2010 QCCA 894, 2010 QCCA 894

Usereau c. R. 2010 QCCA 894 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-003320-056 (500-01-014141-029) DATE : le 6 mai 2010 CORAM : LES HONORABLES PIERRE J. DALPHOND, J.C.A. ALLAN R. HILTON, J.C.A. LISE CÔTÉ, J.C.A. MICHEL USEREAU APPELANT – Accusé c. SA MAJESTÉ LA REINE INTIMÉE – Poursuivante ARRÊT [ 1 ] LA COUR : -Statuant sur l'appel d'un verdict rendu le 25 octobre 2005 par un jury présidé par l'honorable Richard Mongeau (Cour supérieure, district de Montréal) qui a déclaré l'appelant coupable de meurtre au premier degré (

article 235 du Code criminel ) et de tentative de meurtre (

article 239

a) du Code criminel ); [ 2 ] Après avoir étudié le dossier, entendu les parties et délibéré; [ 3 ] Pour les motifs du juge Hilton, auxquels souscrivent le juge Dalphond et la juge Côté, et pour les motifs de la juge Côté, auxquels souscrivent le juge Dalphond et le juge Hilton; [ 4 ] ACCUEILLE l'appel; [ 5 ] CASSE le verdict de culpabilité prononcé par le jury de la Cour supérieure; [ 6 ] ORDONNE la tenue d'un nouveau procès sur les deux chefs d’accusation. PIERRE J. DALPHOND, J.C.A. ALLAN R. HILTON, J.C.A. LISE CÔTÉ, J.C.A.

Me Daniel Royer Me Marc Labelle LABELLE, BOUDRAULT, CÔTÉ & ASSOCIÉS Pour l’appelant Me Michel Pennou Me Louis Bouthillier AVOCATS AUX POURSUITES CRIMINELLES ET PÉNALES Pour l’intimée

Date d’audience : le 11 juin 2009 REASONS OF HILTON, J.A. I INTRODUCTION [ 7 ] Michel Usereau was in the midst of being tried for the first-degree murder of Jean-Jacques Melkonian and the attempted murder of Stéphanie Fragman when the chief police investigator, Det. Sgt. Denis Matteau, committed suicide at his office on the day prior to his scheduled testimony. The presiding judge, Cohen, J., declared a mistrial at the Crown's request. Mr. Usereau then underwent another trial on the same two counts at which a different Superior Court judge presided. [ 8 ] The principal issue was the identification of Mr.

Usereau as the assailant who shot and killed Mr. Melkonian as well as having fired another shot that wounded his companion, Ms Fragman, just before midnight on Tuesday, March 20, 2001. Taken to the Montreal General Hospital, Mr. Melkonian died there the next day after attempts to save his life failed. As part of its case against Mr. Usereau, the Crown also led evidence to suggest he had a motive for murdering Mr. Melkonian. II OVERVIEW OF THE FACTS [ 9 ] After having undergone training to become a police officer, Mr.

Usereau was employed on a probationary basis with the Ste-Thérèse police force between February of 1999 and August of 2000. During the same period of time, he was also working for Excel Securité, a private security firm, which he had joined several years earlier. When he was offered to join the force permanently in February of 2001, he declined and maintained his position with Excel after having become a director. [ 10 ] Mr. Melkonian had also been employed by Excel for some time, but left it when he was not chosen for the directorship position given to Mr. Usereau by Excel's owner, Joseph Zakher.

In January of 2001, Mr. Melkonian began operations of his own security company, Intelligarde, which was thus in direct competition with Excel. During the same period of time, Mr. Usereau performed security services that included acting as a bouncer at an after-hours club in downtown Montreal, and knew both Mr. Melkonian and Ms Fragman. [ 11 ] There was evidence of animosity between Mr. Usereau and Mr. Melkonian relating to the competing business interests of Excel and Intelligarde respectively.

One such incident in particular was the bidding that took place for a security contract at CEPSUM, which was to be performed on Saturday, March 17, just a few days prior to the shooting on Tuesday, March 20. CEPSUM had previously been Excel's customer but lost its business as the result of faulty performance of a security contract in May of 2000. [ 12 ] Excel had substantially reduced its bid to CEPSUM, supposedly with a view to either win the contract or to force Intelligarde to reduce its bid to such an extent that it would be unprofitable for a start-up company.

Nevertheless, CEPSUM awarded the contract to Intelligarde, to the dismay of Mr. Zakher and Mr. Usereau. [ 13 ] During its cross-examination of Mr. Usereau, who testified in his own defence, the Crown also established Mr. Usereau's familiarity with the use of firearms from his police training and his significant level of achievement in martial arts, for which he had also been an instructor. These personal factors were said to be relevant from the Crown's perspective since whomever shot Mr.

Melkonian, a burly man of 6'4", was able to flip him onto the hood of his parked car, fend off Ms Fragman, who had tried to stop the assailant from shooting, and discharge 5 bullets in 10 seconds or so. [ 14 ] Mr. Melkonian was shot outside his home on Drolet Street in Montreal. One of the bullets fatally struck him in the head. Another struck Ms Fragman in the right shoulder and was surgically removed the next day. She also suffered other injuries associated with the assault. Mr. Melkonian was returning home with Ms Fragman from the Bell Centre, where he had performed security duties that evening at an NHL game.

It is thus apparent that whomever shot Mr. Melkonian knew of his whereabouts on the evening of March 20. [ 15 ] Several individuals in the neighbourhood on Drolet Street who saw the events unfold to varying degrees testified. None of them positively identified Mr. Usereau as the assailant. Despite the fact that she knew Mr. Usereau, Ms Fragman also was unable to identify him positively, although the fact that the lower half of the face of the assailant was covered would have made such identification problematic, especially in the darkness of night.

During the melee, the hood of the winter jacket the assailant was wearing became dislodged. A pistol was located in the area where another witness had seen the assailant flee. The hood and the pistol were subsequently examined for any recoverable DNA. [ 16 ] A single DNA profile was identified on the part of the hood that was examined, and a combination of at least three profiles were found on the pistol.

The unique profile identified on the hood could not be excluded from those found on the pistol, although it was not established with certainty through ballistic evidence that the pistol recovered was the one used to shoot Mr. Melkonian. [ 17 ] For some time the police investigation produced little headway. Suspicions arose about Mr. Usereau, however, since he and Mr. Melkonian had known each other for some time and had competing business interests. It was decided to have Mr.

Usereau followed by police, with the clear purpose of seeking to recover an object on which his DNA would be found. [ 18 ] During this time, Mr. Usereau and Mr. Zakher had declined to meet police investigators. This is particularly apparent from a wiretapped conversation between the two men on August 16, 2002.

[ 19 ] Eventually, without the knowledge of Mr. Usereau, but with the permission of a restaurant employee, Det. Sgt. Matteau obtained a glass and a straw that he had used while dining with a companion. Both the glass and the straw were submitted for DNA analysis. A match was found between the DNA profile taken from that part of the hood in contact with the mouth that was recovered at the scene of the crime and the profile on the glass Mr. Usereau used at the restaurant. [ 20 ] A DNA warrant was then obtained from a judge of the Court of Quebec and executed, by consent, at the office of Mr.

Usereau's lawyer. [1] A subsequent analysis showed that the DNA from the hood and from the blood sample taken pursuant to the DNA warrant was identical. Mr. Usereau was arrested within a week on September 25, 2002 and charged with first-degree murder and attempted murder. [ 21 ] When Mr. Usereau testified at trial, he conceded that he was the owner of the winter jacket from which the hood had become dislodged and from which the initial DNA sample had been taken.

He contended, however, that he and others used the jacket to which it had been attached during the winter months at the club where he performed security services whenever they had to work outside the front door. The jacket was normally kept in his locker in a room at the club that was accessible to security personnel, but the locker was not always locked. He testified that the jacket, which he had owned for several years, had gone missing in the latter part of January of 2001.

Another witness who worked as a bouncer at the club, Jackie Pierre, testified that he had seen at least two other bouncers wearing the jacket while working, although he was unable to name them. [ 22 ] Mr. Usereau and his wife at the time of the murder, France Grenier, also testified to an alibi. [2] March 20 was Mr. Usereau's birthday. They both said that apart from about 15 minutes or so when Mr. Usereau ran an errand at a time well prior to the murder, they spent the entire evening in each other's company before showering together and retiring to bed. There was also evidence that Mr.

