kangaroojustice.org€¦ · web viewupon commencing at 10:05 a.m. accused present. mark potvin,...

TUESDAY, NOVEMBER 2nd, 1999

--- Upon commencing at 10:05 a.m.--- Accused present

MARK POTVIN, previously sworn THE REGISTRAR: Are counsel satisfied that all

members of the jury are present?

MR. COOPER: Thank you. Content. MR. MORRIS: Yes. Thank you. MS. MULLIGAN: Yes. Thank you. THE COURT: Mr. Cooper? MR. COOPER: Thank you, Your Honour.

CROSS-EXAMINATION (continued) BY MR. COOPER: Q. Mr. Potvin, we ended the day yesterday at

around the 17:28 marker on the video itself, and we're about to

go into an area where you discuss your visit with Mr. -- or

your visit from I suppose Mr. Taylor on Thursday, the 10th of

September, 1998, right?

A. Yes. Q. Although that date isn't particularly mentioned right away and we've reviewed this a little bit yester-day and we won't rehash it in those details again I don't think, but that's where we're beginning. We'll continue that and then I'll go back to a couple of things. Starting at 17:12.--- Videotape played MR. COOPER: The top of page 22, sir.--- Videotape played MR. COOPER: Q. Oh, sorry, I just wanted to go a little bit

M. POTVIN, cr-ex(Cooper)

19260

further. I'll just back up a second.


19260

--- Videotape played MR. COOPER: Q. I'm stopping there at 19:23 for a moment. Ms. Mulligan has just asked you, sir, whether everything you've said today during this video was the truth and you said you agreed with her and then she said "Absolutely?" and you agreed with that as well. A. Yes. Q. It was absolutely the truth as you've said and you didn't change that pattern, you told us yesterday. A. Yes. Q. You didn't tell any lies from this part forward, did you? A. No. Q. No. So absolutely the truth throughout the entirety of the interview. A. Yes. Q. Because it's under oath? A. That's right. Q. And it's something that you took very seriously, right?

A. Pardon me?Q. And it's something you took very

seriously. A. Yes. Q. Okay.

Now, going back to where we started the ques-tions on page 22, Ms. Mulligan refreshes your memory about the time when you met with Mr. Taylor, it's "a few days ago" -- right? -- that's the question? A. Yes. Yeah.


19260

Q. "And you met a few days ago briefly with Russ Taylor", right? A. That's right. Q. And she wants to know, Ms. Mulligan wants to know what is said on that occasion, what was said to Mr. Taylor, to Russ, ---

A. That's right.Q. Right? So she wants to know specifically

what was said on the occasion, and even more specifically what you said, right? A. That's right. Q. And so you understand that that's what she's after, she wants an accounting of that interview. A. That's right. Q. That contact.

A. Yeah.Q. And you start off by saying "I told him

about the time, difference in the time. He came in. At first I didn't know who he was", et cetera, et cetera. Right? A. Yes. Can I just add something? Q. Certainly. A. He was coming in the yard, like. Q. Okay. He didn't come into your house. A. No. I never got out of the door of my car actually. Q. You never got out of the door of your car? A. Like, I had the door open, I was getting into my car when he pulled in the yard ---

Q. Okay.A. --- and we just talked across the two

cars. Like, it wasn't in the house or anything.


19260

Q. Okay. So you've got a double-width drive-way, is that it? A. It's a big yard. It's a wide open yard because the garage is -- beside me is the same lot as the house like, you know? Q. Okay. So he's parked. What, are you backed in and he drives in? A. I'm like -- I'm facing the garage like this, there's an open space, and he came driving around the side or the front of the car, kind of like this here.

Q. Right.A. There's lots of room in there.

Q. So did he block you in, is that the idea? A. No, he came in the front of the car, like I can back out, drive right, whatever. It's about a half acre lot. Q. Okay. Mr. Taylor, does he get out of his car? A. Yes, he was kind of almost the same thing, standing in the door of his car. Q. Standing in the ---

A. Yeah.Q. Oh, so you were standing in the door of

your car. A. Well, opened door, standing to get in the car, like. Q. Okay. You weren't seated in your car. A. No, not yet. No. Q. And so he came into the yard is what you meant, not --- A. Yes.


19260

Q. --- that he came into your house. A. Yeah. Q. And here you're recounting -- you also go back into when you saw him on the previous occasion and you're giving an accounting of his clothing on that day ---

A. Yes.Q. --- and his hairstyle, right?

A. Yeah. Q. So you remembered that in quite a bit of detail. A. Yeah. Q. And that meeting of course was an important meeting for you as well. That first meeting. A. I remember it, yeah. Q. You remember it because, as we reviewed several days ago when you testified, here's somebody coming forward and asking you the same questions about the time again.

A. Yes. Q. Right?

A. Yeah. Q. And Ron and PeeWee Leduc, all three of you are being asked the questions about the time and of course you're keeping this lie to yourself, so it's significant to you and obviously you remembered it well, right? A. Parts of it, yes. Yeah. Q. Yeah. Okay. On the next page, on page 23 -- well, first of all Mr. Taylor has reminded you about the pizza at the bottom of 22 but that's not something you'd forgotten anyway, right? A. No.


19260

Q. Today you know what brand it was, or not today but since you've been here you know it's Gabriel's or something? A. Well it's common in Orleans, yeah. Q. Is it? I didn't know that. And I gather there's a little more to the conversation than what you originally told Ms. Mulligan when you testified here because you've got a little bit of detail going here as we reviewed yesterday, right? A. In this interview, yes. Q. Yeah. You're being a little more --- A. Yeah. Q. --- descriptive in this interview that's only 48 hours after the visit than you were when you testified in chief, right? A. That's right. Q. Okay. Your first question is you're wondering "Why didn't I ever get asked to be a witness?" Well the answer is obvious, isn't it? You were lying for eight years, right? A. Yeah. I don't know if that's an answer but I mean ..... Q. Well, did you expect to be a witness and perpetuate this lie? A. No, but I was never asked to come on the stand or anything. Q. You say "It's funny, why -- I was the one running the garage. Why didn't I ever get asked to be a witness? I'm one of the last people to see him, obviously." A. That's right.


19260

Q. That was all based on your lie, even Mr. Taylor doesn't know the truth at this part of the conversation, does he? A. No, not yet. No. Q. Right. So you're pondering why it is that you weren't asked to be a witness based on your lie, right? A. But nobody knows it's a lie here . Q. Right. But you were expecting to come to court and testify about your lie. A. Or about the time or anything, yeah. Q. Yeah. And you were prepared to come to court and testify that it was -- that 7:00 o'clock, 7:15 thing, you're home by 7:15, your original statement, right? A. If I was under oath I don't know what I would've said back then. Q. Well, you think under oath might have changed it for you. A. Yeah. Could've. Q. But two visits from the police and a visit from Mr. Taylor didn't straighten it out but --- A. No. Q. --- the oath might've had a big effect on you, which would've surprised everybody I guess, eh? A. That's right, yeah. Q. It would've surprised whoever decided to call you as a witness, right? A. That's right, yeah. Q. Whether it was the Crown or the defence, you expected to be called to tell your lie. A. Well I figured I would be, I mean I had a garage beside the house and everything.


19260

Q. Right.A. For whatever reason I mean.

Q. Okay. And then you're recounting a little bit. You're sort of paraphrasing Mr. Taylor here, right? You're recounting this encounter in your backyard, the side yard, right? A. Yeah. Q. You're not pretending to quote him verbatim here, are you, sir? A. No. No. Q. Okay. And you're saying -- the summary that you're giving is that "you", meaning Mr. Taylor, "said the second half was starting, and you said your guys, they didn't have much evidence on your guys ..." and there's something about four questions and that sort of thing, right? A. Yeah, but --- Q. So it's obvious -- sorry? A. Sorry. I don't know what the questions were. Q. Okay. There's obviously some discussion with you and Mr. Taylor as you're standing in the doorway of your car. A. Yeah. Exactly what we just said, I guess. Q. There's some discussion about current affairs. Right? A. Well, it was going to resume or it was resuming, yeah. Q. Right.

A. Yeah.Q. And that's not how you portrayed it when

you testified originally in chief.


19260

A. Yeah. I'd forgotten, I guess. Q. Yeah. But obviously this is something you remembered and you reviewed just before you did testify in chief. A. It was two days later. Q. Right. Well you remembered it two days later ---

A. Yeah.Q. --- but you reviewed this video just

before you testified in chief, right? A. That's right, yeah. Q. Okay. Back then you recalled and you reviewed your recollection that there was this discussion instigated by Mr. Taylor apparently? A. He showed up in my laneway, yeah. Q. And he told you that "they", meaning the Crown or the police, or both, "didn't have much evidence on your guys", meaning Mr. Stewart and Mr. Mallory as it turns out, right? A. Yeah. I didn't know their names but ..... Q. Right. And does that convince you to assist Mr. Taylor, sir? A. It may have added to it. Q. Well, there's something here that changes your mind, right? The secret, the eight-year secret is going to be given up here, so we're just trying to determine what part of this discussion was enough to convince you. A. Even if that wasn't mentioned, if he came to ask about the time that day I would've said it. Q. You would've said it.


19260

A. I blurted it out. That's exactly what I said. Q. That's what you told us in chief, ---

A. Yes.Q. --- you said you blurted it out.

A. Yes. Q. You said -- Mr. Taylor came up and you said "Yeah, I know you, you're Russ Taylor, private eye" and you blurted it out, that's how you portrayed it. A. Well, not quite that way, but I mean he never asked me about the time, I volunteered it. Q. But that's the way you described it ---

A. Okay.Q. --- earlier, sir, right?

A. Yeah. My mistake. Q. Had I not had the opportunity to question you about this video, ---

A. Yes. Q. --- that's what the jury would've taken

into the deliberation room with them is a mistake on your part. A. It is, yes. Yeah. Q. And that was something you'd reviewed just before you testified. A. Yes. Q. Right? So it's Mr. Taylor that instigates the conversation. A. Yeah, but not about the time. Q. Not about the time. A. Yeah.


19260

Q. "And then you said there's something you want to talk about, and I said, 'It's the time thing, isn't it?'" A. Yes. Q. When Mr. Taylor said there's an issue here, --- A. That's right. Q. --- something we have to chat about, there's not much evidence against my guys, "they don't have much evidence against my guys, and there's something we have to chat about." A. Yeah, and obviously it's the time, it's the only thing I've ever had anyone come back to me about. Q. And it's whatever this four-question thing is, we don't know. A. Yeah, that I don't know. Q. And none of this interview was recorded so far as you know? A. No. No. Q. You didn't give your consent to have any of this recorded or anything, like you did on the video. A. Well, it was pretty short standing in the --- Q. Well it's not as short as -- I mean you portrayed it originally in chief as being very short, right? A. Yeah, and I still say that. Q. Okay. And as we'll see in another few minutes there's even more details discussed, right? It's coming out in fits and starts, your description of this interview.


19260

A. Yeah, but saying those two questions back and forth doesn't take long, we're not debating them like we are here. Q. And it's -- Mr. Taylor's portraying this to you as an us versus them sort of thing, right? A. Actually, no. No. Q. "They don't have much evidence against our guys", right? A. Oh, I guess, yeah. If I look back at it now I guess, yeah. Q. Yeah. So the way that it's phrased isn't 'come forward to the police, you'd better go to the police station, come on, jump in the car I'll give you a lift over to the detachment'. Nothing like that happened, right? A. No. No. Q. It's an us versus them thing right away. Before you confess the truth that's how it's portrayed to you, right? A. I see that now, yeah, but maybe. Q. Yeah.

Now it continues, sir, on page 23, we just heard it, Ms. Mulligan asks you near the bottom:

You talked about having met Mr. Taylor before. When was that roughly?

You say: MR. POTVIN: In -- just after the murder.

MS. MULLIGAN: Okay. And you were interviewed at that time?

We're at the top of page 24 now, sir: MR. POTVIN: Yeah, not a lot, but -- he just asked the basic

questions.

So you indicated right there under oath on page 23 that in fact it was just after the murder.


19260

A. Yes. Q. Okay. Now we reviewed the mistake that you made in chief with Ms. Mulligan, sir, and that's on page 55 of your examination-in-chief and the question was posed this way: "Q. Sir, I should've included as well way back

in the early days of this investigation, or I suppose in 1991, did you ever meet with anyone from the defence?

A. No, I did not.

Q. Did you ever meet with any private inves-

tigators?

A. Yes I did.

Q. Okay. And who did you meet with?

A. Russ Taylor.

Q. Do you recall what year it was you met with him initially?

A. 1990."

So your answer is the same that you gave under oath. A. That's right, yeah.

Q. Right. The 1991, you've never said that, though, have you, sir? A. No. Q. Okay. And when 1991 was suggested to you as a date that wasn't sufficient to jar your memory. A. I guess not, no. Q. And in fact you've given sworn testimony that that wasn't the date. "It was shortly after the murder" under oath here, right? A. That's right.


19260

Q. "Just after the murder", sorry, those are the words, "just after the murder".


19260

Now, did you see more than one private investi-gator, sir? A. No. Q. I just noticed that question "Did you ever meet with any private investigators?", plural. You never saw more than one? A. No. Q. Because you're aware that your uncle Ron was driven back and forth by a different private investigator when he testified here. A. I didn't know that.

Q. He was complaining about the parking, sir, but didn't he tell you that that was a short-term thing, he ended up being driven back and forth? A. I didn't know that. Q. You didn't know that?

A. No.Q. Okay, we'll resume, I'll just back it up a

little bit because every time I stop it I lose a couple of seconds and we don't want to miss anything. You're quite certain, sir, as we progress through this you're quite certain about the timing issue. I've suggested to you that time is a fluid subject, it keeps changing ---

A. Yeah.Q. --- but at some point in time before you

get here you've nailed it down. A. Nailed it down for the time I left? Q. Yes. A. Well, the only clock or timepiece, whatever it may be, was the one in the house. I had none in the shop yet


19260

and I didn't wear a watch, ---Q. Right.A. --- so I'm not sure the time I went in.

Q. You knew where the big hand was. A. Yeah, and the little hand. Yeah. Q. Yeah. Well you've never mentioned that you knew where the little hand was, right? It's only the big hand. A. Yeah. It was on its way to 11 and the big hand was --- Q. 20 to something. A. --- 23, yeah. Q. It could've been 20 to 12, maybe you were later than you thought. A. No, I wasn't. No. Q. No?

I'll resume this. Starting off at 19:15.--- Videotape played MR. COOPER: Q. I just have to stop it there, sir. This is demonstrative vagueness, isn't it? A. Yes. Q. Yes. You're demonstrating to all of us here that you didn't have a clue about when you went in. A. Not exactly, no. Q. You say -- you admitted you're vague on the time and then you prove it --- A. Yeah. Q. --- to everybody, right? You say "... now I remember." Well, remember doesn't mean speculation for you, right? We reviewed that yesterday. A. That's right.


19260

Q. Remember means a genuine memory, shouldn't it? A. It should, yeah. Q. But that's not what it says here:

... now I remember. If the breaker went, then I must've went home and ate, then came at seven or something. That's just a bit vague there. It's a long time ago.

And then you seem to firm up: Then the breaker went, then I went in, but I don't think it was seven. It was a little later than that.

A. Yeah. I don't have a definite recollection of the exact time, I don't. Q. You don't have any touchstones, you don't have any basis, ---

A. Not exactly.Q. --- you didn't see any hands going near 12

or 11 or 7, or anything, did you? A. Not in my shop, no. Q. No. So you're completely speculating here, it's if this, then that. A. Within a certain time frame, yeah. Q. Right. Well you don't know whether you went home and ate or not, obviously. A. Yeah, after my other job, no. Sometimes I pick up a burger on the way if I'm late or pressed for time. Q. Right. You have no idea what you did that day. A. Well I worked at Denis Lamoureux's, yeah. Q. Yeah. Well, can you be certain of that? Did you check any employment record?


19260

A. Oh yeah. Actually, we should check employ-ment records, it'll prove it, if we could get them. Q. Well, we'll see if that materializes.

You're pretty sure you worked at Denis ---A. Oh I know I did. Q. --- Lamoureux's that day?

A. Yeah. Yeah. Q. But some days you missed work when you were a coke addict. A. Yeah but not much back then. That's before. Q. Okay. Well you just started buying every two or three days back then. A. Yeah but I hadn't -- it's not my -- I don't want to say it's not my pattern, I don't want to go by pattern, but it was a little soon in getting back into it. Q. Okay. A. You know what I mean, for missing time? Q. You were still buying a half-gram every two or three days. A. Every two, three days, yeah. Q. On average. A. Well ..... Q. And how long does a half-gram do you? I guess I've never asked you that question. A. It might last me two, three hours, --- Q. Oh, it's a one-night thing. A. --- four hours, or I might do part of it, save part of it back then for the next day. Q. So it might've ---

A. It varies.Q. --- lasted you 'til the next buy.


19260

A. No, not 'til the next buy. Q. No? A. No, not that long. Q. You never had any reserve on hand? A. No, it wouldn't last that long. Q. You ran out, you had to go back to the cocaine store. A. Yeah, or a day or two later, or whatever. Q. Now, you're buying from Mr. Giroux at this time but he's not the only person that you know that's selling cocaine, right? A. No. That's right. Q. All right. So you might've picked up some at some other places as well. The two or three-day thing is Mr. Giroux's cocaine. A. Not at that time, no. I was just starting but I wasn't into it enough yet. Q. Okay then, we'll just get back to the video. I'll back it up again. About 19:32.--- Videotape played MR. COOPER: Q. "You could ask her, she wouldn't even remember the year it happened", right? A. Probably, yeah. Q. Well, no, you didn't even remember the year that Mr. Taylor first interviewed you, right? So Doreen is not the only ---

A. Touché!Q. --- one with a poor memory for years,

right? A. No.


19260

Q. And you say "I'm the one who's supposed to be burnt", you're talking about your memory. You have to serve for her memory notwithstanding that everybody knows that you don't have much of a memory yourself, right? Right? A. I think I have a good memory. Q. Well, "I'm the one who's supposed to be burnt". A. Yeah. That's my wife's words. Q. You're talking about your memory. A. Yeah. Q. Right. Your wife's told you you can't remember, you can't hold a thought in your head. Is that it? A. No, it's not thoughts, it's the "burnt" part.

Q. It's the burnt part.A. Generalized.

Q. Burned out ---A. Yeah.Q. --- drug user with 13 years of cocaine

consumption experience, well I guess ---A. Well not at that time, yeah.Q. --- it wouldn't be that long back then,

but --- A. No.Q. --- even when you didn't have 13 years on

your résumé of cocaine experience, your wife thought you were a burned out drug user. A. If I had a pint of beer every Friday she would still call me burnt, she's very adamant about that, but I'm not here to beat on my ex-wife.


19260

Q. No, but you recognize that your memory has been questioned by your spouse here. A. Actually I don't -- I don't know, memory, or whatever, life in general, whatever. Q. Right. Well you're talking about memory here, aren't you? Have I missed that --- A. Could be. Maybe it's the way it's inter-preted, yeah. Q. "I'm the one with the memory shit for her, you know. I'm the one who's supposed to be burnt but I have to remember things for her." You're only talking about memory there. A. Yeah, I guess it comes out with that, yes. Q. Yeah. So it's your memory that's supposed to be burnt and your ex-wife isn't the only ---

A. Supposed.Q. --- sorry?

A. Yes. Yeah. Q. And your ex-wife isn't the only person who thinks that. A. I don't know. Q. I mean you forget things like everybody else, right? A. Everybody forgets things. Q. And if you're, you know, forgetting to come back to work in the afternoon because you went to the cocaine store, then that's something, right? Well that's happened to you many times? A. That's not forgetting to go back. Q. Well that's deliberately not going back, right?


19260

A. That's right, yeah. Q. But you've forgotten things when you're concerned with cocaine. A. I think you put it on the shelf, maybe not forgotten. Q. Right.

A. Priorities, yeah.Q. Things that are put on the shelf sometimes

you forget where they are. A. I could. It's possible, yeah. Q. Now Mr. Taylor is asking you, sir, at the bottom of page 24 - I'm kind of working backwards in this little passage - Mr. Taylor is asking you about your wife, "Does she have any recollection associating -- you know." That's the whole basis, "associating", right? That's what Mr. Taylor is saying there? A. Yes. Yeah. Q. He's asking you if she, your ex-wife now, has any basis associating, any recollection by means of associ-ation, right? A. Okay. Yeah. Q. And that's the whole basis, the whole paradigm that Mr. Taylor is using in this interview is trying to get you to remember things by associating different things, like your habits, your routine, what you usually do that day. A. Okay. Q. Right? It's memory by association, that's what we're after here. A. But he's saying "Does she have any recol-lection associating". Q. Right. He's talking about your wife here


19260

--- A. Yeah.Q. --- but that's what he's been doing

throughout this interview, hasn't he? A. I guess I didn't pick up on it, I don't know. Q. But you're clear on that now that I've helped you out through this --- A. Possibly. Q. --- yesterday, and we'll continue today, but Mr. Taylor keeps bringing things to your attention by means of associating them with something else, right? A. Yeah. Q. A little go back in time and think what you were doing that day. A. Yeah. Q. Right? A. It's possible, yeah. Q. Or what did you usually do that day and what would you would've, might've, could've, probably did, right? A. Yes. Q. Now you've told us, sir, under oath --- Oh, one thing about your wife here before I go back. You're telling Mr. Taylor that now your ex-wife has no recollection at all, right? "I'm the one who's supposed to be burnt but I have to remember things for her. You could ask her, she wouldn't even remember the year it happened", right? A. Yeah. Q. What you're telling Mr. Taylor is don't go see my ex-wife, she's going to know less than I do.


19260

A. Well I'm not telling him not to go but he ain't gonna get much help. Q. Well that's the message that you're giving, eh? I'm the smart one, she won't corroborate me, right? I'm the one with the memory. A. That's right.

Q. Right.A. I wish she did have a good memory for that

evening. Q. Oh, you would trust her memory, would you, sir? A. No, but I wish she would remember that evening in question. Q. Would you trust her recollection, sir? Would you be prepared to adopt your ex-wife's recollection --- A. I can't answer for her.

Q. --- of that month?A. I can't answer for her. You'd have to ask

that question --- Q. No, but you seem to be placing some faith in it. I might be able to help you out here. Do you think your ex-wife's recollection of that month would be of some assis-tance to you right now? A. I don't know. Q. But you think it might be. A. No, I mean for that evening in question when I got home. Q. The fact that you were never home late without calling until eight months into your marriage, if your ex-wife had that recollection would that help you out? A. No, I know that, yeah. I already know that.


19260

Q. You know that? A. Yeah. Q. You never came home late without calling until eight months into your marriage, until 1991. A. Not real late, no, not 3:00 in the morning or anything. Q. Well if that's your ex-wife's recollection she's wrong about that. A. I don't know. That's not my recollection. Q. Do you know what? I don't want to get disrupted right now, ---

A. Okay.Q. --- but we'll get back to this area.

A. What I'm saying is I wish she could remember Tuesday evening for the time. Q. Any recollection she would have about Janu- ary would be of assistance to you, though, right? A. That evening in particular. Q. Yeah. Well, Mr. Taylor with his association to your habits at that point in time, that was of assistance to you, sir, wasn't it? A. It's possible, yeah. Q. She may very well have a recollection of that evening. You've never asked her, right? A. I can't remember asking her, no. Q. Or she might have no recollection about that evening whatsoever because nothing happened that evening that was out of the ordinary. A. That's not the way it happened, though. Q. If what you said on the 24th of January, 1990 was in fact the truth, sir, then nothing unusual happened


19260

on the 16th of January, 1990. A. You could take it that way, yeah. Q. Right. So if you were telling the truth to begin with and your wife had no recollection of it, of that specific night, that would kind of support your original ver- sion, wouldn't it? A. It would, yeah. Q. Because there was nothing significant to remember, right? A. That's right. Q. But the message you're giving Mr. Taylor here is don't bother with that, don't head down to see Doreen. You're pausing, sir. Is that right? A. Oh. Sorry. I don't know if it's the message. It's what I believed at the time. I still kind of believe it but ..... Q. Okay. I'm just going to back this up a hair again. 20:15.--- Videotape played MR. COOPER: Q. Now two things have been discussed here, sir. One is whether you got "in shit", to quote Mr. Taylor, that evening when you got home? A. Yes. Q. And you say "Oh definitely." A. Yeah. Q. Definitely means positively, no doubt about it. It means definitely, right? A. That's right.


