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Crown delays, dodgy witnesses sink prosecution

An unprecedented prosecution that spanned 16 years, cost taxpayers more than $30 million, and eventually hung on questionable evidence from the aging memory of an unscrupulous paid informant came to a close last week when Superior Court Justice Colin McKinnon stayed proceedings in the first-degree murder retrial of Richard Trudel and James Sauvé.

The two men were convicted in 1996 of first-degree murder in the notorious 1990 shooting deaths of Michel Giroux and Manon Bourdeau, often referred to as the Cumberland Murders.

In 2004, after a series of remarkable delays, the Ontario Court of Appeal overturned the convictions and ordered a retrial. The new trial began this month when defence counsel applied for a stay of proceedings on the basis of ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms.

By then, two of the Crown's key witnesses had recanted and a lesser witness was dead, so the case hinged almost entirely on evidence from Denis Gaudreault, a lifelong criminal and paid informant who previously lied under oath, concoted evidence, and said in 2005: "They better have a nice deal to offer me because I don't remember nothing now."

An important piece of physical evidence, a white Cadillac under the protection of police, was also inexplicably destroyed.

"To subject the applicants to a retrial based on the evidence of Denis Gaudreault after 16 years would, in my view, violate those fundamental principles of justice which underlie the community's sense of fair play and decency, and potentially bring the reputation of the administration of justice into disrepute," wrote McKinnon in his 31-page judgment.

Almost from the beginning, the case suffered delays largely because of inadequate disclosure from the Crown early on. During the 2.5-year preliminary hearing, the Crown, already struggling to supply masses of disclosure so defence counsel could properly cross-examine unsavoury witnesses, was further thrown off track when the Supreme Court of Canada released its 1991 landmark decision R. v. Stinchcombe, which obligated it to disclose all evidence that could help the accused.

"I observe that in a case based upon evidence of informers, disclosure of all aspects of the background and character of the informers and their interaction with the authorities comprises the only effective tool to test the credibility of such witnesses," wrote McKinnon.

"While I acknowledge that the Crown was required to retrench its efforts to comply with the requirements of Stinchcombe, it must ultimately live with the mandates of the law. Delays occasioned cannot be laid at the feet of the accused."

After the 1996 convictions, the two men appealed, but delays continued, including four years for the production and delivery of transcripts necessary for the appeal.

Prior to the retrial, government officials also prolonged the process, which was eventually remedied by the court, by forbidding or restricting defendants from using laptops in their jail cells to access electronic evidence in order to prepare for trial and instruct counsel.

At the same time, the Crown and newly retained defence counsel were arguing over who should supply disclosure to defence counsel - the Crown or previous defence counsel.

Some of the other delays resulted from the Crown's pursuit of appellant remedies when it didn't have a realistic chance of succeeding.

All told, McKinnon attributed  3.5 years of unacceptable delay to the Crown.

"In the present case, the delay is so inordinately long that the prejudice to the applicants is manifest. They have effectively been in custody for over 16 years with impugned delay of 3.5 years."

In the last page of his judgment, McKinnon acknowledged that the case was enormously difficult for investigators, prosecutors, and defence counsel, but said the main reason for this was that the case depended on informer witnesses who constitute a grave threat to the administration of justice.

Neil Weinstein, who along with Anne Weinstein has represented Sauvé since the retrial order in 2004, says Gaudreault was put in a position where he could actually make a living by holding his evidence hostage. Not only did the disclosure reveal that he was paid hundreds of thousands of dollars, but he committed criminal offences for money while he was receiving these payments, he says.

"On one occasion when he was being moved on witness protection, he had drugs on his property and the state ended up moving his drugs for him," says Weinstein. "It sounds shocking but it's not contested and it's in the disclosure."

Gaudreault didn't even point the finger at Sauvé until he called police to ask about payments and they planted the suggestion, he says.

"He instantly adopted the suggestion . . . . The idea of an investigator telling a witness that they think somebody might be involved, specially someone who is calling up to ask about his money, seems to be a fundamental difficulty with the investigation."

It's this type of informant that has been recognized in many inquires as being a fundamental cause of wrongful convictions, he says.

The Crown's own policy manual clearly states that witnesses of this ilk should be charged when they commit offences, says Weinstein.

"He admitted to perjury, admitted to manufacturing evidence, was involved in drug trafficking, allegedly planned an armed robbery, and committed a whole host of other offences and he's never been charged with a single offence."

But can the Crown escape using disreputable witnesses?

"There's a reality, I guess, that theoretically crimes are committed in the company of criminals," says Matthew Webber, lead counsel for Trudel. "But as soon as you start paying criminals and allowing criminals to change their stories and accommodating those shifting stories, you're engaged in a very dangerous game."

Crown Julie Scott declined to comment, except to say the Crown will make a decision about whether to appeal the decision shortly.

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