Usereau received three calls on his cellular telephone that were transferred from his pager between 9:57pm and 10:00pm on the evening of March 20, the details of which he could not remember. He testified that he realized on the morning of March 21 that he had lost his cell phone the previous evening. [ 23 ] The jury rejected Mr. Usereau's defences and returned with verdicts of guilty on both counts as charged. III GROUNDS OF APPEAL [ 24 ] Mr. Usereau has advanced five grounds of appeal that I believe can be conveniently restated in the following sequence:

(1) The trial judge erred in admitting the evidence of Mr. Usereau's DNA, which was obtained without reasonable grounds and thus contrary to sections 7 and 8 of the Canadian Charter ;

(2) The trial judge erred in preventing Mr. Usereau to lead evidence of the suicide of Det. Sgt. Matteau for reasons related to the police investigation, and that he had received information from a third party that a person other than Mr. Usereau had admitted having committed the murder;

(3) The verdicts are uncertain in light of: (

i) the seven days it took the jury to deliberate; (ii) the unfair comments of the Crown attorney during the cross-examination of Mr. Usereau and Ms Grenier; (iii) his unfair comments during oral argument relating to the credibility of defence witnesses, the delay in the disclosure of Mr. Usereau's alibi as well as his lack of co-operation during the police investigation; and, (iv) the trial judge's instructions and earlier adjudication of an objection concerning his failure to have had the hood found at the scene of the crime subjected to a counter-expertise;

(4) The verdicts were unreasonable given that two eyewitnesses excluded Mr. Usereau as the assailant. [ 25 ] Insofar as the first ground of appeal is concerned, the Crown argues that the trial judge correctly decided to admit the DNA evidence, but that if this Court concludes that Mr. Usereau's rights under sections 7 or 8 of the Canadian Charter were infringed, the evidence was nevertheless admissible pursuant to subsection 24(2) of the Canadian Charter . [ 26 ] With respect to the fourth aspect of the third ground of appeal, the Crown recognized in its factum that it was potentially well founded.

During oral argument, the Crown did not press its primary submission that no error had been committed. Pursuant to

section 69.7 of the Rules of Practice of the Court of Appeal of Quebec in Criminal Matters , [3] it therefore invited the Court to apply the curative provision of subparagraph 686(1)( b )(iii) Cr. C. in the event the Court concluded that the trial judge did indeed err in the manner Mr. Usereau alleged. IV ANALYSIS AND DISCUSION [ 27 ] I will examine each of the grounds of appeal in sequence, and then consider, if necessary, the application of subparagraph 686(1)( b )(iii) Cr. C.

(1) The trial judge erred in admitting the evidence of Mr. Usereau's DNA, which was obtained unreasonably and thus contrary to sections 7 and 8 of the Canadian Charter . [ 28 ] At the trial before Cohen, J. that eventually resulted in a mistrial, Mr. Usereau presented a written motion to exclude what was described as the warrantless seizure of the glass and straw at the restaurant.

Cohen, J. rendered a thorough written judgment dismissing the motion. [4] Given its quality, the trial judge was content to adopt it when the matter was argued anew before him. [ 29 ] The importance of this judgment to the trial cannot be underestimated. Had it been granted, the Crown's case against Mr. Usereau would have received a potentially fatal blow. The inevitable effect would have been to exclude the DNA evidence of the

match between the profile on the hood and the glass as well as the further match of the profile from the blood sample, and the DNA evidence relating to the pistol found near the scene of the crime. The Crown thus would have been left with the evidence of the various eyewitnesses, which was far from uniform, and its theory concerning Mr. Usereau's motive for the murder. Whether in such circumstances it would have been indicated for Mr. Usereau to testify and call other witnesses on his behalf is at best uncertain.

Indeed, the Crown conceded in its factum under the subsection 24(2) Canadian Charter analysis that the DNA evidence was essential to obtaining a conviction. [ 30 ] Mr. Usereau's basic premise before Cohen, J., before the trial judge and again in this Court, was that what he described as a "seizure" of the glass and the straw was effected with the clear purpose of circumventing the application of the regime provided for in sections 487.04 to 487.092 Cr. C. This argument is buttressed by the acknowledgment found in the notes of Det. Sgt. Matteau that the purpose of the surveillance of Mr.

Usereau was precisely to obtain possession of an object from which a DNA analysis could be obtained. It was also apparent that the Crown could not have obtained the DNA warrant from the Court of Quebec judge without the DNA evidence generated from the glass, as it would have had no reasonable grounds to allege in support of such an application under subsection 487.05(1) Cr . C . [5] [ 31 ] As for the Crown, it argued that there had been no "seizure", but rather the mere collection of objects that Mr.

Usereau had abandoned at the restaurant, for which he could have had no expectation of privacy. [ 32 ] Cohen, J. subscribed to the Crown's view. She added that the police investigators acted in good faith, and that Mr. Usereau had suffered no loss of physical integrity nor had his human dignity been impaired by the collection of the abandoned objects. She thus applied the reasoning of the majority of the Supreme Court of Canada in R. v. Stillman , [6] and concluded that the use for evidentiary purposes by the police of objects that had been abandoned by someone who was not detained was not contrary to

section 8 of the Canadian Charter . She also distinguished the cases of R. v. Dorfer [7] and R. v. Nguyen [8] on the basis that unlike Mr. Usereau, the accused in those two cases had been detained. [ 33 ] Under the subsection 24(2) Canadian Charter analysis, she concluded that: • the evidence was not conscriptive; • neither Mr.

Usereau's physical integrity nor human dignity had been infringed; • the police officers had acted in good faith and had obtained a DNA warrant to confirm the accuracy of the match derived from the glass in the restaurant and the hood at the crime scene; • although the police officers would not have been able to obtain a DNA warrant had they not taken possession of the glass and the straw, this was not a fact that required exclusion; and, • the crime of first-degree murder was the most serious in Canadian criminal law and the only evidence to link Mr.

Usereau to the hood was the DNA evidence. [ 34 ] Cohen, J. thus held that the exclusion of the evidence, and not its inclusion, would bring the administration of justice into disrepute. [ 35 ] In essence, Mr. Usereau's position in this Court is that the majority reasoning in Stillman [9] should not be followed. While conceding that the glass and straw that were obtained by the police were objects that had been abandoned at a time when he was not detained, Mr.

Usereau contends nevertheless that everyone has a permanent expectation of privacy on the informational content of his or her DNA. [ 36 ] In support of this proposition, he argues that the legislative scheme in the Criminal Code does not contemplate the decoding of someone's DNA without the consent of that person or the issuance of a DNA warrant that must allege "reasonable grounds" for belief in the existence of the criteria enumerated in

section 487.05 Cr. C. Thus, Mr. Usereau asserts that when the police obtained a DNA sample from the glass he abandoned, the police disturbed the equilibrium between the legislative scheme's interest in fighting crime with the use of DNA evidence and the individual's privacy interests. From his perspective, the consequence was to violate his right not to incriminate himself. [ 37 ] Finally, Mr.

Usereau raises the spectre that DNA information such as that the police obtained from his abandoned glass and straw could be gathered in a permanent covert bank for future use, which would be clearly at odds with Parliament's intention that contemplates the destruction of DNA information in the circumstances described in

section 487.09 Cr. C. [ 38 ] In my opinion, Mr.

Usereau's submissions concerning the legality of the means by which his DNA profile was obtained initially, while ably presented, nevertheless fail. [ 39 ] At the outset, it certainly does not belong to this Court to decline to follow the majority reasoning in Stillman , which remains good law for the purpose of the issue presently under review. [10] In that case, the majority concluded that the accused, who was ultimately charged with first-degree murder, was detained when police officers, contrary to the request of the accused's counsel, conducted the following invasive measures, as described by Cory, J.: 44 While the appellant was not subjected to a body "cavity" search, the search conducted went far beyond the typical "frisk" search which usually accompanies an arrest.

Sergeant Kennedy passed his gloved hand through the appellant’s hair to remove some hair, combed some more out, and clipped and pulled out still more. The appellant was then made to pull hair from his own pubic area. A dentist was called in to take the appellant’s teeth impressions and buccal swabs. All this was without the appellant’s consent and despite his protests. The dental procedure involved the placing of several instruments and various substances into the appellant’s mouth. As well, photographs and a video were taken of his mouth. The whole procedure took two hours.

[40] Later, the police also took possession of a tissue the accused had used with which to blow his nose that he had thrown in awastebasket while awaiting the arrival of his lawyer. [41] The Court's majority held that the taking of the hair samples, buccal swabs, dental impressions and the mucous from theabandoned tissue was effected in violation of the accused's

section 8 Charter rights, but that upon an application of subsection 24(2) ofthe Charter, only the latter would be admissible at the new trial the Court ordered.[11] In reaching the conclusion relating to theabandonment tissue, Cory, J. distinguished between a person in custody and someone who is at liberty: 62 Thus, where an accused who is not in custody discards a kleenex or cigarette butt, the police may ordinarily collect and test theseitems without any concern about consent. A different situation is presented when an accused in custody discards items containing bodilyfluids.