19260

Q. Only definitely here means nothing because you explain it as you're going along "Well, nothing major. The silent treatment." A. Yeah. We never argued.

Q. Right.A. She just wouldn't talk to me for two or

three days. Q. If she's asleep that's a silent treatment too, right? A. No, a silent treatment is being with somebody and they don't communicate with you. Q. Okay. And you're pretty sure that's what happened that particular night. A. Oh yeah. Q. It wasn't that she rolled over and went to sleep. A. No, no, no. Q. Or that you had supper together, watched t.v. and then went to bed. A. No. Q. No? You have a specific recollection of definitely getting "in shit" only nothing major, even on your criteria the trouble you could get into, it was nothing major. A. She never flew off the handle any time I was in trouble. Q. It wasn't just nothing major, sir, it was nothing at all, right? A. Well it's nothing verbal, nothing -- no screaming, no yelling, no arguing; we never did. Q. Now the newspapers is the next thing that Ms. Mulligan brings up. When I was cross-examining you earlier,


19260

sir, you said you didn't follow the newspapers at all. A. No, I don't. Q. But that's not something you told Ms. Mulligan here, right? A. No. Q. In fact you said you were astounded and you were scared and then you explain why you're scared, right? A. Yeah, but that's not from the newspapers. Q. Okay. You're astounded from uncle Ron. A. Well, I kind of knew someone was murdered there. Like, I didn't need the newspaper to tell me that. Q. You didn't clarify that.

A. No. Actually --- Sorry.Q. Pardon me?

A. The newspapers, when this first happened, had myself as Denis Lamoureux's nephew in his garage when I found the bodies, so I don't pay attention to the newspapers. Q. So you did follow the newspapers. Well, you followed one.

A. No, he told me. Q. Pardon me? A. My employer told me and he was upset about it and he called the newspaper about it. Q. Okay. So your employer is reading the newspapers and then --- A. Yeah, and it involves him and he doesn't want anything to do with it. Q. And then discussing it with you. A. Well he just told me they made a mistake and he says "I'm calling the newspaper to clarify that." I don't remember what paper it was.


19260

Q. He didn't show you that newspaper I take it. A. No. No. Q. So how many other people, sir, discussed what was in the newspapers with you? A. I can't remember. I don't know. Q. So you were following it not by actually paying 50 cents a shot for the newspaper but you were following it sort of derivatively, other people were telling you. A. If somebody said something about it I'd say fine and dandy. Q. Now, you were astounded and you were scared because your "uncle and I", meaning your uncle and you, "We figured ..." and then you give this explanation which I'm sure, on review, it doesn't make any sense at all to you, right? A. No, it still does. Q. It still makes sense to you. A. I was there, believe me. Q. So you and uncle Ron, now uncle Ron, I referred to him as a drunkard a couple of days ago when you were testifying ---

A. That's right.Q. --- and you disagreed.

A. That's right. Q. But later on here you call him almost the same word -- right? -- not in this passage we reviewed but a little later on in the video? A. No. Q. He wasn't a drunkard? A. He drinks. He doesn't -- he's not a drunkard. That's a dirty word.


19260

Q. He's a drunk. A. That's falling all over and stuff. I've never seen him in my life do that. Q. He's a drunk. A. He's a drinker. Q. He's not a drunk? A. I don't think so. Q. That isn't a word you would use to describe uncle Ron. A. I've never seen him like incapacitated or can't hold a conversation with you. Q. Okay. A. I'm sure you don't understand what I mean. Q. So you would never describe uncle Ron as a drunk. A. Maybe I've loosely used the word. Could be. Q. No difference between a drunk and a drunkard, right? One is a short form of the other? A. Yeah. Q. So that would be a dirty word if you said a drunk in your description of uncle Ron? A. I guess, yeah. Q. Okay. So you and uncle Ron "figured if someone was murdered there", well you knew someone was mur-dered, right? A. That's right. Q. "... and they ..." that would be the killers I suppose, eh? A. Whatever, yeah. Q. "... didn't know we were in the garage, ..." Well you weren't in the garage, right?


19260

A. No I know but I don't know if they know that, whoever killed them, maybe they thought we were in there, maybe they didn't know there was a garage, that was my thought behind there. They thought or whoever performed the murder thought somebody was in there, later from the media that there's a garage behind there. That's my thought of it. Q. Okay. So it wasn't the case that "they didn't know we were in the garage", what you meant to say, what you meant to say here is that they might've thought we were in the garage. A. Well ..... Q. Because you phrased it ---

A. Yeah.Q. --- in the reverse here, haven't you? "...

they didn't know we were in the garage". A. Okay. So maybe I said it backwards. Q. Yeah. Exactly. Well I mean that's my point. It's not a big deal here, right? A. No. Q. You just misspoke. A. But it's a legitimate fear I had at the time. Q. Right, and based on that you were worried that "maybe they thought we saw them and they're gonna come back and get us", right? A. That's right. Q. But the part about, that we just reviewed, "they didn't know we were in the garage", you just have that a little bit backwards, right? A. Yes. Yeah.


19260

Q. Now remember earlier on when I emphasized the four aspects of credibility, number three was your ability to articulate your recollections ---

A. That's right.Q. --- and this is an example where that gets

--- A. I'm not very good at it. Q. Well, you got it backwards. A. Yeah. Q. Right? You misspoke.

Are there other examples in this video, sir, where you've gotten it backwards? A. Maybe certain words, certain phrases. Q. Now during the course of this interview, sir, in particular the next segment, there isn't any situation arising where you've given days of the week to consider or options to consider about different days of the week, is there, sir? That wouldn't come up? A. Are you asking me or telling me? Q. Yes, I'm asking you. Does that happen? Does anybody give you days of the week to consider and you have to start weighing off ---

A. If they did I ---THE COURT REPORTER: Okay, you've got to stop.

You let Mr. Cooper finish his question.THE WITNESS: Okay.MR. COOPER: Q. Did that happen, sir?

A. I don't recall it at the time. Maybe it happened but I didn't perceive it --- Q. Okay.


19260

A. --- at the time. Q. But you are a perceptive individual, aren't you? A. I try to be but ..... Q. You don't recall having to weigh one day versus the other and make a decision right on the screen here? A. Oh, it's possible. Q. And I'm going to suggest to you, sir, that you're given the date of Wednesday, you sort of chew it up, you swallow it and by page 27 it's confirmed now to be the truth. You don't recollect anything like that happening, right? A. Yes, I do. Q. Oh, you do recollect that. A. Yeah. Q. Let's see what's on the videotape. Starting at roughly 21:00.--- Videotape played MR. COOPER: Q. Okay, we don't need to get into the uncle part just yet. 21:42 is where we're stopping for a moment.

It starts off, sir, you're not sure about Wednesday or Thursday. First of all the question that Ms. Mulligan asks isn't an open-ended question, is it, sir? On page 26 "Were you at the garage the next day at all?" that would be an open-ended question, but the question continues "on Wednes-day?", right? A. That's right. Q. That's helping you firm up this Tuesday thought that you have in your head, right? A. No. It's only been Tuesday. Q. It's not challenging that thought, is it?


19260

A. No. Q. The addition of "on Wednesday" isn't something that provided you any basis to continue further, right? A. No. Q. Okay. But it does because you say "Is it Wednesday? Well, one day I went up when the police lines were there. That was Wednesday or Thursday." You can't decide, right? Of course a little bit later Mr. Taylor gives you the ultimate hint about when the bodies were found, right? A. That's right. Q. Yeah. It's coming up there in just a minute. But you continue to talk about the yellow stripes, you say "I think Wednesday is the day I took off. Yeah, Wednesday is the day I took off." So you're thinking about it and then you're making it so, right? You think it might've been Wednes- day and then in a heartbeat it is Wednesday, right? A. Okay. Can I add something? Q. Certainly. A. Like when I went into this video it's the first time I tried to refresh my memory on the details of that week, --- Q. Right? A. --- and I don't try to dispute that with anybody. I've been saying this all along. I know the night that I was there, Tuesday. I never pretended to know the evenings after, whatever, two or three days after, the days before, and it was very vague at this time and the reports did help me remember the details, they never helped me remember the evening in question. Q. We'll never know what your recollection was before you got these details supplied to you, right, sir?


19260

A. Which details? Q. These details we're just reviewing here. The Wednesday detail, Mr. Taylor saying the bodies were discovered on Thursday. We don't know what your recollection was before that, do we? A. I do. Q. Well, you didn't give it, sir. You were asked. A. No, not completely. This is the first time I get asked this question in eight years, well, sorry. Q. Right. Well it's about the seventh or eighth time you've been asked it in eight years, right? A. Yeah. Q. Not the first time.

But these are cues that you're being supplied -- right? -- and you're taking those as a point of departure, right? A. It adds to what I already know or remember, yeah. Q. Right. Your evidence, your recollection is a combination of your recollection, right or wrong, Ron's recollections, right or wrong, information supplied during the course of this interview and actually information whatever supplied 48 hours beforehand, right? A. That's right. Q. That was your recollection is on this day. Thirteen months later there might be other things added to it as well -- right? -- during the preparation phase? A. About the details, yes. Q. Because you firmed up a lot from the evidence given ---


19260

A. Yeah.Q. --- under oath here and the evidence you

gave in chief, right? A. And I remember more every day the more I'm in here. Q. Right. Yeah.

And with respect to this, now we'll get to this in a moment, but by page 28 you confirm that it's Wednesday for sure, right? Like it's just another few more minutes and what was suggested to you and weighed by you thereafter becomes a fact in your mind -- right? -- about whether you were there on Wednesday? A. Yes. Yeah. Q. Now Mr. Taylor on page 27 at the top is sort of reenforcing this thing "So you weren't working Wednes-day at all then", right? That's his question? A. That's right. Q. Right. He doesn't ask you what were you doing Wednesday. Right? A. Okay. Yeah. Q. He's reenforcing what you've just said, right? A. Yes. Q. And you say:

No, and I told my uncle that. Before that I said "Wednesday I'm not gonna be there." I had to actually make up with my wife for Tuesday night. That's what it is.

That's your conclusion there, right? A. Yes. Q. And frankly you don't remember any of that, do you, sir? This is kind of ---


19260

A. Not a hundred percent, no. Q. This is like improvisational comedy, you're making this up as you go along, it's improvisational evidence that you're giving. A. It's the most likely thing in --- Q. The most likely thing. That's right. You keep using points of departure in determining what is most likely.

A. Yeah.Q. If I'm stepping here it's most likely I

turned right, correct? That type of analogy? A. Yes, but the fact is I wasn't there Wednes- day for whatever reason. Q. Well, you don't have any recollection of phoning uncle Ron to tell him you won't be there on Wednesday. A. No, I had told him that Tuesday night. Q. You told Ron Tuesday night. A. Yes. I think that's in here somewhere. Q. You think that's in here that you told --- A. Here or ---

Q. --- Ron ---A. --- one of my reports.Q. --- Tuesday night.A. Yeah.

Q. Have you seen it? A. I'm not sure, no. Q. So before you took the day off you phoned uncle Ron and said 'I'm not going to be in tomorrow'.

A. Okay.Q. Right?


19260

A. Okay, sorry, right here on top of 27 "No, and I told my uncle that, that Wednesday I'm not gonna be there", so ..... Q. Yeah, that's what I'm talking about.

A. Yeah.Q. That's the passage we're reviewing, sir.

A. Okay. Yeah. Q. You haven't seen it anywhere else in here, have you? A. I don't think so, no. Q. No. No. So you're saying that Tuesday you phoned your uncle to say you'd be late because you had to make up with your wife. A. No, I never phoned my uncle. I was there. Q. You just told me you phoned your uncle ---

A. No, I never phoned ---Q. --- on Tuesday, sir.A. --- my uncle. No, I was at the garage

Tuesday. I met him there with my uncle Kenny Tuesday night. Q. And you told him live, then. You didn't phone your uncle on Tuesday, right? A. No. Where does it say I phoned my uncle? Q. Well that's what you just said. A. No, no, no. I never phoned my uncle. Q. You just said that five minutes ago, sir. A. No. Q. Less than five minutes ago. A. I never phoned my uncle. Q. So you didn't phone your uncle on Tuesday and say you wouldn't be in the next day, on Wednesday.


19260

A. I didn't have to, he was at the garage when I arrived there. Q. Right. So you told him then. A. Yes. Q. Okay. That's great. You told your uncle that, like, just in case the power blows and I have to go around reaching in the dark taking off the barrette connectors on the power box and then go to Michel Giroux's and then pay him for the cocaine and then -- pay for the Hydro, rather, and then he'd be giving you free cocaine and then I'm going to be four hours late, just in case all that happens, and I get in trouble, I won't be in tomorrow. A. That's not it at all. Q. That's sure not it at all, is it, sir? A. No. No. Q. No. This demonstrates that you're complete-ly in error here, doesn't it? A. No. Q. You told your uncle you wouldn't be in because you'd been in trouble Monday night. A. No. No, no, no, no. I wasn't coming in Wednesday at all before any of this happened. I already knew that when I got there and it's right here. Q. So it was nothing to do with having to make up with your wife. A. It adds to it also. Q. It adds to it? A. Yeah. Q. You keep adding to your evidence as you go along, sir. You've lied here. A. No I haven't.


19260

Q. Then you've made a horrible mistake, haven't you, sir? A. No. You have a weird way of interpreting things. Q. You're indicating to this jury that you told your uncle on Tuesday when you saw him between 7:30, 6:30, whenever that was, the time you can't determine, that "Wednes- day I'm not gonna be there. I had to actually make up with my wife for Tuesday night." A. Yeah, that's probably a mistake in this interview then. Q. Well your mistake was five minutes ago when you said you made the call Tuesday night and then it occurs to you that you couldn't've made the call Tuesday night. A. I never made a call to him on Tuesday night. Why would I call him when I'm at the garage? Q. Sir, you're making this up as you go along, aren't you, sir? A. No, you're interpreting it wrong as I go along. Q. You're trying to replay everything and re- interpret things as you progress. A. No. One of us was there; unfortunately it was me.

Q. Pardon me, sir?A. One of us was there and unfortunately it

was me. Q. Meaning I wasn't there, is that what you're saying?

A. That's right.


19260

Q. Yes. You were there, sir. You just don't remember what nights you were there. A. Oh yes I do. Q. You don't even remember what you were doing that day, you don't remember what time you arrived. A. That's what you'd like to believe. I remember it. Q. You had to stay home on Wednesday to make up with your wife, that's the only reason you were staying home Wednesday. A. No, I don't know what reason I was staying home Wednesday. I didn't work every day. I said I had told my uncle that before, "Wednesday I'm not gonna be here". Q. Okay. A. I've added to this later that I gonna stay home to make up with my wife, that probably came in later or misinterpretation. Q. That's a problem with all of your evidence, it's a combination of things that happened over most of a decade, right? It keeps blending in, things that happened in '90 blend in with things that happened in 1998. A. No. I don't remember -- like I told you a long time ago I don't remember the details before and after. I remember that evening. Q. So you told Ron 'I won't be in tomorrow night', that's what you told Ron --- A. Yes. Q. --- on Tuesday early, before --- A. Yes. Q. --- you went over to Giroux's. A. Can I add something?


19260

Q. Yes, you can always add something, sir. A. Why don't you subpoena - I guess you already have - my uncle and ask him. Q. Well, you can add something. What you can't do is ask me questions, sir. A. Okay. Sorry. Q. So it wasn't a call to Ron at all, it was a live conversation. A. Yes. Q. So on Wednesday you didn't think that maybe Ron -- well, you didn't work every day, did you, sir? A. No, I did not. Q. You only worked when there were things to do. A. Or if I didn't have things to do with my wife, whatever, yeah. Q. And there were things to do -- right? -- on Wednesday? A. On and off. There always is. Q. If Wednesday was the day after you did the lines with Michel Giroux, you had work to do. A. Or my uncle was gonna go in and finish it, whatever. Q. You had work to do. You were the mechanic, right? A. That's right. Q. You had to put that door, either finish taking it off or put the next one on so that he could do his body work. A. No, I would help. He was capable of doing stuff too. When I had time I'd help him.


19260

Q. And he was the individual who was going to be the electrician and go in in the dark because it would still be dark when he got there, wouldn't it? A. Not if the breaker would be put on on Tues- day night.

Q. Oh, the breaker is back on, okay, so it's just the light. You didn't rewire the lights, you didn't rewire everything. A. No. Q. You said you took apart this electrical box which was the very source of all the power in the garage. A. No. No, there's a box at the heater. Q. At the heater? A. Yes, just for the electrical heater. Q. Just for the heater, so you went --- A. Yes, it's just an outlet. Q. You went into that outlet which isn't an outlet, it's a box, right? A. A box, yeah. Q. In the dark and you took off the barrette connectors. A. That's right. Q. And you didn't tell Ron anything about that. A. Oh I don't remember if I did at the time, no. Q. Well, you couldn't've told Ron anything about that, right? A. I don't know. Maybe I called him the next day. I don't remember that detail.


19260

Q. Well there wasn't a phone in the shop, so you couldn't've ---

A. No. Q. --- called him the next day there, ---

A. I have no idea.Q. --- right?

A. Yeah. Q. So you just left this in and poor uncle Ron the wires are live, he's going to go in there and 'what's wrong with this heater? It's not going.' Go to the electrical box and fry himself. A. It's not the only source of heat. That was an additional heat source for the paint booth. Q. Yeah, and that's his job, right? Painting. A. Yes, but there was ---

Q. It's one of his big jobs.A. --- no paint job in question yet.

Q. Well you don't recollect that, sir, do you? A. Well we had the door off. It wasn't time to paint it yet. Q. Do you know if that was the only vehicle you had in there, sir? A. I don't remember. Q. You don't remember ---

A. No.Q. --- if you had one small vehicle or three

small vehicles in there. A. It could be whatever.

Q. You don't remember what kind of car you were taking the door off.

A. Yeah, it was a Pulsar.


19260

Q. Your uncle had been working on the blue Pulsar. A. Yeah. Q. Now your uncle was expecting you Wednesday, sir. A. No, he wasn't. Q. He's given information to that effect, sir. If that's true, then you're wrong on this point, aren't you, sir? A. Maybe that's what he thinks, yeah. Could be. Q. He could be wrong. A. Yeah. Q. He's not included in the doctrine of Potvin infallibility, it's just you, right? You're the only one that doesn't make mistakes. A. He could be expecting me, yeah. Q. The assistance provided by Mr. Taylor here - well, wait a second. You're certain, sir, that the night that you did get in trouble, if you got in trouble at all, you didn't stay late the next night for sure. A. Wednesday? Q. You wouldn't do that two nights in a row. A. No. Q. And sometimes around this portion of your operation at the garage when it was still starting up, right?, --- A. Yes. Q. --- you were working six days a week -- six nights a week. A. No.


19260

Q. It never happened? A. No. Q. Never six nights a week? A. I doubt it. Q. You doubt it? A. Yeah. Q. Well you had a pretty definite routine you've told us, it's Tuesdays, Thursdays, Saturdays. A. Unless something intervened and had to change it. Q. You would never be there six times a week. A. I doubt it. No. Q. Or five. A. Not at that time, we weren't that busy yet, we were just starting off. Q. Or four. A. It could go four. Q. It could go four. A. Yeah. Q. And you don't say under oath here that you were working there six times, so that's not going to appear here in the next few pages, is it? A. I have no idea. Q. That'd be completely wrong if it does, right? A. No.

Q. It'd be a mistake.A. Somewhere I might've worked six days but

not at the beginning, no. Q. Okay. Not at the beginning when you were trying to start the business up, you waited until the business


19260

was rolling to work six days a week. A. Well, you have to have something to work on to be there. Q. Right. And you had something to work on by your own evidence, sir, you had something to work on. A. Yeah.

Q. You had that Pulsar.A. If you have to be there six days a week

it's because there's other jobs in waiting. Q. And there was another job waiting too, wasn't there a van there? A. A van, yes. Q. Yeah, there was a van and a Pulsar, wasn't there? A. Yeah, there was a blue van, yeah.

Q. So you had two vehicles to work on. And, you know, you were making arrangements for something to do with Mr. Giroux's vehicle, weren't you, his other Chevette, the blue one? A. Yeah. Whenever. Q. So you had -- but I guess that was already finished because that was gone by then, wasn't it? A. My uncle had did something with the doors. Q. Was it still in the shop, that blue Chevette? A. I don't think so. I couldn't tell you. Q. Okay. So you might've had three cars in the shop. A. Could be, yeah. Q. The shop might've been just filled to capacity waiting for work to be done.


19260

A. Yeah. Q. But you don't recall what work was there. Where did you get this Monday, what was it?, Tuesday, Thursday, Saturday routine? You said that under oath here. A. Yeah, that's basically when I worked. I tried not to work every night, I was just with a new girlfriend and everything and we were going to get married shortly. Q. But you don't have any other commitments on Mondays and Wednesdays and Fridays? A. To my wife, yes. Q. Oh. You go bowling or something, sir? A. No, just spend time together or whatever it is. Q. On Mondays and Wednesdays and Fridays. A. Yeah. Q. That's a definite schedule. A. Not definite, no, but the most common one. Q. You're pretty definite that you only worked Tuesdays, Thursdays and Saturdays. A. Sometimes I had to change it up, yes. Q. There's nothing, nothing, sir, that you've ever suggested prior to this, is there, that suggested you had a set schedule of when you had to work? A. No. Q. No. That's something that's part of this improvisational evidence that you're giving. You've made that up to nail down a Tuesday, didn't you, sir? A. No. It's something I remember. Q. And you knew you were back there Thursday. A. Well I tried to get up the hill Thursday, yes.


19260

Q. Right. So that's why you're fitting the Tuesdays, Thursdays thing in because it sort of fits with your routine that week. Right? A. Well it fits with what happened. Q. It fits with what happened. A. Yeah. Q. So sometimes you take the routine as the point of departure and here you're taking your belief of what happened as the point of departure to determine what your routine was. A. You could put it any way you want, it's still all around the Tuesday night. Q. I'm suggesting, sir, that, to paraphrase Mr. Taylor, you were in shit on Monday night and Tuesday you phoned uncle Ron to say you wouldn't be there Wednesday. A. No, my memory is just not that bad, I'm sorry. Q. Pardon me? A. My memory is just not that bad. Q. Okay. How bad is it? A. I don't know, I haven't done any memory test lately. Q. Right. You've had difficulty answering questions about your recollections right here, haven't you, sir? A. On details, yeah.

Q. Yeah.A. Who wouldn't eight years ago?

Q. On a night that was not significant at the time, right? A. No.


19260

Q. Uncle Ron is the topic of conversation in the next passage in the video, sir, and you're indicating that you're quite certain that you wouldn't have referred to him as a drunk or a drunkard because those are dirty words. Right? A. I may have said it on a slip, whatever, but ..... Q. He has a big problem with alcohol. A. Sure. Yes. Q. Right? And he hasn't ever in his adult life abstained, like you have of cocaine. You've had some periods of abstinence but --- A. I don't know his personal life that close, I have no idea. Q. Well you worked with the man every -- well, maybe not every day, maybe Tuesdays, Thursdays and Saturdays for two years? A. Yes. Q. You were his employer? A. That's right. Q. It was the only job he had? A. That's right. Q. And he drank every day. A. And he was there whenever I needed him. Q. Sure. He didn't have as much of a problem as you did with addiction in that he didn't miss work because he was drunk. A. That's right, yeah. Q. You did miss work because you were stoned. A. I chose to, yeah. Q. Yeah. But he didn't behave in that way, he was a little more responsible.


