Your Honour.

THE COURT: Yes. Thank you. The usual time every-

body.


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--- Whereupon the jury retired at 1:00 p.m.


1271

--- In the absence of the juryMS. BAIR: Your Honour, just before you leave, please, --- THE COURT: Oh, I'm sorry.MS. BAIR: I've been dealing with the wrath of the next pathologist ---

THE COURT: Yes.MS. BAIR: --- who initially was told he would be on at 10:00 o'clock this morning and told last night it wouldn't be until noon and has been cooling his heels ever since. I'm hopeful that we can get him on at 2:15 but I don't know, I mean I haven't spoken to even Mr. Dandyk about this, certainly I haven't to Sergeant Payne, I know he'd be thrilled with the news, but does anybody have any assistance to offer me here?MS. MULLIGAN: Well, Your Honour, I can indicate that when Doctor Silver's name was raised yesterday afternoon we tried to be as helpful as we could to accommodate him by saying at least noon, we didn't want to say -- to extend it too much fur-ther in case the Crown didn't have the witness here and we didn't want to be the cause of that, but it appears that Mr. Mr. Crystal will be at least another half an hour or 45 minutes and we would like -- I mean, this officer has already been interrupted once, we would like to finish him in his entirety before we interrupt him again to call another doctor to accommodate the doctor. We've done what we can to accommodate him. It's only, as I say,


1276

another half an hour or 45 minutes that he'll have to cool his heels, and we certainly would prefer not to interrupt this witness again in his cross.MR. MORRIS: I would agree with Ms. Mulligan, Your Honour. I'm interested in what this officer has to say at this point and it seems to be less confusing or less likely to get lost in the shuffle from the jury's perspective if he's dealt with in one shot as much as possible.MS. BAIR: The doctor is available then for the rest of today and tomorrow, he's not available at all on Thursday and Friday, so we might want to factor that into the potential interruptions in all of this.

I might put on the record then perhaps we should start objecting to relevance at this line of questioning. I've been here for some time and the questioning as to whether it's 15 feet or 25 feet or an optical illusion are irrelevant questions to the ultimate issues. The witness may not know the purpose of the photographs but my friends do and they therefore know it's irrelevant, so maybe we could deal with them more quickly by sticking to relevant matters.THE COURT: Well nothing was raised about relevancy until this very moment, but it seems to me that some people say especially in civil negligence cases hell hath no fury like a doctor scorned.

MS. BAIR: I've vacated my office.


1276

MS. MULLIGAN: Your Honour, I can advise that unless Ms. Bair anticipates being more than a day with the doctor, I don't anticipate being no more than half a day, so his time that he has available between today and tomorrow I would think, bearing in mind anything that Mr. Morris might tell me differently, should complete Doctor Silver's evidence. I wasn't very long with Doctor Johnston and I don't plan on being even that long with Doctor Silver. MR. MORRIS: I wouldn't expect to be any longer with Doctor Silver than I was with Doctor John- ston, Your Honour.MS. BAIR: I have some faith in Mr. Morris' estimates but as for the others they've been notoriously wrong every time, all of us, the Crown and the defence, but I don't know.THE COURT: Well, I think I'd like to get rid of the pathologist. Let's call him at 2:15. I mean I don't know, no one's asked the Crown about re-examination, how long the Crown might be either. MR. DANDYK: I don't expect to be that long but still I mean I'll have some questions that's exactly it and if we're running into time that does give a concern as to the pathologist, he's not available. I mean that's a serious concern.THE COURT: Brevity, Mr. Dandyk, it's not your strong suit but we always like to hear your questions.

MR. DANDYK: I'm sorry, I didn't think before I spoke.


1276

MS. MULLIGAN: I wonder if there was maybe a compro-mise position since Your Honour is inclined to have the pathologist called. Mr. Crystal is in the middle of an issue on the photographs, and whether Ms. Bair thinks it's relevant or not Mr. Dandyk had no objections and we'd certainly be prepared to argue the relevance with him if that's an issue but he certainly hasn't objected up to this point and he's been here the whole time and would be able to be in a better position to understand where it fits in. THE COURT: Yes. All right. Fine.MS. MULLIGAN: But I would like to -- I think we'd like to at least finish that issue as to these night photographs, it would take another probably four questions to finish up, so that we're not then in a position of coming back two days from now and saying "and furthermore", at least finish that issue, I would hope that we would be able to do that in the four questions.THE COURT: And am I allowed to go 1, 2, 3, 4?MS. MULLIGAN: Four or five questions but it would -- it's just the one issue. Rather than to not be able to finish the issue there's a point in the midst being made and I think it's prejudicial to Mr. Stewart to have to continue making that point or review it and go over areas that maybe don't need to be gone over the next time.THE COURT: All right, but I'm going to ride roughshod over how long it takes. I'm not to


1276

take that as the thin edge of the wedge and say,

you know, and go on and on and on so be succinct,

Mr. Crystal.

We'll hear the pathologist after that.

--- Whereupon court recessed at 1:06 p.m.

* * * * * * * *


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--- Upon resuming at 2:25 p.m.

--- Accused present

RANDALL DAVID PAYNE, resumes on the stand THE COURT: Yes, Mr. Crystal?

MR. CRYSTAL: Yes.

CROSS-EXAMINATION (continued) BY MR. CRYSTAL:

Q. Now, Constable Payne, I just have a few more

questions for you and another witness is going to be coming in but

I just want to give the jury Exhibit 71 which is the nighttime

shots you took and then the two exhibits which are 72 and 73. I

just have a few more questions for you and I think when we broke

for the lunch break you were telling us that this picture had been

taken from the north shoulder; is that correct? A. That is correct, sir. Q. Okay. You did not take a picture from the south shoulder at night when you went out there January 15th, 1991 because of safety concerns? A. That is correct. Q. Now, you would agree with me that if you were driving down Queen Street going east towards Cumberland Village you would be on the south side of Queen Street; is that correct? A. That is correct. Q. Okay. And you have agreed with me in the past that perspective is everything in a photograph. A. That is correct, sir. Q. And we have the daytime photographs, 73 and 74, which sort of show what these objects, the house and the

PAYNE, cr-ex

(Crystal)

1282

Hydro lamp, looked like and their actual distances if you are approaching on the south side. A. At that particular point. Q. Yes. And so I would ask you whether or not you would agree with me that the perspective one would have of that Laporte sign would differ if you were travelling into Cum- berland Village on the south side that evening or any evening for that matter.

A. As you're driving along Queen Street on the south side the perspective would continually change.

Q. That's right. A. Yes. Q. And so what appears to be a very well lit sign from the north side of the shoulder may not look anything like that from the south side of the shoulder where you might very well see the pole being at quite a distance off and the house quite a distance off, isn't that correct? A. Yes, your perspective would change as you're travelling eastbound. Q. That's right. And my friend when he was asking you questions about the light above the Laporte sign, do you remember from time to time my friend would say there was a light above the Laporte sign? A. The appearance of a light above. Q. Well that's exactly it. There is no light above -- directly above the Laporte sign, is there? A. No, sir, there is not. Q. From the north shoulder on January 15th, 1991 from where you were standing I guess you might say there's a possibility that you could see a light above the Laporte sign; is that correct?

PAYNE, cr-ex

(Crystal)

1282

A. In that perspective, yes, sir. Q. In that perspective there, does that look like a light is attached to the Laporte sign? A. No, sir, it does not. Q. From anywhere you stood on the north side that night, could it look like there was a light attached to the top of that Laporte sign, from what you observed? A. From any angle? Q. Yeah. A. I don't believe so, sir, no. Q. Okay. So my point to you is if you would agree with me, and I'm going to sort of bring it to a conclusion, but you would agree with me I take it that as you move to the north side from where you are, the lights and the objects emitting light seem to be closer to that Laporte sign almost giving it that very, you know, giving it a degree of brightness, quite a degree of brightness, right? Things appear closer, the sources of light appear closer to that Laporte sign. A. I would not say that they appeared closer. There is no indication of a light being on the sign itself. Q. On that north side. A. On the north side.