Obviously an accused in custody cannot prevent the authorities from taking possession of these items. Whether thecircumstances were such that the accused had abandoned the items and relinquished any privacy interest in them will have to bedetermined on the particular facts presented in each case. [Emphasis added] [42] The gathering of the glass and straw in the restaurant at which Mr. Usereau had been followed falls squarely within theparameters of this distinction, which was well described by Alan D.

Gold in The Practitioner's Criminal Code 2010:[12] A person gives up any privacy interest in voluntarily abandoned property, but an owner retains a privacy interest in stolen property whenit is subsequently recovered by the police. Individuals have a reasonable expectation of privacy that confidential medical information will not be revealed. Where the accused not incustody, discards something that offers potentially valuable DNA evidence the police may ordinarily collect and test the item withoutany concern about the accused's consent because he has abandoned the item.

When the accused is in custody on the other hand, the samestandards would be unfair to apply. Whether there has been an abandonment and elimination of any privacy interest in what has beendiscarded is to be determined on the facts of the particular case. The privacy expectation of those in custody would be effectivelyeliminated because of their inability to control their discards if any seizure of bodily samples without consent were permitted. [Emphasis added – References omitted] [43] This

interpretation has been generally followed and applied by Canadian courts, even prior to the Supreme Court's judgment inStillman. For example, in R. v. Love[13] the Alberta Court of Appeal determined that an accused's privacy rights under

section 8 of theCanadian Charter were not engaged with respect to a tissue he had discarded in a motel room from which he had checked out since thetissue had been abandoned. The DNA evidence obtained from the tissue that matched DNA evidence from blood at the scene of thecrime was thus held to be admissible. [44] More recently, the issue of abandonment was considered by the Supreme Court of Canada in R. v. Patrick,[14] a case in whichan accused claimed an infringement of

section 8 of the Canadian Charter. The police discovered drug paraphernalia in his garbage thatled to a search warrant being obtained for his dwelling. The accused was convicted of possession, production and trafficking of acontrolled substance (ecstasy) based on evidence obtained from his garbage and the subsequent search of his dwelling. A majority of theAlberta Court of Appeal dismissed the appeal, as did the Supreme Court. [45] Writing on behalf of seven of his colleagues, Binnie, J. said this on the issue of abandonment: [22] In R. v.

Dyment, (SCC), [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonableexpectation of privacy. He held that when an accused abandons something, it is "best to put it in Charter terms by saying that he [has]ceased to have a reasonable expectation of privacy with regard to it" (p. 435). [23] In R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that "[t]hepurpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure.

This purpose is not engagedin the case of property which the accused has discarded" (para. 223). (To the same effect see Cory J. for the majority at para. 62, andMajor J., concurring in part, at para. 274.) [24] This may be contrasted with the situation in R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, where a locked safe containingconfidential documents had been stolen (not discarded) and the accused had never acted in a manner inconsistent with the continuedassertion of a privacy interest in the information contained therein.

When the police, after recovering the stolen safe, decided toscrutinize the documents inside (and the accused subsequently was charged with tax offences), they infringed the s. 8 reasonablenessline. [25] Abandonment is therefore an issue of fact.

The question is whether the claimant to s. 8 protection has acted in relation to thesubject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continuedassertion of a privacy interest is unreasonable in the totality of the circumstances. [46] Applying that test, as a question of fact there can be little doubt that a reasonable and independent observer would concludethat Mr.

Usereau's continued assertion of a privacy interest in a glass and a straw after he had left a restaurant is unreasonable in thetotality of the circumstances. [47] The judgment of Cohen, J. that was adopted by the trial judge therefore represents an accurate reflection of the law.[15] Tohold otherwise would be inconsistent with existing authorities from the Supreme Court of Canada on the subject of abandonment andsection 8 of the Charter. [48] Mr.

Usereau, however, goes further and contends that the collection of DNA evidence in this manner can give rise tolegislatively unauthorized covert banks of DNA evidence over which no control can ever be exercised. This apocalyptic view is highly

speculative at best. There is no evidence that any such covert banks exist or have ever existed. Nor is there a risk that DNA profiles obtained without a warrant under the regime provided for in the Criminal Code will be permanently maintained as if they had been obtained with a warrant and their destruction not subsequently ordered. [ 49 ] This Court has already interpreted restrictively what permanent use can be made of DNA samples obtained during a police investigation pursuant to a warrant under

section 487.051 Cr. C ., as opposed to samples taken pursuant to an accused having pleaded guilty to a designated offence mentioned in

section 487.04 Cr. C. [16] The time to consider the legality of samples maintained in a covert bank will arise if and when it is established that such a bank exists, and an accused applies to exclude evidence derived from the use of his or her DNA samples in such a bank. [ 50 ] Mr. Usereau's hypothetical submission on this branch of his ground of appeal therefore fails.

(2) The trial judge erred in preventing Mr. Usereau to lead evidence of the suicide of Det. Sgt. Matteau for reasons related to the police investigation, and that he had received information from a third party that a person other than Mr. Usereau had admitted having committed the murder. [ 51 ] I will deal with each of the reasons alleged in this ground of appeal separately. (

i) The prevention of evidence of the suicide for reasons related to the police investigation. [ 52 ] The facts relating to the circumstances of the suicide emerge from a voir dire conducted at the request of Mr. Usereau's counsel. The evidence consisted of testimony from Det. Sgt. Matteau's superior officer, Richard Dupuis, statements from the deceased's wife Carole Bélanger and his brother-in-law Stéphane Bélanger, a psychiatric assessment performed by Dr. Jocelyn Aubut, as well as an investigation report prepared by Det. Sgt.

Patrice Abel of the Sûreté du Québec and testimony relating to the suicide. [ 53 ] On the Sunday afternoon prior to his scheduled testimony the following day, Det. Sgt. Matteau shot himself with his service revolver in his office at homicide headquarters in Montreal. [ 54 ] Shortly prior to taking his life, Det. Sgt. Matteau had told his commanding officer Richard Dupuis, as well as Mr. Bélanger, that he had re-written his notes of a meeting with one of the witnesses at trial, and that Mr. Usereau's trial counsel was in possession of the two distinct versions.

As a result, he feared what would happen during his cross-examination, despite the fact that he also had told his commanding officer that he did not consider what he had done to be serious. He felt, however, that he could not live with what he had done, and thus had to end his life. Both Messrs. Dupuis and Bélanger tried to persuade him otherwise, but without success. [ 55 ] In addition to what I have mentioned, Dr. Aubut's testimony [17] reveals that Det. Sgt. Matteau would have told Messrs.

Dupuis and Bélanger that the mistake he made in the re-writing of his notes of interviews of a witness did not have a bearing on the merits of the case. With respect to Dr. Aubut, here is how he concluded during his examination by Mr. Usereau's counsel with respect to the cause of the suicide: [Me Labelle] Q. Bon. En terminant, vous, d'après la lecture de votre rapport, vous ne semblez pas identifier d'autres raisons pour le passage à l'acte que notre cause, que ce dossier; est-ce que c'est exact? R. C'est-à-dire… c'est pas tout à fait exact.

Ce que je dis, c'est que ce dossier-là est le dossier, que je dirais, qui a fait déborder le vase. Mais, comme je l'expliquais dans le rapport, ce monsieur-là, je pense, sentait qu'il était plus ou moins à sa place, c'était pas dit comme ça, c'était pas exprimé comme ça, mais il se comparait souvent aux autres. C'est un monsieur qui était très obsessionnel, qui est très méticuleux, qui fallait que tout soit contrôlé, beaucoup de notes.

Donc, moi, je le mets dans une dimension beaucoup plus large, c'est-à-dire qu'on a là quelqu'un qui est obsessionnel d'une manière excessive et qui se sent débordé par la tâche en général. Il se sent débordé dans ses compétences sans qu'il y ait nécessairement rien d'objectif par rapport à ses compétences comme telles. Mais, lui, c'est un homme exigeant, la perception qu'il a de lui-même, c'est qu'il n'est pas à la hauteur.

Il se retrouve dans un procès qui est hautement médiatisé, c'est un monsieur qui est pas habile sur le plan verbal qui doit venir témoigner, c'est pas simple témoigner – j'en sais quelque chose – et vous le savez et les témoins le savent aussi, donc je le vois plus dans cette lignée-là. Mais, si vous me demandez si je vois d'autres facteurs circonstanciels autres que la combinaison entre une cause difficile, un monsieur qui est pas à sa place avec le style de personnalité qu'il a, non, moi, je vois ça dans cette continuité-là. Q. C'est relié à son travail, disons. R. C'est relié à son travail. Q.

