VOLUME II 7?LEe/tj

IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON ( BETWEEN:

HER MAJESTY THE QUEEN

- and - ALLAN J. LEGERE

VOIR DIRE held before Honourable Mr. Justice David M. Dickson

at Burton, New Brunswick, on the 24th day of April, 1991, commencing at 9:30 a.m.

APPEARANCES:

Anthony Allman, Esq., ) Graham J. Sleeth, Esq., and) for the Crown. John Walsh, Esq., )

Weldon Furlotte, Esq., and) for the Accused. Michael A. A. Ryan, Esq., )

~

VERNA PETERSON { COURT REPORTER Copyright 1991, Department of Justice, Province of New Brunswick

---- I (

(COURT RESUMES AT 9:30 a.m., APRIL 24, 1991.)

.! (ACCUSED IN DOCK.)

: THE COURT: This is a continuation of the voir dire hearing! j I i and all persons are present who should be present. ! Now, Mr. Sleeth, you had finished with the witness, 5 i1 Corporal Vesey, I believe, and the next witness was -

JI well, you have another witness. i MR. SLEETH: I do, My Lord, but before that Mr. Walsh wishe~ to address the Court on a matter, My Lord.

'0 THE COURT: All right.

MR. WALSH: My Lord, if you would permit, if I could just

address the Court very briefly, late yesterday you

had indicated a time schedule with respect to the

DNA voir dire, and I would like to point to the Court!

15 that we are complying with your order of yesterday. I

Last night I was able to contact a number of my I The one witnesses and to re-arrange sCheduling. I

problem that I have right at the present time, My

Lord, is that as I indicated previously Dr. Kidd is 20 scheduled to testify on May 6th. If he's to remain -. ;.. if he was to remain in that particular scheduling

spot it would cause the Crown problems inasmuch as

I Dr. Kidd would be in essence parachuted in in a part! i of the voir dire ahead of some of the evidence that h~

25 I would be asked to comment on. What I would ask the. -r Court's permission, if you would, if I could make thel

! following recommendation, instead of having Dr. Kidd !

in the May 6th time slot, and I haven't been able to I

get a hold of him but I have his schedule, would I bel

;J I permitted to attempt to arrange to have Dr. Kidd

testify on the 23rd and 24th of May? I understand

from Mr. Furlotte that would be agreeable to him.

,- '°" ,4.... - 2 -

With Dr. Shields, if Dr. Shields was to testify the

: I 27th of May that would allow us to in essence for

I the Crown to call its four witnesses on the DNA in

the time frame that the Court has indicated, then

we'd have the adjournment as indicated, then we woul~ 5 come back on the 23rd and the 24th for Dr. Kidd's

testimony, and then lead into the 27th with Dr.

Shields' testimony. Now, I'm hoping, if the Court

would permit me to make that inquiry of Dr. Kidd, if 1

I can re-arrange the schedule to come in on the 23rd i 10 and 24th I would ask the Court's permission to do so.i

It may be that later this morning I'll find out that!

I he can't do it and if that's the case, then I'll hav~

to stay with the May 6th deadline as ordered and makJ

arrangements accordingly. That's the request I WOUldl 15

make of the Court. . I

I THE COURT: Did you, Mr. Furlotte, have any further word on Dr. Shields? You haven't been in touch with him

since - I MR. FURLOTTE: No, My Lord, I haven't been in touch with himl. 20 .! THE COURT: Well, Mr. Furlotte, you would have no disagreeme~

with this arrangement, I gather? The only -

MR. FURLOTTE: Well, My Lord, I think the Crown, like the

i defence, should have every opportunity to present i tSI

1 25 case as best it can. ! THE COURT: When are you going to be able to confirm that?

MR. WALSH: One of the police officers is going to make a

call. If I have your permission I'm going to ask

Dr. Kidd in the next little while, if I can get a , ! I /. :0. hold of his office I'll know probably by noon t~me.

hopefully by noon tim~. or by the end of the ~ay.

THE COURT: Yes. Well, it would be desirable for you to

".30251&.851 . .

- 3 -

. i , have an answer on that before Mr. furlotte gets in i I touch with his man? j WALSH: That's correct.

I MR. I THE COURT: Because if you want to do that I have no

~ objections to that being done. It gives the defence

more time to prepare.

MR. WALSH: My main concern is that Dr. Kidd is now

slotted in a place that is out of order in terms of

the evidence that he'd be asked to comment on.

10 THE COURT: I realize that, as I mentioned to you yesterday,!

but I thought you might be able to shove him on to I

the 8th or the 9th or something. I ! MR. WALSH: He' 5 to be in a place called Cold Spring tJarbouri' t : it's apparently a very important meeting. He had 15 been scheduled to fly in here on the 5th, he was I prepared to stay the 6th, the 7th, and fly out at I noon time on the 8th, and then he's ~ the 8th, 9th

and 10th and I believe the 11th he's in Cold Spring

Harbour on a very important - I understand it's a 20 i very important meeting. That's the problem I'm faced:

with, My Lord.

THE COURT: Yes. Well, you get back to me and tnen we'll

talk to Mr. Furlotte about his sCheduling there, but;

as I say, I'm - well, I indicated yesterday that I'm! 25 !

rather determined to have this voir dire .spect I i concluded by the end of Mayas far as the hearings go~

MR. WALSH: Yes. Thank you, My Lord.

THE COURT: Thank you very much. If somebody gets him on

3:1 the telephone and you're required to go straightaway to answer - are you going to rush out and speak to

him on the telephone, I gather, are you?

;zs.. ." - 4 - Cst. ~acPhee - Direct (Voir Direl

MR. WALSH: If I'm not - . i Well, you have my permission if you're not : THE COURT: i engaged here. Well, now, you're going to - somebody'

I is going to call another witness? Mr. S 1 e e t h, is it?1

SLEETH: Yes, My Lord, Constable MacPhee. 51 MR. I I CONSTABLE KENNETH G. MacPHEE, called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATIONBY MR. SLEETH:

Q. Constable MacPhee, would you please state your full

10 name for the Court? I

! A. Yes, my name is Kenneth George MacPhee. I'm a peace

officer and a constable in the Royal Canadian Mounte

Police. I've been so employed since the 5th day of

October, 1976. I've been posted at Sackville 15 Detachment, Westmorland County, New Brunswick, since

the first day of May, 1986.

Q. O.K., and do you know a person by the name of Allan

Legere?

A. Yes, I do. 20 Q. The person you know by that name, is he present in

this court room today and if so, where, please?

A. Yes, he is. He's sitting in the prisoner's dock

between two R.C.M.P. constables wearing a light brown!, I shirt with a white colour and glasses. I 25 Q. O.K. I Constable, touching on the matter presently i

i before this Court could you please describe the ;,

i circumstances under which you came to be in contact

with this individual whom you've just identified I j ;° 1 beginning with the date and the time? A- 1 Yes, in the month of November, 1989, I was seconded

I from the Sackville Detachment to the Newcastle

,-. 302514.051 - 5 - Cst. MacPhee - Direct -, (Voir Dire; Detachment to patrol the Newcastle-Chatham area. : I , Q. Why was that? i I A. Pardon? I ! Q. Why? Why would you be seconded? I i : A. Mr. Legere was unlawfully at large from an escape in I , 5 I I ! May of 1989. I was assigned to patrol the area in a i

pro-active patrol job. In the event that any J , sightings were reported we would investigate the iI sightings as well. We would be representative of I I a police presence in the area at the time. The locali 10 people were quite nervous at that time.

Q. O.K., what was happening?

A. There was various sightings. Between May and the time I went there there had been four murders

15 committed in that area. Q. And to the R.C.M.P. at that time who was the major

suspect?

A. To my knowledge at that time the major suspect was

Allan Legere.

20 Q. And what had he escaped from prison for, or,from custody for?

A. He was in prison for murder. I Q. Now, at a certain point you did, as I understand it,' come in contact with this individual? ! . 25 A. Yes. I

Q. What date and time, please? 1

! A. I was assigned to Corporal Vesey, we were patrolling! together. I arrived there on the evening of the

22nd of November, ,989. Wed i d a pat r 0 Ion the 23 r d ,: 20 started our patrol at midnight on the 24th, our shift I ; being from midnight until eight in the morning. Our iJn

1 that shift we received information that there was a

., 3025 ,",... -- <. - 6 - Cst. MacPhee - Direct -. (Voir Direl possibility that Mr. Legere might be heading our ~ay

: I ! in a tractor-trailer. Due to information that had

been received about a hijacking and a hostage-taking:

in the Sussex area we were advised to set up a road-.

block on Highway 126 just outside Chatham Head. We 5 effected that roadblock. We were joined there by

Constable Dugas of Newcastle Detachment. We moved

the original roadblock further south on 126. We

received ongoing reports that there was a good

possibility he was still heading our way. After a 10 period of time Corporal Barter and Corporal Lutwick

arrived at our roadblock. Just shortly after they arrived we received information that there was a

tractor-trailer sighted bobtailing on the Barnaby

River Road and this was an odd incident at that time! 15 of day. apparently, that was the information we

I received.

I I Corporal Barter advised that him and Corporal Lutwick would go and look after the matter rather than have us - 20 Q. So they left and went to another scene?

A. Yes, they left to investigate that truck incident

rather than have us break the roadblock. Shortly . after they left we received information from.th~~

25 that they were behind the truck, that the truck! wouldn't stop on a side road off Highway 126, receive~

! further information that the truck had stopped. Them

we received information that they had a suspect in

custody, and at that pOint we left the roadblock, { 30 Constable Dugas leading the way as she was familiar with the area. We followed behind in a police car. We drove directly up 126 to a road we come to I know as Highway 118. We arrived at a situation I

w her el

I '::s ,4 .S. ( - 7 - Cst. MacPhee - Direct -. , (Voir Direi there was a tractor-trailer stopped on the road. I , I i I could see the suburban. the dog van. parked to one side, and there was a person laying on the ground~

I Corporal Barter and Corporal Lutwick were standing

close to that person. I exited the police car. went 5 up to where the person was laying on the ground. He

was at that time laying on his back with his hands

behind his back. I got a close look at him and I

could see from previous meetings I had had with Mr.

Legere that that's who it was. His looks had changedL 10 He appeared like he had lost a lot of weight, his i hair was shorter and he had no facial hair at all. I j

I went back to the PC and got a set of leg I

15 placed the shackles on Mr. Legere's ankles. ,hao"., that I had in tho PC. I too' 1t bao' and I I Q. By PC you mean a police cruiser? I A. Police car, yes, the car I had been driving, actuallyL , the one I had taken from Sackville with me. I placedi

the shackles on Mr. Legere's ankles. At that time heJ i - 20 was talking quite a bit and he said that - four timesl that I counted at the time was that he could have

shot our fellows many times.

After making sure everything was secure with

him I assisted him to his feet, took him to the frontJ

25 of the police service dog suburban where Corporal

Barter was. Corporal Barter searched Mr. Legere. As I !

he did 50 he was taking articles and placing them on 1 the engine bonnet of the truck. I at this time asked!

Corporal Barter if Mr. Legere had been given the \. ,0 Charter notice and the police warning; he said he had~ At this time Corporal Vesey approached and took

control of Hr. Legere. I went to the police car,

., J025 ,. 85, ( - 8 - Cst. MacPhee - Direct (Voir Dire!

checking the back seat to make sure there was nothing; , ! in there. Then I returned and took Mr. Legere and

placed him in the back seat of the police car. I got: I I in the front and at that time I read him the Charter

notice and give him his right to counsel. ,I,. And what did that consist of, what did you tell him? I I told him he was under arrest for escape lawful

I A. custody. I told him, I said, "It's my duty to inform!

you that you have the right to retain and instruct I asked him if he understood: 10 counsel without delay". , what I had told him, he said yes, he did. He at thisi time said that he wanted to see a doctor. He said

I

that he had let a police girl go, an R.C.M.P. girl I go. Again he was talking incessantly. He said that;

I 15 he had been kicked in the face for no reason while hel

was on the ground. He said that if his hands had I have been free they wouldn't have done that to him. , j He said that it's no wonder that he hated the police,

so much, and at that time I believe it was Corporal

20 Vesey and Constable Dugas were starting to place a

security ring around the scene by placing security

tape, tying it to various points. He asked what that.

was, explained it to him. He asked for his dentures Ij I

at that time and he asked for his stuff, meaning the I 25 stuff that Corporal Barter had taken from him. I i advised him that in due time he would receive them.

Following that Constable Bolduc, I couldn't seet

him arrive on the scene but at that point in time

Constable Bolduc sat and got into the police par with: / 30 me in preparation for leaving to take Mr. Legere back:

, to Newcastle Detachment. We had conversation, I can"

remember what it was now, but at that point Mr.

LO'Oj I

)0>5,4. ... ( - 9 - Cst. MacPhee - Direct -. (Voir Dire) saw Constable Bolduc's face. He said, "You're the

fucker that kicked me", and he asked him his name. : I Constable Bolduc identified himself and Mr. Legere

I said that man to man he wouldn't have been able to dol

that, and then he called Constable Bolduc a fuckin' I I prick. At this point we left that scene with Mr. 51 , I Legere in the back, Constable Bolduc in the front

seat, and I was driving. We drove directly to Newcastle Detachment.

We drove around at the back side door of the 10 security bay, the garage area. Corporal MacNeil,

now Sergeant MacNeil, met us at the door. We went

into the security bay area. Corporal MacNeil left

at that point. We did a cursory search of Mr. Leger~'

pockets at that time. One of the items that I found 15 was a train ticket. Mr. Legere advised that he had come from Montreal to Saint John with that ticket.

We at that point in time took h1m into the cell area

from the security bay area there, took him directly I down into a cell room at the end of the hall. I lefJ 20 Constable Bolduc there with him while I went to the I

! guard room, guard's area there. I took off my sidea~

and took the key for that particular cell where Mr. Ij Legere was. I returned to that area, to where I

25 Constable Bolduc was with him. We proceeded to

/

strip search him and placed all his items'of cloth1n,

on the cell room floor. He was given a blanket. ! i Somewhere in that search time there he asked

to have the cuffs taken off and I advised him, "No,

;() I can't", but I did loosen them for him. Following the search Constable Bolduc left. I at that time i

i seized his clothing as exhibits and advised him that:

',.'°25,..... ( 10 - Cst. MacPhee - Direct (Voir Dire)

they were being seized, Mr. Legere. At that time I ~ 1 i was alone with him he asked for a drink of water and:

I he asked to see a lawyer. I advised him that I was I I not in a position to get him a lawyer right at that

time where I was and that the investigators would

, I provide him with opportunity to contact a lawyer. !I Again following that I gave him the Charter notice I again. I said, "You're under arrest for escape lawful custody". I said, "It's my duty to inform

you that you have the right to retain and instruct 10 ; counsel without delay". I then told him - gave him;

the standard police warning. I said, "You need not.

say anything. You have nothing to hope from any I

I promise or favour and nothing to fear from any threa~

I 15 whethersay can orbe usednot you as evidence".say anything,I butasked anything him if youhe dOl understood this, he said he did. At that point in

time Sergeant Mason Johnston and Corporal - at that

time Constable - Kevin Mole came to the cell area. j

! 20 They went into the cell room and were talking to the 1- to Mr. Legere.

Then shortly after that Constable Charlebois

arrived, went into the cell area. Shortly after

that or within a few minutes of that - I'm getting

25 ahead of myself. I Q. Take your time.

A. Yes, O.K. After the search Corporal MacNeil and

! Sergeant Johnston just as we were finishing the

I search and I had seized the exhibits - Sergeant

30 I I Johnston and Corporal MacNeil came in and came in contact with Mr. Legere. Corporal MacNeil left then~

I

right then, and Sergeant Johnston stayed in the cell ,I

" 3025 ...... ( - 11 - Cst. MacPhee - Direct (Voir Dire1

area with him for approximately fifteen minutes. ~ i During that time I was looking after the exhibits,

I I sorting them out, and I believe Corporal MacNeil hadl I brought me some exhibit bags, I was starting to mark.

and bag the exhibits. I heard part of some 5 conversation that Mr. Legere had with Sergeant

Johnston, mostly one-sided, I didn't hear Sergeant

Johnston ask him any questions, it was mostly Mr.

Legere talking. He mentioned something about $90°'°9 and the fact that he had been around the Kelly Road.. 10 Then he said something about he hadn't spoken to

anyone while he was out for six months.

Following that Sergeant Johnston left and at

that point in time that's when he asked for his

15 drink of water and asked for his lawyer, and then

following that the Charter, and Corporal Mole and I

Sergeant Johnston came back in. I Q. i And when they came back in what did you do? i A. I stayed right there. I stayed outside the cell I 20 door. The door at this time was shut into the cell:

area at that point in time, I couldn't hear what

they were saying. Following that Constable Charlebol~

came and he entered the cell area, cell room there

where the cell was, and the door was shut again.

i 25 Following that Corporal MacNeil came and handed me aJ

I. handwritten consent to search which I handed to I ! ! Sergeant Johnston in the cell area. Following that.

within a few minutes Sergeant Johnston left and in a.

little bit more time after that Constable Mole - at ,0 that time Constable Mole - and Constable Charlebois

left the cell area with Mr. Legere. Following that

I kept bagging my exhibits and at 8:05 in the

."n.nl , I

)0<0 ,..... ( 12 - Cst. ~acPhee - Direct (Voir Dire)

I turned them over to Constable Davis of the : I i Newcastle Detachment. We numbered them as I turned:

them over to him and I handed him 23 exhibits,

numbers 279 to 301 inclusive.

The only other involvement I had with Mr. 5 Legere was later on in the evening of the 24th.

I returned to the Newcastle Detachment to assist in ; . . Mr. Legere being taken from the Detachment to the

police car where he was going to be, as I understoodi

j it, taken to the Atlantic Institution in Renous. iO There were several other officers outside as well.

Q. O.K., you mentioned that Mr. Legere made reference I

I to the Kelly Road. What did that mean to you, did

it have any special significance to you? ( A. 15 Yes, there is a Kelly Road in the Chatham Head area, or between Chatham and Chatham Head, because we had

responded to a complaint there the previous evening. It's a road in the Newcastle-Chatham area.

Q. What sort of complaint?

A. Suspicious person, I believe it was. 20 I Q. You also mentioned that at one stage shortly after your meeting Mr. Legere there had been mention of a i doctor. How many times would there have been me~tion

or a doctor'. ' t 25 A. He requested at that time when he was in the police!

car and I think maybe once more he asked for a I

i doctor. I advised him that in due time he would be - ! that I was not in a position to take him to a doctor; I was just guarding him, more or less. 20 Q. How talkative was Mr. Legere throughout this time? A. Continuous. I didn't listen to everythinghe said on I didn't catch all his conversation but he was talking pretty well through the whole thing. En route from

"-JO>5....' - 13 - Cst. MacPhee - Direct (Voir Dire) the scene to the detachment he said that he could

have shot some of our fellows several times. He sait

that he had tried to leave the country at one point

but was unable to, and he said that the guards gave him the material to make the keys that he used for

:: I i his escape. Now, he repeated these things a couple' of times, like between the time we left till the

time we got to the detachment.

Q. Now, what physical condition was he in that you coulc see when you first came in contact with him? ;0 A. From the time I had seen him previous to that he ! appears to have - he had lost a lot of weight. His j

hair was a lot shorter and he wasn't wearing any I glasses when I got to him.

Q. And how did his face appear? 15 A. It was thinner, but up close you can pick the features out that it was still him.

Q. Anything else that you remarked about his face as

i

you observed it at that time? I

A. 20 Yes, there was slight discolouration below his right! I eye.

Q. Now, just to be sure, I think it was done at the

outset, but the person that you've been speaking

about throughout is present in this court room today!

25 and if so, where?

A. Yes, he is. He's the gentleman between the two , f

! R.C.M.P. officers in the prisoner's docket. I've

been in court, he's previously been identified as Mr. Legere. i MR. SLEETH: 'J , Thank you.

I

I

"3Q2§ ,4 .., "

( - 14 - Cst. MacPhee - Cross (Voir Dire)

CROSS-EXAMINATION BY MR. fURLOTTE: '. Q. Constable MacPhee, as I understand your testimony,

; you heard on the radio at the roadblock that they had i I Mr. Legere in custody?

I A. I understood it to be, they just said, "It's him". 51 , Q. And when you arrived at the scene Mr. Legere was i laying on his back with his hands cuffed behind his back? I I A. His hands, yes - yes, they were behind his back.

Q. And you say that you put him in the police vehicle? 10 I A. Yes, after we went to - in front of the police van,

talked to Corporal Barter briefly. I went to the

police car and checked it for - Q. ( And where was Mr. Legere lying on his back? A. He was on the roadway. 151 Q. On the roadway next to the tractor?

A. Yes, he was, yes.

Q. So he had still been laying in a position where he j got kicked in the face except that he was on his bac~'

! A. I didn't see him get kicked in the face. . 20 I Q. You didn't see him get kicked in the face? A. No.

Q. Did you ask what happened to his face? You said you; noticed the colouration?

25 A. No, I didn't.

Q. But Mr. Legere did say that he was kicked in the face?

A. I'm trying to think back.

Q. Well, it shouldn't be that hard to remember,/ / -;0 Constable, because you just testified a while ago ~ that Mr. Legere accused Constable Bolduc of kicking: i him in the face. ( - 15 - Cst. MacPhee - Cross (Voir Dire)

. A. Well, that's the first time he mentioned it, yes. . j Q. So he did mention about being kicked in the face?

A. Yes, he accused Constable Bolduc of having done it. Q. I And he thought it was Constable Bolduc? A. Apparently so. 51 Q. How long did it take you to get from the roadblock

once you heard they had Mr. Legere restrained? How

long did it take you to get to the truck area?

A. Well, from the roadblock to the intersection of 118

:0 and 126 was 1.5 kilometres. From that intersection

to the scene was 1.9 kilometres. It took just a

matter of minutes.

Q. Couple of minutes? ( A. Yes. Q. And Mr. Legere asked for a doctor at the scene?

A. Yes.

Q. When you put him in a police car? A. Yes.

Q. Did he appear disoriented, stunned?

20 I A. No.

Q. Suffering a concussion or anything?

A. No, Quite talkative.

Q. Just confused as to who kicked him in the face?

A. Well, he seemed Quite sure at that time who had

kicked him in the face. 251 Q. And do you know that Mr. Legere suffered a fractured:

cheekbone as a result of that kick in the face?

MR. SLEETH: Objection, My Lord. That's calling for a

conclusion, a medical ability this man doesn't have. ( ;:) i I MR. FURLOTTE: I Well, My Lord, they are aware of all medical.

j reports of any which kind on Mr. Legere.

I

- ;0:5 ,4 .50 I ( - 16 - C5t. MacPhee - Cross (Voir Dire.j THE COURT: You said what? You didn't answer it, I believe;

did you? J MR. fURLOTTE: I asked him if he was aware. THE COURT: Well, go ahead. I i A. No, till this point I had not been aware that he hadi

5 i sustained a fracture.

I I Q. And you never attempted to find out? I i A. No. THE COURT: To this point, you mean - A. I Right now. ,0 I THE COURT: Till right now? A. Yes.

Q. Now, when Mr. Legere commented to you or to Mr.

Bolduc that, you know, something to the effect, ( what in the fuck did you do that for, kick me in 15 the face, Mr. Bolduc was, I suppose, Quite surprised

about being accused of kicking him in the face? A. Well, he - I don't think Constable Bolduc was aware

that Mr. Legere had even been kicked. Q. He wasn't aware either? 20 A. I don't think he was aware of it, no. He arrived

after we got there. He was placed in the car as my security back-up, I don'~ think he was aware of it.

Mr. Legere was in the car when Constable Bolduc

25 arrived, as far as I understood. Q. But you did state that Mr. Legere said to Constable

Bolduc that, "You wouldn't kick me in the face like I that if my hands were free"? I jA. He said, "Man to man you wouldn't have done it, I'll:

:;'J tell you".

Q. "Man to man you wouldn't have done it"? A. Yes. 17 - Cst. ~acPhee - Cross (Voir Direl

Q. And if his hands were free?

A. No, he said that in the car going back between -

Q. Said that in the car going back? A. Yes. I i ;I Q. But it was an indication to you that somebody kicked: him in the face while his hands were handcuffed

, behind his back, is that right? j i A. No, not really. Q. No? I 10 I A. No.

Q. Could be, though, when you think about it, eh? A. Anything is possible. Q.

Sothe at Constable that time Bolduc Mr. Legere kicked was him under in the the face impression while I 15 his hands were handcuffed behind his back? A. All that indicated to me at the time is that he !

thought it was Constable Bolduc who had kicked him. I

He asked him to identify himself, he did, then he called him a name. 20 Q. Now, you say you placed Mr. Legere in the police cruiser?

A. Yes, in the back seat, yes.

Q. And that was at approximately what time? A. It was between 5:45 and 5:50. 25 Q. And 5:50?

A. Yes, 5:50 I -

Q. So you gave him a Charter notice? i I A. And his right to counsel, yes. I Q. ( :;CJ And his right to counsel. Did you tell him you were, going to give him the opportunity to call counsel?

A. i I advised him that he would be given opportunity by ,

'O,S,. os, l - 18 - Cst. MacPhee -CCross (Voir Dire;

the - that he would be given via the Charter notice ~ !

right to counsel. I I j Q. But you've already testified that when he asked to I speak to counsel when he was back at the police I station that you denied it to him, that you said, 51 ' i 1 "Well, I'm not going to arrange that, I can't do j that".

I MR. SLEETH: My Lord, it's unfair to the witness to pose a ,

question in the fashion as it was just posed. The

witness at no stage said he had denied anything. 10 I He was very specific, he said, "I can't do it, that'h 1

I the investigating officers". He didn't say, "You" cannot do it".

THE COURT: All right, let's start again, Mr. Furlotte, 15 please.

Q. You do admit that although you read him his rights

to a lawyer - A. Yes.

Q. But you would not do anything yourself to accommodate 20 his ability to call a lawyer,

A. I couldn't at that time. He didn't ask for a lawyer"

until he was actually in the cell area after the to search and just within a couple of minutes ~efore. Q. No, but his immediate intention was he wanted a

doctor first, isn't that right? 251 A. Yes, he requested a doctor.

! Q. To look after his sore face?

i A. He requested a doctor. !i :J Q. Yes, and you told him you couldn't arrange that ( either?

I just said in due time is what I told him.

I A.

.,,,,,os.. AS. I ( - 19 - Cst. MacPhee - Cross (Voir Dire).

Q. In due time?

-! i A. Yes.

i Q. I Was Mr. Legere's nose bleeding or anything at that

i time?

I A. I didn't notice. 51 I Q. Or was his face just discoloured? ! I A. I didn't notice. !

I Q. You didn't notice?

I A- No.

10 Q. Did you notice him at any time blowing his nose

because of a kick in the face, personally? i A. From the time I got him until I

over to Sergeant Johnston and Constablethe time I Mole turned there him I

was no way he could have blown his nose, he had 15 handcuffs on the entire time.

I Q. Dn you have your notes on you, by any chance? A. No.

Q. I have a typed portion of your notes, it's dated; I the 11th month, 24th day of 1989, and I I at 5:50 hOUrs'j 20 i so that would be about the time you put him in the police cruiser?

A. Between 5:45 and 5:50.

, Q. I Mr. Legere stated to you, "It's no fuckin' wonder Ii hate you guys so much, look at them, they're 25 j laughing", is that right?

I- A. Yes. ,

Q. He sa i d, "T hey w 0 u 1 d n 't do i t tom e i f my h and s we r e!

free, I'll tell you".

A. Meaning the laughing, yes. ,0 Q. Right, they were laughing at him because he had a kick in the face?

A. I didn't think at

tho tim. thot th.Y w." laughi ng, i I .-

"

( 20 - Cst. MacPhee - Cross (Voir Dire)

.I I don't think anybody was laughing. I think maybe ! the guys were talking. I didn't really see anybody laughing, I don't know.

Q. Did you conduct a search at all before you put Mr. Legere in the car? ; I A. Yes, I did, yes.

I Q. And what did you find before you -

I A. Found nothing.

Q. Found nothing? 101 A. No.

Q. Didn't find any knife on him?

A. On Mr. Legere?

Q. On Mr. Legere.

A. No, I didn't search Mr. Legere. 151 Q. You didn't search Mr. Legere?

A. No, just - the only time I searched him would be

the two occasions, one ~n the security bay at the

detachment when we first got there and the second

time, of course, when Constable Bolduc and I strip 20 searched him. .i I Q. Now, Mr. Legere asked for a lawyer at what time?

A. That was just after the search was finished.

Q. At 6:201.

. A. The search was finished - yes, between - it was 25 around 6:20, yes - or hang on. No, it wasn't. Sergeant Johnston was in the room with him and it

was after Sergeant Johnston left that - it was

around 6:35 when he asked for the water and then / asked for the lawyer. ( :0 Between 6:20, approximately, and 6:35 Sergeant Johnston was in the room w;th him.; j It was after Sergeant Johnston left that he asked fo~

the water and a lawyer.

'.C:S.4 as. - 21 - Cst. MacPhee - Cross (Voir Dire)'

Q. When you were strip searching Mr. Legere was Mason , Johnston around at that time? I A. No, I don't believe so. As I remember, now, followir I i the strip search it was Corporal MacNeil and Sergeani

5 I I Johnston came in contact with Mr. Legere. ! Q. Was he told to stay away or anything, Mason Johnston: , ! A. I never had any conversation with him. We were doin, -. I I the strip search.

Q. You started the strip search at what time? I 0 i A. Well, we got to the office about 6:04, that's when

we went into the security bay first. From there we

went to the cell area.

Q. How long was Mr. Legere naked before he was given coveralls?

15 A. Would have been from the time - well, he wasn't

naked, he had a blanket around him. i J Q. He was only given the blanket at the very end, thougt

wasn't he? j I A. No, he was given a blanket following the strip searcr. 20 Q. Following the strip search?

A. Yes.

Q. Immediately following the strip search he was given a blanket?

A. Yes, as his clothes were removed. We didn't leave 25 him in the cell with no clothes on, we gave him a

blanket, as I recall. The last I saw of him he had:

the blanket. The, took the coveralls in to him

obviously, because he had them on when he left. , Q. You did advise Mr. Legere that when you read him his; 'J j j rights and especially when he asked for the lawyer,

I you said at 6:35, that you advised him he would get: I

I thata lawyer- or be given the opportunity to get one, is I.

., '02S ,4. 8S' I c - 22 - Cst. ~acPhee - Cross {Voir Direl

A. Yes, that's right. ,, i Q. But you never did get him one?

A. I wasn't in a position at that point in time. I was:

I just guarding him in the cell. I knew the GIS

I investigators would be coming very shortly, which 5 I I they did, of course. I

j Q. And you didn't think to tell anybody else that Mr. I

i Legere asked for a lawyer?

I presumed he would be given the Charter right away. I A. and be given opportunity to talk to a lawyer. 10I Q. So is that a common practice with everybody you

arrest, as soon as they ask for a lawyer you give

them over to another police officer so he has to be _

( I so he has to continually ask for a lawyer and a I 15 lawyer? I

I A. No, this was a very unique situation. I was not an :

investigator in this matter, I was in an assistance!

capacity. The investigators were from the GIS Section as far as I knew. This is not common 20 practice.

Q. I believe Corporal Barter testified also that he

read Mr. Legere his rights and told him he had the

right to a lawyer? A. Yes. 25 Q. And then you come and you took control of Mr. Legerej i and you read him his rights? A. Yes.

Q. Told him he had a lawyer, and when he asked for a

lawyer again you handed him ~ff to somebody else? so ( A. Yes, in a very short period of time after.

, '02S ,4 .S> ( - 23 - Cst. MacPhee - Cross (Voir Dire)

! Q. You don't recall Mason Johnston being around when hel

i was strip searched? A. I I was concentrating on the strip search. I mean, myI ,

first knowledgeof Sergeant Johnston being there is ! 51

I when we were finishing the strip search, and Corporai I I MacNeil and Sergeant Johnston came in contact with

Mr. Legere. That was my first knowledge that

Sergeant Johnston came in contact with him was after; the search. :0 Q. You were there when Mr. Legere asked for a drink of 1 water, were you?

A. Yes, he asked me.

Q. He asked you or he asked Mason Johnston for a drink ( of water? 15 A. It was - Mason was with him from 6:30 or 6:20, thereabouts, to about 6:35, and it was - Mason was

leaving. I don't know whether he asked Sergeant

Johnston before he left for a drink of water but he I

20 certainlyasked me for one. I ! Q. Well, I thought you said a while ago that Mason

Johnston wasn't around, that Mason Johnston only took control over after. I A. When he asked me for the drink of water, no, Sergean~

25 Johnston wasn't there, but I said he may very well. , i, 'have asked Sergeant Johnston before he left for the i drink of water.

Q. And are you sure Mason Johnston wasn't there when

he asked for a lawyer?

( ;~ A. When he asked for a lawyer? Q. Yes.

A. No, he was not.

Q. So Mason Johnston was there from about 6:20 until

""5' ." ( 24 - C~t. ~acPhee - Cross (Voir Dire)

6:35 and then after Mason left, then he asked for a ; .I lawyer, that's what you said? , ; A. Asked for a drink of water and he asked for a lawyer~ j! Q. And then you hanaed him over' to Mason Johnston?

I A. And Constable Mole very shortly after that. 5 i I Q. Now, what were your observations of Mr. Legere aD

far as was he - did he appear to have been drinking

or on drugs? A. At that time? , There was nothing extraordinary about!

: '0 him that I noted except his appearance as compared to when the last time I saw him.