Q. Okay. Maybe I can work it this way. When - this is what I'm getting at - when you move to the south side of the street, and I understand you didn't take any pictures there that night, but you did take daylight pictures from the south side, right? Exhibit 73 and 74. A. Yes, sir. Q. Actually when you move to the south side, once I go over here, once I take the shots from over here

PAYNE, cr-ex

(Crystal)

1282

actually what happens is the house looks 60 feet away and the pole looks 30 feet away and those objects are seen in a much different perspective or relation to the Laporte sign, aren't they? A. Yes, sir, your perspective has changed. Q. And if anything the house which looks pretty close here, that's what I was talking about before, the peak is right over the sign from the north side. You'd have to agree with me looking at Exhibit 73 and 74 it would certainly -- the light would certainly look to be much further away from the sign because you would see that house and it's sort of facing the road practically, right? A. I'm not sure if it would look like it would be further away but it would definitely appear different ---

Q. Yes.A. --- due to your perspective has changed.

Q. And from your observations there is no possibility that someone driving down South Street (sic) looking at the house from South Street (sic), given the way this whole layout exists, would think that that light on that house was attached to that sign, hardly unlikely, isn't it? If you were driving going into Cumberland Village driving east on the south side seeing the house, as we have it in Exhibit 73 and ---

MR. DANDYK: Just before the witness answers, I have no difficulty if the witness answers what he saw but what someone else may see is a whole different question.

MR. CRYSTAL:

PAYNE, cr-ex

(Crystal)

1282

Q. From what you observed driving southbound, is it -- I guess what I want to ask you is, would anybody, from what you observed or do you think you could confuse ---

THE COURT: It's impossible for anybody to answer for anybody, somebody, me, counsel, the accused, anybody. I mean you realize that right away.

MR. CRYSTAL: Yeah.THE COURT: You can ask the witness what the witness saw. That was the whole point of the objection.MR. CRYSTAL: I realize it calls for a speculative answer, Your Honour.THE COURT: So you're withdrawing the question --- MR. CRYSTAL: I am withdrawing the question. THE COURT: --- as they do on television.

MR. CRYSTAL: I do. THE COURT: Okay. That's silly. MR. CRYSTAL: Q. The point is if you're driving southbound looking at the position of the house behind that sign and that position of that pole, did it look to you as if that light on that house could possibly be attached to that sign? A. When I viewed it, no, I did not think it was attached to the sign, but as you are travelling eastbound in the southbound lane at some point in time this perspective will appear as you're driving eastbound. Because you're driving from the furthest west end and you're passing the sign your perspective is going to change on a constant basis.

PAYNE, cr-ex

(Crystal)

1282

Q. And that is an assumption you draw. You did not take a picture of that. A. No, I drove the route. Q. You drove the route. A. Yes, sir. Q. You were asked to that a picture of the Laporte sign in front of the sign, you took it from the north shoulder, not the south shoulder. A. That is correct. Q. And you're assuming now, looking at that picture, looking at that picture, that if you were driving down the south -- if you were driving east in the south lane that that perspective would appear, that's what you're assuming. A. At a point in time, yes. Q. At a point in time. But you have not taken a picture of that, it's just an assumption that you would suggest. A. Yes, sir.

MR. CRYSTAL: Those are all the questions I have right now. I understand we'll be starting up at some later point.THE COURT: Yes.

Thank you, sir, we'll see you later when we will conclude. Thank you for your cooperation.MS. BAIR: The next witness, Your Honour, is Doctor Stephen Silver and for the jury's edification we've interrupted Sergeant Payne yet again to get in some medical evidence.

PAYNE, cr-ex

(Crystal)

1282

--- Upon resuming at 2:15 p.m.

--- Accused present

--- In the absence of the juryMR. DANDYK: If we could wait a moment. There may be an argument about the photograph, if there's only four questions this may be the time to make it.MS. BAIR: Sorry, Your Honour, in dealing with Doctor Silver I would like him to explain the direction that the shot travelled through the head of Manon Bourdeau and I gave him the autopsy photographs, this is the one he chose as the most accurate depiction of the trajectory and the one he would prefer to use. I anticipated that that might meet with a little bit of objection. It also shows, however, the degree to which her skull was basically blown apart, so it would be useful. I'm indicating that I am not, however, seeking to use that photograph. This one, however, I am seeking to use. The question that I would seek to ask is assuming that her head is in the position that is shown in that photograph at the time that she's discovered in the room, which we can't see in any of the room photographs, that's what I was looking for initially, then can you tell us first of all whether the shot goes basically straight down or describe which way it goes and ultimately I expect that he will be able to say that it's consistent with someone standing just above her on the bed on a slight angle down through that hole, straight to the floor.


1288

THE COURT: Of course he could describe the other information he has without showing the picture too.

MS. BAIR: Absolutely, but I mean ---THE COURT: That's part of his information is all I'm saying.

MS. BAIR: And he will. THE COURT: M'hmm-hmm.

MS. BAIR: But I want the jury to understand how it relates to the way she was found at the scene.

THE COURT: M'hmm-hmm.MS. BAIR: And it's really, I mean I don't know that the Court needs to see the rest of the photographs, it's really the least graphic and disturbing of all the possibilities and there are a number of possibilities.

THE COURT: M'hmm-hmm. All right.MS. BAIR: The only other photograph that I'm going to be using is one that we used the last time which the Court can probably see from here, it's cropped and it shows a Band-Aid on her finger.

THE COURT: Yes. All right.MS. MULLIGAN: If I might, Your Honour, the cropped photo is not a problem, it is the other photo that is concerning me, and Ms. Bair is right, it's the least graphic but it still shows a gaping hole into Manon Bourdeau's brain and in my submission it's troublesome to be putting that before the jury, it's potentially inflammatory and difficult with the jury.


1288

There is no reason for the purpose that Ms. Bair states is that the doctor can't look at the photo-graph of where she was found at the scene, relate it back to his findings and say based on what I see at the scene it would appear to me the trajectory that I saw would be someone standing over top of her on the bed, as Ms. Bair says, and aiming almost directly straight down assuming she was shot in that position that I see on the screen. There's no need to put this other gaping hole before the jury, in my submission, and there won't be, as far as trajectory goes there, won't be any challenge to that that I'm aware of either through Mr. McKechnie or myself, so it's not a situation where he's going to be extensively cross-examined and the other photo may help him. There's no question there's a trajectory that seems to run from the back to the front and that's clear if we look at some of the other pictures that aren't going in because there's a fair bit of discolouration at the front of Ms. Bourdeau's face, so that won't be challenged. So I would submit that the photo of the scene showing where she's found, he can use that to say the wound is right behind the left ear, which he said at the last trial, he said the trajectory appeared to be from back to front and he can describe that again and then explain that if she was shot in that position it would be someone standing over her or standing on the bed over her. I don't see why we


1288

need the gaping hole for her to do that. THE COURT: Yes, Mr. McKechnie?

MR. McKECHNIE: The issue in these photos is gen-erally the prejudice, whether or not it outweighs the probative value. There is no probative value in the photograph itself, it's something that the witness, Doctor Silver, can describe. And above and beyond that it's not an important issue as far as we are concerned in this trial, and it's something that can be explained easily in words and the photographs contribute nothing to the words that the witness could use in order to describe what happened, it's a very simple issue and not conten-tious, and therefore it is not a necessary piece of evidence.

THE COURT: All right.MR. DANDYK: Your Honour, if I might reply briefly. THE COURT: Yes.MR. DANDYK: Inflammatory appears to be similar to prejudicial to that issue, however the important thing to remember in relation to expert evidence is juries are told that the evidence of an expert may be accepted or not, and if counsel say it isn't an issue well it already is an issue both as to a very clear actual illustration of a cleaned up wound in fact which, with respect, is therefore not inflammatory or prejudicial because it clearly definitively illustrates what the evidence is, so if there's any question of the jury accept-


1288

ing or not accepting the testimony of a witness we have a clear actual very definitive cleaned up picture of what the injury is.

And the further thing which arises in the other evidence is the issue that they're making of spatter on the pillow and so on, and for later evidence it becomes important therefore as to the spread and so on and for instance spatter on the pillow or spatter on the surrounding area, and therefore it's in actual fact even more important for that issue as well. I'm having some difficulty here. Counsel is saying just by saying and labelling it inflammatory and prejudicial. With respect, it's not. It isn't a situation of a body that has been -- supposedly the skull pulled back or the skin pulled back and organs showing. It is something that shows the actual injury and it's necessary for that illustration and as I've said now for a number of reasons.

Subject to further questions, those are the comments I would make.THE COURT: I think for considerations of the splat-ter evidence I think maybe it can go in, I think the jury will have to see the pictures, they have the value of bringing home to them exactly how forceful and penetrating the shot was and I think it is more probative than prejudicial on balance and therefore I would let it in.


1288

MS. BAIR: Thank you, Your Honour.MR. DANDYK: For ease of convenience we have

selected the slide, it will be proposed for

everyone's purposes so we don't add carousels. It

will be added to the Cadillac set of slides, we

have a number of Cadillac slides 39 to 58, and if

it can be added to that, I suppose we could even

make it I suppose 59 or we can add it to this one.

Okay. I believe it's 117. In fact I'll check. If I

might have a moment. Yes, that's true, it can then

be 117, that might be easier.