Et à sa personnalité. R. C'est relié à sa personnalité et c'est le – vous excuserez l'anglicisme – mais c'est le job fit , c'est-à-dire que c'est un monsieur qui avait des compétences, qui avait des capacités, nul doute, mais les exigences du boss, je pense, venaient le solliciter beaucoup, l'insécurisaient beaucoup. Et je pense que c'est cette combinaison de facteurs-là qui a fait que ce monsieur-là s'est suicidé. [Transcribed as written] [ 56 ] Mr. Usereau's counsel sought to make proof before the jury of the date, time and place of the suicide, as well as the statements made by Det. Sgt. Matteau to Messrs.

Dupuis and Bélanger. The theory was that Det. Sgt. Matteau would not have committed suicide for simply having re-done his notes of an interview with a witness, and that there must have been a much more serious reason. Therefore, in the context of his defence of alibi, Mr. Usereau sought to be able to have the jury infer that Det. Sgt. Matteau had botched the

investigation and that he could not live with the fact that the real murderer was still at large. [ 57 ] The Crown opposed the introduction of this evidence before the jury on several fronts. [ 58 ] First, it argued that it would be a matter of pure speculation to suggest an inference could be drawn that Det. Sgt. Matteau took his life because he thought the wrong person had been accused, and that allowing such an argument world distract the jury from its assigned task of deciding the innocence or guilt of the accused. Moreover, the investigative report from the Sûreté du Québec had not revealed that Det. Sgt.

Matteau had committed a serious fault in his investigation, [18] such as having hidden or destroyed any evidence relating to Mr. Usereau's alibi. The evidence at the voir dire showed that he simply could not look himself in the mirror for having prepared different sets of notes for an interview with a witness that had been disclosed to the defence. [ 59 ] In dismissing Mr.

Usereau's application, the trial judge concluded that even looking at the situation in the most favourable light to the accused, there was no concrete evidence that could properly permit the kind of inference to be drawn that he sought permission to argue to the jury. Although it was not essential to his decision, the trial judge identified Sylvie Panet-Raymond as the person he thought to be the most probable witness who would have been the subject of Det. Sgt. Matteau's change of notes. She was one of several Crown witnesses as to the events that transpired on the evening when Mr. Melkonian was murdered.

If the trial judge was correct in this conclusion, and counsel for Mr. Usereau does not argue otherwise in appeal, then indeed what Det. Sgt.

Matteau did had no absolutely no bearing on the outcome of the trial. [ 60 ] Certainly, the suicide of the chief police investigator on the day prior to his scheduled testimony was alarming, and might give rise to a reasonable inference that there had to be something more to it than a fear of cross-examination because of inconsistent notes of a meeting with a witness. [ 61 ] It suffices to say, however, that the trial judge carefully analyzed the evidence before him on the voir dire, and concluded correctly that it would have been nothing more than pure speculation to allow Mr.

Usereau to impeach the police investigation in the manner and for the purpose he proposed. In such circumstances, without an adequate factual underpinning, it would have been inappropriate to allow a defence argument asserting the inadequacy of the police investigation to be made to the jury. [ 62 ] The trial in this case was that of Mr. Usereau on charges of first-degree murder and attempted murder, and not of Det. Sgt. Matteau for ethical lapses or inaccurate note-taking. The defence was in possession of the contradictory notes, and apart from being deprived of the possibility of embarrassing Det. Sgt.

Matteau by confronting him with the discrepancies, there is nothing else of relevance arising out of his suicide that would assist the jury in arriving at a verdict. Moreover, there is no plausible reason to believe that these discrepancies had any bearing on the actual testimony of the witness in question before the jury, whomever that witness may have been, whether Ms Panet-Raymond or someone else. (ii) The information Det. Sgt. Matteau had from a third party that someone other than Mr.

Usereau had admitted having committed the murder. [ 63 ] An unidentified but apparently uncoded source told his controller that an individual named Jean-Nicolas Lafontaine admitted to him that he committed the offences for which Mr. Usereau was charged. The information was consigned in a note, parts of which were censored to protect the identity of the source, which was disclosed to the defence. The note was transmitted to Det. Sgt.

Matteau on September 10, 2002 at 3:30pm. [ 64 ] The note, as censored, reads as follows: Un individu qui désire garder l'anonymat m'informe que Jean-Nicolas Lafontaine, [passage caviardé] membre des Rudy Crew, possédant un Dodge Ram bleu 2002 et un Grand Prix 98 Gold est impliqué dans le meurtre de Jean-Jacques Melkonian. Celui-ci a été tué (car il aurait empêché des gars [passage caviardé]) de vendre de la drogue [passage caviardé]. Jean-Nicolas Lafontaine [passage caviardé] ne l'aurait pas pris. Jean-Jacques a mis des gens a la porte du Red Light à Laval, au MP3 et au millénium, ainsi qu'au Stade Olympique.

Qu'il dit que Jean-Nicolas Fontaine a dit qu'il l'a tué [passage caviardé] qu'il décrit l'individu 172 cm avec une bedaine agé de 24 ans et les cheveux bruns. [Transcribed as written] [ 65 ] Counsel for Mr. Usereau sought to make proof of the content of the note. [ 66 ] As a result of the information contained in the note, Det. Sgt. Matteau asked a colleague on loan from the R.C.M.P., Sgt. Luc Vincent, to question Mr. Lafontaine. This questioning, such as it was, took place on September 12, 2002, after the DNA results were known that tied Mr.

Usereau to the commission of the offences, but before his arrest on September 25, 2002. [ 67 ] When Sgt. Vincent was being cross-examined by defence counsel, [19] Crown counsel objected to the following question to him: Q. Le douze (12) septembre deux mille deux (2002) … R. Oui, Votre Honneur. Q. … est-ce qu'il est exact de dire que monsieur Matteau vous a demandé d'aller rencontrer Jean-Nicholas Lafontaine? [Transcribed as written] [ 68 ] There were three reasons that underlay the Crown's objection. Knowing where defence counsel was headed with this line of

inquiry, they were: (1) double hearsay; (2) no evidence of a relationship between Mr. Lafontaine and Mr. Melkonian; (3) irrelevance. [ 69 ] Following a voir dire, the trial judge did not allow Sgt. Vincent to be cross-examined on the reason why he questioned Mr. Lafontaine, with the result that the jury was unaware that the police had information that the latter was in fact the author of Mr. Melkonian's murder. [ 70 ] In his judgment disposing of the objection, the trial judge maintained it on the basis that double hearsay was involved in relating what Mr.

Lafontaine would have told a source who in turn would have told his controller about a supposed admission. Sgt. Vincent was therefore not the proper witness to be questioned relating to Mr. Lafontaine's supposed admission. The trial judge nevertheless allowed the defence to make proof of the content of the note, whether by the source of the information, the source's controller or the author of the note.

In the written transcript of his judgment that was rendered orally, he said this: [14] Il est important de souligner qu'il sera toujours loisible à la défense de mettre en preuve cet élément pertinent lors de la présentation de sa défense qu'elle a déjà annoncée au jury. [15] L'individu en question, ''la source'' et le policier rédacteur de la note informative pourront être appelés à témoigner si la défense le juge approprié. [16] Il s'agit d'une question importante puisque cet individu aurait prétendu être le meurtrier de Jean-Jacques Melkonian. Ce sera à la défense de faire ses choix.

Elle a toute l'information nécessaire à cette fin. [17] Le sergent Vincent n'est pas le témoin approprié pour mettre en preuve un fait dont rien le relie directement à la preuve. [18] La divulgation de l'identité de cette ''source'', si cela s'avérait nécessaire, pourrait être considérée à la lumière du contexte globale de la preuve, y compris le fait que le témoignage de cette ''source'' pourrait servir à innocenter l'accusé. [20] [ 71 ] The cross-examination of Sgt. Vincent nevertheless continued. He testified only that he had gone to Mr.

Lafontaine's residence, met him at the door, but that when he informed him that he was there to question him about the murder of Mr. Melkonian, he was invited to leave, which he did. Sgt. Vincent also described Mr. Lafontaine's physical characteristics. He further testified that the day after his brief encounter with Mr.

Lafontaine, he ascertained that the latter was a member of what the transcript describes as the ''Rodney Crew'', [21] which he said was a training ground for the Hells Angels. [ 72 ] As events transpired, no further evidence was placed before the jury concerning whatever police investigation may have followed as it related to Mr. Lafontaine, and the defence did not take up the trial judge on his authorization to make evidence of Mr. Lafontaine's admission by a proper witness. [ 73 ] In this Court, Mr.

