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Head <html><head></head><body><pre style="word-wrap: break-word; white-space: pre-wrap;">C A N A D A COURS UNIFI​ES DU QU​BEC PROVINCE DE QU​BEC CHAMBRE CRIMINELLE ET P​NALE DISTRICT DE MONTR​AL CAUSE NO.: 500-01-017372-928 ​TAPE: PROCES - SUITE PR​SENT: L'HONORABLE JUGE FRASER MARTIN, J.C.S. ET JURY NOM DES PARTIES: SA MAJEST​ LA REINE Plaignante, c. VALERY FABRIKANT Accus‚, COMPARUTIONS: Me Jean Lecours PROCUREUR DE LA PLAIGNANTE DATE DE L'AUDITION: LE 12 MARS 1993 FICHIER: 2469 P-5014 MICHEL DAIGNEAULT, S.O. TABLE DES MATIERES PAGE REPRESENTATIONS 3 WITNESS: DAVID MILLS (JUROR #6) Examined by the Court 8 WITH JURY 13 T​MOIN EXPERT: ROBERT DESJARDINS Interrog‚ par Me Lecours (VOIR-DIRE) 15 Interrog‚ par Me Lecours 17 REPRESENTATIONS 26 Interrog‚ par Me Lecours 38 Contre-interrog‚ par M. Fabrikant 72 WITHOUT JURY 85 WITH JURY 86 WITHOUT JURY 86 T​MOIN: BERNARD MARCIL Interrog‚ par la Cour 92 Contre-interrog‚ par M. Fabrikant 108 REPRESENTATIONS THE COURT : I came onto the bench alone because I have received a letter from a juror, plus another letter, ostensibly from one of the jurors' clients, which I will first of all invite you to take cognizance of, Mr. Lecours and then Mr. Fabrikant, Mr. Belleau. VALERY FABRIKANT : Well, this letter proves only one point, that there was really tampering with the jury... THE COURT : Would you hand the letter to Mr. Belleau, you've taken cognizance of the letter, sit down, I'll speak to you when I wish to hear from you. I'm dictating the rules, not you. Sit down or you'll be sat down. Okay. In sum and substance, it's a letter accompanied by another letter from one of his clients, from a juror who did not move, at least before me, for an exemption, claiming substantially economic grounds. There are however two parts of the letter which are troubling, one is the fourth paragraph on the first page, which uses the words: "I have already developed a firm conviction of Fabrikant's guilt." And the last paragraph, or an ultimate paragraph before the underlined: "Justice Martin, if I succumb to my jury duty my family will be out in the street before Fabrikant gets the punishment he deserves." First of all, Mr. Lecours, what is your position on this question? It's I who have to decide, I know what route I'm going to follow, but I would appreciate your input. Me JEAN LECOURS : Well, I was going to say you have discretion, I think you still have the power to exclude this person. From my experience, we discovered sometimes some criminal records and the Judge excused the person, it slipped through the process. But if we don't have the possibility to test, because it's easy for someone to come in the box and say, I... for me everybody is guilty... THE COURT : Well, that's the question, I... yes, I'm not about to exercise that discretion before there is a test. Me JEAN LECOURS : It's too late to verify whether it's just a reason to avoid duties. In this case I think the person might be excused because there is some bias in this letter. THE COURT : You perhaps go further than me, I was of a mind to see whether or not the juror was... how serious the juror was on that question. Mr. Fabrikant, what have you to say? VALERY FABRIKANT : Well, I request mistrial and new empanelling of jury because it looks like obvious that jury was tampered with in several ways. If anyone observed yesterday's choosing of the jury, then it was quite clear that Crown, having its enormous power of collecting information, already had information about jurors... THE COURT : Mr. Fabrikant, we are not hearing... I'm not going to countenance a motion for a mistrial. If you're making a motion for a mistrial, that's not what I asked you at the moment, I asked you in relation to... VALERY FABRIKANT : Well, if you didn't ask me to make a motion, I want to make a motion for mistrial, why do you forbid me to do so? THE COURT : Because you're out of order at the moment, I'm asking you what your position is with regard to the letter received from juror number 6. It's wonderful to debate about all sorts of things throughout the morning, but my problem at the moment is the question of juror number 6. Now, would you please address yourself to that, if you're not prepared to address yourself to that, sit down and I'll manage by myself. VALERY