Apparently, additional ones that have been used before, of which there is no issue, are apparently 117 and 118, so this is 119 I'm told.

MS. BAIR: I'll just make sure it's right.

Thank you.


I guess we'll have the jury in now. We can proceed

with Sergeant Payne to conclude this issue.I wonder if counsel would object terribly if Doctor Silver sat at the back so we'd be all set to go soon. Does counsel object?MS. BAIR: He's right outside the door but I'll bring him right inside the door.THE COURT: Oh, all right. If he's right outside the door ---MS. BAIR: That's where I left him.THE COURT: --- we can get him right away because I


1288

don't want to take a break.


1288

STEPHEN STANLEY SILVER, sworn MS. BAIR: Just while the doctor is getting his notes and things out, Your Honour, I will be seeking once again to have Doctor Silver qualified as an expert in the field of pathology.


EXAMINATION-IN-CHIEF BY MS. BAIR:

Q. I'm providing to you what you just provided to

me, sir, which is copy of your curriculum vitae. I'd like to go

through that, if we could, with the jury. A. Thank you. Q. It would appear, sir, you did your elementary and high school education in Toronto; is that right? A. That's correct. Q. And stayed in Toronto for university for four years, from '64 to '68. You did a Bachelor of Science? A. Correct. Q. In Biological and Medical Sciences. A. That's correct. Q. Which I understand was an Honours Science course oriented towards medical research? A. That's correct. Q. And you went directly from that four-year program to your medical degree still at the University of Toronto. A. That's correct. Q. As part of your medical education you did some clerkship, a clerkship, I should say, at Women's College Hospital? A. That's correct.

DR. SILVER, in-chf(Bair)

1332

Q. And a junior rotating internship at Toronto East General and Orthopaedic Hospital. A. That's correct. Q. In Toronto. At that point, sir, you got out of the city, it would appear? A. Yes. Q. You went and did eight years of general practice in North Bay. A. That's correct. Q. You were, while you were doing your medical practice in North Bay, also a Medical Surgical Consultant at the North Bay Psychiatric Hospital; is that right? A. That's correct. Q. And then after your eight years in North Bay you went back to school? A. That's correct. Q. And at that point you took some post-gradu- ate medical education in, first of all, Laboratory Medicine (Pathology) from July of '80 to June of 1984. A. That's correct. Q. You were a Resident at the University of Ottawa? A. That's correct. Q. And then the next thing you're going to have to say, what's that? A. A Fellow in Immunohematopathology and that's equivalent to blood banking, transfusion medicine. Q. What does Fellow mean, to be a Fellow in that? A. It means additional training under supervi-sion, time for learning, studying and working at the same time.


1332

Q. So that was after your four years of spe-cialization then you went for one and a half years to become a Fellow in Immunohematopathology. A. That's correct. Q. And subsequent to that, sir, from January of '86, immediately subsequent to that, for six months you did some more training and became a Fellow in Pathology at the Ottawa Civic Hospital? A. That's correct. Q. Would you -- how would you describe your postgraduate medical education, was it sort of a double spe- cialty? A. That's correct. Q. And that's blood banking and pathology? A. And pathology. Q. Okay. In terms of your professional practice, sir, you were a Deputy Medical Director at the Ottawa Centre of the Canadian Red Cross Blood Transfusion Service for six months in 1986? A. That's correct. Q. Acting Assistant Chief of Laboratories at the National Defence Medical Centre for two years? A. That's correct. Q. From '87 to '89. And after that, well it's actually not after that, it's at the same time you were a part- time permanent Pathologist at the Ottawa General Hospital from January '87 to March of '89; is that right? A. That's correct. Q. And then Associate Pathologist at the Riverside Hospital of Ottawa from '89 to '94. A. That's correct.


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Q. Now this c.v. that we have is not current to date; is that right? A. That's correct. Q. It was current in 1995? A. That's right. Q. And we called on you too quickly to update it. Could you tell us, well I think we should work through it historically, then, are you still, sir, a clinical lecturer in the Department of Pathology at Ottawa U.? A. That's correct, yes. Q. The next two things, Chief of Laboratory Services at the Riverside Hospital and Chief of the Division of Anatomic Pathology at the Riverside Hospital, what would you say about those two titles in the current state of flux that our hospitals are in in Ottawa? A. Well as of April of this year the Riverside and the Civic Hospital and the General Hospital have been amal- gamated into the Ottawa Hospital, and as of this past month a Chief of Laboratory Services for all of the sites has been chosen in the person of Doctor Jean Michaud who is the Professor of Pathology at the University of Ottawa, he's the chairman of the department, and he's also the Chief of Laboratory Services at the Children's Hospital, so I'm no longer the Chief of Laboratory Services at the Riverside Hospital. He hasn't yet decided what type of governance structure he would have the pathologists working under and hasn't made an official designation so I'm basically in limbo at this point. Q. And you're not the only one in limbo in the system, are you, sir? A. Well I think we all are, all the pathologists working there.


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Q. Is it fair to describe your position right now today as the Acting Chief? A. Yes, that's correct, at the Riverside site. Q. At the Riverside site of whatever the ---

A. Of the Ottawa Hospital. Q. All right. He hasn't taken over the acting

position as yet Mr. Michaud. A. No, he's said just carry on with what you're doing, so that's --- Q. Business as usual. A. Business as usual, yes. Q. It says you're the Acting chief then of the Division of Anatomic Pathology, is that something different from forensic pathology? A. Forensic pathology can fall under the aus- pices -- the cover of anatomic pathology, it could be a subspe- pecialty of it. Q. So you've done both. A. Yes. Q. So you've dealt with autopsies in relation to suspected murders, you've also done other sorts of autopsies. A. Yes, that's right. In Ontario the -- in Canada there isn't a designated degree from the Royal College of Physicians and Surgeons for forensic pathology at this point, the States and Britain have one but Canada doesn't, and it depends on the centre that you go to, how much experience you would have in forensic pathology, and the first year that I was a Resident Doctor King, who's well known in forensic pathology, was our Resident advisor and he gave us a fair bit of experience at the time.


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Q. In? A. Forensic pathology. Q. Forensic pathology.

If we can run over your certification and diplomas. you have certification in Family Medicine, sir? A. Yes, I do. Q. It says Advanced Provider. I don't know what that is. A. That has to do with cardiopulmonary resus- citation. Q. All right. You're a Diplomate of the American Board of Pathology in combined Anatomic and Clinical Pathology? A. That's correct. Q. From May of 1985. You're a fellow of the College of American Pathologists? A. That's correct. Q. A Fellow of the American Society of Clini- cal Pathologists? A. That's correct. Q. You have certification in Pathology in Quebec? A. That's correct. Q. You have certification as a specialist in Anatomic Pathology at the Royal College of Physicians and Surgeons? A. That's correct. Q. Which is what I think you were just ex- plaining to us? A. Yes.


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Q. And You're a Fellow of the Royal College of Physicians and Surgeons. A. That's correct. Q. You're also, of course, I think it probably goes without saying at this point, a duly qualified medical practitioner who's licensed to practice in Ontario. A. Yes, that's correct. Q. You have a number of publications and pre- sentations to your credit? A. That's correct. Q. And they fill about a page of this. Not all of them on your own? A. No. Q. Most of them in fact with others; is that right? A. That's correct. Q. And we won't read them out basically because I'm not sure I could pronounce most of them. How many autopsies would you estimate that you have performed, sir? A. Between three and 400 in my career, both in residence and professionally. Q. Okay.

MS. BAIR: Those are my questions on the doctor's qualifications, Your Honour. If my friends have questions?

THE COURT: Any questions on the qualifications at this point? MR. MORRIS: I have no questions. Thank you.

MS. MULLIGAN: No questions. Thank you.


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THE COURT: No questions. All right. Thank you.

The doctor is qualified to give expert evidence as an expert as I described in relation to Doctor Johnston about giving opinions and so on. All right.

MS. BAIR: Thank you, Your Honour

EXAMINATION-IN-CHIEF BY MS. BAIR:

Q. Can you tell us, please, Doctor Silver, what is

the fundamental purpose of an autopsy in forensic pathology, what

are you seeking to determine? A. Basically determine the identity of the individual and to determine the cause of death. Q. The cause of death. A. Cause of death. Q. Before I go into the next little area, could you tell us is there a process, a specific process involved in deciding whether an autopsy is going to be performed? How does a body come to you? A. If a suspected homicide is discovered the person who discovers it will usually call the police or the coroner's office, usually it's the police, and the police will come and determine if that's what has happened or if that's what they think has happened, and if the body is obviously deceased or seems to not have any signs of life a coroner will be called. In our system in Ontario we have what is called a coroner system as opposed to the medical examiner system which you may be more familiar with, and in the coroner system the coroner is responsible for the deceased and has to determine if the death was a natural death or if there was foul play in-


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volved, has to determine the identity of the individual and has to determine the disposal of the remains, and basically the remains are his responsibility or her responsibility.