Usereau argues that the trial judge misunderstood the purpose of what he was trying to establish by questions to Sgt. Vincent. It was not to prove that Mr. Lafontaine was the murderer, but simply that the police had actually investigated serious allegations that someone else had committed the crime. [ 74 ] Doing so, it is contended, would have assisted the jury in assessing whether there was a reasonable doubt as to the identity of the assailant despite the DNA evidence linking Mr. Usereau to the commission of the crime.

In that context, it was unfair to require the defence to make proof of the investigation by calling as witnesses those whom the trial judge authorized the defence to call. [ 75 ] In my opinion, the trial judge correctly disposed of the objection. Sgt. Vincent could only testify to what he had done, and by whom he had been asked to do it. That information was before the jury through his testimony.

Going beyond that to delve into the mechanics of the police investigation, to possibly produce a note he did not author and to speak to the details of the information in the note, were not subjects about which he could testify. [22] Police officers can testify to the steps taken during their investigation, including whether persons other than the accused were investigated, but they cannot engage in speculation, nor answer questions with what would be inadmissible hearsay.

The parameters of the defence use of investigative hearsay when it alleges inadequate or defective investigation remains to be determined. [23] [ 76 ] I would reject this ground of appeal.

(3) The verdicts are uncertain in light of: (

i) the seven days it took the jury to deliberate; (ii) the unfair comments of the Crown attorney during the cross-examination of Mr. Usereau and Ms Grenier; (iii) his unfair comments during oral argument relating to the credibility of defence witnesses, the delay in the disclosure of Mr. Usereau's alibi as well as his lack of co-operation during the police investigation; and, (iv) the trial judge's instructions and earlier adjudication of an objection concerning his failure to have had the hood found at the scene of the crime subjected to a counter-expertise. [ 77 ] As this ground of appeal asserts several bases on which the Court should intervene, I will treat them separately. (

i) The duration of the jury deliberations [ 78 ] In my opinion, no adverse inference can be drawn in this case from the fact that the jury deliberated for seven days before returning with a verdict of guilty of first-degree murder. On the contrary, the time the jury took to consider the entirety of the evidence in the light of the trial judge's instructions demonstrates a commendable attention to the performance of their duties. [ 79 ] The case was not a simple one; although the only live issue was to determine beyond a reasonable doubt whether Mr.

Usereau was the person who committed the offences set out in the two counts of the indictment. The jury was confronted with having to assess eyewitness evidence that was not uniform, the reliability of DNA evidence that placed Mr. Usereau at the scene of the crime, Mr. Usereau's explanation as to his loss of the winter coat from which his DNA profile was obtained, as well as the testimony of Mr. Usereau and his then wife as to the existence of an alibi.

[ 80 ] In such circumstances, it is hardly surprising that the jury took as long as it did to reach a verdict. The seven-day delay complained of is no indice that the jury verdict is unsafe for that reason. I would therefore reject this contention. (ii) The unfair comments of the Crown attorney during the cross-examination of Mr. Usereau and Ms Grenier. [ 81 ] This aspect of the ground of appeal relates to the Crown's attempt during cross-examination to diminish the credibility of Mr. Usereau and Ms Grenier, which Crown counsel then argued in his oral submissions to the jury.

I deal with the issue of unfair comments during oral argument in the next sub-heading beginning at paragraph [106]. [ 82 ] It will be remembered that Mr. Melkonian was shot near midnight on March 20, 2001, and that Mr. Usereau was arrested over a year and a half later on September 25, 2002. In paragraphs [17] to [20] of these reasons, I have explained why there was such a delay in effecting an arrest. [ 83 ] After his arrest, Mr.

Usereau appeared before a judge of the Superior Court in December of 2002 at a hearing to determine whether he should be granted judicial interim release. [24] Although the Court was not furnished with a transcript of that hearing, it is not disputed that Mr. Usereau and Ms Grenier (who was present at the hearing) were not called to testify as to the existence of an alibi. The subject was raised for the first time several months after Mr.

Usereau's arrest, at his preliminary inquiry, when Ms Grenier testified that she and her husband spent the evening of March 20, 2001 together. [25] [ 84 ] At trial, she was asked during her examination in chief by Mr. Usereau's counsel to explain why she had not collaborated with police investigators after he was arrested. She testified that after his arrest, a lawyer who was replacing Mr. Usereau's personal lawyer contacted her. That lawyer told her she had the right not to participate in the police inquiry. Mr.

Usereau had also told her that she would eventually be called to testify and that his lawyer would contact her when the time came. That explains why on the first occasion she testified – at Mr. Usereau's preliminary inquiry – she disclosed the existence of the alibi. [ 85 ] When Mr. Usereau testified in chief at trial, he said that prior to his arrest, homicide investigators had wanted to speak to Mr. Zakher, the owner of Excel. He thus thought that Mr. Zakher was a suspect in Mr. Melkonian's murder. Since Mr.

Zakher's counsel had recommended that neither of them speak to police investigators, he did not do so. [ 86 ] Mr. Usereau was not examined in chief on the subject of his alibi, although he was cross-examined on it in the context of his lack of collaboration with the police investigation. Part of that cross-examination recalled to Mr. Usereau that he had been a policeman, and that it was difficult to understand why a former policeman would choose not to assist a homicide investigation. [ 87 ] In this Court, Mr.

Usereau argues that the relentless attack of the Crown that his failure to disclose his alibi at the earliest opportunity means it is fabricated constitutes an impermissible assault on his right to silence and the presumption of innocence. He also argues that it was inappropriate to drag Ms Grenier into the picture when as a third party she clearly had the right not to co-operate with the police, especially since in so doing she was following the advice of Mr. Usereau's counsel at the time. [ 88 ] Moreover, Mr.

Usereau contends that the trial judge erred in instructing the jury that it could reject the defence of alibi if it considered that it had not been disclosed sufficiently early, since as a matter of fact the disclosure took place long before the trial and thus allowed police investigators adequate time to investigate it. Such an instruction, according to Mr. Usereau, validated the Crown's theory of fabrication in the minds of the jurors.

Instead, it is suggested that the trial judge should have instructed the jurors that in the circumstances of this case, the timing of the disclosure was irrelevant and had no probative value in the assessment of its existence. [ 89 ] Mr. Usereau also complains of the trial judge's refusal to issue a specific instruction that no one is obliged to collaborate in a police investigation, although he acknowledges that the trial judge correctly advised the jury that an accused's guilt cannot be inferred from the exercise of the right to silence.

Nevertheless, he contends that the trial judge erred in instructing the jury that this evidence could be used in assessing credibility. [ 90 ] As for the Crown, it points out that the issues of the timing of the disclosure of the alibi and the lack of collaboration with the police first emerged during Ms Grenier's examination in chief by Mr. Usereau's counsel, and that similarly, Mr. Usereau explained during his examination in chief why he had not collaborated with the police. Having thus chosen to do so, the Crown argues that both Ms Grenier and Mr.

Usereau exposed themselves to extensive cross-examination with a view to undermining the credibility of their testimony. [ 91 ] The Crown takes essentially the same position with respect to the jury instruction that Mr. Usereau considers inappropriate.

The defence having itself introduced the subject of the timing of the alibi, the Crown says the trial judge correctly instructed the jury that it could consider the issue of timing in order to assess the probative value of the testimony related to the alibi. [ 92 ] In his jury instructions, the trial judge explained the respective positions of the parties on the issue of alibi in this manner: L'alibi, selon la Couronne, a été annoncé tardivement, plus de 15 mois après l'arrestation de l'accusé et non pas à la première occasion raisonnable dans les circonstances. Position de la Couronne.

Cet alibi pouvait facilement être fabriqué. Il est le résultat du témoignage de l'accusé et de sa femme, deux témoins qui ont un intérêt évident quant à l'issue du procès. Ces témoins ne sont pas fiables et le témoin France Grenier a été contredite sur des aspects importants avec son témoignage à l'enquête préliminaire. L'alibi ne résiste pas l'analyse qui en est faite en regard de toute la preuve. Position de la Couronne. Résumé. Position de la Défense : Résumé toujours. Selon la Défense, Michel Usereau n'a pas commis le meurtre de Jean-Jacques Melkonian, ni n’a tenté de causer la mort de Stéphanie Fragman.

Au moment du meurtre, il était avec sa conjointe de l'époque, France Grenier. Cette dernière a rendu un témoignage sans faille, répondant sans réticence et sans hésitation à toutes les questions. Le seul reproche qu'on peut lui faire, quant au délai qu'elle a mis à se manifester, elle est explicable par les conseils juridiques qu'elle avait reçus. D'ailleurs, se précipiter pour rencontrer les policiers n'aurait rien changé, puisque ces derniers n'ont rien fait après son témoignage sous

serment rendu il y a plus de 18 mois. Monsieur Usereau, selon la Défense, a témoigné de façon franche et honnête, sans faux-fuyants sur ses allés et venues le soir du meurtre. […] [Transcribed as written] [ 93 ] Before addressing the jurors on the substance of the defence of alibi, the trial judge took the trouble to explain the nature of a hearing for judicial interim release in the following manner: Vous avez entendu des questions et écouté des arguments relatifs à des décisions sur une demande de remise en liberté, cautionnement. Vous avez entendu ça. Présenté par l'accusé.