Q. You didn't notice that he was tired?

A. He looked haggard but -

Q. Haggard?

A. He was thinner, that's - 151 Q. But he was in a lot of pain? A. He didn't exhibit to me that he was in a lot of ,J He had no trouble talking, he was talking I incessantly.

20 I Q. But he told you his cheek was all fucked up, in those words? I A. Yes, basically, yes, that was - Q. And that's why he wanted the doctor? .>

A. I presume so. I was not in a position ~o provide

him with a doctor at that time. i

251 ! Q. In your notes where you said Mr. Legere asked for a t j lawyer at 6:35, right, and then again in your notes'

I at 6:40 you said, "Police warning read to Legere, hel I , stated he u~derstood", and then Constable Houle came, ,0i in to the cell room with Legere. Now, you read him

his rights, O.K., you told him he was entitled to a i

lawyer, he asked for a lawyer, you didn't have time

,. '005.4.50 .--'- ---

( - 25 - Cst. MacPhee - Cross (Voir Dire)'

or you weren't able to get him a lawyer, but you

turned around and you read him his rights again.

Why would you read him his rights the second time?

I MR. SLEETH: Excuse me, My Lord, that's not what - in I i :: i setting up the question my learned friend has not

even set out those facts that he just related. He's'

related a warning about rights, but then a police

warning, which is a second thing. The.. Charter is

your rights to a lawyer and the like, and the police~ ; :0 warning which my learned friend points out was put I I at that point is a different thing. i MR. FURLOTTE: Why would you read the police warning to hiJ

after he asked for a lawyer?

I A. I wanted to make sure, be certain that he understood 15 that he had the right to counsel, to a lawyer. lI o. My God, he asked for a lawyer, he must have under-

stood he had the right to it. ! i A. I wanted to make sure. I wanted to make sure. j o. In other words, you wanted to make sure he understoob I 20 , - the right but you didn't want to do anything about it?

A. I couldn't do anything about it at that time.

o. Couldn't do anything about it?

A. No, I couldn't leave my post. I 251 i o. Why couldn't you do anything about it? !" ! A. I couldn't leave my post at that point in time, I was -

o. Why not?

A. I was guarding Mr. Legere. 'OJ o. You were guarding what?

A. I was guarding Mr. Legere. I had -

. >0<0...... <- - 26 - Cst. ~acPhee - Cross (Voir Direl

Q. I Well, what about the other police officers that were around there? Why couldn't they guard - , A. I was along with Mr. Legere at that point in time. ;. ; Q. What about five minutes after, at 6:40, you said i ! _. :; I when you read the police warning, Constable Houle ! A. Mole.

Q. Mole, is it?

A. Yes.

Q. O.K., into the cell with Legere.

I A. Yes. 10 j I Q. There was another police officer there in the cell

with Legere?

A. Yes, and I felt certain that he would at that point:

I in time be given opportunity to contact a laWyer! I 15 if he wanted to. !

Q. Well, how is he going to contact a lawyer if he's

left in a cell and he's not brought to a phone or

the phone is not brought to him?

A. I couldn't bring a phone to him or bring him to a

phone. 20 I Q. Why?

A. Because I was guarding him.

Q. Well, you could guard him while you were bringing him to a phone? 251 A. My job was to guard him in the cell until the

investigators took over, O.K., that's what I did.

When the investigators came in he was turned over to them. / i Q. Come on, ConstableMacPhee, we know your jop was to, ( '0 I i keep Mr. Legere away from a lawyer until th\

i investigators came in and got a hold of him, isn't that the truth?

>Co,,. .s. ( - 27 - Cst. MacPhee - Cross (Voir Dire).

MR. SLEETH: W~ll, My Lord, I have to object even to that

question as it's framed. It's very insulting and

it's not even a question, it's a statement. It's

j shallow, harsh rhetoric, pointless. I

5 i THE COURT: Next question. j 1

i Q. Don't the facts look as if that might be possible?

! Not at all. i A.

i Q. Not at all? A. No.

'0 Q. And then five minutes later, at 6:45, you have

Constable Charlebois came into the cell with H~ule,j

I Johnston and Legere in the cell room?

A. Sergeant Johnston and Constable Mole were in the

( cell with him at that time, cell area. 15 Q. And Legere aSKed several times again to see a doctor?

A. Pardon?

Q. And Legere asked several times again to see a doctor? 20 A. That was from the time of the pick-up until the

time at that point. He had mentioned in -

Q. Yes, but you have it under your notes at 6:45. YOUi

said, "Legere asked several times to see a doctor and I told him in due time". 25 A. In due time, that's right. I could not_take him to I

I a doctor for the same reason that I could not supplj

him with a phone or take him to a phone. He did

not -

Well, there was what, there was Constable Charlebois ,J!i Q.

i there, Houle is there -

I A. He did not appear to be in -

. '.";' '°, ----.------

- 28 - Cst. MacPhee - Cross (Voir Dire)

Q. Hang on a second. . ! O.K. I: A.

i Q. Constable Charlebois was in the cell, Mole, Constabl I Mole, Johnston, that's four police officers and 51 who's that, ~loyd Hillock? i No, that was the guard, I wrote. his name down so I'd I A. know it. iI , Q. My God, somebody should have been able to stand

guard for Mr. Legere while somebody went and got a

~o phone.

A. At that point in time I presumed that's what - if I he wanted a lawyer he would be advised of his right!

to have one -

Q. Well, he had just asked you for a lawyer ten I ( I 15 minutes before, for God's sake?

A. Yes, and within minutes after he asked the I

investigators were in the room with him. My I

aSBumption was that he would be provided with the

opportunity. That's what I told him. 20 Q. Now, what's this consent to search form?

A. Yes, while I was outside and the three investigators

were in the cell area with Mr. Legere Corporal

MacNeil handed me a handwritten consent to search.

I read it.

25 - Q. Who consented to it?

A. Consented to what?

Q. To the search.

. A. This was a handwritten consent to search which I I passed to Sergeant Johnston. . ,0I Q. Now, will you tell me what a handwritten consent

to search is? What does it state? A.

It's a piece of paper that says, "Consent to searchl'

,0" ,4... ( - 29 - cst. MacPhee - Cross (Voir Dire)

and it's handwritten. ! Q. And who was supposed to sign that?

A. Supposed to have signed it? You mean who wrote it?~ I Q. Who wrote it or - explain it, please, I'm confused.; A. "i My knowledge of that piece of paper at that time and i to this day is that it was Fred Ferguson, Crown

Prosecutor, who had written it. I Had written it?

I Q.A. Had written it.

And what did it say? 10I Q. j ! I A. Oh, I can't remember the wording now. I know it waa

! a consent to search. I just briefly read it ao I'd know what it was.

Q. So are you saying that Fred Ferguson, Crown -

15 Prosecutor, gave the police officers his consent to 1 search Mr. Legere?

A. No, that's not what I understood it to be.

Q. O.K., what's your understanding of what - what I authority did that give you?

Me:? 20 I A. At that time none, really. The under~tanding

I I had for that consent to search was that any I I exhibits that were going to be gotten from Mr.

I Legere, i.e., hair, otherwise, that this consent I was to be offered to him in order to obtain those

251 exhibits.

To be offered to Mr. Legere? I Q. I A. Yes, I gave it to Sergeant Johnston. I don I t kno'w ! what happened to it after that.

Q. So Fred Ferguson in otherwise drafted up some :c

: consent form for you to get Mr. Legere to sign? Not me, no. I A. Or some police officer to get Mr. Legere to sign?

I Q.

. '°," ,4 .', I ..

(.

- 30 - Czt. MacPhee - Cross (Voir Dire)

. i Q. That would be a fair assessment? I ; Yes. !A., i

I Q. Did Mr. Legere ever sign it? t . ! A. I do not know. Last I saw of that document I handed

it to Sergeant Johnston. 5 I

! Q. Well, you strip searched him and seized everything

else off him just prior to that?

I A. Yes.

Q. Yes, and you were advised at that time - or at

10 least I would say that your understanding at that

time was that you needed Mr. Legere's consent to

get any hair samples off him?

A. I didn't need Mr. Legere's consent to seize the

exhibits I already had, they were subject to the 15 arrest, my understanding of it.

Q. Right, but for the hair samples.

A. I had nothing to do with the hair samples. That

document was just basically passed from me - from one man to me to another.

Who did you give it to?

I gave it to Sergeant Johnston.

Sergeant Johnston? . Yes. >,. i ! So Sergeant Johnston was going to see if he could'

get Mr. Legere to consent to taking hair samples?

I presume, I don't know what he was going to do.

I presume that's what they were going to do, I was not an investigator.

Q. Do you know whether or not Mr. Legere ever consenteda ( 30 A. I don't know. i Q. Now, in your notes you state that at 6:20 Constable I

, - '025 ..- .S. -.----

-. ( - 31 - Cst. MacPhee - Cross (Voir Dire) - Redirec1;

Bolduc and yourself did finish your strip search of! . ! Allan Legere in his cell? A. Yes.

Q. Now, that's when you finished the strip search, at : 6:20?

A. Yes, it was just right then that Sergeant Johnston

and Corporal MacNeil came in contact with Mr.

Legere. I at that time removed cloth~ng from the

cell, placed it outside in the hall. 10 MR. FURLOTTE: I have no further questions.

THE COURT: Re-examination, now?

REDIRECT EXAMINATION BY MR. SLEETH:

' ( Q. My Lord, in the course of the cross-examination Mr' 15 Furlotte drew to your attention some notes that he I was reading to you at the time, the hour 6:40 and a

police warning read to Legere, and further in the I course of his cross-examination of you there seemed. to be some confusion as to that and the Charter

20 warning which you had given to him. What's the - distinction between those two, please?

A. Two separate and distinct things. The Charter

notice is, you're under arrest for escape lawful

custody, it's my duty to inform you that you have 25 the right to retain and instruct counsel without - ~- delay. The police warning is, you need not say I i .I anything, you have nothing to hope from any prom~sel

or favour and nothing to fear from any threat, j

whether or not you say anything, but anything you 30 do say can be used as evidence.

Q. And both those haa been given by you after the

request for a lawyer? "

( - 32 - Cst. MacPhee - The Court (Voir Dire):

A. Yes. ; j ' ! Q. So while you didn't provide a lawyer you gave

I ample warning?

I A. Yes.

~ MR. SLEETH: Thank you.

THE COURT: One question I wanted to ask this witness. YOUI

mentioned dentures at one stage, 'thatthe accused

had requested his dentures be given back to him or

something? 10 A. Yes.

THE COURT: Where were these dentures and what did they consist of?

A. Now, as I understood it, they were on the engine

( bonnet of the dog van when he had been searched by 15 Corporal Barter. That's what my understanding of

it was. Now, whether they were in his pocket or '

wherever, I don't know, but Corporal Barter searchel

I him in front of the pOlice service dog - '

THE COURT: But you didn't see them after that? 20 A. No, I to this day have not seen any dentures.

THE COURT: Was the accused having any difficulty talking

or -

A. No.

THE COURT: You didn't notice whether he had them or not? 25 A. No.

THE COURT: Any questions arising from that? Thank you very much, Constable.

I / :0 ( ~

.- '02S ,4.." {

- 33 - Cst. Bolduc - Direct -~i {Voir Dire} :

i CONSTABLE LUC BOLDUC, called as a witness, being

! duly sworn, testified as follows: I DIRECT EXAMINATION BY MR. SLEETH:

5 Q. Would you also, please, witness, give your full name and your occupation for the Court? A. My name, it's Constable Luc Bolduc. I'm a member i-- of the Royal Canadian Mounted Police since August,

i 1911. After my training in Regina I've been posted!

I

10 in Moncton, New Brunswick, in the winter of 1918, i

did all my service in New Brunswick ever since. I Q. You're presently stationed where, please?

A. Presently stationed in Moncton, New Brunswick.

Q. Do you know a person by the name of Allan Legere?

151 A. Yes, I do.

Q. Is the person you know by that name present in the

court room today, and if so, where, please?

A. Yes, Mr. Legere is sitting on the prisoner's dock

there. He's got the beige and white shirt, sitting

20 between two R.C.M.P. constables - excuse me, a

corporal and a constable.

Q. I'm going to ask you to go back in your mind now

to the fall of 1989 and ask you if at that time you

had any contact with the individual whom you've 25 just identified in this room, Mr. Legere.

A. On the 24th of November, 1989, several members of '

the R.C.M.P. and the three members of the Emergency I ! Response Team including myself were maintaining a I i roadblock on Highway #8 near Newcastle, almost justt 30 i across the Repap Mill. We heard some conversation I

on the radio that the suspect vehicle had been

located off Highway 126, requesting the three

.'.3025,",851 l i I - 34 - Cst. Bolduc - Direct -i (Voir Dire):

members of the Emergency Response Team to proceed

towards that point and give assistance.

Q. And you did? A. And we did.

5 I Q. And what sort of scene did you arrive upon? What

did you see once you went to give your assistance? A. When we arrived at the scene there n the road

there which I believe is Highway 118 there was a

tractor-trailer, the dog van vehicle was there,

10 one or two marked R.C.M.P. units, so we came onto

a vehicle there and we were told just to stay away

from the scene and just to keep an eye on the

police car. The last one that I - it was just next

to us, and which the suspect apparently was sitting 15 on the back seat there. I Q. Who was sitting in the back seat?

A. Mr. Allan Legere.

Q. O.K., and you were to do what again? A. I To just keep an eye on the vehicle that nobody 20 would approach it or the suspect would not come out of it.

Q. How close were you to the vehicle at that time and how -

A. Myself, I was on the right rear fender about five, 25 six feet, eight feet, just keeping an eye on the

overall vehicle and especially on the suspect on the back seat.

Q. Would you continue, then, please, just relating

30 your involvement with Mr. Legere? A. Well, Mr. Legere was on the back seat and Constable I

I MacPhee was in the front seat there, and we were just waiting because I was assigned at that time that I'i I -"-]0<0 '0.." . -

c - 35 - Cst. Bolduc - Direct i (Voir Dire) ~ ;

:I be the member of the Emergency Response Team to ! I I assist in the escort to bring Mr. Legere back to I

i Newcastle Detachment, so a few minutes, very short

I while, after we got there, two, three, four minute~,

5 I was told like to get on the front seat with

Constable MacPhee and we would be proceeding to Newcastle Detachment.

Q. O.K., you proceeded in a police vehicle?

A. In a police vehicle, yes. I was sitting on the

10 front passenger seat, Constable MacPhee was

driving, and I was keeping an eye on Mr. Legere

all the time. As I sat on the front seat Mr. Leger

soon very shortly after said that, "You're the cocksucker that kicked me in the face". 15 Q. He started a conversation or you started a conversation?

A. He started the conversation.

Q. Continue on, then, please. What else was said and done? 20 A. Which I didn't answer, I ignored him, and he kept

saying that with all the buddies that you got

around you're a pretty brave man, and man to man

you wouldn't take me, so I didn't answer Mr. Legere

and at that time we were proceeding to Newcastle 25 Detachment. Again Mr. Legere started a conversatio

He started saying if it wouldn't have been the

winter there we'll have never caught him there. He

said that he was in Montreal. He said, "I had no

30 money, no birth certificate, nowhere to go", he ( said. He said, "If I had had a birth certificate",

he said, "I'd have been long gone and you would

have never seen me again". He kept talking about

"" 30Z." ... ( - 36 - Cst. Bolduc - Direct (Voir Dire)

when he was in Saint John. He said, "I was in

Saint John", and again no birth certificate and, I I I "I didn't know what to do", he said, "I was thinking I I about turning myself in or what", so went on j

I talking about that. I never answered to any of ! 51 his conversation. Then he started talking about

I a taxi that he took from Saint John, that they

went into the ditch, and then he said, "Me and my

luck", he said, "an R.C.M.P. female officer got 10 stuck behind me", and then he kept on talking and he went to a truck driver there, a truck driver

that was heading for Halifax. He said, "What do

you want me to do in Halifax", and again, you know,

this was his conversation, I didn't say anything. 15 Then he said, "You kick as bad as me", and that was all new to me, like, I didn't know what he was \ talking about so I didn't answer that, and he said, "Man", he said, "why did you kick me in the face

like that", and I said, "Nobody kicked you in the 20 face", and, "Well", he said, "I want to see a

doctor", and he said, "I want to see a doctor and

this will all come out in court". Well, I I

said: I "When we get to the detachment there we'll see Tor.. .

the doctor there, we can arrange", and we kept 25 talking and we kept driving and he requested that

we loose his handcuffs there, and I said, "Well", I said, "We're not in a situation where we can

loose your handcuffs there, just sit still and the more you move the worse it ( 30 gets", but I said, "We'li get to the detachment in a few minutes and we'll

loose them up for you". I 1

" 3025'4. 851 ..

l - 37 - Cst. Bolduc - Direct (Voir Dire)! -. ., i I After that Mr. Legere started talking about I the way he obtained the material to fabricate some i handcuffs when he had escaped there. The guards I had given him some material for his T.V. and some I sort there and he - then in the woods and the 51

I I I squirrels and he was feeding the squirrels. I I Q. What did he say about that that you can recall? i I A. That he had been in the wood there

an~ had made I friends like with the animals, the wildlife there, ' 10 and that's about it, I think, for that aspect.

Q. Was there mention of how long he had been in the woods or where?

A. No, n~t that I can recall, but he had mentioned

that we had been close to him, that he had us in 15 his sight a lot of times, that he could have shot

I but he wouldn't want to shoot an R.C.M.P. officer,

and that's about the main conversation from what I

we left the scene to the detachment.

Q. O.K., and upon arrival at the detachment what did 20 - you see being done with Mr. Legere? A. So when we arrived at the detachment Corporal

MacNeil at that time opened the bay door there and I

my weapons in the vehicle and then Constable 25 we got in ihe bay garage, and I remember ieaving I MacPhee came out and we got Mr. Legere and we

I" quickly searched him outside the police car in the I bay garage where I located the brown leather case

with some rifle bullets in it, .308 calibre that

30 Mr. Legere told me there were .308 calibre bullets!

there, and I turned them over right away to I Constable MacPhee and we proceeded to the cell areal

" '025/6.n, ( - 38 - Cst. Bolduc - Direct -.. (Voir Dire)

; there in the detachment, so at that point we I! i i proceeded to strip Mr. Legere of his clothing and I i I I remember myself just going in the doorway and I asking Corporal MacNeil that was outside there to

5 bring me some surgical gloves there, rubber gloves,!

to proceed with the strip searching Mr. Legere. Then after that Constable MacPhee went out

for a few seconds to get rid of his weapon. We . I strip searched him, then after that it's pretty well 10 the end of my involvement which I came out of the

room and I joined the rest of the members and we

proceeded out of this area there.

Q. Constable, could you describe the physical conditio

Mr. Legere was in when you first observed him? 15 A. Yes, like I said earlier, like, I was sitting in

front of the PC there, the passenger seat, turning

sideways to maintain a look on Mr. Legere, and he "

was very talkative there. Like, he never stopped talking. With my experience I knew I didn't want 20 to be involved and as least as I would have to, but

he never stopped talking to me, he was very - real i motor mouth, like we call them. !

Q. I see. How did he appear as well facially, for instance? What did his face look like? 25 A. It appeared to be pretty well normal to me. I didn';

see anything wrong with his face. When he mentione

about that kick I was very surprised and I thOUght! I that was just some kind of a general complaint, butl / / I 30 I mean, I didn't observe anything. ' ! Q. Now, Constable, were you able to take any n6tes of j all this at the time or - ,

"'3025'4,... ( - 39 - Cst. Bolduc - Direct -; (Voir Dire) ,

A. , i Well, after that, like I said, my job was as an Emergency Response Team member. I was just there i to assist and maintain security and nothing to do I with the investigation directly, but after all when.

5 I we left that area we proceeded to the major crime

unit, unit detachment there, where I scribbled some notes there for the conversation he had told

me.

Q. But no notes were made by you during that trip? 10 A. No. No, because my main concern was to keep an

eye all the time on Mr. Legere. It was not my job

to -

Q. Is there anything else you can recall his saying ( during the course of that tr1p from the spot where 15 he was arrested to the R.C.M.P. Detachment?

A. I believe I stated pretty well all what I heard,

but like I said, he never stopped talking. He was

always mumbling about something and he said the

20 main points I remember, that's the kick and why he was in the area and Saint John and Montreal.

That's pretty well it.

Q. When you were sent to that area to assist it was

because - you were to assist the local detachment.

25 It was to assist them in doing what? A. O.K., like I said, I joined the New Brunswick

R.C.M.P. Emergency Response Team in the summer of

I 1987, and in the spring and the summer and the falll

( 30 unlawfullyof 1989 Mr. at Legere large, had and escaped we believed custody, that which he was is I in the Newcastle area. Mr. Legere was a suspect

in the four murders in the Newcastle area and the

Emergency Response Team were there to respond to

" 302.,", ." ------.--

l 40 - Cst. Bolduc - Direct (Voir Direl - Cross (Voir Direi sighting, searches, etc., etc. > j

Q. The escape, what was to your knowledge - of your

knowledge, what was he in prison for?

A. To my knowledge he was in prison for the murder of ! :: I the Glendennings. ; !

; Q. I suppose my last question, then, i Glendenning, O.K. in the course of the journey back again from the

; place where Mr. Legere was arrested to the Newcastle i i Detachment, you didn't take notes, I know it's I

'Ji difficult to recall back, but do you recall - is

i there anything more of the conversation that you

recall now, anything more he said1

A. I think that's pretty well it.

MR. SLEETH: Thank you. '5 CROSS-EXAMINATION BY MR. FURLOTTE:

Q. Constable, when you arrived at the scene when they

arrested Mr. Legere, what did you observe?

A tractor-trailer, the dog man vehicle was there,

I A. and like I said, one or two R.C.M.P. marked units 20 I I

I and some R.C.M.P. members.

I Q. And where was Mr. Legere? i

I A. On the back seat of the >marked unit.

I Q. Who did you arrive with? 25 A. Arrived with Constable Borduas and Constable Dube.

> Q. Who was the other, Constable -

I A. - Dube.

I

! Q. So was Constable MacPhee there before you? A. Sorry?

( 0')~ Q. Was Constable MacPhee at the scene before yourself? Yes, he was there, he was sitting in the marked I A. unit in the front part there with Mr. Legere in the i I !

>- '025" .5. ( 41 - Cst. 30lduc - Cross (Voir Dire)

back seat.

Q. So you didn't assist in putting Mr. Legere in the

police cruiser? A. No.

~ I Q. You were just told to guard him while he was sitting

in there?

A. Well, first we were told to stay away from the

scene because they had left some evidence there

and to stay back and keep an eye on the marked 10 PC that Mr. Legere was sitting in.

Q. Now, you mentioned when you came back to the polices

station you searched Mr. Legere? A. Yes.

Q. Outside the car? 151 A. Outside the car, yes, in the bay garage.

Q. In the garage? A. Yes.

Q. And where was it where you found the .308 calibre

rifles? Where was he being searched at that - 201 I A. The bullets?

Q. The bullets, yes. A. There was a little brown leather case there and he

had two jackets on, so which pocket there - it was -

one of the pockets, and sorry, I can't tell you 25 which one. i- I Q. Now, what area was he in when you found these ;

bullets, in the cell area?

A. He was in the garage.

Q. In the garage? ( ": I ! A. Immediately after we took him out of the police car1, I I I Q. Now, on the way back to the police station you were! I i

',.J02S,0.8S' --.-

( - 42 - Cst. Bolduc - Cross (Voir Dire,

., in the front seat or back seat?

A. What was that, sorry? : I Q. On the way to the police station that morning were i j you in the front seat of the pOlice cruiser or the 51 ! back seat? I A. Yes, the front seat. j i ! Q. Front seat, and Mr. Legere was in the back seat? ! A. Yes.

Q. And where was his hands~ Handcuffed, I would 10 assume; where were they, front of him, back of him?~ ; A. Well, I know he was close to the shield and I believ- I I his hands were in the front, but even then that i could be in the back but the seat comes to there I

I and what you see, it's the upper part here. 15 just looking at him. I was I ! Q. You say through the shield. Is that a plastic I

! shield or wire screen?

A. Plastic shield. 1 j Q. Were you able to talk back and forth to one another? 20 I A. Yes.

Q. No problem hearing one another?

A. Well, there's opening all around it and on the sidel '. there it's like a piece of metal like a screen,'

25 heavy metal there which - with holes in it there so it's air and so they can get heat or they can talk, can communicate.

Q. Now, in your statement, in your report, you state

I I j that while he was in the back seat he was talking

20 I very much, that he did certain things and that he

showed YGU his ticket, bus ticket from Montreal to ; I Saint John.

A. It's possible.

.' 3025 " 85, .- ( - 43 - Cst.Bolduc - Cross (Voir Dire)

. j Q. How was he able to show you his bus ticket when his. hands were handcuffed behind his back? i A. 1 Well, I didn't say that his hands were tied on his i I I back 50 - 51 Q. Well, so far it seems an indication that his hands I i were handcuffed behind his back. i A. Well, I didn't say that myself. I remember him .I i talking about that ticket there. I Q. In your notes you say that he showed you the ticket~ !O Do you recall that or is that - I A. No, that's a little blurred there, like, I'm sorrY'i I you know. When I wrote my statement it's possible:

that I wrote it, believed it, but I can't recall t that now. 15 Q. So did you read your statements before you came to I

court? I

A. Yes, I got some notes, yes. I

Q. Yesterday or -

A. Yesterday, yes. 20 - Q. Now, a lot of what you recall today as to the conversations that took place between you and Mr.

Legere, in your statements or your notes here a lct;

! of that was supposed to have taken time in a

different place, on your trip from Newcastle to 25 j I

Renous? .1..

A. Yes, there was another trip made, yes.

Q. But a lot of the conversation that you say in your

notes took place during that time, later on that

evening, nine o'clock at night roughly, you related! ( 0 J i that that conversation took place in the morning ,

i from the point of his arrest to the police station,. I at six o'clock in the morning. !, ( - 44 - Cst. Solduc - Cross (Voir Dire).

A.. Mr. Legere, like I said earlier, he never stopped : ! ! talking. A lot of stuff that was said in the

Ii morning was said also at night, and what I said I

j this morning here, I recall that's been mentioned

from -

5 j

I I Q. Been mentioned sometime to you but you don't know t i when? I ! A. I just told you.

I Q. Everything that you told the Court tOday you're

~0 I saying that conversation took place -

A. There was two transports that I was involved and

the same conversation about the same thing was said from Mr. Legere.

( Q. On both trips? 15 A. Yes, on both trips.

Q. He repeated the same thing both times?

A. Yes, that's what I said. Like maybe not exactly

I the same thing or in the - but all the same stories,

of where he was and - j 20 !

Q. In your notes you say the conversation took place -j , THE COURT: Well, now, just a minute, Mr. Furlotte. I think i

we should observe the niceties here if we're going 1 to refer to the earlier statement. I think I

25 probably the witness should be shown the statement I and given a chance to review it and then he Should! I

perhaps be asked if he did make that statement and I

when he made it and the circumstances, and then i

I you can read to him a portion that may conflict

I with something - or which you suggest confYicts OJ I

I with something he says now and ask him how he ~ I explains the discrepancy. I believe that's the

.' ,025,4.85, ['

c 45 - Cst. Bolduc - Cross (Voir Dire!

correct procedure to go through, 50 would you show

him the statement or give him a chance to see if

that is a copy of the statement? This is, Mr.

I I furlotte, I gather, a copy of a - a typed copy of ! I

5 i what purports to be a statement provided you by I

i the Crown, is it?

MR. fURLOTTE: Yes, it is.

THE COURT: Well, why not hand it to the witness and give him a chance to look at it and read it and see if

~o that is his statement. You can indicate to him

any particular portion that you want to direct

your questions to.

MR. fURLOTTE: This report, when did you do this up?

A. Last year I remember Constable Charlebois from the 15 Moncton GIS requested me to send him a copy

thereand I was instructing on a course at the

base near Fredericton there - army i i

THE COURT: Gagetown?

A. Gagetown, sorry, and I remember one night I came I. 20 to the detachment there and I wrote something up and we facsimiliedthe statement to Moncton.

Q. And what did you use to write that up with? Did

you have original notes or just from your memory?

A. Just from my memory. 25 Q. And how long after was that?

A. Oh, this was - I was instructing on that course

in the month of May, 1990, and the dates, if I

think seriously, would be between - it's the third

i and the fourth or the second or the third week of May ::; I

i of 1990 that I wrote this statement, which is about:

I eight months after or -

" '°2< ".5O [ ------

( 46 - Cst. 301duc - Cross (Voir Dire)

.I Q. About eight months after? A. Or six months.

Q. So when you stated that he showed you the bus , i , ticket while he was in the police cruiser, that maYI

= I I have took place at the police station and not in i the police cruiser? i A. It could have taken place in the police cruiser but; i ; now I didn't say it because I don't recall it. At

the detachment I don't recall seeing the ticket, I I 10 I like, him showing the ticket to us there. I remember

f that ticket, that's how he got from Montreal to ! Saint John there, and then when he was in Saint i

John he didn't know what to do, think about turningj himself in or what and - 15 I Q. So I'll show you your statement again when down at 1.

1 the bottom here you say that approximately 6:15 that you departed the cell area to meet with other'

ERT members, "where we left Newcastle Detachment

I for MCU". What's MCU? ! 20 I I MR. SLEETH: Excuse me, My Lord, just for the record, we're,

I not talking about a statement, we're talking about , notes.

MR. FURLOTTE: Notes, well - he said it's his statement that

he gave to Constable Charlebois. 25 MR. SLEETH: You're presently referring, I believe, to a

foot of a page which is a page of notes.

MR. FURLOTTE: Which he has signed. MR. SLEETH: It's still notes.

MR. FURLOTTE: Well, it's a statement he gave for the :0 i police brief and court procedures. MR. SLEETH: No, it's not.

. ;025.. 85, .-..

( - 47 - Cst. Bolduc - Cross (Voir Dire)

THE COURT: Well, perhaps - they're notes that the officer . ~ made in response to a request for an account of , I what had happened, I suppose?

MR. FURLOTTE: Stating his recollection of events.

THE COURT: Yes, but what's the distinction, Mr. Sleeth? ,I i ! MR. SLEETH: Well, one, My Lord, is simply if we're looking:

at the same one, Mr. Furlotte, if you look in the

upper righthand corner you'll see very clearly or

should see, "Notes of Constable Bolduc". The

iO second page will be something that was sent on to

the good constable down here. The first one is

dated the 24th and the second one is considerably I

I later.

I ( THE COURT: The first one is dated November 24th? 15 MR. SLEETH: Yes, My Lord.

I THE COURT: Oh, well, Mr. Furlotte, I think you're confused,.

I then, perhaps, are you? !

MR. FURLOTTE: I'm definitely confused because I understoodt

that - I didn't notice the date at the top here 20 because I understood Constable Bolduc to say that

he hadn't made any notes, that it was all done froml

memory.

MR. SLEETH: He said nothing of the kind, My Lord.

THE COURT: Well, if you want to ask him about it, why 25 don't you ask him?

MR. FURLOTTE: Well, these are your notes, then,.that you -.

did you make these notes on November 24, 19891

A. Yes, I made some notes like that, yes. Q. :0 You made some notes like that, so at the bottom YOUI say that at 6:15 you left -"departed the cell area i

i with other ERT members"?

. ''''5.4 .s. (. - 48 C3t. colduc - Cross '.Voir Direl

. ! A. Approximately 6:15, yes. It says Constable Borduas,-

I I it says Boucher, but I don't know where the mistake i came from, but Constable Borduas, myself, and Dube.

It says Major Crime Unit. I

3 ! Q. Major Crime Unit, and where is that Major Crime Unit t I t at? ! That's in - on the way up to Bathurst there when I A. i you leave Newcastle, about a mile from the bridge,

I two miles from the bridge.

'a! Q. So when Constable MacPhee says that you and him

were conducting a strip search at 6:20, then who's

right and who's wrong?

A. Probably Constable MacPhee's right because I was -

( like I mentioned earlier that I was not part of an 15

'"ve,ti.,t'".te,. '"' the t'.e th,t I .,"te the,e, I

like, it's after - it's from the best of my memory I and like I said, the best I can tell you everything! happened approximately at that time, so I can be very wrong for the time there. 20 Q. Were you present when Mr. Legere asked for a lawyer?i I A. I No. ! Q. Were you present when Mr. Legere asked for a doctor?: " A. Not in the cell area, I wasn't there. In the car,

yes, he asked it to me, there. 251 Q. Is there any reason why you couldn't have arranged

for a doctor to see Mr. Legere?

A. Like I said, I was a member assigned for the

i security purposes only, nothing to do - and at that ! ( ,J j time when he asked me that in the police car and I told him, I said, "When we get to the Detachment

I I we're going to look at what we can do about supplying

you a doctor or you can see a doctor there, when we I I

. '°25.. 85. ( - 49 - Cst. Bolduc - Cross (Voir Direi S~t. MacNeil - Direct (Voir Dire) . ! get to the Detachment".

: Q. So you told him that? ; ! A. Yes. , ! Q. And when you got to the detachment did you see what.

~ I I you could do about getting him a doctor? ; No. i A. j i Q. I So if you told him you would see about gett~ng him ! a doctor you must have realized or at ~east accepted! i i the fact that he needed a doctor? j :0 I . A. Myself, I didn't see the purpose of it because I

didn't see anything wrong with him. I didn't

observe anything, he was not bleeding, he was not -

you know, and I didn't see him being kicked so when

we got to the Detachment this thing was in the past, 15 and -

MR. FURLOTTE: I have no further questions.

THE COURT: Re-examination, Mr. Sleeth?

MR. SLEETH: Thank you, no, My Lord. I'd ask this witness be excused as well to return t6 his Detachment.