19260

A. Yes. Q. But he was drunk every day. A. He was drinking. Q. And he was drunk. A. He might have four pints in a whole afternoon, like I don't know if that's considered drunk. Q. He might have four pints in an hour. A. No, ---

Q. Right?A. --- I've never seen him drink fast. Q. You've never seen him ---A. I can't say for his whole life there, but

since I've known him. Q. You've never seen the man with an empty bottle of beer unless he was headed to the fridge for the next one, right? A. No, I wouldn't say that.

Q. Ron would come here and say that himself, wouldn't he?

A. Yeah but he was not a fast drinker from what I recall, ---

Q. That's right, then, ---A. --- since I've known him.

Q. As soon as one was empty back to the fridge and pop the next one. A. I can't say. I mean it's not my life. I mean it's ..... Q. I don't want you to make any judgments, sir, I'm just asking you for observations.

That is the case, isn't it? A. Yeah.


19260

Q. Okay. 21:40.--- Videotape played MR. COOPER: Q. And the topic changes, sir. What kind of mistakes is uncle Ron prone to make? A. Pardon? Q. What kind of mistakes is uncle Ron prone to make? A. I don't understand the question. Q. Well, you said he's not prone to make stupid mistakes. A. Oh, I don't know. I've never seen him make a mistake. Well, sorry, we all make mistakes. If you work you make mistakes or you're full of shit. I've never seen him do something that's out of the ordinary of any other human being who's not under the influence of something. Q. You've never seen him forget something? A. Well I can't remember any particular thing right now, no. Q. Now you did call him a drunk, didn't you? A. Well I guess I did, yeah. Q. Yeah.

A. Yeah.Q. What you're trying to do here it's a

similar thing to your ex-wife's recollection, aren't you, sir? You're pinning your recollection as being more accurate than Ron's, aren't you, sir? A. How's that? Q. Well you're not an alcoholic, you're not a drunk, you haven't drank all your life, right? A. I've drank.


19260

Q. Not all your life. A. No, it's never been a big problem, no. Q. And uncle Ron doesn't have a hearing problem? A. Not that I know of, no. Q. He can hear over that six-horse compressor? A. Oh, not if it's running, no. Q. No. He can't hear anything over ---

A. No.Q. --- a six-horse compressor if it's

running, can he, sir? A. Yeah. They only run for like three, four minutes to refill the compressor, yeah. Q. And that fan that you had hot-wired into the electrical box there, that makes a noise too. A. Well, it was a thermostatic heater with a fan that was on a thermostat, ---

A. Right.Q. --- cycle on and off. It's an industrial

heater. Q. An orange one? A. Yeah, exactly. Q. Yeah. And when they're running they make a fair bit of noise. A. Oh they would, yes. Q. It's kind of that white noise stuff, you know.

A. White noise stuff?Q. White noise, background noise? A. Oh, sorry. Yeah.


19260

Q. Yeah. And that makes it harder to hear other things. A. Sure it would, yeah. Q. And in January, even if you've got the heater going and the wood stove going, you've still got the doors closed, right? A. That's right. Q. Right. Because you're not giving away heat, right? A. Yeah. Q. Notwithstanding you've got only $ 75. to pay for the electrical bill, it's not something you're going to waste. A. No. Who would. Q. And you're not going to be cold while you're working either, right? A. Yeah, we had a wood stove also. Q. Yeah. So you've got the doors closed, you've got maybe the compressor going and maybe the fan going as well. A. Well the fan wouldn't've been going Wednes- day because I hadn't rewired it again. My uncle wouldn't've touched it ---

Q. Oh, he wouldn't have gone and ---A. --- from Tuesday.

Q. --- played with the wires like you did. A. I don't think so, no. Q. Okay. Especially in the dark, he wouldn't have done that. A. Well it wouldn't've been dark, no. Q. No. But it was dark when you did it.


19260

A. Oh yeah. I knew where the wires are. Q. And you're pretty sure the power was out, right? A. Oh I know it was, yeah. Q. You're pretty sure that it wasn't going live to that box. A. Oh no. It doesn't matter if you grab one wire at a time you won't get a shock anyway, electrical. Q. You know a little bit more about electrical work than you let on, sir. A. That's my trade. I do the electrical on automotive fuel injection.

Q. Okay.A. I understand the basis of it even though

it's different than household. Q. And it's a 220 system that you had running into that electrical box. A. That's right. Q. So it's fed either by a three-wire 12 gauge or --- A. I can't remember that. Q. --- a two-two-wire 12 gauges, right? A. I don't know that much about household. Q. Well if it's two twos and one of them is blew, the other one's live, right? A. It could be, yeah. Q. So you're not sure whether it was live or not. A. It wouldn't be live if the power went out. Q. Well it could be if there was two wires coming in to supply the 220, sir, couldn't it? You know enough


19260

about this? A. Yeah. It could be, yeah. Q. Right? So one could go and the other one could be live but you're in there playing with the barrette connectors, according to your evidence. A. Yeah. Q. You indicated on page 28 at the top, sir, you're relating hearsay evidence of course that uncle Ron gave to you, and it's not --- A. That's right. Q. --- admissible here for its truth. A. Exactly. Q. But it's admissible for what influence it had on you, and it had a great deal of influence on you, didn't it, sir? A. I guess at the time, yeah. Q. It fortified your evidence. Right? A. Yeah, well I know what happened on Tuesday and he's saying this happened on Wednesday. No fortification here. Q. Yeah. It compliments your evidence. A. Compliments, maybe. I don't know. Q. And it helps you firm up which day you were there. A. No. Q. You didn't need any help doing that. A. Never. Q. Okay. And so it's completely irrelevant to be mentioning it here, right? A. No.


19260

Q. How is it relevant to your evidence here if it didn't help you recall something? A. I don't know. I have no idea why I added that. Q. It was just something you thought was important enough to say under oath. A. Yeah. I added it, yeah. Q. Yeah. And uncle Ron hears this noise in the night, that's what he explained to you, ---

A. That's right.Q. --- the starter?

A. Yeah. Q. And down and up, right? A. I think so. I could be wrong. I know he said it started, yeah. Q. Well you don't make mistakes like that, do you, sir? A. Maybe I do, yeah. You see that's --- Q. And he said it went down and up, that's what you said under oath here. A. Okay. But that's his evidence or his --- Q. But it's the effect on you, sir, that we're after. A. Okay. Q. And you've added "that's the way he used to bring his garbage", not uncle Ron but Mr. Giroux. A. That's right. Q. Right? Because that's a steep hill to walk up and down, right? A. It can be slippery, yeah.


19260

Q. And if you have to walk down carrying stuff it's easier to throw it in the trunk and go down if your car happens to be already up, right? A. Yeah. Some people are lazy. Q. And "that's the way he used to bring down his garbage", so this is another instance, sir, where you're taking from the general to the specific, Mr. Giroux usually did this. I mean this is your evidence here, this part of it. A. That's right. Q. You knew he usually did that or is that something uncle Ron just told you? You weren't there on garbage day, were you? A. No, that's something I was told. Q. Okay. So you have no idea yourself how Mr. Giroux took care of his garbage. A. Actually, not a hundred percent, no. Q. Okay. Not even ten percent. A. Maybe not. I just went by what I was told, hearsay, whatever. Q. Okay. So this part is hearsay too. A. On which part? Q. "That's the way he used to bring his garbage". A. Okay. That's the way I was told he used to bring his garbage, yes. Q. Okay. That's just uncle Ron talking there. A. Yeah. Yeah. Q. And you talk about your discussion and "... whenever they said he must've been killed Tuesday, Ron says there's no way also because he's sure he heard it Wednesday You know" and then you talk about him being a drinker and that sort


19260

of thing. Right? A. That's right. Q. He also means that it's not only you, it's him. A. Yeah. Q. Right. So there's your evidence, and there's no way he was killed Tuesday because of what you say and also because Ron heard a noise in the night that he thought was the starter. A. I know what time I was there Tuesday and he's also saying Wednesday. I'm not trying to -- I'm not the judge and jury here on this, I'm just giving my perception of it. Q. But that's why you add the word "also", right? A. Of course. Yeah. Yeah. Q. Okay. The next portion, sir, deals with questions pertaining to your knowledge of Mr. Giroux.

Just a moment, please. THE COURT: Q. I suppose in addition to "also" you say "there's no way", so you and Ron have the same position, there's no way it could have happened, right? That's "also".

A. Yes.Q. So the "also" means both you and Ron say

there's no way, right? A. Okay. I understand. Yeah. Q. Okay. A. Yeah. MR. COOPER:


19260

Q. So what you've always said, sir, what you've always maintained is that you were there the night before the murders, right? A. The Tuesday night. I don't know, it could've happened 10 minutes after I left for all I know. Q. You've said repeatedly the reason it was significant to you is that it was the night before the murders. A. Or whatever. Q. Or before the murders, you're one of the last people to see him alive. A. I presume that, yeah. Q. And you're relying on uncle Ron in part to help fix Wednesday night as being the night of the murders. A. No. Q. No. A. No. Even if he never said anything to me it wouldn't change what I know about Tuesday night. Q. Okay. But it helped as you just told His Honour, it helped. A. Yeah, but it doesn't help me. Q. It doesn't help to convince yourself that you're right. A. No. No, I know the time. Q. And that's all you know, sir, is the time you were there, right? A. Basically. It's about the only thing I kept track of all these years, that's always been a constant from 1990, two or three days after the murder, until now. I didn't try to remember details. Q. All of these years your recollection is where the big hand was.


19260

A. Well the time, the big hand and the small hand, whatever. Yeah.

Q. Right. But this clock was somewhere in your mind --- A. Yes. Q. --- at the time of this interview. A. Yeah. Q. It hadn't materialized in the wall. A. Materialized in the wall? Q. Yeah, you hadn't fixed where it was, ---

A. No, and I honestly ---Q. --- it was just a clock you had in your

mind, right? A. --- honestly didn't remember when I was first asked where it was, no. Q. You always knew, sir, since two or three days after the murder. A. Pardon me? Q. You always knew you were there --- A. Yes. Q. --- on Tuesday, since two or three days after the murder. A. Yeah. Well no, I mean I've always main-tained this because Ron and I talked about it two or three days after the murder, whatever. Q. Right.

A. Yeah.Q. And that's when the memory fixes in your

mind, when you talk with Ron. A. No, I knew it was Tuesday. The first time I told anybody was two or three days, which was my uncle Ron,


19260

and I didn't --- Q. Right. If Michel ---A. Sorry. Q. Sorry?A. I didn't tell him it's because he said --

he did not hear from me what time I was there and he said they figured they were killed about this time. I added to him it's impossible, I was there 'til 20 to 11:00. Q. There was nothing significant about that part, sir, in terms of the day of the week, though. I mean if there had've been no deaths it wouldn't have been that signifi-cant to you, right? A. No deaths?

Q. Yeah, if nobody had've been murdered.A. No, it's the deaths that made it signifi-

cant, yes. Q. Exactly. And that's something you didn't know for two or three days. That's the point I'm trying to make. That's not --- A. Yeah but it's like to Thursday or whatever, Friday, when my uncle told me that, yeah. Q. Yeah. It's only, you know, 48, 72 hours, something in that range. A. Somewhere around there, yeah. Q. We're just going to go over this next part and I don't have very many questions on it, so let's get the camera rolling here. 22:37.--- Videotape played MR. COOPER: Q. Stopping there, sir, at 25:21 "never" means "once 15 years ago."


19260

A. Well ..... Q. Right? A. Yeah, I hadn't been there. It wasn't a place I frequented. Q. Well you weren't asked that question, were you, sir? A. I guess I interpreted it wrong, yeah. Q. It's not too much to interpret here. "Did you ever go to the Carlsbad Springs Show Bar at all?", ever at all. Your answer: "Never." Ms. Mulligan "Never." Answer: "Like, I was there maybe 15 years ago once."

A. Yeah.Q. You're not being too precise here.

A. No. I mean I'm saying I was there once. Q. The murders were about nine years ago almost. That's not never, is it? A. No. Q. No. Exactly. And 15 years ago isn't never either, is it, sir? A. No, I guess not. Q. Okay.

I'm backing up a bit. You had people making inquiries of Mr. Giroux while you were at the garage. A. Sometimes people were looking for him, yeah. Q. Okay. And you indicated that some low-lifes wanted to know "Is Mike around?", right? A. My opinion, yeah. Q. Your opinion that they're low-lifes. A. Yeah.


19260

Q. Yeah. But mostly it was middle, even upper class people. A. From what I've seen on and off sometimes look out the window. Normal looking people like you and I. Q. Yeah. And driving normal looking cars. A. Sometimes, yeah. Q. But some of the people were coming by looking for Mike in the summertime. A. No. No. Q. Not that? A. No, that's a mistake.

Q. That's a mistake.A. It's pretty hard to when he was killed in

January, yeah. Q. Well that's the point, isn't it?

A. Yeah.Q. So there wasn't anybody in the summertime

when you had the door open. A. No. No. Probably what I mistook was having the door open to bring a car in, maybe somebody walked in the opened door, whether it be winter or not. Q. So that's the kind of mistake that you've made, sir, when you're associating one thing with another. You're associating in this case the door being open with summertime. A. Or someone walking in the opened door, yeah. Q. Right. And you're making that association and determining that it must be summertime. A. You've got to open the door to bring a car in.


19260

Q. Oh but these are your words, sir, not mine. A. Yeah I know. It's obviously a mistake. Q. "'Is Mike around?' or something when I'd have the door open in the summertime, whatever. Bring your car in, I don't remember what, but I remember someone walk in the big door, not the little one, and inform me -- you know." So you're talking about here -- you're surmising that it's summer-time because the big door is open.

A. Yeah.Q. Right?

A. Also you got to open it to bring a car in. I guess, yeah. Q. It's a mistake you made under oath. A. Yeah. That's right, yeah. Q. And you made it because you're speculating. Right? You're speculating. A. No, I know someone must've came in an opened door but ..... Q. And you're speculating it was summertime. A. Yeah. I'm probably nervous too. I mean it's the first time I'm on Candid Camera here too, eh? It's not my --- Q. It wasn't Candid Camera. It was a camera that you consented to be under, right? A. That's right. Q. Yeah. And you certainly didn't make those observations that you've recounted here under oath about asummertime visitor looking for Mr. Giroux, right? A. No. Q. So it was -- your recollection is false and it's false because of what you thought were touchstones, right?


19260

A. The door was open I guess, yeah. Whatever. Yeah. Q. You've gone from that and missed a whole season. A. Yeah, well I don't think I was too strong on the fact that it was summer there but ..... It's pretty hard to be summer. Q. There's no way for us to determine on that video, sir, what you're strong on and what you're --- A. No, no, I have no way of proving it to you. Q. --- what you're completely wrong?

You looked the same there as every other frame, so to speak, if it was a film. You're just trying to be helpful, sir, aren't you? A. Pardon me? Q. You're just trying to be helpful here. A. Helpful? Q. Yeah, you're asked these questions about who's coming to see Mr. Giroux and you're trying to be helpful. A. I'm trying to answer it but maybe I'm adding too much. Q. Exactly. You're adding too much. You're lying. A. No, it's not lying. Q. You're making stuff up as you go along. A. Well no, somebody obviously came and opened the door. Q. You're making mistakes as you go along at least. A. Mistakes. Not a lie.


19260

Q. It has the same effect if somebody believes you, though, right? A. It could, yeah. Q. Yeah. And clearly this particular recollec-tion is one that we can't trust at all, this recollection. A. Well, somebody -- people have stopped in the garage when I was there, looking for Mike. Q. Right. But Mike Giroux was only alive for a few months --- A. That's right. Q. --- of the time that you had the garage. A. Yeah. A Freudian slip. I don't know. Q. And you're into rank speculation by the bottom of page 29, aren't you, sir? A. Rank speculation? Q. Yeah. It's complete guessing. You're talking about this individual nicknamed Packy, that man's name is Paliquin. Have you ever heard that, sir, Mr. Paliquin, Michel Paliquin? A. Could be, yeah. Q. You've never heard that name. A. No, I remember somebody named Packy. Q. Okay. And "Do you know what his relation-ship was with Giroux?" and you say "Buying, I guess." A. Well he was in and out fast. I mean I could be wrong. It's my opinion. Q. Exactly. A. Maybe he was a cousin. Q. Yeah. You don't know why he was there. A. No, I don't. No.


19260

Q. You don't know if he was bringing stuff in or taking stuff out --- A. That's right. Q. --- or not having anything to do with stuff, right? A. It's possible, yeah. Q. I mean your uncle Ron was in there every day to use the phone. He wasn't buying cocaine, was he? A. That's right. Q. And he wasn't transporting cocaine for Mr. Giroux? A. No. No. Q. And he wasn't supplying Mr. Giroux? A. No. Q. Your uncle Ron was there every day to use the phone and he wasn't one of these guys. A. Well I don't know if he was there every day to use the phone but he had to use the phone, yeah. Q. When he had to use the phone that's the one he used.

A. Yeah.Q. But you say:Buying, I guess. And there was some other lad with a Dodge truck ...

It's got one of those Dodge starters in it, doesn't it? A. Yeah. Q. They have the same starters, right?

A. Yeah.Q. And it's that one that your uncle heard in

the dark one night, right? A. Yeah. Yeah.


19260

Q. And so this lad, did you ever see -- you said you didn't know him by name but did you ever see anybody identified to you as Michael McFadden driving a Dodge product as well? A. I don't know the name.

Q. No.A. No.

Q. Now this other lad in the Dodge truck with the similar starter, "I think he was supplying him or trans-porting it for him. I'm not sure." Well "I'm not sure" is the only accurate part of that sentence, isn't it? A. The only reason I said that is because I remember wanting some from Mike before the murder --- Q. Right. A. --- and it just seemed that he didn't have any and after this truck was there he had some for me. That's the only reason I said that. Maybe someone else come in in between. That's speculation. It's not for me to say. It's my opinion. Q. Exactly. But we'd never known that if I hadn't asked you those questions, right? A. No. No. Q. I mean you could be way off on that. A. Oh I could be, yeah. Yeah. Q. And you're talking about his hair colour in the middle of page 30, you say "If I remember right." Again you're qualifying your recollection and then you're taking stabs at his name, right? A. Yeah, I don't know why I would've known his name. Like I said at that time I heard his name called or something.


19260

Q. Dan Charron, sir, does that name ring a bell for you? A. No. Q. Dan Charron? You don't remember an individ-ual driving a Dodge product, a blue Dodge truck, with that name? A. No. Q. No?

A. No.Q. Now the general type of vehicles there,

and I'm going to stop for the break shortly, were middle class cus- tomers, regular folks -- right? -- driving regular newer cars? You say something about newer looking cars. A. Yeah. Nothing out of the ordinary, yeah. Q. Right. I mean there were nice cars coming up there to see Mr. Giroux as well. A. Yeah, what I remember seeing. Yeah. Q. And you wouldn't necessarily watch them the whole time to see how they -- you don't have your nose pressed up against the glass, you're there to work, right? A. None of my business, yeah. Q. So when you see a car come and leave it may be that in between you're doing something else, right? A. That's right, yeah. Q. Or you see a car come and you hear a car leave, or truck? A. That's right, yeah. Q. Yeah. And the kind of cars that were up there, there was also you saw a red or rust-coloured pickup truck there occasionally as well, sir? A. If I said that I don't remember it now, no.


19260

Q. You don't have any recollection but it could've been a red or rust-coloured pickup truck ---

A. Could be.Q. --- up there, or one of each.

A. There was a lot of different vehicles but I mean I didn't try to remember. Q. Right. Kind of a dark 4x4, do you remember seeing that one up there? A. Not now I don't remember, no. Q. Sort of a Blazer type vehicle? A. No. Q. You don't remember that, but it could've been up there as well? A. Oh it could very well be, yeah. Q. There was lots of nice vehicles up there. A. Yeah, it could be. Yeah. Like I never really paid attention to any of the vehicles. Q. Oldsmobile sedan, gray one, that's some-thing you wouldn't remember necessarily that could've been up there as well? A. No. MR. COOPER: If we could take the break now,

Your Honour, and I'll resume at roughly 25:21 on the marker when we get back.

THE COURT: All right.

--- Whereupon court recessed at 11:40 a.m.

* * * * * * * *--- Upon resuming at 12:00 o'clock noon--- Accused present

MARK POTVIN, resumes on the stand


19260

THE COURT: Mr. Cooper?

MR. COOPER: Thank you, Your Honour.

CROSS-EXAMINATION (continued) BY MR. COOPER: Q. Sir, the next area concerns your knowledge

about the four gentlemen charged with this offence or these

offences and that's reviewed and then it goes into Mr. McNeil

and Dunbar and I'll stop after that point, okay?

Starting at 25:15.--- Videotape played MR. COOPER: Q. Stopping at 26:28. Now that started off, sir, on page 32 with "... have you ever met these four men?", right? And you say "I've never met them but I've heard of Stewart and Mallory. Unless I met them and didn't know their names or something", right? That's your answer there? A. Yeah. Q. So you're being quite fair there? A. Yeah. Q. You in fact may have met them, you just don't know it. A. Yeah. Q. Okay. And Ms. Mulligan follows up how you've heard of Mr. Stewart and Mr. Mallory but again it's not an open-ended question, is it? "And you've heard of them how?" would be an open-ended question but "Through this case or through" there's options, well there's only one option being provided for you there, right? A. I guess, yeah. Q. But on this occasion you don't adopt the suggestion, do you, sir? You say "No, I heard the name Mallory


19260

and Stewart before", right?


19260

A. Yeah. Q. Before this case arose. Before the murders obviously. A. No. Q. No? A. Maybe it sounds like that, yeah, but I guess I didn't word it properly, yeah. Q. Let's go see exactly what it sounds like.--- Videotape played MR. COOPER: Q. "No, I heard the name Mallory and Stewart before. Actually, after the murder ..." and then you're clari- fying what you heard after the murder, you're distinguishing it from what you'd heard before the murder, right? A. I think it's just worded wrong. I said it wrong, yeah. Q. It's just worded wrong or ---

A. Yeah.Q. --- it's worded correctly. I mean you were

the one that was giving the sworn evidence on this video -- right? -- and you ---

A. Yeah.Q. --- indicated that you had heard -- what

you indicated was "... I heard the name Mallory and Stewart before." And then the next sentence "Actually, after the murder someone said I knew Mallory, I knew Stewart", et cetera, et cetera. You're --- A. I think when --- Sorry. Q. You're distinguishing before and after the murder.


19260

A. I think it's I knew someone who knew them before, they knew them before the murder, that's what it means I believe. Q. What you said was you'd heard the name, you'd heard of Stewart and Mallory. A. Yeah. Q. Right? A. Okay. Q. Before. A. Well, a poor choice of words I guess. Q. Well, Ms. Mulligan clarifies it with you "Through this case or" and you say "No, I heard the name Mallory and Stewart before." She's asked you -- she's providing you an opportunity to say it's only through the case that you've heard the name and you reject that opportunity, don't you, sir? A. I guess. I don't know. Q. It's brought to your attention that that's a possibility, it's the only option she gives you. A. Yeah. Q. It's brought to your attention that that could be how you heard the name and you reject that possibili-ty. A. It's possible, yeah. Q. And you clarify that it's before the murder that you heard the name. Right? A. A mistake I guess. I don't know. Q. That's what's done here and that's a mistake, is that what you're saying now? A. It's possible. I don't know.


