We wish to thank Mr. Allan Ferguson for his work on this investigation and the brief he produced. As well as for the long hours he obviously has spent on this case, even though we and Peter Firestone do not agree with many of his comments or conclusions. Starting from Page 4 of his Investigation Brief, Mr. Ferguson has taken the position of supporting the police over the Defense. This report is not unbiased or fair.
It is noted that throughout the entire brief, Mr. Ferguson used over and over again the questionable unwarned statement of David Muir, which was never signed. This statement was/is not acceptable in a court of law, nor should it be acceptable here. An unsigned, unwarned statement can be produced by anyone, anywhere, at anytime. If anyone doubts the creativeness of the police, you just have to refer to the sworn affidavit of Detective Jackson to obtain the wiretap. The B. C. Appeal Court referred to this affidavit as having, "both overstatements and omissions", page 11 paragraph 23 of the Reasons for Judgement included in our original submissions . If the police wanted any credibility in their investigation, the very least they could have done is taped all the interviews with everyone who was a juvenile, as recommended by the Donald Marshal inquiry.
Some new evidence Mr. Ferguson was able to bring to light was, page 42, paragraph 3 of the Draft Version of his brief, "The videotape made by Cst. Roberts on the morning of October 6, 1990, was not disclosed to the Defense." .
We note Mr. Ferguson made no objection to Ms. Cousins contradictory stories of when the crowbars were purchased from Capital Iron. Therefore he apparently confirms her unreliability.
As pointed out by Mr. Ferguson, three crowbars were tested for a paint match and none matched. The forensic lab Identification Services Section report dated 90-10-17, file # 90-27658 states "the 3.5 cms. wound is not now consistent with the width of an instrument, but is an indication of a "bar" type instrument.". Mr. Ferguson never mentioned the width of the crow bars not matching the wounds, but in fact the paint did not match and the size did not match. This also throws extreme doubt on Amanda Cousins testimony, as crow bars were not used as she states. Please note the B. C. Court of Appeal did not say Amanda Cousins was a credible witness, they simply stated that the jury must have believed her. The question is now, with this new evidence that was not disclosed to the Defense, would the jury still believe her?
On page 17, paragraph 3, "At no time in any of the telephone conversations did Derik Lord agree to change the alibi. In fact, he reiterated the fact that he had been downtown with David Muir."
Mr. Ferguson has taken no issue with the fact that there was overstatement and omission in the affidavit filed in support of the motion for the authorisation for the wiretap.
Mr. Ferguson took no issue with the fact that the judge interfered with the questioning of witnesses. The prejudicial nature of this is covered further in another section of our submission
Mr. Ferguson took no issue with the fact that the judge acted as a prosecutor and questioned witnesses.
Mr. Ferguson took issue with our inclusion of information from SAMMON, but he did not take issue with the forensic lab report dated Feb 21, 1991, in which "scalp hairs removed from Exhibits 60 A and 105 are not consistent with the known scalp hair standards Exhibits 56 A and 74 B." This evidence adds further doubt to Derik's involvement.
Mr. Ferguson took no issue with the similarities between this case and that of Donald Marshall. These similarities in terms of the faults in the case can be summarised as follows:
Mr. Ferguson took no issue with Amanda Cousins varying stories on the purchase of the crowbars, two of which occurred after September 21, 1990, the first time the murders were to have taken place.
We found so many items to argue with that it seemed the only logical way was to take the reader through it on a page by page basis. Some of the problems we found were glaringly obvious, some a little more obscure, but all of them lead us to believe that Mr. Ferguson was attempting to cover up the gross miscarriage of justice which occurred in this case.
This statement is fundamentally dishonest in the context that elephants are similar to cars in that they both weigh two tons, have four parts that touch the ground to propel them forward, and some are painted grey. The paints were similar in that they coated another product. They were not identical, nor were the other two crowbars tested by the forensic lab. Amanda Cousins admitted in Court she lied to police and David Muir never made any statement to police.
His interpretation of trial transcripts is a bit awry. Mrs Lord said, in describing Derik's clothing that he, meaning Derik, was wearing a new T-shirt. She had no idea whether David's shirt was new or not. She was describing Derik Lord's clothing, not David Muir's. Several sentences are between the two statements in the actual transcript. It is important to note that the clothes Derik was described as wearing were light in colour and were not soiled upon his return to our home. There would have been some staining had he actually been involved in such a crime.
Mr. Ferguson confirms the findings of the BC Court of Appeal. You will note that the Court's decision was that under normal circumstances, a new trial would be warranted because of the failure to instruct the jury on the limited nature of the evidence available to them on the issue of the membership in a conspiracy. And yet, the Court did not grant this retrial because they felt that the jury must have believed Amanda Cousins. There is no evidence that the jury believed Amanda Cousins. There is no evidence of how the jury reached its decision. It could very well have been because of the misdirection of the jury. Given the BC Court of Appeal's decision that, in most cases, failure to instruct the jury on the membership in a conspiracy would be sufficient to warrant a new trial, coupled with the fact that evidence was withheld from the Defense and thus full disclosure was not made, if the Appeal Court had the information that Mr. Ferguson has today, the Appeal Court would have found differently in their decision.
See correspondence from Crown to Defense Counsel re: additional disclosure found at Tab 6 of Mr. Ferguson's brief. When reading this, note the rude comment about the kitchen sink.
This item is further enlarged upon in the section which deals with the issues of non disclosure. The inclusion of officers' notes has become standard disclosure procedure in Canada. This has occurred much more frequently since Stinchcombe, but, referring to the case law cited following these submissions, was common practice before that. The precaution of providing officers' notes is not at all extraordinary.
Consider that Mr. Ferguson convince a police officer, Insp. LeRoy, trained in observing detail and being able to recount these details in court under cross examination, a police officer trained to provide expert testimony, to change his conviction that he did indeed video tape the crime scene, and that he forwarded that tape and other material to the Delta Police Department.
Counsel for both appeals, Mr. Donald Martin, requested through Mr. Lord that Mr. Ferguson contact him at his convenience. He indicated that he had some insights he wished to share with Mr. Ferguson. It is noted that Mr. Ferguson did not contact him. As well, Mr. Ferguson did not report any comments or findings from Ms. Susan Beach. Ms. Beach expresses her opinion that as co-counsel for Derik Lord, she felt the wiretap tape and Dawn Lord were very valuable evidence supporting the Defense and this evidence, the wiretap, was never disclosed to the Defense.
Mr. Ferguson made the comment that Mr. Firestone had found no surprises in the evidence presented. Mr. Ferguson noted that the rebuttal witness, Jackie McIntyre was called. This witness was a surprise at trial, as was the other rebuttal witness Mr. Madigan attempted to introduce, Danielle Protti. These witnesses were called at the last moment, their statements provided and their potential use as witnesses made available to Peter Firestone at the Court house immediately before the resumption of the case on the Monday of the final week. Mr. Firestone had no time to digest what these witnesses offered, or what they might say, or what he might be able to counter with on cross examination.
"Departmental counsel explained the role of the Minister of Justice in section 690 reviews. Mr. Ralph Huenemann mentioned, during the phone conversation, that soon after the trial and conviction of her son, Vivian Muir had called him with a specific request from her son. Apparently, David Muir had requested that Ralph Huenemann attend the institution where David Muir was imprisoned so that he could ask for forgiveness. Ralph Huenemann was not prepared to oblige David Muir at this time, and has had no contact with David Muir since."
This is part of the program of the Correctional Service of Canada in that part of your rehabilitation is coming to terms with your crime and getting forgiveness from the individuals involved. David Muir was doing nothing more than was asked of him by the Correctional Service of Canada. This is part of the violent offenders program covered under the Correctional Service of Canada.
Mr. Ferguson goes to great lengths in this section to describe the number of people he spoke to and asked whether Sgt. LeRoy had a video camera at the time and whether he video taped the scene. No one could remember it, but in actual fact, Insp. LeRoy told the department on March 14, 1996, that he had made a video tape of the crime scene as was his usual practice at the time. Insp. LeRoy indicated that his usual practice was to videotape the progress of his examination, not for the purposes of gathering evidence, but to assist himself in preparing his written notes. On March 14, 1996, he also informed departmental counsel that he had provided all materials pertaining to his examination of the crime scene directly to the Delta police. Mr. Ferguson went to great lengths to discredit this portion of the applicant's submission. He informed Insp. LeRoy of the comments of the other officers at the crime scene, and Insp. LeRoy's comments in reply were that it was his assumption that he had videotaped the crime scene, but he had no specific memory of doing so. In his final analysis, Mr. Ferguson said he was able to convince Insp. LeRoy that he did not videotape the crime scene that day. Yet, up until March 14, 1996, Insp. LeRoy was convinced that he had. I wonder how many cases Insp. LeRoy has covered since 1990 and how his recollection is of those. It remains our contention that a videotape was made by Insp. LeRoy, as he confirmed on March 14, 1996, and that since then departmental counsel has attempted to convince everyone that it does not exist. There is additional detail on this issue in the section dealing with no disclosure.
33. Section 3, submissions relating to factual issues known to the Defense at trial.
Part of the purpose of this portion of the Applicant's submission is to show that with the non disclosure of evidence and with the part which had not previously been covered by the courts coupled with what was covered by the courts led to a miscarriage of justice.
The shoe imprint found at the crime scene was described as 11" which we were led to understand is equivalent to a size 10 footprint.
Alan Ferguson goes on to explain that Cst. Roberts compared Derik's shoe to the impression at the crime scene, and found faint, only suggestive similar pattern of the running shoe taken from Derik Lord. This is again an indication of Mr. Ferguson's attempt to persuade the reader that the evidence was conclusive. In actual fact, Constable Roberts concluded from his comparison that the crime scene impression was faint and only suggestive of the pattern of the running shoes seized from Derik Lord. Mr. Ferguson left out : "Any perceived resemblance is subjective and, in my opinion, of negative value." Make no mistake, in Cst. Roberts' opinion, this evidence was in favour of the Defense.
The fact that the footprint was found in a ransacked bedroom was also missed by Mr. Ferguson. The individual who produced that footprint was in a room that was ransacked so therefore we assume that he was the one who ransacked that room. Mr. Ferguson goes on to state: "There is no evidence to even suggest who actually made the imprint in the carpet. Nor is there evidence to prove when the imprint was made." The fact is it was a ransacked room.
34. "Part b) Lack of Forensic evidence linking the appellant to the crime scene" , was again covered in court, but to further the applicant's application, we have included some parts which were questionable at trial. Indeed Mr. Ferguson confirms the fact that no forensic evidence linking Derik Lord or David Muir to the crime scene was known to the court.
35. "Part c) Paint from Victims' wounds did not match the type of paint on the crowbars allegedly used by the applicant."
Mr. Ferguson uses David Muir's unwarned statement over and over again in this brief. David Muir's statement was never made or signed. It was inadmissible in court and is not credible now. If it is to even be seen as minimally credible, there must be an audio or video tape of this confession. To this date all we have are two police officers who are desperate writing out a confession which was rejected completely by David Muir. The officers never had a reason to make the arrest at this time. They were desperate to get something they could hold the boys with. Ever since Donald Marshal's inquiry, the Crown has been told, the police have been told, that they should be audio taping or videotaping all interviews with juveniles. This was not done at Delta. We suggest it was not done on purpose because of the violence that was used in the interrogation of these two young men.
Because Mr. Ferguson seems to think that unless we make immediate objections to his statements that we have accepted them, on page 45, we object to his use of David Muir's unsigned statement. That simply does not exist, it never has existed, It is unsigned not a legal document in any way shape or form.
To summarise Mr. Ferguson's findings on the crowbar issue, all the forensic reports, all the studies, all the examinations of crowbars provided to the police showed that the paint did not match. Mr. Ferguson again refers to David Muir's statement which is invalid, saying that the crowbars were thrown overboard. Yet, on a full ferry, on a long weekend, with the ferry jammed with people, nobody said they saw anybody throw any bag or crowbars overboard. No witnesses were ever produced to substantiate this part of the fairy tale.
Again, that statement of David Muir's is not valid. And also, the fact that he says "may have been crowbars" is not confirmation they were crowbars at all. There is no scientific evidence produced by the crime lab that shows that crowbars were used. The only evidence you have is from Amanda Cousins who was told by the police what they thought the weapon was and she put it in her story.
37. Page 46, "Part d Lack of positive identification evidence."
Mr. Ferguson goes on not to explain the lack of positive evidence , but to continue his tirade against Derik, the applicant. With this statement:
"The departmental investigation has revealed the following: Of the four individuals allegedly involved in either the murders or the alibi cover up, only the applicant has steadfastly maintained that he and David Muir were window shopping in downtown Victoria during the afternoon and evening of October 5, 1990."
This has nothing to do with the positive identification. This just maintains Derik's story, which he has never changed, that everybody else has played with and changed.
38. "The taxi operator, Parmjit Bhinder selected David Muir from a photo gallery as one of two passengers he picked up at the ferry terminal at approximately 4:45 p.m. to 5:00 p.m. on October 5, 1990, and drove to the Tsawwassen Safeway Mall. His testimony at trial coincided with the unwarned statement provided by David Muir." Mr. Bhinder did not provide positive identification. He did not identify David Muir in court, and his statement said "Rings a bell". (transcript page 704) In cross examination, Mr. Firestone had him admit that it could have been September 21, 1990. (Transcript page 707).
"Daniel May successfully selected photographs of Derik Lord and David Muir as similar to the two individuals he witnessed near the LEATHERBARROW residence at approximately 6:30 p.m. on October 5, 1990".
Again, Daniel May's testimony at trial was in harmony with the unwarned statement of David Muir. (David Muir's unwarned statement is not factual or admissible. Daniel May did not positively identify either boy, only their hair cuts. He was not asked to pick them out in court.) Again, this is not new evidence; it has been gone over at trial. It is used at this point because of the non disclosure and the other errors in this trial to further the applicant's allegation that a fair trial did not exist.