So the coroner would view the scene, would determine if things were suspicious enough to warrant an investigation and if the coroner feels that an investigation is required he or she would notify the police, of course, who would be there at the time and also he would issue a warrant, he'd write out on a piece of paper a command or an order for a pathologist to do an investigation to determine the cause of death. And at that point the body would be transferred, providing the police have collected evidence the body would be transferred to a facility where this kind of examination could be -- could occur, and the pathologist would take the warrant and perform the examination. Q. And again you've indicated that that is in order to determine the cause of death. Is it the strength of the pathologist to determine the time of death, sir? A. The time of death is usually determined best by a historical witness to the scene and the actual knowledge from reputable witnesses as to when the person was seen alive and then again when it was seen deceased. The pathologist can help and give estimates as to when the time of death might have occurred but these are usually based on physical changes that have occurred in the body and there is such a variability in decomposition and decay that it is almost impossible to be certain when death has occurred. So they're helpful but it's basically a historical witness that would be the best. Q. Is the determination of time of death through pathology a precise science, sir? A. It's not a precise science at all.


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Q. Would you describe it as an art? A. Probably an art, yes. Q. And is there any degree of precision to it? A. Not a great deal of precision in my estimation. Q. You just in passing you mentioned to the jurors that they might be more familiar with the medical examiner system than the coroner system. A. Yes. Q. You mean through television exposure? A. Yes, novels, where the pathologist goes out like Quincy to the scene and conducts his own investigation. Q. And then indicates to whoever is interested the precise minute of death --- A. That's correct. Q. --- on t.v. Is that the real world, sir? A. I don't think so. Q. Okay. We'll come back to this time of death thing in due course.

If we could move now to the autopsy that you performed on the body of Manon Bourdeau which I understand was on the 19th of January of 1990. Where were you working at that point, sir, and in what capacity? A. I was working at the Riverside Hospital of Ottawa, working as an Associate Pathologist. Q. And in that capacity then you performed the autopsy on Manon Bourdeau, did you? A. That's correct. Q. Did you know Doctor Johnston at the time, sir? A. Yes, he was my Director.


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Q. So you were associated at that time. Are you now associated in the same hierarchy, shall we say? A. Well he -- in 1994 the Forensic Institute was established at the University of Ottawa at the Ottawa General Hospital and he's been working there since then. Q. Okay. Was there a reason that the two autopsies, that being the one performed by you on Manon Bour- deau and the one performed by Doctor Johnston on Michel Giroux, were not done simultaneously on Friday morning? A. Yes. We didn't have the facilities in the morgue to do more than one case at a time and the police force investigating didn't have the manpower to have two Identification teams working at the same time, so that's the reason basically. Q. So they were one after the other and you got to work late on Friday. A. Yes, I did. Q. You weren't the Director. A. No. Q. You started this autopsy when, sir? A. I have in my notes at 1420 hours which would be 2:20 p.m. Q. I might as well cover this at this point. MS.

BAIR: I guess the easiest way is to determine whether my friends have any objection to Doctor Silver referring to his notes as we proceed through this.

MR. MORRIS: I don't. THE COURT: No objection? MS. MULLIGAN: No objection.

THE COURT: Thank you very much. All right.


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MS. BAIR: Thank you, Your Honour. Q. So do you have any recollection or notes, sir, as to how long the autopsy took to perform? A. Prior to preparing for this case I really didn't because it has been such a time elapse since the actual autopsy but from reading previous testimony that I had given it would appear that the autopsy was almost completed at 1805 hours and at that point we had our toxicological samples ready, so about 1805 which would make it about four hours later. Q. Is there a normal length of time that an autopsy in a suspected homicide takes? A. There's no normal, it could be a very short period like two or three hours, or it could be seven or eight hours. Q. Okay. Now having finished to the point where you have your toxicological samples ready at 1805, is that the end of your job? A. Definitely not. Q. What follows after that generally speaking, not specifically? A. Usually I would make notes of the findings that I had while I was still in the room with the deceased; that would take another half an hour or so. I would create a document called a provisional diagnosis sheet or a list of provisional diagnoses where I would put down my initial findings and speculate on the cause of death at that time and I'd write that down on the back of my sheet, and then I would go over to the dictating machine that is present in the autopsy suite and I would dictate all of the findings that I had and made notes of into the recording system and that would usually end the time that I would stay down in the morgue.


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On another occasion I would process the tissue samples that were taken from the body and get them ready so that they could be made into microscopic glass slides for a microscopic examination, and another time I would dissect the brain very carefully, take pictures of it and make notes of that.

So the whole process in hours takes many many hours and then I would consolidate all that information and produce a final report that would be submitted to the coroner's office, the Ministry of the Solicitor General and to the coroner who requested the examination. Q. And the final report that you made in this case, sir, do you have it with you? A. I have a copy of it. Q. A copy of it. And that runs to about seven pages; is that correct? A. I believe. Q. Do you have notes, sir, of who was with you when this autopsy was performed, or were you alone? A. I had people with me. There was Detective Inspector L. Okanas (sic). Q. Possibly Okmanas? A. Okmanas, yes. Q. Would that be a police officer, sir? A. Yes, he was from OPP Criminal Investigations Branch, Kingston, there was Mr. Earl Bowes, Constable Heather Lamarche, Mr. Douglas Wilson who was a morgue attendant and Mr. Paul Martin who is also a morgue attendant. Q. And why were those people with you? A. The members of the police force were there to assist in collecting the evidence and also to take any sam-


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ples that were recovered at the time that had a forensic interest back for further investigation. And Mr. Wilson and Mr. Martin were there to assist in performing the actual procedure. Q. Do you speak to the police prior to commencing the autopsy or during the autopsy? A. We're communicating with them all the time. Q. Do you seek information from them? A. If they have information. Q. Is that a general practice of yours? A. Generally. Q. Why? A. I believe that it's best to have some information before you start the case, if they have information available. Q. Is there a general protocol amongst pathologists as to whether or not information, historical or otherwise, is sought from the police prior to autopsy? A. It's a wise thing to do, I believe. I don't know if anybody has actually stipulated that you must or shouldn't do that, but it's a wise thing to do. Q. Do you have any recollection at this point, sir, this many years after January 1990, as to what information you got from the police in this case? A. I honestly can say that I don't but I do remember chatting at length with the representative from King- ston and I was certainly impressed by the fact that he'd come up from Kingston to assist in this case, and I believe it was during the case that Doctor Johnston was doing first that I was chatting with him but I don't have any recollection other than that conversation.


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Q. Did you take any notes of what he said, sir? A. No, I didn't. Q. Do you recall whether you were shown any photographs of the scene where the body was located prior to autopsy? A. I know I have been shown in other cases and also even been shown videos in other cases but I can't remember in this case if I was. Q. Okay. You have your report with you, sir. Do you also have all of your original notes? A. Yes, I do. Q. Let's skip the first page of your report, if you would, please, which seems to be a summary and we'll comes back to that at the end, and I wonder if you could relate your findings to the jury, please.

First of all, can you give us a physical de- scrip-tion of Manon Bourdeau? A. Yes. In the process, if I might just pre- face, that in the process of doing an autopsy we examine the body on the outside, that's called the external examination, and then we examine the body, the inner parts of the body, the organs, and that's the internal examination.

So the first part that I' being asked to describe is the external examination and the description of the body, and I found that the victim was 162 centimetres in length, weighed 72 kilograms, was female, was cold to touch and I estimated the age at about 35 years. The hair I noted was brown. The eye colour was not determined because the membrane that covers the surface of the eye, the cornea, which is usually clear in you and I, was clouded and opacified.


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Q. Can I stop you there for a moment just to do the translation in case there's anybody about my age on the jury. The 162 centimetres translates to approximately five foot three or five-four, would you agree with that? A. I don't have a slide ruler or a calculator, but I'd agree yes, if you say so. MS. BAIR: Any issue, Ms. Mulligan? MS. MULLIGAN: No. MS. BAIR: Q. And 72 kilos is 158.4 pounds, the conversion is what, sir? How many centimetres to an inch? A. 2.54 centimetres to an inch.