19260

Q. Or it's possible that you did hear the names Mallory and Stewart before the murder. A. Maybe. I heard a lot of names in my life. Q. It's possible that you heard the name Richard Mallory and Robert Stewart before the murder. A. I don't remember but it's possible. Q. It's possible that you heard those names from Mr. Giroux in fact. A. Well, I don't think so. Q. You don't think so. But it's --- A. I don't know. Q. But it's a possibility. A. Sure. Maybe I'm thinking of James Stewart too, I don't know, the famous actor. Q. Yeah. Maybe as you're being interviewed, you're 32 pages into this interview maybe you were thinking about old movie actors. A. No, I'm just saying I don't know if that's a misrepresentation of what I meant or if I worded it wrong. Q. But it's exactly what's on the tape, right? A. Yeah. Q. There's no misprint here. A. No, but I go on to say, okay, after the murders, "No, after they arrest them" yeah, that's when their names came up. I don't know. Q. You're making a clarification, sir, about when their names came up. A. Yeah. Q. Right here you're being pretty specific, aren't you, sir?


19260

A. I don't know. I don't analyze the English language like that, that's not what I do for a living. Q. After Ms. Mulligan gives you the hook, so to speak, you don't take it and then you change it as your answer develops. Once again it's sort of improvisational testi-mony here, right? A. And I don't know these two people. Q. But you may have heard the names Richard Mallory and Robert Stewart from Michel Giroux. A. No, I didn't say that. Q. You may have. You just said it a minute ago, sir. A. I may have done a lot of things, maybe I had Kentucky Fried Chicken that day. I don't know. Q. You have no idea what you did that day, do you, sir? You have no idea what you ate. A. So you think, yeah. Q. And that's a possibility that's alive in your mind, isn't it, sir? It's not something you're trying to back away from now, are you, sir? A. Why would I know Mallory and Stewart? I have no idea. Q. So there's no reason for you to back away from this answer that you gave under oath to Ms. Mulligan, right? A. No. No. Q. You can't think of a reason why you'd want to do that. A. No. Q. Nobody ever suggested to you that it would be a good idea to dissociate Michel Giroux and you from Mr.


19260

Stewart or Mr. Mallory. A. No. Q. Nobody has ever said that to you. A. No. Q. But you're rejecting now, although you didn't a minute ago, you're rejecting now the possibility that Michel Giroux is the one that mentioned these names to you. A. Oh I don't know. Maybe he did. I have no idea. Q. Now it's actually two thoughts. You start the answer there at the bottom of 32 with "No, I heard the name Mallory and Stewart before", and then "Actually, after the murder someone said I knew ..." that's different than "heard the name", right? A. Yeah. Q. "... I knew Mallory, I knew Stewart, I worked somewhere where he was beside me or something like that. Maybe that's where I know the name from. I really don't know." and Ms. Mulligan clarifies that, stating the time for you, "After the murder or after they were arrested?", two options presented there, "No, after they arrest them, yeah, and their names came up." And that's when you're hinging back to this time when somebody told you that you worked beside Mr. Stewart or Mr. Mallory or something? A. I never worked beside him. Somebody said they worked beside him. I never did. Q. "... I worked somewhere where he was beside me or something like that." A. Look it, "... someone said I knew Mallory, I knew Stewart, I worked somewhere where he was beside me or something like that", that's not me, that's a third person.


19260

Q. So it would be someone said, if it's a male, he knew Mallory, ---

A. That's right.Q. --- he knew Stewart, he worked somewhere

where he was beside him --- A. That's right. Q. --- or something like that. A. That's right, yeah. Q. You have to kind of reverse all the pronouns to get that thought that you wanted. A. Well, like I said I'm not an English teacher. Q. Okay. This again is -- this is category number three in your credibility, your ability to articulate or in this case misarticulate, right? That's what you're saying happened here? A. I really don't see how you could --- MS. MULLIGAN: Your Honour, I have an objection.

THE COURT: All right.

--- Whereupon the jury and witness retired at 12:10 p.m.


19260

--- In the absence of the jury

THE COURT: Yes?

MS. MULLIGAN: The questions and the suggestions

aren't being put fairly. Mr. Cooper is using

this transcript and saying 'well you've obvi-

ously got the pronouns all wrong'. If the

typist of the transcript had said after the

murder someone said, comma, quote "I know

Mallory, I know Stewart, I worked somewhere

where he was beside me or something like that",

end of quotation, it would be absolutely right.

Because the punctuation is left out by the

typist Mr. Cooper suggests this witness is a

liar and that these pronouns don't make any

sense and that there's a grammatical infalli-

bility of the witness. There has to be a limit

as to the nature of the suggestion and the

suggestion is being put simply because of some

lack of punctuation by someone who didn't put

it in when they typed up the transcript. If you

read it with the punctuation in it it makes

perfect sense. To suggest that this witness is

-- to test this witness or to press this wit-

ness on the issue of whether he should've said

he knew Mallory, he knew Stewart, as opposed to

saying what he was told in quotation marks, it

seems to me to be absolutely going too far.

There has to be a limit to how far ---

(In the absence of the jury)

19266

THE COURT: Why don't we listen to it on the tape and see what the tape says.

MS. MULLIGAN: Yes.--- Videotape played


19266

THE COURT: Beside him or beside me? MS. MULLIGAN: "Beside me". We can go back.--- Videotape played THE COURT: "... I worked somewhere where he was

beside me ..." MS. MULLIGAN: Yes. If I was writing it, Your

Honour, if I was doing this grammatically correct and typing it out, the way I would have it is "Actually ...", the way the typist has it, "... after the murder someone said", comma, quotation mark, "I knew Mallory, I knew Stew- art, I worked somewhere where he was beside me ...", comma, quotation mark "... or something like that." There's absolutely nothing wrong with that. It may not be the best grammar but he's saying what someone else told him, put in quotes it makes perfect sense "... someone said I knew Mallory, I knew Stewart, I worked somewhere where he was beside me." That's all the third party speaking in quota-tion, and we've been going through this thing as though this witness should be a grammatical scholar or something and I'm not always sure I agree with Mr. Cooper's interpretation of proper grammar, but nevertheless most of that I can correct but there has to be some fairness, and to suggest to this witness that this is incorrect and all the pronouns are wrong, in this circumstance, in my submission, is not a fair suggestion. He is telling us on the interview what someone else told him and he's done it exactly right, in my submission,


19266

grammatically, he's done it(In the absence of the jury)

19266

exactly right in putting it in the third person saying "I knew", "I knew", "I worked", "he was beside me".

So in my submission there has to be some fair-ness and this witness is being pushed and tested on his use of language, fair enough to a point, but not to a point where it could well be exactly as the witness has said and exactly right on the tape and exactly right in the transcript, and this witness of course has said repeatedly I'm not -- you know, English isn't my -- I'm not an expert in English, this isn't my forum, I'm a mechanic. Mr. Cooper is saying well I am, essentially, to the witness, and you've got it all wrong. Well he doesn't have it all wrong, in fact he has it quite right in this case.

THE COURT: All right. MR. MORRIS: I'll just add my two cents, Your

Honour, I agree with Ms. Mulligan that the suggestion put by Mr. Cooper isn't fairly put. If you look at the second last sentence in that phrase where witness says "Maybe that's where I know the name from", I note that he doesn't say 'maybe that's where I know the individual from' and that's consistent with Ms. Mulligan's interpretation where it's quotation where somebody said to him 'I used to work with the guy, I used to be beside him' and the witness is reporting that and then saying "Maybe that's where I know the name from", 'somebody telling me that they used to work with him'. It seems


19266

consistent to me. MS. BAIR: The fact of the matter, Your Honour,

is that the typist clearly interpreted it in exactly the same way that Mr. Cooper inter-preted it. There are two interpretations that are equally valid on the face of the language. What the witness -- the words that the witness used are here and he could be saying in effect 'someone reminded me that I had worked with him' and that's how Mr. Cooper interpreted it. The witness is here to say 'no, that's not what I meant, I meant something different', and if he meant something different then there are two ways of portraying it in the written word, one is with quotations and the other is by changing the pronouns. Both interpretations are equally valid and we're here to explore what the wit-ness meant. Mr. Cooper has not put anything unfairly, he's put his words to him in their clear and plain meaning. To change the meaning, we either change the punctuation or the pro-nouns, that's all we're doing.

MS. MULLIGAN: My concern is that Mr. Cooper has suggested the words can't possibly bear this other interpretation, the one that the witness gives, and does so from a voice of greater edu- cation, authority and grammatical ability and we know that from "peninsula", that Mr. Cooper has much greater language skills than perhaps many of us in the room.

MS. BAIR: Than Ms. Bair. Say what you mean.


19266

MS. MULLIGAN: I didn't know the word peninsula either, so he's got us both licked.

MS. BAIR: Oh, I knew the word. I just used it incorrectly.

MS. MULLIGAN: I thought it was a land and water thing but ---

THE COURT: But we all know that an island is in the centre of the kitchen and it has to be a peninsula if it's touching the wall, that's what we're saying, because it's connected to the mainland, connected to the wall, you know, and Mr. Cooper and I understood that well.

MS. MULLIGAN: I know. But in this case we have Mr. Cooper's -- all his authority suggesting that the words can't possibly bear the inter-pretation that the witness puts on those words, in my submission, is just wrong. It shouldn't be put that way. It can possibly bear, and indeed does bear, that interpretation.

THE COURT: The witness is saying it means some-

thing else, it means what a third party told

him, he's put that out there and if the jury

thinks there's unfairness here then they can

certainly follow through on that, and Mr.

Cooper will have to bear the brunt of that

interpretation. So there's a self-correcting

mechanism here which is called the jury. I

don't think I have to do anything. Counsel

agree that both possibilities are there and one

possibility has been put to him and the witness

is defending on the basis of the other possi-


19266

bility. I don't see why I should say anything.(In the absence of the jury)

19266

Bring back the jury.


19266

--- Upon resuming in the presence of the jury at 12:20 p.m.




CROSS-EXAMINATION (continued) BY MR. COOPER: Q. Mr. Potvin, the passage we were just dis-

cussing, and I was just referring to your ability to articulate

or explain your recollections, you're saying that might be at

fault here, that might be where the mistakes have been gener-

ated from, you weren't as articulate as you could've been.

A. Yeah, but I don't see the problem here. Q. At the very least it's a little bit ambi- guous, isn't it, sir, the thing about the pronouns? A. Well ..... Okay, the first word I said "No", that's a wrong response to the question I guess. Right after it says "... after the murder someone said I knew Mallory", this is what I'm trying to get across here. Q. Right. And it's open to two interpretations at a minimum, right? A. Okay. Yeah. Q. Right? So, as I said, one of those aspects of credibility is the ability to articulate and that's some-thing that seems to have failed you here a little bit. A. That's right, yeah. Q. Okay. And given that it's something that you were trying your best to do, that it may be you haven't perceived throughout here where you've not been accurate in your expressions, right? It might be more than these two occasions that seem to be in the same paragraph. A. That's right.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Right. Oh, I guess the first one isn't you didn't misarticulate, you just got it completely wrong when you say "No, I heard the name Mallory and Stewart before", you have no recollection of that now. A. What are you asking me? Q. You have no recollection of that now -- right? -- having "heard the name Mallory and Stewart before"? A. No. Q. Before the murder. A. But I didn't. It's the way it's worded here in the paragraph I guess. I don't know. Q. That's what it sounded like when you heard it on the tape? A. It does sound like that but then I say "... after the murder someone said I knew Mallory ..." Q. That's a little bit different, isn't it?

A. M'hmm-hmm. Q. Ms. Mulligan on page 33 about three ques-tions down or three places down says "But you've never meet any of them", she's confirming your answer that you originally gave, "I never met them but I've heard of Mallory and Stewart. Unless I met them and didn't know their names or something", right? A. That's right. Q. You may have in fact met them and you definitely had heard their names. A. I don't know if I ever met them. I could've met you at McDonald's too. Q. Merilyn McNeil, he's somebody you definite-ly know. A. No I don't. I know his name.

M. POTVIN, cr-ex

(Cooper)

19356

Q. You know who he is. A. Yeah, he drives by my house on his Harley. He lives about a mile from me. Q. Yeah. So you know him to see him? A. They tell me it's Merilyn. I couldn't tell you if I looked at him, no. Q. Mr. Hovey tells you it's Merilyn. How do you pronounce it? A. Hovey, yeah. Q. Mr. Hovey tells you it's Merilyn. A. No. He knew Mr. Merilyn but I never seen him at that time, no. Q. He knew Mr. McNeil. A. Whatever his name is, yeah. Q. Yeah. Not Mr. Merilyn. A. No. Q. And Mr. Hovey, is that what you said, Hovey? A. Hovey. Q. Mr. Hovey sells you cocaine. A. A long time ago, yeah. Q. Yeah. Yeah, and for a considerable length of time. A. Yeah but it's before -- I think before the murder, if I'm not mistaken. Q. Yeah. A. Yeah. Q. So you bought cocaine from Mr. Hovey --- A. That's right. Q. --- for a considerable period of time. A. Well a little while, yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Yeah. And that's how you knew Merilyn because he worked with Merilyn. A. I think I knew the association later, I'm not sure. I never met Merilyn with Hovey. I've never seen him with Hovey. Q. But you're certain you never, as you've indicated here, you never saw any of these guys at Mr. Giroux's house. A. No. They could've been there while I was in the garage, I don't know. I've never personally seen them, no. Q. As you say I could've been there too. You have no knowledge. A. That's true. No knowledge of it, yes. Q. An absence of knowledge on your part. Okay. Now, I just have to get this back up to where we left off. We left off at 26:28. I'll just move it ahead a little bit.--- Videotape played MR. COOPER: Q. We'll get back to the skidoo in a minute, sir. We're stopping at 27:03.

Now Mr. Taylor is providing you some assistance here, isn't he, at the bottom of page 33 in particular? A. Yeah. Q. Right? He's trying to firm up some evidence for you and it happens right before our eyes here, doesn't it? A. That's right, yeah. Q. "You went in some time around -- let's say, for the sake of argument, around eight o'clock." You initially balk a little bit and say "Between seven and eight, closer to eight I'd say." Mr. Taylor "Okay, eight o'clock then." Well,

M. POTVIN, cr-ex

(Cooper)

19356

geez, he's just gotten you right hooked there, hasn't he? A. That's his statement, not mine. Q. Right. And that's the point of departure, right? Mr. Taylor makes the suggestion, you follow his sugges-tion and he confirms that you followed his suggestion, right? A. I don't see it but ..... Q. What don't you see, sir? You say --- A. He can say what he wants. I said my piece. He can say closer to eight or --- Q. And you followed what he suggested, what he said. A. I said "Between seven and eight, closer to eight". Q. Yeah. You moved the clock, that fluid concept of time, you moved it in the direction suggested, for the sake of argument, by Mr. Taylor, right? A. Yeah. Well, not for the sake of Mr. Taylor. Q. No, "for the sake of argument", that's Mr. Taylor's phrase, right? A. You should be asking Mr. Taylor these things, not me. Q. Well, right now I'm asking the person who's in the witness stand, sir, and that's you. A. Sure. Q. Now you say "Between seven and eight, closer to eight I'd say." Now "I'd say" must mean absolute certainty, right? A. No. Q. No it doesn't. It means 'I guess'. A. Closer to 8:00 could be from 7:31 on.

M. POTVIN, cr-ex

(Cooper)

19356

Q. I mean that's pretty much what I'm talking about, that's what the word "I'd say" in quotation marks mean, right? A. Yeah. Q. It's a little bit speculative. A. Yes. Q. Okay. And then as we've seen Mr. Taylor takes that as a given, it's not closer to 8:00, he says "Okay, eight o'clock then. You stayed for two hours and 40 minutes or 45 minutes", and then he asks you to describe what you did, right? He doesn't ask you, he starts describing things, right? A. I guess, yeah. Q. He doesn't ask a question there at all, right? He's sort of summarizing things and moving the ball further down the field in the direction that he's obviously chosen. A. I guess you can read it that way, yeah. Q. And he's saying "During that time, okay, you went down -- you came in right away and you went down-stairs." And your answer is -- well, it's not question so it's hard to say the next thing is an answer but your next observa-tion is "That was this whole purpose, to pay the 75 bucks, because the Hydro was on his for the garage and the house. Excuse me", and I think you cough or something, "That was paid" and then there's a little pause and you say "The breaker." The whole purpose was to pay the 75 bucks, that's what your answer starts out to be, right? A. Yeah. Q. But you're just kind of a half beat behind Mr. Taylor here and you include the breaker as just a little bit of an afterthought there, don't you, sir?

M. POTVIN, cr-ex

(Cooper)

19356

A. Well I probably had to pay the Hydro, I had to go over anyway when the breaker popped. Q. Why didn't you pay the Hydro on the way into the garage? A. Oh, I have no idea. Q. When you get out of your car, I mean you don't know that eventually the breaker is going to go, right? A. No, of course not. Q. Now I want to make this clear to you, sir, I'm suggesting to you that the breaker went on a night that was different than the night you paid the Hydro, and if they went off on the same night it wasn't the 16th. A. No. Q. What's your position on that, sir? A. No, I disagree with you. Q. And you've always been firm on that. A. Yes. Q. Here the breaker seems to be an after-thought following the lead given to you by Mr. Taylor there -- right? -- about going downstairs? A. Yeah. Q. Do you want to hear how it's expressed again, sir, ---

A. Sure, yeah.Q. --- if it'll help you?

Let's just back that up. I think that will catch it, 26:45.--- Videotape played MR. COOPER: Sorry. I should've backed it a

little bit more. 26:35.--- Videotape played

M. POTVIN, cr-ex

(Cooper)

19356

MR. COOPER: Q. We're getting into the skidoo there, sir, we're about 27:02 this time.

The breaker doesn't follow immediately, there's an "hmm" in between that isn't actually on the transcript, right? Right? I mean that's what you heard just now when we re- played it. A. Yeah. Q. My suggestion, sir, is that you haven't immediately responded to Mr. Taylor's suggestion about down-stairs because you didn't pay the Hydro bill downstairs, right? A. No. Q. And you said to Mr. Taylor the whole purpose was to pay the Hydro bill. A. Well, I had to pay the Hydro bill, yeah. Q. Right. And then you're just kind of a half a beat behind adopting the breaker part as well. A. I have to put the breaker on too but I'm not going back in the garage that evening. Q. The whole purpose should've been -- the main purpose should've been to flip the breaker, right? A. I'd already shut down for the evening. It doesn't matter if I put it on then or 10 minutes later or whatever. Q. That's why you went over to the house was to flip the breaker. A. Well yeah, I have to put it on for the morning for when Ron goes in or whenever he goes in. Q. Mr. Taylor is assisting you, sir, and actually calculating in hours and minutes how long you would've been there if you're following his time line, right?

M. POTVIN, cr-ex

(Cooper)

19356

A. It makes no difference to me. Q. We're going to continue for just a little bit here actually. Resuming at 27:02.--- Videotape played MR. COOPER: Q. Stopping at 28:08, Mr. Taylor is kind of doing a running summary of the evidence or at least a portion of the evidence, -- right? -- sir, --- A. Yes. Q. --- for you? And you agree with his running summary, right? A. Yeah, it's similar, yeah. Q. The payment and the breaker are actually reversed in order from what you've just said, though, aren't they? A. Yeah, they are. Yeah. Q. Mr. Taylor's summary, he reverses it. A. Yeah. Q. Okay. But it's not a big deal I suppose, but you agree with his summary. And then you start talking about the skidoo.

Now Mr. Taylor suggests near the bottom third of 35 that you went to the table in the kitchen and you don't adopt that suggestion, right? A. Yes. Q. At the handwritten mark 27:50, ---

A. Yeah.Q. --- you say "No, the counter. Like, I was

gonna leave, and then he put a line on the counter, did it ...", you mean you did it, right? A. I did it, yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. "... and then we started talking standing there ..." et cetera, et cetera, right? A. That's right, yeah. Q. And we went over this particular passage about a line on the counter before, we don't need to go there again. That's the passage we've made reference to in the past, right? A. That's right. Q. Okay. And Mr. Taylor is asking you about alcohol and you don't have any recollection about that one way or the other, right? A. No. No. Q. Now the next part, sir, is about what Manon would've been doing for the passage in time when you're in the house, and I'm going to just pretty much stop at the bottom of -- at the very top of 37, so we're not going to go too awfully far here.

Starting at about 28:00.--- Videotape played MR. COOPER: Q. Stopped at 28:46 roughly. Now this passage about Manon, sir, you started off by saying "I'd like to say ..." I take it that that expres- sion is even of lesser certainty than the one you used a couple of pages ago "I'd say", right? A. That's right, I'm not a hundred percent sure on that. Q. Well you're even less sure than when you say "I'd say". A. That's right.

M. POTVIN, cr-ex

(Cooper)

19356

Q. "I'd like to say" means you're taking a complete stab at it. A. That's right. Q. Right? And you're realizing here that you might be wrong about the meat pies. A. Yes. Q. Because there was at least one occasion when you were in there and there were meat pies being made or had just been made. A. She seemed to be cooking something any time you ever went to the door or whatever. Q. Right. Right. You say "She was always puttering in the kitchen, you know, cooking or something." A. That's right. Q. And that's because you'd seen her in the kitchen many times before. A. Well the door opens right to the kitchen. Q. Right.

A. The first door. Q. Right. And that's based on what uncle Ron

tells you about when he goes in to make phone calls too, right? A. I don't know if he ever said that, no. Q. No? Well you don't know what she was always doing, ---

A. Oh no.Q. --- it's just every time you were there

she was ---A. Cooking or something. Q. --- cleaning and cooking ---A. Yeah.Q. --- and stuff like that.

M. POTVIN, cr-ex

(Cooper)

19356

A. Active. Q. Yeah.

And you're not sure about the meat pies as we reviewed, but you indicate, getting back to the night that you were there 'til 10:40, you say "She was sitting at the table. I think she was in and out of -- I wasn't really talking with her" but you agreed with Mr. Taylor when he says "But you do remember her being there", right? A. Yes. Q. I've captured that. And you're actually not too certain about that, about whether she was in and out or what precisely she was doing but you're sure about what you were saying right in this one little paragraph, right? A. That she was there? Q. Yeah. A. Yes. Yeah. Q. Okay. And you're not just generalizing from ---

A. No, I remember.Q. --- routine in this case ---

A. No, I remember her being there. Q. --- like you were on the meat pies. A. Yeah. Q. Okay. Or the puttering around the kitchen, cooking, cleaning, that sort of thing, that's not a generaliza-tion that you're having a recollection on, ---

A. No.Q. --- it's something specific right here.

A. Yeah. Q. Okay. And also that she was sitting at the table for a while, that's something specific that you recol-

M. POTVIN, cr-ex

(Cooper)

19356

lect. A. Yeah. Q. Correct?

A. Yes.Q. Yes.

THE COURT: Q. Just as a matter of interest, sir, do you know when réveillon is? A. Pardon me? Q. Do you know when there's a celebration called réveillon and when it might likely be? Do you know anything about that? A. Never heard of that, no. Q. Okay.

A. No. THE COURT: Thank you. MR. COOPER: Q. Is it possible the meat pies, sir, were more around Christmas, New Year's, that sort of thing? A. Oh, it could be. Q. Sort of a seasonal thing? A. Yeah. Q. Okay. So you might have a two or three-week kind of displacement there, right? A. She didn't cook just for special occasions as far as I knew, it could be buns, bread, whatever, meat pies. Q. But the meat pies could've been two weeks before this night, right? A. I don't think that far before, no. Q. You don't think so. A. No.

M. POTVIN, cr-ex

(Cooper)

19356

Q. But you're pretty sure she was at -- you're positive she was at the table for a while, sitting at the table for a while talking with you. A. No, not talking. Q. She just sat down for a while and --- A. A bit and I think because she didn't speak English, she got up right away probably. Q. You have a specific recollection of that. A. She sat down and then back up again, yeah. Q. Okay. Because you told Ms. Mulligan the opposite in chief, sir. A. What's that? Q. Roughly page 37 of your examination-in- chief: "Q. So you say then you go to the dining room

table. What is Manon doing while you're doing a line of cocaine, is she around?

A. No, she's busy cleaning or whatever else

in the kitchen area.