20 I ~ COURT: Thank you, Constable, and you're excused. Now we'll have a recess for ten or fifteen minutes. I THE

(BRIEF RECESS - RESUMED AT 11:55 a.m.)

(ACCUSED IN DOCK.) 25

THE COURT: Another witness, Mr.Sleeth?

SERGEANT GARY MacNEIL, called as a witness, being duly sworn, testified as follows:

I DIRECT EXAMINATION BY MR. SLEETH: ( ;;I, COURT: Mr. Sleeth, may I ask you this, what are we

! THE leading to now? What are we considering?

i SLEETH: Well, we're closing now, My Lord. With this

I MR.

,. 3025 " 85' I "

( - 50 - Sgt. ~acNeil - Direct (Voir Dire)

. ! witness we will be closing the statements aspect. i I . THE COURT: Yes, but what statements? These are statements,

I take it? i I MR. SLEETH: Yes, My Lord. 5 THE COURT: But which precise statements are they we're

considering now?

i All of the statements we've heard up to this ! MR. SLEETH: 1 point, My Lord. THE COURT: But there are no further statements after that? 10 This is up to the point when

MR. SLEETH This would be up to the point of the time he

was arrested, My Lord. THE COURT: The accused was searched?

MR. SLEETH: Yes, My Lord, at the Detachment, and finally 15 around 6:40 the last Charter warning and the last

warning of caution about giving any statements that ! could be used against him and the request by him at :

that time for a lawyer, or around that time. THE COURT: But there were no further statements made after' 20 that time, I take it?

MR. SLEETH: There were further statements, My Lord, but

we're not gOing to be attempting to introduce all of! them.

THE COURT: 25 But you're not introducing those, no, we're not concerned with them on -

MR. SLEETH: They will become part of the expose on this

voir dire as well, My Lord, yes, but we're not gOing,

i to be attempting to admit statements after t~e

I ( 2aI going to the interview room. i .~

I THE COURT: Well, why are you even dealing with them on the' i voir dire if you're not going to tender them?

- JOJ' ..'s' ( - 51 - Sgt. MacNeil - Direc~ (Voir Dire)-

; j MR. SLEETH: Because the witnesses, My Lord, who were a~ tha~ j time dealing with Mr. Legere, that's part of the

I I bodily substances voir dire, were having conversa- ! i tions with him, so it's inevitable that there will I 5 ! be a spillover and a mention of these things.

i THE COURT: I see, but they are still body substance I ! j concerns here that we're dealing with? ! MR. SLEETH: Oh, yes, My Lord, we'll be coming to that. I j THE COURT: And they were precisely what? Hair samples werei

10 taken:? I just forget now. .

MR. WALSH: My Lord, to clarify where we're going on that i

particular aspect, the evidence up until this point I

in time as we indicated in our notice of motion, (

15 we're attempting to elicit evidence with respect to I oral statements made by Mr. Legere between the time'

Df his arrest up until the time he was actually I

I taken to an interview room to be formally questioned~ Concurrently with that but not - THE COURT: But not including that? 20 MR. WALSH: Not after he goes to the interview room, no.

THE COURT: And he's about to go to the interview room now,

I mean at this point in the evidence?

MR. WALSH: Not quite. We'll be recalling Sergeant Johnston! Constable Mole, and Constable Charlebois, and they 25 will provide evidence with respect to shortly after ~ at the police station but before he went to the

interview room they will be providing evidence with i I respect to that aspect as well. i COURT: What time did he go to the interview room? ( ~J I THE WALSH: It will be around seven o'clock or so. IMR. .THE COURT: The same morning?

,.. ;02SIe ... l - 52 - Sgt. ~acNeil - Direct (Voir Dire;.

But we are still eliciting evidence to account '! MR. WALSH: for the police - the normal whether or not any

statement was free from threat or promise. We want

to account for all the police officers that would I ~ I have been in contact with him up until the point in

1 i time where he went to the interview room.

~ THE COURT: Yes, but the significance of that is only with

j regard - after these statements that have been

j i referred to already, after that you're concerned I I ,0 with -

MR. WALSH: And there will be further

statements that we'll I be asking - we're going to be

were further statements made alleging that there I

at the police station I ( while he was being so-called booked in but before I 15 he was actually taken from the booking area, the

cell area, to the interview room. We're going to be

alleging that there were statements made at that

I time as well. THE COURT: I see, but you're going to be endeavouring to 20 I offer those statements in evidence?

MR. WALSH: Yes, with the evidence to come, Sergeant -

THE COURT: But those are statements we haven't heard about;

i yet? I ; . MR. WALSH: That's correct. 25 THE COURT: I understood from Mr. Sleeth that everything, I

all the statements, were in now?

MR. WALSH: No, not yet. The notice of motion that we

! provided indicated from the time of his arrest to , j I the time he was taken to the interview room what -

we have all the statements that were made at the ;

j , I arrest scene 50 far, but now we're leading into the

I actual time at the police station but before he went!

I

.' JOZS.' ..- l 53 - Sgt. MacNeil - Direct (Voir Dire)'

to the interview room, but we have pretty well

concluded the arrest scene, any statements and

anything that was done at the arrest scene. I; THE COURT: I see, but then what about your body substance, where does that - 5 I j MR. WALSH: That will be also at the police station. It's

concurrent with the statements. You will hear

evidence with respect from recall from Sergeant

Johnston, recall from Corporal Mole, Constable

~o Charlebois. In conjunction with actually providing I I evidence in relation to the oral statements that

were made, concurrently you will, I expect, hear evidence in relation to the seizure of certain

bodily substances. 15 THE COURT: And these comprised - this is not evidence

you're giving or - I

i MR. WALSH: No, no, what we'll be attempting to elicit will'

be that there were further hairs taken from Mr.

Legere - 20 THE COURT: Scalp hairs?

MR. WALSH: Scalp and pUbic hairs.

THE COURT: At the police station?

MR. WALSH: At the police station, and as well, we will be

getting into evidence with respect to things that 25 occurred later on that morning with respect to the

seizure of other bodily substances, in par~icular a i Kleenex with apparently blood on that particular

I Kleenex. i ! THE COURT: This was at the police station? '"'- I MR. WALSH: That's correct.

I THE COURT: And before he left for the interview room?

" 3025,4'85' (, - 54 - Sgt. MacNeil - Direct (Voir Dire)

. I MR. WALSH: No, that particular piece of evidence in

relation to the Kleenex with the blood would be

after he went to the interview room. j t ! THE COURT: But the Kleenex, the evidence would suggest,

I was discarded before he - while he was yet at the

s 1, police station, is this it? ! WALSH: Yes, with respect to the oral statement aspect \ MR. i of this voir dire we are attempting to elicit

I evidence with respect to statements made by Mr.

I '0 Legere from the time of his arrest up until the

time he was actually taken into the interview room, ;

but with respect to the bodily substancesaspect I it will go by the interview room. It will go into'

! a time frame while he was actually in the interview I 15 Ii room. It is somewhat confusing but when it's done I

I concurrently like this - ;

THE COURT: Yes, but what happened in the interview room

won't have any significance on those body substancesa I MR. WALSH: It may. We will not be eliciting questions, 20 I answers between the police officers and Mr. Leger

but we will be attempting to elicit certain I statements or certain things said by the police ~. officers while they're in the interview room bec'ausel.

they will have a bearing in relation to what they 25 actually did, what they actually took, but we're

not attempting to elicit any statements made from

Mr. Legere while he was in the interview room, but

it will be necessary to touch on some evidence while:

they were in the interview room to make explainable. ,:; i some of the police officers' actions and some of thel

things that they did.

i THE COURT: Some of the actions before or after?

I

I .> 202..' ..> , ( - 55 Sgt. ~acNeil - Direct (Voir Dire;

. i MR. WALSH: Before and after. There is an overlap there,

I'm sorry, My Lord, but when we're doing a voir j dire with two issues sometimes it will be an overlap~ I i COURT: All right. I only ask these questions so that

51 THE I'll have a little better idea what to look for in I I the evidence. i WALSH: I can appreciate it, and it is sometimes - we I MR. have to make ourselves clear because there is that

overlap and I can appreciate why the Court would 10 want to know.

MR. SLEETH: My Lord, just to make it clear to the Court,

in answer to your question I was going to indicate

this would be my last witness and the statements

up till now, we would be moving to admit them, then ~ 15 we would be returning to Mr. Walsh who would then! be dealing with bodily substances plus certain

statements which we will be moving to have those

statementsintroducedas well and then as to even I statements which we will not be attempting to admit! 20 I as statements, they will still be required for your

consideration while we're dealing with the bodily

substance aspect.

THE COURT: This is one of the problems with having too I many counsel, isn't it, on a case? I 25 MR. SLEETH: No, My Lord, it's - I think, My Lord, one of I

. r' the problems here is that we tried to make it I ! simpler by running both of them at the same time

chronologically. I All right, yes. ":) I THE COURT: MR. SLEETH: Thank you, My Lord. Would you please for the

I record, witness, state your full name and your

occupation?

JJ25.4 85' "

- 56 - Sgt. ~acNeil - Direct (Voir Dire;!

. i A. My name is Gary Saunders MacNeil and I'm a member of the Royal Canadian Mounted Police and a peace i officer. ! Q. Do you know a person by the name of Allan Legere? 5\A. Yes, I do.

I Q. The person you know by that name, is he present in I I this court room today, please? I ' A. Yes, he is.

Q. Where? I 10 I A. He's sitting in the prisoner's box wearing a light

brown shirt between the two uniformed police

officers.

Q. I'd ask you to go back in your mind, if you could,

please, to the 24th of November of 1989 and ask if 15 you had any involvement with that person whom you've

just identified.

A. Yes, on the 24th of November, 1989, at approximately,

i 3:30 a.m., I was on duty in uniform in a marked i police unit with Constable Lafontaine. As a result I 20 .1 of a conversation earlier with other police officers!

! I went to a location in Newcastle in front of the

Repap Pulp and Paper Mill to set up a roadblock.

The information I'd received, I was looking for a

transport truck which had been hijacked in the 25 Sussex area. The suspect in this case was Allan

Legere. I stayed at this roadblock until shortly:

before As a result of other conversation j 5:30 a.m. t on the police radio I went to - immediately to I / South Nelson Road, Highway IlB, on the sout~ side ( -;0 I of the Miramichi River from my location. Wh~n I

I arrived at the scene the accused, Mr. Legere, was ( '57 - Sgt. MacNeil - Direct (Voir Dire)'

. : standing in front of a suburban police vehicle. There were five other police officers present and

Mr. Legere was in handcuffs and was in the process

of being taken to a marked police car that was

3 , nearby. I went close enough to satisfy myself that ! the person in custody was Mr. Legere. I had

1 previously dealt with him in 1986 and '87 and his I

! appearance had changed somewhat so I went within i j I four to five feet to ensure that this was the person! ; 10 I

I we had in custody, it was in fact Mr. Legere. ; The situation was under control, the police

officers were doing an escort back to the Detachment.I

I returned to my police vehicle and on my way back !

l ( to the police car I met Brian Golding who advised me 15 that he had been the transport truck driver. I Il instructed him to get into the police car with me and returned to Newcastle Detachment. I also told !

Constable Lafontaine to remain at the scene to

assist other members that were staying there to 20 secure the scene. I returned just immediately

before Constable MacPhee and Constable Bolduc, who

had Mr. Legere with them, and I entered the building;

and asked Mr. GOlding to wait in the interview room.:

I returned to the cell area to unlock the cell bay 25 door and Constable Bolduc and MacPhee entered with

Mr. Legere. He was removed from the vehicle and

taken to a cell area where I remained for a very

short period of time.

How many R.C.M.P. members were in that area at that "I Q. time?

I A. Constable MacPhee, Constable Bolduc, and myself.

I I informed them that I was returning to the main

I

"1°'" ,4.S' I ( 58 - Sgt. MacNeil - Direct (Voir Dire)'

. I office to speak with Mr. Golding for a minute and

also to obtain exhibit bags for them. The secona

i time I returned I informed that I was having

difficulty locating these exhibit bags, that some

I :: I were located at another location and were en route

I to the Detachment. At this point Mr. Legere looked

at me and asked if the handcuffs could be removed.

I replied no. He asked why not, and I simply

replied, "Why do you think".

10 I then left the cell area again, I was out in

the front office for most of the next fifteen or I

twenty minutes as the phones were ringing quite I steadily. I was the only Detachment member there

( at that time. There were people coming to the frontI 15 counter and so on. I did speak with Mr. Golding. I I returned once again with Sergeant Johnston but I I . I didn't enter the cell area, I left lmmediately afterl

that. i

The only other contact I had with the accused, ! 20 I I Mr. Legere, was later that evening, approximately

nine o'clock, I drove the police car out to the

Renous Penitentiary. Constable Bolduc and Constablej

Tom Spink were in the rear seat with Mr. Legere. I

I The screen was up, I could hear conversation but I 1 25 couldn't distinguish what was being said.

Q. Now, during those few brief times that you were close to Mr. Legere that you've related earlier at

the scene and then when he was first brought into the

oJ cell area and when you came back and had your brief. conversation about handcuffs, were you able to

observe Mr. Legere's physical condition?

A. Yes, I was.

. 'O2~" B~I ( - 59 - Sgt. MacNeil - Direct (Voir Dire)

. I Q. And what condition did you see him to be in? i i A. ; Well, his general appearance from previous i I encounters with him, his beard was gone, he looked ,! thinner, and his hair was shorter. I also noted

that he had a red mark under his right eye. , I I , Was there anything else remarkable that you noticed' ! Q. about his facial features or otherwise that struck

you?

A. No. No, there wasn't. 10 Q. Now, how lengthy were your conversations with Mr.

Legere? You only had the one, I understand?

A. Just the one and it was for only a few seconds.

Q. Were you close enough to overhear any conversations with other persons he may have had?

J A. No, when I returned to the cell area I had a couple:

i of occasions to - with respect to the exhibit bags, .

j I was speaking with Constable MacPhee, and there was

no conversation at that time, just conversation

between Constable MacPhee and myself. 20 Q. With the others that you were near how tal~ative

was he, could you observe?

A. He wasn't talking when I returned to the cell area. .

MR. SLEETH: Thank you.

25 CROSS-EXAMINATION BY MR. FURLOTTE:

Q. .Sergeant MacNeil, in your conversation with Constabl~

MacPhee were you advised that Mr. Legere had

requested a doctor or a lawyer?

Ii A. I No, I wasn't made aware of that fact. ( oJ i Q. Would you have been in ~harge of Constable MacPhee? I I A. I was the shift supervisor for the Detachment that

evening.

,,)2. ,4 .., ( 60 - :gt. MacNeil - Cross ( V0i r Dire ).

Pardon? ,! Q. : A. I was the shift supervisor for the Detachment that i I I evening but there were other members from outside

the Newcastle Detachment area who were working ther~. I 5 I Q. O.K., but would you be the officer that they should ~ I I have been reporting this stuff to?

i A. I was the senior officer there, yes. J ; ! Q. I So they should have been telling you that Mr. Legere! I requested a doctor and a lawyer, they couldn't do i~ ! '0 themselves? I A. I wasn't made aware of that fact.

O. But I'm asking should they have?

A. They should have, yes.

Q. Did you observe the search taking place at all with Mr. Legere at any time or - 151 A. I was - just for the few times that I - few brief

moments that I returned with regards to obtaining

exhibit bags and to tell Constable MacPhee that I

I had some en route, that some were coming, they were 1 20 in the process of removing his clothing, yes. ! ! o. And what about after that? Did you observe Mr. Lege~

the. at any time in the cell area after they removed I .. clothing? i r A. No, I left and returned to the front office. I 25 I Q. And you never saw Mr. Legere again after that? I

A. Not until that evening.

Q. Until that evening, and you saw Mason Johnston i I I around at that time? i ! A. Yes. ::: I Q. In the morning?

i A. Yes, he was there.

c, 3025.4 .5. ( 61 - Sgt. ~acNeil - Cross (Voir Dire): - Redirect (Voir Dire)- Mason Johnston was there? 1 Q. ; i A. Mm-hmm. i i Q. And Constable Mole? ,: A. Yes, he was there as well. I I = I Q. Constable Charlebois? j

, A. Yes, I saw him.

j MR. FURLOTTE : I have no further questions. , THE COURT: Re-examination?

REDIRECT EXAMINATION BY MR. SLEETH: ;0 Q. My Lord, one on redirect. My learned friend . elicited from you - he asked whether or not you I should have been informed of any requirement or wishl

by Mr. Legere to have a doctor in attendance.

Sergeant, at 6:30 in the morning in Newcastle how 15 long would it have taken to get a doctor, if you'd

been told?

A. Perhaps a half-hour.

MR. FURLOTTE: I don't think he can answer that question, I

My Lord. If it was never tried it can't be answeredl 20 THE COURT: Were you in uniform?

A. Yes, I was, My Lord.

THE COURT: And what about all these other officers, were

they in uniform?

25 A. They were in uniform as well.

THE COURT: In a work uniform, I gather?

A. Yes, Constable MacPhee and Constable Bolduc were in !

uniform. Sergeant Johnston and Constable Mole and

i I Constable Ron Charlebois were in plain clothes. I ( 'J I THE COURT: Any questions arising out of that? SLEETH: No, My Lord. I MR. ~THE COURT: Thank you very much, Sergeant.

. 3025,4..51 \

- 62 - S/Sgt. Johnston - Direct - (Recalled or Voir Dire)

, I

: MR. SLEETH: I'd ask this witness be excused as well, My Lord. ;THE COURT: Yes. Now, another witness? The next was j

! Sergeant Johnston being recalled?

I WALSH: Yes, My Lord, recall Staff Sergeant Johnston.

51 MR. STAFF SERGEANT MASON JOHNSTON, being previously

sworn, testified as follows: DIRECT EXAMINATION BY MR. WALSH:

THE COURT: You're still under oath and needn't be re-sworn 10 again.

MR. WALSH; Staff Sergeant Johnston, I would like to now

take you to 1989. You've given previous testimony

a couple or days before in relation to events

preceding 1989. Would you tell the Court, please, 15 what if any involvement you had in these matters

beginning with your initial involvement?

A. My initial involvement began on the 17th day of !

November,1989, as a result of a phone call from my I superior who directed me to Newcastle to handle the 20 investigation of the murder of Father Smith. On the!

17th day of November, 1989, I left Buctouche

Detachment where I had been in charge for Newcastle..

I arrived there in the p.m. and I was briefed by

25 the sergeant in charge of GIS, Sergeant Poissonnier" I I on the investigation up until that point.

After I finished with my briefing I proceeded

I I to the scene of the murder in Chatham Head. I I iTHE COURT: Homicide. i ! j / ,: I A. Homicide, yes, and - COURT: It had occurred, just to put the perspec!ive ITHE right, it had occurred when, or according to your

briefing?

-- '°15 ,. .., l 63 - 3/Sgt. Johns~on - Direct (Recalled: ( Voir Dire

.I i A. 15th, 16th of November, 1989. I went to the scene, I spent approximately two hours observing the scene,

looking at the evidence available, the body of

I father Smith was there. I left the area approxi- 5\ I mately after two hours. I continued on my investi- I gation and on the 24th day of November, 1989, as a

I result of a telephone call I proceeded to the Newcastle R.C.M.P. Detachment which would be in I i Northumberland County, Province of New Brunswick. 10 I I arrived at the Detachment shortly after

j 6:00 a.m. in the morning on the 24th day of November;

'89. As a result of conversationsI had at that I

I time I learned that Mr. Legere was locked up in the:

I 15 cell area at Newcastle Detachment. As I stated, I i was in charge of the father Smith murder investigatibr

I

for that reason I went down to the cell area, spoke i i to one Constable Ken MacPhee.

Q. Is he the Constable MacPhee who testified earlier

20 this morning?

A. Yes, he was. As a result of my conversation with

Constable MacPhee and my reason for being there was

to ensure that Mr. Legere was given his Charter

notice and his police warning. I ascertained that 25 he was.

Q. What if any plans did you have for Mr. Legere that

would make you want to know that?

A. I was investigating the murder of Father Smith and

as a result of this my standard procedure is to i :'J ( , ensure - and being the officer in charge of that

I investigation, and at that particular time being ; the senior officer, I wanted to ensure myself that

3025 " 851 ( - 64 - 3/Sgt. ~ohnston - Direct (Recalled 0: Voir Dire-)

~ I I I I had no ! proper procedures were being followed. intention of talking to Mr. Legere at that present

time.

Why?

A. Because it was already had been decided if Mr. ; I Q. I i Legere was picked up that two other investigators ,I I would be talking to him and not myself. I see. Continue.

I Q. ::J j A. However, after ascertaining that Mr. Legere was

given his Charter notice and his police warning I I ascertained what cell that he was in. I ascertainedl

I that there was a remarked change in his appearance

so I walked in the cell area just to take a look at

15 him.

Q. Why did you want to take a look at him?

A. I was curious regarding these marked - apparently I

! the remarked difference on him, and I had to look;

twice, actually, because there was such a difference!

20 in him, and he spotted me and he said, "Come here, I

you short little fucker, I want to talk to you".

. Q. You say you had to look twice. How recogn~zable was: he to you compared to when you had last seen him?

A. Well, there was a remarked difference. He had lost; 25 a lot of weight, he didn't have his beard. His hairl was short, his nose was more pronounced than it is

now because his face was thin and shallow. If I was.

I walking down the street and he was on the sidewalk i I across from me I probably wouldn't have recognized ( him. I think the only reason that I would have! "I recognized him if I met him face on and was able to !I look at him d~rectly.

" Ja2S,4 es, ( - 65 - S/Sgt. Johnston - Direct (Recalled! ( Voir Dire

: Q. And how long had you said that you've known Allan Legere? I i I A. Approximately 20 years or more. ! Continue, Officer. 0 IQ. j A. When he called me over to the cell area I went over' , and he told me that he wanted to make a complaint i ! and I says, "What are you talking about". He says, j "They didn't have to do that to me", he said, "I

'0 I didn't shoot anybody. I said I could have shot

i

people at the scene", he said, "where they got me", I

and I said, "Well, what are you talking about". I I wasn't aware of - he said, "The fuckin' French frog,

Bolduc, kicked me in the face", and he did have a

15 pronounced swelling under his right eye which was'

discoloured,it was a bluish-blackcolour. It wouldI

i appear like he had a black eye. He asked me if I i could get him a doctor and I said yes and he asked

me if I could get the cuffs taken off, and I said,

20 I "Look, Kevin will be down here in a minute ,nd we

will take your cuffs off".

I Q. Did you actually use the word Kevin?

i A. Yes.

Q. And who were you referring to and why did you use 25 the first name?

I was referring to Kevin Mole, and I knew that Mr.

Legere was familiar with Kevin Mole, having talked I A. ! to him on numerous occasions. i i Q. You indicated that he asked for a doctor. What if ( " i any distress did he appear to be in at that point

I in time?

I A. He didn't appear to be in any stress whatsoever othe~

I

',.3025.4. AS. I ( ..., - 66 - 3/Sgt. Johnston - Direct (Recalled. c Voir Dire) :I than he had a black eye. I was going to leave the

cell area at that time and then he said, "By the

! way, Mason, why didn't the police officer reporting' i I, shooting his gun at me", and that took me by 5 I surprise. I asked him what he was talking about and!

I he said one night they nearly had him, that the

police dog was so close to him that he came up and

sniffed his ass and Allan said, "I just turned around

and give him a swat and told him to fuck off", and 10 he says, "and the dog did", and he lau~hed.

At that time he asked again, "How come the

police officer didn't report that he fired shots".

He said, "I could have killed the police officer

15 that night", he says, and he says, "I didn't". He said, "I just fired a shot in the air", so at that

time he asked me for his dentures, his teeth, and;

! his glasses, and I told him I didn't know where they! were but I would make inquiries to where they would

20 be. Mr. Legere continued on talking. He was

dominating the conversation as usual any time I've I ever talked to him. He just never stopped rambling j on. He said to me, he said, "I got myself an aW/ul" j « I- mess this time". h~ Now, in my own mind wa~n't i

25 talking anything in relation to any homicides, he I I ! was talking - he mentioned to me about hijacking a taxi in Saint John, running into an R.C.M.P. female!

I I woman, a female, and he thought she was pretty smart~ i I and nice person, and then hijacking a truck, and at

::J I that time I asked him, "Why did you come back to the.

area". He said, "Well", he said, "I only had I $900.00, I had no money left". "Well", I said, "whell did you leave". "Well", he said, "last week it was j !

;, 302S ,.< as, ( - 67 - S/Sgt. Johnston - Direct (Recalled 0 Voir Dire-)

" i I getting cold". I said, "Where were you", and he I i said, "Look, I was in the woods", he said,"all this

,I time", and he said - from there he was rambling on, " he was talking, he then got in - I said, "Well, if - you hadn't escaped", I said, "you wouldn't be in all!

this problem right now", and then he started on the

prison guards, how stupid they were, and he explained

to me how he escaped at the Moncton City Hospital,

and he said after he escaped, he said, the Moncton '0 City Police were looking for him in the west end of ;

Moncton, but he was in the east end. He related to ~

me that he had hurt his foot real bad jumping a

train and he had thought he had broken it and he

15 really explained how much pain he was in and how I bad his foot was, and at that particular time I said~

"Oh"" I said " you J"um p ed the train"" I said "it I

must have been you down in Truro", and at that

particular time he said, "No", he said, "that wasn't! me down He in 20 in Truro". said, "I read about that I the paper".

Q. What were you referring to, Sergeant?

A. I was referring to a robbery that took place in Truro where a car was stolen and found in the

25 Miramichi River. He told me that he was back in

I Newcastle within a few days of the escape, that he "-

never went to Truro, matter of fact, that he

hitchhiked up 126 and he even stopped off at

Rogersville and got himself a chicken dinner, and I . 3~ j said to him, "You mean you survived all this time I living in the woods". He said, "Yes, when the nice 1 I weather was", he said, "I probably ate better than I you did". He told me that he found the time long but ! , JC25.4 0.. ...

(, 68 - S/Sgt. ~ohnston - Direct (Recalle on Voir Dire) .. i i he made friends with the squirrels and he trained

them. He was talking very - I must say to you that ! i he was talking very, very fast at this time, just ! rambling on, and he even told me that he - how he 5 jI i cooked some of his meals and he would only light a , i fire in the daytime. He again said that he could I have shot policemen, there was helicopters overhead,: I and I at that time - I did ask him a question, I i I iO said, "Do you mean to tell me that you spent all

this time alone", and he said, "Yes". I said, "You;

didn't have any dealings with anybody", and he said,1

"No". I said, "Well, that's hard to believe". He

15 insaid, contact "So help with my two God, people Mason", the wholehe said, time "I I only was out"camel

He said one guy was - "I saw a fellow fishing up

behind the golf course up between the Kelly Road

there", he said, "I saw him", and he said, "I think:

I he saw me", and he said, "I was walking across the

i 20 bridge in Newcastle once, the train bridge", and he I i said, "I saw a guy, I met a guy", and he said, "I !

thought the guy might have recognized me", and he

I says, "I thought of going back and throwing him overt

I the bridge", but he said, "because the guy had said! 25

something to me and I wasn't sure if he said, "Hi, I

Al or Hi, Pal", and basically this is the conversati6r

i

I that was related to me by Mr. Legere at that time I I ! period. I was - i iQ. What if anything did he tell you about where/he was ( ~') I / other than in the woods?

, ~ I A. He had mentioned to me during the conversation that! I he had nearly got caught on the train a week previous

in Quebec, that the train was stopped and the pOlicel

." 3025,4 ." ( - 6q - S/Sgt. Johnston - Direct (Recalled0 Voir Dire')

:! , searched the train but they checked him and they

i asked him to roll up his arm where he had tattoos

I on his arm and he indicated but he called the I I policeman stupid and said, "He asked me to roll up 51 i I the wrong arm", and he says, "I thought I was caugh~ then for sure", and he said that he had went to t ! -. Montreal.

Q. When you mentioned the Kelly Road and this young

fellow fishing, did that have any significance to i 10 I you as to location? Were you familiar with what he I

was referring to?

A. I'm familiar with the Kelly Road and the Morrison

Cove area, yes.

15 o. Are you familiar with the location of Annie Flam's

store and residence, or were you familiar?

A. No, to be honest, I'm not sure of the distance. I

know where the Kelly Road is and Annie Flam's

residence is in Chatham but I couldn't tell you the

20 distance apart. It woudl be a couple of miles, I I r I would think, I can't swear to that. I I Q. Did the Kelly Road have any significance to - you

had previously testified about your involvement in

1986. Did the Kelly Road have any significance in

25 relation to your involvement in 1986?

A. Not to my recollection right at this moment.

Q. Fine. What if any other conversation, if any, did

you have at that particular point in time?

A. At that particular time I would have imagined that 0:) Constable Mole was waiting for me to leave the cell,

area. Mr. Legere asked me for a drink of water at

that time and I told him that I would get him a drink of water also.

".30>5 ....., ( - 70 - S/Sgt. Johpston - Direct (Recalled! Voir Dire

~ i Q. O.K., when you were having this conversation who wasl

I present?

I There was nobody present. There was just myself andi I A. . i : i Allan Legere. 5 Q. And how long were you actually there with him at

that point in time?

A. I would say I went in there at approximately 6:20 toi

6:21 by my watch and came out, I thought, approxi-

mately 6:35. 10 Q. What if anything did Mr. Legere ask you or tell you I

about his right to counselor a lawyer or anything I

of that particular nature while you were there at I that time?

A. He never mentioned anything. He was requesting a 15 doctor and his teeth and his glasses and telling me

a story non-stop.

Q. What if any intentions did you have at that time to

actually conduct an interview of him? A. I had no intentions at that time to conduct an 20 interview with him. As I previously stated, there 1 was two investigators. Constable Mole and Constablel

Charlebois were designated to talk to Mr. Legere.

Q. What if anything happened next, Staff Sergeant?

25 A. I left the cell area, went and saw Constable Mole and Constable Charlebois, and asked them to come down in the cell area. As a result of that I knew

that Kevin Mole was going to be taking a minute or

50 to - he had something he was doing. I went and I

"0 I got Mr. Legere a glass of water, took it down to him; t I gave it to him, I left the cell area and went backi I ConstableMole- I

.,3025 ... 8S. l - 71 - S/Sgt. Johnston - Direct ( Recalled! Voir Dire I ~ I : Q. O.K., how long would you have been in there to do ; i that, to take the water in? IA. In the cell area? Q. Yes. 5 A. Oh, just very few seconds. I just took it back to

him and I didn't have any 'conversation with him

other than I gave him his water.

Q. And waB there anybody else around at that time?

10 A. No, Constable Ken Mac~hee was still outside acting

in a guard capacity. I just left and went back to -.

I after I gave him the water I went back to Constable Mole who came down to the cell area with me. We

walked into the cell area. Constable Charlebois

15 was following behind but I believe stayed outside for a minute or so.

Q. Ap?rt)y.:imatelywhat time would you have gone back into the cell area?

A. Approximately a~out 6:40 a.m., I would think,

20 according to my watch.

Q. And what happened th~n?

A. When he saw Kevin Mole and myself Kevin introduced

himself and remembered me and he started laughing atl

I

Kevin and he started making fun of his haircut. He i 25 something to the fact, "Lord Jesus, Kevin, where didl

I

you get that haircut". Kevin said, "Well, what are t

I you talking about, you're is not much better", and I i he said, "Well", he said, he says, "mine", he says,

"shave and a haircut in Montreal, $22.00". He .,0 continued to talk to myself, Constable Mole,

Consta~i~ Charlebois was there at that time making

i some notes. He continued to talk and repeat much of

.-.J02S ,4. 85' c - 72 - S/Sgt. Johnston Direct (Recalled or Voir Dire!)

,, i the same things that I just said. He asked that the! i handcuffs and shackles be taken off him and Constabl~ i j Mole had the key and he took the hanacuffs and leg'

irons off him. Constable Mole had difficulty with

~ one of the - either the handcuffs or the shackle,

I forget which one, he had difficulty getting them I off. i

Shortly after that Constable Mole read Allan

At that I 10 his Charter notice and a police warning. time Ken MacPhee had walked in and he had handed me I

a piece of paper.

Q. O.K., let's stop there. You say Constable Mole at

( that time read him a Charter notice and a pOlice 15 warning? A. Yes.

Q. The Charter notice was in relation to what if any crime?

A. The murder of Annie Flam.

20 Q. And could you tell the Court, please, before we

proceed further - I'll just back up - what his statei

I of dress would have been both at the time that you

had been originally in the room talking to him and I .. ~ ; the time that you went back in the second tLme?

25 A. Mr. Legere had a blanket wrapped around him and he

was both leg irons and handcuffed behind the back.

Q. I see, and when you were in speaking to him the first time how were you dressed?

A. I was dressed in civilian clothes.

\ 20 i Q. And what if any weapons would have been visible?

A. I didn't have a weapon on me at that time. Q. And the time that you went in the second time, what was your state of dress, Constable Mole's, and

"J025 14, 85/ ( - 73 - S/Sgt. Johnston - Direct ( Recalled. Voir DirE

anybody else in the area?

A. We were all in civilian clothes and I didn't notice'

any weapons on anybody.

Q. Continue, Officer. - You say you were handed a piece 1 of paper.

A. I looked at the piece of paper, I passed it to

constable Mole who looked at it, passed it back to

me. To me it wasn't relevant, I just put it in my pocket. 10 Q. And what was that piece of paper?

A. It was a piece of paper that said, "I", blank, "do

consent to give hair samples".