Q. And how many pounds to the kilo? A. 2.2 kilos per pound. Q. Okay. And at that rate, if you take my word for it, it's 158.4 pounds and between five foot three and five- four. A. Thank you. Q. Okay. You said that she was cold to touch. A. Yes. Q. To what did you attribute that? A. The fact that she came out of our morgue refrigerator. Q. The apparent age is 35, you indicated, but at the top of the page it would appear to have a date of birth indicated. A. Yes. Q. Which would make her about 10 years less than 35. A. That's correct.


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Q. And how is that discrepancy explained? A. Her whole visage, her whole face was dis- torted by the way that she died and most people judge others' age by looking at their face and there were so many changes in the face that it was very difficult for me to put an age on it and my best guess at the time was 35. I wasn't aware of her date of birth at the time. Q. So as much as the date of birth is on the same page as your best estimate, you didn't have that information at the same time. A. Or I didn't look at it at the time. Q. Okay. I'm sorry to interrupt you. You're up to pupils, I think. A. She seemed to be normally nourished, she wasn't cachectic or particularly lean. I didn't find any evidence of scars when I examined the skin, however there was cyanosis present or blueness underneath the nailbeds. We checked for rigor mortis which is a stiffening that occurs after death, and I couldn't find any. We looked for something that's called postmortem staining, it's sort of a red colour that happens on dependent parts of the body, those parts that are at the bottom of the body basically, or the lowest parts of the body, and there was postmortem staining and the other name for that is livor and that was present over the anterior surface of the legs, chest and there was zones white flesh in the midst of these dark red areas and I assumed that those were due to the fact that parts of those surfaces, the anterior surfaces, were actually in contact with a flat surface, in other words that the body was probably lying facedown or prone in some fashion on a flat surface.


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I looked for signs of decomposition and there was early sloughing of the skin around the neck and the left shoulder. I noted the fact that she had clothing with her and was dressed. There was one yellow elastic hair tie, an aqua- coloured flannel long-sleeved sweat top, a brassiere, one pink slippers, one white pair of socks with pink trim, a pair of Kamikaze World Tour jogging pants, one underwear, brief style, white, and there was no jewelry identified. Q. If we could just go back for a moment. You mentioned cyanosis present in the nailbeds, what does that mean to a lay person? A. It means that the tissue likely before or at the time of death or in the process of dying lacked oxygen and that there was a blue colour underneath the nails, okay?, and some people when they have certain diseases they will not oxygenate their blood well enough and they will have cyanosis under the nailbeds or also the lips will become blue at times. Q. In this case, sir, if I understand you correctly, does it mean that she stopped breathing but her heart kept beating? A. It's quite likely. Q. Now you told us also during that passage about postmortem staining and you also called it livor. We've heard the term in this court already "lividity". Is it all the same thing? A. It's the same thing. Q. The tendency of the blood to pool at the lowest point, it's almost gravitational; is that right? A. That's correct. Q. Okay. The next category that you've got is "External marks of violence".


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A. Correct. Q. Can you run through that for us, please. A. There was a 4 by 5 centimetre jagged defect present over the left mastoid process, that's the portion of the head at the back, just above the neck. Q. All those years of medical training make you virtually unintelligible for the rest of us.

A. Yes. Yes. Okay.Q. What is a jagged defect over the left mastoid

process, what does that mean? A. It means there was an area where there was disruption of the tissue and the skin basically wasn't there, and as we looked deeper, as you'll hear from the internal examination, neither was bone in that particular spot. To be very simplistic, there was a hole there with irregular margins. Q. And the left mastoid process is? A. Is a bony prominence at the back of the head just behind the ear, and if you reach back you can probably feel yours on the side there, it's just the bone that sort of sits there. Q. Okay. So there was a hole in the left back of her head behind the ear. A. That's correct. Q. Okay. The next part? A. There was blue discoloration of the left upper and lower eyelids with swelling of the facial skin over the left side of the face, so there was -- another way of saying that might be bruising with swelling.

There was palpable surgical emphysema over the left posterior triangle, superclavicular and infraclavicular zones, and another way of saying that very simply was there was


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a sensation when one pressed on the tissue of little bubbles breaking, a sensation that there was gas present in those areas, that's what surgical emphysema is, it's actually gas in the tissues. Q. Now is this gas that would've been generated internally by Ms. Bourdeau or something else? A. Well, that's a good question because it could've been generated internally by the process of decomposition that would occur after death, but because it was localized to the region around the hole, around what I determined later on was the entrance wound from a shotgun shell, it is likely that it actually represented gas from the explosion of the shell and the period when the shell was leaving the gun and entering the patient with the accompanying gas. Q. Along those lines, sir, you've also indicated when you said that there was this hole over the left mastoid process, that there was hair entering the wound. Does the fact that the hair was pulled into the wound say anything about whether gases went in or out? A. It supports the fact that gases went into the tissues. Q. And does it inform you in any way as to whether blood would fly out of that wound or be sucked in as the hair was? A. The blood wouldn't -- I'm not sure about the answer to that question. My initial understanding was I would've expected blood to be blown out but at the first few moments when that shell would be entering there probably would be no blood at that time, so it would be after the gases started expanding and the energy from the projectile was released that you might have blood coming back.


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Q. All right. A. Shall I carry on? Q. Yes, please. A. Okay. And then I say there's a small Band-Aid, then I say a small Band-Aid was identified over the left thumb and then no obvious gross laceration was noted of the thumb. Q. What does that mean? A. It means I didn't have really an explanation as to why the patient was wearing a Band-Aid. Q. Did you check to see if you could determine whether there was a cut below the Band-Aid? A. I looked. Q. And? A. And I did not see anything. Q. Did you look with your eye or with a micro- scope or something? A. Just with the naked eye. Q. All right. Do you have any recollection of the condition of that Band-Aid, sir? A. No. Q. I'm going to show you a photograph previously in another proceeding Exhibit 94, which is a cropped photograph showing some Kamikaze World Tour track pants, like you've described, and a turquoise or aqua sweatshirt in part, and two hands. Do you recognize that photograph? A. Yes. Q. And is that the Band-Aid that you've described on the right-hand? A. Yes. Q. Okay.


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MS. BAIR: And the jury can make their own assessment as to whether it's clean or dirty if that should become relevant.

If that could be made the next exhibit too, please.

THE REGISTRAR: Exhibit number 74, Your Honour.

THE COURT: Exhibit 74.

EXHIBIT NO. 74: Photograph taken at autopsy,

re: Manon Bourdeau MS. BAIR: Q. Did you check, sir, to see whether perhaps a nail had been bent back? A. I didn't, or if I did I don't recall. Q. That's not something you can help us with at this point? A. No. Q. Please continue. A. It says palpable defects in the skull were evident in the vicinity of the large defect in the skin. There were no obvious defence injuries to the hands. Q. Hold it a sec. Palpable defects in the skull were evident in the vicinity of the large defect in the skin means what? A. It means as I palpated or pressed on the bones around the hole that was there I could feel irregularities which indicated to me that there were probably some fractures in the bone. Q. So a hole in the skin below which there's a hole in the bone.


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A. Right, and around which are irregularities in the contour of the head. Q. Okay. It didn't feel the way it would have or should have. A. That's correct. Q. --- if she hadn't been injured.

You said that there were no obvious defence injuries to the hands. What are defence injuries? A. Defence injuries are injuries that one would expect to see if you were trying to defend yourself against an attacker, they might be lacerations on the arms or hands, they might be even powder from a gun of some type or even a bullet wound to the hand. So those are basically defence wounds. Q. So something you would expect on someone who's trying to defend themselves. A. That's correct. Q. And you found none of those. A. That's correct. Q. Okay. A. There was no obvious material under the nails. Q. Why would you look for that? A. As another defence injury one might scratch the victim that they were -- sorry, one might scratch their assailant in trying to defend themselves or pick up things from the assailant under the nails and I did not find anything.

The next comment was the nose had unfractured nasal bones, in other words they seemed to be intact. The teeth showed no evidence of chipping. The tongue showed no evidence of laceration.


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Q. So the teeth and the nose and the tongue were all fine. A. Yes. Q. Okay.

The next category in your report is internal examination. Is there anything significant in your assessment of the chest cavity, sir? A. Not really. I note that around the heart there was about 20 millimetres of fluid present but that was a common nonspecific finding in somebody who's been deceased. Q. Okay. So that didn't tell you anything about the cause of death. A. Not at all. Q. All right. Anything significant in your assessment of the face and neck? A. Yes. There was blood present in the mouth but I did not identify any foreign material. I mentioned about the nose already but I commented in the report here that there was no evidence of nasal fractures, there was blood present. The nasal septum was intact to palpation. Q. What's the nasal septum? A. The nasal septum is the little -- it's a septum, it's a little wall, I suppose, of bone and cartilage that starts at the tip of the nose and goes back to about the level of the ears, straight back from the nose, and it divides the right half from the left half. Q. And that appeared to be intact. A. It appeared to be intact, yeah. Q. We've heard from another witness that in situations of chronic cocaine sniffing, snorting, that one might expect to find a perforated septum.


