Court File and Parties
COURT FILE NO.: 15-M7871
DATE: 20180613
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
JOHN MCRAE
Respondent
Counsel:
Marie-Lise Dufort/John Ramsay, for the Applicant
Joseph Addelman/Mash Frouhar, for the Respondent
HEARD: May 16, 2018
SECTION 9(2) RULING
BEAUDOIN J. (Orally)
[1] The Prosecution brings this application pursuant to section 9 (2) the Canada Evidence Act, R.S.C., 1985, c. C-5 in order to cross-examine its own witness, Alain Chaput. The procedure to be followed in respect of this application was set up by the Saskatchewan Court of Appeal in R. v. Milgaard, (1971), 1971 CanLII 792 (SK CA), 2 C.C.C. (2d) 206 (Sask. C.A.), leave to appeal to SCC refused, 1971 CanLII 1411 (SCC), 4 C.C.C. (2d) 566, and subsequently adopted by the Supreme Court of Canada in R. v. Rouse, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588.
[2] It is conceded by the Respondent that the procedural requirements have been satisfied. Proof of the July 7, 2015 statement is not required. In the absence of the jury, I have reviewed the prior statement of Alain Chaput given to Sgt. Richard Dugal on July 7, 2015. The Respondent does not seek to cross-examine Sgt. Dugal.
[3] I have determined that there is an inconsistency between that earlier statement and the evidence given in court. Mr. Chaput now claims to have no memory of conversations between himself and John McRae at material times, and to have no memory of what was said in argument between John McRae and his son Michael. On July 7, 2015, Mr. Chaput was able to state what took place during those conversations in some detail.
[4] The only issue here is whether or not Mr. Chaput is suffering from a genuine lack of memory when he stated that he does not recall giving earlier statement even after having been provided with an opportunity to read that statement to refresh his memory. I am not satisfied that his claim of lack of memory is credible.
[5] First, I note that Mr. Chaput announced that he had memory problems prior to giving his evidence in court; in short, setting the stage for later claims of memory loss. He made similar comment to Sgt. Dugal. Nevertheless, he was able to recall a significant number of details of the events of July 7, 2015. For example, he could recall driving Michael McRae for his methadone appointment, attending at the grocery store on Innes Road to obtain a prescription; later attending at Connor’s bar at John McRae’s request; of receiving the call on his cell phone; of driving one of two trucks; he recalled what kind of beers they drank and that John McRae paid for them in cash. He recalls driving back to the apartment and could identify the precise location where the truck was parked in the parking lot. He described walking into the yard.who was there and where they were sitting. He could describe the layout of the apartment, that his room faced a blank wall outside his bedroom door. He described the position of Michael McRae’s body on the couch, where he sat and what he ate for his dinner; when, where and what he watched on TV.
[6] I was invited to read Mr. Chaput’s evidence from the preliminary inquiry. While there were some memory gaps apparent at that time and in the statement to Sgt. Dugal, the memory gaps were on insignificant details. He would first claim an inability to recall something, but with little prompting, he would go on to provide the requested information in detail.
[7] I am satisfied that, in this case, it would serve the ends of justice to permit the cross-examination of Mr. Chaput on that earlier inconsistent statement.
Mr. Justice Robert N. Beaudoin
Released: June 13, 2018
COURT FILE NO.: 15-M7871
DATE: 20180613
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JOHN MCRAE
Defendant
Section 9(2) Ruling
Beaudoin J.
Released: June 13, 2018