39. On page 47, the evidence of Julie McClung is discussed again. He states Julie McClung, a witness who knew the Applicant from before, testified at the Applicant's trial that she saw Derik Lord on the 7:00 p.m. ferry from Tsawwassen to Swartz Bay on October 5, 1990. She recalled that it was the Thanksgiving weekend. Since it was a holiday sailing, the ferry was about 20 minutes late. In her written statement provided to the police on December 6, 1990, she said that she knew Derik Lord from Arbutus and Mount Douglas Schools. She also told the police that her sister had informed her that Dawn Lord had been saying at school that Derik Lord was in Victoria shopping on the evening of October 5, 1990, and he had returned home by 8:30 that evening. Julie McClung said she knew that this was not true because she had seen him on the 7:00 p.m. ferry from Tsawwassen to Victoria. She stated that the ferry was very busy with holiday travellers on the evening that she was the Applicant on the ferry.
Julie McClung had not seen Derik for at least 4 months, as she was a
year ahead of Derik in school and the last possible time could have seen
him was at the end of June, 1990. Julie McClung was in a course with Derik
at Arbutus Junior Secondary which went to grade 10. Mount Douglas went
from 11 and 12. Derik spent his grade 10 at Arbutus while Julie McClung
went to Mount Douglas for grade 11. Derik moved to Mount Douglas for grade
11, which put Julie McClung in grade 12. And therefore she would only have
passed Derik in the hallways. Mount Douglas had a student population of
over 900 students in 1989, 1990. Derik and Julie McClung were not in the
same social circles and therefore the latest possible time Julie McClung
could have seen Derik before October 5, 1990, was in the last part of June,
1990, a full 4 months before her sighting on
the ferry. Note she did not speak to the person she thought was Derik.
Julie McClung's sister confirms Dawn's statements at school about Derik's whereabouts, i. e., they confirm the alibi evidence. The Crown used hearsay evidence of Amanda Cousins to prove their case, the Defense would have been able to confirm Dawn Lord's evidence that Derik was home by 8:30 p.m. Julie McClung gave her story to the police on December 6, 1990. Two full months after she said she saw Derik on the October 5, 1990, ferry. She admitted under cross examination that she was on the ferry on September 21, 1990, the same one Derik said he took.
40. The Delta Sunshine Cab Company indicates that a call came from a person called "Dave" from the Tsawwassen Mall at 6:45 p.m. The Safeway mall is 1.7 km from the residence. If everyone's indication of time stands up, then Danny May was to have seen the boys looking lost near the residence at 6:45 PM. The two boys could not have been in two places at once. Charles Smith said he saw one of the women in the car at 8:00 p.m. He said it was dark out. The Vancouver Sun said that the sun set at 6:43 p.m. It was still light then. The weather was clear and sunny. Daylight would have lasted about another half hour. It was still light when the cab was called to the Tsawwassen mall. If the two men the taxi driver picked up wanted to catch the 7:00 p.m. ferry, I guess they were in a hurry. They had only 15 minutes to make a ferry which should have left at 7:00 p.m. not 7:30 p.m.
What was the point in obtaining a statement from David Muir which was not admissible. Det. Jackson advised Muir that his lawyer had mentioned he may be a witness and we needed to know what evidence he could give before we could discuss anything on what made him a witness. Muir was advised that anything he said was not admissible and he agreed to tell the whole story which he said his lawyer already knew. Why, if the police were going to take this written statement, did they not take it off a tape recorder, and then they could have taken it down verbatim from the tape recording. This comes from page 25 of the report to Crown counsel found at TAB 30 in Mr. Ferguson's brief.
One of the things that Mr. Ferguson does not discuss in this brief at all is any explanation or information that he came up with in regards to the fact that the Crown was going to use David Muir as a Crown witness in return for not raising him to adult court. But we surmise that David Muir never became a Crown witness because the Crown realised that David Muir was not an honest or credible witness. Yet, Mr. Ferguson continues to use his statement to continually add credibility to what was and is not credible.
Mr. Ferguson is well aware, if he read those evaluations of Darren Huenemann, that Mr. Huenemann is not based in reality. That he does not know what is real and what is fantasy. This statement is totally inaccurate.
43. Page 48, "f) no record of phone call from ferry to the Huenemann residence on October 5, 1990."
Mr. Ferguson's attempt to make me look foolish at requesting the information from BCTel on the phones from the ferries is nothing less than contempt. The private investigator contacted BCTel and he was told that the records that he was after for October 5, 1990 had disappeared. Refer to his affidavit, provided in the submissions. Now, Mr. Ferguson tells us that BCTel says there are no records kept on those ferries. And yet, BCTel told the private investigator that there were. This is not my error, it is BCTel's error for telling us that those phones had records. And it is a logical conclusion since all long distance telephones are supposed to have records kept or else there is no indication whether BCTel is charging a fair fee or not, or whether the time is right or not. All this whole thing indicates is that it depends on who you talk to at BCTel as to what information you are going to get.
44. g) Evidence of Charles Arthur Smith.
Mr. Ferguson is incorrect in his evaluation of this part. He states:
" Departmental investigation has revealed the following: On October 6, 1990, the statement of Charles Smith was disclosed to Defense before trial. Mr. Smith testified at the Huenemann trial about what he remembered of the events of October 5, 1990. Mr. Smith's evidence at Darren Huenemann's trial was to the effect that he thought he saw Sharon Huenemann getting out of Doris Leatherbarrow's cadillac at about 8:00 p.m. on the night of the murders. The cadillac was located in the carport of the Leatherbarrow residence at the time he observed the event."
The impression Mr. Ferguson would appear to be giving on this is that the cadillac would have brought the women home. In actual fact, the cadillac was not licensed and getting out was not correct, she was backing out. This follows up on his original statement in that he saw somebody looking through the glove box who he thought was Sharon Huenemann about 8:00 p.m. on the night of the murders.
On page 24, of Darren Huenemann's transcript, Mr. Smith testifies:
" Well, essentially I went to our kitchen window and I saw a light on in the car which was in the driveway of Doris' home and I assumed it was her cadillac. And I thought it was unusual because her cadillac, up to that point, had not been insured. So I thought why was she in her car when it does not have insurance. Then I saw someone backing out of the passenger side and it didn't look like Doris because she was a little bit slimmer than Doris. Doris was fairly hefty. And the door closed and I closed my blinds. And that was all that I saw."
This was under oath. The original statement of Charles Smith which the Defense got indicates that about 8:00 or 8:30, he was standing in the kitchen window and he noticed the light come on in the caddie. So it was definitely dark so he could notice the light coming on in the caddie.
Police report by officer Ingenthron, Delta police, dated 90-10-07, written here at 10-06, at 9:45 in the morning :
"writer attended at 4890 8A Ave., which is the house that is directly north of the victims' residence. The residence fronts onto 8A Avenue with the rear of the house facing the north side of the victim's residence. The residence affords a view of the victim's car port and vehicles that are parked in the driveway of the victim's residence. Upon attending 4890 8A Avenue, the writer spoke to Charles Smith in regards to hearing or seeing anything suspicious at the victim's residence. From Smith it was learned that he returned from Tokyo at 07:20 hours and upon arriving home and greeting his children he went to bed and got up around noon. He thought he saw the victim's van in the driveway sometime during the afternoon, but could not be sure. He further stated that at about 20:00 to 20:30 hours he looked out the kitchen window and noted the inside dome light was on in the victim's cadillac. He was able to see a female person in the vehicle and he thought it was the victim's daughter as the woman was wearing glasses and apparently the victim's daughter also wears glasses. The light went out in the vehicle and he noted no further activity. He was able to provide the time frame in that he and his wife put the children to bed at this time and that is what they were doing when he noted the light. Other than the aforementioned described incident, Smith could offer no further info other than it was an unusually quiet Friday night. "
There was a notation on the bottom of these hand-written notes which asked: "what was female wearing?" There is no notation as to whether an answer to this question was ever obtained. It could have been helpful in determining who was seen in the car that night.
A further interview with Charles Smith dated 90-10-09, typed, and no indication as to who did the report, confirms that it was dark outside. And it was definitely after 7:30 p.m.
" Interview of Mr. Charles Smith. Interviewed originally by Det. Ingenthron, Smith indicated that he had provided information to Detective Ingenthron that he was standing at his kitchen window briefly and upon looking out of the window, he noted that the interior light was on in the cadillac parked at LEATHERBARROW's residence. He also indicated that he thought a female was inside of the vehicle. Smith re-evaluated his observations and indicated that the person may not have been female; it was thought to be only because he had seen Sharon and Doris when they left for work on Friday morning. Sharon was wearing glasses at that time and therefore when he saw this individual, inside of the cadillac, he saw only the back of the person and not the front or a profile and that the individual was backing out of the passenger side of the car, and then the door was shut. It was dark outside and at the same time, he had closed the venetian blinds. When I re-examined what Smith saw, there was an area of about 12 " to observe and all of the space would be through a 1" slot of the venetian blind. Therefore when Smith feels that what he saw was in fact Sharon, he feels this observation was based only on the fact that he had seen her earlier on in the day and he knew it wasn't Doris because she was fairly large across the shoulder area, and the person in the cadillac was smaller in size. As far as the time, it was dark outside and that complete darkness doesn't usually come until 7:30 p.m. on. So it would have to be after that time. He did feel however that it was close to 8:00 p.m. around the same time they put the kids to bed."
This follow up report is dated the 9th. There is no time marked nor any indication as to who did the follow up interview. According to the letter from Peter Firestone, dated May 7, 1992 Mr. Firestone notes, upon seeing this report in the file at the police station in Saanich just before trial, that the police were attempting to persuade Mr. Smith to change his story. Mr. Ferguson continues to have Mr. Smith change his story.
Again, as an indication of Mr. Ferguson's bias, on page 50, he states that Mr. Smith explained that he arrived home from Tokyo at 10:00 am. If Mr. Ferguson had checked the statements made by Mr. Smith, he would find out that Mr. Smith said, just shortly after the incident, that he arrived home at 7:30, not 10:00, and that he slept until approximately noon. If Mr. Ferguson had checked further police reports and interviews with Mr. Smith, he would have found out that as for the time, it was dark outside, says the police report, and that complete darkness does not usually come until 7:30 p.m. . In actual fact, the Vancouver Sun reported that the sun set at 6:43 p.m. The officer making that report is correct, it was not dark until after 7:30 p.m. on October 5, 1990. Mr. Ferguson continues, in his report on page 50, that Mr. Smith now says that he never slept during the day even though he suffered from jet lag, but his statement from a day after the murders says that he went to bed and went to sleep. He also testified at trial that he had gone to bed for a couple of hours in the morning. Where is Mr. Ferguson's objectivity in this case? It obviously does not exist. It is interesting that Mr. Ferguson would put such emphasis on the memory of a man six years after the event and put so little on statements on a time much closer to the incident. Mr. Smith's story is very similar to Amanda Cousins in that Mr. Smith is a grown man, he has been intimidated by Mr. Ferguson and the police to change his story completely from when it was an unsolicited, unencumbered statement made the day after the murders took place. Mr. Smith's intimidation further shows in that he says now in Mr. Ferguson's page 50 that he is more certain that the time was 5:45 to 6:00 p.m. when he noticed the automobile in the LEATHERBARROW carport and took the action that he did to close the window blinds. Mr. Smith said it was dark outside, but at 5:45 or 6:00 p.m. it was definitely not dark outside. The sun was in full view.
Mr. Ferguson goes on to use another witness which we were not able to cross examine at trial, Hillary Meredith Smith, who Mr. Ferguson quotes to further back up Mr. Smith's testimony.
On page 51, Mr. Ferguson comes across again another indication as to why we were not particularly pleased with the Defense counsel in that he did not call Mr. Smith to testify thus establishing that one of the women was alive after 8 o'clock at night.
Summarising the evidence of Mr. Charles Smith; the Vancouver Sun states the sun did not set until 6:45, Mr. Smith states in a statement the next day after the murders that he saw one of the women alive at 8:00 p.m., Mr. Smith also states that it was dark outside, confirming the time. Mr. Ferguson's continuing conversations with Mr. Smith were not subject to cross examination and therefore are totally unusable.
If the B. C. Ferries is to be believed than how can Amanda Cousins be even close to correct at 9:30 at night since there is no possible way to make it from a walk on from a ferry that arrives at 9:01, walk off the ferry, and arrive at our residence in a half an hour. The drive alone usually takes the half hour, especially when ferry traffic is heavy. To walk off the ferry and out to the parking lot to meet someone usually takes about 10 minutes, with nearly five minutes for the draw bridge joining the ferry to the walkway to be deployed. This is further indication that Amanda Cousins continued to lie with the support of the police throughout this entire thing. Again, on September 21, 1990, the boys arrived home at 9:30 p.m. after riding the 7:00 p.m. ferry from Tsawwassen as walk on passengers, and this ferry was close to on time.
46. Page 56, "Miscellaneous submissions concerning the facts and process of this case."
This is a continuation of what was provided in court, what was decided in court, but if the new evidence and the hidden evidence from the Crown is to be used, it has to be used in conjunction with all the rest of the case, and not in isolation.
47. Page 56, "The Applicant was tried before a jury. He was afforded that right under Canadian law. The jury, after being instructed to weigh all the evidence for and against the accused found him guilty beyond a reasonable doubt of the murders as charged"
This statement confirms that Mr. Ferguson, as well as the Court of Appeal put themselves in the position of the jury indicating how the jury thought, which none of them can do.
48. Page 56, " The Applicant appealed to the British Columbia Court of Appeal. Again, he was afforded this extra measure of protection against wrongful conviction under Canadian law. A panel of three Superior Court Justices found that in the circumstances, the Applicant's appeal must fail"
Mr. Ferguson has already forgotten what he wrote on page 23,
"The court unanimously dismissed the first grounds on the basis that although such a misdirection of the jury would ordinarily merit a new trial, it was of the opinion that no substantial wrong or miscarriage of justice had occurred as a result of the error of misdirection."
Under normal circumstances Derik would have received a new trial from the B.C.C.A. Now, Derik is entitled to a new trial because of the fact that not only should he have received a new trial from the Appeal Court, but now new evidence has been disclosed that has been found to have been withheld.
49. Page 56 " The Applicant then appealed to the supreme Court of Canada, a third level of precaution against wrongful conviction. The Supreme Court of Canada confirmed the decision of the Appeal Court of British Columbia and rejected the Appeal."