Q. And you say to you it wasn't relevant; why?

A. It was a non-issue to me. I know Allan Legere, I 15 wasn't going to show him something like that, you I

know, I didn't see any sense in it, so I didn't

I figure that I was going to show him that. Constable' I Mole at that time - Allan's talking all through thisl

I 20 he's repeating much of the same. things that he had

! told me to Constable Mole and to Constable j Charlebois.

Q. Was this the interview you were talking about that

you wanted conducted? Were they conducting an

25 interview at this time? A. No, they didn't even get him out of the cell area T I at that particular time. Constable Mole told Allan i ! that he wanted to take some hair samples, and he 1 I said to Allan, "You know the procedure", and Allan

( -;0 I said, "Yes, you know, too, Kevin, I'm not consentingr and Kevin said to him, "Well, do you want to take

them". Allan told him, "Go ahead and do what you

have to do but I'm not consenting".

',.302S 'c. 8S, ( - 74 - S/Sgt. Johnston - Direct -. (Recalledl C Voir Dire : j I I Q. And what did you see happen? I I saw Constable Mole take hair samples from Allan

I A. Legere, both head - scalp samples. He - I wasn't

observing all the methods, the combing - he had 5 combed, I believe he cut, I'm not sure about that, ! but he pulled some hair. Also he pulled some PUbiC!

hair from Allan Legere. j Q. I And would you tell Mr. Legere's reaction during thisl 10 period of time when Constable Mole was - what was! Mr. Legere doing while Constable Mole was actually I doing this?

A. He was talking about the same things he had been

previous talking to me about. He just never shut

15 up the whole time.

Q. What if any attention was he paying to Constable

Mole while Constable Mole was taking his hair?

A. He never made a flinch when Constable Mole pulled

his hair.

20 Q. Could you relate to the Court, please - you've

indicated that he repeated some of the things he

had told you earlier. Could you tell the Court

what if anything in addition did he say ~hat you

remember during the period of time that you were in 25 there with Constable Mole?

A. He brought up the name Billy Matchett and he said

it was too bad that Billy's house burnt, and he

chuckled and didn't say too much, anything more

I about that. / / ( :0 IQ. Billy Matchett have any relevance to you or any significance to you? ~ I A. Well, I know that Billy Matchett had testified

against Allan Legere at a previous trial.

.; 3025 ,.. 851 <- - 7S - S/Sgt. JohnsZon - Direct (Recalled 10 Voir Dire

Q. Which trial was that?

A. The John Glendenning murder, homicide. I Q. Continue, please.

As far as any other information he repeated - as I 51 A. said, repeated again basically about being on the I train and demonstrating to Constable Mole how the

arm was rolled up. Constable Mole had got him a j pair of coveralls to put on. He demonstrated how ,

I the policeman missed him, he thought he was caught, ,

10 ! he had been in Montreal. He talked again about his

escape, he talked about living in the woods, how he

survived, about lighting fires in the daytime,

talking about the female constable, his episode

coming from Saint John, about running out of money, ' 15 this was why he had to come back.

Q. Continue. What if anything happened next, Officer? A. At that particular time he had his coveralls on and

the hair samples were taken and he was continuing tol

20 talk and Kevin sort of interruptedand asked him - I told him that he was going to take him up to an

interview area. I

Q. Did he say for what purpose? A. To conduct an interview. They left - And what time would this have been? 251 Q. A. I would say this would be approximately around

seven-thirty, to the best of my recollection.

Q. And when you say they left, who was they?

A. That was Constable Ron Charlebois and now-Corporal ( :0 Kevin Mole. Q. And did you go with them?

A. I walked out but I did not go into the interview room.

., J02S,4 es, ( - 76 - S/Sgt. Johnston - Direct -. (Recalled t> V 0 i r D i r e~)

: j Q. I see, and what if anything was said by Mr. Legere I I the second time that you were there up until the

I time he went to the interview room in relation to

a doctor or a lawyer? 5 A. He had asked me on another occasion when Constable

Mole was there that he would like to get - see a

doctor, and I told him, "I told you I will get you

a doctor". He never mentioned anything about a

lawyer to Constable Mole or Constable Charlebois or 10 myself whatsoever.

Q. What if any urgency did you associate with getting

a doctor at that particular time?

A. It was my intention to adhere to his request. It

15 appeared to me that he just had a black eye and whenl

he was taken to the interview room I had arrangementr

made with the local hospital for a doctor to come I

to the Newcastle Detachment. For obvious reasons I I

was not taking him to the Miramichi Hospital to be I 20

examined. I Q. What if any difficulty did you actually have in

trying to get him a doctor to come to the ~olice I station?

A. Well, I never made the calls myself. I had - I can'l

25

remember who made the calls but they said, "They're I trying to find us a doctor to come up to the

I Newcastle Detachment".

I Q. Under whose instructions were these efforts to

obtain a doctor made?

30 A. Under mine.

Q. And when did you actually give these orders or instructions?

,. 'a'. ..,S.. ( 77 - S/Sgt. Johnston - Direct (Recalled 0 Voir Dirt .I : A. I At approximately quarter to eight that morning, on ! i the 24th. I I then was going to track down where his. he wanted his glasses, he wanted his teeth, and he J wanted something to eat, so I had to track down I where his teeth was, so I was able to track down and! j ! find his teeth and his glasses and take them up to i the interview room. I I didn't go inside but they

were turned over and supposedly they must have been I given to him. He had told me that he wanted somethi/ 10 j 1 to eat, I made arrangements for him to get somethingj

I to eat. I got him bacon and eggs brought in. I meat

all his requests that he asked me, I tried to treat

him with all due respect considering the circumstancE

15 and around nine-thirty a doctor showed up. I talked to the doctor and asked him would he interview or

see Mr. Legere and he said yes, he would.

He went I to the - I went to the interview room and

on the door and it was opened by Corporal I knocked I

Mole, I I 20 believe, and I said, "The doctor is here".

Q. I What time did the doctor arrive again? I

1 A. I think it was approximately nine-thirty in the

morning. I wasn't present during the examination.

Q. But he was to your knowledge examined? 25 A. Yes, the doctor went in and examined him. I had

~onversation with the doctor afterwards.

Q. And as a result of that conversation what if any

concerns di4 you have about Mr. Legere's health? A. I had the same concerns I had when I saw him in the i ~a ( cell. As a result of my conversation with the

doctor I had no concerns at all.

Q. Would you continue, please?

"'.3025".851 ( - 78 - S/Sgt. Johnston - Direct (Recalled b Voir Dire!)

: ! A. During this time period I had been making - not doing

i ! I too much more at that present time other than makingj i some notes of some of my conversation with Mr.

i Legere from approximately 6:20, 6:21, to 6:35. ,

i Did you have an opportunity or did you make any I1

! 31 Q. conversation ! notes while you were actually having the ~ I i with Mr. Legere? ! A. I did not.

Q. Continue, please. 10 A. He was in the interview room with Corporal Mole and I Constable Charlebois. At that time I decided to

take other investigative methods to obtain body

substances from Mr. Legere.

Q. And why were you attempting to obtain - why were you 15 attempting to do this?

A.. I was led to believe that urine or what consisted

in urine could be used in DNA analysis. Also,

obviously, I knew that hair could be used in DNA

20 analysis. I made arrangements to purchase a new

sheet which was in a plastic container. I said - I i I also made arrangements to purchase a portable toilet~ I purchased the - I had those items brought to me. ~ The sheet was in - contained in a ~~astic. .The

25 portable toilet was a brand-new portable toilet. I took them down to the cell area.

Q. Where was Mr. Legere at this time? i

! A. He was in the interview room, still in the interviewi

!

room with the two previously mentioned members. At !

;0 that time I took the new sheet and I put it on the

bunk in the cell where Mr. Legere would either be

lying or sitting. I turned off the water, I bailed

the water out of the toilet, I got a rag and soaked

" '0>5,.S" <- - 79 - S/Sgt. Johnston - Direct ( Recalled Voir Dire

the rest of the water out of the toilet and rang it:

out and I put an out of order sign on the toilet.

Q. And what was your intentions behind these actions,

both with the sheet and with doing this with respect

to the toilet?

A. I was hopefully wanting to get hair on the new

sheet and a sample of urine that I thought could be.

used for DNA analysis as well as the hair for DNA

analysis.

:0 Q. And would you tell the Court what if any success

you had in obtaining any of these particular

substances?

A. Mr. Legere did urinate but previous - Mr. Legere ( did urinate in the portable toilet. ~s Q. O.K., what if anything did you - did you have

occasion to talk to Mr. Legere about this, about

the portable toilet and the reasons for it?

I A. Told him we had a problem with the plumbing, proble~

with the water. I 20 Q. I And what happened? I - i A. It was around two o'clock in the afternoon I placed! i I these things in the cell. Mr. Legere was taken out!

of the interview room at approximately 2;15 in the

afternoon and he was taken down and fingerprinted, :~ 1 and photographed. He was placed in the cell, I I "j think, at approximately 2:30. While he was in the i

cell I was having general conversation with him. i I had mentioned when he was placed in the cell - I I asked him if he got a hold of a lawyer. He said, ; - I ( I i "Well, I made a phone call", he said, "but nobody around here will want to represent me". A short time after that the phone rang and -

I I

,. "J2~ .,";, <-- 80 - 3/Sgt. ~ohnston - Direct -. (Recalled a . Voir Dire}

MR. FURLOTTE: My Lord, I thought the Crown wasn't going to I

be trying to introduce any statements that were

taken after Mr. Legere entered the interview room.

That's the impression that I had before this voir 5 dire even started.

MR. WALSH: We're not attempting at this point, My Lord, to!

attempt at any incriminating statements from Mr.

Legere. What we're attempting to show the Court is I !

what if any efforts were made in relation to a i '0 lawyer, any follow-up in relation to the Charter

warnings that he had been given. The conversation

is simply related to whether or not and under what circumstances Mr. Legere did or did not obtain a ( lawyer, I think that's important for the legal 15 question. We're not attempting to elicit any

I incriminating statements, it's related to the issue i

I of whether or not - what his rights were and I

whether they were followed up. I. THE COURT: What about - well, who have you got coming hereJ 20 ! You've got Constable Charlebois coming and Corporal i I ,I I Mole coming back. You're not going through 1 I I everything that happened in the interview room, I I, surely, are you? I I MR. ! 25 WALSH: No, My Lord, no, no, but it will be necessary to mention some things that were said in relation

to the bodily substances while in the interview

room or done in relation to the bodily substances

and what if anything was said in relation td Mr. /

- ( Legere's Charter rights and his knowledge 0 f wh y he 1 ~ was under arrest, etc., etc., but as far as I

! attempting to elicit any incriminating statements

. - '7~' '.85. ( - 81 - 3/S~t. ~ohn$ton - Direct (Recalled c -. Voir Dire)

from Mr. Legere after he went to the interview room; that is not the Crown's intention, no.

THE COURT: No. Well, I think, Mr. Furlotte, that is

legitimate for the purpose of the voir dire. This

line of questioning is legitimate, presumably.

There's a lot of this that - assuming even the

statements were allowed there would be a lot of

this that you wouldn't put before the jury, you wouldn't call all this evidence at trial.

'0 MR. WALSH: No, My Lord. In fact, I expect at the end of

the voir dire we will be able to give the Court

some idea of what we'll be asking to go before the

jury and what we would find not to be necessary to

go before the jury. ( 15 THE COURT: Well, you've got more latitude here than you

would have before the jury. MR. WALSH: Yes, very much so, My Lord, yes, I'm well aware I of that.

- J THE COURT: I think probably we it's ten to one here and I 2Q I think perhaps we might stop now and adjourn until!

two o'clock. You're going to be a little while yet,

I gather, with this witness?

MR. WALSH: If I may just have a moment, My Lord?

THE COURT: Or do you want to finish? 25 MR. WALSH: I expect that we could probably - if you gave

me another five minutes, My Lord, I could finish my direct examination and we could commence cross-

examination right after lunch?

THE COURT: Well, let's do that. Is this agreeable with ( counsel, with defence counsel? MR. FURLOTTE: O.K.

THE COURT: Let's finish that now and then we'll do the

.". :..,' <- - 82 - S/Sgt. Johnston - Direct (Recalled ( Voir Dire

cross-examination after lunch.

MR. WALSH: Thank you, My Lord.

A. I told Mr. Legere that Kevin wasn't bullshittin',

that he should get a hold of a lawyer. He said that he had contacted one. The phone had rang for him

and we took him to the telephone, I took him to the

telephone.

Q. Where would this telephone have been? A. It would have been outside of the cell area in an area where he could be observed but not heard and

use the telephone. He spoke on the telephone for a! I short period of time. Mr. Legere spoke to me and!

I said that the person "doesn't want to handle my case

I he saiq ( I said, "Well, call somebody else". "Well", I 15 "1 don't know who to call". "Well", 1 said, "you

know", 1 said, "Well, what about your previous

counsel, Mr. Hughes".

Q. And who were you referring to? i I I A. David Hughes. He made some unflattering remarks I :0 I about Mr. Hughes and said that he did not want him.i

i He made another local phone call and didn't get anyl results. He called -- told me that he called a i lawyer in Fredericton by the name of Smith, 1 belieJ. I

it was David Smith, and that Mr. Smith wa~ too busy I ,5 to take his case. i I again said to Mr. Legere that ,

! perhaps that he should consider his previous ,

i counsel because in my opinion that he should have al lawyer. He finally agreed that perhaps that he i

I should speak to Mr. Hughes. .I even made the phone ( . , I call for him, got Mr. Hughes on the telephone, toldl

I I him that Allan Legere was arrested for murder and i that he wished to speak to him. I passed him the I

I

I

::5 "O~' j l - 83 - 3/S~t. Johnston - Direct (Recalled c Voir Dire)

phone, I left the office, and I allowed Mr. Legere I ; to speak to David Hughes, I assume - well, I passed I j I . the phone to, anyway, in private.

I j Q. What time would this have been, approximately? I A. This would be close to four o'clock. 5 I I \ Q. In the afternoon?

A. In the afternoon.

Q. What if any success did you have with respect to

your portable toilet and your sheet?

~o A. Approximately when Mr. Legere was still out in the

cell area or the phone area I had called Constable

Mole in because Allan Legere had urinated in the

portable toilet and I turned the portable toilet ( over to Corporal Mole, now-Corporal Mole. ~5 Q. What if anything did you tell Mr. Legere about the removal of the toilet?

A. I turned the water back on and told him the I

I plumbing was fixed. I , Q. And what if any success did you have with respect td I I ;>0 I the sheet? I

A. The sheet - after looking at it, consulting with I

Iden t. D.embers, the shee t did no t a ppear to be 0 f

any use whatsoever.

Q. Why was that? I 25 I A. There was just too many hairs in the cell at I

, Newcastle Detachment. I would have had to have I

taken a vacuum cl~aner and vacuumed the thing for - ! and you know, there was just too many - there appeared to be too many other hairs other than the ( colour of Mr. Legere's on that sheet, perhaps from

the bunk area, from other areas of the cell, and I

was unable to use the sheet, the new sheet with the I !

~~ "i' l - 84 - 3/S~t. ~ohnston - Direct (Recalled or. Voir Dire)

hair on it.

i Q. Did you ever have occasion to have Mr. Legere I

I , actually sit on that sheet or - t A. Yes, he did sit and lay on that sheet. I

dI Q. And before I forget, I'm not sure, Staff Sergeant, J ! whether or not I - if I've asked you to identify

the person you have spoken about as Allan Joseph

Legere. Is he present in court today?

A. Yes, he is the same person I've previously

identified on the 22nd day of this month.

. I Q. At your previous testimony? A. Yes.

I Q. Without getting into any details would you just I

( please tell the Court, Staff Sergeant, what you' did! I , I after that fact? What was your involvement with

Mr. Legere? A. After that I had conversation with Mr. Legere from ~

that time, got him something to eat, got him the

paper to read, had general conversation with him :0 for several hours.

Q. How did he - you said earlier he had been very

talkative earlier in the morning. How did he ~ appear to be later in the afternoon and - -, i A. He never stopped. He continued to talk the whole :5 time.

Q. Did his talkativeness change any from before he

spoke to a lawyer and after he spoke to a lawyer?

A. No, none whatsoever. The other - no, that's fine.

MR. WALSH: I have no further questions, My Lord.

::"--. l 85 -

THE COURT: May I ask of you, Mr. ~alsh, the urine sample.

that doesn't come into this -

MR. WALSH: No, My Lord.

THE COURT: You're not making any use of that?

MR. WALSH: No, the evidence was related to the alternative'

investigative techniques conducted by the police 5 I

I officers in relation to the issues of Charter

I compliance and those issues that I've outlined in my brief, My Lord.

I THE COURT: Well, we will adjourn now and then go on with ,0 the cross-examination at two o'clock when we resume!

I then, and Staff Sergeant, you shouldn't discuss thel

I case with anyone, as I reminded you earlier, O.K.? A. Yes, My Lord. I (

I 15 (LUNCH RECESS - RESUMED AT 2:00 p.m.) (ACCUSED IN DOCK.)

STAFF SERGEANT JOHNSTON RESUMES STAND:

20 ! THE COURT: Well, we were going to have cross-examination.I Firstly, though, Mr. Walsh, did you have any further luck in contacting your man?

MR. WALSH: Yes, My Lord, we had some luck in at least,

I I contacting his office and his people. He would noti

I be available the 22nd or 23rd or 24th, the dates 25 , I .j that I had asked for. I am exploring with Mr. i I

I Furlotte another alternative, and I wasn't going to;

I ! mention it until I did but I'll mention it to you, My Lord. I've talked to Dr. Kidd's office. He / ( could be available the 27th and 28th of May. What

I have explored with Mr. Furlotte is this, if Dr.

Kidd was to testify - subject, of course, to your

'." h< <- - 86 -

permission. I was just floatin~ this with Mr.

Furlotte - if Dr. Kidd was permitted to testify on :

the 27th and 28th of May he has to be absolutely

out of here the evening of the 28th because he must:

be in Washington early the next morning, but if he ,

I could testify the 27th and 28th of May with perhaps:

0 ! the Court having maybe a somewhat extended day on

the 27th to prevent any possibility of him being I

I held over on the 28th, too long on the 28th, he

I could have the full day on the 28th. Then Dr. :

i Shields testifying the 29th and 30th, and we'd have!i , i a cushion day of May 31st, and that way all the I

DNA aspects would be concluded within the month of I

May. ( THE COURT: Including argument? I '5 MR. WALSH: I don't know about that. I asked Mr. Furlotte I about that and he did not think that he would be 1 I

prepared to make argument - I suggested perhaps we I i could make argument on the 31st if we were done

with Dr. Shields on the 30th. He thought perhaps

2C' " he would need a few days to prepare for that.

THE COURT: Well, that is sort of an adjustable, negotiable:

! aspect; I think, of the thing aS,far as the ! argument goes. What is your reaction to this, Mr. i

Furlotte? ! 25 MR. FURLOTTE: I've been attempting to get a hold of Dr.

Shields to see what his schedule is, if he could just come in on the 29th, but I haven't been able

to get a hold of him.

THE COURT: Perhaps an advantage to this might be 1hat you ( .- , might have your man, Mr. Furlotte, availablf dUring: all or part of Dr. Kidd's testimony so that he '

. - .."~ ~ 07 -

Could comment on that.

MR. FURLOTTE: Not unless you want to pay for it, My Lord.

THE COURT: Oh, well, no, I think you should pay for it.

Well, I don't know what the arrangements are, I have , I no idea of the background. I I I MR. FURLOTTE: I'm nice but I'm just not that rich. Well , "I

j it's like I explained earlier, I just can't afford' j ! the luxury of having Dr. Shields here any longer .'.

I than what's absolutely necessary because I've got

i amount for him'and that's itl approval for a certain i

THE COURT: ! .~ Well, I don't know what the background is, i that's - I i

MR. FURLOTTE: No, I don't think that's necessary for the I

Court to hear but -

THE COURT: { The way it stands now is you're - I "5 MR. WALSH: We're making arrangementsto try and get - whatI we're trying to do now, My Lord, is in the hope that

perhaps we could make this arrangement we have I i j members trying to make arrangements to get Dr. Kiddl ! i out of here the evening of May 28th to get him to

~o Washington. We believe we can make those arrange-

ments. There's no close commercial flight but .we

can make arrangements, we believe. If Mr. Furlotte

can get Dr. Shields to come in on the 29th we

believe we could make that work provided the Court

:'j :

would indulge us with perhaps a longer day than I

I

normal on the 27th. I I

I THE COURT: Now, what if Dr. Shields says, "I can't be there

any other days than the 27th or 28th"? Hopefully that won't be the case. ( MR. WALSH: Then what I'll be left with, My Lord, is I

expect I'll have to stay with the date I already

..::; ,-- ( 88 - 3/SJ;t. ';ohnston - Cross (Recalled on Voir D:.rel have Dr. Kidd arranged for, the 6th and the 7th.

and I'll have to try and make some - I'll have to

do something, I'll arrange something.

THE COURT: It's not totally disastrous if you -

MR. WALSH: No, My Lord, but it is important to me in the

JI sense that he would be put in a place in my case I ! that may cause us some problems, but I'm hoping

Ij that Dr. Shields would be able to accommodate us.

I'm hoping that before I cross the other bridge.

I THE COURT: Yes. Well, you're going to follow that up '0 tonight?

MR. FURLOTTE: I'm going to do what I can, yes.

THE COURT: And then let Mr.Walsh know. I had prepared a

little programming here. I will give one copy to

each, give one to Mr. Furlotte and one to Mr. '5 Walsh. It 1s predicated on what I knew up till a

few minutes ago. It may be helpful to you in

trying to work something out. We'll go on

I this afternoon here now. Mr. Furlotte, you're

going to cross-examine this witness?

:c I

I CROSS-EXAMINATION BY MR. FURLOTTE:

Q. Sergeant Johnston, let's go back to 1986, I guess

that's where you began your testimony. Tj1ere's

not too much I want to cross-examine you on that :5 except for a search where hair was seized from Mr.

Legere and you contacted a Crown Prosecutor, Grahami

Sleeth. Once you were under the opinion that you

could properly seize the hair off of Mr. Legere did:

..- I you tell him the basis of your authority? ( , i I A. No.

I i Q. Did you advise him that maybe if he wanted to call

I I his lawyer again on that issue? , I ..,", '"' I, l - 69 - S/Sgt. JJonston - Cross (Recalled or. Voir Dire)

A. You're asking me if I did?

. o. Yes. A. I No. I I o. I understand you were advised by Mr. Sleeth or by j s I reading the Alderton case that you could take the hair samples of the person, and off of Mr. Legere I specifically, if there was no violence used? ,I A. Yes, I just - as I testified.

o. Did you get that from case law or from Mr. Sleeth? : ! A. I got that from Mr. Sleeth plus it reinforced my own views.

Q. You read the case law and -

A. Not that particular case, but - ( Q. Did you advise Mr. Legere that you could take hair!

I from him so long as there was no violence involved?! '51 A. No. I I '! Q. So Mr. Legere was not aware that he had the right to resist?

A. I can't formulate what Mr. Legere was thinking. en Q. No, but you didn't advise Mr. Legere that he had

the right to resist?

A. Not me personally, no. ,

Q. And you didn't advise him to call his lawyer again? i A. No. 'C I Q. Or give him the opportunity to call his lawyer? A. No.

Q. Also, Sergeant Johnston, before the Glendenning

trial started, I understand approximately four days I

before the Glendenning trial started in 1987, that ( without contacting Mr. Legere's solicitor, David:

I Hughes, some four days before the trial you went to!

Dorchester Penitentiary and met with Mr. Legere, is! that correct? i ,.- l ao - ~/S~t. Johnston - Cross (Recalled Voir Dire'

A. Did I testify against that on direct examination? J

Q. No, but - I

I MR. WALSH: My Lord, at this point, I realize that I have

! ; I started in 1986. I started in 1986 with respect to: I oj

i the Sergeant's grounds for arresting Mr. Legere and

; I it was related to the taking of a bodily substance

I back in 1986. I was wondering why the cross-examin, I tion is now delving into an area four days before I

I a trial and what the relevance would be of that

particular line of cross-examination related to the!

.~ I issue of the bodily substances question now before

I the Court.

MR. FURLOTTE: O.K., I will explain, My Lord. Much that

( the Crown has been saying here, that they're going

i .~ I to be asking this Court to accept a lot of evidence!

! that maybe violated Mr. Legere's rights, but they'r~

going to ask the Court to do so because the police

officers were acting in good faith, and I want to

c0 question Mr. Johnston here, Sergeant Johnston, on his activity in 1986 as a matter of credibility to !

see how much good faith this police officer actually does have. '" , I THE COURT: And this relates to what, this was before the -!

:5 Glendenning trial was -

MR. FURLOTTE: This approximately took place four days

before the Glendenning trial began. I. I THE COURT: Well, I'll give you - yes, you have that - I'll:

give you that authority to ask the questions. If I:

( find you getting too far afield I'll stop you. MR. FURLOTTE: That's fine, I intend to keep it within the

relevant factors of credibility. ( - Ql - SISgt. Joh~ston - Cross ( Recalled ( Voir Dir

THE COURT: fine.

MR. fURLOTTE: Again, Sgt. Johnston, ~ome roughly four days; before the Glendenning trial started you attended

Dorchester Penitentiary for the purpose of eliciting

i statements from Mr. Legere?

A. No, not for soliciting statements. I went to

I Dorchester on his request, a letter I received from. ,i I I him. ! Q. Or you thought you received a letter from him? I, t "J I A. I know I received a letter from him. I i Q. Did you contact his lawyer, David Hughes, be fo rehan4

A. Yes, I did. I had several conversations with David

I Hughes as - now that you open up that line of ! '" questioning, during the trial the prosecutor

'5 slipped up and never got that out but David Hughes was well aware that I was going down to see his

client at that date and wanted to know the results I

of it. I

" Q. That wasn't brought up at trial? I I ,'~ I A. No, it was not. I I You didn't tape any of that statement, or I Q. I ! conversation? You didn't have a body pack on you to

tape the conversation you were going to have with -,

A. With Mr. legere? 251 Q. - Mr. Legere?

A. No, I did not.

Q. And there was no statement in writing, it was -

allegedly a verbal statement given to you? ; A. I Correct. Q. ,

I And I believe at trial Mr. Legere took the witness I I I stand and denied making some of those statements tol

I you, is that right? I

I

I .. '-'i' l 92 - S/S~t. Johnston - Cross (Recalled Voir C'ire

; A. Yes, on voir dire, yes, but he has since contradicted ! that to me, what I said was true.

In relation to the statement that you say Mr. Legere'

I Q. gave you on November 24th, the morning of his arrest;

s I between 6:20 and 6:35, you mentioned a lot of things. that he told you? I A. Yes. !I And there was nobody else present, just you and him?: I Q. Just myself, Mr. Legere, and Constable MacPhee was

Q I A. standing outside and I have no knowledge what he could have heard.

Q. Were you in court when Constable MacPhee testified

just before yourself today? ( A. Yes, it was difficult to hear him. ,~ Q. And he testified that there was no way he could

arrange to get Mr. Legere a lawyer or a doctor?

He requested a doctor or go get him the telephone

or anything because he had to stay there and guard Mr. Legere? 20 A. What time frame are we talking about?

Q. 6:20 to 6:15 - or 6:35 - 6:20 to 6:35.

! A. From the testimony I heard this morning from

Constable MacPhee, Mr. Legere did not request a

-" lawyer until after I left at 6:35. He had requested' a doctor.

Q. That is correct, he says at 6:35 Mr. Legere requested

a lawyer. A. That's after I had left, I was not present. / ( I! Q. After you had left? /

ji A. Yes. ,

Ii Q. So then you got yourself there all alone before i 6:35 for fifteen minutes to give Mr. Legere time to I i I

" ,'., ( - 93 - 3/Sgt. johnston - Cross (Recalled on -. Voir Dire)'

tell you something. is that right? ! Is that your interpretation or are you asking me a I A. question?

Q. I'm asking you a question.

A. No, that was not - my direct testimony, Mr. Furlotte was that I went in there to take a look at Allan

Legere. He had asked me certain questions, wished

to make a complaint, and everything that he asked me I testified that I did for him.

'() Q. You said that when you first arrived you ascertained I I

from Constable MacPhee that he was read his warning I and Charter rights? A. Yes. t Q. Because you wanted to make sure that nothing went ,~ wrong?

A. Exactly.

Q. You wanted to handle everything properly and give

Mr. Legere all his rights?

A. I always have with Mr. Legere. 20 Q. Did you ask Constable MacPhee if Mr. Legere requested a lawyer? . ! A. Why?

Q. No, did you ask?

A. No, I asked him if - as I testified, if notice was :'; given and if the pOlice warning was given and a

notice, I'm saying the Charter of Rights is what I was asking.

; Q. But if you wanted to assure yourself that all proper!

procedure was followed you didn't inquire whether or! -! ( I I not he wanted a lawyer? !IA. No, I didn't at that time ask him if he wanted a ; lawyer. I would have assumed if he had wanted a

.~o""~, .0 <- - 9u - 3/Sgt. ~ohnston - Cross (Recalled 0 -~ 'Ioir Dire}

lawyer Constable MacPhee would have related to me i j I that particular fact. 10. Yes, but I would think where you're coming onto the j I i scene like this and you want to make sure that everything was properly done and that Mr. Legere had:

, I all his rights that you'd inquire as to whether or

It not he requested a lawyer or whether or not he was I I even given the opportunity, not just so much that he I was read his rights.

'1 A. From my previous knowledge of Mr. Legere and

ascertaining that he was given opportunity to have

legal counsel, I in my mind - I would have assumed

if Mr. Legere had have wanted a lawyer Constable ( MacPhee would have told me that. 'S o. He would have told you that. Now, when you first

approached Mr. Legere at the cell after he called

you over you say that he complained to you that the

cuffs were hurting him and could he get the cuffs off? :'0 A. He didn't tell me they were hurting him. He told me i

j they were uncomfortable and he would like to get thell! ! I off, and I told him I would see that they come off. o. You would see that they came off? A. Yes. :~ o. But you didn't do it, you said, "Well, you have to

wait for Kevin Mole"? 1i I A. Yes, I would have been - as I testified, I would have

been out of that room a lot sooner if Mr. Legere had!

not continued talking. I told you just after the ( complaint and wanting to see a doctor I was going to,I

:

leave that room, and then he got my attention again -

by rambling on about how he wanted to find out why

,-:,5 .-,,- l - qs - 3/S~t. ~ohnston - Cross (Recalled c Voir Dire)

the policemen didn't report shooting at him. I mean;

it was pretty near next to impossible to get out of

there, he just kept on talking and talking and I talking. 0 i Q. And all this talking and talking, that just took ,i place between you and Mr. Legere?

Yes, that's true. I A. I Q. But you said that you asked Mr. Legere a lot of

questions at that time, too, and I just copied down '0 a few of them. You said, you know, why - that he had

been gone to Montreal or something like that, but yo~

I asked him why he came back and where were you, when

I did you leave, so you were putting a lot of question, ( to Mr. Legere during this time, were you not? I o;. A. No, not a lot of questions, Mr. Furlotte. I Q. Well, at least those three? I \

A. Yes. !

Q. What else did you ask him? A. I I asked him, you know, how he survived for so long :IJ in the woods, you know, on his own, and he made

a joke out of that saying - he said, "You know, I

read in the paper where they all - everybody says i I'm this great woodsman", he says, and he laughed!

! about that, he said, "I don't know nothing about the; 20; woods", but he said, "It wasn't difficult, it was

lonely at times", but he went on to tell ~e he ate well, he probably ate better than I did.

1Q. Right, but you asked him, you got the conversation j rolling? ( - I, I asked that question, I already answered that.

i:~ And you admit you were there investigating what, the I

I charge of murder of - I

". ,+ t - 96 - 3/Sgt. Johnston - Cross ( Recallea Voir 9irE

- Father Smith? !A- I Father Smith? 10. IA- Yes. I I O. So you went there purposely to find out if Mr.

Legere had anything to do with that?

i A. No, I can truthfully say that when I went into that I cell block I had no intention of speaking or elicitin

anything out of Mr. Legere. As a result of the conversation that we had, yes, there were certain " questions asking about me, but there was a game plan I

that was in place, as I explained earlier, and that's

what I had planned to stick to.

O. Right, you had a game plan in place before you met

with Mr. Legere, isn't that right? '5 A. Yes, that's true.

O. And a game plan also with Kevin Mole and Constable

Charlebois part of it?

A. Would do the interviewing, yes.

o. Part of that game plan was to trick him into giving 20 up bodily substances, in your own admission, telling, I him the toilet was out of order?

A. No, that was not part of the game plan, that was

fo- ! part of my own thoughts after Allan Legere ~as tak~n-: into the interview room. That was never discussed :5 previous with anyone else.

o. It was part of the game plan to keep him away from a lawyer as long as possible? ! I A. No. Mr. Legere knows the system.

I '0. ( Now, during the interview, after the interview room, I think Mr. Legere contacted a lawyer somewhere

I around four o'clock in the afternoon?

. :~~ "'>' t - Q7 - 3/S~t. Johnston - Cross (Recalled 0 -, Voir Dire)

I

I A. Yes, he was given an opportunity when he was put in i I the cell at two-thirty to get a hold of Mr. Hughes.

Q. Yes, and that interview was all taped?

IA. That was in the interview room you're talking about?' 51 Q. Yes.