Q. So you sit down at the dining room table. Does she sit down with you at that point?

A. No.

Q. So it's you and Michel Giroux?

A. That's right."

Right? A. She didn't sit down with us at the same time, no. Q. Not at the same time. A. No. Q. You left us with the impression that she

M. POTVIN, cr-ex

(Cooper)

19356

didn't join you at the table but that's not accurate.M. POTVIN, cr-ex

(Cooper)

19356

A. No, she didn't join us when Mike and I sat down, no. Q. Right. It's some time later but you never clarify that, right? A. Maybe not, no. Q. But you are now, as you were back here during the video, concerned with giving full and complete answers, right, sir? A. As much as I can, yeah. Q. It's not a situation where if you're not asked you're not going to tell, right? If somebody asks you about something you're going to give the complete answer. A. Sometimes I'm not inclusive, I mean not intentional but ..... Q. And you're quite certain, aren't you, sir, that Michel Giroux did lines of cocaine in your presence on a few occasions? A. That night, yeah, one. I think one at the table, yeah. Q. You think one at the table? A. Yeah. Q. Maybe not, maybe it was just you that had it at the table? A. No, I'm pretty sure he did, yeah. Q. You're pretty sure that he had a line ---

A. Yeah.Q. --- at the table as well. You're pretty

sure there were two lines at the table. A. Could be, yeah. Q. Well you wouldn't just do a half line each, would you?

M. POTVIN, cr-ex

(Cooper)

19356

A. I don't remember that exactly, --- Q. There was --- A. --- the line that evening, no.

Q. Sorry, I didn't hear you.A. I don't remember the exact amount of the

line, like the length of it or anything, no. Q. It could've been there were four lines at the table and you each did two. A. No. No. Q. Or it could be there was one line on the table and just you did it. A. It's possible. I don't think so. I think he did one also with me. Q. You think so. A. Yeah. Q. Okay.

Now you hadn't mentioned that uncle Ron's tool box scenario until the other day, right? A. That's right. Q. After you'd seen a little video excerpt privately, right? You saw the video in another room? A. Yes. Yeah. Q. And you indicated to me at the time that you'd never told a living soul that, right? A. That he did one on the tool box? Q. Yeah, all about uncle Ron's tool box. A. I don't remember telling anybody, no. Q. Let's resume the video here, sir, and we'll see what comes up next.

Starting at about 28:40.--- Videotape played

M. POTVIN, cr-ex

(Cooper)

19356

MR. COOPER: Q. Your evidence here under oath isn't quite the same, is it, sir? A. It's not sure, no. Q. "Here", I mean on the video. A. Yeah. Q. Your evidence on the video isn't the same as the evidence you've given in court, it's a little bit different, isn't it? Right? A. Well, I'm not quite sure of how many he's done in front of me, one or two, yeah. Q. Mr. Taylor asks you at the top of 37, sir, he talks about you coming up from downstairs, "... you did a line on the counter, or there was a line on the counter." "Yeah, he had it out" is your answer. "And you did it. Did he do it also, did he do any drugs?" "He didn't do any in front of me." "Not at all." "Not that I -- not in front of me, no." And then a couple of questions later you say"I only saw him do a line once."

So you're making it quite clear to Mr. Taylor under oath that Michel Giroux didn't do any cocaine "not at all" the night you were there. A. It's possible that he just laid them out for me, yeah. Q. Okay. So it's possible that when you've testified that you each did a line the second time, that that's a recollection from a different experience. A. No, I've only been in his house doing lines once, that's why I remember that night. Q. So if it's not something you confused with another occasion, it's something that you ---

M. POTVIN, cr-ex

(Cooper)

19356

A. It's impossible. Q. --- it's something you've misremembered entirely. A. It's impossible. It's the only time I ever sat at his table and did a line. Q. Okay. So he must not have done a line at the table, then. A. Oh I didn't say that. I don't remember him doing a line at the table. Q. You've testified both ways under oath --- A. And I don't remember. Q. --- and you're wrong one of those times, obviously, A. That's right. Q. --- at least, if not both. "I only saw him do a line once", you must be thinking of that tool box thing you haven't mentioned yet. A. Probably, yeah. Q. Or maybe not, right? A. Maybe he was doing one when I went in his front door once. I don't remember. Q. Then you say "I think he was on the needle that guy". Now, you never saw Mr. Giroux taking intravenous drugs? A. No. Q. You never saw any equipment for using drugs intravenously in his house? A. No. Q. And yet you're willing under oath to spread something that you heard about him being an intravenous drug user.

M. POTVIN, cr-ex

(Cooper)

19356

A. That I think I heard it, yes. I still do. Q. You think you heard it. A. Yeah. Q. And you never saw it, you're just trying to be helpful. A. I couldn't care less if he was on the needle. Q. Right. I had another thought, hopefully it'll come back. Oh yeah, yeah, you're wondering about Mr. Giroux later on in this transcript. Do you have some reason, sir, to be -- to wonder about whether Mr. Giroux is even a cocaine user? A. I don't know. Q. Have you ever caused yourself to think back and wonder why you didn't see him using cocaine more often? A. Like I say I didn't know him that well. If he chose to do it alone, then ..... Q. Or maybe he just didn't use as much cocaine as, say, you did. A. Could be. Q. Right? Maybe he used cocaine very infre-quently. A. It could be. I have -- I don't know his life. Q. That's right, but you're speculating from what you heard that he might be --- A. That's right. Q. --- using a needle all the time. A. Yes.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Because you're pretty sure he must be using at least as much cocaine as you're using, right? A. Oh, I never said that, no. Q. No, but you're wondering why, right? A. No. Q. You're not wondering. A. Not really. Q. We'll see if that pops up in a few minutes. This is another deduction on your part, sir, isn't it? A. It's possible. Q. You're deducing 'well I heard this rumour about him using a needle and I only saw him do a line once, he's got cocaine', so you're dovetailing these things together to think he's using the needle all the time, right? A. I have no idea. I couldn't care less what he did. Q. You're deducing fact from rumour and non- causal observations on your part, right? A. I guess, yeah. Q. Let's continue and see what you say about cocaine use that night. I'll just back it up a little bit, starting at about 29:00.--- Videotape played MR. COOPER: I should let that run just a little

bit further.--- Videotape played MR. COOPER: Q. Okay. We went to page 39, sir. You're assuming that you only did two lines yourself, one line and one line later and that's because "I didn't buy any that night",

M. POTVIN, cr-ex

(Cooper)

19356

right? A. Oh, I don't know if it's because but ..... Q. Well I'm using your words there, sir. Do you see that word there, it's not because, sorry, "'Cause I didn't buy any that night", right? A. Yeah.

Q. This is ---A. It's not why but .....

Q. Well "'cause" means because which means there's a relationship, right? A. Somehow maybe, yeah. Q. I went here because of something, right?

A. Yeah. Q. It's cause effect thing, isn't it?

A. Yeah. I might be just adding that I didn't buy any that night and chose the wrong word. Q. You think it's imprecision with language again. A. It could be. I don't know. Q. So that's not the basis for your deduction, right? A. Not that I believe, no. Q. I'm just going -- working a little bit backwards, here you seem to be consistent - oh no, further back than that, let's go right back to page 37, you're saying how you hardly ever saw this man Mr. Giroux, right? A. Yeah. Q. "... all the times at the garage you'd see this guy only if you went to his door or the one time I worked on his car, like, and then Christmas. You could go up there for a week and not see him, like, you know." Well you never went up

M. POTVIN, cr-ex

(Cooper)

19356

there for a week and didn't see him. A. No, didn't see him. He didn't come to you, you had to go to him, like he wasn't out about the yard and stuff. Q. Right. You were there every two or three days buying a half-gram from him. A. Whatever it came to. Q. Yeah. So you never went a week without seeing him after your first purchase, for instance. A. Oh no, not a week that he wasn't out and whatever. I mean he was housebound type thing. Q. Okay. It's winter, right? A. Yeah. I go outside in the winter. Q. And when you say about -- on page 38 "But I did one after that. He put another one out later, like, I mean an hour later --". "Okay", Mr. Taylor says "Okay" and you say "-- on the table." You say there's one out later, so that seems to confirm your evidence today -- right? -- that there's just the one on the table? A. No, I think that's a mistake. I think it's one after the first one, I think that's what I meant to say here. Q. "Another one later", sir, ---

A. Yeah.Q. --- as opposed to another two later.

A. Yeah. Q. I don't mean to confuse you. You're talking about one plus one. A. Yeah. Q. Right? So Mr. Giroux, on the basis of what you're saying here, isn't consuming any himself.

M. POTVIN, cr-ex

(Cooper)

19356

A. Not that I can see, no. Q. Right. Now, you have a math problem here; have you picked that up yet? A. Yeah, I see the two when there's three, yeah.

Q. Well, that's -- which one is that?A. Well there's the one on the counter, and

then there's one on the table and then one after. Q. I'm talking about a fraction thing. Are we up to three lines again? A. Yeah. Q. Your current recollection isn't three lines, is it, sir? A. That's right, yeah.

Q. It is or it isn't?A. Now it is now, here, yeah. If you look at

it it's one line on the counter and then I said one on the table and then one later, and Russ says "What around 9:30" but I don't say anything to that effect, I just said one later. Q. No you don't, sir. A. Here. Q. Where are you reading from? What page? A. Well after we went to the table I put -- he put one on the table and we did one after that. Q. So there's three separate occasions now, is that what you're deducing, sir? A. No, no, no.

Q. Okay.A. Twice on the table, one when we sat down

at the table and then one later. Q. And one on the counter.

M. POTVIN, cr-ex

(Cooper)

19356

A. Yeah, the first ---Q. Three separate ---A. --- one was on the counter.

Q. --- occasions. Sorry? A. Not three separate occasions. Three separate lines. Q. And you did all three. A. If I remember right, yeah. THE COURT: Oh God! This is tedious. Q. It had to be three separate occasions because there were three time elements involved. The first one at the table, the second one at the table and the one on the counter that is three occasions in ordinary English, separate times, okay? A. Okay. THE COURT: Okay. MR. COOPER: Q. The math problem I was going to ask you about, sir, is you buy a half-gram, right? A. Yeah. Q. You put it into eight lines? A. Small ones, yeah. Q. Yeah. Well that's what you say here ---

A. Yeah.Q. --- you're describing it, right?

A. Yeah. Q. And you're calling each line an eighth of a gram. A. Oh well, I don't know exactly how much. Q. It's a sixteenth of a gram, right?

M. POTVIN, cr-ex

(Cooper)

19356

A. I'm saying an eighth of a gram. You can get eight lines out of a gram or six or three or two or one, it depends how big you make the line. Q. What you're describing here is eight lines out of a half-gram, right? A. It could be, yeah. Q. And you're calling that an eighth of a gram when in fact it's a sixteenth. A. It could be, yeah. Q. But this is something you did all the time, right? A. Yeah. Q. You bought -- only bought half-grams. A. Usually, yeah. Q. You didn't buy any quarters, you didn't buy any ounces. Half-gram was your product. A. I've bought quarters over the years and grams over the years, yeah. Q. From Mr. Giroux you're only buying halves. A. Usually halves, yeah. THE COURT: He didn't buy any ounces. You didn't

buy any grams, you only bought half-grams. You said an ounce. An ounce is a lot more than a gram.

MR. COOPER: I realize that, Your Honour. THE COURT: All right. Okay.MR. COOPER: I'm just seeing what the range was.

THE COURT: Okay. MR. COOPER: Q. Mr. Taylor is assisting you, sir, with respect to the time, as you say at the bottom of the page 38,

M. POTVIN, cr-ex

(Cooper)

19356

rather, that -- "So you did a line of an eighth of a gram, and then about an hour later, so maybe around ---" Mr. Taylor says "9:30" and you're saying "I might've done a quarter the whole night", right? A. Yeah. Q. And a quarter is two lines. A. Well it depends how big the lines are. Q. If the lines are an eighth as you've just described there, right?

A. Oh man!Q. Right? That's how you described them,

right? A. Yeah, it could be. Yeah. Q. Okay. Let's resume the video. I'll get it back up to around the 30:00 mark. --- Videotape played

MR. COOPER: Actually there I got to backtrack it.

Q. Just before we do, I'll just pause it, you indicated to me earlier, sir, that as you're standing in the car door talking to Mr. Taylor standing outside his car, you didn't have time to, like, review your statements or anything like that? A. No. Q. You didn't have time to recount the facts of what actually happened? A. He had no paper in his hands, he was at his car and then we just -- I just said I knew who he was. I didn't know right away, after I looked at him for two minutes, two seconds, or whatever, I don't know the time frame.

M. POTVIN, cr-ex

(Cooper)

19356

Q. And after you said "You're Russ Taylor P.I.", then --- A. Yes. Q. --- shortly after that you blurt out this business about the time and, as you described to me in cross- examination earlier, he got in his car and said "I'll be back in touch", right? A. That's right. Q. And you said he had a surprised look on his face too. A. He did, yes. Q. Right. And this was obviously something that he was excited about. A. Obviously, yeah. Q. Yeah. Okay. But you didn't have time to sort of review what went on inside the house or anything like that. A. No. Q. You're quite positive about that. A. Well no, no. I'm sorry, yes, I'm quite positive. Q. Yes, you're quite positive you didn't discuss what went on in the house, you just said "I was there 'til 10:40" and then he said "I'll be back in touch with you." A. Okay. I said it was the time thing and he said yes.

Q. Right. And ---A. I don't even know if I said exactly 10:40

or not at the time. Q. You may not even have said the actual time. A. Maybe not.

M. POTVIN, cr-ex

(Cooper)

19356

Q. But in any event after that meeting arrangements are made and you come in for an interview less than 48 hours later. A. That's right. Q. Okay.

Start it around the 30-minute mark.--- Videotape played MR. COOPER: Q. Stopping, sir, at 30:58. "That's why I'm wondering, ..." I was asking you a little earlier about whether you were wondering about Mr. Giroux's cocaine consumption and you said you hadn't been wondering about it but it seems that you were, right? A. Whatever. Q. That wasn't a misprint on the transcript or anything there? A. No. Q. You were wondering and what you're wonder-ing about is why you didn't see him doing cocaine more often, right? A. That's what I'm saying, yes. Q. And here you're up to -- just a few pages ago you were at "I only seen him do a line once", that was page 37, now on page 40 "I've only seen him do maybe two or three lines the whole time I was up there", right? A. Yeah. Q. We've been over this before. A. That's right. Q. They don't match, right? But you were equally sure about each answer, right? A. No.

M. POTVIN, cr-ex

(Cooper)

19356

Q. You weren't? A. No. Q. Are you sure about either answers? A. No, I'm not. It could be two, it could be three, it could be one. Q. Now you just told me, sir, that you didn't discuss any details with Mr. Taylor outside your car. A. Nothing in depth, no. Q. Well you didn't say nothing in depth, you said you weren't even sure if you mentioned the time. A. Yeah. I still don't remember if I did or not, no. Q. You sure didn't discuss what went on inside the house. A. No. That wasn't an interview. Q. But Mr. Taylor has a different recollection here, right? A. I have no idea what his recollection is. Q. Well he says in the middle of page 39 "When we talked on Thursday ...", after he finally gets the night right, "... you mentioned you did a line just before leaving." You say "No, I think ---" and he says "Remember saying that?" and you say "-- I missed -- I think I forgot about where -- it's because I was standing at the door, I wasn't leaving, I was coming in -- or I was gonna leave, that's when what it was." Well you're acknowledging that you had this conversation with Mr. Taylor on Thursday about what went on inside the house. A. No I'm not.

M. POTVIN, cr-ex

(Cooper)

19356

Q. You're not? "When we talked on Thursday night, you mentioned you did a line just before leaving." "No, I think --" "Remember saying that?" and then you explain --- A. No. Q. --- why you made a mistake. Clearly, clearly you and Mr. Taylor talked about details, at least this detail, on Thursday, right? A. Yeah, I don't remember saying that, no. Obviously I did but ..... Q. Okay, so that's something you completely forgot about, right? A. I don't remember saying that, no. Q. Between 13 months ago and today - and I'm almost done and we'll break for lunch - but as you said when Mr. Taylor was standing outside your car on Thursday night it was something that he looked excited about. A. Yeah, he did. Q. Okay. And here you are -- and it was so significant to him at the time, right? A. Obviously, yeah. Q. Obviously? I mean he's excited at the time "I'll get back to you", it's obviously something of importance for Mr. Taylor. A. It looked like it, yeah. Q. Right. And then here you and Mr. Taylor, and it's been less than 48 hours, somewhat similar to the time frame between when you think you last saw Mr. Giroux and when the bodies were discovered, --- A. Yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. --- and he can't figure out what night it was when this significant event happened to him, and you don't correct him until he finally gets it right, right? A. Yeah. Q. He's going "... when we talked there briefly at your residence on Tuesday night or Wednesday night -- better still let's make it -- try Thursday", it's not until he gets the right night that you agree with him, right? A. I couldn't care less what night it was. Q. Well there's time there for you to correct the man when he's obviously making a mistake, right? A. Why would I bother? Q. Well, the thing is you didn't know whether it was Tuesday night, Wednesday night or Thursday night he'd been over at your house, right? A. I have no idea. I think that's a pretty lame question.

Q. I'm sorry, I couldn't hear you.A. I have no idea. Why would I care what

night he was there? Q. Right. It was the night where you take this unprecedented step of revealing the lie you've told, or parts of it, or you decide to in any event, that you've told for eight years, a big night for you too -- right? -- when he's in your driveway? A real big deal, right? A. Not really. Q. Oh, not at all. It wasn't a big deal to you at all to have lied to the police for eight years and then be found out and admit it. A. Well I wasn't doing cartwheels. Q. It was a load off your mind, sir.

M. POTVIN, cr-ex

(Cooper)

19356

A. A little bit, yeah. Q. Yeah. It was a big thing for Mark Potvin on what turns out to be Thursday, the 10th of September, 1998 when Mr. Taylor shows up in your yard, right? A. Yeah. Q. A big event for you, obviously from your observation it appeared to be something significant to him, yet between the two of you you can't figure out that it was less than 48 hours ago, right? A. I didn't make it a point to remember the day. Q. No. You had forgotten what day he was there. A. I don't think I tried to remember it. Q. You couldn't determine yourself whether it was Tuesday, Wednesday or Thursday until Mr. Taylor finally hit upon Thursday, right? A. I probably didn't care then. I couldn't care less now. MR. COOPER: Thank you very much, sir.

If we could have the lunch break, please, Your

Honour.THE COURT: All right.

--- Whereupon court recessed at 1:05 p.m.

* * * * * * * *

--- Upon resuming at 2:20 p.m.--- Accused present


THE COURT: Yes, Mr. Cooper?

M. POTVIN, cr-ex

(Cooper)

19356


CROSS-EXAMINATION (continued) BY MR. COOPER: Q. I'll just play the next part, sir, and then

I'll ask you some questions. I'm going to go ahead to about

page 42.

Backing up to 30:45.--- Videotape played MR. COOPER: Q. I'm just going to stop there for a second, sir, and replay that little bit.

These are also details that Mr. Taylor is recounting from your visit 48 hours beforehand. He says "There was also some mention that, when you went to the house, okay, he came to the window" and then you take it from there, right? You're recounting something that you had told him in your yard. A. I don't think. No, we never got that far. No. Q. You don't think so? A. No. Q. Now the previous page is where he says in the middle of it on 39 "When we talked on Thursday night, you mentioned you did a line just before leaving" and then you clarify that, and then we're on to the very next topic and he says "There was also some mention that, when you went to the house, okay, he came to the window." It sounds like Mr. Taylor is recollecting that but you don't recollect that yourself. A. I don't know if he -- was he allowed to read the police report? I have no idea. Maybe he got it from then. Q. I can't give you information, sir, --- A. Okay.

M. POTVIN, cr-ex

(Cooper)

19356

Q. --- I can only attempt to extract it. Your recollection is that you had no discussion with Mr. Taylor and you don't know what he means here when he says "There was also some mention that, when you went to the house ..." A. Not from Thursday night. Q. You're pretty sure ---

A. It would be awful condensed. Q. --- that couldn't have happened. Sorry.

A. It would be awful condensed in the short time. Q. That's what you're basing it on is the time frame, -- right? -- the time allowance. A. Yeah. Q. But you pinned -- well, at one point you said it was two minutes and then it ranges between two and five, right? A. Two and five minutes. Q. I'm just going to back up a little tiny bit and resume here.--- Videotape played MR. COOPER: Q. Stopping at 32:06, sir, in your evidence here you confirm that to be, you firmed up on that, rather, I should say, to be a snow shovel handle or something, right? A. Some kind of handle, yeah. Q. Thirteen months ago it was a stick or something if you remember right, right? A. A piece of wood. Q. A piece of wood. And you firmed it up in your mind what that piece of wood was, right?

M. POTVIN, cr-ex

(Cooper)

19356

A. Not one hundred percent, yes. Q. No. You're basing a lot of this on what your "uncle told me" and you're making that quite clear here at the bottom of page 40, right? A. He saw it also, yeah. Q. Yeah. "... he seemed to do that quite often, ..." is the last part of your answer on page 40 "you know ..." "About every ---" Mr. Taylor says, and then you say "My uncle told me ..."

So you're basing the fact that Mr. Giroux did this quite often, seemed to do this quite often on what your uncle told you in part. A. Yeah. I only saw it maybe the once I guess myself, yeah. Q. Okay. So likewise in the middle of page 41 you're recounting what your uncle told you, the answer you say "That's why he told me, Mike's always got the door propped, so you know", right? A. That's right, yeah. Q. Okay. And then when Mr. Taylor asks if you could hear it you say "Well, I saw. I saw him pull something away from the door." A. That's right, yeah. Q. "Through the curtain." A. Yeah. Blind, curtain. Whatever it was, yeah. Q. We've now determined it was blinds, not curtains, so you've flipped on that over the years, right? A. That's right. Q. It's a window treatment in any case.

M. POTVIN, cr-ex

(Cooper)

19356

Once again it's Mr. Giroux's routine or his habit as told to you by your uncle because you've just told us that you never saw it except for this occasion, ---

A. Yes.Q. --- which you've used here to explain your

answer here, right? A. Yeah. I don't know how many times he had his door propped, yeah. Q. Now it goes back here, the next part, sir, you're going back to this and I suggest we've never really left the area, you're going back to this part where you're talking about -- explaining your mistake to Mr. Taylor on the Thursday night about whether you did a line on the way out, okay?, and you seem to come back to that here and I'd like you to bear that in mind as we're playing that and see if I'm right about that.

We're starting at about 31:56.--- Videotape played MR. COOPER: Q. I guess that's as good a spot to stop and discuss this as any. You associated it with leaving when you mis-stated it to Mr. Taylor a couple of days before. A. Yes. Q. And actually you misassociated it, right? A. Yes because it was on my way out but I did not leave. Q. Right. A. Yeah. Q. So you're still explaining to Mr. Taylor why you sort of miscommunicated in your yard there with him a

M. POTVIN, cr-ex

(Cooper)

19356

couple of days beforehand. A. Well I didn't talk about that then, I don't think, no. Q. Well that's what you're explaining, sir. This is what we just ---

A. No, I think that's your --- Q. Could I finish the question? A. Sorry.Q. It's what we just did before lunch --

right? -- today? A. Yes. Q. It's the same area that Mr. Taylor is discussing, right? A. Yes. Q. The same area that Mr. Taylor discussed, you're still explaining yourself, right? A. Yes. Q. Okay. And you're explaining the error that you made was a misassociation. A. A mistake in timing. Q. Yeah. You thought you were going out --- A. That's right. Q. --- because that's what you had intended to do. A. That's right. Q. And obviously when you told Mr. Taylor that, the mistake you made is that you were associating the line going out the door and he misunderstood you, you miscommunicated in some fashion because clearly he had a different understanding than your actual recollection, right? A. Obviously.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Okay. Either that or you misstated it to him and he understood you perfectly and you clarified it in the intervening 48 hours, right? That could happen too, right? A. But it didn't, no.