Again, Mr. Ferguson has not indicated the truth in that the Supreme Court did not know that the Crown had withheld evidence from the Defense. Evidence that I again remind Mr. Ferguson and the reader that was found by Mr. Ferguson during his investigation. Evidence that we had applied to get from the Court and we were denied. We applied for information from Justice Southam October 12, 1995.
50. Page 57, The B.C.C.A. ignored violations of the law, and B.C.C.A. erred in its ruling on reasonable doubt. The reasons these were put in was to further the application. It could not be furthered in isolation. The whole trial had many errors in it, and coupled all together with the non disclosure, made for a retrial.
This is a personal opinion of Mr. Justice Wood. In actual fact, he does not know whether or not one of the jurors was unable to explain his reason and how the jurors thought of this explanation of reasonable doubt. The flaw in J. Wood's reasoning is that it presupposes that the jury did not use Huenemann's hearsay statement about the Applicant's role to buttress the conclusion that he was a probable member of the common plan. Once you acknowledge this, then the fact that the jury believed Amanda Cousins is beside the point. The prejudice occurs in that the jury may have reached that conclusion by way of a prohibited path of reasoning. Such an articulation of what is reasonable doubt, i. e., that which requires the juror to give an explanation if asked, is far more stringent than that required by law. Cases which back up this argument include: R. v. Palfenier (1976), 33 C.C.C. (2d) 28 at 34 - 35 ( B.C.C.A.) , R. v. Stafford (1968), 53 Cr. App. R. 1 at 2, and R. v. Fiqueira (1981) , 63 C.C.C. (2d) 409 at 410 - 441 (Ont. C.A.)
52. Page 58, "The trial judge interfered with the questioning of witnesses."
On Page 59, Mr. Ferguson states,
"No issue was taken at trial or on appeal with the manner with which the trial judge asked questions of the witness who testified."
No issue was taken at trial or appeal, that's correct, but that doesn't mean that the judge did not indicate favour to the prosecution as he did constantly throughout the trial, and which affected the jury and the outcome of the trial. The judge is to be seen as and in effect to be a neutral party, not one who questions witnesses and answers for witnesses. Mr. Ferguson has again missed the fact that appeals are limited in size and therefore argument.
53. Page 58, "The trial judge was sarcastic and mocking of Defense counsel."
Page 60, " The jury was not present to hear any of the above noted passages from the trial transcripts. … No issue was taken at trial or on appeal in the manner in which the trial judge made comments to counsel."
Mr. Ferguson did not investigate any further than the comments I gave him. There are over 1000 pages of transcript and within the first 29 pages of transcript, there are 4 separate sarcastic, humiliating, or mocking remarks to Defense counsel. Even though the jury was not present for these remarks, they were present for many others. With a transcript of over 1000 pages, and with 4 sarcastic remarks within the first 29 pages, it averages out that there were more than 156 sarcastic mocking remarks made by this judge to the Defense.
54. Page 60, "The Trial judge unfairly questions witnesses."
On page 61, Mr. Ferguson again
"No issue was taken at trial or on appeal with the manner in which the trial judge asked questions of the witnesses who testified. … The Applicant has not provided an argument as to how these questions asked by the judge were unfair."
To start with, again, the judge does not appear to be a neutral person. If he is doing the prosecutor's job, he is part of the prosecution. In all cases, he assisted the prosecution, he did not assist the Defense. We have added submissions to this ground in another section of this response.
55. Page 61, the Defense was not made aware of physical evidence, the crowbars tested by the police.
"The forensic tests conducted with respect to crowbars occurred at a time when the police were attempting to establish the type of weapon used during the crime. The conclusion derived from these tests was that the blunt force injuries to the heads of the victims may have been caused by some kind of metal tool, like a crowbar. … Such an alleged weapon that actually caused the blunt force injuries was ever recovered. No forensic tests in this regard was conducted. … The subsequent revelation by David Muir, Amanda Cousins, and Darren Huenemann, suggested that the initial conclusions submitted on October 26, 1990, by forensic chemist, Brian Callowhill was accurate."
The fact remains that the paints do not match any of the crowbars that were tested. And we submit that crowbars were not used and it was never confirmed.
Despite Mr. Ferguson's assumption that David Muir, Darren Huenemann and Amanda Cousins had confessed to this fact that crowbars were used, the fact is, Brian Callowhill, the forensic chemist confirmed that none of the crowbars purchased had the type of paint that was found in the skulls. The facts contradict the stories coming from the individuals.
56. Page 63, the hair samples tested by police
"A review of Defense files has revealed that a list of exhibits from the crime scene and all forensic reports involving the murders of Sharon Huenemann and Doris Leatherbarrow were provided to the Defense in the usual course of disclosure."
This is definitely not true, as we have asked for a complete list of all exhibits and still to this date have not obtained a complete list of all exhibits. Refer to Mr. Ferguson's TAB 14, page 8 of the Report to Crown was left out of the Defense materials. Mr. Ferguson added it himself. Also, note at TAB 48 of Mr. Ferguson's brief, the Court Exhibit Report, 10 pages in length, has been submitted by Mr. Ferguson. This report was not among the Defense disclosure materials found at TAB 49 of his brief. It is noted that the above mentioned exhibit list is not found anywhere in the Defense materials. We do not agree with the statement that it was disclosed to the Defense. Refer to the tape log of November 23, 1990. Here we see two references of phone calls, only one of which has recently been unearthed by Mr. Ferguson. This had not been disclosed to the Defense either.
This report we got violates the privacy act and indicates that the police got the files mixed up. How else could we have got this report. What other information did we not receive that was put in someone else's file? I wish to confirm at this point on page 64, that Mr. Ferguson is finally right. The applicant's trial counsel had full opportunity to pursue any question as to where the exhibits came from and the forensic testing that occurred in this case. The jury was provided with written admissions to the fact that there was no physical evidence linking the applicant to the crime scene. We completely concur that there is no physical evidence linking the applicant to the scene.
If it were, Mr. Ferguson would have been able to find and provide at tab the Defense counsel's copies. The disclosure of exhibits was so bad that the Defense received forensic reports from the other murders. Mr. Ferguson noted that the forensic report regarding Derik's runners was not included in the Defense disclosure files. Still not disclosed is whether or not similar tests were done on David Muir's shoes. We suspect these tests were done, but were also negative, so not disclosed as they did not further the Crown's case. Such disclosure would have been helpful to the Defense.
Mr Ferguson's comments reveal that he could not find out what the equipment was or what it was used for. If the Defense had known what equipment was brought in and what it was used for, we would have been aware long ago that Cst. Roberts had video-taped the crime scene. Mr. Ferguson himself found and revealed a video tape he said Cst. Roberts made and did not disclose to the Defense. What was the other equipment and what was it used for? The video tape by Cst. Roberts reveals that when he took the tape, there were no other police officers in sight. This same scenario I am sure would cover Sgt. LeRoy, as he would not be interested in video taping other police officers.
60. "I) The police did not electronically record important statements made by Amanda Cousins and David Muir." Page 71.
Ever since the Donald Marshall inquiry police forces across this country have been encouraged to video or audio tape interviews not put their views of what was said in writing. These tapes are then used by the prosecution or Defense to realistically evaluate what was actually said. Mr. Ferguson has a very different interpretation than what Peter Firestone has of the conversation which they had. Mr. Ferguson's interpretation of what Dawn said under oath is not substantiated by the transcript which was recorded in writing and on audio tape at the time. Therefore, an electronic recording of the conversation would have been helpful.
61. "Evidence provided to Darren Huenemann's lawyer was not disclosed to the Applicant." (Page 72) "The Applicant has provided no factual information to support the allegation that relevant information, which was disclosed to Darren Huenemann's lawyer, was withheld from the Applicant or his trial Defense counsel."
Factual evidence to back up this contention is found in the materials provided to Mr. Ferguson through obtaining the disclosure materials from the Defense. A copy of the letter from McDonagh, Considine & Co. dated 18/7/91 has been in Mr. Ferguson's possession long enough for him to have found and read it.
62. "K) The prosecution of the case was based on lies, deceit, and intimidation of the witnesses on the part of both the prosecutors and the police." Page 72
Mr. Ferguson noted that Mr. Smith was willing to change his story. Police have tried also to get him to do that. Amanda Cousins was treated to some pretty profound badgering in order to get her statement finally the way they wanted it to be on the 28th of November. She had been hounded by repeated visits and questioning until she finally gave in. Dave Muir's supposed confession is also the result of badgering and persistent hounding. Even though the police deny it, they have hounded witnesses into changing their stories. Brian Callowhill is not immune. He maintains that it must have been a crowbar even though he couldn't find one in which the paint matched. Dr. Ruth Sellers changed the estimation of time of death until the range was wide enough to permit the story to emerge the way the police wanted it to.
64. M) "The police told Amanda Cousins about the crime scene and their theories." (page 76). This is evidenced in the testimony in which she states that they did tell her some things. She said they did not tell her all the details, but she does admit that they told her some facts. We submit that what they did not tell her, they told her mother. Sara Cousins had many conversations with Det. Jackson.
65. N) "There were problems with the pathologist's estimation concerning the time of Death." The wide range of the time of death is so wide as to appear staged. We submit that the wide range is to avoid ruling out any potential suspects in a case fraught with difficulty.
Going through the important issues one by one will give the reader a clearer idea of the gross miscarriage of justice which has occurred here. This case has been fraught with problems involving disclosure right from the beginning.
Mr. Peter Firestone wrote many letters requesting further disclosure, additional disclosure, complete disclosure, etc. At TAB #4 in our supplementary materials, are copies of some of the many letters he wrote.
In one letter, dated 7th January, 1991, to Regional Crown Counsel, he writes:
"Both Mr. Macaulay and myself have requested in writing on a number of separate occasions further and better particulars. There is a raising hearing scheduled for February of this year and it is imperative that I be provided full disclosure in advance of the raising hearing. Would you please provide me full disclosure at this stage."
This letter demonstrates succinctly the difficulties in obtaining disclosure at the beginning of the process. Mr. Firestone first asked for a copy of the entire wiretap log in a letter dated 17th January, 1991, noting in his letter that only partial logs were provided. He wrote again to repeat his request for full particulars on the 11th of February, 1991, and at the same time, he asked for:
"copies of all the police notes of any police officer during this investigation who may have had contact with Darren Huenemann, David Muir, Derik Lord, and Amanda Cousins."
And, in the same letter,
"I wrote to you in my letter of the 17th of January 1991 requesting further particulars. I attach for your benefit a copy of my letter of the 17th of January 1991 and I ask you to respond to it."
This request was repeated again in a letter dated 13th June, 1991, indicating he still had not received disclosure of these notes a full six months following his request. The letter to Mr. Firestone which Mr. Ferguson includes in his materials, dated February 7, 1992, (a full year after the request) indicates that finally copies of the notes of some police officers involved were provided.
At this time, again only a partial wiretap tape log was disclosed. Only the log relating to Derik's phone was disclosed. However, more than his line was tapped. On February 18, 1992, Mr Firestone wrote again to obtain a complete log of the wiretap.
In a letter dated 30th May, 1991, Mr Firestone says:
"Please be advised that I have requested on numerous occasions for copies of all forensic reports in this case. I have also requested on numerous occasions the return of my client's clothes which were seized by the police. The delay in responding to these requests is extraordinary and remains unexplained. If for any reason I do not have the clothes returned and the reports that I have requested by the 12th of June, 1991, it will be my intention to bring an application to stay the charges on the basis of the recent decision of Mr. Justice Stewart in Denbeigh."
He further issued a request for the wiretap affidavit. Following that threat, the Crown finally wrote to say that disclosure of these materials would be forthcoming. Mr. Firestone's letter dated 14th June, 1991, indicates that he had heard from Crown to the effect that the materials requested were coming, not that he had received them.
It is interesting to note that not all disclosure materials received by Mr. Firestone were disclosed by the Crown as the law says must occur. In a letter to Derik dated 15th January, 1991, Mr. Firestone indicates that he received a copy of the unwarned statement of David Muir from Mr. Considine, the lawyer representing Mr. Huenemann in this matter. This should have come from Crown counsel much sooner than it did since the police had it from November 1990.
In another letter to Crown counsel dated 1st May 1991, we see another aspect of disclosure. In paragraph 3, page 2, Mr. Firestone notes:
"3. The Crown in this case is guilty of failure to make timely disclosure to the defence. When I appeared at the bail hearing with my client in front of Mr. Justice Cohen, the Crown provided to me the following materials for the first time:
As you are probably aware, Mr. Justice Stewart in a recent case quashed a serious drug indictment for the failure of the Crown to make timely disclosure. It will be my intention to seek to quash this direct indictment due to the Crown's failure to provide timely disclosure."
This letter can be found at TAB 5 of the materials provided with this response.
On the 14th of April, 1992, Mr. Firestone again requests full and complete disclosure. He notes that with a pre-trial conference slated for April 23, 1992, he did not have materials relating to two witnesses on the Crown's list, as well as requesting the material upon which the Direct Indictment was made. The most glaring lack of complete disclosure comes upon his viewing of the Delta Police file, in Saanich, on April 10,, 1992. He writes: "The Crown provided us, through the Saanich Police, the entire Delta Police file. At least, that is what it was represented to be. After reviewing the file, I was not satisfied that I saw everything."
As Mr. Ferguson pointed out, the investigation showed that he was right in that supposition: he had not seen everything.
On page 36 of the Draft brief, Mr. Ferguson points out:
"Mr. Firestone was of the general opinion that the Applicant had received a fair trial although there were certain issues worthy of appeal. He was of the belief that the Defense had received after some initial difficulties and repeated requests, complete disclosure of the Crown's case. He stated that there were no surprises in the evidence presented at trial. He indicated that there were a number of legal arguments that could have been decided either way (i.e., the wiretap evidence), but overall, the Crown had a strong case against his client."
This is patently untrue. Based on facts, ( Mr. Firestone asked for a mistrial when Darren Huenemann was placed on the stand and the rebuttal witness Ms. Jackie MacIntyre was not on the Crown's witness list, just to name two ) we checked with Mr. Firestone. We asked him if that was indeed the gist of what he and Mr. Ferguson talked about. His response is attached to this submission as TAB # 6 .
The gist of what he replied is:
"I find this process with the Federal Government to be very unseemly. … During that meeting with Mr. Ferguson, he took no actual notes of our meeting nor was our interview tape-recorded by me."