A. No, this was after he was taken back to the cell

area where the telephone was available. It was at

this time that I told him Kevin wasn 't.. bullshi ttin' , I

that he should get a lawyer, and he said he had a I :Q j call in to a lawyer and he was going to wait for the I

phone call - I

Q. But that was around two o'clock in the afternoon, wasn't it?

A. No, it was two-thirty. If my recollection is right, '5 he was taken out of the interview room at 2:15, and

between 2:15 and 2:30 of that day

and fingerprinted. he was PhotOgraPhel I Q. O.K. Now, you know, that was nice of you to advise !

him that he really should get ~ lawyer, but why I 20 I after seven and a half hours of him being in the j interview room? Why is it only after seven and a i i I half hours that you really tell him, "You know, ~ i, Allan, you really should get yourself a lawyer"? I I A. i Well, as a result of my conversation with - short I 25 I conversation with Constable Mole, that it appeared . ~

that Mr. Legere was playing games and didn't ca e if I

he got a lawyer or not. I iQ. Oh, come on, I have a copy of the transcript of that I I interview, he was asking for -

MR. WALSH: Objection, My Lord. Q. - lawyers all through that time.

A. Yes, ~nd he was - and from my knowledge, I was not

..~'.,". "

( - q8 - 3/Sgt. Johnston - Cross (Recalled _0 Voir !)ir~

I there but - and I can't testify on anybody else's

Ii behalf but from what I learned afterwards in a short

couple of minutes that, you know, he was given every j i I opportunity when he went into that interview room to

get a lawyer. He was given phone books and copies ~ i of a fax from Fredericton and anything he wanted.

Q. Yes, but how long did it take for them to get that

to him? Seven hours.

I A. Seven hours? ., I " Q . He was requesting a list of lawyers that he could

phone and they said, "Well, we'll get it for you,

we don't have the one from Fredericton here, we'll

have to try and get it faxed in to us", and, "We've

( got no phone books, we don't keep phone books here". '~ A. I can't comment on that whatsoever, I was not there

on that particular aspect of it.

Q. Did you read the transcript of the interview?

A. No, I didn't, no.

I Q. Do you recall while Mr. Legere was being strip searche ::0 that you showed up at that time at the cell area?

I did not show up at that time. I testified this

j A. morning that Mr. Legere was in the cell when I

showed 'up. I was nowhere near the cell area when Mr"

Legere was being strip searched. :5 Q. Do you remember Constable Bolduc telling you that

you would have to wait outside the cell area until

they finished searching him? I I I A. No, I did not see Constable Bolduc that morning, to I I ( my memory. I Mind if I show you Constable Bolduc's - a c~py of

I Q, his notes?

I I ! A. No, I do not mind whatsoever.

!

,,' i ( ~9 - 3/S~t. Johnston - Cross (Recalled -1 Voir Dire

, Q. Dated November 24th, '89. i I WALSH: My Lord - I MR. THE COURT: Well, I don't think, that's -

I MR. FURLOTTE: I just want to see if Constable Bolduc could ! be wrong, or his memory is lapsed.

;I, MR. WALSH: My Lord, he's being asked to be shown a statement i of another witness that they had the right to 1

cross-examine. ' I I I THE COURT: Yes. No, if Constable Bolduc said something hereI I .0 in the court room and you want to say, "Well, look,

Bolduc testified yesterday", or whenever he did i

I testify, that so-and-so and so-and-so happened, if I

you want to say, "What comment do you have to make I t I on that", but we're not going into statements that I ~s I Bolduc or notes that he may have made. No, that's

going too far, we're getting too far afield. If you j

I want to ask this witness something based on I

I I

information that you have in that, you know, if I

Boldu~ says, "I told this witness something that ;0 I morning", and you want to say, "Look, did Bolduc

I tell you something that morning, say anything to i ;

you" - you can ask questions based on it but - i

MR. FURLOTTE: If Constable Bolduc thought that you appeared!

I at the cell to see Mr. Legere before they were I i :s I ! finished searching him and he thought that he told

you to wait till they finished searching, is he

dreaming something up or could you possibly be

forgetting something?

I A. I can't answer for Constable Bolduc. ( i No, I don't expect you to, I want you to answer i Q. ! for yourself.

... ""' l 100 - 3/Sgt. Johnston - Cross (Recalled 01 -. , Voir Dire

A. No, but I'm not dreaming. .! Q. . You're not dreaming. How long do you say you have

been a police officer? . A. Oh, approximately 25 1/2 years. Q. Do you have your notes on you from what took place

that morning?

Yes, I do.

I A. Q. Could I see them, please?

I A. No, I -

'0 MR. WALSH: My Lord, he hasn't referred to them. I don't

know what right he has to actually ask for them unless he's used them to refresh his memory.

MR. FURLOTTE: Would you check your notes to see if there's ( anything in there about your arrival at the scene, '5 at the police station?

THE COURT: He may not want to check his notes. As a matter! i oC fact, if he's wise he'll probably say, "No, I don't want to check them".

MR. FURLOTTE: Well, let's find out if he wants to. Let's ~o see how accurate he wants to be.

THE COURT: Oh, well, I don't think that's a fair question.

He hasn't had to check his notes. i A. No, I don't need to check my notes in that particula~ ,, aspect because I have nothing in my notes in relation 25 i to talking to Constable Bolduc that morning and beenl , told to stay outside the cell area while he searchedi

because myself being the senior officer, if I wantedl I i to go in I wouldn't be told by the constable to stay! outside, I would have went i~. ( ~ j Is there anything in your notes about what time you

I Q. I met with Mr. Legere that morning?

I

'c, ".,. ( 101 - S/Sgt. Johnston - Cross (Recalled 0 Voir Dire)

Yes, there is, I testified to that. , A. ~nd what the conversation was with Mr. Legere at

I Q. that particular time, is that in your notes? j A. Yes, some of the conversation is in my notes, to the,

best of my recollection, yes.

Q. Would you check your notes again and see what time

you arrived at the police stat~on?

A. I arrived at the police station shortly after

6:00 a.m.

Q. What do you call shortly after? A. It was four minutes after.

Q. About the same time Mr. Legere arrived?

A. I don't know, I was talking at that particular time I ( I to how the news media arrived so fast I do not know,1 15 but I was - first of all, the side door was locked, !

it was very, very cold, I was outside, I couldn't ge~

I in. There was newspaper people that showed up. I

i spent approximately ten minutes outside with them i i telling them that they would have to go through the! JO : proper channels to find out even if Mr. Legere was

here yet because I did not know. I would neither

confirm or deny that he was arrested, that they

would have to go through Sergeant Munden, so that

would bring me to 6:14, 6:15 even before I got :5 .inside of the Detachment.

Q. ~hat time did you meet with Constable Mole? A. What time did I meet with Constable Mole?

Q. Yes. A. ( I met with Constable Mole between 6:35 and 6:40. Q. You didn't see him before that?

I A. No, I don't know where he was. I I Q. Now, you mentioned that Constable MacPhee handed youl

I I

-< "-_. l -102 - S/S~t. ~ohnston - Cross (Recalled on Voir Dire),

a piece of paper which was a consent for Mr. Legere

to sign, is that right?

Yes. I A. I I Q. And what again was your attitude towards that? J i Well, I thought it was - it didn't have any bearing = I A. I on the matter whatsoever from my previous knowledge , of Mr. Legere. ! j Q. So you didn't even bother asking him? ! IA. Oh, no. No. i

°1 Q. From your previous experience in 1986 - I realize in 1 ! '86 you relied on the Alderton case but I'm sure I also from '86 you realize that you could have went !

and got a search warrant from a judge? ( A. From '86? ~5 I Q. Yes.

A. No, I realize that I could not. I I Q. You realized you could not get a search warrant I I I from a judge? I i A. In my opinion that search warrants were not permitted

20 to seize hair from a person's cody after 1986. I

I Q. So what you're telling me, I think, if I read you i i right, is t~at where a judge doesn't have the i ; . , authority to take hair samples from an accused p.er.sD n . 'I I that police officers do? I 25 I A. As an incident of arrest. I can't answer the other I

part of your question. I can't get into what common Ii

law principles are and what the Law Reform commissio~ is now recommending.

. Q. You realized Mr. Legere haa appealed that aspect of ( j searching his - seizing his hair in 1986? IA. Yes.

..:. '.". l 103 - 3/Sgt. ~onnston - Cross (Recalled' Voir Dire

I And were you aware of the decision DY the New Q. j Brunswick Court of Appeal?

I A. Yes, I was. I I Q. And were you aware that the New Brunswick Court of 5 Appeal found that that did violate Mr. Legere's rights?

A. Violated his rights? Q. To seize the hair off of him as was done?

A. Are you telling me that's the decision or are you

,~ asking me?

Q. Yes, I'm asking you, do you know what the decision

was by the Court of Appeal of New Brunswick?

A. I actually haven't read that whole decision. I coul

only be guessing what the Appeal Court said on the ~5 matter. I think it said that pOlice acted in good

faith when they took the hair, that even with the

search warrant that they did act in good faith.

I'm not quite sure what the final gist of it was.

I know it was being appealed to the Supreme Court of :'0 .- Canada.

Q. But as far as you knew at that time the Court of

I Appeal allowed it in because you were supposed to i

I have acted in good faith at that time? , i A. And also I was acting in good faith on the 24th '::5 day! of November, 1989. . -1 Q. That it did violate Mr. Legere's rights but it i would not bring the administration of justice into I

! , disrepute because you acted in good faith? ( That's right. . That's because you followed the advice of a Crown i :: I Prosecutor? i I

i I A. Yes, I told you that I followed his advice. ! I also I ! I 1

-~ '..,. T

( - 104 - S/Sgt. Johnston - Cross (Recalled 0 Voir Direl -,. testified that I reinforced my own belief.

I i Q. Yes, but in 1989 when you decided to seize the hair

off of Mr. Legere you threw the advice of the Crown; ! Prosecutor in the waste paper basket?

~ A. No. Q. Figuratively speaking, because you said, "To heck

with that, we're not going to follow Mr. Ferguson's"! MR. WALSH: He never said -

i

WITNESS: I never said that. i

! WALSH: The officer never said that, My Lord. I '0 I MR. WITNESS: I never said that. I MR. WALSH: He responded in a different fashion as to why an

what he did with the consent that was given to him.

. Mr. Furlotte has 1 ( a tendency to testify in which he . 15 re-organizes the answer to a fashion that suits him.

THE COURT: I don't think there's been any suggestion in the- I

evidence so far, you can ask him about this if you \

I like, Mr. Furlotte, but I don't think there's been I j any suggestion that he knew where this consent had 20 .1 come from. Perhaps he did. I think his evidence !

was that MacPhee or somebody had handed him the

consent, he looked at it, he read it, and it says, I "I consent to hair being taken", or whatever, and he j

. " I said, "Look, I don't want that". You can ask h 1m . 25 about it if you like.

MR. FURLOTTE: Did Constable MacPhee advise you that that

, consent form that he gave you came from Mr. FergUSOn~; A. Yes, he said it came down from Mr. Ferguson./. _I didn'lt run out and talk to - ( / ! Q. Well, didn't that clue you in that Mr. Fergu,on suggested that, "you better get his consent if you want his hair"?

..,,,,.., ( -105 - S/Sgt. Johnston - Cross (Recalled c -, Voir Direi .( i . A. At that particular time I said I had previous

dealings with Mr. Legere and my testimony bore my

thought -, proved my thoughts correct, when we just asked him verbally about the hair sample he refused.,

Now, what was -

Q. So what you're trying to say is you felt you were

still acting in good faith because of the advice of Graham Sleeth from back in '86?

A. I thought I was acting in good faith because I was '0 i involved with the investigation on a murder of Fathel!

Smith and also that my brief related to three other I

brutal murders. That's why I thought I was acting

in good faith. Taking into consideration all the ( circumstances, taking'into consideration the AldertoI ~5 case, taking into consideration the incident of

I arrest, part of it, I believed that we did everythin~

in our power to act in good faith. I

I

Q. And in 1989, again, you did not tell Mr. Legere that I he had to consent and you wouldn't be able to take I 20 the hair if there was violence?

A. No, that was a non-issue with the hair sample in

1989. There was a conversation between him and i

I Constable Mole that Allan knew the procedure and

I Allan said, "I'm not consenting, go ahead and do what] 25 you have to do". I

Q. Nor at that time did you tell Mr. Legere, "Well,

Allan, maybe you better call your lawyer on this again"? A. ( No, Constable Mole had previously given him another opportunity to call a lawyer but we didn't say no

because he didn't refuse this time, he just said,

, ,,:2~.,",. ..

l - 106 - SIS~t. Johns~on - Cross (Recalled ( Voir 9ire,

"I'm not consenting". , I Q. Now, you said that Constable Mole gave him the

opportunity to call a lawyer beforehand, and I heard'

testimony where you said that Constable Mole had

read him his rights.

51 A. Yes. Now, what did Constable Mole do to give him the

I Q. opportunity to contact a lawyer? I A. Asked him did he understand, and he said yes.

'n Q. Did Constable Mole say, "Well, Allan, do you want

to call one, we'll get you a phone"? A. No.

Q. So he didn't give him the opportunity to call a I ( lawyer, is that right? 5 IA. You're playing with words. I'm .aying h. gave him .1

the opportunity when he read him the Charter notice. I !

Q. I That's like giving him the opportunity to see a 1 ;

doctor, wasn't it? i 1 A. I

20 Q. Yes, I made all great efforts to get him a doctor. I Mr. Legere saw the doctor at what time, nine-thirty, I I was it?

1

i A. Yes, and most hospitals I would suggest that that i was fast. I

i Q. Now, you say you were in charge of Mr. Legere at thiS 25 I time, the investigation? ! A. What - ! Q. When Mr. Legere was in the interview room being

questioned and bodily hair substance was being

yanked off his head you were in charge of the (' investigation; is that right?

A. I was the senior officer there, yes. ..

<-- - 107 - S/Sgt. Johnston - Cross (Recalled. Voir Dirl

! Q. You were the senior officer there?

Yes.

I A. Could you tell me how Rick McLean got a hold of i Q. , the picture that was taken with Allan Legere by the

police department? 5 I I have no idea. ! A. I

I Q. Did you ever feel the necessity to investigate into

\ it?

A. No. No.

'0 Q. Do you know how Rick McLean got a hold of the

information -

MR. WALSH: My Lord, again, I don't wish to, and I know I

am, but I feel obligated to interfere again. I'd

( like to know where he is going with this cross- '5 examination. I just don't understand where this

is leading to. I appreciate that he has a right but this is a voir dire related to certain issues.

I'd just like to know if this issue is somehow i

: I related to what we're dealing with. If it is, fine. ~ I If not, I'd - I I MR. FURLOTTE: Question of good faith, My Lord. The Crown

brought it up. I

THE COURT: To me it means very little. I don't know who i

, the devil Rick McLean is. Is that the name you're i 25 uSing?

.1 MR. FURLOTTE: Yes, Rick McLean is the author who.wrote the I book, "Terror on the Miramichi". I ! WITNESS: I wasn't quite sure either but now I - O.K. i I ! "Terrol' ! Q. Rick McLean is the author who wrote the book, .:I ( on the Miramichi"; right?

I THE COURT: He got a picture of something?

",O2~ '.K" ( 108 - S/Sgt. Johnston - Cross (Recalled' -. Voir Dire I

FURLOTTE: And the picture on that book is a picture

'I MR. that was taken by the R.C.M.P., on the cover of that

I book is a picture taken by the R.C.M.P. upon Mr. I Legere's arrest that morning?

:; I A. I've never read the book.

Q. Have you ever seen the cover?

A. Yes, I've seen it in bookstores and I've picked the

book up and I'm just trying to - show me it and I'll

I don't remember actually what picture. What

10 picture is it of Mr. Legere you're talking about?

Do you have a picture that

Q. No, I don't have a copy of the book here.

A. So what picture are we talking about?

<- Q. The picture of Mr. Legere with a black.eye. 'S A. And you're asking me how do I know - do I know how

that he got a copy of that~

Q. Do you know how Rick McLean got a copy of that

picture for his book?

A. No, I have no idea that - maybe he took it from the :0 television news broadcast or maybe it was taken

outside by the public relations people of the R.C.M.P.and shown to the news media who took t- .; -'I pictures of it or maybe it fell out of a tree, I I J i don't know. I 2S I THE COURT: Does this have any bearing really, Mr. Furlotte?1 I FURLOTTE: Well, it's justa question of if whether or not thesl

police officers were acting in good faith, My Lord, I, MR. and if they're divulging information that they i I ( . j shouldn't be to the media, then I would question j their good faith. I I I THE COURT: This witness has told about fending off people on ! i ,

.' ,.,,, ",'. (' 109 - ~/Sgt. Johns~on - Cross (Recalled ( -. Voir Dire')

his arrival at the Detachment of the media people. i and dealing with them and so on and refusing to make!

statements. He says he didn't even perhaps know

whether -

5 MR. FURLOTTE: No, but I'm just aSking this witness if he did it himself or if he -

THE COURT: Yes, but there must have been dozens of media

people around there that morning, I suppose, were

there, or there were some half-dressed, some totally

'0 dressed, and others probably naked with their cameras and - ,

MR. FURLOTTE: you in I court hereNow, today some ofabout the Mr. evidence Legere that tellinggave you about ( rolling up - the people on the train looking at the 15 wrong arm and that. That information came out in

the book by Mr. McLean also. Did you divulge that information to Mr. McLean? A. No.

Q. Do you know who did? 20 - A. I have no idea but I would imagine there would be a hundred different sources that would have that

information at that particular time. I read somethi$.

about myself and - I I Q. You mean a hundred different police officers? I I 25 I A. Police officers, Crown Counsel, lawyers that maybe I 'I There was I had that information, I don't know. I something said about myself in the paper by the newsl

media that wasn't - that Mr. Legere hugged me when ! he saw me. You know, he had his hands behind his ( back. Is this - is it in the book about his arm

being - on the train?

," , -<. ( 110 - 3/S~t. ~ohnston -Cross (Recalled' Voir Dire

I

, Ii ! Yes, it is. It's also in the book about identifica-i I Q. , tion being found on Mr. Legere of Fernand Savoie. I ,I HR. WALSH: My Lord, again - i I THE COURT: We seem to be getting - you're probably going I i 5 to suggest that we're getting rather far afield, and!

! surely we are. I mean a hundred police officers maYI

have gone out and told the public or Rick McLean or whoever he is what happened, but we're not investi-

gating the police force here. '0 MR. FURLOTTE: No, I'm investigating Mr. Johnston who was

in charge of that investigation.

THE COURT: Yes, but are you -

A. That was one investigation I was in charge of but

( if you want to say that I gave that information .~ directly to Mr. Rick McLean you're way out in left

field because I already answered to you I didn't,

and I will not let you insinuate that I did.

Q. Oh, I'm not insinuating you did, I'm aSking you if

you did. Then I'm asking you if you know who did. ?O I've answered that question when you first proposed

I A. it to me and answered no t6 it.

THE COURT: Don't you think we had better let that end of

it perhaps drop there?

MR. FURLOTTE: No, that's fine. I ;<; THE COURT: Unless you have some specific question that has! a bearing.

MR. FURLOTTE: No, it's just a matter of the Crown is

- I bringing here and bringing in tons of POliC/offiCerj

to say how much they are all acting in good/faith, I (

but when evidence of criminal investigation -gets outl

to the media before a man 1s even charged, I just I wonder how much good faith is actually being shown, ,

:2~ "M~' ( ill - S/Sgt. Johnston - Cross ( Recalled' -. Voir Dir !

so what you're saying, Constable, is that any eviden~ ! that got out to the media of your criminal investiga~

tion which was supposed to have been kept confidentia

you don't know how it got out and you've never

caused an investigation to find out how?

A. No, I've never been asked to cause an investigation.. ! I don't know how it got out and actually I have not read the book. I was told it was garbage and I wasn\ I

interestedin reading it. 1 '0 Q. Are you sure you got David Hughes on the phone for;

Mr. Legere or was it a fact that David Hughes phonedI

I in for Allan Legere because he was contacted by

somebody else to get a hold of him~

{ A. I phoned David Hughes.

151 Q. You phoned David yourself? A. Yes.

Q. And then once you got a hold of David you gave the

phone to Mr. Legere?

A. Yes. He was given opportunity previous to that to 2C get a hold of Mr. Hughes. I testified that he at

that time wanted nothing to do with Mr. Hughes.

Q. When were the handcuffs taken off, Mr. Legere?

A. Shortly after Constable, no~ Corporal Mole, and

myself and Ron Charlebois went into the cells, 2S within a very few minutes.

Q. And up until that time his hands were always handcuffed behind his back?

A. Yes. ( And where was he situated in the cell? ,~ I Q. A. Oh, he had been standing up. I think he - I don't

know whether he had been sitting down or not but he was standing up one particular -

"_'O2~ 4'"~, ( -. - 112 - 3/S~t. ~0hnston - Cross ( Recalled 0: Voir 9ire

Q. Walking around?

A. Yes. Mr. Legere was - after he made a complaint to

me about him kicking and getting kicked and whatnot

and wanting to see a doctor and whatnot, he was in

a very good mood. :: j, : Q. That's during the IS-minute period from 6:20 to 6:351 I j A. During the whole day Mr. Legere was in a good mood, I that I had anything to do with him. You'd have to

I ! find out from Corporal Mole but he was happy-go-lucky' ~ I talking a mile a minute. i t He was up walking around the cell and talking to you I I Q. I and - I j I I A. Dh, yes.

I ( Q. Motor mouthing, as you call it? I I .~ A. I didn't use the word motor mouthing but that's a

i very good description of it.

! I IO. Did all this while he was naked? i He had a Dlanket around him. jA-

1 Q. How did he keep the blanket on with his hands ...-0 handcuffed behind his back?

A. Well, that's a good question, I don't know. i I Q. You're sure there was a blanket on him?

A. Dh, yes, I'm positive. I'm positive.

. Mr. Legere wouldn't feel - do you suppose ~r. Legere; 1 would feel that free to talk to you if he was naked?! {" i I A. If Mr. Legere was naked I would make sure he wouldn't

be naked while I was talking to him. I , Q. You do admit you promised to take the handcuffs off

( him once Kevin Mole arrived, ?uring that 15-minute period that you were talking to him?

! A. Yes, I would have been out of there in probably 40

04 50 seconds.if he hadn't have kept rambling on.

:', :.- t - 1~3 - SISgt. Johnston - Cross (Recalled c Voir Dire)

I Q. So you admit you promised to relieve some of the pain

I and agony he was going through?

I never promised him anything. He asked me a j A. j question and I responded that I would.

Q. And you promised to get him a doctor?

i A. I promised nothing. I told him I would and I did. , ! tQ. You didn't say I promise, but you told him you'd get: him a doctor?

A. Yes, and his teeth and his glasses, and I said - andl :0 something to eat.

Q. And his dentures? I have no further questions.

REDIRECT EXAMINATION BY MR. WALSH:

Q. Just a couple of points, My Lord, if I may. You (

's have indicated - Mr. furlotte asked you a question about going to see Mr. Legere at his request a few

days before the Glendenning trial, and Mr.Furlotte

put something to the effect that you didn't record the conversation or take notes at that time. Was

~') there a reason for that?

A. Yes, there was a reason for that. In the letter

i that I know that came from Mr. Legere he told me to i

come without any tapes, without any bugs. When I

got there Mr. Legere searched me to make sure that Ii I :~ did not have a tape recorder strapped to my body I I

-I or any other recording device on me.

Q. Were you allowed to take notes at the time?

I A. No, he even checked an office drawer that - I had

I I an office there, he even checked the drawer, and to i

-I ( my surprise there was a tape recorder in that drawer; i

I It wasn't hooked up or anything of that nature but

this is the length that he took to ensure that this

-.-, ";- .0 l - 114 - S/Sgt. ~ohnston - Redirect (Recalled r Voir Dire

I conversation was not being recorded. I : Q. Thank you, and with respect to the word - the word i I game plan got mentioned in the cross-examination.

I This particular game plan you had, would you tell me! what - actually, when you use the phrase game plan what were you actually meaning by that, what did that include?

A. Just the interviewing of Mr. Legere, that I had no

intention of talking to him. It was decided previous

"0 to the arrest of Mr. Legere if and when he would be

arrested that Constable, now Corporal Mole, and

Constable Ron Charlebois would talk to him and no

one else.

( Q. And the final question that I have is again as a ~s result of the cross-examination, Mr. Furlotte was

asking you about the investigation and you replied

one aspect of the investigation, you were dealing

with one aspect of the investigation, something to

that effect. What did you mean by that? ~c A. I was dealing with one aspect of the investigation~ Q. I don't know whether or not that in fact was your

exact words, perhaps I'm wrong there. What offencesl j if any were you investigating and were you resp3nsLbJe i for that particular day of the arrest? :s A. I was investigating the death of Father James - Father Smith Q. I And when you say you were the senior - ! A. Yes, and also that Constable - Corporal Mole was I ( "- j there and he arrested him, gave him his notice on the other murder of Annie Flam.

I" MR. WALSH: Thank you.

I

I

;, "; -I --

( - 115 - Cpl. ~ole --Direct (Recalled on Voir Direi

, THE COURT: One question I wanted to ask, JOu said earlier I

i on in your testimony that Mr. Legere had said when I you went into the cell block, "Come here, you short ! little fucker, I want to talk to you".

- A. Yes.

THE COURT: Was that said in a malicious way or a friendly

way or a joking way or -

A. No, friendly, very friendly.

THE COURT: It was friendly?

'') A. Yes.

THE COURT: Your relations were good with him, I take it?

A. I only surmised he was happy to see a friendly face.

THE COURT: Any questions counsel want to ask on that? ( You weren't hurt by it? '5 A. Oh, no. No, no.

THE COURT: Thank you very much.

CORPORAL KEVIN MOLE, having already been sworn, testified as follows: :~ DIRECT EXAMINATION BY MR. WALSH: " MR. WALSH: Corporal, would you please - now, this is the

third time that you've been on the stand. Would you

now relate to the Court your involvement in the

matters pertaining to this particular issue? :5 A. Yes, My Lord, in the early morning hours of

November 24, 1989, I was summoned from my motel room

in Newcastle and as a result of a conversation,

telephone conversation, I proceeded to the Newcastle Detachment of the R.C.M.P. i At that particular time ( .I I was to meet with Constable Charlebois and at the

I Detachment meet with Sergeant Johnston. I arrived at I

the R.C.M.P. Detachment. I was met there shortly

-.-: ,," :~

'-

l - 116 - ~pl. Mole --Direct (Recalled on Voir Direi

after my arrival with Sergeant Johnston. I had a

I brief conversation with Sergeant Johnston. Following;

! that conversation I made a very brief telephone call. :

I I Following that telephone call I again met with d Sergeant Johnston. I received instructions on what

Ii was about to take place. Following this conversation' j I went directly to the Forms Room at the Newcastle I Detachment where I recovered some clear plastic I exhibit bags from a box of new exhibit bags at the

'c I Detachment there. I also recovered a pair of thin I linedsurgical gloves from a container there. I also

recovered a pair of first-aid scissors. Following

that I met with Sergeant Johnston and Constable I ( Charlebois in the lower area of the Detachment leadin

"') to the cells. I followed Sergeant Johnston into the

rear cell area. I preceded Constable Charlebois. 1 \

I arrived in the rear cell area. At that time I

I ;I Cosntable MacPhee was in the hallway between the two , cell areas. In Newcastle Detachment there is a main I I :"0 .1 cell block hallway with two adjacent cells, one at I

I

each end of the hall. Mr. Legere was in a cell at i

the north end of the building. I entered the room. The cell room is divided. i There is a small space I

i before you come into the cell itself. 2~ This is again i

I

a short hallway. When I entered that hall Sergeant i Johnston was there. Just seconds before I entered thJ

room I had stopped momentarily, had requested from

I Constable MacPhee the key to the main cell. I-enterea

I j f :I the cell area with Sergeant Johnston and I we~t to thg cell door. I believe at that time there was. commend

I from Sergeant Johnston asking Allan Legere if he :

.~> .."~ ( 11 7 - i: pl. :-101e - ";jire c t fRecalled on 'lair Dire)

recognized me. At that time I opened the cell door

and Mr. Legere smiled at me and he made a comment

regarding my hair and I said, "Well, what happened to

your hair", and he said, "Shave and a haircut in

Montreal, $22.00".

; Q. What was your purpose of that particular question,

Officer Mole? j

I A. I noted that Mr. Legere's hair was totally different I from the last time I had seen him. The last time I

'0 had seen him in person was the 8th of December, 1988,

and he looked quite different. Q. Continue.

A. When I met Mr. Legere at this time he was standing in ( the centre of the cell area. He was barefoot, he was '5 shackled, he had a brown wool blanket around his

neck, covering his entire body around him. I had my

handcuff keys. I went into the cell block area and

he said, "Jeez, you're fat", and I said to him, I sai~

"Well, you don't look so good yourself, I would have

never recognized you, you're so thin", and his face :0 I I was noticeably drawn, it was very, very - I would nev~ have recognized this man. His face was very, very

drawn and it looked longer than what I would have

recognized. His hair was very, very short as opposed ~5 to when I had last seen him. He had no beard or

mustache, he was clean-shaven. He had quite a

noticeable red bruise under his eye, or a swelling

area, and I thought maybe a scrape on his forehead,

on the right side of his forehead above his eye. At ( - , that particular time there I asked him to sit down so

I could take the shackles off his feet. I did that

and then I asked Mr. Legere to stand up, which he did.:

"" ,.,. .,

-. l - 118 - Cpl. ~ole --Jirect (Recalled on ':oir Dire I

Throughout this whole process Mr. Legere continued

to talk, mostly to Sergeant Johnston, just continuau continual conversation.

Q. When you say conversation, could you explain how

the conversation took place? Did it involve

question-answer or -

A. It was basically - I believe after the comments

about my weight and the change in appearance in

Mr. Legere - I believe at that time Sergeant i ., Johnston made a comment to Allan that - or a comment

i to me that, like, I wouldn't believe what Allan hadl i to say, like about living in the woods, and Mr.

Legere continued to explain how he had lived in the

( woods throughout the summer and that he had I ,~ travelled from location to location nightly and he I was in a different place every night and that he I I had five particular locations that he would stay

in but he would never stay in the s~me place

overnight. :0 I asked him to stand up and I removed his

! handcuffs. I had quite a bit of difficulty gettinit , i his handcuffs off. With the blanket on I asked Mr.;

Legere to sit down again as I was going to read

him the Charter notice and the police caution, and' :5 he sat down. He was - Mr. Legere was very cooperative.

Q. Did you in fact read a Charter notice and a police I

! caution?

A. Yes, I did. . i ( Would you explain to the judge, please, what you

I Q. i actually did?

I A. I sat down b~side Mr. Legere directly on his right I I ! - ,

t - 119 - Cpl. ~ole - Direct (Recalled on 'Joir Dire)

on the corner of the bed. Mr. Legere continued to I

talk to Sergeant Johnston, mostly about the

running from the police in the woods and things of ;

that nature. What I did is I asked him to sit

down and when he did I told him that I was going

to give him a proper notice and a Charter and a

caution, and after that I continued and I read the

Charter to him, the Charter notice.

Q. O.K., what would you have actually said to him?

'r) A.. I read from a card but I told Mr. Legere directly i

I that, "I am arresting you for the murder of Anne I

I' Flam", and then I continued to read from the card . Q. What would the crux of the card - what would - 1 ( A. Basically I told him that he had the right to I ~~ retain and instruct counsel without delay. I aSked

him if he understood and he said yes. I then gave, l

him the primary police caution advising that he i need not say anything, that he had nothing to fear: I from any promise or favour and nothing to - I read! , ~ ,. it from a card. I I Q. Do you have the card with you? ! A. Yes, I do. i ! Q'. With the Court's permission could he read the card: i as he read it that particular occasion, My Lord? : 25 ~ THE COURT: Yes. Might have to turn your card into evidence! I

I if lawyers insist, but you can get another one, I

suppose? , ! A. The card has changed, My Lord.

i THE COURT: Has it? Oh, you're talking about your old card?! ( . ,

j A. My old card that I had in 1989.

! THE COURT: Well, O.K., it's up to you.

-, ,., ( - 120 - Cpl. :'Iole - .Direct lRecalled on Voir Direi

j MR. fUR LOTTE : I'll admit that his rights were properly readt i j to him. I I A. This is the card that I read from in 1989. j Well, why not read from tne card, then? I THE COURT: Just read from the card as you would have read '''1 MR. WALSH: i it on that particular occasion, please. ! "I'm arresting you for the murder of Anne Flam. I A. the right: It is my duty to inform you that you have I J I to retain and instruct counsel without delay. Do 1 ! 'C I you understand?" Mr. Legere replied, "Yeah". I ;

I said, "You need not say anything. You have I

nothing to hope from any promise or favour and

nothing to fear from any threat whether or not you

( say anything. Anything you do say may be used as

'5 evidence." I again asked him if he understood

that and he said, "Yeah". I then read the

secondary caution and I said, "You must understand! I I that anything said to you previously should not

influence you or make you feel compelled to say

I :~ I anything at this time. Whatever you felt influencep

I or compelled to say earlier you're not now obliged I

to repeat nor are you obliged to say anything I " I

further, but whatever you do say may be given in -I

I

evidence. Do you understand what has been said to ; ~~ I I you?" And he replied, "Yeah, yeah".

Q. And what if anything did you do next, Officer? I I i A. I then asked Mr. Legere to stand, which he did. .t Atl this time he would have had the blanket over his

I I shoulders with his hands free and his feet free. ( . I I then advised Mr. Legere that I would be requiring,

I samples of his hair, and it was about this time that

a note that had been previously referred to in one

, ,.- ( - 121 - Cpl. ~ole - Direct (Recalled on -. 'voir Dire)

of the other witnesses had testified to - I receivec

a note from Sergeant Johnston at that time. I received the note from him in the cell at the time,

that I was to collect the hair. I opened the note,:

I just remembered it being a handwritten note sI consenting to seizure of hair. I just folded the I

! note and gave it back to Sergeant Johnston at that; time.