Sachez que les critères de remise en liberté ne sont pas les mêmes que ceux qu'un tribunal doit acquitter pour juger de la culpabilité ou non d'un accusé. Ce n'est pas le même genre d'audition, ce n'est pas les mêmes objectifs, ce n'est pas le même but. De plus, la preuve admissible lors d'une audition sur une demande de remise en liberté n'est pas la même. Même si le droit permet à l'accusé, s'il désire de le faire, de parler des faits de la cause. C'est possible, l'accusé pourrait le faire, mais habituellement, de façon générale, ce n'est pas comme ça que ça procède.

De façon générale, les faits de la cause ne sont pas lus devant un Juge lors de la requête en caution, en remise ne liberté, mais ça peut se faire. Le droit permet de le faire. Je voulais vous aviser de ça.

Il peut y avoir toutes sortes de raisons stratégiques ou autres pour présenter une preuve ou pour décider de ne la pas présenter à ce stade de la procédure, je parle de la remise en liberté provisoire, du cautionnement. […] [Transcribed as written] [ 94 ] Here is what the trial judge instructed the jurors with respect to the alibi: […] Enfin, la Cour Suprême nous enseigne qu'on ne peut d'aucune manière tenir compte du silence de l'accusé pour en inférer sa culpabilité. Le fondement de cette règle est simple.

Dans notre système de droit, toute personne et non seulement un accusé, toute personne et non seulement un accusé a droit de garder le silence quand elle est interrogée par la police. On ne saurait donc lui reprocher l'exercice de ses droits. L'accusé ou toute personne. En l'espèce, la Défense s'est adressée à vous au début du procès. Elle vous a notamment informé de son intention de présenter une défense d'alibi. Vous vous en souvenez, là, au tout début. La règle que l'accusé n'est jamais obligé de donner la nature de sa défense, sauf une exception, celle de l'alibi. J'arrive à l'alibi, on va y arriver.

Le droit oblige un accusé à communiquer à la Couronne suffisamment tôt, c'est ça qui est le droit, suffisamment tôt, vous avez entendu à la première opportunité quelque chose comme ça, là, le droit dit, suffisamment tôt et avec suffisamment de précisions. Les deux critères de la Loi : Suffisamment tôt et avec suffisamment de précisions. Son alibi, afin de permettre aux autorités concernées de la vérifier. C'est pour ça que ça existe.

Suffisamment tôt, avec suffisamment de précisions puis les autorités policières, les autorités de la Couronne, ces autorités-là peuvent vérifier l'alibi, voir s'il tient ou s'il ne tient pas, et caetera , des choses comme ça. Même si on vous a invités à le faire, vous ne pouvez pas rejeter la défense d'alibi présentée par l'accusé du seul fait qu'il n'a pas été divulgué avant l'enquête préliminaire. Vous ne sauriez encore moins vous servir de ce fait pour conclure à la culpabilité de l'accusé. Je répète.

Même si on vous a invité à le faire, vous ne pouvez pas rejeter la défense d'alibi présentée par l'accusé du seul fait qu'elle n'a pas été divulguée avant l'enquête préliminaire. Vous ne sauriez encore moins vous servir de ce fait pour conclure à la culpabilité de l'accusé. Par contre, la preuve que vous analyserez doit être examinée en tenant compte notamment des raisons données par France Grenier, qui n'a divulgué qu'elle était avec son mari le soir du meurtre, qu'à l'enquête préliminaire.

Vous devez également tenir compte de la crédibilité de son témoignage et de celui de l'accusé comme vous devez tenir compte de la crédibilité de tous les témoins. Ce que je veux vous dire en définitive, sur cette question-là, puis ça a fait l'objet de bien des questions, entre nous ça a fait l'objet de bien des débats aussi, voici ce que je vous dis : Il y a une défense d'alibi, vous la croyez, vous ne la croyez pas, vous la croyez en partie, vous la rejetez en partie, c'est toute votre décision à vous.

Je ne veux tout simplement pas que vous rejetiez la défense d’alibi sur un élément, sur l'élément qu'il aurait été déclaré aux autorités que cette défense-là aurait été déclarée, n'aurait pas été déclarée à la première opportunité, tel qu'on vous a dit. La règle c'est : Suffisamment tôt et avec suffisamment de précisions. C'est à vous maintenant, moi, j'arrête là, c'est à vous maintenant de décider est-ce que ça a été déclaré suffisamment tôt et avec suffisamment de précisions.

Vous avez beaucoup de preuve sur cette question-là, beaucoup de questions qui ont été posées par la Défense et la Couronne sur la déclaration et, bon, (inaudible). On a commencé le procès en 2005, le 5 septembre 2005, puis, quand est-ce que ça a été déclaré. Analysez les preuves. Suffisamment tôt et avec suffisamment de précisions. C'est ça qui sont les deux critères. Si vous arrivez à la conclusion que ce n'est pas suffisamment tôt puis ce n'est pas avec suffisamment avec précisions, bien cette preuve-là vous décidez qu'elle n'est pas recevable pour vous autres.

Maintenant, elle est peut-être pas recevable parce que vous ne la croyez pas, elle n'est peut-être pas recevable pour d'autres raisons, je ne le sais pas. Elle est peut-être recevable aussi parce que vous la croyez en totalité ou en partie. Puis, peut-être qu'elle vous amène à un doute raisonnable dans votre esprit. Je ne le sais pas. C'est vous autres qui aurez à décider de ces choses-là.

Mais, en droit, je vous le dis tout de suite, là, avant de la rejeter pour la seule raison qu'elle a été divulguée à l'enquête préliminaire seulement puis elle n'a pas été divulguée avant ça, je vous mets en garde d'une façon sérieuse, en droit sur cet aspect-là.

Suffisamment tôt avec suffisamment de précisions pour pouvoir faire les vérifications nécessaires. [Transcribed as written – Emphasis added] [ 95 ] As far as the right to silence is concerned, here is what the trial judge said to the jury: Dans notre procès, je dois vous dire que le droit de garder le silence et de ne pas rencontrer ni parler aux policiers, exercé par certaines personnes dont l'accusé, ne peut, en aucun cas, lui être reproché, encore moins à être dans vos esprits, un fait pouvant vous amener à penser que la personne qui exerce ce droit à quelque chose à cacher ou à se reprocher.

Il faut que ça soit clair dans votre esprit. Le droit

au silence est un droit reconnu par notre Charte Canadienne des Droits et Libertés. Son exercice est tout à fait légal. Prenez enconsidération également les conseils d'avocats reçus par certains témoins. Pour être clair, la culpabilité de l'accusé ne peut s'inférer deson refus à parler aux policiers. […] La Couronne vous a souligné que dans des propos tenus [par l'appelant] le 16 août 2002, il y a de la part de Michel Usereau des proposqui selon elle sont une incitation auprès de d'autres personnes de ne pas répondre à l'invitation de rencontrer… pardon, à l'invitation derencontres avec les enquêteurs.

Ce sera à vous de considérer cette preuve et de l’apprécier avec l’ensemble de la preuve particulièrementavec la preuve que les avocats auraient rappelé à différentes autres personnes le droit qu'elles ont de refuser de rencontrer et de répondreaux questions des policiers. Il faut vous rappeler également le témoignage de l'accusé à ce sujet.

Donc, on ne peut, parce qu'un accusé oud'autres personnes refusent de rencontrer et de parler aux policiers, on ne peut pas déduire de ça, on ne peut pas le reprocherpremièrement, c'est un droit constitutionnel, on ne peut pas déduire de ça la culpabilité de qui que ce soit. [Transcribed as written – Emphasis added] [96] Keeping in mind, as the trial judge emphasized, that the purpose of early disclosure of an alibi is to allow for its verificationprior to trial to avoid the Crown being taken by surprise, I do not see how it can be successfully contended that the delay of disclosure inthis case caused the slightest prejudice to the Crown.

In fact, the Crown does not claim to have been so prejudiced. Nevertheless, it wasproper for the Crown to attack the defence on its merits, by using the delay between Mr. Usereau's arrest and his preliminary inquirywhen the alibi was first disclosed as a basis to attack his credibility and that of Ms Grenier. [97] This may be seen from the majority reasons of Iacobucci, J. in R. v. Cleghorn: 3. At issue in this appeal is whether the alibi defence raised by the accused at trial was properly disclosed to the Crown.