The meeting referred to took two hours approximately.
" I never told Mr. Ferguson that in my opinion Derik Lord had received a fair trial. … I certainly indicated that I thought that Mr. Justice Fisher had acted unfairly during that trial."
Basically this letter indicates that Mr. Ferguson should have taken notes. It is obvious that he misconstrued the conversation and we submit he misconstrued or had his memory fail him when he spoke to Mr. and Mrs. Smith, Inspector LeRoy, Constable Roberts, and Detective Jackson to name a few others. His credibility is now in question regarding his recollections of other conversations.
From the first book of supplementary materials provided by Mr. Ferguson in his brief, we find at TAB 6 "Correspondence from Crown to Defense regarding Disclosure"
Cst. Black (common log book with Roberts)
along with a tape log of the wiretap on Derik Lord's phone.
Please note the tape log is only of the wiretap on Derik Lord's phone. This is not a complete tape log which is required to satisfy complete disclosure by the Crown.
Mr. Ferguson mentions on page 10 of his brief, that:
"On November 23, 1990, Amanda Cousins telephoned Darren Huenemann. When she was asked why she phoned Darren Huenemann if she was afraid of him, she replied that she was afraid of being arrested but she was still afraid of Darren Huenemann."
One has to ask why this call was not used. It would have been far more damaging than the ones used if one is to believe the testimony of Amanda Cousins. Since we don't have the complete tape log, I suspect that this call was not used because the call was not made. The tape logs for the calls used in Court indicate that at the time she phoned Darren Huenemann, there were several calls made by Darren to others. Yet, this call to Darren does not show up. Neither does the call from Amanda Cousins to Darren Huenemann made at 4:28 p.m. on the 17th of November. If the tape logs began on November 15th as had been stipulated by the Crown, then where is this call? If these calls were as damaging as the Crown says, then where are they? It is our submission that these calls were never made. Thus Amanda Cousins testimony is perjured.
We have requested a complete tape log, but as of this date, have not yet received one.
Regarding the undisclosed videotape, we read on page 42, paragraph 3
"The videotape made by Cst. Roberts on the morning of October 6, 1990, was not disclosed to the Defense. Cst. Roberts agreed to provide Departmental counsel with a copy of that videotape for the purposes of the investigation. He said that it was not disclosed to the Defense because it was never considered as evidence. The purpose of the videotaping was for the preparation of his report only. It was always his intention to use still photographs of the crime scene as supplementary evidence to his testimony at trial. He said that such a videotape would have only revealed information of poorer quality which would have been redundant to the evidence presented at trial."
This submission indicates that evidence was knowingly and deliberately withheld. The video tape constituted police notes as Cst Roberts stated it was preparation of his report and was substituted for hand written notes, which are required to be disclosed.
Page 42, paragraph 5
"Departmental counsel also requested the photographs of the crime scene that were taken by Sgt. Herb LeRoy. On October 6, 1990. These photographs were not utilised at trial nor ever provided to the Defense."
Page 43, paragraph 2
"Departmental investigation has revealed that the videotape produced by Cst. Roberts and the photographs taken by Sgt. LeRoy were not provided to the Defense. The fact Sgt. LeRoy took photographs at the crime scene was disclosed to the Defense."
These two excerpts indicate that Mr. Ferguson did indeed find non disclosure.
Everyone is equal under the law. Yet we were denied, by the Courts, access to information because we did not possess a law degree, e.g., Darren Huenemann's psychiatric reports could not be given to us although they were sent directly to the office of the Minister of Justice. Madame Justice Southam refused to allow us full disclosure of the materials held at the Delta Police station. We now know, because of Mr. Ferguson's investigation, the Defense was deliberately denied full disclosure by the Delta Police. We have been denied by Justice Lander, June 13, 1995, a remedy under section 24 of the Canadian Charter of Rights and Freedoms because he stated he was not a court of competent jurisdiction and did not know of one. Interestingly, Justice Lander authorised the issuing of warrants for Derik Lord and David Muir yet he did not excuse himself from hearing our application for remedy under section 24 of the Canadian Charter of Rights. (see the letter from Crown counsel to Mr. Firestone dated May 1, 1991, at TAB 8). We prepared this 690 application without the benefit of full disclosure and with much of the material denied to us. However, our evaluation of Darren Huenemann was accurate and has brought Amanda Cousins' testimony into further disrepute by the fact she was quoting from a person living outside reality, if indeed the quotes are from her memory or part of the story she concocted.
Mr. Ferguson goes to great lengths in the section relating to our submission that evidence gathered at the crime scene by members of the RCMP, in particular, Sgt. LeRoy, was not disclosed. He describes the number of people he spoke to and asked whether Sgt. LeRoy had a video camera at the time and whether he video taped the scene. To quote from the draft brief, "none of these officers could remember". But in actual fact, Insp. LeRoy told the department on March 14, 1996,:
"that he had made a video tape of the crime scene as was his usual practice at the time. Insp. LeRoy indicated that his usual practice was to videotape the progress of his examination, not for the purposes of gathering evidence, but to assist himself in preparing his written reports. On March 14, 1996, he also informed Departmental counsel that he had provided all materials pertaining to his examination of the crime scene directly to the Delta police".
Mr. Ferguson attempted to discredit this portion of the Applicant's submission. He informed Insp. LeRoy of the comments of the other officers at the crime scene, and Insp. LeRoy's comments in reply were that it was his assumption that he had videotaped the crime scene, but he had no specific memory of doing so. In his final analysis, Mr. Ferguson believes he was able to convince Insp. LeRoy that he did not videotape the crime scene that day. Yet, up until March 14, 1996, Insp. LeRoy was convinced that he had. It remains our contention that a videotape was made by Insp. LeRoy, as he confirmed before March 14, 1996, and that since then departmental counsel has attempted to convinced everyone that it does not exist. Considering the Defense received disclosure from another Delta police case it seems plausible that information like a video tape from this case ended up in another Delta police file. One has to wonder why Mr. Ferguson didn't admit he couldn't find the video tape taken by Sgt. LeRoy instead of concocting the silly story he put in the brief. What were the police officers that say LeRoy didn't produce a video doing? Standing around watching others work? One can not believe that.
"Departmental counsel also requested the photographs of the crime scene that were taken by Sgt. LeRoy on October 6, 1990. These photographs were not utilised at trial nor were they ever provided to the Defense."
This is another indication of evidence that was withheld from the Defense. Mr. Ferguson attempts in this section to confound the reader by adding a silly little section in stating that there is no sound on the tape and that the time on the electronic camera had jammed. Completely unrelated information that had no relevance in this section and yet was used just to confuse the issue.
"In summary, the fact that Sgt. LeRoy was present at the crime scene and that he conducted an examination was known to the Defense through the disclosure of Sgt. LeRoy's written report, the case summary prepared by Det. Bill Jackson, and Cst. Roberts written report. Sgt. LeRoy was acting in the assistance capacity to the Delta Police at the time. Cst. Roberts, who was the lead Identification specialist on the case testified at the trial and in fact answered questions on cross examination about Sgt. LeRoy's function at the crime scene."
We find on page 71, Mr Ferguson states:
"-Departmental investigation has revealed that officers' notes of Cst. Black and Cst. Roberts were disclosed to the Defense. Additionally, the full report of Cst. Roberts, the lead 'identification' investigator, was provided to the Defense. Further, Cst. Roberts' testimony at trial covered the investigative activities of the police at the crime scene during the time in question."
There has not been included an explanation about the notes for example, what is the sketch in the notes for. There is no mention of the foot print in the master bedroom, unless the diagram in the notes relates to the footprint. If this is so, then the footprint measured 11 ½ inches in length, making it longer than Derik's shoes.
In his explanation (from page 42 of his brief) of my submission into the equipment that was used Mr. Ferguson is correct. The Defense did receive some of the officers' notes. The notes were obviously not complete, as there is no mention of Cst. Roberts taking a video tape but mention was made of still photos. The Defense obviously did not receive a full report from Cst. Roberts as Mr. Ferguson discovered Cst. Roberts took a video tape that was not disclosed. If Defense had received full disclosure relating to the equipment used, we would not have had to wait for Mr. Ferguson's investigation to find out that a videotape had been made. We still do not know what other equipment was used. Referred to in Section 11 in the materials provided in the initial application against the conviction of Derik Lord. Obviously, Cst. Roberts testimony at trial was not complete either, since no mention was made of his video tape.
Mr. Ferguson's investigation was obviously more complete than the police would wish in that he discovered the Crown did not provide full disclosure. What other equipment and its purpose were the police successful in hiding from the Defense and Mr. Ferguson? Cst. Roberts explanation, on page 42, paragraph 3 "He said that it was not disclosed to the Defense because it was never considered as evidence." leads one to the next obvious question; What else did the police not consider evidence? Information or witnesses that didn't further the police view of the crime and suspects could fall into this same category.
On page 43, Mr. Ferguson stated:
"Departmental investigation has revealed that the videotape produced by Cst. Roberts and the photographs taken by Sgt. LeRoy were not provided to the Defense. The fact that Sgt. LeRoy took these photographs at the crime scene was disclosed to the Defense."
The fact is, the photographs were never disclosed to the Defense.
In summary, there was substantial non disclosure. There were police notes not disclosed. There was a video tape not disclosed. There were wiretapped phone calls and logs not disclosed. There were photographs not disclosed. These non disclosed items are evidence according to section 118 of the Criminal Code of Canada, thus the Crown is guilty of non disclosure of evidence, contrary to the law of full disclosure section 603 of the Criminal Code of Canada, section 650 (3) of the Criminal Code of Canada, section 7 of the Canadian Charter of Rights and Freedoms, section 11 (d) of the Canadian Charter of Rights and Freedoms. This is made clear again in the relevant case law such as Stinchcombe, Boucher, Arviv, and many others. (See a more complete listing at the end of our submissions)
Mr. Ferguson recounts the testimony of Amanda Cousins. He conveniently neglects the contradictions and the fact her story changes with each telling. He completely disregards the fact that Darren Huenemann was living in a fantasy world and most of what he told Miss Cousins was make believe. Mr. Ferguson completely ignores Dr. O'Shaughnessy's evaluation. (Tab 8, page 7, report dated November 8, 1993)
"It is my opinion that Darren Huenemann suffers from a severe form of narcissistic personality disorder in which, at various times, his capacity to differentiate reality from his own fantasy world is impaired."
Darren Huenemann and Amanda Cousins were in a play at school called "Caligula" in which a murderous ruler did gross acts of violence. Since Mr. Huenemann did not know fantasy from reality and since he and Miss Cousins had this violent play in common, it seems no one can put complete reliance on every word that Miss Cousins remembers. Mr. Ferguson forgave errors in dates, places, and time told to the various law enforcement agencies, but this same forgiveness did not apply to Dawn Lord's evidence even though her memory was from six years previously. How can any reliance be placed on what Miss Cousins said if it is told to her by a person who is not functioning in the real world?
Mr. Ferguson completely ignores the fact that Miss Cousins told of three completely different times that the boys were to have obtained the crowbars from Capital Iron. Twice after September 21, when the boys were to have first murdered the ladies. Referring to page 76, 77, and 78, of his brief:
"m) The police told Amanda Cousins about the crime scene and their theories."
Mr. Ferguson states:
"-Missing from the end of the above quoted passage taken from the preliminary hearing of Darren Huenemann was the following question and answer:
Q: They, being the police. Did they give the details of the crime?
Miss Cousins said earlier in the same cross-examination:
Mr. Considine: During that twenty minutes, they told you various things, didn't they?
Amanda Cousins: Yes.
Q: And they told you what they believed had taken place, didn't they?
A: A little bit, yes."
This is further evidence of Mr. Ferguson's bias as he searched out a comment that did not support my allegation that the police fed Miss Cousins all the information. But it furthers my argument as to when is Miss Cousins telling the truth. She contradicted herself in less than a minute in the same cross examination.
Mr. Ferguson further states on page 4 of his brief that Amanda Cousins provided evidence from the planning stage through the execution of the plan to the devised alibi. Mr. Ferguson, knowing full well the psychological condition of Mr. Huenemann, says that Amanda Cousins was aware of the planning stage; how much of this was fantasy or derived from the school play, and how much of it was real? We suggest that most of it was fantasy because of the combination of the play and Mr. Huenemann's mental state. Mr. Ferguson found it convenient to forget about the testimony of Amanda Cousins that despite the fact of knowing all this information, she continued to date Mr. Huenemann and continued to have him as a friend. Mr. Ferguson states on page 6 that:
"Miss Cousins testified that she did not tell anyone about her conversations with Mr. Huenemann because he threatened to kill whomever she would have told. He often threatened to say he would stuff her, in the crawl space of the house that he was going to purchase. He also threatened that he would have her 'stuffed and mounted'. She testified that she believed the threats to be serious"
Since Ms. Cousins says she was threatened by Mr. Huenemann regularly, then why were none of these threats found on the wiretaps and why did she continue to date him?
As further evidence that the police fed Miss Cousins this information, all these kids grew up in a metric time. They grew up with metric from elementary school right through and yet Amanda Cousins said that David Muir told her that he put a one inch hole in Granny's head. Then she went out. This came form the police. How do we know this came from the police? In the month of November, 1990, two police officers attended at our house and gave us every single detail of the crime, including the fact that an 11 inch footprint was found, crowbars were used and a one inch hole was put in an individual's head.
A big deal was made in court of the fact that David Muir and Derik Lord said "Aye" and "Aye Commander" to Darren Huenemann, where in fact, in the psychological report by Dr. O'Shaughnessy, even Darren's mother and father catered to his fantasies by calling him "Imperial Person". (Page 5 August 31, 1992, report of Dr. O'Shaughnessy attached to Mr. Ferguson's brief) If the jury had known of this indulgence by even his parents, it could nave negated what the prosecutor told the jury about Darren Huenemann being the leader of a conspiracy to kill his mother and grandmother.
Another statement which makes Amanda Cousins story so unbelievable is that on September 21, 1990, when she became fully aware that Darren Huenemann had planned to murder his mother and grandmother, she went back to Darren Huenemann's, had tea, saw a movie, and went to a university show with two friends that night. Hardly a girl who was afraid of Mr. Huenemann or believed him.