Q. Why? Why did you give it back? '° A. I didn't realize the use of the form. I was going i

to seize hair incident to arrest and I didn't feel i

that Mr. Legere would be consenting or I didn't

think it was required that Mr. Legere should have I (

to consent. I !S Q. I You say you were going to seize hair incident to I

I arrest; what if any authority were you relying on !

for this?

i . A. I 1 I had been aware of the Alderton case in a previous! matter that we had investigated and I was also! 20 j '- I aware that that case pertained to the seizure of I I

hair upon arrest and that in the past where we had i

i had difficulty was in the waiting a leng~h of time!

I before actually seizing the hair, but in this I

! particular case I was satisfied that we were takingj 2S I ..1

the hair at a reasonable time after his arrest. I

Q. When you say you had difficulty before when you I

I

waited a period of time what are you referring to? I

I j ; A. The Glendenning matter, or the Legere case, 1987 -.; ( I trial.

And continue, please.

I Q. ! A. I told Mr. Legere, I said, "You know the routine",

,,'CO .-" l 122 - Cpl. Mole - uirect {Recalled an Voir Direl

and he said, "You know how I feel about that. I'm!

not consenting", and I said, "I'm going to have to

take the hair, Allan, do you want to help me", and:

he said, "I'm not helping you, you do what you have'

to do but I'm not helping you".

Q. And what did you do? I

I A. I asked Mr. Legere to sit down again, to which he did, and then I didn't have a comb at the Detachment

: in Newcastle. We had taken most of the exhibit

~o supplies or whatever to the Douglastown office wherEI most of the investigations were being handled from,;

I so what I did is I proceeded to remove hair by

putting my fingers close to his head, taking three I ( or four hair at a time. or a group of hair at a I 15 time, and plucking them from his head. I I Q. What part of his head? !

A. This would be the top of his - mostly the top of i hIs head.

I Q. You're referring to scalp hair? 201 A. That's right. Mr. Legere sat on the bed and

continued talking to Sergeant Johnston. He never

made any reference to the taking of hair after

that. He didn't complain of it hurting and I

remember thinking at the time removing his hair, :5 I've collected hair samples, several hair samples

over the years, and usually there's some discomfort!,

and I remember taking hair from Mr. Legere was

like taking it from a corpse, it just came right / I out, it was very easy to come out and ther~ was no , ( . ~ ! flinch or anything, he just continued to ti1k. I

I removed some hair from the top of his head and I also used the blunt scissors that I had in my

I

'c "H~, I I

l - 123 - Cpl. t10le -. Direct (Recalled on Voir Direi

possession to remove some cut hair. I placed that

into that clear plastic bag that had been empty

prior to. I put an exhibit sticker on it and then.

I proceeded to ask Mr. Legere if he would stand up,!

please, and then I proceeded to remove some - I askea him to move his blanket a bit so that I could'

take some of his pubic hair. He moved the blanket"

I reached in, I just plucked two or three small

handfuls of hair and I went in and I snipped a few, I '1 with the scissors. I Q. And you did what with those hairs?

A. I placed those in the exhibit bag as well.

Q. The same bag?

( I A. No, in a separate bag, and I rolled the bag up.

s These exhibit bags are different than what we

normally would use. They're not the ziploc type

nor are they the type that have the automatic

sticker that you peel over and fasten. These ones I i here are much you buy but i like a sandwich bag that I ~ I they're made specifically for cOllecting exhibits; , i that the police use them, so what I did is I rolle~

the bag over one end and sealed it and I put the

sticker over the open end.

Q. What if anything did you notice about any portion ~s of his body while you were doing - tak~ng these particular hair samples? A. I noticed Mr. Legere in particular - a dramatic difference in his appearance from the last time I , had seen him in 1988 but also the time that we had: ( . t photographed his physique in 1986. He seemed to bel I I very, very thin, quite a bit thinner, and I think'

at one point there was a comment made about the

" ,." t - 124 - Cpl. ~ole - Direct 'Recalled or: Voir Dire!

number of pounds he would have lost. I had never

seen Mr. Legere's lower body physique before. I wal

surprised at how very thin he was from the waist

I down- He was very muscular, his upper developed ; ';,, I body is very - his upper body is very well develope- I I but his legs and his waist is very, very small, almost disproportionate to his body. He has a

very. very narrow waist, very thin legs. I noticed

when I seized his pubic hair that the clump of hair: -~ in the genital area was very sparse around the legs:

as if it had been worn or that he had gone a long

time perhaps without underwear, or there seemed to I

be some chafing or whatever that had taken the hairl I ( off. In around his genitals or where I had I I ~'; selected the hair from I noticed that his hair I I when it was en masse was a very, very light colour,! which surprised me.

Q. Why?

j A. I expected Mr. Legere's pubic hair to be similar :r, to his head hair and I'd always known Mr. Legere

to have dark hair. In this particular c¥se here his pubic hair was very light, almost light brown. Q. Continue, please.

A. Following receipt of the final exhibit, the pubic :'; hair, I put an exhibit sticker on that and I kept that in my possession.

THE COURT: Your voice is getting a little low. ,

i A. I'm sorry, My Lord.

( I THE COURT: Or else I'm getting deafer, one or the other. It's my voice, My Lord. At that particular time I i

j A. I waited for some clothing for Mr. Legere. I'm not I sure exactly if I asked Constable Charleboisto geti I i

"" .-, ) ..- - --

<. - -- L25 - Cpl. ~ole - Direct 'Recalled on loir Direi

some clothing for him, perhaps some coveralls, or

whether it was suggested that they would be -

someone would be going to get him a pair of i \ coveralls so we could take him to the interview

; I, room. That was our main concern at that time was to get him out of the cell area and into a i controlled environment.

I

i , Q. O.K., continue, please.

I A. During the time that we were in the cell area '" waiting for the coveralls, like I had testified

earlier, Mr. Legere continued to speak about his

time in the woods, how at one particular point he j

I almost had been caught by the police on the railroaF

( tracks. He had had a box of beer or bag of beer I '5 and he had to leave it on the tracks and he was

upset about that. He commented about how he was

able to stay away from being caught throughout the'

summer and how he had hidden in the woods and that!I

; the helicopters had been flying overhead and that'

:a I the police had had 4-wheel drives after hIm and he ,

1 also commented that he hadn't seen anyone all summer and that no one else had seen him and all

this talk about having an accomplice and no one

was - he hadn't even spoken to anyone all summer 25 and he had been reading the papers and he even -; joked at one pOint that he had been havi?g the , paper delivered to him. He talked about how he wasl

able to eat in tne woods and he ate very well and

he even went so far, I think, at this point to say ( -- I that he had - the types of food that he had eaten

I and he commented aoout how he had - when he first

escaped in Moncton how he had been at Botsford

..~ !", --!

l - 126 - Cpl. ~ole - Direct iRecalled on Voir Dire!

Street near the Legion and jumped a train, how he

had jammed his foot in the train, the buckle when

the train comes together, and he explained how he

. i wanted to scream and it hurt so bad and he cried

j and that the train came apart and the buckle fell ~ i

I open and he fell to the ground and that he had

broken his foot, had hurt his foot quite badly,

and there was a comment, I think, from Sergeant

I Johnston,about how he probably wasn't able to

walk, and Mr. Legere laughed and commented that he I

I 'C !

was able to return to Newcastle within a few days. I I I Q. Of what?

Of his escape, within a few days of his escape. I A. ( He talked non-stop. There was quite a bit of ' conversation.

I Q. Now, this conversation you're relating, at what I

points in time would he be relating this conversa- ~ tion in terms of what you were actually doing in

the cell?

:-: I A. This would be from the time that I arrived in the

cell until the time that we left to go to the I

interview room, approximately seven-thirty. ,

Q. How long after you went in the cell area befor"j;!Y.o;:>uI

. ~! actually gave him the Charter and th~warning? :s A. I immediately opened the door, there was a brief

conversation, like I said, about my hair, his weight, and I asked him to - I asked him to sit

down so I could take the shackles off his feet, I

guess that was probably the first thing I did in f

the cell with Mr. Legere, and then 1 took the i

I handcuffs off. I had quite a hard time to get the! handcuffs off. They had been placed on upside dow~I !

, ,", J

l - 127 - Cpl. Mole - Direct (Recalled cn Voir Direi

and I think they were double locked so they

couldn't close tightly on his wrists. I had a hare

time getting them off. Then after that he continue to talk and I asked him to sit down and then I read

him the Charter and

Q. What time would you have read the Charter at,

approximately?

A. Just prior to reading the Charter I had asked Constable Charlebois the time and he told me on

"0 his watch it was 6:47. I didn't have my watch with

me on that particular - at that particular time until I had left the interview room and retrieved

my briefcase.

( Q. Corporal Mole, you've indicated that you placed Mr. 1S Legere under arrest for the murder of Anne Flam? A. Yes.

Q. What if any other crimes were you part of the

investigation of and what if anything you did in relation to those crimes in relation to Mr. Legere? :0 A. My Lord, I was aware that Mr. Legere was the prime,

suspect in three incidents where four people had been murdered on May 29th, October 14th, and

November 15th, 16th, the murders of Anne Flam,

:s Linda Daugheney, Donna Daugheney, and Reverend James Smith.

Q. Now, earlier in your testimoney this week you gave!

the Court your grounds for the believe that Allan Legere committed the murder of Anne Flam and the ( Daugheney sisters. What if any grounds did you have in relation to what you now say is the incident involving Father Smith, the homicide

involving Father Smith?

.;~ "" <. - 128 - Cpl. ~ole - Direct -. (Recalled en Voir Dire)

1 A. I was aware that there had been a great deal of

I violence at the father Smith rectory in Chatham

Head, that there had been, as with the flam, I Daugheney and Glenaenning incidents, there had beenl

some facial injuries, in particular with the

Daugheneys and Mr. Glendenning and with father

Smith there had been extensive facial injuries.

I was aware of that. I was aware also that a knife!

I had been used at the flam, also of the stab wounds; '0 i at the Daugheney scene, and I was aware that fatherl , i Smith - there had been some knife wounds as well on: father Smith.

Q. And what if any knowledge did you have as to the ( comparison of the knife wounds at the Daugheney's ,~ and at father Smith?

JI. I had no knowledge of their actual dimensions or

anything, only that there had been a knife

involved, or a sharp object had been involved to I

I :0I cut the victims. . I J i Q. Were you aware of what parts of their body? j A. Yes, the face and neck area, the upper area. Q. Continue, please.

A. I was also aware that our investigation led us to

I :5 believe that Mr. Legere was still in the area, that; I

we felt that he was hiding in the woods in the i

Bushville area between Chatham Head and Chatham, the town of Chatham.

I Q. Where would that be in relation to where f~ther

i / ( Smith was found? ~ father Smith's body was located at the Catholic

I A. rectory in the Chatham Hea~ village.

.'~,,' <- - 129 - Cpl. ~01e - Direct (Recalled on Voir Dire)

! Q. Where would that be in relation to Bushville and - ; I I A. That would be directly adjacent to it on the same

i side of the river. ! ! Q. Continue, please.

A. Most of the searches in the area that preceding

week to Father Smith's death had taken place with

our dog teams and our Emergency Response Team along -.

the track area through Bushville leading to Chatham j Head and back. On the 15th of November in the!

'1 evening i was aware that our dogs or the dog ,!

handlers had indicated that they had chased !

persons down through the tracks from Bushville to I

Chatham Head to the area of Father Smith's rectory. ' ( I was also aware that that is the same evening I ~~

that Father Smith failed to report to a meeting at I the church in Chatham Head. I believe that that -

evening we were chasing Allan Legere. I was also aKare that Father - on the 16th of November Father

Smith's car was stolen from his home, taken from T! his home, and was deposited in Bathurst, New

Brunswick, that as a result of that information

we were interested in checking all trains leading

from Bathurst to the Upper Canada area that

evening, and in fact inquiries were made to 2~ instruct police officials from Bathurst to Quebec

at certain locations to stop the trains that were

going to Ontario and check for possibility that

Mr. Legere in particular was aboard the trains. ( I was aware that some footwear had been located in I the Bathurst area near where Father Smith's vehicld I had been located. I was satisfied as one of the'

investigators that the person responsible for

c-"<..", ( 130 - Cpl. Mole - 8irect (Recalled on -~ Voir Direi

father Smith's death had remained in the house for'

a long period of time, much like what we had felt

for the flam incident and the Daugheney incident

where the perpetrator in those offences obviously

stayed in the home for a long period of time as

well, and Mr. Legere had volunteered to me when I

met him that he had been in Montreal, obviously

recently, he had gotten a haircut and a shave for

$22.00. 10 In the cell area Mr. Legere advised of a stor~ , about being on a train on the way to Montreal, or I

had been on the train in Quebec and being stopped

in Quebec and two policemen questioning the'

( witnesses and he related the story about how he 15 attempted to give them the impression that he was

with the person that was next to him in the seat.

That person was asleep and he had to stand up and

they wanted identification and they wanted proof

of who he was, so he wasn't able to do that but ~I they asked him to raise his sleeve and I believe

he told them that he had raised - he told us the I story at one particular point when I was taking th~ j hair and then he told the story again after he had! i the coveralls on and I recall in the area before ! ~ we left the cell that he took his coveralls and i i he raised his hand up and he says, "Boy, I thought. I I was caught", or, "Oh, ruck, they got me now", an~

1 I he said, "I brought it up a little bit", and he I ( " I said, "and the policeman said more", so he said, "I brought it up a little bit more", and I'm! I pretty sure he showed his right arm, ana obViously;

,~, ...,. ( - 131 - Cpl. Mole - ~irect (Recalled on -., Voir Dire)

they were looking for a tattoo or whatever and they! didn't find it.

Q. Up until the point that you had actually arrested

Mr. Legere for the murder of Anne Flam what if any

5 conclusionshad you drawn from the informatlon that

you had up until that point in time as to the

perpetrator of the death of Father James Smith?

A. I felt at that time - I believed at that time that

; Allan Legere was responsible for all four murders, I .~ including Father James Smitn. I . i Q. Would you tell the Court, please, why then - lf yow

have any reason, why you only mentioned the name !

Anne Flam when you arrested nim on that particular! ( occasion? I I '5 A. Prior to entering the cell block area I was aware ! I

I that Mr. Legere had been given his Charter notice I and he had been warned. I was not aware to what i

extent. I was under the impression when I entered the cell block area that he had been 2: . ; arrested for being unlawfully at large. It was my !

I intention when I entered the cell block area to

advise Mr. Legere that he was indeed under arrest

for murder, and the murder that I chose to arrest him (or was Anne Flam. 25 j

! Q. Why didn't you name the other offences as well? "

A. I really didn't think it was necessary.' I advised I him that he was under arrest for murder in the

murder of Anne Flam. ; Q. Was it your intentions to have him also under ( " i arrest for the other two?

I A. Yes, it was.

I

""' ,,' I .r

l - 132 - Cpl. ~ole - Direct (Recalled on Voir DireJ

. Q. What happened next, Officer? ?erhaps if I could I ask you, why did you want hair? I A. I was aware that at our scenes we had some hair. I was aware that I had hair from a 1986 occurrence I which I had no way of knowing if that hair, as I

;I i testified earlier - I wasn't sure of the validity of that hair with the courts today. In my. mind I

I was seizing hair with the proper authority and it

i was on the incident of arrest, and that hair 1 was,

'0 sure of.

Q. What if any purpose did you have for actually , taking that hair as an incident of arrest? i I A. I took that hair upon incident of arrest with the i ( expressed intention of having it examined, I 'S physically examined for DNA analysis. I Q. Eefore we go any further, what if anything did you I I,

do with the scalp hair and the pubic hair that youi t I I i took as you've described? You said you had two / i bags; what did you do with those bags?

. ~ i A. I kept those bags in my personal possession. I

eventually, on the 26th of November, 1989, at

19:55or 7 :55 p.m., I met with Constable Laurent Houle, a member of the Newcastle R.C.M.P. . -,I _. i Detachment, at the Newcastle R.C.M.P. Detachment. 2S At that time I was provided with exhibit numbers

from his case. I put those exhibit numbers on the I I I exhibits that I had and I turned them over to I

Constable Houle at that time. !

Q. Do you remember the exhibit numbers? ( A. I believe the pubic hair number was #83 and the head hair number was #84.

Q. I'm going to, at this time, My Lord, if I may be

-:, '" ( 133 - Cpl. Mole - Direct ': Recalledon Voir Dire!

! permitted, have these items marked for IdentificatL I THE COURT: 83 would be VD8l6. and the other would be

VDUl7, 884. Are these empty bags?

MR. WALSH: Again, My Lord, yes, they're apparently empty

bags, yes.

I THE COURT: How close to the end of your direct examination

I are you getting now, Mr. Walsh? MR. WALSH: Well, we're probably going to be another, I

would think, fifteen minutes at least, I would

'0 guess.

THE COURT: Yes, I wonder if - would counsel feel they i would like a break now? I

MR. FURLOTTE: Yes, I believe that would be fine. I MR. WALSH: ( If I could just perhaps show him these se I can I '5

get out of the road, My Lord? I I THE COURT: Yes, do that and then we'll recess. I

I

MR. WALSH: I'm going to show you what's been marked on the t , voir dire as #VD16. Would you look at that for meJ

please, and tell me whether or not you can ~: , - recognize it?

A. It appears to be a bag similar to the bag that I

used to dEposit the pubic hair of Allan Legere on

the morning of the 24th of November, 1989. I

recognize the exhibit sticker and it's placed as 25 ,I . -, I had testified earlier across the open area of th~

bag and it has my initial, my name, actually, my !

rank, where it was seized, Newcastle, New Brunswic~.

I the approximate time, 6:55 hours, and the date, i the 24th of November, 1989. It also has the file ( -. I number, 89-40-47, I believe that's the file number. i , of Newcastle Detachment for father Smith, and the I 1 exhibit number, 89-548, and in a different coloured i

'0'" ...~. l 134 - Cpl. ~ole -- ;)irect (Recalled on -. Voir Dire)

pen, U83, that would be myself that put that on.

Q. And where dia you get that number from, 83?

A. From the exhibit custodian, Constable Laurent ! Houle, two days later.

And I'll show you this particular item that's ,I Q. marked on the voir dire #VD11. Would you look at I that for me, please, and tell me whether you can

identify it?

Again this appears to be the same bag, has a

similar sticker on it, has the same date, time, i -0 I A. ,I my name, my rank, same file number, exhibit number,l

and the item number in this particular case is 84. !

This would have contained at one point, or when I I ( ! turned it over to him, the scalp hair standard of I 15

Allan Legere seized on the 24th of November, 1989. !

Also has again a sticker from the lab and some I I initials that I would take it are from our crime !

i

I lab. ! Q. You're referring to the red stickers? :: I i

A. Yes, the initials and the red stickers were not on i

I

when I gave it to Constable Houle. i

i I Q. I see. Were there anything inside the~e bags at the time you handed them over to Constable Houle?

A. Yes, they both contained hair standards that had ~5

been seized from the suspect, Allan Legere. I I Q. And in whose custody did these bags remain with thei

hair from the time that you took them to the time

you turned them over to Constable Houle? / ! A. j ( -.-I They were in my personal custody. j MH. WALSH: perhaps at this time, then, My Lord, we~could j ! have that break.

:.. ".-, - 135 - Cpl. Mole - Direct (Recalled on Voir Dire)

THE COURT: O.K., we'll take ten or fifteen minutes.

(BRIEF RECESS - RESUMED AT 4:05 p.m.) I

DIRECT EXAMINATION OF CPL. MOLE CONTINUES:

Q. Corporal Mole, would you take us again to the cell area where you had taken the hairs on this

particular occasion? You've identified the

packages. When did you next see those two items

that were shown to you just before the break?

After you turned them over to Constable Houle when

did you next see the items 16 and 17 that's been

marked on this voir dire?

A. Yesterday afternoon, the 23rd of April.

Q. And in whose possession were they when you saw the at that time?

A. Constable Houle.

9. What if anything else occurred at the particular area where you had taken the hair and where this

conversation occurred, if anything?

A. I can recall that we allowed Mr. Legere to put his coveralls on. This would be ten or so minutes

before we left the room, and we gave hin a bit of

privacy there, and he came out and continued to

talk about the train going through Quebec and he explained - this is when he pretty well showed us about-the raising his right arm.

Q. Where were you when he did that?

A. This would be in the cell door area coming from the

cell into the hallway of the inside cell room, before we went into the main hallway of the cell

block. At one point there he said to me, "That co II 1 l - 136 - Cpl. ~o1e - Direct 'Recalled on Voir Dire)

shot at me first", he said. "and 1 bet you didn't

get a report of that", and he pointed his finger,

and then he went on to say about how he'd been

chased and, "I bet you didn't get a report on that"'

5 that's what he continued to say.

Q. What if anything was he referring to?

A. Well, he said he had been chased and that - chased

with a dog and he had - the dog had stuck his -

quite often through the summer he said the dog '0 used to - different dogs, and the dog was easy to

manipulate and that particular dog got to a point

where he knew him, and he said at one point the dog

nudged him in the rear end and he turned around and

( told the dog to fuck off and the dog did, and you ~5 know, he used the hand gesture like that, and he

said one particular time he was chased and that a

policeman that had the dog had shot at him and shoti

i I at him first. He said, "I could have shot h1m", I

I but he said, "I didn't", he said, "1 just shot over: ~o i his head, 1 shot in the air", so - ! ! Q. And where was he when he said this? i i A. This would be in the cell area on our way out to

the main hallway of the cell block, so this would be within that cell room. :5 I

Q. Where were you heading? I

i A. We were heading for the interview room at that tim~.

as I Q. What if any information did you give Mr. Legere I I I to where you were in fact going? I A. 1 told him that we were taki~g him to the intervie~ ( - t room for an interview. I ! Q. What if any intentions did you have to interview

I

:, .'" I t 137 - Cpl. t'1o1e iHrect (Recalled on -. Voir Dire)

hiu while you were in the cell area? IA. I had no real intention to interview him at that'

I time, no. I I Q. Continue, please, what happened next?

0 I A. We left the cell area. I believe Constable Charlebois went before us, and in Newcastle I Detachment it's quite a congested area and any

time that we try to interview a suspect or a person;

i in custody we have to take him through the main

i

'v office area into the front interview room which is i

I

near the front of the building. This would be on !

the southeast side of the building, so he went in front of us and to make sure that the area was I ( clear, that there were no other persons in the I ~5 area that would have any type of conversation or

would have any view of Mr. Legere. Whon thot w.. I

established Mr. Legere was brought forward and j taken right directly to the interview room where he!

I was placed. In the interview room there's - it's ai ! :'0 i room about 8 x 10 feet in dimension. There's a ,

I brown coloured carpet on the floor with walls quitel

I

similar to what you have here, beige. There was !

i

one table in the room, telephone book, and reel to ; reel tape recorder. My briefcase was there and my i 25 I overcoat. ,;

I Q. Now, Corporal Mole, we've advised the Court and thi i Crown has no intentions of eliciting any conversatio' I , for the purposes of eliciting any incriminating I i j ( - I statements made by Mr. Legere, if any, during the time at the interview room. What the Crown is

I interested in knowing is while you were in the

:', ",-. t - 138 - Cpl. ~ole - Direct ':Recalled on -. Voir Dire)

interview room what if any information was given tOI ! I Mr. Legere as to why he was there, why he was being,

I I I interviewed in relation to any offences and what if:

, any information can you relate to the Court

associated with his right to counselor any legal 51 ! advice?

A. At approximately 8:35 in the morning, 8:30 or 8:35

that morning, I again read rrom the card to Mr.

Legere the Charter notice, the standard police , '0 I caution and the secondary caution. 1, I Q. Why did you do this? I

A. Up to this point we - I had a difficult time

I taking any notes at all. Mr. Legere, normally whenl ( you speak with him he doesn't want you to take 15 notes, and he stops you from doing it, he distracts

you, and at that point it had always been Constablel

Charlebois's duty to take notes of conversation. ! I

Hopefully I would be speaking mostly with Mr. I

Legere in the interview room. 20 I had attempted at I

that time to have Mr. Legere agree to - throughout I

I the first hour in the interview room, agree to havel

!

the interview taped so that it would facilita:e I less note-taking, anyway. At around 8: 35 .a.m: the-1

! tape player in the room at the time was placed on I 25 I and I again for the record went through the Charter:

notice, the police caution, standard police cautionl

and the secondary caution.

j Q. Now, again, I don't want to be redundant but I

i would like you to do it for the Court, please, as ( -: I I you did it on that particular morning.

I A. I'd have to read from the card the entire thing butl

I

I ,- ."" '.M" I t - 139 - Cpl. ~ole - Direct {Recalled on Voir Dire} -j

the gist of the first part of it was, the general

conversation prior to my giving him the Charter

notice and the two police cautions, I had had a

general conversation about the murders.

Q. What murders?

A. The four murders that we were investigating.

Q. Who did you have this conversation with?

A. With Mr. Legere. As a result -

THE COURT: Who were present here, now, Charlebois and -0 yourself?

A. Yes, My Lord. , i THE COURT: And Legere or Constable Charlebois was in the: - I I room, three of you? ! ( A. Myself, Constable Charlebois, and Mr. Legere were !~ in the room. They were the only three chairs in

the room and at 8:35 I read from the card to Mr.

Legere the Charter notice, the standard police

caution and the secondary caution. In this i particular case, because we were talking specifica~ 20 - about all the murders on the Miramichi, I changed

the commencement of the Charter notice to a degree:

which I normally do when I'm interviewing a person'

about an incident.

Q. How did you change it? :5 ., A. At that particular time rather than saying, I'm

arresting you for a particular offence, I advise

the suspect that I am investigating him for this

offence. In this particular case here I told Mr. ( Legere that, "I am investigating you for the murde~ of Anne Flam, Linda Daugheney, Donna Daugheney, an~

. I Reverend James Smith". I then proceededto give'

:, -'M' l - 140 - Cpl. ~ole - Direct (Recalled on Voir Dire)

, him the Charter notice, I advised him of his legal - ,I I right to counsel, and I asked him if he understood,

I and he said, "Yeah".

Why do you do that? What is the reason for that? I Q. The reason for not arresting him or - 51 A. I Q. No, the reason for not using the word arrest the

second time?

A. It's my practice I don't normally re-arrest an

arrested person. I was satisfied that I had

::) arrested him for murder in the first instance and I:

still had control of that person and I made it I

very clear to him what I was investigating him for.! Q. Which was what? I ( A. The four murders previously mentioned. I then wentl ,~ on to read from the card as I had done the first I time. I

Q. And then what happened? What if any aCknOWledgmentl I I j did you get to this Charter notice and the warning?1

A. Each time Mr. Legere acknowledged that he -I 2°1 understood. I Ii I Q. And what if any request did he make ~or counsel?

A. Mr. Legere made no reqaest for counsel at that timeL

Q. Had he made any requests to you or to anyone in

your presence for a lawyer from the time you met : him up until this point in time?

A. Up to this point in time he had made no request to :

myself. I wasn't present when he made a request

to anyone else and I wasn't aware that he hFd made / ( a request to anyone else. ~ Continue, please.

I Q. ! A. At approximately 9:30 a.m. a breakfast had arrived

for Mr. Legere.

-~~ ,.- ~

<- 141 - Cpl. ~ole - Direct (Recalled on -. 'Ioir Dire i

j Q. At whose request was this delivered?

I THE COURT: I'm sorry, you said what time?

A. At approximately 9:30.

I THE COURT: This is an hour, though, later? A. An hour later, yes, that's true.

THE COURT: Nothing happened in the meantime?

There was general conversation, yes. I A. Surrounding what offence?

I A.Q. Surroundingthe offences previouslymentioned,the \

i .0 four murders in addition to other matters that Mr.

Legere would bring up.

Q. O.K., continue, please. A. When Mr. Legere's breakfast arrived - ( THE COURT: I'm sorry, was the tape recorder on all that '5 time?

A. Yes, it was. At approximately 9:30 when Mr. Legere's breakfast arrived I left the room

momentarily. He had asked for some Kleenex to

blow his nose. He didn't have a runny nose but 2Q he was sniffling, and he asked if he could blow

his nose, so I left the room, I went to the

1 bathroom area at the Newcastle Detachment, I .

i retrieved from the toilet area a fresh roll of i I I toilet paper that was wrapped in paper, a new roll j 25 i I of toilet paper that was wrapped as pa9kaging. I

I I opened it up and I retr~eved the empty waste 1 paper basket from the detachment office and I

brought that into the interview room as Mr. Legere i began to eat his breakfast. i ( I Q. O.K., now, Officer, would you tell the Court, please

, why you took those steps tr get a new roll of toilet paper and an empty raste bin?

I

..J2~ "..~, , t 142 - Cpl. t101e Direct (Recalled 0n -! Voir Dire.'

I was aware that anything that - any evidence that; I A. i ! could be afforded me, I would make an attempt to j seize it if it was discarded. i . Q. For what purpose? ..

A. I was interested in anything that could assist me

in our identification of DNA identification at any I j of the murder scenes. I O.K., continue. j Q. I placed the clean garbage can directly under the I A. '0 i table by my feet where I sat directly to Mr. Legere~ ! J right, so I had it at my feet in the corner of the I

table, under the table.

Q. What was in the contents of that garbage -

(" A. That garbage can, it was an empty garbage can, \5 waste paper basket. It was green metal. Mr.

Legere ate his breakfast, it was fried eggs and

bacon and it was sunny side up, they were runny.

He blew his nose on several occasions, threw the , I I Kleenex - actually, he was eating his breakfast I 20 I, when the doctor arrived, I'm sorry. Dr. Cole, Dr. : I Roy Cole, a physician from Newcastle, ar~ived within

probably ten minutes of the breakfast, and Mr.

Legere was eating his breakfast at the time. Dr. i Cole came to the door, I met him at the door, 15 I had! him come into the interview room. I stood in the' I ! doorway while he examined Mr. Legere. He placed I a mask on his face and wore rubber gloves and he ! i I examined Mr. Legere's cheek, upper right cheek and;

( under his eye.

I Q. Who placed what mask on whose face? I A. I'm sorry, Dr. Cole placed a mask over his own facel " and he wore rubber gloves, rubber surgical gloves, .I

I !

-, ,,; , t 143 - Cpl. Mole - Direct (Recalled on -, Voir Dire)

and he examined the tissue or the skin under the

eye of Mr. Legere and poked and prodded and he

felt around and then he and Mr. Legere had a

conversation about the eye. Following that Dr.

Cole left.

Q. What if any concerns did you have about Mr. Legere't

physical condition at that time?

A. I didn't have any concerns about his physical

condition. From the conversation that I could '0 overhear between Dr. Cole and Mr. Legere there

didn't seem to be any serious problem with Mr. Legere's eye or his cheek or - so Mr. Legere sat down and continued with his breakfast. Subsequent

( to that he continued to blow his nose on occasion 15 and at about ten-thirty I removed the garbage can j

from the area that I had placed it and I put it to j I my - behind me in the corner of the room. At !

about 11:20 I left the interview room with the

garbage can. I took the contents of the garbage :0 can and in particular I took the Kleenex or the

tissue paper that had been in the garbage can out

of the garbage can. I discarded the styrofoam

plate that the eggs had been on and the utensils

and I kept the Kleenex, I placed them in a clear :5 plastic bag similar to what I had seized the hair

in.

Why did you do that with the Kleenex? I Q. ! i A. I was aware, I had watched Mr. Legere blow his ( nose into the Kleenex, I was aware that he was blowing mucous and discharge from his nose, normal!

nasal discharge. In addit~on I was aware that II

.c: ",".- t

l - 144 - Cpl. Mole - Direct (Recalled on Voir Dire!

there was blood because he had - when he had blown

his nose he had looked at it and then he'd closed

it and wiped his nose and threw it in the garbage.

At that particular time, knowing that - or feeling'

that this could assist me in my investigation to

seize bodily standards to compare fOr DNA, I seizedi it and took control of it.

Q. When you say seized it, you mean taking it out of

I the garbage can? I

'0I A. I took it out of the garbage can and then I Placed! i it in a clean plastic bag. i Q. Who put the Kleenex in the garbage can?

A. I ( into the garbage can. I w.toh,d "". Leg,"e t.., th, Kl,en,x .nd th"nw 1t I 'S Q. When was the first time you were aware that a

substance that apparently looked to you like blood

coming from the nose, when did you first become aware of that?

II. When Mr. Legere blew his nose. 20 Q. Did you have any knowledge of that before ynu w,nt I

and got the Kleenex in the garbage can? I A. No.

.. , Q. What if anything did you do - you say you put "thIs -:

, I I particular Kleenex in a bag? I I 25 I A. That's right. 1

Q. If you could pernaps just track that bag fOr a

minute, what did you do with that bag?

I A. I kept that bag in my personal possession until the; I I I 27th of November, 1989, at around 2:12 in the' ( - j afternoon. I turned that particular bag over to

I

1 Constable Ron Charlebois at the Major Crime Unit

i ~ I office in Douglastown. ~

I

I _25 .", ! -0 <- - 145 - Cpl. ~ole - Direct -. (Recalled on ; Voir Dire)

Did you put any markings on the bag before you

turned it over? I Q. A. Yes, I did. I put an exhibit sticker on the bag

and I initialled it and the date and time.

MR. WALSH: At this time, My Lord, I would ask that this

item be marked for identification.

