COURT OF APPEAL FOR ONTARIO
HER MAJESTY THE QUEEN
– and –
AFFIDAVIT OF ROBERT STEWART
I, ROBERT STEWART, of the City of Ottawa, in the Province of Ontario, hereby MAKE OATH AND SAY AS FOLLOWS:
1. I am the Applicant for bail pending appeal.
2. I am 52 years old having been born on August 29, 1952 in Fredericton, New Brunswick. I am a Canadian citizen.
3. Apart from the period of time during which I have been incarcerated at Collins Bay Institution in Kingston, Ontario, I have lived all my life in the Ottawa area.
4. I am divorced, my former wife, Linda Beland, and I had 1 son, Douglas, (now deceased).
5. I have completed Grade 12 at Gloucester High School in Ottawa. Apart from the convictions, which are the subject of the appeal, I have a criminal record which includes convictions for narcotics and assault.
6. My father, Douglas Stewart, is 85 years old. I propose that he be my surety should I be granted bail pending appeal. My father lives in Ottawa and is willing to have me reside with him. He has also filed an affidavit in support of my application for bail pending appeal.
7. In December, 1990. I was arrested and charged with three co-defendants in connection with the first degree murders of Manon Bourdeau and Michel Giroux. I have been in custody since that date. The preliminary inquiry in this matter commenced on September 30, 1991 and was completed on June 29, 1993. The trial in this matter began on November 17, 1994 before Justice McWilliam of the Superior Court, sitting with a jury. However, on September 6, 1995, my co-appellant Mallory and I were severed from the prosecution of our two other co-defendants. Their trial continued until they were convicted on May 30, 1996. Mr. Mallory and I were then tried before McWilliam J. and a jury. The trial began on September 2, 1997. We were convicted on February 1, 2000 of two counts of first degree murder. On March 17, 2000 I was sentenced to life in prison, with a period of parole ineligibility of 25 years.
8. The appeal from the first of the two trials before Justice McWilliam was heard on February 3-7, 2003 and disposed of in a judgment of this honourable Court on January 30, 2004. Attached as Exhibit 1 to this affidavit is this Court’s judgment Regina v. Sauve and Trudel.
9. I am completely innocent of the offenses of which I have been convicted. Like Sauve and Trudel, I have meritorious appeal. I have been incarcerated for offenses which I did not commit since December of 1990, nearly fourteen years.
10. I have decided to represent myself on my appeal, to this honourable Court and have discharged my former counsel James Lockyer. The Court has appointed Ian Smith to act as amicus curiae. Mr. Smith and his colleagues, Louis Strezos and Joseph DiLuca, have provided assistance to me, but I intend to present my appeal myself. Likewise, although counsel appointed as amicus have assisted me in preparing and bringing this application for bail pending appeal, I will be representing myself on the application and intend to present the argument myself.
11. In a nutshell, the Crown’s theory at trial was as follows: the victims were found dead on January 18, 1990. They died, according to the Crown’s expert, either on January 16 or 17. The Crown asserted that the victims were killed because they were low level drug dealers who were indebted to higher level drug dealers, like me and Trudel. There was evidence that Mallory was my “enforcer”, and that Sauve was Trudel’s enforcer. It was alleged that the four of us agreed to kill the victims in order to make an example of them for others who had drug debts. Accordingly, on the Crown’s theory I had one Denis Gaudreault (who sold drugs for me, stored my weapon) drive me and my three co-defendants to the home of the victims. While Gaudreault and I stayed in the car, the other three ran into the house and murdered the victims with a shotgun. They ran back out to the car and Gaudreault drove all four of us to my house, at which point my then wife, Linda Beland drove Gaudreault home.
12. These basic facts are set out in a more expanded form in this Court’s judgment in Sauve and Trudel (Exhibit 1) at paragraphs 3 to 15.
C. GROUNDS OF APPEAL
13. I intend to pursue several grounds of appeal. These grounds are summarized under the headings which follow. I understand that amicus may submit that there were other errors at my trial, in addition to the grounds of appeal that I will be advancing. Before I discharged him, Mr. Lockyer filed a notice of appeal on my behalf which sets out 17 grounds of appeal. A copy of that notice of appeal is attached as Exhibit 2 my affidavit.
D. DENIS GAUDREAULT
14. In large measure the Crown’s case rested on the evidence of one Denis Gaudreault, a drug addict, an admitted liar and perjurer, a paid police informant and a life-long criminal. As noted in the judgment in Sauve and Trudel, Gaudreault has wondered from time to time whether he had been hallucinating about the murders. Gaudreault’s credibility was the central issue at my trial, as it was in the trial of Sauve and Trudel. Given the many problems with Gaudreault’s evidence, it was imperative that the jury be warned about the danger of relying on his evidence.