Q. It didn't.A. No.

Q. It's Mr. Taylor making a mistake, not you. A. Well I think we both -- he doesn't know what happened, I'm telling him what happened. Q. Right. He's recounting what happened the two days before. You both know what happened that day, right? A. On the Thursday? Q. Yes. A. Basically. Q. Okay.

I'm just going back to about 32:10 maybe.--- Videotape played MR. COOPER: Q. Stopping at 33:27, sir, now as we dis-cussed, I don't know if it was this morning or yesterday, but you had actually had Ms. Mulligan referring those other statements to you right there on this video, right? A. Yes. Yes. Q. Yes. So the other -- your other statements had been sort of summarized to you and in one part Ms. Mulligan read out a sentence or something, right? A. Here and there in the video, yes. Q. So you didn't read them --- A. No. Q. --- during the course of this video, I mean that day, right?

M. POTVIN, cr-ex

(Cooper)

19356

A. No. Q. But they were right -- well, we can see it, it can't be a metre away from you, right? A. That's right, yeah. Q. So you saw that they were there? A. The paper was there, yeah. Q. And you had parts of one of them read out to you and sort of a summary of the pair of them, right? A. That's right. Q. And the dates and whatnot, the month, not the specific day of the month.

So why do you agree to this suggestion by Ms. Mulligan "... you haven't seen any of your other statements today?" when in fact what happened is what you just described to me? A. What? I can visually see them? Q. Is that how particular you're being here, sir? I just want to know why you agreed with that statement because clearly you saw them, you didn't read them but you had parts of them read to you, they're right there? A. Yes. Q. We've all seen them, right? A. That's right, yeah. Q. And so why did you agree to this suggestion " ... you haven't seen any of your other statements today?"? A. Oh I take it she means I haven't read them. Q. But that's not what's actually said here. A. Okay. Q. So when you're giving a complete and full answer under oath here, you don't include the fact that well these have just been read to me in part, you know. You're not

M. POTVIN, cr-ex

(Cooper)

19356

trying to be as complete as possible there. A. I didn't think I would have to be that complete. Q. Okay.

What clearly you understood Ms. Mulligan to mean that you hadn't been sort of clued in about what your statements meant. A. I hadn't reviewed the other statements, no. Q. Right. That's what ---

A. I took it that way, yeah.Q. That's what you understood it to mean, you

hadn't reviewed them. A. Yeah. Q. But you had. She'd reviewed them for you right here on the video. A. Previously? No. Oh yeah, during the video, okay, yeah. Some of them, yeah. Some of it. Q. But what's said here is "And aside from this first statement that I've reviewed with you ...", well that one was actually handed to you and reviewed in its entirety, "... you haven't seen any of your other statements today?" and you say "No" when in fact it was reviewed, the other two were reviewed in part with you right here on the video, right? A. Yeah. I guess. Q. You don't give a clarification. A. No. Q. You agree with the suggestion, right? A. That's right, yeah. Q. The suggestion isn't complete or really accurate, is it?

M. POTVIN, cr-ex

(Cooper)

19356

A. No. Q. Okay.

Going backwards, sir, in the passage we just reviewed, you talk at the bottom of 42 and the top of 43 about anyone on drugs becomes a procrastinator and we reviewed this in part a couple of days ago, right? A. That's right. Q. And you're describing your own experience as well, right? Obviously. A. Sometimes, yeah. Q. You're on drugs more than most people? A. Sometimes, yeah. Q. Right? As far as you know you're on drugs more than Mr. Giroux? A. I couldn't tell you that, no. Q. Well, you seemed to be, right? You've never seen him take as many drugs as you're taking, right? A. Yeah. Q. And you're sort of describing him but then you enlarge it to "people in drugs ...", and you say "Anyone on it ..." et cetera. So you're describing the procrastination that's part of your own lifestyle? A. It can be at times, yes. Q. And the non-structured lifestyle that you were enjoying at the time, right? A. Myself? Q. Yes. A. A non-structured lifestyle?

Q. Yes.A. I had a day job. I had a business on the

side. I also had 49 percent in a used car business at the time.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Right. So you had a lot of touchstones there to keep you busy during the day. A. Yeah. Q. But you don't have any specific timetable. A. No, not after 5:00, no. Q. No. And not even before 5:00 because you kind of go from place to place. A. Not back then, no. Q. Not back then.

A. No.Q. You do now I guess.

A. That's right, yeah. Q. Okay. So after 5:00 it's a non-structured lifestyle. A. Not an employment structure, no. Q. Exactly. It's not as structured as your day job. A. That's right. Q. Not as structured as your teaching commit-ments were at Algonquin. A. I didn't have to answer to anybody or any time allowances. Q. Right. Time was not an important issue for you. A. Well not for -- well, not for employment purposes, no. Q. Right. And if you didn't get the Pulsar done for Wednesday morning it didn't matter, it could be done Saturday morning, right? A. Well usually there was a time allotted to the customer.

M. POTVIN, cr-ex

(Cooper)

19356

Q. But obviously the Pulsar that you were working on when the lights went poof, your words, that wasn't something that you were very particular about getting done on any schedule, right? A. Well there was a schedule, it was my uncle's schedule. I was just helping him along. Q. Okay.

Okay. I'm just going to resume it now here. Just before we do ..... No, no, we'll just resume for a moment at about 33:18 maybe.--- Videotape played MR. COOPER: Q. Stop at 34:01, sir, you were disassembling something actually the night that the power went out, right? A. That's right, yeah. Q. You were taking a door off. A. A door. Q. And that's the sort of thing that you'd go in and finish up. A. Or help out on, yeah. Q. Yeah. Kenny, uncle Kenny, had his vehicle there too, didn't he? A. Yes, a pickup truck, yeah. Q. Yeah. And he was having some work done on it, one of his vehicles, the truck. A. Something like that, yeah. Q. Right. So there was the Pulsar, the truck and the van, for sure those three were all being worked on ---

A. Yeah.Q. --- that week.

M. POTVIN, cr-ex

(Cooper)

19356

A. I'm not sure what my uncle had arranged with his brother, my other uncle. Q. Okay. Maybe you should use names here because I'm not sure which one you're talking about. A. Sorry. I'm not sure what Ron had arranged with Kenny. I don't even know what he did on his truck. Q. Right. But you were there talking to Kenny and Ron, right? A. That's right, yeah. Q. And Kenny wasn't a regular at the garage, he came when he had stuff to be done, and he'd drop by occa-sionally if he was in the neighbourhood but --- A. Yeah. Q. --- generally speaking it was to get work done on his vehicle, right? A. Yeah. Or visit on the way home, yeah. Q. Yeah.

And here's where you're saying you could be there six nights a week, right? A. Yeah, I could be, yeah. Q. It's not a Tuesday, Thursday, Saturday thing at all, is it, sir? A. If there was a lot of work I could be there six days a week, yeah. Q. Well this week you had a lot of work, right? A. Oh that's not a lot of work. Q. That's not a lot of work. A. Oh no. Q. Three vehicles is not a lot? A. No.

M. POTVIN, cr-ex

(Cooper)

19356

Q. It's the capacity of the garage. A. Yeah. It's when you have six or seven waiting outside, that's a lot of work. Q. Okay. So there wasn't six or seven waiting outside, ---

A. No.Q. --- just the garage being full. But it

wasn't a situation there, sir, where you worked there on Tuesday, Thursday, Saturdays as you said before, that wasn't the case here.

A. No.Q. When you're starting up a business like

this, six nights a week is not uncommon at all. A. No, I could add that the Pulsar was my only used car at the time too. Q. Well you bought it so you could sell it, right? A. That's right. Q. It's money as soon as you get it out the door. A. Yeah. Q. Okay. Let's move on. Just before we do, we reviewed, sir, your lifestyle at the time in terms of cocaine consumption, numerous times, --- A. That's right. Q. --- during your cross-examination here, and you didn't tell in this video where you're sworn to tell the truth, the whole truth and nothing but the truth, you didn't tell any lies, right? A. No.

M. POTVIN, cr-ex

(Cooper)

19356

Q. You might've made a mistake or two or who knows how many, but no lies. A. No intentional lies, no. Q. No intentional lies. No unintentional lies, ---

A. That's right. Q. --- right? You didn't try and misrepresent

yourself in any capacity whatsoever to these people, Ms. Mulli- gan and Mr. Taylor and Mr. Carew. A. That's right. Q. Right?

A. Yeah.Q. You didn't misrepresent any part of your

personal life. A. Not that I can remember, no. Q. You told them -- when they asked a question about your drug consumption you told exactly the same thing you've said here under oath. A. No, I think I said six months in the video, yeah. Q. Yeah, you did.

A. Yeah.Q. And that's not all you said. I mean that's

not true, we'll get to that, ---A. Yeah.Q. --- but that's just not true, not possibly

true, right? A. I'm not sure. Q. You're trying to put the best light on yourself. You're shrugging or moving your hands.

M. POTVIN, cr-ex

(Cooper)

19356

A. No, I probably just don't remember exactly how long it was. Q. Okay. You started off telling us it was a year to a year and a half and then you saw the video, right? A. I saw the video before I was here, yeah. Q. Yeah, but then you saw a little chunk of the video, you saw the whole video actually as soon as it was given to us, or shortly thereafter, you saw the whole video and then the year to a year and a half shrunk to about year and a day, right? A. Yeah. Q. We had a big argument about this? A. Yeah, that's right. Yeah. Q. Not an argument, questions and answers, that sort of thing, and now on the video here it's shrunk to six months. Well, the reason that you had to shrink it, sir, was because in the interim when it went from a year to a year and a half down to a year and a day is because you saw in the video that you told these people under oath that it was only six months, right? A. I don't remember. Q. Let's review the video and see. But you're quite certain you didn't lie to Ms. Mulligan or Mr. Taylor or Mr. Carew. A. No. Q. You wouldn't do that. A. No. Q. Starting at about 34:00 almost.--- Videotape played MR. COOPER:

M. POTVIN, cr-ex

(Cooper)

19356

Q. Stopping at 35:37, sir, you hadn't been free of cocaine at Christmas for a year and a half, you'd whit- tled that down to six months. I suppose that's undermining your character, right? A. It would be, yeah. Q. But that explains why you had, having viewed this video at a break, that explains why you went from your initial testimony of a year to a year and a half down to a year and a day, right? A. Yeah. I don't really remember exactly how long, no. Q. You were getting closer to this six-month thing here, right? A. Could be, yeah. Q. So that was sort of fine-tuning your evidence to accord with what's on the video statement, making a correction, you wanted to be more accurate I'm sure, eh? A. That's right, yeah. Q. It wasn't a situation where you just realized 'oops, I said something on the video that contradicts what I said on the stand here'. A. It does. Q. It does. A. Yeah. Q. You did make that realization then. A. Yes. Q. And the result of that is that you changed your testimony slightly. A. Yeah. I don't really remember exactly how many months it is to a T, no. Q. Okay.

M. POTVIN, cr-ex

(Cooper)

19356

What I'm suggesting, sir, is just a complete lie and you can't get out of it is when you're asked if "... you've been off it now for a long time?", Mr. Taylor on page 45 asked you that and my goodness, sir, you've told us under oath here you were using cocaine at the time of the interview, not during the interview itself, you were using it right then. A. Yeah.

Q. Right?A. Okay, but the question is "Have you been

off it now for a long time?" And I said no, I made a slip. Q. Yeah, that's what you said. A. Yeah. Q. The true answer would be 'No, I'm currently using cocaine', that'd be a true answer, wouldn't it? A. No more then than I am now. Q. You've testified, sir, that when you came here you'd been free of cocaine for six months and you clari-fied it that you had a slip in three months. A. That's right. Q. So prior to that you had been on cocaine. A. Every couple of months I do, yes Q. "And you've been off it now for a long time?", the true answer, the true answer to that, sir, is no, right? 'No, I haven't been off it a long time'. A. Not a long time, no. Q. No. No. But you're a little bit evasive here. This is in September of 1998 and you start telling the story about the rehab in 1997, right? A. That's right. Q. And the rehab in 1997 is something we've already reviewed, right?

M. POTVIN, cr-ex

(Cooper)

19356

A. That's right, yes. Q. You and I have reviewed that?

A. M'hmm-hmm.Q. And you went to the rehab in what month,

April? A. It ended in April. Q. Ended in April, and by May you were back on the cocaine. A. I had used, yes. Q. Yeah. Yeah. So you're kind of representing it here as if this was the cure. A. Oh no. Q. Right? No, it wasn't a cure. A. No. Q. It wasn't a cure at all, and in fact you weren't clean, well let's just see, you say you slipped. A. That's right. Q. You didn't slip once, right? A. No. Q. You didn't slip by a small amount. A month after you've done the rehab, the month after, I should say, --- A. That's right, yeah. Q. --- you're back into it the same way you always were. A. No. Q. Yes you were, sir, and you've admitted that to us. A. Yeah but not as often as I was before. Q. Okay. But it was on a regular basis. A. Well, every couple of months, every month. No time structure. No given amount of time.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Oh, so when you're asked if it's on a regular basis like Tuesday, Thursday, Saturday that's why you're saying no, is it, sir? A. I never knew when I was gonna use. Q. You were a cocaine addict and you were using constantly during this time period and you lied under oath about it. A. Oh no. Since I left my wife I barely use, I use every couple of months. Q. You were using during this point in time and you were using until and after your wife sent you outdoors on September 5th, 1997, right? A. Every couple of months, yeah. Q. Yeah. Yeah. That's why she sent you outdoors, right? A. It's what she says, yeah. Q. Yeah. You were using it so much that you went to other assistance programs as well, didn't you, sir?

A. At that time?Q. The NA and the double -- and the ---

A. Yeah. Yeah. Q. It was an ongoing problem for you that you've only resolved recently. A. There's no difference now than it was then. Q. Are you still using on a regular basis, sir? A. Every couple of months, yes. Three months. Six months. Yeah. Q. So are you going to be using as soon as you finish this? A. I couldn't tell you.

M. POTVIN, cr-ex

(Cooper)

19356

Q. You can't tell us. A. No. Q. So this wasn't an attempt by you to completely misrepresent your current status as a cocaine addict. A. No. Q. You told them you were an addict, you just didn't tell them you were still using. A. No. Q. And you're saying now under oath that on September 12th, 1998 you were enjoying -- what? -- two, three months' abstinence? A. I have no idea how long it was. Q. It might've been two or three hours. A. No, it wouldn't be the same day. Q. Or two or three days. A. It could've been two or three days. Q. Okay.

A. Yeah.Q. That wouldn't be a long time, would it,

sir? A. No. Q. And you say after you went to the rehab you got clean there, you had a relapse, you slipped, whatever, and you used after that and you were asked if it was on a regular basis and you say no. That's not the whole truth. A. Well regular, I'm not using every day, I'm not using every second day. Whatever you call regular. Q. And it wasn't a small amount that you used.

A. Half.

M. POTVIN, cr-ex

(Cooper)

19356

Q. By the time of the rehab ending in '97 when you get back on the coke to 1998, you probably pumped another two or $ 3,000. worth of cocaine up your nose. A. No. Q. It wasn't a small amount, sir. A. It wasn't that much. Q. $ 1,000. worth of cocaine, is that a small amount? A. Yeah. Q. You're representing this here, sir, I'll play it again for you, you're representing this part here as if you had one slip one time with a small amount of cocaine, aren't you, sir? A. That's wrong. Q. If that was what you were doing that's wrong. A. That's right. Q. Let's go back and I'll ask you to watch the video here more than reading it there.

Starting at 34:00.--- Videotape played MR. COOPER: Q. Stopping again around 35:38, sir, you've misrepresented yourself there. Isn't that fair, sir? A. Slightly maybe, yeah. Q. It's a slight misrepresentation of your-self. A. Yeah. Q. And there's no reason for you to slightly misrepresent yourself there.

M. POTVIN, cr-ex

(Cooper)

19356

A. I wasn't asked if I was presently using or anything. Q. Right. There's no reason for this misrepre-sentation, slight or otherwise. A. No. Q. You're not moving your own interest forward at all. A. No. Q. You're making yourself look just a little bit cleaner than in fact you were at the time. A. I have no qualms to tell people I use and I admit to it, I mean it makes no difference to me. Q. Well you didn't do that here, though. A. Well I didn't offer any amounts, no. Q. You said it was "a slip" on page 45. A. At that particular time, yeah, after the rehab, yeah. Q. And after "a slip" there were probably three or four more slips per week on average, right? A. Not per week, no. Q. Two or three slips per week? A. Maybe one week it would be two, maybe it would be three weeks before the next one. Q. So over the course of the year in betweenyour rehab, more than a year, and this interview there's been dozens and dozens of slips. A. Yeah. Well, I don't know the amounts but yeah. Q. Now, before we start again, the word "always", sir, means to you without exception, right? "Always" means without exception every time, right? It means in every

M. POTVIN, cr-ex

(Cooper)

19356

instance. A. I don't know. I guess, yeah. Q. That's what the word means to you, isn't it, sir? It means continuously. If you've always done something you've done it continuously. A. I guess, yeah. Q. It doesn't mean mostly. A. It shouldn't but ..... Q. Or sometimes. A. It shouldn't, no. Q. Or with some exceptions. It doesn't mean that to you, sir? A. I don't think so, no. Q. You didn't need to be told, we talked about this right at the beginning of the interview, sir, this inter-view I mean, you didn't need to be told what day the murder was. A. Not the day, no. Q. Right. You remember Ms. Mulligan at the very beginning says it's alleged to have happened on ---

A. Yeah.Q. --- January 16, 1990 and then Mr. Taylor

is in there not too long after, no, actually your statement is read out to you, that's what it is, and it says Tuesday, the 16th of January, 1990. A. Yeah. The alleged time. Q. Yeah. Yeah. But you didn't need that information, you didn't need it at the beginning of the interview and you didn't need it at the end of the interview either, right? A. Well not the Tuesday, no, not the time, no.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Even the 16th, you didn't need that. A. The 16th? No. Q. The day, the 16th, that isn't something

that moved you forward. A. I have no idea. Q. We'll resume at about 35:30.--- Videotape played MR. COOPER: Q. Stopping at 37:04. "Are you working full- time now?" "Always have." Right? A. That's right. Q. That's what you said? That's why I was asking you about that word "always" but it did for you mean something other than what we just discussed, right? A. In what way? Q. Well, you haven't always worked full-time. A. Well no, I stopped for rehab, that's right, yeah. Q. And you stopped for UIC. A. The same time as the rehab, I had to go on UIC for that, yeah. Q. Okay. So what you meant by always is actually defined in the following page, in 47, by always you mean you weren't a year without work. Right? A. That's right. Q. That's how you're defining that word "always". A. When I was capable I worked, yeah. Q. Yeah. So you had a little time of unemploy-ment between jobs, well I guess it's just not the rehab then, eh?

M. POTVIN, cr-ex

(Cooper)

19356

A. No, it's shortly after the rehab that I found employment, yeah. Q. Yeah. So you didn't go on unemployment solely because you had to to go on the rehab, you actually quit your job, went on rehab or were fired. How did that work out? A. Actually I don't remember the timing of it. Q. Okay. But it wasn't just what you just told us 15 seconds ago, it was that you were on unemployment because of the rehab. A. Well, maybe not because of it. It was during rehab, yeah. Q. But it was also during this portion between jobs. A. That's right, yeah. Q. So you haven't always worked, you just haven't been out of work for, like, a year at a time, right? A. That's right, yeah. Q. Okay. That's what you meant by "always". A. Yeah. Q. It's one of these examples, sir, of time being a fluid concept for you, right? A. That's right. Q. Now Mr. Taylor is asking you the same question twice on page 46. At about the middle of the page he says "Okay. At the time that this went down, you were working full- time" and you say "Denis, yeah." You understood what he was asking you. A. That's right, yeah. Q. Okay. "And since the 16th of January, the evening that we're talking about." "Uh-huh". "Okay. You've been working full-time up to today?"

M. POTVIN, cr-ex

(Cooper)

19356

A. That's right. Q. And then you describe in a little more

detail. That's the same question, right? A. That's right. Q. He's duplicated the question but he's just added this part that you didn't need to help your memory at all, you say, the 16th of January, right?

A. Oh. Well.Q. You never noticed that, sir?

A. I notice it now, yeah. Q. So it's the third time that date has been mentioned but you've never mentioned it. A. I have no control over what he says here. Q. Well you have control over what you're saying, right?

A. Yeah.Q. And we've almost completed the video, sir,

and you've never mentioned the January 16th or the 16th of January. A. Everybody else is saying it. I don't have to say it. Q. You and Mr. Carew are the only ones who don't talk about it, right? A. That's right, yeah. Q. Let's back up slightly, sir. 36:56.--- Videotape played MR. COOPER: Q. Now, sir, we've just gone through the end of the transcript there, I didn't look at the counter. This is your only apology in the entire video on page 47 at the bottom, isn't it, sir?

M. POTVIN, cr-ex

(Cooper)

19356

A. Yes. Q. It's the only time that you indicate that you have any remorse about anything at all. A. Yes. Q. Right? And it's not about all the trouble you've caused. A. No it wasn't. No. Q. You're apologizing because you can't be more helpful to Mr. Taylor -- right? -- and Ms. Mulligan? A. I'm apologizing because I'm a bit vague about the time. Q. Yeah. And your wife, sir, she didn't even have a baseball bat. A. No. No. It's a figure of speech. Q. Right. And you're saying you know the time you left and that's because your girlfriend is waiting for you at home and all that, right? A. That's right, yeah. Q. That's why you personally remember. Right? A. Well that and among other reasons, yeah. Q. There's a little bit more on the video, sir, but there's no audible portions. Well let's see, Mr. Taylor just indicated, sir, "Completion of interview, 2:53 p.m. on the 12th day of September, 1998", that's the last words that he said there at the bottom of page 48? A. What I heard, yes. Yeah. Q. Yeah. And that's what's on your transcript there too? A. That's right, yeah. Q. Okay. And the next thing that we know, the video is turned off -- right? -- shortly?

M. POTVIN, cr-ex

(Cooper)

19356

A. I guess, yeah. Q. Okay. And the next words out of your mouth are those that are recorded by Ms. Mulligan and initialled by Mr. Taylor, right? A. Yes. Q. And nothing is missed here. There isn't any discussion that we don't -- I mean the video is off so we won't see it but the timing is exactly to the minute, the same, right? A. Oh, I don't know if it's to the minute. Q. Well it says 2:53 p.m. A. Yeah. Yeah. Q. And that's what Mr. Taylor just said, right? A. That's right. Q. And you have no reason to disbelieve Mr. Taylor or ---

A. No.Q. --- Ms. Mulligan, right? And you're saying

that you can't recall any other discussion, after the video but before these notes are made, right? A. I can't remember, no. Q. And just to review briefly "Tape shut off. "I", meaning Ms. Mulligan, "asked Mr. Potvin if he felt better for having said this. He said he really did. He also said another thing that had run through his mind at the time was that maybe the guys who were arrested had paid someone to say it happened earlier and they would come kill him if he said it was at" and then times are crossed off, it looks like 11:00 and then 10:40 written over 10:20 "before he left. He and his uncle were scared at the time. Worried they were in danger", right?

M. POTVIN, cr-ex

(Cooper)

19356

A. Yes. Q. And that accords with your recollection of the next words that came out of your mouth as soon as the video was, you know, shut off, right? A. That's right, yeah. Q. Now, why didn't you say that on the video, sir, first of all? A. I don't know. Q. You don't know why you didn't say it on the video but you couldn't wait to say it after the video was shut off, right? A. I don't know if I couldn't wait to say it. Q. Well you didn't wait to say it, right? A. No. No. No. Q. I mean it's not at 2:54 or 2:57 or two days later, it seems to be contemporaneous with the off button being hit on the video, right? A. I guess, yeah. Q. Okay. And that's when you bring up this topic and we've reviewed it in depth before, but the issue here -- one of the issues is that someone could be paid to change a time, right? A. Could be, yeah. Q. Okay. I just want to look at this video, sir, the last footage. Watch your eyes. My suggestion to you, sir, is you're just about ready, you finished what you thought you came there to do and you're looking to see if somebody's got their wallet open. Just watch the video and see if you agree with me on that. A. Their wallet?--- Videotape played

M. POTVIN, cr-ex

(Cooper)

19356

MR. COOPER: Q. Your eyes, sir, are shifting from Ms. Mulligan to Mr. Taylor and back to Ms. Mulligan again, aren't they, sir? A. Yes. Q. Do you find any of this funny, sir? A. Yes I do. Q. You find it funny that ---

A. Because my eyes are ---Q. --- right after that your hand drops from

your mouth and you suggest that somebody could be paid to change the time of a murder. MR. CRYSTAL: Excuse me, Your Honour, the wit-

ness was answering a question and Mr. Cooper cut him off. I think he should be allowed to answer the question.