Asoutlined by my colleague, proper disclosure of an alibi has two components: adequacy and timeliness. This principle was recentlyreiterated in R. v. Letourneau (1994), (BC CA), 87 C.C.C. (3d) 481 (B.C.C.A.), where Cumming J.A. wrote for aunanimous court at p. 532: It is settled law that disclosure of a defence of alibi should meet two requirements: (

a) it should be given in sufficient time to permit the authorities to investigate: see R. v. Mahoney, supra, at p. 387, and R. v. Dunbar andLogan (1982), (ON CA), 68 C.C.C. (2d) 13 at pp. 62-3 ... (Ont. C.A.); (

b) it should be given with sufficient particularity to enable the authorities to meaningfully investigate: see R. v. Ford (1993), (BC CA), 78 C.C.C. (3d) 481 at pp. 504-5 ... (B.C.C.A.). Failure to give notice of alibi does not vitiate the defence, although it may result in a lessening of the weight that the trier of fact willaccord it…. 4 As stated above, the consequence of a failure to disclose properly an alibi is that the trier of fact may draw an adverse inferencewhen weighing the alibi evidence heard at trial (Russell v. The King (1936), (SCC), 67 C.C.C. 28 (S.C.C.), at p. 32).

However, improper disclosure can only weaken alibi evidence; it cannot exclude the alibi. My colleague correctly notes that the rulegoverning disclosure of an alibi is a rule of expediency intended to guard against surprise alibis fabricated in the witness box which theprosecution is almost powerless to challenge. Again as noted by my colleague, the development of the rule since its formulation inRussell shows that the rule has been adapted to conform to Charter norms. As such, disclosure is proper when it allows the prosecutionand police to investigate the alibi evidence before trial.

The criteria of timeliness and adequacy are thus evaluated on the basis ofwhether a meaningful investigation could have been undertaken as a result of disclosure. The flexibility of the standard is demonstratedby the fact that neither disclosure at the earliest possible moment, nor disclosure by the accused him- or herself is required in order forthe criteria to be met. Third party disclosure is sufficient. […][26] [Emphasis in the original] [98] The general subject of delayed disclosure first arose during the examination in chief of Ms Grenier by Mr.

Usereau's trialcounsel. [99] After questioning her about the substance of the alibi, Ms Grenier explained that she had met police investigators followingMr. Usereau's arrest but had acted on legal advice she had been given that she was not obliged to respond to their inquiries. She alsotestified that she was present in Court at the hearing for Mr. Usereau's judicial interim release but, after having spoken privately toMr. Usereau's counsel, was not called to testify.

That lawyer would have told her to try to remember as many details as possible of theevening of the murder, but to speak to no one about the subject. She testified that she would not have spoken to Mr. Usereau's lawyerabout any of the details of what transpired at her residence on the evening in question. [100] There then occurred an exchange between Ms Grenier and Mr. Usereau's trial counsel relating to her testimony at thepreliminary inquiry in January of 2004 when the alibi was first revealed.

After explaining that she spoke to the trial counsel in a cubicleat the court house, the following exchange occurred: Q. O.K. Là, qu'est-ce qui s'est passé, vous avez fait quoi quand on était dans le cubicule? R. Bien là, c'est ça, vous m'avez demandé de relater les faits. Alors je vous ai élaboré grosso modo – grosso modo ce qu'il en était decette soirée-là. Q. OK.

R. Jusque là, toutes les questions que je me posais et que vous aviez posées, c'était toujours cette soirée-là comme telle. Q. Que s'est-il passé ensuite? R. Ensuite, bien, j'ai témoigné. Q. Devant un juge? R. Devant le juge. Q. Qui était l'avocat de la Couronne? R. Euh, Maître Louis Bouthillier. Q. L'avocat qui est là? R. Oui. Q. Est-ce qu'il vous a interrogée? R.

Il m'a interrogée. [Transcribed as written] [ 101 ] It is therefore hardly surprising that Crown counsel cross-examined Ms Grenier extensively on these aspects of her examination in chief with a view to discrediting her testimony that she did not tell any of Mr. Usereau's various lawyers about the existence of the alibi until literally minutes before she testified at the preliminary inquiry. It is also worthy of note that none of the Crown counsel's questions during cross-examination on this subject drew an objection from Mr.

Usereau's experienced trial counsel. [ 102 ] With respect to the cross-examination of Mr. Usereau on the subject of the delayed disclosure of the alibi, it was, after all, his alibi. The timeliness of its disclosure was therefore an appropriate subject to explore in light of the probative value to be attributed to it by the triers of fact. The trial judge therefore did not err in the instructions he gave the jurors on this subject. [ 103 ] The questions during cross-examination of Mr. Usereau relating to his lack of collaboration during the police investigation should be viewed somewhat differently.

The only basis for this subject being explored at all was the Crown's view that as a former policeman, it was inconceivable that Mr. Usereau would decline to meet with police officers investigating a homicide. Here again, the justification for this line of questioning was to undermine Mr. Usereau's credibility as it related to his alibi. [ 104 ] Mr.

Usereau's submission that his right to remain silent both prior to and after his arrest is unaffected by his status as a former policeman is entirely correct. [27] The exercise of such rights belongs to all persons in the same manner, irrespective of their current or prior occupations. [ 105 ] That being said, no objections were taken to the questions. Any damage caused by the questions and the answers given by Mr. Usereau were more than adequately covered by the trial judge in his instructions, the relevant extract of which I have set out at paragraph [94].

Those instructions make it clear that the jury was not to take any account of the Crown's contention in that regard. (iii) The unfair comments of Crown counsel during oral argument relating to the redibility of defence witnesses, the delay in the disclosure of Mr.

Usereau's alibi and lack of co-operation during the police investigation. [ 106 ] An assessment of whether Crown counsel's address to the jury is so inflammatory and unfair as to affect the fairness of the trial can only be undertaken by evaluating the entirety of the address and not simply isolated extracts from that address. [28] It is also common ground that the standard expected of Crown counsel in an address to a jury in a criminal case remains that enunciated by the Supreme Court of Canada in Boucher v.

The Queen . [29] In the course of his reasons, Taschereau, J. said this: L'appelant prétend enfin que la procureur de la Couronne, au cours de son adresse au jury, a fait usage d'un langage enflammé en faisant appel à leurs passions, avec le résultat qu'ils auraient été entraînés à ne pas juger cette cause comme des hommes raisonnables. La situation qu'occupe l'avocat de la Couronne n'est pas celle de l'avocat en matière civile. Ses fonctions sont quasi-judiciaires. Il ne doit pas tant chercher à obtenir un verdict de culpabilité qu'à assister le juge et le jury pour que la justice la plus complète soit rendue.

La modération et l'impartialité doivent toujours être les caractéristiques de sa conduite devant le tribunal. Il aura en effet honnêtement rempli son devoir et sera à l'épreuve de tout reproche si, mettant de côté tout appel aux passions, d'une façon digne qui convient à son rôle, il expose la preuve au jury sans aller au delà de ce qu'elle a révélé. [30] [ 107 ] As for his part, Rand, J. added: It cannot be over-emphasized 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. [31] [ 108 ] Fish, J.A., as he then was, characterized the role of the Court in assessing these well known principles as follows:

[…] Their application, of course, is a function of the nature and number of comments made in each case, of the specific language used and of the over-all tone of counsel's address. The likely effect of any corrective action taken by the trial judge must also be considered.

Ultimately, the conclusive test is whether the objectionable comments are seen to have deprived the accused of his right to a fair hearing on the evidence presented at trial. [32] [Emphasis added] [ 109 ] In Charest , the Court quashed a conviction and ordered a new trial since "Crown counsel's address violated most if not all of the guiding principles laid down by the authorities." [33] Fish, J.A. concluded that the address of Crown counsel in that case, taken as a whole, "was more and not less objectionable" for the reasons he explained, including the fact that "Crown counsel used his considerable oratorical skill to inflame the jury's passions and to appeal to their emotions". [34] [ 110 ] The Court also quashed a conviction because of inflammatory language and the assertion of personal convictions by Crown counsel in Kaufman v.

R . [35] It suffices to read the reasons of Fish, J.A. in that case to see the gross extent to which Crown counsel departed from the standard expected of him. In effect, the Crown's trial counsel became involved in what amounted to a personal vendetta against the accused, both during his cross-examination of the accused and during oral argument.

The Crown conceded the inappropriate conduct of its trial counsel during the hearing of the appeal, but was unsuccessful in its quest to preserve the verdict. [ 111 ] In this case, the impugned portions of the Crown counsel's address relate essentially to his efforts to buttress the credibility of the Crown's witnesses and to undermine the credibility of those called on behalf of the defence, including Mr. Usereau. If executed properly, that is fair game. So too is it fair game to question the air of reality of an alibi. [ 112 ] In the latter two respects, the opinion of Beauregard, J.A. in R. v.