15. In Sauve and Trudel, this court found fault with the Vetrovec warning used by Justice McWilliam (see Exhibit 1, at paras. 70-100). The same Vetrovec warning was put to the jury at my trial. The relevant portion of the charge to the Jury in my trial is attached as Exhibit 3 to my affidavit.
16. The Crown has sought leave to appeal to the Supreme Court of Canada in Sauve and Trudel. In the Crown’s leave application, at paragraph 76, the following submission is made:
The trial judge in the case of the severed co-accused (who was the same judge as in this case) gave a Vetrovec caution in terms that a similar to those in this case. That case was the longest murder trial in Canadian history, surpassing even this very, very long trial. While it is the Applicant’s position that the two trials remain discrete proceedings and that they must be assessed on their own terms, (especially on the contextual adequacy of the Vetrovec charge and the 686 point) the potential significance of the judgment in the instant matter cannot be ignored. The Court of Appeal holding on the Vetrovec issue will obviously be advanced by the Appellants in R. v. Stewart and Mallory as disparities of their appeal. The Court of Appeal and the parties would benefit from correction and direction from this Honourable Court. The Crown’s leave application is attached as Exhibit 4 to my affidavit.
17. The unsavoury nature of the evidence upon which the convictions were grounds is also summarized in a letter dated May 13, 1998, written by my former counsel, Mr. Lockyer, to the former Attorney General, Charles Harnick. That letter is attached as to Exhibit 5 my affidavit.
18. In addition, however, I also intend to argue that it is plain and obvious that Denis Gaudreault had no independent knowledge about the murders precisely because he was not present when they were committed. Instead, it is plain and obvious that all the important details of Gaudreault’s testimony were gleaned from the Ottawa Citizen newspaper rather than from any of his own personal observations. My position in this respect is set out in a letter by my friend Glenn McAllister, an Alberta lawyer:
In 1996 Mr. Stewart’s two co-accused, James Sauve and Richard Trudel, were convicted of two counts, first degree murder after a jury trial which lasted 16 months. During the trial one of the lawyers for the defendants, John McMunagle, had the Ottawa Citizen newspaper fax him all of the newspaper articles which had been publish by that newspaper that were related to the case. [05/18/94 10:28 FAX 992-3289 PSC SECURITY] During the trial the transcripts of telephone conversations recorded by Denis Gaudreault sister and given to the police were entered into evidence and became know to Mr. Stewart. Mr. Stewart cross-referenced Denis “Eliminated speech” and the Jan. 23, 1990 Ottawa Citizen Newspaper article written by a reporter Alana Kainz. It is immediately apparent that all of the information provided by Denis Gaudreault to the investigating officer, H. Lamarche, in one of the recorded telephone conversations is contained in the newspaper article. Also included in the information provided by Denis Gaudreault is an error deliberately planted by Supt. Wib Craig of the O.P.P. to identify false informants. Amazingly this and other errors that were unintentionally reported and recited by Denis Gaudreault seem to be overlooked in the trial since their presence in Denis Gaudreault’s statement cannot be coincidence.
Mr. Stewart pointed out to the writer as early as 1996 that it was virtual certainty that Denis Gaudreault had garnered his original information from the newspaper. Mr. Stewart also informed other people including his counsel, the OPP, CJOH, television, and the producers at W-5. Nothing seemed to come of this information at that time other than an offer from the Crown to Mr. Stewart that if he were to plead guilty Mr. Mallory would get “time served” and Mr. Stewart would get “life 10.” on a joint submission on sentence. This would mean that Mr. Stewart would be placed in a half way house within two weeks of sentence and Mr. Mallory would be out. In addition the written deal would contain a guarantee that neither Mr. Stewart nor Mallory would be compelled to testify against Mr. Sauve or Trudel should a new trail be ordered. Neither Mr. Stewart no Mr. Mallory agreed to the proposed offer. One can only assume that innocent men would be loath to plead guilty to a crime that they did not commit.