COURT: VD#18. Is this an empty bag now? ! THE - ; ! MR. WALSH: Well, this one appears to have a Kleenex inside;

of it. I show you this item, Officer. It is :0 marked on the voir dire, VD18. Would you look atI , it, please, and tell me whether you can identify it~

and if you can, under what circumstances did you I

first come in contact with it? ( A. It's a similar plastic bag to what I had used that .5

particular day. It appears to have a tissue paper I

I similar to what I had placed in it that particular;

I day. It has a sticker that I recognize on it and I

I it's in the same place that I had placed my I

I previous exhibits, across the open-ended area, and! - 20 !

this particular sticker has my name, K. M. Mole, i ; Corporal, N. B., Newcastle, and it has the time on I it, 11:35 hours, 1989, 11-24. It also has an

exhibit number on it which I had placed on it I ,I 25 from Father Smith's, I believe, and had changed J ! those numbers myself on the 27th when I went to

Newcastle Detachment and received the exhibit

numbers from the exhibit custodian for the

Daugheney murders, and I received the number 335

( -.. I from that exhibit custodian, Constable Davis, and

I placed it on the exhibit tag.

.c:~ <.-,. "

( 146 - Cpl. Mole - Direct (Recalled on Voir Dire)

0 o. And in whose possession did this particular item

stay? A. I turned that over to Constable Charlebois at

2:12 p.m., 14:12 hours on the 27th of November,

5 1989. o. And when did you next see the particular item?

A. Just now, at this hearing.

o. Would you continue, then, please, Officer Mole? You've indicated that you went out of the room

and with a garbage can and -

'0 I I returned to the interview room and I left again

at about 12:20 that morning. I left the interview

I A. room, I returned again at shortly after one o'clock~ ( I stayed in the interview room with Mr. Legere ~~ until about 2:15 that day when I, along with

Constable Charlebois, returned to the cell block

area where Mr. Legere was fingerprinted and

photographed, fingerprinted by Constable I

Charleboisand photographedby myself, and placed I 20 0, in the Detachmentcells there. This would have I

been around 2:30 p.m.

o. During the period of time that you were in the I interview room with Mr. Legere what if any occasioni I

did you have to discuss any right to a lawyer - or !

~~ I apart from your warnings, any lawyer, or what if

any requests for a lawyer was made? I A. I believe the first - the first time would have

I ; been at approximately 10:15. Mr. Legere inf~rmed I i me that he wanted me to answer a question and I 0 I ( said I would answer or try to answer his q~estions,1 and he wanted to know why the cop that morning I hadn't

gotten him a lawyer~ and I said that I didn't

c2S 'iH', ".

<. 147 - Cpl. Mole -'Direct (Recalled on -; Voir Dire)

know what he was talking about and he said, "I told:

him this morning I wanted a lawyer, why didn't he

get me a lawyer", so I said that we would get him

a lawyer and we'd make one available to him and

that was the law, if he wanted one, and then there

was conversation after that and what particular

lawyer he would want. He had us select a few

lawyers that he would want or who would represent

him and he was trying to choose - we had the '~ telephone book and we had a list in the front page

of the telephone book of all the local lawyers in

the Miramichi area to call, and these are the

lawyers that normally we would contact for him. He

( looked at that list and he didn't want any of thosel '5 people. The subject changed after that, there was I I no attempt on my part to get him a lawyer, but he I !

i didn't seem to want me to get him a lawyer or I I i anyone to get him a lawyer, just it was a comment

that came up, and I told him that it was the law, 20 we'd get him a lawyer. The topic came up again

about a half an hour later, approximately 10:45.

Mr. Legere brought up the point that we had made a

big mistake by not getting him a lawyer. At that

point we - 25 Q. He said what?

A. That we had made a big mistake by not getting him a lawyer, or words to that effect.

Q. What did you take that to mean? , j ( '" A. That he was aware that we would have had to have brought him a lawyer and that he had to have a

I lawyer and that we'd made r big mistake and it was! a mistake on our part and Iwewere going to pay for i I

.,'~ .." ------.------.--

l 148 - Cpl. Mole - Direct 'Recalled on -1 'Joir Dire)

it, so he was told that a lawyer would be made

available to him and he wanted a lawyer from the, i

Fredericton area so we made arrangements - we tried1 to get him a telephone book from the Fredericton area. We weren't able to get him a telephone book: so Constable Charlebois made arrangements to have

an office in Fredericton fax over h ne numbers

and we did even better than that, we were able to

get the yellow pages faxed over, and he was happy

'J with that.

Q. Fredericton - you're referring to the City of Fredericton?

A. The City of Fredericton and the yellow pages, the ( lawyers. '5 I Q. Which for the record is only how far from Newcastle

A. Well, it's a two-hour drive. Q. Continue.

I A- I He wasn't really satisfied with the Fredericton I I

I lawyers, he wanted me to suggest someone for him j I :0 ! to call and what I thought of one particular lawyeri or another. At approximately 12:15 Mr. Legere I

decided to call a Brian Neill, I think his name is I I Brian Neill, or his law office anyway. He spoke toi t

a secretaryand I left the room when he started to I ;'5 a secretary. I went back in the room shortly after! that, within -

THE COURT: Excuse me, this is from the interview room?

A. This is in the interview room, yes.

THE COURT: There was a phone there? ' ( A. There was a phone brought in, yes, My Lord. I

I Were you able to keep watch of Mr. , Q. Legere while he I was on the phone? I

I I

,- ":0>.." I ( - 149 - Cpl. Mole - Direct (Recalled on Voir Dire)

A. No. No, we closed the door and we allowed him to

speak to someone. I took it that he had a law

office on the phone when he spoke. He could call , t anyone he wants, he was aware of that. He had all i

the numbers, he had made quite a few notes, circledl

i 1 names or whatever, at the time and -

Q. In relation to notes, perhaps, Officer we could i

I would like you to perhaps tell the Court what if I '0 any notes that you were aware of that Mr. Legere I was making in relation to any of the offences that!

you had been interviewing him on? I

A. I I believe in the first instance when we began to I talk about a lawyer the subject changed, ( Mr. Legere came back to it a half an hour or so ,<; later, and then before he contacted his lawyer he

wanted to know what charges or what he was being

investigated for, so we began to go through the

I offences in Moncton, what we were aware of. There i

were warrants for him escaping lawful cus~ody, 2Q I ! forcible confinement, possibly an assault charge I for - we had thought he had stuck a knife in the I

face of one of the guards, the possible charges I I relating to the abduction of the people in Saint i 1 I 25 John and in Sussex and the truck driver, and I

believe that was seven at that time, and then I .1 I told him there were four additional ones for the - i

I there was four people dead, and he said, you know, I I i I he said, "That many, eh", and so then he was - I I ( .I subsequent to that he decided to call a lawyer, and!

like I say, it was about

I made up his mind to call l~:20 before he actually I

I a' lawy". We had made thel

'-,G25"85 , , t - 150 - Cpl. Mole - Direct (Recalled on Voir Dire)

offer to get him a lawyer, I told him the - but he

didn't want to get a local lawyer and he said that

j we'd have to get him the best lawyer available,

I that it couldn't be a flunky, that's the law, and I

: I told him that I was satisfied that whatever lawyer

I t we called for him would be a quality lawyer, but I

I 1 he wasn't satisfied with that, or he didn't appear' I to me to be satisfied with that.

Q. Did you have any other involvement in this particula '!) matter?

A. He was returned to the cell at approximately

two-thirty. Throughout that afternoon I had

various brief contact with Mr. Legere. At

( approximately 3:50, 3:55, I was aware that Mr. '5 Legere was on the telephone speaking with - I I thought at that point I was instructed that it was i

his lawyer, David Hughes. We'd had conversation

before about the possibility of him calling Mr. i

i Hughes, and also just while he was on the telephone! ~o I retrieved from the cell area a portable toilet

and took that into my possession for a few

moments and took it directly to the exhibit . custodian, Constable Davis, at Newcastle Detachmen~, which is just down the hall from where the cell is.; 25 That would be at about 16:05, or 4:05 p.m.

My involvement with Mr. Legere the rest of the!

day was sporadic. I'd speak to him for a few minutes in the cell area and then come out and it I i -- j was pretty casual, and I met him in the morning ( just prior to seven o'clock, at about quarter to