Report to Crown Counsel page 31
"On December 4, 90 the writer and Sgt Tregear interviewed Sara Cousins, mother of Amanda Cousins, who provided a written statement. She states Darren constantly phoned to find out what was said when police spoke to Amanda. And tried to twist what was said and turn them against the police. Darren's lawyer, Chris Considine, also phoned her and told her not to talk to the police as they lie and use intimidating tactics. In essence it shows the lengths that Darren Huenemann went to try and prevent Amanda from telling police what she knew of Darren's involvement in the murders of his mother and grandmother by he and his lawyer trying to turn her against the police investigators and obstructing the police investigation."
If these phone calls were, in fact, made, then why were they not disclosed as part of the wiretap evidence? If these calls are as they were purported to be, then using them might have solidified the case that was eventually made. Again, without access to the entire tape logs, or the tapes, we are unable to assess the relative importance of these calls. However, if they do exist, then why didn't the Crown use them to back up both Sara Cousins' and Amanda Cousins' stories. We suspect they do not support either story or even exist, which throws further doubt on the Crown witnesses.
Mr. Ferguson found more new evidence, a wire tap with Dawn Lord in conversation with a friend. He confirmed this was never disclosed to the Defense. In this tape Ms. Dawn Lord says she saw Derik home at 8:30. In the draft brief, page 51,
"section 4, submission relating to new evidence unknown to Defense counsel at trial.
"On March 7, 1996, Departmental counsel wrote to David Lord and asked why such potentially important information was not used at trial. In response David Lord stated that the fact that Dawn was a witness to Derik being home at 8:30 p.m. may have been overlooked when we were providing Mr. Firestone with all we could remember."
Further to that I have spoken to Mr. Ferguson and I also stated that we were sure we had informed Mr. Firestone of this information. Mr. Ferguson, it appears, is furthering his attempt to belittle this application by making it look as though we are trying to bring up information which should have been brought up at trial. What can not be forgotten is the fact that Mr. Ferguson discovered the wire tap evidence confirming Dawn Lord's word. Wire tap evidence that was not disclosed to the Defense.
Mr. Ferguson ridiculed Dawn Lord's testimony by stating "Dawn Lord was of the opinion that her brother had a curfew of 10:00 p.m. on the night in question. She was also of the opinion that her brother was arrested in October or November of, 1991, approximately a year after the LEATHERBARROW, HUENEMANN murders. The actual date of Derik Lord's arrest was November 27, 1990."
Dawn Lord did not say that Derik Lord was arrested a year after the murders, Mr. Ferguson did. Page 5 of the deposition of Dawn Lord, April 18, 1996, she stated when asked to remember, line 33 quote "And when was Derek arrested?" answer "I think it was sometime in '91. I can't remember the exact date.". Mr. Ferguson says Dawn stated that the murders happened on either a Wednesday or a Thursday night. "The murders were actually committed on a Friday." She did not state that the murders happened on a Wednesday or a Thursday night. If Mr. Ferguson had read the transcripts from his own interrogation of Dawn Lord, he would see that he had not changed the subject and that he is asking is what was the day that Derik was arrested, not the day of the murders. He had not indicated to Dawn that he had changed the topic back to the night of the murders.
Pages 5 and 6 of the transcript of Dawn Lord's deposition Mr. Ferguson goes from "And when was Derek arrested?" to Dawn's diary, page 6 line 37, "Why did you write it down at that stage?", back to the time of arrest, line 40, "So, do you remember what day of the week it was that this happened?". Mr. Ferguson continues:
" Dawn Lord stated under oath that she did not tell anybody about what she remembered on the evening of October 5, 1990, until about a week after the trial commenced. At that time, she told her mother, but she did not think that it was important. She thought her mother's testimony would have been good enough."
Julie McClung's statement informed us her sister had told Julie McClung that Dawn Lord was going around school telling everybody that her brother was home at 8:30 at night. One thing that Mr. Ferguson may not be aware of is that teenagers tend to treat talking to their friends, especially best friends, as if they had told no one. Telling no one means not telling an adult. Mr. Ferguson continues by saying, on page 52, " when asked if it was possible she was mistaken about the date and time in question, she responded : ' I don't know. Quite possibly, but I don't think so.' " Mr. Ferguson appears to give the indication that she does not know what she was talking about, but she confirms she does not think she made a mistake on the date or the time.
Mr. Ferguson's feelings become abundantly apparent in his references to Dawn Lord's deposition in that he tries to belittle her evidence at every move.
Mr. Ferguson continues to try and throw doubt on the Defense's time problems. On page 53, he states
"On November 20, 1990, Elouise Lord told Darren Huenemann in a wiretapped telephone conversation that she guessed that her son had arrived home at about 8:30 or 8:45 p.m. Mrs. Lord was not more precise because as she explained to Darren, 'You've asked me a question from a month, a month and a half ago.' And later in the telephone conversation, she said; 'I don't know what time it was though, it was close to 8:30.' Mrs. Lord went on to say that David Muir was already late getting home and Darren Huenemann drove him home from the Lord residence that evening."
In order for the police information to be even close to correct, that time had to be at least an hour out. Elouise was not an hour out; she was out by anywhere up to 15 minutes. Between 8:30 and 8:45. The ferry did not get in until after 9:01 p.m. as reported by the Ferry Corporation. Mr. Ferguson points out that David Muir had a curfew on October 5, 1990, of 9:00 p.m. and Elouise said in testimony that there was a bit of a hurry in getting David into the basement because Dave was late in getting home. If Dave had arrived at 8:45 at our home, he had 15 minutes to get home before his curfew was up. I guess he was in a hurry. David Muir lived approximately 10 to 15 minutes from our home by bike. Mr. Ferguson continues his bias on page 53 by stating:
" At no time during her testimony at the bail hearing or the trial of her son did Elouise Lord indicate that her daughter, Dawn Lord, was at home on the evening of October 5, 1990."
May it be pointed out to Mr. Ferguson that Elouise Lord was never asked who was home, or if her daughter was home, on October 5, 1990, at that time.
Again, on page 53, Mr. Ferguson goes on to say,
"When interviewed on October 16, 1990, Derik Lord originally told the police that he had first arrived at home at 9:30 on the evening of October 5, 1990."
May it be pointed out to Mr. Ferguson that this was a voluntary interview with the police, Derik did not have a watch, and he was estimating the time. He did not know the time. In actual fact, at his trial, he confirmed that he had asked his mother what time he had got home. He was told it was around 8:30, not 9:30. He had not asked his mother before he talked to the police.
This is the kind of twisting of testimony that was done by the police and continues to be done by Mr. Ferguson.
Page 54 of Mr. Ferguson's brief:
"At no time during his testimony at trial did Derik Lord state that his sister, Dawn Lord, was at home when he first arrived there on the evening of October 5, 1990. When asked about the circumstances of his arrival home, the Applicant testified as follows: 'Mr. Firestone: Take us through, witness, what you did when you got back to your residence in Saanich, Please.
Answer: We went back to my house, David and myself, and we went into the basement to get his bike out again.
Court: Just a minute.
Mr. Firestone: How did you get in, what route did you take, can you describe that to the jury. Thank you My Lord.
Answer: I go in the back door of the house, the back door is looked (sic) from inside, and unless you have a key, you can't get in.
Question: Did you see anyone when you went into the house?
Answer: Yes, I saw my mother.
Question: Was she home?
Answer: Yes, she was.'"
This indicates that Derik was never asked whether his sister was home. He responded to the questions he was asked, he did not volunteer any information. He may not even have seen his sister at home at the given time. His sister saw him, but that doesn't mean that he saw her. Not only that, his sister was home at that time of the night most nights, and it was not unusual, so it was not something he would have remembered and thought to be important at that time anyway.
On page 54, again of Mr. Ferguson's brief:
"In cross examination, the Applicant testified that on September 21, 1990, he and David Muir had arrived at the Lord residence from a visit to Tsawwassen at 9:30 p.m. On that occasion, he testified that both his mother and sister were at home.
Question: When you got home on that day, on the 21st, who was home?
Answer: My mother and my sister.
Question: You remember that?
Answer: Yes, I do."
What is the significance that Mr. Ferguson puts in the fact that on September the 21st, Derik got home later and was in the house for a longer period of time and saw his sister, but on October the 5th, he was only in the house for a few minutes. He testified to that. He went out immediately again with Darren Huenemann. He may not have seen his sister on October 5th.
Mr. Ferguson goes on , page 55, to contradict himself.
"Julie McClung who testified that she saw Derik Lord on the 7:00 p.m. sailing from Tsawwassen to Swartz Bay on October 5, 1990, indicates in her statement to the police that she learned from her sister that Dawn Lord had been saying that her brother was home at 8:30 that evening."
Dawn Lord's further testimony was confirmed by a wiretap that was never disclosed to the Defense. The wiretap was of a conversation on November 23, 1990, between Dawn and a friend.
"Dawn Lord in a telephone conversation with a friend on the evening of November 23, 1990, indicated that she was aware of David Muir changing his story to say he was in Vancouver on the night of the murders. She also stated that she did not know what time the boys got back, however, she then stated 'We saw them at 8:30 for a couple of minutes.' And then continued to say that she could not remember anything of that night. The tape log of all wiretap conversations, including the above noted conversation, were disclosed to the Defense."
This is an absolute untruth. Which can be confirmed by Susan Beach in a letter which she wrote to us following the interview. A copy of that letter is included in our supporting materials at TAB 1. Dawn herself confirms the fact that she did not see Derik for very much time during that part of the interview. And also, she confirmed in that same wiretap information that it was 8:30, despite what Mr. Ferguson states that she did not know what time the boys got back. She does state in it that it was 8:30 at night. The tape logs may have been disclosed to the Defense, but the tapes certainly were not.
To this date, we have not seen the entire tape logs, so we cannot confirm that these were disclosed. The logs are not in the disclosure materials presented by Mr. Ferguson as from the Defense files.
"Dawn Lord, in her sworn deposition, indicated that she had not told anyone about having seen Derik Lord on the night of the murders until sometime during her brother's trial. She disclosed her account to her mother and said to her mother, " If it's important, tell Mr. Firestone.' I don't know if she did or not. When asked if it was possible that she could be mistaken about the time and date in question, she replied, 'I don't know. Quite possibly, but I don't think so. Dawn Lord did not independently confirm the time in question, but relied on information provided by her mother"
Mr. Ferguson, in further complicating his explanation to this, has used the same quote "I don't know. Quite possibly, but I don't think so." in two different contexts. In this paragraph, he's provided exactly the same information he provided on page 52. It goes back to the old proposition that if you repeat something often enough it becomes true. Mr. Ferguson is trying to throw doubt on Dawn's testimony and deposition by quoting things twice that have no relationship. If a teacher wants to get an argument across or to get a point across to her students, she repeats it over and over again. Just as Mr. Ferguson has done in this report.
Mr. Ferguson has ultimately confirmed, with a wire tap conversation (Dawn Lord with a friend), Dawn Lord's sworn deposition with Mr. Ferguson on April 18, 1996, and Julie McClung's statement to police about her sister telling her Dawn Lord was telling people at school Derik Lord was home at 8:30, that Amanda Cousins is quite wrong about the time Derik Lord arrived home on October 5, 1990. This again attacks the credibility of Amanda Cousins with new evidence.
The issues surrounding the Judge and his comments, insertions, questioning of witnesses, etc. is much to strong an issue to leave to a mention or a paragraph. The issues in a much less serious case led to the granting of a new trial.
Peter Firestone, in a letter to Donald Martin, dealing with preparations for Appeal sent a copy of Regina v. Tudor, British Columbia Court of Appeal, 1990, which dealt with this issue. This material is found at TAB 7 supporting this response. Issue was taken with the inadequate instruction to the jury regarding admissibility of evidence relating to conspiracies. In it, Mr. Justice Hutcheon quotes the words of Mr. Justice Kelly in Regina v. Torbiak and Campbell, (1974), 18 C.C.C. (2d) 229 at 230:
The proper conduct of a trial Judge is circumscribed by two considerations. On the one hand his position is one of great power and prestige which gives his every word an especial significance. The position of established neutrality requires that the trial Judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions. On the other hand his responsibility for the conduct of the trial may well require him to ask questions which ought to be asked and have not been asked on account of the failure of counsel, and so to compel him to interject himself into the examination of witnesses to a degree which he might not otherwise choose.
Since the limits of the allowable conduct are not absolute, but relative to the facts and circumstances of the particular trial within which they are to be observed, every alleged departure during a trial from the accepted standards of judicial conduct must be examined with respect to its effect on the fairness of the trial.
He goes on to say:
"And again, on the other line, it means - if his stuff is gone, or whatever, that's what it is.
THE COURT: Well, how did David Tudor know what you were talking about?
THE WITNESS: Well, I am just telling his to tell that to my son.
THE COURT: No; he said, apparently, he has gone to Ontario.
THE WITNESS: Yes. My son must have tell him, and he has gone to Ontario, apparently.
THE COURT: But, how did David Tudor know from this conversation that you were talking about Larch?
THE WITNESS: Because maybe my son was talking to him, since he - since we had made phone calls to Penang and to Singapore and all that, so I figured that's - that it's all in the package.
THE COURT: Well, I am just looking at this telephone conversation, and there is no reference to Larch anywhere, but Tudor seems to know who you are talking about.
The appellant also complained of the interventions in the cross-examination of Roger Larch but I have quoted sufficiently from the evidence of Tudor and George Normand to make the point that, on numerous times, the trial judge unwittingly took over the function of Crown counsel. In my view, this was to the serious detriment of the accused.
No doubt this experienced judge was activated by the best motives but the interest of fairness requires a new trial both on this ground and on the ground of the adequacy of the instruction to the jury.
Accordingly, I would set aside the convictions and order a new trial."
The Honourable Mr. Justice Carrothers concurred with this pronouncement.
In the case presented here for the Minister's review, the interventions by the trial judge were much more blatant, much more confusing to the jury, and much more frequent than in the above noted case. Thus, the Applicant is entitled to a new trial based on this gross miscarriage of justice alone. Even if this were the only grounds we had, it would appear that it would be enough. However, there is much, much more.
In R. v. Pavlukoff (1953), 106 C.C.C. 249 (B.C.C.A.) per O'Halloran J.A. at p. 266:
"It seems an absurdity for a Judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury then why give his opinion to the jury."
