Page 26515 Commission of Inquiry Into the Wrongful Conviction of David Milgaard before THE HONOURABLE MR. JUSTICE EDWARD P. MacCALLUM ********************************************* Transcript of Proceedings and Testimony before the Commission sitting at the Ramada Hotel at Saskatoon, Saskatchewan ******************************************** On Monday, April 17th, 2006 Volume 132 Inquiry Proceedings Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv Appearances Milgaard Inquiry Vol 132 - Monday, April 17th, 2006 Page 26516 Commission Staff: Mr. Douglas C. Hodson, Commission Counsel Ms. Candace D. Congram, Executive Director Ms. Kara Isabelle, Document Assistant Ms. Jodie Kendry Document Assistant Support Staff: Ms. Irene Beitel, Clerk to the Commission Ms. Karen Hinz, CSR, Official Q.B. Court Reporters and Mr. Don Meyer, RPR, CSR, Mr. Hugh Esson, Security Officer Mr. Larry Prehodchenko, Inland Audio Technician Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv Appearances Milgaard Inquiry Vol 132 - Monday, April 17th, 2006 Page 26517 Appearances: Mr. Hersh Wolch, Q.C., for Mr. David Milgaard Ms. Joanne McLean, for Ms. Joyce Milgaard Ms. Lana Krogan, for Government of Saskatchewan Ms. Catherine Knox, for Mr. T.D.R. (Bobs) Caldwell Mr. Garrett Wilson, Q.C., for Mr. Serge Kujawa Mr. Pat Loran, Esq., for the Saskatoon Police Service Mr. Chris Boychuk, Esq., for Mr. Eddie Karst Mr. Bruce Gibson, Esq., for the RCMP Mr. David Frayer, Q.C., for Minister of Justice (Canada), The Hon. Vic Toews Mr. Donald J. Sorochan, Q.C., for Mr. David Asper Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv Index of Proceedings Milgaard Inquiry Vol 132 - Monday, April 17th, 2006 Page 26518 1 INDEX OF PROCEEDINGS 2 DESCRIPTION: PAGE: 3 DAVID ALLAN ASPER, REAFFIRMED, CONTINUED 4 - BY MR. HODSON 26519 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv David Asper by Mr. Hodson Vol 132 - Monday, April 17th, 2006 Page 26519 1 Transcript of Proceedings 2 (Reconvened at 1:00 p.m.) 3 COMMISSIONER MacCALLUM: Good afternoon. 4 ALL COUNSEL: Good afternoon. 5 MR. HODSON: Good afternoon, Mr. 6 Commissioner. 7 I believe the next witness is 8 David Asper, who will be resuming his evidence 9 from February 24th. 10 DAVID ALLAN ASPER, reaffirmed, continued: 11 BY MR. HODSON: 12 Q Good afternoon, Mr. Asper. When we adjourned on 13 February 24th, 2006, we had been making our way 14 through a chronology -- and I'll just call up the 15 document 335465 -- and we had covered the first 16 items. So if we go to the next page, we were in 17 the time frame December 28th, 1988, which was the 18 date of your first application, through until 19 February 28th, which is when you learned of the 20 Larry Fisher information, and I think we were in 21 about October of '89. So just to put people back 22 to where we were when we broke, umm, I will carry 23 on from that point. I will try not to cover areas 24 we have already covered, Mr. Asper, although there 25 may be some overlap in some of the areas. Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv David Asper by Mr. Hodson Vol 132 - Monday, April 17th, 2006 Page 26520 1 If we could go to 333322, 2 please. And this is a memo of October 23rd, 1989 3 from Mr. Williams to his file, and presumably you 4 would not have seen this, it relates to a 5 discussion between Mr. Williams and Mr. Wolch 6 about meeting with Mr. Tallis. And I take it -- 7 and we did cover this a bit earlier -- about your 8 efforts to talk to Mr. Tallis, and I think you 9 explained for the Commission what your thinking 10 was at the time about when and why you did 11 approach Mr. Tallis, but is it fair to say at this 12 time, October of 1989, that you or the Milgaard 13 group, if I can call it that, did not object to 14 Mr. Williams talking to Mr. Tallis? 15 A Umm, that would be my recollection, is no, we 16 would not object. 17 Q And, in fact, I think you provided a waiver of 18 privilege to Mr. Williams to allow that to take 19 place? 20 A That's correct. 