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A. That's correct. Q. Did you find any such thing? A. No. Q. In fact did you find any physical signs of chronic drug use or other drug use? A. No I didn't.

There was blood present in the mouth and we looked for foreign objects that one might choke on and I found none. The tongue was intact and showed no evidence of laceration. There's a little bone called the hyoid bone that sits right on top of the voice box and we usually inspect that very carefully because it's often broken if somebody is strangled and I checked that and it was normal initially to palpation, so in other words as I was feeling the contour of it there were no obvious defects in it.

The thymus gland was identified and was unremarkable and the thyroid gland was also present in the neck and weighed 25 grams and unremarkable too, I said it's lobular which describes the contour of it. Q. So basically, just before we go on to the respiratory system, what you're attempting to do, sir, is what? Why are you looking at all of these things? A. We're trying to exclude other causes of death. Q. And to that end you looked at the respiratory system? A. Yes. Q. And was there anything significant there? A. Nothing relative to the cause of death except for the fact that the lungs were heavy and congested, all right?, and I have a weight for the right one of 425 grams


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and the weight for the left one of 460 grams, and there were some nodules found on the right lung which are consistent with previous granulomatous infection, something like histoplasmosis or perhaps tuberculosis, but more likely histoplasmosis, okay? Q. Is that clear? A. In other words it had nothing to do with the cause of death as far as I could tell. Q. The lungs were heavy and congested, is that an artifact of death or was that a preexisting condition? A. Likely occurred at the time of death. Q. It says "Pulmonary pleura: Early signs of decomposition present with focal dark red discolouration", what does that mean and what did it indicate to you? A. The pulmonary pleura would be the surface covering of the lungs and they're the same way that you have live or this pooling of blood in the skin you can have it in the lungs as well, and that was noticed in this particular case and the tissues start to lose their usual healthy appearance in decomposition and I started to notice that as well, so that was that comment. Q. So blood had pooled in the lungs as well? A. Yes. Q. And that tissue had started to decompose. A. Yes. Q. Now you were mentioning something about histo something or other and granulomatous and stuff.

A. M'hmm-hmm.Q. What she sick, did she have tuberculosis or

the other disease that you mentioned? A. No, I don't believe so.

Q. So these ---


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A. These are changes that happen after you've met the germ and confine it and sort of build your health back. Q. So is it anything along the lines of what we generally understand as antibodies, you've been exposed to the germ and fought it off and there's some remnant of it in your system? A. This would be the physical remnant of, if it's histoplasmosis, of the little site that was infected. Q. Okay. Is histoplasmosis a serious disease? A. It can be in some people. It's very common in the Ottawa Valley, it's something that one might get as a bad cold and linger on for a few months or so and then just get better, and it would leave these little tiny scars on the lungs. Q. So it means that she was probably sick at some time and got better. A. Probably. Q. Okay.

The circulatory system. A. The heart weighed 315 grams and it was normal in size, and there was also evidence of decompositional changes with putrefaction and softening of the muscle of the heart, structurally though it seemed to be normal. The different chambers were normal in size and normal in thickness, and the valves also had a normal architecture and they had normal measurements of their sizes. We look at the coronary vessels too, they're part of the heart, and they showed no obvious narrowings that one would associate with hardening of the arteries or coronary artery disease. We look at -- as part of the circulatory system we look at the large artery that takes most of the blood toward


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the other systems, the other organs in the body, that's called the aorta, and this was basically unremarkable. It also showed some staining of the wall from the haemoglobin or decomposing blood and that was expected, and there was some blood in the heart and the vessels and that was liquid. Q. And did the liquid nature of the blood indicate anything of significance? A. No, it didn't. Q. Okay. So her heart was normal in size and shape and condition other than it had started to decay. A. Yes. Q. Okay.

Gastro-intestinal system. A. We start at the top and work down basically and --- Q. Again if you could just give us the significant parts. If there's anything insignificant we don't need to --- A. Okay. There was some congestion of the spleen and -- well, actually we wouldn't really call that part of the gastro-intestinal system but it's in the list there. Basically the liver appeared a little bit fatty which can have some significance or it may or may not have significance, it depends on a lot of things and with the decomposition that was there I really couldn't associate any disease with that but there was nothing relative to her cause of death evident in this system. Q. Okay. It says under the gastro-intestinal system "Stomach and Contents: approximately 500 mls of green particulate matter, partially digested." Can you estimate how long after eating someone was killed, using this sort of infor-


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mation, with any degree of accuracy? A. Not at all. Q. Pardon me? A. Not at all. Q. Okay. So that's of no assistance. A. No assistance. Q. The genito-urinary system is next, again the significant findings that you made? A. The uterus was enlarged and it contained a fetus, a little unborn baby, that was about 22 centimetres in length measuring from the top of the head to the tailbone and it was male, it weighed 790 grams, and it also showed signs of decomposition, and when I was discussing the fetus I used the word "macerated" it just means that the tissue is sort of starting to fall apart. Q. The weight and the size, sir, does that enable you to estimate the approximate age of that --- A. An approximate age between five and seven months. Q. Okay. Under "Tubes and Ovaries" it says "a corpus luteum of pregnancy present in the left ovary", what does that mean? A. In order to maintain an early pregnancy hormones are required and a corpus luteum forms, it literally means yellow body, it's a yellow glandular structure that produces hormones necessary to sustain the pregnancy in the early stages and that's what we were seeing there. Q. And that's present in every woman that's pregnant? A. In every woman that's pregnant, yes.


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Q. I might as well ask you at this point, sir, given the injury that you saw that you've already described in the head of Manon Bourdeau, could either she or the child have survived this even with immediate medical attention? A. I think not. Manon definitely not. If she had been shot in a delivery room where they could do a STAT or an emergency cesarian section on her and pull the fetus out within a few minutes it's possible that the fetus might have survived the delivery, but because of its young age may not have survived much longer after that, so I think that would answer your answer. Q. Okay.

MS. BAIR: At the end of the genito-urinary system, Your Honour, maybe it's time for a break.

THE COURT: All right, we'll have a break now.

--- Whereupon court recessed at 3:26 p.m.

* * * * * * * *--- Upon resuming at 3:45 p.m.

--- Accused present

STEPHEN STANLEY SILVER, resumes on the stand THE COURT: Ms. Bair.

MS. BAIR: Thank you, Your Honour.

EXAMINATION-IN-CHIEF (continued) BY MS. BAIR: Q. Doctor Silver, we're at the letter (g) in your report "head, Skull and Osseous System". A. Thank you. I say under scalp, "defect noted as indicated above" which we've already described in the scalp which is just


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the skin and the layers of tissue over the head. Meninges and blood vessels, the meninges are the covering of the brain, there are several different layers, one is very tough, the other ones are very soft, delicate and membrane-like and translucent or transparent almost, and I say that the meninges and blood vessels were disrupted at the scalp of the -- sorry, were disrupted at the site of the scalp defect and that there was significant subarachnoid haemorrhage which means that there was bleeding underneath some of the layers of these meninges. Q. When you say disrupted, Doctor, that doesn't mean just sort of shifted, does it? A. It means torn. Q. Thank you. A. Okay? And then there's a topic, a heading "Skull" and I describe some of the findings there. I say there were multiple skull fractures with disruptions of the major bones of the skull, with multiple fractures along suture lines and extending into the foramen magnum. The bones of the adult skull are usually fused together, there are several large plates of bones and where they fuse together you have what's called the suture line and those places of fusion were broken apart, they were in essence blown apart basically, so that the bones in the skull were not really well connected to each other. And then I say that the fracture extended into the foramen magnum. The foramen magnum is the large hole that you've seen on the bottom of skulls, it's the hole at the base of the skull where the spinal cord passes through into the back, so that's a significant injury. And then just in front of that hole are several ridges of bone and in one of the ridges at the middle is the pituitary fossa, it's the little area that's almost -- well, that's encased on bone on two sides


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where the pituitary gland is positioned, and I say that the fracture lines have gone into the pituitary fossa such that the bones of the right and left side of the anterior cranial fossa are free and the anterior cranial fossa was also free from the posterior and middle cranial fossa with fractures running along the wings of the sphenoid bone, the lambdoid sutures, and the petrous temporal bones on both anterior and posterior articula-tions.

In layman's term just about all of the major bones in the skull were blown apart, it's as though a little bomb went off inside this person's skull and separated the bones at the time. There's a heading called "Middle ears and Sinuses" and we did not open those. In some cases we open them, in some we don't. It wouldn't have contributed to the diagnosis as they were actually disrupted in the process of this shotgun wound.