THE COURT: Yes. Answer the question. THE WITNESS: Okay. I just find it funny that my

eyes crossing back and forth means I'm looking for payment for something.

MR. COOPER: Q. The first words out of your mouth concern payment for perjury, right? A. Okay. Yes. Q. A concept that nobody had addressed with you? A. That's right. Q. A concept that -- what? -- did you get that from a movie or something? A. Could be.

M. POTVIN, cr-ex

(Cooper)

19356

Q. You didn't wait a minute before you brought this up. A. I couldn't tell you if it's a minute or two, no. I think I said it right away. Could be, yeah. Q. And what you had just done in the preceding 38 minutes was change your evidence on the time of death, right? A. Changed the evidence I gave to the police, yeah. Q. Right. Which concerns one issue and one issue only, doesn't it, sir? A. What's that? Q. The time of death, that's what you and Ron had discussed the week afterwards. A. That's right. Q. Right. You knew what it was relevant to, you changed your evidence and then you bring up this idea about payment. A. I think it's a comment I made. That doesn't say I'm being paid for anything here. Q. No, I'm not suggesting you were paid, sir. Don't get me wrong there. I'm suggesting you thought that was a possibility. A. It could be. I still think it could be. Q. You still believe it could be that you would be paid for changing your evidence on this point. A. No, that someone could be paid for whatever, changing time, if it conflicted with any time. Q. Right. Just like your evidence does. A. Mine is the truth. That I know.

M. POTVIN, cr-ex

(Cooper)

19356

Q. The evidence you changed after lying about it for eight years, the evidence you're now saying is the truth, right? A. That I know it to be the truth, yes. Q. Right. Unless you're mistaken but you don't concede that --- A. No. Q. --- is a possibility, do you, sir? A. No.

Q. Okay. MR. COOPER: Could I make that video, Your

Honour, the next numbered exhibit, please? THE REGISTRAR: Exhibit 285, Your Honour. THE COURT: Exhibit 285, yes.

EXHIBIT NO. 285: Videotape of interview with Mark Potvin (September 12,

1998) MR. COOPER: And I will undertake to make a

transcript with the one change made by the witness Exhibit 285A then, but first I have to make the change of course.

Q. You had contact with seven police officers, sir. We reviewed that at the outset? A. Yes. Q. And all of whom were professional officers, you said? A. Very professional, yes. Q. And you don't have any complaints about their conduct except for the business about Fortier saying that he didn't care how much cocaine you might've had in your pocket or if you were a dealer, that sort of thing, right?

M. POTVIN, cr-ex

(Cooper)

19356

A. No, I understand where he was coming from now. Q. So none of those individuals pressured you to say anything you didn't want to say. A. Not whatsoever, no. Q. And you assisted the police whenever you could. In fact on the 26th of January, 1990, two days after you gave the statement that was a complete lie about the time, you called Matte, Officer Matte, at the Extended Service office with information that you overheard in a restaurant. We discussed that, right? A. Yeah. That's right, yeah. Q. So you took a proactive kind of involvement in the police investigation on that day. A. I guess I did, yes. Q. You weren't answering a question, you were giving information. A. Yeah. Q. Right? And you had just two days before co- operated with the police, at least they mistakenly understood you were cooperating with them, to give that statement that said you were home by 7:15 p.m. on the night in question, right? A. That's right. Q. Okay. And some of the visits, sir, that took place with the police, well they happened over the course of a number of years but in March of '95 you gave your state-ment to Officer Ralko over there with Officer Dougherty. Do you remember those guys? A. I don't remember Dougherty. I remember John.

M. POTVIN, cr-ex

(Cooper)

19356

Q. And then on the 4th of April, a week or so later, they came back and showed you photo lineups. Do you recall that? A. Yeah. Q. And this guy is one of the guys you identified. A. Identified him? Q. You made a remark about that gentleman right there. Do you recall now where you've seen that gentle-man before, sir? A. No. Q. It's not coming clear to you just now? A. No, it's not. Q. On the back it says number 8, sir? A. Yes. Yeah. Q. And do you remember this document here, sir, with your ---

A. I'll read it.Q. Sure. The portion of interest is down

here. A. Okay. "somewhere he has the shape of the big guy". Okay. I guess I'm saying he has the shape of the big guy I thought was at the restaurant maybe. Is that it? Q. And you know him from somewhere, that's what you're saying about this man here. A. It looks like it, yeah.

Q. Yeah. It looks like ---A. I don't know now, though, but I mean it

looks like I'm saying that then. Q. Right. And that was dated on the 4th of April '95 at 12:02 p.m., right? A. That's right, yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Okay. And that gentleman, sir, that gentleman you'd seen somewhere before, you think you have? A. Yeah. Q. That's a person named Denis Roy, isn't it, sir? A. I don't know. Q. You'd seen that gentleman at Mr. Giroux's, hadn't you? A. I'm not sure. I think I said it looks like somebody I might've seen, yeah. Q. It's possible that it's an individual you saw at Mr. Giroux's. A. It could be, yeah. Q. You didn't see the back of the picture at the time, though, did you, sir? A. No. No. Q. No. You're not going to see it now either. Never mind. I just ruined it. MR. COOPER: If I could then make that the next

numbered exhibit, please. THE REGISTRAR: 286, Your Honour.EXHIBIT NO. 286: Photograph of Denis Roy

MR. COOPER: Q. So it may be that you saw that individual at Mr. Giroux's and you're not certain of it. A. I'm not certain, no. Q. Okay. That's fair. Had you ever been at that man's house, sir, in Mr. Denis Roy's house, had you ever been there? A. I don't know him, why would I be there?

M. POTVIN, cr-ex

(Cooper)

19356

Q. No? You've never been at Mr. Mallory's house or Mr. Stewart's house to meet the man there? A. No. Q. So those are not locations where you might've met the man. A. No. I don't know. Q. Okay. Before, sir, before you had this interview that we just reviewed in depth on the video, before you had that interview didn't you go and see a lawyer, another lawyer? A. No. I was asked to. Q. You were asked to. A. Yeah, or recommended I should go for my best interests. Q. And you didn't do that. A. No. Q. Or was it after the interview? A. Pardon me? Q. Was it before or after the video interview on the 12th of September '98? A. Before, if I remember right. Q. If you remember right? A. Yeah. Q. And who gave you that suggestion? A. Well Ms. Mulligan said maybe I should get an attorney for my best interests. Q. So you talked to Ms. Mulligan sometime before this --- A. Or during or after. I don't remember when, yeah. Q. Okay. It could've been after, then?

M. POTVIN, cr-ex

(Cooper)

19356

A. Yeah. Q. Okay. You're not sure when it was. And the purpose of that was to determine, sir, whether you could hide this from the police -- right? -- whether you had to come forward? A. I'm not -- I didn't go into that with her. She just recommended -- thought it would be for my best interests. Q. That's what you went into -- do you remember giving the statement to the police there ---

A. That's right.Q. --- when you showed up here in court here?

A. Yeah. Q. It seems like a while ago but it wasn't that long ago.

A. Yeah.Q. And you gave a signed statement to

Officers Ralko and Riddell? A. That's right. Q. And you reviewed portions of that just yesterday, didn't you? A. That's right, yeah. Q. And that's part of the portion you reviewed. A. That's right. Q. And you indicated in that statement, sir, that in fact the first thing "advises he was subpoenaed a couple of months back, around July, and met Russ Taylor the private investigator in September 1998, went over previous statements to police." Well that didn't happen with Mr. Taylor, did it, in your driveway?

M. POTVIN, cr-ex

(Cooper)

19356

A. Pardon? Over the previous statements? No, no. Q. "Riddell: Make any changes?" That's a question. Answer: Rather not say until in courtroom.

Potvin states he's not choosing sides. He went to see another lawyer about this issue and his lawyer told him to wait until he was in court.

A. That's right. Q. Okay. So you did go to another lawyer. A. But I didn't -- I couldn't afford him so I didn't take him on. Q. So you went to another lawyer after Ms. Mulligan suggested that you might want to do this? A. Yeah. Q. You went to another lawyer and you just said you didn't a minute ago, but you went to another lawyer.

A. No. Q. Are you sure about that?

A. No, I went to a lawyer, not another one. I didn't have a lawyer.

Q. Right.A. Ms. Mulligan is not my lawyer.

Q. Right. Right. That's why she was suggesting you should see ---

A. That's right.Q. --- another lawyer. I want to make sure

our English is correct here. So you went to see someone other than Ms. Mulligan? A. Yes. Q. It wasn't Mr. Carew either? A. No, it's not.

M. POTVIN, cr-ex

(Cooper)

19356

Q. No? And, well, you told the police that you got some advice from that lawyer. A. Yes. I can give you his name if you want, his last name. Q. What's his last name? A. Robert. Q. Robert?

A. Yeah, he's in Orleans. He lives in Sars- field.

Q. Okay. And you went to Mr. Robert? A. Robert, yeah. Q. And you went to see him and the issue was whether you could wait until you were in court to spring this on the police and the Crown. A. More the issue was on how much it would cost me for a lawyer. Q. Well that was the threshold I suppose. A. Yeah. Q. So you didn't actually get any advice from ---

A. Nothing good, no.Q. --- Mr. Robert?

A. Nothing great, no. Q. Did he tell you that it was perfectly all right to sit on this information for another 13 months? A. He wanted more information on it and stuff and then I would have to hire him on, so we didn't go any further. Q. Oh, so you didn't actually get that advice from Mr. Robert. A. Not professionally, no.

M. POTVIN, cr-ex

(Cooper)

19356

Q. No. Okay. I'll come back to that in just a minute or so. As you're seeing, sir, before your eyes I'm getting rid of folder after folder. We're down to three sheets of paper. Before we return to that I want to ask you some general questions, sir. You haven't had any difficulty hearing me? A. No. Q. No? This is important. You've heard my questions and my voice has been loud and clear? A. Very clear. Q. And you've been careful to follow your oath and to tell not only the truth but the whole truth and nothing but the truth here, right? A. Yes. Q. You've been careful to do that.

You haven't left out anything that would be necessary to fully explain your answers? A. Not intentionally. Q. No?

And you haven't added any fibs, understatements or exaggerations, have you, sir? A. I hope not, no. Q. Okay.

And I haven't prevented you from fully express-ing yourself? A. No. Q. You've had that opportunity.

And you have always had time to reflect before answering my questions, haven't you, sir? A. Yes.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Okay.Is there anything, anything at all, sir, that

you would like to add to any of your answers that we've gone over during this entire cross-examination? A. I can't think of anything right now, no. Q. Well, reflect on that if you would, sir. A. Okay. Q. We're probably going to take a break before I'm done, I'm sure we will in fact. If you can think of anything during the break I'd like to review it with you before I finish. A. Okay. Q. And if there's any clarifications, any corrections, any alterations or any reconsideration of any of the questions I'll stand up here until we're done. A. Okay. Q. Because when I sit down, sir, when I finish my questions Ms. Mulligan gets the opportunity to ask you further questions and I don't get another shot, another opportun-ity. A. Yes. Q. So before I sit down I'd like you to be certain that all your evidence has been completely, thoughtful-ly and fully given, okay? A. Okay. Q. So if you give some changes in your evidence after I sit down I won't have the opportunity to chal-lenge you on those changes. Do you understand ---

A. I understand.Q. --- why I'm asking you to do this, sir?

M. POTVIN, cr-ex

(Cooper)

19356

MR. COOPER: And I have just a little bit left to cover, Your Honour, but I wonder if we could have the break just a few minutes early and some back a few minutes early and I'll be finished I think. I think I'll be finished by today.

THE COURT: Okay. We'll hold the break, then, to 15 minutes, everybody.

--- Whereupon court recessed at 3:15 p.m.

* * * * * * * *

--- Upon resuming at 3:35 p.m.--- Accused present




CROSS-EXAMINATION (continued) BY MR. COOPER: Q. Sir, you had the break to reflect upon the

questions I asked you about whether you had any corrections,

additions, changes of any kind to make?

A. No, I don't. Q. And you don't? A. No. Q. Now before you rented the garage, sir, you knew that Big John, the tow truck driver, used to live in the white house, right? He had the garage before you. A. Yes but I didn't know -- I knew it as I took the garage like ---

Q. Right.

M. POTVIN, cr-ex

(Cooper)

19356

A. --- because he was still in the house.M. POTVIN, cr-ex

(Cooper)

19356

Q. He was still in the house when you took the garage on November --- A. Yeah, or just moving out. Sorry. Q. Just moving out.

You'd been up to see the garage, to see whether it was something that you were interested in? A. That's right, yeah. Q. And, you know, you give it some consider-ation and decide 'yeah, well this looks like a business opportunity'? A. That's right, yeah. Q. And you took the time to talk to uncle Ron and 'would you be interested in going into business with me'? A. We already had gone into business a bit before then.

Q. Right.A. We had rented a garage in Clarence Creek

for a month before that.Q. Right.A. It was too far away.

Q. And when was that? A. Just pre -- I took the tools from there to this garage. Q. Right. Okay.

So you come and looked at this, you knew right away from Clarence Creek that wasn't going to work out so you --- A. Too far. Q. Yeah. And the one on Queen Street you went to check that out. Do you meet Mr. Giroux that day, the first day you went to check it out?

M. POTVIN, cr-ex

(Cooper)

19356

A. Geez, I couldn't tell you. Q. There were some people around? A. I went up with the landlord. Q. Right. A. Harold Sun. Q. And he showed you around the place --- A. Yeah. Q. --- and he told you the breaker would be over at this guy's house. Did he take you over to introduce you to Mr. Giroux? A. I don't think he -- I don't know if he said anything about the breaker at the time, I'm not sure. Q. How did you find that out? A. I'm not sure. Q. But it's a situation where you were up there obviously before you move in. A. Oh yeah. I had to look at the garage, yeah. Q. Probably about a month before you went up there to check it out? A. Probably. Q. And then you brought Ron up for him to check it out as well --- A. Yeah. Q. --- on your own afterwards? A. That's right. Q. So you'd been up there a couple or three times before you actually move in. A. Yeah. A couple of times, yeah. Q. Did you do any renovations there before you moved in, sir? A. Yes I did. Yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Yeah? Before you actually moved the tools you had to set it up. A. Yeah. Well that was from the 21st on, yeah. Q. Right. Oh, you didn't get a chance to do any renovation before the 21st? A. No. What happened was we took it the 21st but he didn't charge us 'til December, ---

Q. I see.A. --- so those days he didn't charge me a

rent. Q. But you're up there earlier in November, even maybe late October, a couple of times to introduce Ron to the site. A. Yeah. I can't remember the day. Yeah. Q. And there were people around at that time. A. There could've been, yeah. Q. That could've been where you saw that man in the photograph there. A. Could be.

Q. Yeah.A. Could very well be, yeah.

Q. Okay. Now there's just a couple of areas, sir, that I want to deal with here. You're aware now, and I don't want to get into rehashing everything, this is mostly evidence you've given before, you're aware of the significance of your evidence. You're aware, sir, that even if one juror takes you seriously that the rest of the evidence the Crown has led on the time of death is in jeopardy, right? It could change the outcome of the case, those are your words. A. I understand that now, yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Yeah. You didn't use the word jeopardy but --- A. Yeah. Q. --- you knew right when you were in the interview that it could -- it had a possibility of changing the outcome of the case. We don't need to go back to that. A. No. Yeah. Obviously, yeah. Q. And, of course, that has a snowball effect. In fact "snowball" is a good way to sort of describe what happened to you in terms of coming to the conclusions you did about your evidence, right? A. No, the conclusion of the time has always been constant with me. It's the details ---

Q. Right. The details ---A. --- that I'm vague on.

Q. Sorry. A. The details I'm vague on. Q. Okay. But you've sharpened up, though, as time has gone by and you've collected a little bit more information here and there. A. Of course. Q. But the significance that we're talking about for the Crown's case, sometime around the time of the interview, and certainly since, it's dawned on you that you were just like the Ottawa Star said, you're a key witness, right? A. Ottawa Star? What's that? Q. I'm confusing Star magazine with the Ottawa Sun. A. I said Star before.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Yes. You said Start magazine in the video. There isn't such any such thing, is there? A. I couldn't tell you. I hope not. Q. But the Ottawa Sun referred to you as a key witness, a key defence witness, right?

A. So I heard, yeah.Q. You read that story, right?

A. No. It was read to me. Q. It was read to you? A. Yeah. Q. But you've known right from the time you give the interview, it's clear in the interview that you know there's some considerable significance here. A. There's got to be or no one would come to see me. Q. Right. Right.

And obviously if Mr. Taylor and Ms. Mulligan are bringing Mr. Carew and doing this video and doing an oath and all this stuff, and warning you about perjury, you know this has got to be a big thing, right? A. It's got to be something.

Q. It can't be a little thing.A. That's right.

Q. And you know the potential effect that it has. And you say you're aware that if you were to be believed and indeed a horrible wrong has perhaps gone by, you said you had to right a wrong right in your testimony, right? A. Yeah. My wrong, yeah. Q. Yeah. Well, a wrong. A. A wrong, yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Not just your wrong. It has broader impli- cations than you personally, right? A. That's right. Q. Obviously.

And that reflects back on Mr. Sauvé and Mr. Trudel and their situation. Right? A. I don't know that, no. Q. Well, you're aware of that since your interview, sir. A. Yeah, I know I'm here for this case. I don't know anything about the other case. Q. And if you ..... Pardon me. You know about uncle Ron and his testimony for the defence in the last case, I mean you do know stuff about the last case, sir? A. I know he was here. Q. Yeah. And you know the timing and you know the issue and, you know, you know stuff, right? A. Well, I know about the time conflict --- Q. Okay. A. --- between he and I, yeah. Q. Now, of course, as it happens you didn't go to the police until they found you walking around the courthouse here and recognized you, right? A. That's right. Q. And, of course, it wasn't until that state-ment that we just talked about on the 12th of October this year, 1999, that the police had any idea that you'd completely changed your evidence, right? A. That's right. Q. Now, you just weren't quite ready for presentation any earlier than that, is that the case, sir? Like

M. POTVIN, cr-ex

(Cooper)

19356

--- A. Now present? Q. --- you were still having difficulty with cocaine. A. No. Q. Six months clean with a three-month mistake? A. That would have nothing to do with it, no.

Q. Pardon me?A. It would have nothing to do with it.

Q. You'd be perfectly prepared to come here and testify while you were actively using cocaine? A. Oh, not that day, no. Q. No. No.

And it's something where you had to kind of, well sober up isn't the right phrase but something similar, you had to get off drugs for a period of time before it was suit- able for you to come here and give your testimony. That's your perception of it, isn't it, sir? A. Not really, no. Q. You were prepared to come here in an unfit condition, so to speak. A. No, it wouldn't be very professional. Sorry, it wouldn't be fair to the Court or the defendants. Q. Right. Right. And that's -- you want to present yourself accurately. Obviously if you're doing drugs actively during your testimony or the day before or on the weekends in between, you're not going to be giving accurate evidence. A. I can't talk for anyone else, but I -- better not to be actively using when you give evidence, yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Right. And you've managed to abstain, haven't you, for this whole --- A. Yeah. Q. --- it's been three weeks or something, hasn't it, since ---

A. Yeah. Q. --- you first came to the courthouse?

But you weren't here during the Crown's case, you didn't present yourself to the police and the Crown while we were calling evidence, right? A. No. No. Q. No. And that's the choice you took after almost seeking legal advice with Mr. Robert. A. That's right, yeah. Q. You got the advice you wanted, right? A. A little bit, yeah. Q. You kind of were going there looking to be told you didn't have to give it up. A. That's right. Q. Right. That's what you were seeking, that's what you were hoping for and that's the way you interpreted it what you got, right? A. I don't know if it's what I was hoping for. Can I add something? Q. Yes. A. If the evidence -- if you could prove to me that the evidence meant that they were guilty then I would say throw way the key then also. Sorry. Q. Then you should've been going right to that man there. A. That's right.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Right to Mr. Riddell, a person you knew, a person you remembered, and you should've been doing that eight years ago. A. Yes, I should've. Q. You should've been doing that, and if you didn't do it then then you sure should've been doing it after you gave this statement under oath 13 months ago, on the 12th of September '98, right? A. Yes, I should've. Q. The 13th of September, the afternoon, right after you made that remark about people getting paid for changing their evidence at 2:53, you should've been at the police station by 3:30. That's what you should've done, isn't it, sir? A. I should have, yes. Q. That's what you would've done if you were anxious to have the evidence come before the court. Right? A. Well, it's gonna come before the court no matter what. Q. Yeah. Oh, it was. You just didn't want it to come forward during the Crown's case, right? A. I'm sorry, I don't understand "the Crown's case". Q. Well, Mr. Taylor told you, sir, that things were about to start up again. A. Yes? Q. The second half was about to start, "they don't have much evidence against my guys".

A. Okay.Q. That's what Mr. Taylor told you, right?

M. POTVIN, cr-ex

(Cooper)

19356

A. Okay but I'm sorry, I don't understand the court system. I thought if I can in with evidence, whichever way it may weigh I don't see why it wouldn't change the verdict, like, or whatever, evidence. Q. You should've been right down there right after you spilled your guts to Mr. Taylor, instead of going to see Mr. Robert you should've been to the police station or the Crown Attorney's office or march right down to the courthouse and say to whoever would listen 'I've got a correction to make', right? A. Yeah. I should've, yeah. Q. Because by the time 3:00 o'clock rolls around on the 12th of September, 1998 you know exactly how weighty, how important and how seriously the defence are taking your evidence. A. Now how much but I know it's important. Q. You've never had an experience like this before. A. No. No, I haven't. Q. No.

A. No.Q. And you knew it was very significant,

right? A. It was significant, yes. Q. But it wasn't so significant that you thought you should come down here and let us know before we entered into a year-long jury trial, right? It wasn't that important. A. It was and I should've came down. I can't answer you why.

M. POTVIN, cr-ex

(Cooper)

19356

Q. If you were to be taken seriously, sir, then we've all been wasting our time for more than a full year. You had the key information, didn't you, sir? A. I don't know that. Q. You know you had important information. A. Important, yeah. Q. And the result is that you've let this case move forward costing these two men, Mr. Stewart and Mr. Mallory, their freedom for an extra 13 months, right? I mean your evidence blows the case right out of the water. A. I don't know that, though. Q. These men could be free ---

A. Yeah.Q. --- but you didn't choose to come here

earlier, right? A. No. Q. Or on time. Not early, there's nothing early about it, you're eight years late, but you didn't choose to do that. Instead, we've spent all this big bag of money for a judge and all the staff and the Crown attorneys and the defence counsel and all the time for the jurors. Right? A. Yes. Q. There's been 13 months wasted. It'd be about 28 person years of labour in between when you give this information and when you finally reveal it to the police on the 12th of October, 1999 when they find you wandering around the courthouse. A. That's right. Q. And that was a decision that you personally took having gone through the trouble of seeking independent legal advice.

M. POTVIN, cr-ex

(Cooper)

19356

A. It's not a decision. It's what happened. Q. It's what happened. A. Call it a decision. Yes. Q. You addressed your mind to it, right? You knew it might be dicey or you wouldn't've gone to see a lawyer, right? A. That's right. I was referred. Q. Right.