21 Q Did you have any concern that -- and I think the 22 evidence reflects, or the record reflects that Mr. 23 Williams would have had the first in-depth 24 discussion with Mr. Tallis before either you or 25 Mr. Wolch did; did you accept that? And, again, I Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv David Asper by Mr. Hodson Vol 132 - Monday, April 17th, 2006 Page 26521 1 think what the evidence of Mr. Tallis was is that 2 he was interviewed by Mr. Williams, a lengthy 3 interview I think in, or an extensive discussion 4 in March of 1990, and that he may have had a 5 conversation or two with Mr. Wolch, but very 6 brief? 7 A I'm inclined to say that this is the kind of thing 8 we had hoped Mr. Williams would have been doing 9 from the outset. 10 Q That he would talk in detail to Mr. Tallis? 11 A And to everyone else, yes. 12 Q And did you have any concerns about the fact that 13 you did not talk to Mr. Tallis first or you didn't 14 know what he would say to Mr. Williams? 15 A I don't recall, actually. I think if we -- I 16 assume, if we had some concern, we would have 17 raised it. 18 Q And I think, and we'll see a bit later when we get 19 closer to the Supreme Court reference, there's 20 some memorandums where you learn what Mr. Tallis 21 has told Mr. Williams about what Mr. Tallis says 22 David Milgaard told him in 1969, and in some cases 23 it differed than what, I think, Mr. Milgaard had 24 told you in the 1986 to 1989 period; do you recall 25 that, learning of that? Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv David Asper by Mr. Hodson Vol 132 - Monday, April 17th, 2006 Page 26522 1 A Yes, I -- in the pre-reference period? 2 Q Yes. 3 A Yes, I recall that. 4 Q And, again, just the question goes back at this 5 point; had you considered or did you have any 6 concerns with Mr. Wilson -- or Mr. Williams 7 getting the information from Mr. Tallis about what 8 David may have told him back in 1969 before you 9 got that information? 10 A I don't recall. I -- we may have had those 11 concerns, I -- it seems logical that we should 12 have, but I don't recall it. 13 Q If we could just -- and we may have touched on 14 this a bit last day, and I apologize if you've 15 already covered this, but what was your 16 understanding -- and, again, let's take the entire 17 Section 690 process, both applications -- what was 18 your understanding of the role that Saskatchewan 19 Justice or the Attorney General of Saskatchewan 20 would play, if any, in your applications? 21 A Umm, I guess what we, or certainly what I thought, 22 was that the Department of Justice would acquire, 23 through the Department of Justice in Saskatchewan, 24 all of the information regarding the Milgaard 25 case, and that would have been the extent, other Meyer CompuCourt Reporting Certified Professional Court Reporters serving P.A., Regina & Saskatoon since 1980 Central Booking - Call Irene @ 1-800-667-6777 or go to www.compucourt.tv David Asper by Mr. Hodson Vol 132 - Monday, April 17th, 2006 Page 26523 1 than perhaps some questions, that Saskatchewan 2 Justice would play. My view was, and I think I 3 stated it publicly, that Saskatchewan Justice, as 4 was the Saskatoon Police Department, were by 5 definition in a conflict of interest and the 6 Federal Department of Justice was the 7 "independent", quote, unquote, third party, 8 neutral party that we hoped would be the case. So 9 the department, the Saskatchewan Department of 10 Justice, would gather and pass along the 11 information. 12 Q And so, apart from providing information to 13 Federal Justice, did you anticipate or understand 14 that they would play any other role in the 15 decision-making process, or any role in that 16 decision-making process? 17 A No. No. 18 Q And do you recall whether you would have had any 19 direct or significant contact with the Attorney 20 General prior to the November 1991 order to send 21 the matter to the Supreme Court, prior to that 22 time do you recall if there would have been any 23 significant contact between you and Mr.