At trial on January 13, 1999 on redirect by the Crown of the witness, detective H. Lamarche, January 13, 1999, it came to light that Det. Lamarche had given newspaper articles from the Ottawa Citizen dated January 20, 21, and 22, 1990 as part of the disclosure package provided to both the crown and defence counsel, but had held back copies of the Ottawa Citizen articles dated January 23, 26, and February 2, 1990, as well as articles published in the Ottawa Sun at about the same time and that dealt with the reporting of the case at bar. Det. H Lamarche has never been cross-examined as to why these very relevant Materials were not disclosed. Mr. Stewart believes that it had to be an intentional decision by Det. Lamarche, either alone or in consultation with other members of the investigating team, to avoid producing information that would cast serious doubt on the information provided by the main police witness.
Despite Mr. Stewart’s deep concerns over the conduct of all the police officer involved in the investigation, and especially the conduct of H. Lamarche, Mr. Stewart’s counsel did not attack the techniques of credibility of H. Lamarche at trail. In fact, Mr. Stewart disagreed so vehemently with the content of Ms. Mulligan’s closing address to the jury that he wished to dismiss her as counsel but was convinced by his co-accused and other that it would be folly to dismiss counsel after the trial proper had been completed. Ms. Mulligan would not use Mr. Stewart’s chart showing the similarities between Denis Gaudreault’s story of what
had happened and the Ottawa Citizen newspaper article of January 23, 1990 or bring up the fact that Det. H. Lamarche had withheld the newspaper clippings despite knowing of their existence. Apparently Mr. Stewart’s counsel, Susan Mulligan, felt that the jury “liked’ H. Lamarche, and would not follow Mr. Stewart’s wishes that H. Lamarche’s credibility be attacked on the basis of the newspaper clipping and, the writer would guess, other matters.
Mr. McAllister letter, dated April, 23, 2003, is found behind a cover letter dated April 29, 2003 and is attached as Exhibit 6 to my affidavit. Included as part of that letter is the chart that I prepared showing the marked similarities between the story of Mr. Gaudreault and the January 23, 1990 Ottawa Citizen article. The fax referred to in Mr. McAllister’s letter [05/19/94 10:38 FAAX [sic] 992-3289 PSC SECURITY] is attached as Exhibit 7 to my affidavit.
19. The January 23, 1990 article, which was Exhibit P at my trial, is attached as Exhibit 8 to my affidavit.
20. I have prepared extensive notes on this issue. They appear to Exhibit 9 to my affidavit.
21. In addition, I set out my position on this matter in a letter I wrote to Mr. Smith on December 10, 2003. That letter is attached as Exhibit 10 to my affidavit.
22. I also discussed this issue at length with my former counsel at Lockyer, Campbell. In particular, I discussed it with Catherine Glaister of that firm in a call that I recorded on March 12, 2003. A transcript of that call is attached as Exhibit 11 to my affidavit. Another copy of that transcript, disclosed by Crown counsel on this appeal, is attached as Exhibit 12 to my affidavit along with Crown counsel’s cover letter and the “Will Say” of Detective Constable J. Nussey.
23. I also attach as Exhibit 13
a copy of a chart by the police to Mr. Gaudreault. It was part of Exhibit Q at trial.
24. Attached as Exhibit 14 is a transcript of an intercepted telephone call between Mr. Gaudreault and his sister, Sylvie Gravelle. This transcript became Exhibit 229 at my trial.
25. Attached as Exhibit 15 to my affidavit are newspaper articles and part of the argument about the failure of the police to investigate fully in this case. These documents were Exhibits 274, 270 and AA at my trial.
26. The relevant portion of Mr. Gaudreault’s evidence at my trial (pages 3500 to 3536 of the transcript) is attached as Exhibit 16 to my affidavit.
27. A ruling made by Justice McWilliam (pages 3481 to 3486) with respect to the cross-examination of Gaudreault on the newspaper articles is attached as Exhibit 17 to my affidavit. An excerpt from the argument preceding that ruling is attached as Exhibit 18 to my affidavit.
28. The relevant portion of the evidence of Garrett Nelson at my trial (pages 8942 to 8953) is attached as Exhibit 19 to my affidavit.
29. The relevant portion of Det. Lamarche’s evidence (pages 6058 to 6062) is attached as Exhibit 20 to my affidavit.
30. The relevant portion of the Crown’s address to the jury on this point (pages 22589 to 22598; 22606 to 22639; 22650 to 22662) is attached as Exhibit 21 to my affidavit.
31. The relevant portion of the charge to the jury (pages 23358 to 23363 is attached as Exhibit 22 to my affidavit. The jury was also provided with a written version of part of the charge. The relevant portion of the written version (pages 315 to 319) is attached as Exhibit 23.