Based on these cases alone, the simple fact that the judge placed himself in the position of prosecutor for some questioning of witnesses is enough to prejudice the jury in the way they will consider the evidence adduced. His mere importance suffices to impress upon the jury that if he is asking these questions, or providing these answers as he occasionally did, that the facts, evidence, or statements produced then must be really important and of course true. Mr. Justice Fisher did not even warn the jury not to use his opinions in forming their verdict.
ROBERTS, DAVID (for Crown)
in chief by Ms. MacLean
1 A Yes.
2 Q Did you go inside of the residence?
3 A Yes, I did. That was at 0354.
4 Q And how did you gain entry?
5 A I entered the residence by going through a sliding patio
6 window at the rear of the premises on the southern side.
7 I found it to be --
8 THE COURT: A window or a door?
9 A It is a door, My Lord. Patio door.
10 THE COURT: A glass patio door?
11 A Yes, My Lord.
12 THE COURT: Which serves as a window but functions as a door,
13 to be called a sliding patio door?
14 A Succinctly put, My Lord.
15 THE COURT: Thank you. Let's carry on.
ROBERTS, DAVID (for Crown)
in chief by Ms. MacLean
16 A It was. One can see in the cavity to the centre of the
17 rock an orangey-red precipitate that appeared to me to be
18 rust fragments.
19 THE COURT: Just a minute. Photograph 2 shows the logs.
20 Photo 3 shows the logs up close looking forward. You are
21 going to have to assist me in photo 3.
22 A Certainly, My Lord. I am standing --
23 THE COURT: Hold it up so that the jurors can see it.
24 A I am standing on the pebbled area shown in photograph
25 number 2 looking down on the logs themselves.
26 THE COURT: Yes.
27 A The photograph concentrates on the area at the base of the
28 pile of logs shown in photograph number 2.
29 MS. MacLEAN:
30 Q Now, sir, you directed our attention to a specific pebble
31 in photograph number 3?
32 A I did.
33 MS. MacLEAN: I wonder if you might just mark the pebble that
34 you are directing our attention to and hold that up to the
35 jury and His Lordship.
36 THE COURT: Take that over and show that to the jury please.
37 Take it over. You can do that Miss MacLean.
38 MS. MacLEAN: Thank you. That's photograph 3.
39 THE COURT: Now if I may see it. Now then you say you removed
40 what appeared to be a pebble, but it wasn't?
41 A That is correct, My Lord. I removed it from the position
42 it is shown in photograph 3 and on turning it over I saw
43 what we now see in photograph number 4.
44 MS. MacLEAN: Maybe you could mark that on photograph 4 as
46 THE COURT: Which was not a pebble, but it was of what make?
47 A It seemed to be of a molded composition material, My Lord.
ROBERTS, DAVID (for Crown)
in chief by Ms. MacLean
1 THE COURT: It was a manufactured item?
2 A Indeed, yes.
3 MS. MacLEAN: Just show that then to the jury, My Lord,
4 photograph 4.
5 THE COURT: And when you turned it over -- when you turned it
6 over you saw what is face up on photograph 4 or just that
7 it was flat?
8 A I saw what is face up in photograph number 4, My Lord.
9 THE COURT: The item was on this material, adhering to this
10 material --
11 A Yes.
12 THE COURT: -- when you turned it over?
13 A That is correct1 My Lord.
14 THE COURT: How was it attached to that material? By what
16 A By a screw which was set through the metal plate so that
17 it forms a sliding cover.
18 THE COURT: Oh, I see. And that's the cavity you are speaking
ROBERTS, DAVID (for Crown)
in chief by Ms. MacLean
2 MS. MacLEAN: Did you locate any credit cards when you went
3 through those items?
4 THE COURT: You found cash of a hundred and eighty-nine
6 A Yes, My Lord. I believe a hundred and sixty-nine, My
8 THE COURT: A hundred sixty-nine in currency?
9 A Yes. In Canadian currency.
10 THE COURT: Plus traveler's cheques?
11 A Yes, My Lord.
25 THE COURT: Just a minute, Special Constable. I am sorry, just
26 a moment. In the bottom --
27 A Of the frame of the inner window.
28 THE COURT: Door.
29 A As My Lord pleases, the door.
30 THE COURT: I do. Thank you.
31 MS. MacLEAN: I wonder --
32 THE COURT: If we can just stay to that phraseology --
33 A Yes, My Lord.
34 THE COURT: -- rather than to use the alternate term, because
35 it could lead to confusion that you may be referring to
36 something other than that particular framed unit.
37 A Thank you, Your Lordship.
38 THE COURT: Are all counsel in agreement with that?
39 MR. FIRESTONE: Yes, My Lord.
40 THE COURT: Thank you.
41 MS. MacLEAN: I wonder if you might use the marker to circle
42 the screw and the hole that you just referred to. Maybe
43 you could just put a smaller one around the hole as well.
44 And this is photograph number 9.
45 MR. FIRESTONE: May I see it too please just for a second?
46 Thank you.
ROBERTS, DAVID (for Crown)
in chief by Ms. MacLean
25 A Yes. During my initial examination of the knife in its
26 position in the throat of the deceased I noted that the
27 top of the handle was a diced pattern.
28 THE COURT: A which?
29 A A diced pattern. A pattern of squares, My Lord. This is
30 consistent in my knowledge with the pattern which exists
31 on certain types of rubber kitchen gloves of the Marigold
33 THE COURT: Just a minute. I saw at the top of the knife was a
34 pattern of squares, i.e., dice shaped. As an imprint on
35 the knife or in the knife make-up?
36 A No. An imprint on the handle of the knife.
37 THE COURT: I don't think you had said that. Now I identified
38 it as the imprint of Marigold --
39 A It's consistent with a Marigold make of rubber glove which
40 was known to me from previous experience.
41 THE COURT: So Marigold is a --
42 A It is a brand name.
ROBERTS, DAVID (for Crown)
cross-exam by Mr. Morino
20 THE COURT: And that was -- you described it as the south end
21 of the house?
22 A The south east end of the house.
23 THE COURT: Which is adjacent to the vehicle, the Cadillac and
24 the carport?
25 A No. At the opposite end, My Lord.
26 THE COURT: Opposite end of the house?
27 A Yes.
28 THE COURT: So if the -- I misunderstood your direction then,
29 Constable Roberts. The Cadillac was on the east side of
30 the house?
31 A The Cadillac was on the northern side of the house.
32 THE COURT: Sorry?
33 A And we are looking at the house from its eastern aspect.
34 THE COURT: Okay. Let me just clarify that. That's my
35 misunderstanding. Looking up the driveway on northern
36 side of the house.
37 A That is correct.
38 THE COURT: Therefore, looking at east of house in front.
39 A That is correct, sir. And the area that I have spoken of
40 can be seen in photograph number 1 as the area behind the
42 THE COURT: On the left?
43 A On the left.
44 THE COURT: Okay. And that was the door that you allowed entry
45 and exit?
46 A No. The door is on the other side, the inner side.
47 THE COURT: I am sorry, the door -
ROBERTS, DAVID (for Crown)
cross-exam by Mr. Morino
1 A Is on the far side.
2 THE COURT: Can be seen --
3 A No. The door cannot be seen in Exhibit 1.
4 THE COURT: Okay. Entry and exit to house you fixed as the
5 door at the what location?
6 A On the south eastern part of the house, sliding door.
7 THE COURT: That was the one that you fixed
8 A Yes.
9 THE COURT: -- for the entry and exit, the one -- but not the
10 one in the photograph?
11 A Not the one shown in the photograph.
HUENEMANN, Ralph (for Crown)
in chief by Mr. Madigan
12 THE COURT: Where were you then?
13 A In the house.
14 THE COURT: Where?
15 A Where?
16 THE COURT: Had you gone to bed?
17 A I never really went to bed, no. I sat by the phone.
18 THE COURT: Yes. Sat by the phone until five-thirty or six?
19 A Five-thirty or six. I think this might have been closer
20 to six when the doorbell rang.
21 THE COURT: Yes.
22 A And I went to the door and it was very clear that it was
23 two policemen. I think they were in plain clothes, but it
24 was very clear. And I knew that something had happened to
25 Sharon 'cause I -
TYRRELL, P. (for Crown)
cross-exam by Mr. Firestone
24 THE COURT: Each participant would have their own fantasy, is
25 that what you're saying.
26 THE COURT: A fantasy character.
27 A They play a personality.
28 THE COURT: And each member would play a personality. They
29 were fixed personalities, were they?
30 A Yes. It's like an actor playing a role in a movie, you
31 have to be true to that character's personality.
32 THE COURT: I see. I.e. it's like a stage play where each
33 member is given a role?
34 A That's right.
35 THE COURT: Is that a fair way to describe it?
36 A Yes.
37 THE COURT: A role to act out?
38 A Yes.
39 THE COURT: Okay.
COUSINS, A. (for Crown)
in chief by Ms. MacLean
11 Q What about plan number four?
12 A That involved the car as well. Darren had the idea to
13 set the brakes on the car so it would careen.
14 THE COURT: Of whose car, the grandmother's again?
15 A Either the grandmother's or Ralph and Sharon's.
16 THE COURT: I see. This was of a car?
17 A Yes. So the car would careen down a hill into oncoming
19 THE COURT: And what was to be done to it?
20 A The brakes would be severed.
21 THE COURT: Would be severed before it went down a hill?
22 A Yes. Darren said the problem with that plan was there
23 was very little traffic at the bottom of the hill.
COUSINS, A. (for Crown)
in chief by Ms. MacLean
1 A Yes, he did. He said that he felt he would make a
2 better Caligula once his mother and grandmother were
4 THE COURT: Repeat that. I didn't hear you.
5 A Okay. He said that he would make a better Caligula once
6 his mother and grandmother were murdered. He also said
7 that he would use part of the inheritance to make a
8 lavish production of the play.
9 THE COURT: He also said he would be part of the --
1O A He'd use part of the inheritance.
11 THE COURT: To make a lavish production of the play?
12 A Yes.
COUSINS, A. (for Crown)
in chief by Ms. MacLean
1 A Yes.
2 Q Did he say anything when he did that?
3 A No. he just smiled at me.
4 MS. MACLEAN: Did you say anything?
5 THE COURT: Just a minute.
6 A No.
7 THE COURT: There was an abrasion, there was a cut, did you
9 A No. no. He used the blunt edge of the knife.
10 THE COURT: There was no cut?
11 A No.
12 THE COURT: Yes.
COUSINS, A. (for Crown)
in chief by Ms. MacLean
1 MS. MACLEAN:
2 Q All of these details that he told you, was that during a
3 telephone conversation?
4 A Yes, it was.
5 Q And that conversation took place in between September
6 21st and October 5th?
7 A Yes.
8 THE COURT: All the foregoing that you've given were bits and
9 pieces over different telephone conversations; is that
10 what you're saying?
11 A Most of it was said during one phone conversation.
12 THE COURT: And this is between the 24th of September and the
13 5th of October?
14 A Yes.
15 THE COURT: In other words, after you'd been to the show?
16 A Yes.
17 THE COURT: Because you didn't go out with him again after
18 you'd been to the show on the 21st?
19 A We didn't go to a play on the 21st. That's when we went
20 and picked up Derik and Dave at the ferry terminal.
21 THE COURT: And then went to a movie with friends after?
22 A Oh, yes, yes, that's right.
23 THE COURT: So was that the last time that you had been with
25 A Yes.
26 THE COURT: Until the 5th of October?
27 A Yes. I saw him at school.
28 THE COURT: But out with him?
29 A No. Actually there was something I forgot about the
30 plan. Derik and Dave were supposed to take towels from
31 the house and put them over the women's faces so they
32 wouldn't look at them while they killed them.
33 THE COURT: Towels over their face so they wouldn't look at
35 A While they killed them, yes. Darren told me it was
36 Derik's idea because he felt he would feel uncomfortable
37 about about having them look at him while he killed
39 MS. MACLEAN:
40 Q Apart from Darren telling you the details of the plan,
41 did he talk to you about the murder during this two week
43 A Yes, he did. He continually told me that, he
44 continually asked me if I was ready for October 5th and
45 told me there was no worries after October 5th and told
46 me that it just had to be done.
47 Q During this two week period, was there any further
COUSINS, A. (for Crown)
in chief by Ms. MacLean
1 discussion about what Derik Lord and David Muir were to
2 receive for the killings?
3 A Yes. Darren had decided that he didn't want to give
4 David Muir anything because he had said something that
5 Darren felt was treasonous during the 21st.
6 THE COURT: Just a minute.
7 THE COURT: During this two week period, Huenemann said he
8 didn't want to give Muir anything because he committed
10 A Yes. Those were Darren's words.
11 THE COURT: Yes.
12 A He said that Dave would actually have to be killed
13 because of it.
14 MS. MACLEAN:
15 Q Did he say what it was that David Muir had apparently
17 A Yes.
18 THE COURT: Just a moment. He said Muir would have to kill to
20 A He would have to be killed.
21 THE COURT: Oh, he said Muir would have to be killed?
22 A Yes.
23 THE COURT: Yes.
COUSINS, A., (for Crown) jury in
cross by Mr. Firestone
1 A On October 5th.
2 Q All right. So you're saying this is part of the
3 discussions --
4 THE COURT: Okay.
5 MR. FIRESTONE:
6 Q -- which Ms. MacLean asked you at a later date?
7 A Yes.
8 THE COURT: Just a minute. Before September 21 when I first met
9 Lord. And Muir was with --
10 A On the 21st, yes.
11 THE COURT: I had not had any discussion with Huenemann about
13 A No, I hadn't had any discussion with Lord.
14 THE COURT: Oh.
15 MR. FIRESTONE: What I'm doing is trying to clarify the
16 co-conspiracy exception to the hearsay rule as to
17 where she got the information and who she --
18 THE COURT: Right. But I wanted to know were their names
19 mentioned before September 21st.
20 A Oh, yes.
21 THE COURT: Okay. Derik Lord. I met him -- okay. I've got it
22 now. Now carry on.
23 MR. FIRESTONE: Thank you.
COUSINS, A., (for Crown) jury in
cross by Mr. Firestone
12 Q There are large bottles and small bottles. Was it the
13 small bottle or the large bottle?