seven in the morning, and he talked until I last ~

~~~ ..~~, l - 15 1 - ': pl. :.101e -' u ire c t Recalled at 'i 0 i r Dire)

saw him leaving the door at quarter to ten. He

never stopped talking at any time. I ! THE COURT: This was from when? j I A. From when I entered the cell block area about quarter to seven in the morning - : I I THE COURT: Oh, in the morning? J . I A. In the morning, until I last saw him go out the

f door at about quarter to ten that evening, he ,I i talked incessantly, and - What kind of mood was he in? '~j Q. !A. He was in a very good mood, he seemed quite happy: i to see us, and whenever he talked about eluding thel

police or comments that were made in the media he I

( had a real glint in his eye, he was really excited i .~ j about that, and no, he was in a real good mood that! I j day. j ,j I Q. And again, because it's been some time, the person; I, I we're talking about that you identified as Allan I j Legere, is he in court today? ,- I That's right, he's sitting - he's seated to my A. I extreme left in the prisoner's dock handing a I I piece of paper to Mr. Ryan there. j He's got a brown:

shirt with a white collar and black hair, mustache,!

I shoulder-length black hair. ~~ I J. 1 MR. WALSH: My Lord. I I have nothing further, Thank you. THE COURT: Thank you very much, Mr. Walsh. Now, cross-

examination?

CROSS-EXAMINATION BY MR. FURLOTTE:

( I Q. Constable Mole, just to go back to the June, 1986,

when you seized hair samples from Mr. Legere at

that time, again you knew that you could - or you

;: "", .'

....

l 152 - ~pl. ~ole - ~ross (Recalled on -. 'lair Dire)

thought that you could take hair samples on an

I incident of arrest but you were not allowed to use

I violence, that was one of the conditions?

Ii A. I was aware that as a result of the Alderton case I 51 we were allowed to seize hair upon incident of

I1 j arrest, and the rest of your question? But you were not allowed to use violence? I Q. A. I didn't understand the Alderton case to say that. I understand that the Crown Prosecutor at the time i

.~ advised us not to use violence.

Q. But you did not advise Mr. Legere at that time of

the conditions that you were going to take the hairj

samples? I ( A. In 1986? I ~5 I Q. In 1986. I A. In 1986 I didn't seize hair from Mr. Legere. I

I I

I Q. So you didn't tell Mr. Legere, "Well, listen here, I i Allan, we can take hair samples but we can't use

violence"? You didn't put those words to him? I or. . ;! A. In 1986 I had no conversation with Mr. Legere i I regarding hair samples whatsoever.

I Q. Nor did you give him the opportunity to call his , lawyer to get legal advice about hair samples being! taken? :5 A. In 1986?

In 1986. I Q. A. Is your question was Mr. Legere given an I ! opportunity or are you asking if I did? / --. Q. I'm asking if you did. / j ( i I was not involved in the actual seizure 01 hair

I A. from Mr. Legere.

:, 0,", ( - 153 - Cpl. Mole - Cross (Recalled on Voir Direi

I Q. Sergeant Johnston testified that he had not met yoU!

I on the morning of November 24, 1989, that it was

about 6:35 before he met with you on that morning.

A. I really can't say whether or not -

Q. When do you recall first meeting Sergeant Johnston?i

A. I can recall that I was in bed and asleep. I was

awakened by a telephone conversation. I arose, I

had a shower, I drove to the - or I got a drive to the Newcastle Detachment office. This was all '0 within the six o'clock range, I'm not sure of the time. I can recall one particular time that i ! morning that I'm certain of when my - I first beganJ

to realize the time and that was at 6:47, that's I i ( when I actually asked for a time from someone. I I I '5

didn't have my watch on at the time. The day I

previous - just to explain, the day previous I was j

instructed to go resume my duties in Fredericton,

so I had prepared to leave that morning, the 24 th. ,

i

I wasn't going to be available on the 24th. I was i ~01 I to return on the 25th so I'd be gone for that day, so I had packed my things to leave and when I

arrived at the office I was totally unprepared that;

particular morning, so I didn't have my watch

25 available to me until I returned to my briefcase. When I returned to my briefcase at seven-thirty in !

the interview room, that's when I began to take note of the time.

Q. I have a copy here of what proposes to be a statemen

( -: I of yourself dated November 24, 1989, and do you recall preparing that? A. Yes, I do.

:: '0;' -- l 154 - Cpl. ~ole - ~ross 'Recalled on Voir Dire!

, Q. And what time does it say that you met with 1 I Sergeant Mason Johnston at the office?

It says I met with Sergeant Mason Johnston at

I A. 5:55 hours.

J Q. So when Sergeant Johnston says that he first met with you at 6:35. then -

A. He's probably correct and I'm wrong.

He's probably correct and you're wrong? I Q. i A. But those are the notes I in explanation, ifi that - I I may, My Lord, I took those notes on reflection.

I didn't actually have the times available to me

until 7:30. At 7:30 the only times that I was

aware of from when I arrived at the office was i ( 6:47 and 6:55. Those are the two times when I I .~ asked for the time from Constable Charlebois. Any. I

I other times are guesstimations on my part and I ! apologize.

Q. O.K., you say here your estimation is that you

entered the cell area with Sergeant Johnston and :'J Constable Ron Charlebois at 6:35, is that right?

A. In my estimation I arrived with Sergeant,Johnston

and Constable Charlebo~s at 6:35 in the cell area. : I, That there is an estimation to me.

Q. So that would be about the same time that Sergeant: :~ Johnston testified that you people entered the

cell area to see Mr. Legere? A. I'm not aware of the time that he said he entered

the cell area. . Q. ( --~I Well, you were in court when he testified earlier? He said several times. I was very concerned about; A. I I evidence. ; I my own I only entered the cell block I

area with Sergeant Johnston on one occasion that I

:, ",. ( - 155 - Cpl. Mole - Cross (Recalled on Voir Dire)

morning.

, Q. And that was the same time, 6:35, that Constable

MacPhee testified that Mr. Legere requested to see, i a lawyer? i

:1 A. I would think that probably Constable MacPhee, I J I Sergeant Johnston, had a watch available to them

I at the time. I didn't, that's an estimation of

mine. When I look at the times I used to give him , j I the caution and for me to open up the - ask for thei I I

.) I key, open up the cell, take the handcuffs off, \ I had quite a bit of difficulty, I estimated that _:

I maybe I estimated wrong, I don't know, but I know

two particular times that morning prior to 7:30.

( Q. It just appears to me that from the notes taken

<5 and the evidence given is that when Mr. Legere

requested to see a lawyer at 6:35, according to

Constable MacPhee, and that according to Sergeant

Johnston and yourself that you entered the cell

area just after or around the time that Mr. Legere 70 requested to see a lawyer.

A. The times on that statement, if I may, there's one;

particular time there, I think it - did you say 5:55 - Q. 5:55. :~ j A. Well, at 5:55 I understand from some of the 1 conversation here this week, testimony, Mr. Legere i was still at the scene, is that correct?

Q. Mr. Legere was still at the scene, yes. A. .: : O.K., the scene would be not at Newcastle Detachme~~ is that correct? Am I correct there?

Q. No, you're correct.

"~ "ri', ( - 156 - Cpl. :101e - or::r 0 s s (Recalled on Voir Dire)

i A. O.K., so all I'm asking you to do is - those t I particular times there, I gave them to the Crown j Prosecutor because those are the times that I

I 1 wrote down. I don't necessarily have any idea of

51 knowing whether those particular ones are valid.

I Those are the ones that I can recall from my

guesstimation. The two times that I'm aware of -

I actually the three - would be the 6:47 time, the I 6:55 time, and the 7:30 time. Anything prior to

'0 7:30 is a guess on my part.

Q. So the 6:47 is when you read Mr. Legere his rights?

A. That's right, I asked Constable Charlebois the time

and he gave me the time. ( Q. How long would you have been in the cell with Mr. '5 Legere before you read him his rights?

I A. A few minutes, whatever time it would take me to

I go in, open the cell block door, have a brief

conversation about my weight and his hair, sit him

down, take the shackles off his feet, stand him up, c0 take the handcuffs off him, and they were double

locked, I might add, so I had to - often standard

police procedure is to double lock them so that . !

the accused doesn't get hurt, so it took m~ quite °

a while for me to get those off. c5 Q. I understood from Mr. Mason Johnston's testimony

that he did not have a meeting with you prior to

his going into the cell with Allan Legere. Do you

recall that from his testimony?

I A. I don't recall Sergeant Johnston saying that, that ( C ! he did not have a meeting with me? Is that what

you ,'re saying?

.~~ -",. t - 157 - Cpl. Mole - Cross (Recalled on Voir Dire!

Yes. ! Q.

! : A. That Sergeant Johnston did not meet with me prior

to going into the cell with Allan Legere? Q. Yes.

I don't recall that. 51 A. Q. You d~n't recall him saying that? A. No.

Q. You will a~mit that there was a meeting that took place in his office which took a considerable '0 period of time before you went into Mr. Legere's cell?

A. No. what I can tell you is I arrived at the

M~wc~5tle Detachment. Shortly after my arrival, ( let's say wiit!b:i111:labrief minute or two, I met with ~s Sergeant Johnston. We had a brief discussion. As , i a result of that d1~cuss~on I made a phone call, a i

very brief phone call. Following that phone call

I met with Sergeant Johnston again, all within a

matter of two or three minutes. I went down and I : :'0 - picked up the exhibit bags, the scissors, and I

folluwed Sergeant Johnston to the cell block area.

That's my testimony.

Q. You called Mrs. Flam's daughter?

A. I called Mrs. Flam, yes, I did, to tell her that :'s Allan Legere had been captured, which was a concern of hers, yes.

Q. Now, when you read ~r. Legere's rights at 6:47 did

you offer him the use of a telephone?

A. I read him the standard Charter notice that I do to. ( ,:-.i anyone that's an arrested person. Q. But apparently you rely on your case law for your authorities for doing certain stuff, like the

Cc ,-, !

'-

l 158 - Cpl. ~ole - (ross (Recalled on Voir Dire;

I Alderton case, and you think it was more - that

I there was more duty on you than just to advise a

I I person that he's entitled to a lawyer?

I A. At that particular time I may have been ignorant, I don't know, but I wasn't aware that I had to do

anything more than give him the Charter notice,

advise him that he had the right to speak with

counsel without delay. I advised him of that and

I left that decision with Mr. Legere whether or

not he wanted to speak with counsel. Like I say,

I may have been ignorant, as you say, of other

things that were involved. I left the decision

with Mr. Legere. ( Q. Now, Sergeant Johnston testified that he told Mr. I ~s Legere, sometime later in the day that, "Allan, youli

really should take Kevin's advice and call a laWyer!

i but now you're saying that you never advise people

to -

MR. WALSH: Well, he never said that at all, My Lord. I'm. I M I

I sorry, I'm objecting. He has just testified that J he advised Mr. Legere of his Charter notice and

left it up to him whether he wanted to call a

lawyer. Now Mr. Furlotte stands up and says -

:s almost says the complete opposite. THE COURT: No, but Mr. Furlotte is quoting Sergeant

Johnston, or at least his recollection, and I seem I

I

to recall something like that being said, but I I would have to check. / I may be wrong, and the witness can answer that.- ( -.:!Q. i ~ I recall Sergeant Johnston saying that he advised

Allan Legere sometime later in the day that - something to the effect that, "Well, Allan, you

:~ ,.". l - 159 - Cpl. Mole - Cross (Recalled on -. Voir Direi

really should take Kevin's advice and get yourself'

a lawyer". Did you at any time advise Allan that

he should get himself a lawyer?

A. \ I advised Mr. Legere throughout on two occasions, at least, that he had the right to retain and :i

I , instruct counsel without delay. Now, following

that we had several conversations about getting

him a lawyer and who he wanted in particular.

Q. But that wasn't my question. I asked did you ever' ", tell Allan that, "Allan, you should" - not that,

"You have the right", but that, "You should get ,

yourself a lawyer". Did you ever tell that to I Ii Allan? ,! ( time, A. I would have told that to Mr. Legere about the I '5 that he was debating on who he was going to get for! a lawyer. There was several discussions about I I what type of lawyers he was going to get and i

whatever and -

Q. Now, you mentioned the first time that Allan said ,~ to you that he wanted a lawyer was something like

what, 10:15?

A. Around 10:15.

Q. And you had been questioning him for what, over

three hours, three and a half hours at that time? ., i A. I brought him in the interview room at 7:30, he ha~

breakfast at 9:30, so probably you're talking about,

he was in my custody in the interview room for

about two and three-quarter hours, yes.

Q. And he advised you at that time that he had (' :: ! requested a lawyer earlier in the morning?

I A. , That's right. j I

",>,~" I f~

t - 160 - Cpl. ~ole - Cross 'Recalled on 'I 0 i r Di I' e )

; Q. And he asked you why they hadn't got him a lawyer

yet? I j A. He asked me why the policeman this morning hadn't 1 gotten him a lawyer, that's right.

) I Q. y:t even after he advised you of that at 10:15 I I I you continued to question him? You didn't cease

,i questioning him? Did you? i I A. I No, that's true, I didn't, b~t I wasn't questioning I him so much as he continued to talk. He continued

.~ j to change the subJect ana go back. He came back tOI I it a half an hour later and then to tell me a half

I an hour later that, boy, I made a big mistake by i

not getting him a lawyer, or words to that effect. ~ ( Q. And he was like that through the whole interview,

he just wanted to talk? 'S I A. He just wanted to talk. Q. Through the whole interview. You said you didn't -:

A. Oh, I asked questions, certainly. The main focus .I : . of my interview with Mr. Legere, is that what you'd~

like to know, or how I approached Mr. Legere?

What was your last question, Mr. Furlotte? I THE COURT: You're aSking that if

A. I'm not sure exactly what he's expecting from me,

sir. 25

! THE COURT: The witness is asking what your question was,

Mr. Furlotte.

! MR. FURLOTTE: The question was that after Mr. Legere

informed you that he had requested a lawyer much . i ( earlier in the morning and he wanted a lawyer you

continued to question him, to try to get more

information .out of him?

:~ .-- <- 161 - Cpl. Mole - ;:ross ;Recalled on -. Voir Dire!

A. Mr. Legere didn't tell me that he wanted to speak

to a lawyer. He told me that he made a request in 1

the morning to get a lawyer, and the conversation

changed.

Q. You say the conversation changed after that? How

did it change?

Well, he had said that to me and I said, "Well, I A.

we'll get you a lawyer", and he said, "Yes, but whaiI I lawyer, who's going to take my case", and I said, - "Allan, we'll get you a lawyer, that's the law", on i I words to that effect, and I said, "So I do need to ~

get it for you, it's the law, we'll get you a

lawyer if you want one", and the conversation

( changed. I mean, it's - '5 Q. I understand you began to what, tape Mr. Legere

around 8:35?

A. Around 8:35, yes. The tape recorder in the room

at the time was placed on at about 8:35.

Q. And you again read him his rights at that time that; :0 you began taping? A. That's correct.

Q. He was more reluctant to talk to you once you had

the tape recorder on, is that correct?

A. That's correct, or - :~ Q. Or he needed more prompting?

i A. Well, I guess reluctant is a good word. . I guess probably wasn't as open about what had gone on

previous, but reluctant is a good word, yes.

I think in your notes here, I'll show you a copy, i ( 1 Q. you say that -

A. I don't deny saying that.

:: '" 1/.

( - 102 - Cpl. Mole ~ Cross (Recalled on Voir Dire)

Q. "He required more prompting to get him talking." i A That's right. That's at what time? I . i Q. ! At 8:35. I A. O.K., there was no conversation of a lawyer at

that time. 51 I Q. No.

He had not requested anything to do with a lawyer, : I A. to my knowledge, at that time.

i Not that you were aware of?

I Q. OJ A. I wasn't aware that he had spoken to anyone about a lawyer.

Q. But now you're aware that he requested a lawyer at 6:35 from Constable MacPhee?

( A. I'm aware that he made a comment to Constable I '5 MacPhee about getting a lawyer. I'm not exactly ,

sure of the time or what sequence or anything like j

I that. I

Q. Now, you mentioned that Sergeant Johnston passed

you the note about the consent or to get the :01 I consent from Allan to get the hair samples? A. He paised me a form, a handwritten note or a 1 ; handwritten page, and I saw where it said, "Consent l!- ! to take body hair", or whatever. I just folde'd th~

:5 note up and gave it back to Sergeant Johnston. Q. Now, when you arrested Mr. Legere for - when you

first read him his rights you told him he was unde~ I arrest for the murder of Annie Flam and that you i had reasonable and probable grounds to believe tha~

or; he committed the murder of Annie Flam? ( ,i A. That's correct. Are you saying that I told him that?

Q. Yes, did you tell him that? l - 163 - Cpl. Mole - Cross (Recalled on Voir Dire)

I don't think I said that. !A. Q. Well, the hair samples that you take as incident

to arrest, is that because you were scared he

might attack you with his hair? A. Pardon?

Q. Or is it to gather evidence? Now, you say you

feel that you're entitled to take hair samples incidental to an arrest. Now, I understand the

common law that you're allowed to search a person ~J incidental to arrest in order to make sure he's

got no weapons on him. Did you consider his hair

a weapon or was that for the purpose of gathering evidence? ( A. It was for the purpose of gathering evidence. I ~s Q. Now, was that based on - did you want that evidencJ

I from him based on reasonable and probable grounds f

I that he committed the murder of Annie Flam or was i I ,

it to support your suspicions? I

I , A. I advised Mr. Legere that he vas under arrest for

::0 I the murder of Anne Flam, and subsequent to that -

I What were your reasonable and probable grounds that! I Q. he committed the murder on Annie Flam at that time?:

A. Over and above what I've already stated here in

i

testimony? I :s Q. Is there anything else other than what you've J

already stated in testimony?

A. Well, I was advised on the 9th of November, I

1 believe, that there had been DNA analysis

conducted and that Mr. Legere had been identified ( ~I as a person responsible in laboratory tests for those three murders.

." ,'::5 ..... t 164 - Cpl. Mole - Cross (Recalled on -. Voir Dire)

~

: Q. You were advised of that before you arrested him

that morning?

A. That's correct.

Q. That there was a DNA analysis?

51 A. That preliminary analysis had been done and that

he had been identified or his sample had been identified from the substances sent to Ottawa.

Q. Now, when you were saying what your easonable and

probable grounds was you were comparing the 10 beatings that took place on the Daugheneys and

Father Smith with Glendennings, is that right, as

reasonable and probable grounds for believing that

Mr. Legere did those offences, or did I get that ( wrong? 15 A. Are you talking about the Flam as well? Is the

question regards to the arrest -

Q. You stated on direct examination that you were I , aware of facial injuries of Glendenning, Daugheneys1 ! i

and Smith as being similar to tie Mr. Legere in. I ~o I I A. O.K., yes. OJ !

I

I Q. Did I get that right? I

I A. Yes. . I Q. And you were an investigating officer in the Glendenning incident? I ~5 A. Yes, I was.

! Q. And were you aware in the Glendenning incident thatj

i

there was a statement from Mr. Curtis that him and I

i Todd Matchett did_the beating on Mr. Glendenning anq

I i / ° JI) not Mr. Legere? ( ! A. I'm not aware of any statements that Scott ~urtis

or Todd Matchett ever made in regards to those incidents, in regards to that murder.

".oco 405' ( - 165 - Cpl. Mole - Cross (Recalled on Voir Dire) -,. I , Q. How big a role did you play in the Glendenning - A. I was one of the file coordinators.

Q. File coordinators, and you weren't aware of any

statement given by Mr. Curtis?

5 A. I don't - as one of the main investigators and as a file coordinator I don't recall Scott Curtis ever;

providing any statement to the police that he had

any way - was in any way involved with the murder ot: I

I John Glendenning other than his plea of guilty at

I 10 ! the trial in January, 1987. If he gave further I

statements to the police I'm not aware of them. I I I' Q. , You mentioneda statementthat you had a preliminar report from DNA evidence saying that Allan Legere ( could have been involved with Annie Flam, is that 1 15 right? It was a preliminary report and ~n the

preliminary report it was just - and it was a I caution that, look, this is just a preliminary

I report and more testing has to be done? In other I

words, they just couldn't exclude Allan Legere? i :0t ! A. Do you want to know what I was advised at the time?; ! I Q. What?

A. On the 9th of November I received a telephone call

in the evening and I was advised that the samples

that we had sent to Ottawa had been analyzed 20; regarding the Flam and Daugheney murders and that

they had established that the suspect samples that

we had provided were a match with the ones found

I at the scene.

I With one of the - c;] j ( I Q. : A. With the ones found at the scene, both scenes.

Q. They couldn't say it matched with the murders of ; Flam and Linda Daugheney and Donna Daugheney, did itl, I

'" ,::, ,~. f

l 166 - Cpl. Mole - Cross (Recalled on -1 Voir Dire) J

I ' I or were you advised that it matched with all three? ' A. I understood at that time that there had been I ! analyses that were done that had indicated that the I, j same person was responsible for both offences and i that they had been conducted comparing these

samples from Mr. Legere.

Q. You also took a statement from Nina Flam?

A. I took statements from Nina Flam, yes.

Q. And Nina Flam told you that it was not Legere who '0 attacked her, that the person who attacked her was

too small for Allan Legere?

A. In all fairness to Nina Flam -

Q. No, let's just say what she told you.

( A. Mrs. Flam said many things, and at one point in 15 several conversations I had with Mrs. Flam at one

point she certainly said at one point that she

thought that the attacker was too small to be Allan

but she also said that she hadn't seen Mr. Legere , j in several years. :0 I 'Q. Right.

A. I think if you read the transcript -

Q. But she told you the size of that person and she

compared that person to another person, right?

She compared that person to a younger - 25 I A. Q. Mr. Marsh?

A. She compared his voice and his appearance.

Q. And his size?

A. Yes.

His size and his voice to a Mr. Marsh? ( 3() I Q. A. That's correct.

Q. And voice analysis was done? A. Mm-hmm- ah -

:' .0(25.'85, ~

l - 167 - Cpl. Mole - Cross (Recalled on -. Voir Dire)

i Q. In June of 1989? I

i A. Well, a voice analysis was never done, no. Perhaps' I , if I may, My Lord, if you can tell me what you mean!

by voice analysis maybe I could save you the

trouble of -

Q. Well, somebody played different voices to her on a

recording?

A. I did that, yes. Q. You did that?

A. Yes.

Q. O.K., and how many different voices did you play to her?

A. Four.

Q. And was Mr. Legere's one of them? '5 A. Yes, it was.

Q. Yes, it was, and she said that it was not Mr.

Legere? She could not identify that as being Mr. Legere?

A. That's right. At that time I had used Mr. Legere's "j voice from a Court of Queen's Bench tape conversation, I or from the transcript, anyway, of when he was! testifying.

Q. O.K., and she told you it was - when you asked if

that sounded familiar she just told you it wasn't 25 'him; right?

A. She said no, it didn't sound familiar. Q. 1 And she did identify the voice from Mr. Marsh? I A. That's right, she said it sounded familiar, that's correct, which is consistent with what she had saidJ ( ': I ! Q. And she told you that her attacker had pubic hair

that was blond or light grey? ~

,,C:o 'eo c 168 - Cpl. Mole - Cross (Recalled on Voir Dire)

- I A. That's correct, at one point she said that.

i Q. Now, you testified in court that Mr. Legere has light brown pubic hair?

A. That's correct, I did say that.

5 Q. But it's not blond and it's not grey, is that

right? A. That's correct.

i ; Q. So you have the only possible eye-witness to any I

I of these offences describing a person that's totallt '0 unlike Mr. Legere and yet you said you had

I

reasonable and probable grounds on what again? I

A. Pardon? Is that a question?

Q. You had reasonable and probable grounds on what,

( again? J A. My reasonable and probable grounds? Q. Yes. A. Over and above what I stated earlier? j

Q. Even when the search warrant was got back in June, !

I 1989, to get into the files when you had no benefit:

of a preliminary DNA report. Mm-hmm. I A.

I Q. Your reasonable and probable grounds then were whatj .. ..; in June when you had obtained a search warrant to.g~t i into Mr. Legere's files? 25 A. You want me to repeat what I had said earlier? Q. Yes.

I was aware that Mr. Legere had escaped on May 3rd IA. ! from the Moncton Hospital, or an armed escort in Moncton. ( hi I was aware that he was unlawfully at I large. I was aware that he was positively identi- , fied on the 22nd of May on the Kelly Road in

I

I

J

,- 025 "8°' I 11

(i - 169 - Cpl. Mole - Cross (Recalled on -.! Voir Dire)

Chatham, and the Kelly Road in Chatham is very near, it's on the town boundaries of the Town of Chatham.

THE COURT: I'm sorry, was what?

A. I believe the 22nd of May, 1989, which would be

the week preceding the murder. I was also aware

of the conversation in the house at the time of the;

murder and in addition to what I've said earlier I

was aware that Mr. Legere knew personally Nina 10 Flam's - knew of Nina Flam's daughter, had spoken with her before, Nancy. He was aware that she had a boyfriend named John Smith. I was aware that

Mr. Legere knew them to be going out together. ( Mr. Legere was incarcerated in June of 1986. The 15 Flam girl and Mr. Smith had stopped going out in

1986. Conversation in the house that evening was

to the effect that, "Is Nancy still going out with

John" - John Smith, or words to that effect, which would give me an indication at that time that the

"- -n 1 person involved probably hadn't been around for a

couple of years and didn't know that Nancy had i ! moved away to Halifax. The other feeling that I i

had, or the other ground that I thought I had, was !

I that Mrs. Flam had worked at the liquor store since! 25 I , before Mr. Legere - she left working at the liquor"r store after Mr. Legere was incarcerated in 1986.

The person that attacked Mrs. Flam asked her if

she was still working at the liquor store. People in Chatham, it's a very small town. ( ,.0 Most people, and particularly the person that you referred to, i I would be aware that Mrs. Flam no longer works at thaI ~ i liquor store, probably would be aware that she no !

i

", "25 .'30 ~

( - 170 - Cpl. Mole - Cross i (Recalled on -. I Voir Dire) I ! I longer goes out with John Smith, that her daughter I no longer goes out with John Smith. Those are

things that went on in the house that I was aware

of that no one else was aware of other than myself

and Mrs. Flam and the people that I reported to.

Q. But this person you talked to actually went out

with Mrs. Flam's daughter just a couple of weeks before the murder?

A. That's correct.

'0 Q. So you can't say that they weren't still going out together, somebody may have seen them?

A. I understood from Mrs. Flam's interview that the

person she spoke with was under the impression that

( John Smith and Nancy Flam were still going out

~5 together, O.K.? In addition to that I was aware

that Mr. Legere had been incarcerated for three

years. There was a comment made to Mrs. Flam in

regards to having been away for quite a while.

I was aware that Allan Legere was from the Chatham ; :c j , 'j area, that he would be very familiar with the Flams,

I I that in particular his voice would be very - a , I localized voice, and it is, that I was aware from ! speaking with Mr. Legere before that his voice -

intonation in his voice changes depending on the 25 mood that he's in and the voice comparison that I

gave Mrs. Flam to listen to was a very controlled

Allan Legere testifying on his behalf, much

different than what you'd expect in that type of ! j situation or even on the street. Quite a few ( ?<:I things about what Mrs. Flam told me that I ~idn't

believe, and to tell you th1 truth, when I did see I Mr. Legere's pubic hair I wls very surprised that

I

::0 .,,,, I I

l 171 - Cpl~ Mole - Cross (Recalled on Voir Dire)

-I she was correct, that she said it was light-coloured.

! I expected it to be dark, so there were things abouU

1 what she had told me tnat - she had a pillow placed!

I

over her face, the lights were on in the room. She i ,

had her glasses on, they were knocked off. She had I the pillow pressed against her face. These things

here would tend to, I thought, would impair her

judgment. That's why when sne described certain

parts - the colour of his pubic hair or his weight I j ~o , or whether he was strong, I didn't take those as i

being - I didn't put a lot of weight in them. I

I guess I should have now, in retrospect, but at th

time I didn't. . ( Q. j She also told you that her attacker said, well, it I '5 I didn't matter what he did because they were going to blame Legere anyway? A. No, that never -

Q. Blame the bad guy, which she meant Legere? I ~A. I don't know what - what the attacker meant or :: ! what Mrs. i - i i , Q. She meant Legere by the bad guy? i

A. Mrs. Flam? !

Q. Yes, Nina Flam, when she said the bad guy and you !

determined that, that it was Allan Legere that she I 0" , 1 was talking about? I

i A. I felt that she was talking about Allan Legere,

that's right. ; Q. So her attacker told her, well, it doesn't matter I i because they're going to blame the bad guy or ( Xl Legere?

I A. No, in my personal contact with Mr. Legere over the I I

years, and I'd last interviewed him on the 8th of I

I I ;

",025 ~"5, I t

c - 172 - Cpl. Mole - Cross (Recalled on -. Voir Dire)

December, 1988, and he has that type of opinion of

himself, so I would expect that comment to be made

that he's being persecuted anyway so that's a very -

I understand that comment to come from Mr. Legere,

~ I wasn't surprised.

Q. Well, Constable Mole, I've heard lots of reasons

which would make you suspicious and maybe have Mr.

Legere as a suspect on your list, but what - of all I you've listed what did you depend on most that you; '0 ! can say you had reasonable and probable grounds thab ! you would have arrested Allan Legere at the time? ! A. I was also aware that on the two days following the' murder that the glasses that we had taken to an

( optical technician to compare with prescriptions 15 that he was satisfied that they were Allan Legere's

which to me would put Allan Legere in the area - Q. In the area. A. - both before the murder -

, Q. Which there was what, six thousand other people in : -c, ! the area?

MR. WALSH: Let him finish the question, My Lord, ,he should

be able -

THE COURT: Yes, let him i A. I was satisfied that Mr. Legere was in the area in ; 25 the very close proximity of the murder scene both

one week prior to the murder and within a few days of the murder.

; Q. ; How many suspects were there on the Annie Flam murder? ( =~ i How many suspect names did we have or how many

I A. suspects- I I !

." '02~ .'." l 173 - Cpl. Mole - Cross (Recalled on -, Voir Dire)

! Q. How many suspects did you have?

L. We had several hundred files of which probably

60 or so were identified as possible suspects to

our investigators.

How many? 51 Q. A. Possibly 60.

Q. Sixty?

A. Mm-hmm.

And at that time Allan Legere was just basically

'0 one out of 60, isn't that right? I

I Q. I A. No, Allan Legere was the prime suspect. There werei t other suspects, you're correct. One that you I referred to previous was one that had to be I ( investigated. Normally any person that's - if I ! ! 15 may volunteer this, any person that's identified to

the police in a major investigation like that as a

person who might have acted strange before, or acted.

! strange after, or might have made a comment to i

someone or might have needed money at that ,i --! particular time and was capable of a robbery, and

this was basically, we thought, a robbery to start with - those persons were identified to us as a I suspect. Now, once they're identified as a suspect! we take every precaution to eliminate them or 25 satisfy ourselves that they are legitimate suspects! j I Q. Now, did you get search warrants to search propertYi of other suspects? ! ! ! A. Regarding the Flam investigation I can only recall

I getting a search warrant to search one other ( C j residence. I didn't personally get the search

I warrant but -

I I

.-," ";- (, - 174 - Cpl. Mole - Cross (Recalled on -, Voir Dire)

So did that person also have reasonable and I Q. j probable grounds to believe that - the police officer who got that, did he have reasonable and

probable grounds to believe that that person committed the murder on Annie Flam?

A. That warrant wasn't requested regarding the murder

of Annie Flam so much as it was the aiding and

abetting Allan Legere in flight from prosecution i I and that was - I

I u I Q. In aiding and abetting? I I A. Aiding and abetting, which would be flight from the I area, I guess basically that's what we were I investigating at that time: I ( Q. ! I ~5 And would that have been for the Annie Flam murder or one of the others?

A. I Basically what happened there, in July of 1989 we I

had information that a local subject had made I I I arrangements for Mr. Legere to travel to Ontario, , so I travelled to Ontario and we had information :0 i about a person there who may have helped Mr. Legere.

escape from the area, not necessarily related to ; I the murder but would have been aiding and abetting: Mr. Legere in escaping from the area. ~- I I went to ", Ottawa, Ontario, I was present when a search was i :''0 i

executed at 445 Holland Avenue in Ottawa, Ontario, ! i I

and that a person was subsequentlyarrested and i

questioned in regards to aiding Mr. Legere to leavelI the area. That was all as a part of the - ( O.K., and that's the only other search warrant .'G j Q. thatj you're aware of?

I That I'm aware of, yes. I A. I

!

I I

.co ".e" -. ( 175 - Cplil. Mole - Cross (Recalled on -: Voir Dire)

Q. Are you saying you're not aware there was blood on ,

the tissue until you picked it up out of the

garbage? When you saw Allan blowing his nose

earlier you didn't see the blood?

5 A. I didn't say that. What I said is I watched Mr.

Legere blow his nose, he opened the Kleenex and he

looked at it, and then he closed the Kleenex, wiped~ his nose, threw it in the garbage, and he did that on several occasions.

.0 Q. Did you see blood at that time?

A. I saw dark-coloured red mucous mixed with regular

nasal congestion.

Q. It's safe to say, Constable, that he probably

( wouldn't have been blowing his nose if he hadn't '5 got a kick in the face?

A. I really don't know. Would he have been blowing f J his nose? He had regular nasal congestion. I don'~ know how you call it but regular fluid.

Q. Well, in with the blood? ~;! A. There was no blood, there was little coagulated

patches of blood, but there was regular mucous from;

your nose when you blow your nose. Q. Coming out of his sinus or - you don't know where -j A. Well, from his nose, blowing from his nose into the' 25 Kleenex.

Q. It's not normal, is it?

A. To blow your nose?

I

i Q. No, for blood clots, mucous, to come out when you I normally blow your nose? ( C'J I , When I normally blow my nose blood and mucous doesn~t

i A. I come out. It's dry sometimes,it's dry air i I I

I

,. ,~,25 '.85 .,.

( 176 - Cpl. Mole -Cross (Recalled on -. Voir Dire) !

conditions sometimes, maybe, but I would think i i probably, and I'm not a doctor, that some of the! 1

blood probably came out from being hit or whatever, I

I

I don't know, probably. I

i Q. Right, and which is a good chance caused him to j , j

want to blow his nose in the first place? I J A.

He didn't ask to blow his nose till breakfast time, I nine-thirty, so he was arrested at - like they say I at the scene at six o'clock, whatever. '0 Q. Well, like I say, it could have taken time to build

up? I A. O.K.

Q. Now, I understand that when Mr. Legere was in the

( interview room you started taping at roughly 8:35? '5 A. That's correct, we put a tape recorder on at 8:35.

Q. And you provided a transcript of the tape from roughly 9:50 to 12:20? I A. Did I provide a transcript? I : i Q. Well, I have here a copy of a transcript that's ~~ 1 i provided and it says the time from approximately 9:50 to approximately 12:20.

A. That's correct.

I Q. - oJ!. I'll show you - I don't want you to read it but I I

! 25 at least out to the Court, but I'll just show you I j the first page of the transcript and tell me if f that would - about what pOi,nt in your interview

with Mr. Legere did this conversation take place

or that - would you agree that this only started / -r. at about 9:50? / ,~ i ( ; 1 i A. This would have started after Dr. Cole had ieft Q. After Dr. Cole had left? thej- ! A. Yes, this would be just pri~r" to ten o'clock, I guess. I

'1 ".C:',"S -t

l - 177 - Cpl. Mole - Cross (Recalled on -I Voir Dire) 1 I Q. Do you know of any reason why that first part , wasn't transcribed? i

I A. That particular recording there? That is the first: ! part.

Q. That is the first part?

A. That's right. That there is a back-up tape

recording. In my notes that you have there it

refers to the tape recorder that was on the desk

I when I went in that was set up for my use and there!

j 10 may be a comment in my notes that that tape recorde~, subsequent to the interview, we found out that that! j tape recorder didn't work, and what I had done is I

had relied on a back-up tape at one point in the

( conversation. I had made a second tape or a portio6

I ,5 started at ten to ten, quarter to ten; about the

time Dr. Cole left, anyway. That tape there would have been in my pocket.

Q. O.K., I ~ee from here that there's 96 pages of

typed transcript? :8 ! A. That's correct.

Q. Of recorded conversation?

I A. That's right.

Q. Which is supposed to run from 9:50 which is ten to .

ten, until 12:20. I I 25 I A. , That's correct. ! i Q. And it appears that about Page 17 is the first time! noted that Mr. Legere requests a lawyer.

I A. That's correct, that would be the first time. I

I I don't know if it's Page 17 but it would be about - ( xj fifteen minutes into that portion of the interview.!

COURT: May I just get one thing straight? I I THE As I under- I I stand it there was no actua~ tape made before 9:50,j I I ! is that - I

-025"". I .

( - 178 - Cpl. Mole - Cross (Recalled on -, Voir Dire) I , ! A. That's correct, My Lord.

THE COURT: It didn't work. You thought it was being taped! but it wasn't? j , A. That's correct, My Lord.

5 Q. O.K., so that's Page 17 where Mr. Legere says,

"I asked the fuckin' cop this morning to g.etme a

fuckin' lawyer, you know, talk to a lawyer", so

that would bring you roughly to what, you said

about 10:15?

'0 A. Around there.

Q. And that's when you offered to get Mr. Legere a

list of lawyers?

A. Yes, and I think that's when I instructed him I ( fOllowing that comment that I would get him a 15 I lawyer and that was the law, I'd get him a lawyer. I Q. And you stated you told him, "If you request it, I , you want to speak with a lawyer, then we'll make ~

one available to you"?

i A. That's correct. - I Q. An~ that's at 10:15 in the morning?

A. That's.correct, that's when he - Q. And he requested that he wanted to speak to a

lawyer? A. That's correct. 251 Q. But you didn't make one available to him?

A. Well, he wanted to select who he wanted to talk to.:

He didn't want to talk to a local lawyer because

they were flunkies and he wanted the best lawyer - i I if you read further on you'll see where he wanted ( '':; I the - we had to provide him with the best lawyer

I available so - and then he brought up the topic of T

I I !i

_.: ..,., l 179 - Cpl. Mole - Cross (Recalled on Voir Dire)

he brought up the Fredericton lawyer situation

there and we made every attempt to get him a phone book and couldn't so we got him a fax, that's the best we could do.

Q. And during the conversation while Mr. Legere is

still talking about getting lawyers, Mr. Legere

said, - well, you mentioned that, "That's an area i that I haven't been working around too much, depends

.~ on the lawyer you get. Every lawyer is a quality I lawyer, supposed to give you legal advice"; right? .

Mr. Legere, it's inaudible, and says, "No, people

around here, lawyers around here, they're all

together, uh", and no, and right from Mr. Legere

( still discussing about a lawyer you went on and '5 you said, "What I was talking to you about before I

was the fact that these things happen and you're I

out running around and what you do is expect people I I j to think. I'm going to tell you something right' I now, now that you're in jail, I don't think they'rei

gOing to look for anyone else. You follow me", so

. you took him right away from the discussion about. i trying to get a lawyer right back into the evidence1

I I A. I think in the previous comment that Mr. Legere made there, it was in the context of his comment. 25 ,I ,

. He was talking about persecuted in the area and not!,. being able to get anyone to help him, if ¥ou read:

that, what he said there, "No,people around here,

lawyers around here".

! Q. That's around Newcastle, that's why he wanted the ( '°1 list from Fredericton?

I That's right, and basically what I'm talking about I A.

'c=, "."' -. l - 180 - Cpl. Mole - Cross (Recalled on Voir Dire) -1 i here is he's saying his public perception and that's! I I what the previous conversation was about, how he's

being perceived, and my comment there runs into

exactly what he's talking about, the local people I I and the lawyers, they don't want anything to do withl ! him, and then the topic goes right away from that,

so it wasn't - on my part I didn't attempt to steer I

him away from getting a lawyer.

Q. Well, as soon as you said that about, "Now that '0 you're in jail I don't think they're going to look

for anyone else, you follow me", that's what you

said to him? A. Mm-hmm. I ( Q. And Mr. Legere said, "Yeah, I know, but they - hey, I '5 what", and then you said, "unless they have an

accomplice or something like that", so you're

getting right back into the nitty-gritty and away

from the conversation, it's -

~A. Well, in the context of the conversation it's -" I global, he's being persecuted in that area. I mean,.

it includes the lawyers. I Q. Well, you will admit, Corporal, that when Mr. Legere! ~. . I was discussing about a lawyer you did not cease I I I questioning him and go out and get him a list of 25 lawyers?

A. At that particular time, no, he did not show to me

any interest in talking to a lawyer then.

Q. So you didn't take that as an interest in talking to! I I ( a lawyer? :: I A. No, not in the context of the conversation.

I Do you recall how many timesl throughout the whole thing that Mr. Legere asked for a lawyer? I Q. I !

" cJ2S 418S. l - 181 - Cpl. Mole - Cross (Recalled on -I Voir Dire) I ! A. I can recall on two particular occasions that the

subject of a lawyer was brought up at that particul~

time and approximately a half an hour later he

brings it up again.

Q. I have on Page 42 of the transcript Mr. Legere 5 states, "Don't you think it's goddamned high time

you get me a lawyer", and this is Constable

Charlebois now says, "Oh, sure, if you want a . lawyer you can have a lawyer". Were you there I

10 during this conversation? You're still here on thel

page as discussing things with him earlier. I

I I A. Right, and at that particular point he's talking

I

about the charges against him and the gravity of ( i them, and then he says like you say, "Don't you I 15 think it's goddamned high time to get me a lawyer"'1

and Mr. Legere said, "Yeah, but who", so he wanted I to select his lawyer. Q. I But you said you would get - if he wanted one - yOU! said earlier if he wanted one you would get him

- one.

; A. That's right, but he wanted to select who he could:

get. He didn't want a local lawyer, he wanted a

lawyer from Fredericton.

Again on Page 66 you're talking about lawyers, 25 "Maybe Tom Evans, Fredericton"? I Q. A. I didn't say that, no.

Q. Mr. Legere said that?

Yes. ,A- i Q. Constable Charlebois said, "I don't have but I ( 3C I think I can get a telephone book from Fredericton".! I A. i That's right, that's when we were trying to get him! i the phone book and he menti~ned Mr. Evans so if he .

,- ,.c:, "8;' f

l 182 - Cpl. Mole - Cross (Recalled on -. Voir Dire) i I ,i wanted Mr. Evans we were gOing to attempt to get I

i Mr. Evans for him. The thing was Mr. Legere wantedj .

I to select the lawyer that we would get for him so I

it's - and it got to a point where we weren't I

I getting anywhere, nothing was being done, so talk !

to a lawyer so at least we can get this over with, ! i

". you know. i I Q. So on Page 67 also - that was Page 66 - 67 we're still talking about a lawyer here, getting a lawyer I ~o A. Does Mr. Legere - you asked me how many times he

asked for a lawyer. I Q. Yes.

A. Is that what you're asking now? ( Q. That's what I'm asking, yes. You said two that you '5 remember.

A. Two that I can rec~ll. Is this where he asked for

a lawyer or is this where we continued to talk abou

a lawyer, and I said here, I said that right from

the start, I said, "What do you want to do? You .- , ' can talk to your lawyer there to get your version

of what happened, that's pretty well it, and if you I

have an opportunity to, four charges" - we were

talking about the murders, and I reiterated the I I 1 fact that he had an opportunity to talk to a I 25 lawyer. I Q. Right, so that conversation about getting lawyers !

here went on Page 66, 67, and again 68, I believe, in my notes I'll have to find it.

I ! A. Myself, I was quite satisfied that Mr. Legdre knew i ( "0 I that he could get a lawyer at any particula~ - any

time he wanted. "

,. '~S 'AS' c - 183 - Cpl. Mole - Cross (Recalled on Voir Dire)

Q. But it was the question of ~etting one, getting a

phone book, getting him a list of lawyers that he could call.

A. Well, in Newcastle Detachment they don't - they

the local - and I think it's fair, they have the

local directory and that's it, and then to give Mr.; i Legere a phone book that he requested from Fredericto -.

we had to make an effort to do that, and finally,

I unable to do that, we had to get a fax copy of the I ,~ ! yellow pages sent over. That's it, that's over and!

I above his request. ,

THE COURT: Excuse me just a minute. May I just get Mr.

Sleeth to remind me, what items, what statements ( or body substances were there after, say, 10:15 in ~5 the morning of that day that we are concerned with here?

MR. SLEETH: None, My Lord.

THE COURT: No, but why is any of this, the rest of this

material -

, MR. SLEETH: My Lord, we have been wondering that ourselves:

i but we didn't want to interfere with cross-examina-j ! tion.

MR. FURLOTTE: My Lord, again it's gOing to these police

~5 officers claiming to act in good faith. We're

attempting to show that - they're trying to say

that they acted in good faith all along in the

prior statements that they're trying to get in, in

obtaining the bodily substances they're acting in ( good faith. I'm attempting to show here that all through the conversation Mr. Legere was attempting

to get a lawyer and they jUft ignored those rights ~

"" ,)20

l - 184 - Cp~. Mole -CCross (Recalled on Voir Dire) -.! and kept right on questioning and questioning him

i in order to try and get otper statements or evidence ! out of him. I f THE COURT: What time was it that he finally got in touch ,

5 with David Hughes or somebody - as a matter of fact I

you called Mr. Hughes? i A. i I called Mr. Neill, or I helped him make a call to ! j Mr. Neill's office at 12:20. i

~HE COURT: Mr. who?

~o A. Mr. Neill, I thought, in Fredericton.

Q. This was all after the lawyer, David Hughes, and

the other Fredericton lawyer - it was all after

12:20 when the transcript of this stopped, but up ( until 12:20 I'm trying to show that the pOlice 15 officers were far from acting in good faith. They

may have acted in good faith thereafter but up

until 12:20 I think there's quite a bit of proof

here that they were not acting in good faith, that

he was requesting a lawyer and they just simply -' ignored his rights and put him off to try and dig more information out of him.

THE COURT: Well, you go ahead with any

have. other questions you I Q. I think I mentioned it was Page 42 where he is I ~ 1

asking you for a lawyer, is that right? ! A. I thought you said - oh.

Q. Page 42 he said, "Don't you think it's goddamned

high time you get me a lawyer"?

: A. That was in a conversation he was having with ( :-0I I I Constable Charlebois, yes. I was present.

Q. I'll just show you the page number, O.K.? A. Mm-hmm.

-.' -)2: 4,.,. f

c - 185 - Cpl. Mole - Cross (Recalled on -j Voir Dire) i i i . Q. No~ that's 41, I'm sorry. Page 42 is at the bottom!

I meaning going to the next page, I'm sorry. That's

on Page 41, so we get to Page 42, this is again, I i talking about phone books, and right at the bottom! 5 of the page when Constable Charlebois leaves the I

I room you say to Allan, "But you have an opportunity: ! right now before this things gets too haywire, or -! , ah, you could, you know, being pursued by them, you;I I

10 know, the media, being pursued, the people who wantl to write books, these people are looking for things

for themselves, you've got an opportunity right now l

give your version, you know, of what's happened".

Just on Page 41 he's asking for a lawyer and on 42 ( you're hammering at him to get everything out. 15 A. When I say you know, it makes it sound like I'm

forcing it, but that's you know like you know, like

I'm - you're putting emphasis on you know - Q. I Well, you're telling Allan Legere that you know ; what's happened, right? -- j A. No, I'm saying -

Q. You know of what's happened? A. No, that's not what I'm saying. I'm saying - Q. I It says, "right now give your version, you know, of I

I I what's happened" "give your version of what's I 25 - . happened".

THE COURT: He's saying you know like hockey players say you know.

A. That's right, yes, My Lord.

I THE COURT: "D Everybody says you know. ( j Q. . , O.K., let's leave you know out and we'll read th~s,

O.K.? You know? "You've got an opportunity right I

now to give your version of~what's happened".

." 2C2> J '8> ) l - 186 - Cpl. Mole- Cross (Recalled on Voir Dire) -, , ! A. That's correct. I

Q. And that's after he's asked, you to get him a

I lawyer? I

I A. That's right.

' Q. You kept hammering at him to get statements? I

A. I didn't hammer at him. What I did, I gave him the j

opportunity at that - during the interview, during I !

that sequence, to provide us with what happened; I

not necessarily right at that minute, but this is I

10 his opportunity, he's forty - at that particular

time he was 41 years old and he had been a career

criminal and I was giving h~m an opportunity to cleanse his soul.

( Q. And on Page 43 you were still trying to get him to 15 tell his side of the story? A. That's correct.

Q. And on .Page 44 Allan says, "What I'd like to know, !

I what I'd fuckin' like to know is how many charges

I

I i am I being charged with", so even at Page 44 he I ! :c 1 i still wasn't aware of what he was all being charged! with?

A. That's not correct. What is correct, he didn't

know how many charges he was being charged with, so I I we went through. I think if you keep reading on i 25 gOing through the offences -

I Q. Right, and you then started explaining the things that he was being charged with.

A. He asked me a question and I answered it.

Q. Right, and that's Page 44, halfway through the ( 3C interview? A. I have interviewed several ~undred people in my career.

.' ,'J;; .'85, f

l - 187 - Cpl. Mole - Cross (Recalled on -j Voir Dire) i I The man wants a lawyer, he doesn't even know what i Q. he's being charged with, and you keep questioning I

him, and you say that you ~ere acting in good faithl , Constable? I I have no further questions. ! 5 THE COURT: Re-examination? I

REDIRECT EXAMINATION BY MR. WALSH: I I i Q. Corporal Mole, you raised for the first time on i I cross-examination with Mr. Furlotte the fact that j

'0 you were given results on what date of DNA testing?1 You indicated to Mr. Furlotte that you found out

that you had got some results from DNA testing, you

had been told something about that?

A. I believe it was on the 9th November in the evening ( Q. And what was your understanding? In your mind whatl '5 did that mean to you in relation to these crimes,

the Daugheney and Flam? A. As an ordinary layman what it meant to me was that I

I the person that was - the person involved in the , I murder at Flam's was the same person at Da~gheney's~ :0 j ! and that person had been compared to bodily i I substances of Allan Legere, and in my mind that

I meant that Allan Legere had committed both those i I offences. i ! Q. 25 And with respect to - just quickly with respect to ,! 1

Nina Flam, you indicated that you had co~versation I with Nina Flam and in spite of some of the things

that Nina Flam had said that you were still of the. " belief, I understand, that Allan Legere had

{ :,Q committed the crime. What if any concern did Mrs. j ! Flam have with respect to other members of the

family in giving you inforLatiOn? i

, ,,025 4185, ( .I - 188 - Cpl. Mole - Redirect i (Recalled on -I Voir Dire) j A. Most of the interviews, the initial interviews

within the first seven to eight weeks, were very difficult with Mrs. Flam because she was on a I

respiratorquite a bit of the time, but I always I 5 sensed within the first five weeks that Mrs. Flam I was very concerned, had a fear not for her own life! I anymore so much but it was for her children. She "

was aware that her children - she has five

daughte.s that fou. of them we.e in the Newcastlel '0 Chatham area- settling the estate, having the home

demolished and the finances being settled, and she

admitted this after to myself, that she was afraid

for the safety of her daughters, that she was aware ( that the person responsible was still in the area, 15 still on the loose, we hadn't caught him, and there

were instances when she had confided to people that.-

other than myself - that she felt that Mr. Legere was involved.

o. And what if any impact did this con~ern for her 20 family have on actually telling you directly who

she thought it was? A. She was very fearful of telling anyone in an .. , official capacity who she thought might be..

Z5 responsible for fear that it would get out and her I daughters would be in jeopardy. I I o. And you indicated that one of the reasons Mrs. Flaml

gave you for not saying Allan Legere, believing

it was Allan Legere initially, was the fact that

he was skinnier than she was aware or she rememberej ( ~j him?

A. He was very thin at the waist and Mrs. Flam didn't

I see the entire - there was only - she'll be able to

,~ 'O2~ "8~ I c - 189 - Cpl. Mole - Redirect (Recalled on Voir Dire) -j

I relate, but she didn't see the entire body, she I

I I only saw portions of his bo"dy. He was very, very i I narrow at the waist and hi~ pubic hair was light, I

!

and for that reason she didn't feel that it was I 5 Allan Legere because of his size, she expected him j

to be a bigger man. He's always portrayed as beingl

a bigger man. I j Q. And how if any did Allan Legere's size differ from I

when you last saw him up until the time he was I 10 captured? What if any difference did you notice in

his size?

A. Oh, I could remark that probably I was impressed.

I thought he had lost probably about 35 pounds ( anyway. He was very, very, very thin from what I 15 had seen him in December

Q. And when you were taking the pubic hair off him

what if anything did you notice about the size of

his hips?

A. He was very, very thin. 20 MR. FURLOTTE: Well, he already answered that in direct

examination, My Lord.

A. Very, very thin-waisted.

THE COURT: Yes, I think that was c~vered in direct.

MR. WALSH: That is correct. No, I apologize, My Lord. I 25 I. That Mas a question. Mr. Furlotte did bring that T

! to my attention. Finally, you indicated voice

I

intonation. Again you did that for the first time I

, I ,I in cross-examination. Would you explain to me whatl , ! you meant by voice intonation and what you know of : :s t ( I ! Mr. Legere and his voice?

A. Basically what we would doII iWith most of our people

" ",. ""' l - 190 - Cpl. Mole - Redirect i ! (Recalled on -! Voir Dire) ! that were identified to us as suspects or people -, that ,,-e'dsurface as suspects, we would go to them

and we'd ask - we'd attempt to eliminate them

through alibi evidence, we'd ask them for physical.

i evidence, i.e., hair or whatever, voluntarily, and! n I we had no particular prob~im becauseof the seriousnJE I I of the crime and the local area. We had no i I particular problem. Even people that were detained\

there was another escapee at the time in the area, I 10 we approached his lawyer when he was captured and t

we received hair samples from him to compare and I I different things like that, so we had gone through

the whole process of asking for alibi evidence, ( hair samples, fingerprints, anything at all to ~5 compare with the scene. In addition to that we

often asked for a tape recorded voice comparison

to do, and we never had a problem gathering that.

I The only thing I didn't have was a voice comparisonl for using Mr. Legere as a standard. What I used

20 -I at that particular time was court records, and I

noted at the trial for Mr. Legere - I attended

every day at the trial and I noticed that Mr. I

Legere's demeanour and his intonation in his voice I 25 would change depending on the situation. If he wasl

in front of the jury it was very reserved, calm, ! and that was basically the tape recording that I

had. When it was a voir dire and he was able to .

,p.ak fo..', hia ,oio. ohang.d, it b.oam. j'°' I 30 ( animated. I didn't have a~ opportunity to ;ave 'I any of that type of conversation from Mr. Legere. . I know from speaking to hi~ he'll often change his 1

demeanour when you're speaJing to him. He'll go 1

" ".'. . .". "

( - 191 - Cpl. Mole - Redirect (Recalled on Voir Dire)

i I

!

from very vocal to being very reserved and quiet! I

I and, just listen to me, and kind of quiet, and the;

intonation in his voice will change, it will go up i ! and down quite frequently, and in this particular

5 case that's what happened at the scene as well.

The victim remembered the person changing iro how

he reacted to her at the scene, so that was another!

indication, I thought, that Mr. Legere was involved:

reJ'lponsible.

'0 MR. WALSH: I have no further questions, My Lord. j ! THE COURT: Just one little point I wanted some clarificatio~

on and that was was it your impression that Mrs. Flam had known the accused earlier or her

( impression was just obtained from photographs or '5 pUblicity?

A. I believe Mrs. Flam had told me that she had no

personal contact with Mr. Legere that she could

,

recall. She had worked in the liquor store and it !

was possible. She was aware that he had been in I 20

the store and had often stood around and talked to I

! her sister-in-law, Anne Flam, the deceased, prior to Mr. Legere's incarceration, but herself she

wasn't - she was only going by what she knew of

him and having seen him in the early 1980's and 25 1 . what she recalled of how he looked and how he was

portrayed on television during the murder trial

and whatever, and he looked to be a bigger man.

THE COURT: Questions arising out of that? Well, that's

all, then, for this witness? ( :-0 It was you, Mr. Walsh~ who called this witness, wasn't it?

MR. WALSH: Yes.

"' om<, '".." l - 192 - -. I'm sorry, I asked Mr. S~eeth earlier, I was i THE COURT: I thinking he had. You have ~o other questions of

this witness, then?

MR. WALSH: No, My Lord.

THE COURT: So, thank you very much, Corporal. We).l, I

think that's - I suppose really Constable Houle

will be a very short witness, will he, or

reasonably short, but where is he coming from?

MR. WALSH: He's coming from Newcastle. He's here now, he's)I I in the court room if you'd like to deal with that i

! 10 now, or in the morning.

i COURT: THE Oh, why don't we let it go till the morning I

because he's not going to get back to Newcastle

tonight anyway?

( MR. WALSH: Fine, My Lord. 15 THE COURT: We're pretty late now. We'll adjourn, then,

until 9:30 in the morning.

(ADJOURNED TO APRIL 25, 1991, at 9:30 a.m.) 20

2~

( CDI

I

II

""025 4:85' I IN THE COUR~ OF QUEEN'S BENCH OF NEW BRUNSWICK ~ ,TRIAL DIVISION l JUDICIAL DISTRICT OF FREDERICTON BE':'WEEN:

HER MAJESTY THE QUEEN

- and -

ALLAN J. LEGERE

AFFIDAVIT

1. THAT I am a stenographer duly appointed under the

Recording of Evidence ~y Sound Recording Machine Act.

2. THAT this transcript is a true and correct

transcription of the record of these proceedings made unde Section 2 and certified pursuant to Section 3 of the Act. I' .!

3. THAT a true copy of the c~rtifrcate made pursuant

to Section 3C1J of the Act and accompanying the record

at the time of its transcription is appended hereto as Schedule "Aft to this affidavit.

SWORN TO at the City ) ) of Fr.edericton i1) the ) ) Province of New Brunswick ) ) ,this 2nd day of May, ) ) 1991 . . ) ) ) BEFORE ME: 1 ) ,-, , ' , ) /' J ,/ / C~'~l' c< , ex,J~ ''f)i1-~') ) ','".. /' ,'" v, ,.,~",.- ' Iff. , ,-<", ( - ) A cO~~nSSIONER OF OJo..~S ) &t::Sd ~~e1C~ hy-

:<:::,c !!:' SCHEDULE "A"

RECORDING OF EVIDENCE BY SOUND RECOBDING MACHINE ACT c

CERTIFICATE

I, Verna Peterson, of Fredericton, New Brunswick, certify that the sound recording tapes labelled #1 through #6

R. v. Allan Legere (Voir Dire), J.D., April 24,1991,

initialled by me and enclosed in this envelope are the

record of the evidence (or a portion thereof) recorded on a

sound recording machine pursuant to Section ~ of the Recordin of Evidence by Sound Recording Machine Act at the

voir dire held in the above proceeding on the

24th day of April, 1991, at Fredericton, New Brunswick, and

that I was the person in charge of the sound recording machin ( at the time the evidence and proceedings were recorded.

DATED AT FREDERICTON, N. B., the 24th day of April , 1991.

I /

d-,~~~~;/~,~~-'A

..

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4~:1)24 /61121