32. Excerpts from the evidence of Denis Gaudreault ot the trial of Trudel and Sauve are attached as Exhibit 24 to my affidavit. Excerpts from the evidence of Denis Gaudreault at the preliminary inquiry are attached as Exhibit 25 to my affidavit.
33. Excerpts from the evidence of Denis Gaudreault at the trial of Trudel and Sauve are attached as Exhibit 26 to my affidavit. Excerpts from the evidence of Denis Gaudreault at the preliminary inquiry are attached as Exhibit 27 to my affidavit.
34. Excerpts from the disclosure brief containing the statements of Denis Gaudreault are attached as Exhibit 28 to my affidavit. These excerpts were part of Exhibit [????] at my trial.
E. LINDA BELAND
35. Denis Gaudreault testified that, after the murder, he drove me and my three co-accused back to my house at my direction. He testified that I then instructed my then wife, Linda Beland, to drive Gaudreault home. At my trial, Beland testified that she could not remember driving Gaudreault home at any time, but she did not deny that it was possible that she may have done so. I have maintained since the day Beland testified that this was not properly put to her. In particular, I have maintained that the entire circumstance of her alleged involvement on the evening in question, as described by Gaudreault, has never been put to Beland so that she could confirm or deny it. I believe at trial, that if she had been told of Gaudreault’s description, she would have denied completely that Gaudreault’s account could be true. She would have denied absolutely that she drove Gaudreault home. However, neither the Crown nor my counsel put these questions to Ms. Beland. Moreover, none of the many police officers who ever spoke to Ms. Beland in the course of the investigation in this matter ever, to my knowledge, ever put the entire scenario to Ms. Beland so that she could comment.
36. As a result, after Ms. Beland testified, with the assistance of a friend, one Judy Armstrong, I telephoned Ms. Beland and, without her knowledge, recorded our conversation. I put to Ms. Beland the events of the night in question to which she ought to have been privy were Gaudreault’s evidence true. Ms. Beland vehemently denied that she had driven Gaudreault home in such circumstances. A transcript of the recording of that conversation, prepared by amicus, appears along with a cover letter from Mr. Strezos dated July 19, 2004 as Exhibit 29 to my affidavit.
37. At my direction, my father gave the tape of this telephone call to my counsel, Susan Mulligan, shortly after it took place, but she did not use it in any way at my trial. Later, when I asked for the tape back, Ms. Mulligan said that she could not remember or find it. Only after amicus asked Ms. Mulligan to look for the tape was it located. I was provided with a copy of the transcript of the tape roughly 5 years after I had it given to Ms. Mulligan by my father.
38. In the meantime, because the first tape was missing, I taped another conversation with Ms. Beland, in which she yet again denied that she drove Gaudreault home as he had claimed. A transcript of that telephone conversation, which occurred on May 22, 2003, is attached as Exhibit 30.
39. Subsequently, Ms. Beland swore an affidavit saying positively that she did not drive Gaudreault home. That affidavit is attached as Exhibit 31 to my affidavit. I have also previously sworn an affidavit respecting these and other issues. It is attached as Exhibit 32 to my affidavit.
40. Relevant excerpts from the argument and evidence of Ms. Beland at my trial respecting these issues (pages 11625; 11875 to 11890) are attached as Exhibit 33 to my affidavit.
41. Relevant excerpts from the argument and evidence of Gaudreault at my trial respecting these issues (pages 2077 to 2079; 2095 to 2100; 2109 to 2116; 3890 to 3913; 3907 to 3910) are attached as Exhibit 34 to my affidavit.
42. The relevant evidence of Detective Ian Davidson (pages 15085 to 15121; 15173 to 15179; 15264 to 15267) are attached as Exhibit 35 to my affidavit.
43. The relevant portions of the Crown’s address to the jury (pages 22650 to 22652; 23102 to 23108) are attached as Exhibit 36 to my affidavit.
44. During my trial, Ms. Beland was living with an auxiliary O.P.P. officer from the Rockland detachment. I wrote to Ms. Beland about my concerns about this. My letter to Ms. Beland is attached as Exhibit 37 to my affidavit.
45. On September 22, 2003, I told his honourable Court that I wished to have Ms. Beland re-interviewed. Attached as Exhibit 38 Justice Weiler’s endorsement to this effect.
46. I understand that amicus intend to interview Ms. Beland and that they have asked the Crown to gather together all of Ms. Beland’s prior statements so that they can prepare for that interview. Attached as Exhibit 39 to my affidavit is a letter to me form Mr. Strezos, dated August 4, 2004, attaching the Crown’s catalog of Ms. Beland’s prior statements. Some of my notes are attached to this letter.