14 A How small is small and how large is large?
15 Q I have your point. Anyway.
16 THE COURT: That's called the long and short of it.
17 MR. FIRESTONE: I've been called that before, too.
COUSINS, A., (for Crown) jury in
cross by Mr. Firestone
1 Q It's a game?
2 A Yes.
3 Q All right.
4 THE COURT: I've seen it.
5 MR. FIRESTONE: Sorry?
6 THE COURT: I've seen it.
7 MR. FIRESTONE: All right.
8 THE COURT: It might be a surprise to you but I have seen it.
671 JURY IN
SELLERS, RUTH (for Crown)
in chief by Mr. Madigan
1 THE COURT: And it was deep?
2 A Yes. On the left side it was deeper than in the middle.
3 But it was a deep gaping wound. When I looked into the
4 depth of the wound I could see the ends of the major
5 vessels of the neck which had been completely severed.
6 In addition to this wound
7 THE COURT: Just a minute. And found severed vessels?
8 A Yes.
9 MR. MADIGAN:
10 Q Included in those vessels is there a vein called a
11 jugular vein in this area?
12 A Yes. I didn't actually see that at that time because it,
13 the jugular vein collapses, but I saw the carotid artery,
14 which is more elastic so it's easily identifiable, just
15 looking down into the wound without doing any dissection.
16 THE COURT: And saw the carotid artery?
17 A Yes.
18 THE COURT: In what condition?
19 A It had been completely severed, so there was one end high
20 :n the neck and the other~ end lower in the neck.
21 THE COURT: Saw carotid artery totally severed. Didn't see
22 jugular vein at time because it had collapsed.
23 A Yes.
24 THE COURT: Why would it collapse?
25 A Well, unlike the carotid artery, which has a lot of
26 elastic tissue in it, like it's just really a tube with --
27 like an elastic tube that
28 THE COURT: Keep your voice up a bit.
29 A The jugular vein doesn't have much elastic tissue in it,
30 so if there is not blood flowing through it it just
31 collapses down.
32 THE COURT: I see. Because it collapsed, therefore meaning
33 no blood flowing through it.
34 A Right.
35 THE COURT: Would that be because of the cut artery?
These are but a few of the examples (complete page copies are at TAB 9 following our submissions) where Mr. Justice Fisher took over questioning, made comments, or interfered with the progress of questioning. There are many more throughout the transcripts. In all of the above cited examples, the jury was in. Mr. Ferguson may have thought before that it made no difference to the outcome as the only ones cited were from the times when the jury was out. This has been shown to be not the case. Mr. Justice Hutcheon and Mr. Justice Kelly allowed an appeal with less than the above noted interventions by the trial judge, yet the B.C.C.A. did not see fit to do the same. The Minister must rectify this injustice.
The submission made that calling of Darren Huenemann after the Court had been made aware that he would refuse to testify is a strong one. The action has the same effect as any other method of publicly linking the two accused with any other known disreputable person would be. The total effect was to put the two accused in the position of having to defend their friendship with Darren Huenemann. It puts them in league with an accused and convicted killer, without any testimony having to be given at all. No consideration was given by the judge to the motion for a mistrial. The judge allowed the deliberate sensationalism to be performed because it fit with his own opinion that the two accused were guilty.
1 New Westminster, B.C.
2 25 May 1992
4 PROCEEDINGS RECONVENED PURSUANT TO ADJOURMENT
6 THE SHERIFF: Order in court.
7 THE CLERK: In the Supreme Court of British Columbia, this
8 25th day of May, 1992. Calling the case of Derik
9 Christopher Lord and David Michael Muir at bar, My Lord.
11 JURY OUT
13 THE COURT: Mr. Firestone. Just a moment.
14 MR. FIRESTONE: Your Lordship, I asked to canvass this issue
15 in absence of the jury because I'm concerned about some
16 prejudicial impact of what's about to happen. On
17 Friday, you remember Your Lordship remanded Mr.
18 Huenemann, who's now standing in the courtroom in the
19 witness box, over to this morning. Mr. Orris, Glen
20 Orris of Vancouver I understand is his lawyer, that is,
21 Darren Huenemann's lawyer. Mr. Orris informed me on
22 Friday afternoon that this witness. Mr. Huenemann, would
23 refuse to be sworn and would refuse to cooperate with
24 this trial
25 Now, my learned friend Mr. Madigan this morning
26 advised me that he purported to bring Mr. Huenemann in
27 and have him sworn or attempt to have him sworn in front
28 of the jury. Now, my submission is as follows, is that
29 if this witness, as Mr. Orris has advised me. refuses to
30 be sworn in front of this jury and the prejudicial
31 impact on this trial given the Crown's opening would be
33 THE COURT: Why is this being said in presence of this person?
34 MR. FIRESTONE: The Crown brought him in, My Lord. I didn't
35 require him here.
36 THE COURT: Well, with the greatest of respect, this
37 application should be made in the absence of any person.
38 MR. FIRESTONE: The Crown brought him in.
39 THE COURT: Take him out.
40 MR. FIRESTONE: My learned friend said the Sheriff brought him
41 in. I thought it was at the request of Crown. It
42 certainly wasn't at my request.
43 THE COURT: Because it involves Huenemann, I just don't think
44 that Huenemann should be present.
45 MR. FIRESTONE: I agree with Your Lordship. I know security
46 is an issue in this trial, and all the rest of it, and
47 I'm not trying to interfere with anybody.
1 THE COURT: No, no. Mr. Firestone, I wasn't pointing a finger
2 at you in any way at all. It's just as you were
3 advancing your submissions I was concerned that the
4 person it related to was in court and could or could not
5 take advantage of what was being said.
6 MR. FIRESTONE: I agree.
7 THE COURT: Not that he would, but on the other hand, maybe he
8 would. I have no way of knowing.
9 MR. FIRESTONE: That's why I put on the record that he was in
10 during my submissions to Your Lordship, but just to
11 review my position on behalf of Mr. Lord.
12 THE COURT: I don't think I would have recognised him if you
13 hadn't of brought it to my attention.
14 MR. FIRESTONE: Thank you, My Lord. My position on behalf of
15 Mr. Lord is quite simple. If he refuses to testify, and
16 my information from his lawyer is that's what he's going
17 to do, that nothing that Your Lordship says to this jury
18 is going to be able to take out the taint and prejudice
19 given the Crown's opening. The opening was simply put a
20 plan to kill Huenemann's mother and grandmother with
21 Lord and Muir.
22 I'm asking Your Lordship in relation to this
23 threshold question to canvass this issue in the absence
24 of the jury and make a determination whether he will be
25 sworn or not be sworn. If he's not sworn the proper
26 thing for Your Lordship to do will be hold this man in
27 contempt. It should not happen in front of the jury
28 because it will be overwhelmingly prejudicial.
29 THE COURT: The Crown will say on the other hand there isn't
30 anything before the jury to indicate why this man did
31 not appear.
32 MR. FIRESTONE: In fairness, Crown the was very careful in
33 their not to refer at all to Darren Huenemann
34 THE COURT: But as the case progresses and his name emerges,
35 Mr. Firestone, that would be the concern, it seems to
36 me. It's on an equal basis to remain as a warning to
37 the jury if that is his position, and we'll have to find
38 that out when he's presented to be sworn.
39 MR. FIRESTONE: Let me make a second and subsidiary --
40 MR. MADIGAN: If my friend wants to make another admission we
41 don't need him in person, that Huenemann has refused to
42 to testify in this court.
43 MR. FIRESTONE: No. You see. my position will be, My Lord.
44 and so there's no confusion, is that if Mr. Huenemann
45 gets on the stand and refuses to testify in front of the
46 jury, the only position I can properly take, in my
47 respectful submission, is to stand up and request a
1 mistrial at that point because of the prejudicial
2 impact. I'm trying to avoid a mistrial application
3 virtue of bringing this to Your Lordship's attention
4 now because I was told on Friday by Mr. Orris that he
5 would refused to be sworn.
6 THE COURT: Your friend has given you an alternative, Mr.
8 MR. FIRESTONE: I'm not prepared to make an admission.
9 THE COURT: Then it will have to come before the jury, and if
10 he refuses to be sworn, that will be a position that
11 will have to be considered. I do not see that as a
13 MR. FIRESTONE: All right. The point I wish to raise to
14 Your Lordship on this threshold question is that I'm
15 prepared to take a position that no adverse inference
16 should be drawn from the Crown's failure to call
17 Huenemann. What I don't want before this jury is the
18 fact that he refused to be sworn. So the Crown
19 requested an admission that I put on the record that he
20 refused to be sworn which I'm not prepared to do, but I
21 am prepared to put the record that I take no adverse
22 inference and I will not make any submissions that the
23 jury should draw an adverse inference from the Crown's
24 failure to call him. I would be prepared to go that
25 far, but not to the point where he refused to be sworn
26 because, in my respectful submission, that's very
27 prejudicial to my client.
26 I'd like to make this other point. This is the
29 second point I wanted to make about Huenemann. And that
30 is the Crown throughout his first trial when it came to
31 Mr. Huenemann's credibility in a submission to the jury,
32 made a submission to the last jury in relation to Darren
33 Huenemann, as I understand is it, that his story was "as
34 phoney as a three dollar bill." That's what I
35 understood Mr. Madigan's position to be. Having taken
36 that position with the jury in Huenemann's trial in the
37 last trial, it is my respectful submission it's unfair
38 to my client now to call Mr. Huenemann as a witness for
39 any reason, given the Crown's contrary position that he
40 was not worthy of belief at his last trial. I put that
41 before Your Lordship because in my respectful submission
42 Mr. Madigan is taking a different position than he took
43 last June.
44 THE COURT: It may be that he's changed his position from what
45 he said on a previous occasion.
46 THE COURT: I'm sorry, Mr. Madigan, might I hear from Mr.
1 MR. RUSK: I can't add a great deal to what I think Mr.
2 Firestone has put very eloquently it's a fundamental
3 principle with the greatest of respects of our law.
4 THE COURT: I have your point. thank you.
5 MR. RUSK: Very good, My Lord. I wasn't told specifically
6 what this man would do, but Mr. Orris, his words to me
7 were something like this man would decline to
8 participate. It's my respectful view that ought not be
9 canvassed with the jury present.
10 THE COURT: Mr. Madigan?
11 MR. MADIGAN: We're talking about declining to participate.
12 We're constantly getting phone calls from witnesses who
13 try to decline to participate saying I'm going to lose
14 my wages, this and that and the other thing. Let me
15 point out why we're calling this particular fellow
16 Yes, I called him a liar. And I will continue to call
17 him a liar except in one regard. If my, let's say,
18 suspicions are correct, an alibi is going to be raised
19 in this particular case by Lord, and the evidence of
20 Amanda Cousins is that on October the 5th she and
21 Huenemann went out to the ferry which was late and came
22 in about 9:02 or something like that and picked this
23 pair up is very much in issue. Because as I've been
24 hearing for the last year and a half if Lord was
25 downtown in his house with his mother he couldn't be out
26 on the ferry. And Huenemann says in his own evidence
27 that he went out with Amanda Cousins to that ferry and
28 picked them up. And here's his own words, not mine,
29 "basically because when Derik and David came back later
30 that evening, they asked Amanda and I both not to say
31 anything because neither of their parents had known this
32 fact." This is in chief, by the way, not me getting at
33 him, "because both, neither of their parents had known
34 this fact that they had gone over. We simply just said
35 we dropped him off in Chinatown because Derik, last time
36 David got into trouble. David would get grounded. he
37 said, if his parents found out he had gone over and not
38 told them about this. So Amanda, Derik and David and I
39 said just sure, there's no problem with that, and with
40 the police. There was no alibi or anything, all it was
41 was just a statement to keep two people from being
42 grounded. I just told the police because these people
43 were my friends."
44 Now, I think the Crown is obligated to call
45 witnesses who are essential to the unfolding of the
46 narrative and who are essential to the proper
47 presentation of facts before a jury. And when I know
1 that an alibi is going to be raised that Derik Lord at
2 8:30 p.m. was safe and sound at home when I know to the
3 contrary, I am obligated to call evidence.
4 Now, I don't know what this fellow is going to do in
5 the witness stand. Sure, he's not going to cooperate.
6 I can certainly ask him to refresh his memory from his
7 own transcript as long as he's sworn. If he's not
8 there's not much I can do, he's not a witness. Now,
9 Your Lordship can tell the jury to ignore his presence.
10 I had a similar case which is finished in the Court of
11 Appeal called King & Storey where the same happened.
12 The case was severed and we proceeded with Storey. We
13 called King who refused to testify. Mr. Justice Paris
14 told the jury at that time, well, you can draw whatever
15 conclusion you like from it, and the Court of Appeal
16 said he shouldn't have said that to him, but said there
17 was no substantial wrong or miscarriage of justice. 1'm
18 not asking you to say anything to the jury in relation
19 to the witness, just say just ignore him, but I don't
20 know until he tells you that he's not being sworn.
21 THE COURT: So what is the procedure today? This was
22 Huenemann that was in the stand that I told to stand
24 MR. MADIGAN: That's right.
25 THE COURT: Now then, the Crown wishes to examine him, to have
26 him sworn and examine him today.
27 MR. MADIGAN: That's right.
28 THE COURT: Because when we left on Friday. I was of the view
29 that there were three other --
30 MR. MADIGAN: They're ready outside.
31 THE COURT: Other witnesses.
32 MR. MADIGAN: They're outside, yes.
33 THE COURT: But the Crown was going to proceed with Huenemann
34 this morning?
35 MR. MADIGAN: Yes. I mean, we'll be very short. That's the
36 only question I'm going to ask him is that because I
37 know an alibi is going to be raised and it's my
38 obligation to call evidence which we will support
39 through Amanda Cousins that any alibi raised is false.
40 Now, I don't know what he's going to say. I mean, if
41 we're going to let witnesses say outside court I'm not
42 going to cooperate, say we can't call him. If he's not
43 going to cooperate, let him say it here.