Riopel [36] bears repetition: 65 Il est bien certain qu'un accusé est présumé innocent aussi longtemps qu'il n'est pas déclaré coupable par le jury, de sorte qu'en théorie les avocats ne doivent pas exprimer d'opinion sur l'innocence ou la culpabilité de l'accusé. Mais cela n'empêche pas les avocats de plaider et d'inviter le jury, soit à condamner l'accusé, soit à le déclarer non coupable. Il est bien certain également que la détermination de la crédibilité des témoins appartient au jury et que l'opinion des avocats à cet égard n'est pas pertinente.

Rien n'empêche cependant les avocats de plaider et d'inviter le jury à croire ou à ne pas croire tel ou tel témoin pour telle ou telle raison qui ressort des éléments de preuve. Il est évident que, ce faisant, le bon avocat utilisera des formules par lesquelles il se montrera respectueux des prérogatives du jury et que l'avocat qui osera usurper le rôle du jury pourra être déçu par le verdict. En pratique, dans le feu de l'action, il arrive qu'au lieu de simplement proposer au jury que tel ou tel témoin n'est pas crédible, l'avocat affirme la chose.

C'est une technique malhabile, mais qui n'est pas nécessairement illégale. Ce qui est illégal c'est de suggérer au jury que l'avocat qui exprime son opinion sur la crédibilité d'un témoin sait des choses que le jury ne sait pas et c'est inviter le jury à évaluer la crédibilité du témoin, non pas objectivement, mais à partir de l'autorité ou de la crédibilité de l'avocat lui-même. 66 En l'espèce, je suis d'opinion que ce ne fut pas le cas.

À chaque fois qu'un avocat a mentionné au jury que tel ou tel témoin disait ou ne disait pas la vérité, il était clair que l'avocat faisait seulement une proposition dans ce sens au jury. […] 68 L'appelant reproche singulièrement au substitut d'avoir donné son opinion personnelle quant à sa crédibilité et à celle de Pinsonneault et, partant, quant à leur culpabilité. 69 Ici encore, je suis d'avis qu'en disant au jury que les versions de Riopel et de Pinsonneault lui paraissaient invraisemblables et inventées, que l'alibi de Pinsonneault "était trop beau", que celui de l'appelant était le "plus extraordinaire qu'il avait vu", le substitut n'usurpait pas le rôle du jury, mais qu'après avoir rationnellement démontré l'invraisemblance des versions de l'appelant et de Pinsonneault, il proposait au jury de mettre ces versions de côté. [ 113 ] How then does the address of Crown counsel, taken as a whole, measure up to the expected standards? [ 114 ] In my opinion, most of the argument in the 60-page transcript of Crown counsel's address is immune from criticism.

The real issue is whether those parts of the address that Mr. Usereau now finds objectionable, [37] when looked at in the context of the entirety of the Crown's argument, are so significant that they affect the fairness of the trial so as to warrant the conviction being quashed and a new trial being ordered. [ 115 ] The first subject area criticized is the emphasis place on the neutrality of the Crown's witnesses in comparison to those of the defence.

Essentially, Crown counsel remarked that, in general, the Crown's witnesses were neutral in the sense that they had no interest in the outcome and that for the most part they did not know each other or the accused. Their lack of interest was reflected in the fact that they did not remain to attend the trial once they had testified. [ 116 ] Crown counsel then argued that the same could not be said for the witnesses who testified on behalf of the defence. He questioned whether Mr.

Usereau had an interest in lying during his testimony in order to avoid the consequences of a conviction, and that even his former wife, Ms Grenier, had a similar interest. As for Jackie Pierre, he began with the somewhat uncouth comment that "je ne perdrai pas ma salive longtemps" in talking about his credibility since the latter and Mr. Usereau were friends, and had often spoken on the telephone during the latter's detention. [ 117 ] The harshest comments, however, were reserved for Danielle Desmarais, an expert witness in molecular biology with a doctorate in that discipline, who was called on behalf of Mr.

Usereau to challenge the Crown’s DNA evidence. Crown counsel directly attacked her integrity in the following manner: Madame Desmarais. Est-ce qu'elle a un intérêt, elle, dans la cause? Vous ne pensez pas qu'elle a un intérêt dans la cause, l'experte de la Défense, qui ne travaille que pour la Défense? Même si elle a témoigné juste deux fois dans sa vie pour une cause criminelle, ça je reviendrai là-dessus plus tard. Elle traite des dossiers pour la Défense, pour des contrats, à l'heure. Qu'est-ce qui arrive si elle dit tout le

temps la même affaire que les autres témoins, que les témoins experts du côté de la Poursuite, est-ce qu'elle va avoir des contrats pendant longtemps encore. Ce n'est pas trop bon comme marketing. [ 118 ] Later in his remarks, he compared the qualifications of the Crown's expert, Jacinthe Prévost, with those of Ms Desmarais to give evidence in this case in a manner that was argumentative but fair, especially as it related to the nature of their respective work and the length of their experience in doing so.

Further, he was justifiably critical of her for having removed a word from the initial report she had submitted at the suggestion of Mr. Usereau's counsel at the time. [ 119 ] Ms Desmarais also became implicated in the Crown's argument relating to the failure to have the hood on which Mr. Usereau's DNA profile was found subject to a counter-expertise, a subject with which I deal in greater detail under the next sub-heading beginning at paragraph [133].

The question was raised for the jury to consider why she had not performed such a counter-expertise when she had done so in one of the two other criminal cases in which she had testified. [ 120 ] Then there is the issue of the attacks on the credibility of Mr.

Usereau and Ms Grenier. [ 121 ] With respect to the issues related to the delay in disclosure of the alibi and the absence of co-operation with the police investigation, I have already examined those questions under the preceding sub-heading insofar as their cross-examination is concerned, and concluded that there is no basis for the Court to intervene for the reasons I have explained. The comments Crown counsel made during oral argument must therefore be seen in that light. [ 122 ] Much of the Crown's argument centered on the incredulity associated with neither Mr.

Usereau nor Ms Grenier disclosing the alibi to the police, since if it were true, it would be a basis not only for Mr. Usereau to be released on bail, but perhaps even to see the charges dropped. Crown counsel was certainly eloquent in making this point to the jury, asking them, at one point, what they would have done if their child, wife or husband had been arrested for murder and they knew of an alibi.

Various contradictions in Ms Grenier's testimony were also emphasized. [ 123 ] Crown counsel was certainly not gentle in his assessment of their credibility, but in my opinion he did not reach a point that exceeded the forcefulness one would expect in similar circumstances, especially since Mr. Usereau's alibi, if believed, would result in an acquittal. [ 124 ] The same cannot be said, however , for Crown counsel's approach to the hood that was found at the scene of the crime, and the fact that it was not subjected to a counter-expertise to determine if the DNA profile of anyone other than Mr. Usereau was on it.

As I have already mentioned at paragraph [117], he was particularly harsh with Ms Desmarais, implying that her testimony was bought and paid for since she would no longer receive mandates from defence attorneys if all she did was mimic what was said by the Crown's experts. [ 125 ] In my opinion this was a completely inappropriate comment that, if taken to its limit, would suggest that experts who are retained by defence counsel are never worthy of belief for that reason alone. Had the Crown ever offered Ms Desmarais a mandate? If so, had she refused it?

Had she testified that she would never accept a mandate from the Crown? The record discloses no reasons to question her integrity for having acted as an expert witness for this accused or any other accused. It is hard to imagine that a crown counsel would even think of making such a spurious argument to a trial judge hearing a criminal case alone, or that if such an argument was made, that a trial judge would pay the slightest attention to it. The fact that the case was being tried before a jury should not have made a difference. [ 126 ] The trial judge made no specific allusion to the inappropriate attack on Ms.

Desmarais' integrity during that part of his jury instructions relating to the evaluation of expert testimony. [ 127 ] Under the sub-heading that follows beginning at paragraph [133], I conclude that the trial judge erred in his treatment of a defence objection to questions on the subject of a counter-expertise, and in his jury instructions as well. It is therefore appropriate to record other extracts from Crown counsel's remarks to the jury dealing with the absence of a counter-expertise.

They are inappropriate for the same reasons that I mention later in paragraphs [143] to [146]. [ 128 ] In the context of the timing of the disclosure of the alibi, here is what Crown counsel said: Puis, deuxièmement, distance nécessaire, est-ce que légalement on peut se fier autant à son témoignage, alors que tout ce qu'elle a fait, c'est de vérifier des papiers dans le fond? Elle n'a pas fait les expériences elle-même. Vous vous souviendre

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