F. JOHN SMALLWOOD
47. At my trial, the jury heard the evidence of one John Smallwood, a jailhouse informant. Smallwood was equipped with a “body pack” and surreptitiously recorded conversation that he had with me at the detention center. The transcript of the conversation that Smallwood had with me was edited before it was presented to the jury. My repeated denials that I had anything to do with the murders were deleted while utterances of minimal value but which the Crown believed to be inculptator, remained. I believe that the jury was presented with an unfair version of the Smallwood recordings.
48. The relevant portions from the argument and evidence of Smallwood (pages 13956 to 13981; 14142 to 14147;14278 to 14286; 14299 to 14303; 14579 to 14620; 14648 to 14651) are attached as Exhibit 40 to my affidavit.
49. My notes on this point are attached as Exhibit 41 to my affidavit.
50. An edited transcript of the Smallwood conversations (which was Exhibit 290 at my trial) is attached as Exhibit 42 to my affidavit. A full transcript of the recording prepared by the defence is attached as Exhibit 43 to my affidavit.
51. The trial judge’s ruling on the admissibility of statements I made to Smallwood is attached as Exhibit 44 to my affidavit.
G. REASONABLE APPREHENSION OF BIAS
52. Justice McWilliam preceded over the trial of my severed co-accused, Trudel and Sauve. They were convicted. Upon hearing their verdict, Justice McWilliam thanked the jury for coming to conclusion that was “more that reasonable”. About two weeks following that trial and before my trial began Justice McWilliam held a party for the jurors, court staff and counsel from the trial of Sauve and Trudel. The jurors and Crown counsel attended. None of the defence counsel attended. In addition, between the trials, Mr. Justice William attended a function at the Congress Center in Ottawa and sat with the prosecutors and one of the Investigators.
53. On December 16, 1995, my counsel brought a motion before the Chief Justice of the Superior Court to have Justice McWilliam removed from my trail. The Chief Justice ruled that he did not have jurisdiction to make such an order. That ruling is attached as Exhibit 45 to my affidavit.
54. That same day, my counsel brought a recusal motion before Justice McWilliam. He ruled against the motion. His ruling, dated January 14, 1997 is attached as Exhibit 46 to my affidavit.
55. On January 5, 1998, with assistance of David Scott, Q.C. a second recusal motion was brought before Justice McWilliam. Again, Justice McWilliam ruled against the motion. This second ruling, dated January 9, 1998 is attached as Exhibit 47 to my affidavit.
56. I believe that Justice McWilliam erred by failing to find a reasonable apprehension of bias in all of these circumstances.
G. PROBLEMS WITH MY COUNSEL
57. Since my conviction, I have had considerable difficulty pursuing my appeal. My relationships with counsel have been strained and none of them has pursued the appeal in the manner I would like. That is why I am representing myself on my appeal. These difficulties, which are exacerbated by my incarceration pending my appeal, are described in my correspondence with counsel, amicus, Legal Aid Ontario, the Correctional Law Project, the Court and the Crown. All of the relevant correspondence is gathered together, presented in chronological order and attached as Exhibit 48 to my affidavit.
58. Some members of the press have expressed interest in these difficulties and in my appeal. Correspondence from members of the press is attached as Exhibit 49 to this affidavit.
H. “TIME SERVED’
59. Before my trial, the Crown offered me “Life 10″ on a guilty plea and a transfer to a halfway house in two weeks. Mallory was offered “time served” on a plea to manslaughter. We did not accept this offer because we had nothing to do with the deaths of Manon Bourdeau and Michel Giroux.
60. My lengthy incarceration has had a shattering impact on my life and that of my family. Attached as Exhibit 50 is an article from the Ottawa Citizen dated November 27, 1993 describing the actions of one of the prosecutors. Attached as Exhibit 51 is a letter I recently received from my former wife, Linda Beland. Pictures of our family, which were made exhibit 241 at my trial, are attached as Exhibit 52. Recently, our son Douglas was murdered in Ottawa. My son was helping me on my appeal. To my knowledge, his death is being investigated by only one detective; the only Ottawa detective to testified at my trial. I understand that he has accidentally destroyed the only surveillance video of who went into my son’s building the night of his murder. Attached as Exhibit 53 are excerpts from the Ottawa press respecting my son’s murder.
Sworn before me at the City of Kingston
In the Province of Ontario )
this 12 day of November, 2004. )
A Commissioner of Oaths