Then there's a heading that says "Remainder of Osseous System" and I've commented that no other evidence of significant fractures or dislocation was found. Q. Okay. You've told us that the bones were blown apart. Was the head being held together in any way? A. Yes, it was held together by the scalp and the other soft tissues around the head. Q. So the skin was holding all these broken bones within it. A. Yes, and the bone has on the outer surface of the skull a very thick layer, it's called periosteum, it's a thick layer of gristle-like material and that was also helping to hold things together.


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Q. Was there -- I guess we haven't really discussed the ammunition or what caused this damage, but was there an exit wound, was there a hole on the other side opposite the entrance wound that you've already described to us? A. No, there wasn't. Q. And did that surprise you in any way? A. No, it didn't because this was a shotgun type of an injury. Q. Can you explain that for the jury, please? A. There are different types of projectiles that will come out of guns. You may be familiar with bullets which represent a solid hard portion of metal of some type with some type of a shape to it either pointed or flat at one end or having some kind of curves, and when these come out of either a handgun or a rifle they can very easily pass through parts of the victim and produce a so-called entrance wound and an exit wound on the other side. With a shotgun type of injury the particles present that are propelled are usually smaller, they're multiple, they could be BBs, they could be things the size of small ball bearings or other metal portions, and quite often they're not as well aerodynamically designed either so when they hit tissue they usually dissipate their energy much more quickly and they don't leave the body, so that didn't surprise me. Q. What degree of force or trauma, I suppose, would be required to separate the bones in the manner that you've described? A. I can't quantitate it in any way but it would seem to me to be a very large amount of force. Q. Are the skull bones easily blown apart?


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A. Not at all. Q. Did any of this that you observed - the lack of exit wound, the gases, - any of that or any other factors lead you to any opinion concerning the distance that the muzzle of the gun would have been to the victim's head? A. I'm not a ballistics expert so I can give you an opinion on this but the ballistics expert -- I would defer any comment to a ballistics expert, but it was my opinion that it was from a close -- sorry, that the distance was very short, so it was -- we would call it a near contact or a close contact where the muzzle would be very close to the head but not quite touching it. Q. The next heading is the "Nervous system", sir. A. So I have the comment that says "Brain: marked disruption of brain matter by shot, wadding and bone fragments. Extensive tissue disruption at base of brain" and a shot are those little particles that I described, those metal pieces. Wadding is a part of a shotgun shell that is used in keeping everything together for a while while it's in the shell and also in flight, and bone fragments are sometimes called secondary fragments or secondary projectiles and they too can cause damage so when a portion of the bone that used to be on the left mastoid process was removed, basically, and flung into the inside of the calvarium or the brain case it too could cause damage in destroying tissue there. So those are some of the things I found. So I said there's "extensive tissue disruption at the base of the brain" and then I quantified the different parts: there's the cerebral hemispheres or the parts on the top, actually I'll just carry on here. There was -- well actually it started at the bottom of the brain, I said there


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was a "loss of brainstem, and left cerebral hemisphere with black discolouration of the base of the brain. The inferior surface of the right and left temporal and frontal lobes disrupted and not identified, "changes are more prominent on the right than on the left." And then "16 pieces of lead shot identified in parenchyma of the brain."

So basically in layman's terms the force of the shotgun blast caused disruption of the connection of the brain to the rest of the nervous system or to the body and the shotgun blast also damaged the lower parts of the brain as well that weren't involved in this actual connection. Q. You say disruption of the connection, do you mean it was severed or just destroyed? A. It was destroyed. Q. Destroyed. Okay. And you said 16 pieces of lead shot were identified. Were any of those recovered? A. Well, those were the ones I recovered. Q. And can you say whether that's all that was there? A. I can't say that. There could've been more. Q. In that description that you've read out to us "black discolouration of base of the brain" was that significant to you in any way? A. It may have been an indication of the fact that there was products of combustion from the gun powder or unburnt portions of gun powder that had entered at that point and given that colour. Q. And does that inform in any way your opinion that this was a close to contact wound? A. It would support that.


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Q. Plastic wadding, you've defined that for the jury, can you tell us where that was found more precisely? A. May I just refer to my notes? Q. Certainly. A. On one of the diagrams that I've made I've indicated that it was found in the mid-portion at the centre of the -- at the base of the brain case. Q. We don't know where the brain case is, though. Is that right at the surface of the head? A. Sorry, it would be -- if you were to draw a line between the ears, okay?, and just come in front of that a little bit and above it, that's about where it would be. Q. Okay. And was that piece of wadding retrieved? A. Yes, it was. Q. When things like that are done, the samples, the pellets and the wadding are retrieved, what do you do with them? A. The pellets and the wadding are usually placed in a sterile or a clean container and they're cleaned of debris with running tap water and then they're placed in some type of plastic bag or other safe container, they're labelled and then they're given to the investigating officer if he or she chooses to take them for further investigations. Q. And again whose decision is that? You said if he or she chooses to take them for further investigations. A. It's the officer's. Q. And is that what happened with the pellets and the wadding? A. My understanding, yes.


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Q. Okay. What effect did these pellets and the shot have on her face? If there was no exit wound does that mean there was no disruption of the other side of her head? A. Well, there was -- I had described a lot of bruising and swelling of the face with discolouration, and two things could have -- well, several things could've happened: one was the force of the impact could have driven her face into a surface causing some marks, or more likely the gas as it escapes through into the wound causing this can dissect into the tissues or it can permeate into the tissues and cause them to expand very quickly and then the pressure is relieved and they will collapse and they will cause discolouration and bleeding and bruising, so to speak. Q. You said also in the part that you just read out to us that hair was recovered from the brain along with plastic wadding. A. Yes. Q. Obviously the reasons are the same as those you've already described? A. Yes. Q. Continue, please. A. I say the "Pituitary body: not identified", actually that's printed twice there, it shouldn't have been. Spinal cord was not examined. And the remainder of the nervous system was not examined. Q. Now the next heading is "Microscopic and Laboratory findings", is this your work or is this someone else's work? A. This is my work. Q. Okay. Anything significant in all of this?


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A. I discussed -- I mention that the corpus luteum of pregnancy was noted. In the tissues taken from Manon there was -- there were microscopic changes of decomposition and microscopically we would say autolysis, it just describes the process where the cells start to break down on their own, and also some of the organs showed evidence of putrefaction which means that bacterial organisms were identified in the tissue, starting to break down the tissue as well as just the normal changes that would occur, so. Q. It seems as though each and every tissue that is identified there has - what did you say autolysis?

A. Autolysis.Q. Autolysis, or putrefaction or both.

A. That's correct. Q. Okay. So that means that decay had commenced. A. That's correct. And there's a little comment about the umbilical cord of the fetus and it had three vessels. Q. What does that mean? A. It means that it had a normal number of vessels present. And then we did a microscopic examination of this hyoid bone that I talked about earlier, it's the little bone that sits on top of the voice box, and I could not find any evidence that it had been fractured before the patient died. Q. All right. You had some other tests done, I take it, this is not your work the next part, it says "HIV status"? A. That's correct, the sample of her blood was checked for AIDS and that was negative or non-reactive. And


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then at the time that this initial report was filed with the Ministry of the Solicitor General the toxicology reports had not been received or I had not information about them and I had indicated that they were pending. Obviously in the past -- in the remaining interval the reports of these have been received and I have them and I believe the Court has them as well. Q. And the x-ray findings? This is not your work either, I take it, you don't do the x-rays? A. No. We're there when the x-rays are taken but a radiologist reads the x-rays and --- Q. What's the purpose of the x-rays? A. The bodies -- in homicides it's expected that the body is examined radiologically to determine if there are any foreign objects present like shotgun pellets or bullets or other things or obvious deformity. So we proceeded with the x-ray in this case. Q. And what did you discover from the x-rays? A. That there was evidence first of all of massive disruption of the bones of the head, but also that there were shotgun pellets present. Q. In fact they're described by the radiologist as "innumerable radial metallic foreign bodies widely scattered throughout the skull base in association with disruption of the cranium"; is that correct? A. That's correct. Q. And does that accord with your understanding of what the radiologist found? A. Yes. Q. Does the x-ray information or do the x-rays assist you in any way in determining the direction of the path of the pellets through the head?