44 THE COURT: Thank you.
45 MR. FIRESTONE: Just a brief reply, if I might, My Lord. I'm
46 not suggesting that this witness should be able to get
47 away with any contempt of this court, but he should be
1 brought in in the absence of the jury. Your Lordship
2 should asking whether he's prepared to be sworn. If
3 he's not, you should cite him in the absence of the
5 THE COURT: I see no basis for that, Mr. Firestone. I'm not
6 with you on it. I don't know what he's going to do,
7 it's mere supposition. And for the, for what the Crown
8 wishes to adduce, it's entitled to adduce in the manner
9 that was advanced by Mr. Madigan. And if witnesses,
10 this one or any other witness refuses to be sworn,
11 proceedings can be taken as against that person for
12 contempt, or whatever other steps the Crown wishes to
13 take, but that will be before the jury. Bring him in.
14 MR. MADIGAN: And I certainly will agree Your Lordship should
15 tell the jury not to draw an adverse conclusion from it.
16 I think that's fair.
17 THE COURT: Bring in the jury.
19 JURY IN AT 10:25 A.M.
21 THE CLERK: Members of the jury, have you selected a foreman?
22 THE FOREMAN: We have.
23 THE CLERK: Please state your number and name to the court.
24 THE FOREMAN: Seventy-six, Dave Graham.
25 THE COURT: Thank you, Mr. Foreman.
26 MR. MADIGAN: The Crown calls Darren Huenemann.
27 THE CLERK: Take the Bible in your hand, please.
28 DARREN HUENEMANN: My Lord, I'm refusing to participate in
29 this proceeding.
30 THE COURT: For what reason?
31 DARREN HUENEMANN: My Lord, I am refusing to participate in
32 this proceeding.
33 THE COURT: For what reason are you refusing to participate?
34 DARREN HUENEMANN: My Lordship, I'm refusing to participate in
35 this proceeding.
36 THE COURT: Do you refuse to be sworn?
37 DARREN HUENEMANN: My Lordship, I refuse to participate in this
39 THE COURT: The repetition of the statements you're making,
40 witness, indicate that you will continue repeating that
41 statement until such time as there's a resolve in this
42 matter, is that correct?
43 DARREN HUENEMAN: My Lordship, I'm refusing to participate in
44 this proceeding.
45 THE COURT: It's quite obvious he refuses to be sworn.
46 MR. MADIGAN: The Crown won't call him, My Lord. It's
47 pointless interrupting this trial because of him.
1 THE COURT: Take him out.
2 THE SHERIFF: Yes, sir.
3 MR. FIRESTONE: I wonder if I can address Your Lordship in the
4 absence of the jury?
5 THE COURT: Mr. Foreman, members of the jury, if you just step
6 out for a moment, please.
8 JURY OUT AT 10:30 A.M.
10 MR. FIRESTONE: Thank you, My Lord. I feel compelled, as I
11 advised Your Lordship, what I would feel constrained to
12 do. I'm asking your Your Lordship now to declare a
13 mistrial in these proceedings. I do so for the
14 following basis. It is my submission that the
15 prejudicial effect given the Crown's opening in this
16 matter will not in any way be reduced by anything
17 Your Lordship now says to this jury. Mr. Madigan has
18 said earlier you should direct this jury that both now
19 in my submission and the end of the day in your charge
20 that no adverse inference should be drawn against these
21 accused. In my submission, even with that direction,
22 the result of what's happened today is an unfair trial
23 for my clients.
24 MR. RUSK: Likewise my application, My Lord.
25 THE COURT: Thank you. Application denied. Bring the jury
The fact that this prejudicial incident occurred, coupled with the comments, question, and opinions stated by the judge leads one to the conclusion that the entire trial is unfair. Copies of the relevant pages of transcript can be found at TAB 10 following this response. A gross miscarriage of justice has occurred which can now only be rectified by the Minister.
Mr. Ferguson typifies what is wrong with the Canadian Justice system, from the police, Crown prosecutors and, in Derik Lord's case, even the judge. You form an opinion and then concentrate on only what supports your opinion. I was under the mistaken belief that the judge, Crown prosecutor, police, and Minister of Justice staff were supposed to be neutral and make sure the accused had a fair trial. Instead, Justice Fisher took the role of prosecutor at times, he cross-examined witnesses. He sometimes took the roll of witness, answering for witnesses. In every single ruling he ruled against the Defense, including against the Defense's motion for a mistrial. The Crown prosecutor, Mr. Madigan did not provide full disclosure to the Defense, as Mr. Ferguson has discovered. The police according to their notes were after Derik in late October, 1990, even though there certainly was no evidence against him at this time. Defense did not have the opportunity to cross examine Mr. or Mrs. Smith or Inspector LeRoy after Mr. Ferguson's interrogation. Nor were we allowed to cross examine on the record, Dawn Lord. Mr. Ferguson took an adversarial position, not a neutral one. Neither the conversation with Mr. And Mrs. Smith or Inspector LeRoy were under oath or sworn. Finally Mr. Ferguson put a brief together that is full of half truths, personal opinions, he misquoted Mr. Firestone, and he didn't include evidence or legal opinion opposed to his opinion ( co-Defense counsel Ms. Susan Beach). He never even contacted Mr. Donald Martin, the Defense counsel at both appeals and who in his legal opinion had excellent grounds for appeal.
On page 31 of the draft brief, Mr. Ferguson explained the law and principles relating to section 690 reviews.
"Part 7, The Law And Principles Relating to Section 690 Criminal Code Reviews
In the Section 690 application of W. Colin Thatcher, the Minister outlined the principles that govern the exercise of the discretionary powers in section 690 of the Criminal Code. These Principles are the following:
1. The remedy contemplated by section 690 is extraordinary. It is intended to insure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.
Regina v. Arviv (1985), 19 C.C.C. (3d) 395,
"The preferring of a direct indictment under s. 507(3) of the Code in combination with the failure of the Crown to make adequate disclosure might, however, result in an accused being unable to make full answer and Defense at his trial, thereby contravening s. 7 of the Charter and enabling the trial judge to fashion a remedy under s 24(1)."
Stinchcombe v. The Queen (1991), 68 C.C.C. (3d) 1,
"It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view overwhelming."
"I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done."
Regina v. Ertel (1987), 35 C.C.C. (3d) 398,
"While the effect of a direct indictment may in some cases create several disadvantages, …. the Attorney-General, who is not impartial and does not hold hearing, to commit people to trial, these disadvantages are not so unfair as to be discriminatory. In determining whether or not there has been discrimination it is proper to consider factors such as fairness, rationality and justifiability."
"The fundamental right to make full answer and Defense is protected."
"In Arviv the court recognized two aspects of the direct indictment: the "charging" aspect and the "procedural" aspect. The procedural aspect of the direct indictment consists of the accused's deprival of the right to cross-examine the Crown witnesses at a preliminary inquiry. The conclusion reached was that the constitutional standard which a court must satisfy under s. 7 of the Charter is encompassed by the concept of "the principles of fundamental justice". Thus, the court held that a contravention of s. 7 of the Charter may result if the combination of the direct indictment with the failure of the Crown to make adequate disclosure results in the inability of the accused to make full answer and Defense at his trial."
"In the Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1: Findings and Recommendations (1989) (the "Marshall Commission Report"), the commissioners found that prior inconsistent statements were not disclosed to the Defense. This was an important contributing factor in the miscarriage of justice which occurred and led the commission to state that "anything less than complete disclosure by the Crown falls short of decency and fair play" (vol. 1 at p. 238).
"…much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to the manner and timing of the disclosure, the absolute withholding of information which is relevant to the Defense can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure."
"…all relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence."
R. v. C.(M.H.), (April 1991) 63 C.C.C. (3d) 385:
"This court has previously stated that the Crown is under a duty at Common law to disclose to the Defense all material evidence whether favourable to the accused or not. In Lemay v. The King (1952), 102 C.C.C. 1  1 S.C.R. 232, 14 C.R.89, while holding that a prosecutor had a discretion regarding which witnesses to call, it expressed the opinion that the Crown must nevertheless produce all material facts."
R. v. Caccamo (1975), 21 C.C.C. (2d) 257, D.L.R. (3d) 685,  1 S.C.R. 786,
Justice Spence with Justice Laskin concurring at page 265:
"In my view, it is the duty of the Court to be vigilant to assure itself that the appellant has had a fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfairness then the Court should act with decisiveness to reverse such unfairness."
R. v. Jack (January 1992), 70 C.C.C. (3d) 67,
"There can now be no doubt that there exists a duty on the part of the Crown in a criminal case involving an indictable offence to make full, fair and timely disclosure of all relevant facts. For these purposes, the Crown includes the police."
R. v. Harris , 2K.B. 587,
"…that in a criminal trial where the liberty of a subject is at stake, the sole object of the proceedings is to make certain that justice should be done between the subject and the state, is firmly established."
Lemay v. The King (1951) 102 C.C.C. 1,
"I wish to make it perfectly clear that I do not intend to say anything which might be regarded as lessening the duty which rests upon counsel for the Crown to bring forward evidence of every material fact known to the prosecution whether favourable to the accused or otherwise;"
R. v. Jack supra
"Relevant information now includes statements obtained from persons by the authorities touching a matter in issue whether they are proposed as Crown witnesses or not."
R. v. V.(W.J.) (May 1992), 72 C.C.C. (3d) 97,
"The purpose of disclosure is to enable an accused person to make full answer and Defense. If the disclosure is to be meaningful, it is incumbent upon Crown counsel to procure from the police all relevant materials gleaned from the investigation and, within his or her reviewable discretion, to disclose the results to Defense counsel."
"The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to Defense counsel".
Boucher v. The Queen (1954), 110 C.C.C. 263,
"It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings".
R. v. Peavoy (1974), 15 C.C.C. (2d) 97,
"A person swearing an information, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the truth of his assertion."
"If it should transpire that the person swearing the information has done so falsely or has misled the Justice of the Peace, then he risks the possibility of both criminal and civil proceedings against him personally for his misconduct".
R. v. Whitmore (1987), 41 C.C.C. (3d) 555,
"The laying of a false information obviously can found an action for malicious prosecution: Casey v. Automobiles Renault Canada Ltd., (1964) 2 C.C.C. 289".
R. v. Charbonneau (1992), 74 C.C.C. (3d) 49,
"In my view, the Crown has a duty to disclose all relevant information in its possession, and the trial judge has a broad discretion, at common law, to order disclosure of any relevant statement required to enable the accused to make full answer and Defense and to assure a fair trial."
R .v. Pearson (February 1994), 89 C.C.C. (3d) 535,
"Disclosure should be made upon request, even if the information to be divulged is relevant primarily or exclusively to issues like entrapment or insanity, which are in principle dealt with only if …. Even in the absence of a request, information that might be helpful should be disclosed at the first reasonable opportunity."
R. v. Johnson (March 1994), 89 C.C.C. (3d) 90,
"Mr. Mulligan urges on us that Defense counsel have a duty to conduct reasonable inquiries and investigations themselves. He says an accused person ought not to be heard to complain of non-disclosure where partial disclosure has been made from which it would be apparent to Defense counsel that there may be further material in the hands of the Crown which had inadvertently been omitted from disclosure, and counsel makes no inquiry of the Crown".
"We agree with that submission to this extent. If a court were of the view that Defense counsel must have known that there had been an inadvertent disclosure omission, and had deliberately abstained from making inquiry of the Crown, the court might be justified in rejecting an application thereafter for Charter relief based on that omission. We do not agree that the Defense in this case had an obligation to find out by independent inquiry that which the Crown ought to have disclosed to it but had not. Nor could Defense counsel have been expected to inquire of the Crown….".
R. v. Farinacci (1994), 88 C.C.C. (3d) 1,
"The Charter guarantee to make full answer and Defense requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused. In order to justify non-disclosure the Crown must bring itself within an exception to that general rule".
"… non-disclosure can only be justified on the basis that disclosure will prejudice the interests of informants, innocent persons or the law enforcement authorities and that such prejudice overbears the interests of the accused".
"The appellants should not be required to demonstrate the specific use to which they might put information which they have not ever seen. The respondent (Crown) has not been able to satisfy me that no prejudice occurred and an appellate court which does not have the benefit of access to counsel's brief cannot be expected to speculate in the circumstances. I must conclude, therefore, that the ability of the appellants to make full answer and Defense was compromised".
"The fact that the trial judge may not have seen how the excised material could have assisted the appellants does not necessarily mean that Defense counsel would not have found a way to use that material to their advantage".
R. v. Durette,  1 S.C.R. 469 1993: November 10; 1994: March 17.
Per Lamer C.J. and Sopinka, Cory and Major JJ.: The Charter guarantee of the right to make full answer and Defense requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused.
The accused should not be required to demonstrate the specific use to which they might put information which they have not even seen.
S. v. Recorder of Manchester (H.L.), (1970) 2 W.L.R. 21, Lord Morris , page 37;
"The desire of any Court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a Court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty."
Royal Commission on the Donald Marshall, Jr., Prosecution (1989)
"This decision of most American States to codify disclosure requirements is a good one. The approach reflected in current case law involves assessing each individual case of real or alleged non-disclosure to determine if it actually impairs the accused's constitutional right to make full answer and Defense. We believe that such an ad hoc approach to disclosure means uncertainty and possible unfairness. The inability of an accused to adequately prepare a Defense threatens the fairness of the criminal justice system, and it is desirable that as much discretion and subjectivity as possible to removed from decisions concerning disclosure. The fundamental interest in a fair trial of the accused requires that the accused receive from the Crown all information known to the Crown that might reasonably be considered useful to the accused. The Crown should have a positive and continuing duty to provide this information to the Defense. It is immaterial whether or not Defense counsel fails to request disclosure of the information in possession of the Crown, or indeed whether Defense counsel is negligent in failing to do so. The circumstances of non-disclosure should not be permitted to affect adversely the fairness of the trial received by the accused. The focal point of the issue of fairness is the fact of disclosure of material evidence.".
The New Zealand Law Commission, Report No. 14, Criminal Procedure: Part One , Disclosure and Committal (1990)
"There is the further important advantage of increased public confidence in verdicts of guilt where both sides have been able to make suitable preparation and with little chance that any significant fact has been kept from the Defense.".
Canadian Criminal Code, s. 650 (3);
"An accused in entitled, after the close of the case for the prosecution, to make full answer and Defense personally or by counsel. R. S., c. C-34, s. 577; 1972, c. 3 s. 50; 1991, c. 43, s. 9".