FABRIKANT : So when will I be able to make this motion of mistrial? If now it is not the time... THE COURT : Let me give you the short answer, now is not the time. VALERY FABRIKANT : Okay. When is the time then? THE COURT : I'm not prepared to tell you when the time is, at the moment I'm dealing with this letter, okay, so let us deal with this letter, I'm not going any further than that. Now have you anything to say with regard to this problem? VALERY FABRIKANT : Okay. I have to say, this letter indicates only that there is not just one person, just one person who came forward, but everybody else in the jury definitely was tampered with. Therefore, I think that elementary judicial dignity in this situation requires to declare a mistrial and start the jury selection again. THE COURT : Your motion for mistrial is dismissed. VALERY FABRIKANT : Well, I didn't make the motion. THE COURT : I read it as a motion, you announced it as a motion... VALERY FABRIKANT : Well, if it is a motion then let me continue my argumentation. THE COURT : If you have other argument to submit... No, I'm sorry, I wish... VALERY FABRIKANT : You cannot dismiss a motion as if it was presented, because I have more to say about it. THE COURT : Fine. Then save what you have to say for the minute and I'll reconsider what you have to say on your motion for a mistrial later on. Now would you address yourself to this question? VALERY FABRIKANT : Well, this is what I feel because if one juror came forward, there is guarantee there are others who didn't have the conscience to come forward, that's all. THE COURT : That's what you have to say? VALERY FABRIKANT : Yes. THE COURT : Mr. Belleau, have you any comments to make at all? Me BELLEAU : I agree with Mr. Lecours, My Lord, I think that the appearance of justice would demand that this candidate be... well, not a candidate, juror now, be excused. THE COURT : Fine. Well, I think I'll proceed with a short inquiry and we will see. Would you have juror number 6 brought in and taken to the witness box please, just have him step in the witness box. IN THE YEAR NINETEEN HUNDRED AND NINETY-THREE (1993), this twelfth (12th) day of the month of March, personally came and appeared: DAVID MILLS, born on October seventh (7th), nineteen hundred and forty (1940), freelance writer, confidential address; WHOM, after having been duly sworn, doth depose and say as follows: EXAMINED BY THE COURT : Q. You were here on Monday, Mr. Mills, is that right? A. Yes. Q. And you heard what I had to say when I addressed the jury panel on Monday? A. Yes, I did. Q. And you received a sheet of paper, you heard my explanation with regard to exemptions? A. Yes, I did, Your Honor. Q. Now, you correct me if I'm wrong, but if my sheet is correct, you didn't appear in order to make an exemption on Tuesday morning, is that right? A. That's correct, Your Honor, it's all explained in the letter. Did you have a chance to read it? Q. Well I had a chance to read it. But I am correct that nevertheless you didn't appear? A. I had made a... I had applied for an exemption right at the beginning. Q. Which was turned down? A. Which was turned down, I'm not even sure you saw it. Q. Well of course, I'm hardly clairvoyant. A. It was sent in by registered letter and I have received a registered letter in return denying it. Q. And the sheriff declined to grant you an exemption? A. At that time, that's correct. Q. Have you any idea the difficulty this causes at this stage? A. Your Honor, I believe that the process that we were briefed on on Monday was in fact the strategy of recruitment of jurors was changed obviously between then and Thursday because suddenly, instead of being drawn from a lot of... some four hundred and fifty (450) people minus exemptions, suddenly less than... fewer than a half of the first group were recruited and placed into the jury box instantly. Q. I said to you on Monday that if you had exemptions to ask for, ask for them on Tuesday, and you would have to be back on Thursday for jury selection, that's what you were there for yesterday, jury selection. A. I grant it. Following yesterday's session the reality of the situation... frankly I did not expect to be... I expected to be interviewed on the situation and been excluded because of bias. Q.
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