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A. They could and a ballistics expert would probably be the best one to interpret those or a forensic radiologist would probably be the best to interpret those, but based on the fact that I could identify an obvious entrance wound, found the wadding and found the scatter pattern which was typically -- well, which was almost entirely within the brain case or the calvarium, I had a fairly good idea of the direction of the projectile in Manon's body. Q. And can you describe that for the jury, please? A. Okay. We've identified the mastoid process over the left ear in the initial testimony and we've also iden- t-ified the fact that the pituitary gland was gone and most of the damage was at the base of the brain and I postulated that the trajectory was probably in the head from the mastoid process slightly elevated and toward the opposite ear and perhaps the temple too, just slightly elevated, so it would be a linear path in that direction. Q. I'm going to show you, sir, a series of photographs, I guess. I'll start with 51 and 52, I'm sorry, I don't know the number of this exhibit. THE REGISTRAR: Exhibit 69. MS. BAIR: Thank you. Q. Exhibit 69, photographs 51 and 52, I think. That, sir, is a photograph of Manon Bourdeau as she was found except that the bed is moved back. And that's another photograph of her in the position before she's been moved although the surroundings have been moved, okay? A. Yes. Q. And I'm now going to show you another picture which I feel I should warn the jury, Your Honour, is a


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little bit disturbing but this is an autopsy photograph, sir. Is that representative of Manon Bourdeau as you saw her? A. Yes. Q. And that photograph, sir, shows her head, would you agree, in the same position that it was shown at the scene at the house? A. It seemed at the scene the projection wasn't clear, it seemed that her head was facing slightly toward her left shoulder. If that's the case then this is what this picture is also showing, so just slightly turned to the left. Q. This is the still version of the same shot, sir. A. Thank you. Q. I'm going to take this one away and seeing that as it is, go back to this one -- well, actually I'm just going to turn it off, I don't think we need to all stare at it. The trajectory that you've just described in words, sir, can you describe it with her head in position. Help us understand the direction of the muzzle in relation to her body with her in position, using the photograph. A. It would almost be a vertical or a slightly toward the top of her head but that would basically give you that trajectory in the head based on the position of the body in this picture, which was on the autopsy table. Q. So with her head in this position would it be basically straight down, sir, towards the ground? A. That would be a close approximation of my estimate of it. Q. I don't know how you can describe what I'm about to do, but assuming Manon Bourdeau along the line of the


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step here and the bed being right above her consistent with someone on the bed pointing the gun almost directly down above her? A. That would be accurate. Q. And I think you indicated slightly upwards. A. Slightly upwards. Q. "Summary of abnormal findings" will be next. A. Shall I carry on? Q. Sure. Are we finished? A. I say there's "a large defect in the region of the left mastoid bone with disruption of the soft tissue of the brain, and the bone of skull, with numerous fragments of metal shot present throughout the brain parenchyma. The skull, once the calvarium was removed", the calvarium is the top of the brain case, "is completely unstable. A gravid uterus with a 790 gram male, macerated fetus, is present. No other significant findings are noted other than advanced autolysis and early putrefaction of the major organs." MS. BAIR: Could this be the next numbered

exhibit? THE REGISTRAR: Exhibit number 75, Your Honour. MS.

BAIR: And I should indicate that the corresponding slide was 119.EXHIBIT NO. 75: Photograph of Manon BourdeauMS. BAIR:

Q. So that's a summary of your abnormal findings. Fundamentally, sir, the bones of her head were blown apart by a shotgun blast. A. Correct.


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Q. And were you able to eliminate any other causes of death? A. Yes. Q. That cause of death, sir, would be fairly obvious to any of us? A. I believe so. Q. Although the elimination of other things would not be so obvious. A. Correct. Q. Let's go back to page 1 now.

THE COURT: I'm sorry, that exhibit that went in as parallel to 119 was the slide?THE REGISTRAR: The photograph is Exhibit 75, Your Honour.

THE COURT: Thank you. Sorry. MS. BAIR: Q. Can you indicate just the line at the bottom there the cause of death? I'm sorry, it's not on page 1, I've confused you, it's right at the end of the summary of your abnormal findings, you have "cause of death". A. Death is due to traumatic disruption of brain by gun shot. Q. Okay. Sorry, now back to page 1.

MS. BAIR: Your Honour, I've made copies of page 1 because I think that this will be the subject of conversation in cross-examination and in chief and I would like to distribute them to the jury with the Court's permission.

MS. MULLIGAN: Well, perhaps we can discuss that. MS. BAIR: Not to keep.

MS. MULLIGAN: Perhaps we can discuss that ---


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THE COURT: All right.MS. MULLIGAN: --- in the absence of the jury for just a moment.


--- Whereupon the jury retired at 4:12 p.m.


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--- In the absence of the juryTHE COURT: Would you like the doctor to wait outside?MS. MULLIGAN: Oh no, I don't think it's neces-sary.

It's a matter, I suppose, of procedure. We had Doctor Johnston here, the front page of his report was the subject of some discussion too with respect to the 24 to 36 hours and the date, time of autopsy, the date and time of death he had printed on there, so the front page of his report was the subject of some discussion and we discussed it and it was cross-examined on. I suspect what Ms. Bair is referring to is the date and time of death referred to in this doctor's report and the date and time of autopsy, the interval and the indication that at the time the doctor estimated that Manon Bourdeau had died about two days earlier than the postmortem examination. My concern is that if we hand this to the jury, Ms. Bair the last time indicated she wouldn't be filing the report in keeping with past tra- dition, or words to that effect, and nothing was given to the jury of the report. To change the process now may give undue emphasis to this doctor's report or to those words in that report and I think it should be kept to the same -- if we were going to do it with one we should've done it with both is what I'm saying.


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THE COURT: M'hmm-hmm. There's another old prin-ciple well known consistency is the bane of the small mind but we'll leave that. I haven't said that for a couple of months.MR. MORRIS: I was about to stand up and say that I had a small mind, Your Honour, and I thought consistency was something we should strive for with opinion evidence at least.


MS. BAIR: Mr. Morris has been nothing if not con-

sistent, Your Honour, throughout.I'm not proposing that this be filed as an exhibit.

I'm not proposing that the jury be permitted to

keep it or take it out of this room. Nevertheless,

Your Honour, page 1 is a complicated document with

a bunch of numbers you'll see at the top, well

almost at the top on the right "Date, time death:

90/01/18 (estimated)". Then "Date, time autopsy:

90/01/19, 1420. Interval: Unknown". Towards the

bottom under 'FORENSIC AUTOPSY PROTOCOL" 1. (1) it

says:

REPORT OF POSTMORTEM EXAMINATION made upon the body of MANON BOURDEAU at Riverside Hospital in the City of Ottawa in the Province of Ontario, on the 19th day of Jan-uary 1990, about two days after death.

The placement of all of these on the front page is something I'm going to ask the doctor to explain one at a time and I think rather than saying well at the top of the page you have one line and right


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below it says this and right below it says that and then lower down it says


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this, they should just be able to look at it and see what we're talking about. Once it's explained I'll take them away and they won't be able to pour over the apparent inconsistencies any longer than Ms. Mulligan would like them to, but it's simply a matter of making it understandable as we go through numbers and a form. Quite frankly I don't really understand the objection, it doesn't add anything to my case, all it does is make the jury capable of understanding what we're talking about.

THE COURT: All right. Thank you.MS. BAIR: And of course it was open to anyone to ask to have them look at Doctor Johnston's.THE COURT: Yes.

I wonder if by the time we get them back here can we finish all this anyway?

MS. BAIR: No, no way.THE COURT: No way? I'm just wondering if it makes more sense to do it tomorrow. I'll let you proceed this way, using this, as you suggested, pass it, follow along and then get it back so they won't dwell on it.

MS. BAIR: All right.THE COURT: And use it as sort of an aide-mé- moire, a spontaneous aide-mémoire, and then carry on. But I don't think there may be any point in getting them back now, it takes a couple of minutes to round them up. It would only be 10 minutes.MS. BAIR: Plus Doctor Silver has to get to his healthy sexuality clinic tonight.


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THE COURT: I see. All right.MS. BAIR: It's almost too much of a step to make in half an hour I think. Forty minutes would be good.THE COURT: Fair enough. We'll pack it in for today then and we'll be back at 10:00 tomorrow morning.

MS. BAIR: Thank you, Your Honour. THE COURT: Thank you.

--- Whereupon, at 4:17 o'clock p.m. court was adjourned to reconvene at 10:00 o'clock a.m., Wednesday, October 21st, 1998

* * * * * * * *

Certified correct to thebest of my skill and ability

________________________________Gloria D. Neville, C.S.R.Chartered Shorthand ReporterOntario Court (General Division)


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Documents

kangaroojustice.orgkangaroojustice.org/.../2010/09/1998-10-20-Panye-Dr.-Silver.doc · Web view--- Upon commencing at 10:03 a.m.--- Accused present--- In the absence of the jury