A. Yeah.Q. It was a good idea for you to go see a

lawyer to determine whether you should give it up before 26, 28 person years of labour have gone into this trial, right? But the lawyer gave you or at least you took away from that meeting the idea that you could get away with not going to the police, right? A. He didn't give me much. I mean I didn't hire him on. Q. Right.

You held back, sir, for a tactical advantage, didn't you, sir? You held back so the police wouldn't be following your trail. A. They could follow me if they want. Q. Well you're still on cocaine. You don't want Officer Riddell, Officer Lamarche, Officer Ralko there following you around at night when you're making cocaine purchases, do you, sir? A. I'd rather not, no. Q. No. You don't want the police to start investigating your activities. A. That's not why I did it but .....

M. POTVIN, cr-ex

(Cooper)

19356

Q. Well that's just a side benefit I guess, eh?

A. No.Q. The reason you did it was you knew that

your story, your change in evidence, couldn't stand the light of day. You didn't want it investigated, right? A. No. Q. You didn't want the police to go and chat with your ex-wife. A. Well they can go chat all they want, yeah, with anybody I know. Q. You didn't want the police to go back and talk to Kenny Potvin or talk to Ron Potvin or try and figure out what happened, right? A. They can still do that if they like. Q. You let the trail get cold for eight years before you told anybody, and you let it get cold another 13 months before you told the police, right? A. Unintentionally. Q. Unintentionally. It didn't occur to you that this is a big benefit for you that 'nobody can check into my behaviour because I let this slide for eight months (sic) and now I'm going to let it slide for another 13'. A. What benefit would it be to me? Q. Well you're kind of a little bit bulletproof in terms of being able to follow up on your activities, aren't you, sir? A. Bulletproof? Q. Yeah. It gives you some advantage, doesn't it, that you're not coming to court with a fresh investigation about you?

M. POTVIN, cr-ex

(Cooper)

19356

A. I didn't -- I don't know. I never thought of it that way. Q. And there's the other difficulty, sir, and I mean this has to be part of your considerations, is that if Mr. Trudel and Mr. Sauvé were wrongly convicted it's their freedom in issue, I mean we've already discussed that, we don't need to go back there again, but what's something that had to pop into your mind? A. It does now. Q. It does now. It didn't pop into your mind after you gave this sworn testimony that perhaps could've gotten them off? A. But I don't know that. I can't see how an hour or 20 minutes or 40 minutes can change the verdict on a murder trial. Q. And the real problem, sir, is if these gentlemen were wrongly convicted, and indeed if there's not much evidence against these two gentlemen, at least that's what Mr. Taylor said, then the real murderers, the real people who murdered your neighbours, who murdered Michel Giroux and his pregnant wife, have gotten away with it and you are partially responsible. Did that ever occur to you, sir? A. It does now. Q. It does now. You let the killers go unde- tected and their trail get colder by sitting on this informa-tion for almost a decade. Right? A. Yes. Yeah. Q. And not just by sitting on it, you actively misled everybody you talked to about it. Right? A. That's right, yeah.

M. POTVIN, cr-ex

(Cooper)

19356

Q. Your actions, sir, may have let the real murderers, if you're to be believed or if you're accurate, may have let the real murderers go free. Right? A. Yes. Q. And you can't be so concerned about yourself, you're not that narcissistic and self-absorbed, are you, sir, that you're more concerned about yourself than you are about that issue? A. No. Q. So how did you make this mistake, sir? A. I really didn't look at it this way. I mean I never -- I never thought of the possibilities that in depth. Q. But that's what you've demonstrated: a cal- lous disregard for a police investigation, a public investiga-tion, isn't it, sir? A. I guess it is, yeah. Q. Whether you were -- it doesn't matter whether you were lying from 1990 to 1998 or from 1998 to now, the end result is the same - you've misled the investigative agency, haven't you, sir? A. That's right, yes. Q. With the result that perhaps someone may get away with murder or may have gotten away with murder, and it's your fault. A. Could be, yeah. Q. But I suppose the problem for you, sir, is that you're not certain about anything other than this 10:40 thing that you've got in your mind. A. I'm very certain about that. Q. And you're very certain of it. Other than that, your complete testimony is peppered with "could've",

M. POTVIN, cr-ex

(Cooper)

19356

would've", "don't remember the details", "maybe", "I guess", "could be", "I think", "not sure", "whatever", and it varied. A. I agree, yes. Q. And you couldn't care less. That's what you told us just before lunch, right? A. Of the details, no, I couldn't care less but I know the time I left.

MR. COOPER: Thank you, sir.

RE-EXAMINATION BY MS. MULLIGAN: Q. Sir, one of the details that you told Mr.

Cooper, and was reviewed from your January 24th, 1990 state-

ment, was that you discussed with Mr. Giroux the possibility of

buying a skidoo on Tuesday, January 16th.

A. That's right. Q. I almost hate to do this but I will. I'm pulling out Exhibit 58 which is a wallet.

So there's no misunderstanding, have you ever been apprised of what was in Mr. Giroux's wallet on the night that he was found by your uncle? A. No I haven't. No. Q. I'm showing you a document from Exhibit 58, it appears to be a registration for a skidoo. Do you recall having seen that at any point? A. No. Q. It's in the name of Jacques Sigouin. A. No. I can't recall, no. Q. Okay. Sir, there was much suggestion or criticism levelled by Mr. Cooper that at the beginning of that videotaped interview in September '98 I read to you your statement from January 24th, 1990. Do you remember those suggestions?

M. POTVIN, cr-ex

(Cooper)

19356

A. Yes. Q. You also agreed with Mr. Cooper that the police were professional with you and didn't try and pressure you into saying anything. A. That's right. Q. So your statement of January 24th, 1990 whose words appear in that statement, are they yours or the police officers'? A. Mine, written by the police officers. Q. Did they supply you with any information or did you give only your information, or how did that work? A. I just supplied my information, if I remember right. Q. Beginning with that issue, sir, I'm showing you a copy of --- Do you remember every detail that you told them on January 24th? A. No, of course not. Q. Would it help to see the copy? A. Yes, it would. Q. I'm showing you a copy of your statement, January 24th, 1990. Can you tell me, sir, if anywhere in that document you tell the police when you were at Michel Giroux's? A. I have time to read this? Q. Yes. A. Just the one time - Tuesday night. Q. What do you tell the police in that statement? A. Okay. Q. With respect to the date, sir. A. Okay.

On Tuesday, the 16th of January, 1990 I went into the garage after work around 6:00 p.m. I

M. POTVIN, re-ex(Mulligan)

19361

went into the garage, talked with Ron and Kenny for about an hour. I left the garage and went to Mike's, knocked on the door and Mike ..."

Do you want me to continue? I said the date, yeah. MS. BAIR: No, I think we should continue to the

point where he says he's home by 7:15. MS. MULLIGAN: Sure.

MS. BAIR: That's the issue outstanding. THE WITNESS: Okay.

I then left the garage and went to Mike's. I knocked on the door and Mike came to the door, opened the blinds and looked at me. I then noticed his hand moving as if he was removing a piece of wood from the door as a security measure. He then unlocked and opened the door. This was normal for him. I gave him $ 75. for the Hydro bill and added it to a small wad of bills which he took from his right jeans pocket. He had about $ 150. While I was there the phone rang and I think Manon answered and gave it to Mike, then I heard him say "No, I'm staying home tonight. I'm not going out". He then said bye and hung up. I made arrangements for a skidoo to buy off him and left. I left in my car and went to my girlfriend's Doreen Dyet at 285 Kinglet Way.

they just wanted the addressI got there about 7:15 p.m., had supper and watched t.v. Went to bed around 11:00

and then my signature. MS. MULLIGAN: Q. Now my question, sir, is with respect to the date of Tuesday, the 16th of January, 1990 it appears in your statement on January 24th, 1990, was that information that was given to you by the police or is that information you gave the police?


19361

A. It's information I gave the police it looks like.


19361

Q. So when Mr. Cooper went over time and time again how Mr. Taylor and I referred to January 16th, 1990, did that assist you in any way? A. I don't think so. Q. Had you even met Mr. Taylor or myself by January 24th, 1990? A. No. Q. Okay.

With respect to this issue of reading you your statement, Mr. Cooper suggested that you hadn't asked to have your memory refreshed, your January statement, and we -- I just read it to you during the video, right? A. That's right. Q. It's kind of a suggested procedure Mr. Cooper suggested. Right? A. That's right, yeah. Q. Have you seen notes that you signed, sir, from the 17th of December, 1993 where Heather Lamarche and Rick Riddell interviewed you? A. Have I seen them? Q. Yes. A. At that time, yes. Q. Do you remember everything that happened during that interview off the top of your head now? A. No. Q. Would you like an opportunity to see the notes to refresh your memory? A. I sure would. MR. COOPER: Well, Your Honour, I think we have

to have some touchstone to cross-examination here. I never addressed that statement. I don't


19361

want to miss my shot. If I get another shot, that's fine, but ---

MS. MULLIGAN: It has to do with what Mr. Cooper did address. I think it will become clear in a moment.

THE COURT: Well I'd like to hear some argument as to why it should be covered, all right?

MS. MULLIGAN: Okay.

THE COURT: Members of the jury.

--- Whereupon the jury retired at 4:05 p.m.


19361

--- In the absence of the jury

MR. COOPER: If you could excuse yourself as

well, Mr. Potvin, please.

--- Whereupon the witness retired

MR. COOPER: For the record Mr. Potvin has left

the courtroom, Your Honour. The procedure adopted thus far by Ms. Mulligan,

Your Honour, is addressing a totally different

issue than was addressed in cross-examination.

Ms. Mulligan is being -- the purpose of my sug-

gestions was for a perfectly legitimate purpose

and it's a purpose that's completely different

than the one Ms. Mulligan is trying to resur-

rect the same statement for. I don't care if

she files that statement, frankly, it's essen-

tially filed in the video in any event, but it

can't be brought up for the purpose she's been

using here. The purpose it was brought up for

in cross-examination was to demonstrate that

the witness had no memory to refresh. There is

no indication he knew anything until Ms. Mulli-

gan starts reading him the statement. That's

the point. She can't counter that point by

saying the police made these notes. I didn't

interrupt because it's the first thing she's

doing and I don't really care one way or the

other about that statement, as I say she can


19361

make it the next numbered exhibit if she

wishes.


19361

Now we're getting into another area entirely. When the police interview this man on the 17th of December, 1993 they're confronting him about this change in his evidence that they've received information about. I didn't go into the particulars of that confrontation and neither should Ms. Mulligan. It's a different issue than trying to refresh his memory and determine whether what he said initially is true before he comes to testify, a different situation entirely, Your Honour, and I don't think that Ms. Mulligan can jump from where she is now into that, it's just not part of re-examination, and as I said if I can have a re-re- examination, re-cross, or whatever it is, I'm perfectly content to let Ms. Mulligan ask questions such as these but it's not fair in terms of normal court procedure that she get into an area that is new, that was not touched by the Crown, particularly these notes of Lamarche, I had them in front of me, I never went into them, and Ms. Mulligan herself in the video just refers to the statement of that same day, not the signed notes. So there's an area here that I didn't explore at all and now Ms. Mulli- gan is trying to take the opportunity of going into that area for a different purpose.

MS. MULLIGAN: Nom I'm not, and there's nothing abnormal about the procedure that I'm using, in my submission.

There are two reasons why this December 17th statement should be shown to the witness and


19374

why -- actually, maybe more than two, several, why it's relevant. The first reason is that the very first thing the police officers do on December 17th, 1993 is give Mr. Potvin his statement of January 24th, 1990 to read over. They do that before they ask him any questions. Mr. Cooper spent the better part of a day or three-quarters of a day suggesting to the witness and suggesting to the jury that there was something wrong with that procedure when the defence did it; so I don't think that there's anything new or additional. This arose out of Mr. Cooper's suggestion, one of the many sug-gestions Mr. Cooper made about what the defence did, and that was one of the suggestions. The police took exactly the same approach in Decem-ber '93, and that should be made clear to the jury.

There is also in this statement, Mr. Cooper suggested to Mr. Potvin at one point that he had never before mentioned this wood thing in any of his statements to the police, the wood in the door, he doesn't --- MR. COOPER: No I didn't.MS. MULLIGAN: Yes, you did suggest that at some point and I have it in my notes.

He does indeed mention the wood in the door, that he moved the wood, that he looked through the blind or Mike opened the blind, moved the wood, paranoid, went into front counter, et cetera. That's in the December 17th statement.


19374

Mr. Cooper further suggested throughout his cross that this witness didn't know the day he was there, that's what the cross has been about, that he doesn't know what day he was there or what time he was there. In each and every statement when he talks to the police he tells them Tuesday, Tuesday, Tuesday, January 16th. This statement is no exception to that. He tells them Tuesday, January 16th. Mr. Cooper went into vehicles that this man can remember and suggested to him that maybe, possibly, quite possibly there was a rust-coloured truck and possibly there was a black 4x4 Blazer, Mr. Stewart's truck presumably and Mr. Vanasse's Blazer.

In this statement as well as the '95 statement he talks about vehicles he's seen, never before has he mentioned to the police any such vehicles. These are things Mr. Cooper pulled out of the air, so that needs clarification.

There may be other issues that arise out of this but those are the ones that I can think of off the top of my head. But certainly, in my suggestion, this statement has bearing on the areas Mr. Cooper went into, including the method of the interview and the details that Mr. Cooper went after this witness on. It seems to me that it is relevant and it doesn't open up any door for re-examination. In this state-ment the witness says "I swear it's Tuesday night" and again Mr. Cooper has covered with


19374

him that the police didn't suggest anything to him or gave him any answers. This is his past recollection recorded time and time again with the police, so when Mr. Cooper suggests -- his whole tone is this witness doesn't know when he was there and that the only reason he comes up with that is because we, the defence, in '98 suggest to him the date when it's in each and every statement to the police, that's proper re-examination, it has to be to clarify and to show that what Mr. Cooper suggested, more with the tone of his questions I suppose than the answers, but what he was suggesting or what he will be suggesting to the jury doesn't hold water because the statements, each and every one, give the date, he gives the date, he gives the day of the week, the date, he gives infor-mation with respect to the vehicles, he gives all these things in this statement as well as the others, and certainly for the -- and also prior consistent statements at this point. Mr. Cooper has suggested in no uncertain terms recent fabrication, so anything that's in a prior consistent statement vein goes in in re-examination, in my respectful submission. Anything that Mr. Cooper raised and suggested that it was recent fabrication has just come up with this change of his evidence as of late, if in fact it's a prior consistent statement goes to him, and there are a number of those.

So in my submission it's absolutely open. It

doesn't give Mr. Cooper any new right of re-


19374

cross because he's gone into each and every one of these areas.

THE COURT: Which way does the change happen is what you have to answer for prior inconsistent statements or prior consistent statements, because logically, if I understand what you're saying, he said he always believed the truth which he's now testifying to and all of the prior statements are nothing but prior incon-sistent statements.

MS. MULLIGAN: Well, except that Mr. Cooper has suggested that this man doesn't even know what day he was there, totally confused by that. These statements to the police make it quite clear this man has always known what day he was there and Mr. Cooper can't be left, in my submission, to leave it in cross that this man is somehow confused and the only way he figured out the January 16th date was because we had this interview with him in '98 and kept saying it over and over again, and Mr. Cooper went through that every time it came up, that the defence was suggesting to you that date again, there's that date again.

Well, Potvin suggested to the police that date on three occasions in three signed statements that we know of, and in my submission, that has to be fair game on re-examination. It's long before this '98 interview where Mr. Cooper keeps saying 'Ms. Mulligan and Mr. Taylor keep giving you the date'. Mr. Potvin has given it. It wasn't even an issue by '98, he's given it


19374

and given it and given it, and that has to be made clear, in my submission, to the jury that this isn't something that he's just learning for the first time on the video, and that's certainly the way Mr. Cooper is suggesting it, that maybe you said it once back in 1990 but you didn't know until they kept suggesting it to you. Well he's known every time he's been spoken to years apart.

THE COURT: Yes, but what is the other date in the Crown's cross-examination? There's another day happens after about 7:30 p.m. for the sake of argument, that's really what the Crown is saying, it's after that time that the day moves in to another day in his consciousness, that is the other day, it's not the 16th of January. The 16th of January may be quite correct up to 7:30 or, for the sake of argument, whatever time it is. So that's the way I understood the thrust of the cross. MS. MULLIGAN: Well, it's certainly not the way I understood it, Your Honour, and if the jury didn't understand it that way, any one of the members of the jury, then this is an area that will be left unclear and the jury will be misled, and that's what re-examination is for, to clarify areas where the jury may be misled or confused. The jury could well, in my respectful submission, take from Mr. Cooper's cross that this witness didn't know, wasn't sure of the date he was there until Mr. Taylor and Ms. Mulligan kept telling him over and over again


19374

in '98. If it's demonstrable that he told the

police in '93, in 1990 and in 1995, the night

and the day that he was there, it seems to me

that that's something that's important for

clarification, it's crucial, in my submission.

With respect to the other issues that Mr.

Cooper raised, they are as well, so that this

jury knows. Mr. Cooper said you're making this

up as you go along, you're coming up with new

stuff all the time. The jury needs to know what

has always been there, what he's told the

police time and time again, long before the

defence may have, I forget what the suggestions

were, - offered him money, offered him cocaine,

threatened him, I don't know, there were a

number of them - long before the defence ever

got involved with him he's telling the police

of his own free will with police officers,

voluntarily, things that are consistent with

what he says now and Mr. Cooper has suggested

he's making up as he goes along and he's never

said this and that before. Mr. Cooper is quite

wrong on a number of those points and surely

that's what re-examination is for.

THE COURT: All right. Let's do it. Let's do it for the date. I don't want you to do it for the methodology but ---

MS. BAIR: Can we have a brief reply, Your Honour?


19374

THE COURT: All right, if you want to reply.(In the absence of the jury)

19374

MS. BAIR: It strikes me that Mr. Cooper has said over and over and over again, in fact it's the mainstay of the cross-examination, that this witness has always said the 16th of Janua-ry. That's what makes him an eight-year liar, 'You've always said the 16th of January until 7:30'. That date cannot be clarified any more in re-examination, it has never changed in cross-examination. She's not entitled to reprove what was proven in chief and emphasized in cross. What has changed is the time. Mr. Cooper most certainly never suggested to this witness that he hasn't said the 16th of January before, it's the time that changed. Mr. Cooper's point in cross-examination was not that there is impropriety in presenting a witness with a prior statement before any inter-view. That's not the point. The point is that in this interview in 1998 before any opportuni-ty is given for anyone to determine whether this witness has any memory to refresh, he's told the date then. We know he knew before. The point is does he know now and we'll never know that. It's been clear throughout that he always knew the 16th of January in his own mind, it's the time that changed, he merged two days or there's something else. It's only the time. So Ms. Mulligan, in my respectful submission, is not entitled to demonstrate what has been demonstrated in cross and already in chief, there's been nothing that is in need of clari-


19374

fication through the cross on the issue of date, nothing whatsoever.

The purpose that the police gave, I mean the purpose of presenting the statement to the witness is part and parcel of the point being made. Mr. Cooper is making a point that it was inappropriate in the circumstances of the '98 interview. What happened in 1995 is the police present him with a prior statement in order to confront him, so it's not a presentation at large of a prior statement and my friend can't pull that point out of it and say 'I wish to address that point' because that point was never made. It doesn't arise out of cross-examination.

The cars, with respect to cars, Mr. Cooper pulled vehicles out of the air. Well of course he did. I'm not clear what my friend thinks she can do about that. She wants to go back and say 'you never said in any of your statements any of these cars'? Well no one said he did. She can't do that either, that's inappropriate use of prior statements.

And with respect to her claim that Mr. Cooper suggested to this witness that he had never before said that there was wood in the door, that's preposterous on its face given that it's in the videotape, read in to him from his first statement. The point that was made was was that this person only saw it one time, the rest of the times which he claims to have knowledge of


19374

derive from information uncle Ron gave him. So it wasn't that he never said it before, never before '98, it's that he had never seen it but for this one time on the 16th of January, and when in the video he says he saw it over and over again, that's all from uncle Ron. So my friend has misunderstood or misheard or miscon-strued entirely what was clearly said, and it wasn't the preposterous point that she claims he would be making, it couldn't have been that point, it's belied by the videotape.

THE COURT: All right. MS. MULLIGAN: Your Honour, I think that given

the number of factual differences between the Crown and I as to what was asked, and this wasn't from today, the piece of wood, it was from another day, I don't have the transcripts, I understand they're mostly done, I don't need today's or anything but certainly the days before, I think I should review them and be prepared to show Your Honour in the transcript why the re-examination is important, including, Your Honour said you didn't wish for me to go into methodology, I'd ask that Your Honour just give me the opportunity to make further submis-sions on that once I'm able to point to the passages in the transcript because it's very important. I have a lot of re-examination to do with this witness to clarify a lot of things that I think were misstated to the witness and so I think it is important and I know that we're now at 20 after 4:00 and I don't want to


19374

waste any time but I think that given, as Mr. Cooper's pointed out, the central nature of this witness, his cross-examination is also very important, re-examination is very impor-tant for the defence on these points. I would like to be able to put accurately and absolute-ly accurately what Mr. Cooper did put to the witness so that I can either justify or step back from my position before the Court at this point.

THE COURT: You're going to be long enough anyway tomorrow I guess. This is major rehab time we're dealing with here, is it?

MS. MULLIGAN: No, it's re-examination, it's not rehabilitation. There are a number of things that ---

THE COURT: I was putting you on. I was putting you on a little bit. Of course it's re-examination, but I mean you think you will be some time is what I was getting at.

MS. MULLIGAN: Oh yes, I think there are a number of things that need to be clarified, yes, and as much as I'd like to let the witness be done today it's not going to happen in any event. I have about 20 pages at the moment and hopefully if I have the transcript I can pare that down and make my submissions to Your Hon- our as to the relevant areas.

THE COURT: All right. What about 9:30 then, can everybody come in tomorrow at 9:30?

MS. MULLIGAN: I'm just checking, Your Honour. MR. MORRIS: I'm available, Your Honour.


19374

THE COURT: All right. Thank you. MS. MULLIGAN: Assuming it's up to date I'm

available as well. THE COURT: All right, but I would like to start

at 10:00 so I would like the points terse and really to the point because I just don't want to go wandering all over the transcripts. If you have a point say it and this is the reason - one-liners.

MS. MULLIGAN: All right. And I will have some-one reminding me that we're starting at 9:30, Your Honour. I'll have someone call me.

MR. DANDYK: Do I assume, for purposes of the record, after this witness is finished we're going into the Dave Dunbar motion?

MS. MULLIGAN: Yes, that was my understanding of where we were at.

THE COURT: Well, because the Crown doesn't want to deal with the next witness even though he's more related to this witness?

MS. BAIR: We don't know who the next witness is. We don't know if there is a next witness. We'd be happy to know that. MR. DANDYK: We haven't been told, Your Honour.

MS. MULLIGAN: Well, there is this application and then there is a very short application. Both applications will determine whether there are any other witnesses to be called in Mr. Stewart's case. So absent my success on those two applications there will be no further witnesses on Mr. Stewart's case.

THE COURT: Okay.


19374

MR. DANDYK: I presume we'll get as early notice as possible to avoid any delay on the addi-tional motion.

MS. MULLIGAN: Yes. It's a very brief matter and I'll give Mr. Dandyk notice as soon as I can.

THE COURT: All right. 9:30 it is then.

--- Whereupon, at 4:30 o'clock p.m. court was adjourned to

reconvene at 9:30 o'clock a.m. Wednesday, November 3rd,

1999

* * * * * * * *

Certified correct to thebest of my skill and ability

________________________________Gloria D. Neville, C.S.R.Chartered Shorthand ReporterSuperior Court of Justice


19374

kangaroojustice.org€¦ · web viewupon commencing at 10:05 a.m. accused present. mark potvin,...

Documents