THE CANADIAN JUDICIAL COUNCIL IN THE MATTER OF AN INQUIRY COMMITTEE CONSTITUTED PURSUANT TO SECTION 63 OF THE JUDGES ACT R.S.C. 1985, C. J-1 AS AMENDED INTO THE CONDUCT OF THE HONOURABLE PAUL COSGROVE OF THE SUPERIOR COURT OF JUSTICE OF ONTARIO ********** HELD BEFORE THE HONOURABLE LANCE S.G. FINCH (CHAIRPERSON), THE HONOURABLE ALLAN H. WACHOWICH THE HONOURABLE J. MICHAEL MACDONALD KIRBY CHOWN and JOHN P. NELLIGAN, Q.C. at Federal Court of Canada 180 Queen Street West, Courtroom No. 7A, Toronto, Ontario on Monday, September 8, 2008 at 9:30 a.m. ********** APPEARANCES: Earl Cherniak, Q.C. Independent Counsel appointed Cynthia Kuehl pursuant to the Complaints Procedure Chris Paliare for The Honourable Paul Cosgrove Richard Stephenson Robert A. Centa George K. Macintosh, Q.C. for the Inquiry Committee (ii) INDEX PAGE Continued Submissions by Mr. Cherniak 1026 ******** 1025 1 Toronto, Ontario 2 --- Upon resuming on Monday, September 8, 2008 3 at 9:30 a.m. 4 THE CHAIR: Ms. Kuehl. 5 MS. KUEHL: Good morning, sir. I 6 believe that everyone now has been handed up a copy 7 of the evidence brief on disk. Each tab and, where 8 there is a sub-tab, each sub-tab is its own PDF 9 document, and it is updated as of the additional 10 materials put in the binders on Friday. 11 Each PDF document, when you open 12 it, is searchable in and of itself, so there is a 13 search engine attached to it, so you should be able 14 to look through, in some cases, 150 pages and 15 actually find the reference you are looking for. 16 THE CHAIR: Thank you very much. 17 MR. NELLIGAN: Do we give that an 18 exhibit number or just change it to the old number? 19 MR. CHERNIAK: I think it would 20 need an exhibit number, because the old one is the 21 evidence. 22 MS. KUEHL: The previous disk are 23 all of the transcripts. This is just your five 24 binders on CD. 25 THE CHAIR: Mr. Cherniak. 1026 1 CONTINUED SUBMISSIONS BY MR. CHERNIAK: 2 MR. CHERNIAK: Thank you. Mr. 3 Nelligan, you will let me know if this device is 4 working as it should? 5 MR. NELLIGAN: So far. 6 MR. CHERNIAK: Thank you. I am 7 going back to the last tab in volume 2, particular 8 2(m). 9 THE CHAIR: Is that 29(n) as in 10 no? 11 MR. CHERNIAK: M as in mother, the 12 very last one. This was the tab that I skipped 13 over. 14 THE CHAIR: Thank you. 15 MR. CHERNIAK: Just so you 16 understand the background of what this particular 17 is about, the particular is very short: 18 "Justice Cosgrove ordered 19 disclosure to defence counsel 20 of a memorandum prepared by 21 Crown counsel on incidents of 22 bias by Justice Cosgrove." 23 This is a piece of a different 24 issue and that was the issue of the various 25 memoranda prepared by Crown Cavanagh sometime in 1027 1 the late fall of 1998, apparently for the purposes 2 of assisting new counsel, who turned out to be Mr. 3 Strosberg and Mr. Humphrey. 4 There was an ultimate issue as to 5 whether Humphrey and Strosberg actually got that 6 information and when they got it, and what they 7 knew about, and whether them obtaining information 8 from previous Crown counsel was itself a breach of 9 the order forbidding any communication between 10 Crown counsel about the case. 11 One of the parts of -- one of the 12 five parts of the information that Cavanagh 13 prepared in the fall of 1998 was what could be 14 called a recusal summary; in other words, the 15 incidents that could lead to recusal. That was one 16 of the documents, and that is the issue here. I 17 can truncate some of the material here. 18 If we turn to the first page in 19 the document, it is events that occurred on March 20 1st, 1999, and there is a longish examination of 21 Debbie Walker -- she was the constable in charge of 22 liaison -- as to what she did with the memorandum 23 that Cavanagh had prepared. 24 What she did was -- there's a long 25 discussion about whether she read it and what 1028 1 happened. What she did was give it to Pelletier, 2 Crown Pelletier, and, ultimately, as we will see, 3 Crown Pelletier got it to the Crown law office in 4 Toronto, Mr. Segal's office. 5 I am not going to take the time to 6 go through the cross-examination of Constable 7 Walker about what she knew and what she did, and it 8 is not germane to the point. 9 If I could take you to the next 10 tab, March the 5th, which starts at page 7840, you 11 will see that Mr. Cavanagh is in the witness box 12 and he is being cross-examined by Mr. Murphy on 13 this issue. Mr. Cavanagh is being cross-examined 14 on Ms. Walker's notes at page 7842, line 6: 15 "The next question she has 16 written here is: 'Do you 17 remember providing it?' And 18 her answer for you is: 'There 19 are a number of summaries 20 that were done. Some were 21 sent to Murray Segal. To my 22 knowledge nothing was given 23 to the new lawyers. I spoke 24 to someone, I can't recall 25 who, but they did not want 1029 1 them.'" 2 Over to page 7843, the witness 3 gives the answer at line 5: 4 "Can I clarify -- it might be 5 helpful, it might not. 6 Earlier on, I was asked for 7 items for Mr. Segal and sent 8 him some documents and later 9 on -- I can't recall any 10 specifics at all as to the 11 time frame -- I was asked to 12 prepare some summaries with a 13 view to the counsel who would 14 take over this motion, and 15 those documents never went 16 anywhere. 17 "Question: Are you saying 18 all of the documents never 19 went anywhere, or just the 20 ones that you had been asked 21 to prepare in anticipation of 22 new counsel taking over? 23 "Answer: The latter. 24 "Question: The latter. 25 "Answer: Because I did send 1030 1 documents to Murray Segal is 2 what I was telling you." 3 At the bottom of the page, again 4 Mr. Murphy is reading some answers that he gave 5 that were noted by Constable Walker at about line 6 28: 7 "'Answer: There were a number 8 of summaries that were done. 9 Some were sent to Murray 10 Segal. To my knowledge, 11 nothing was given to the new 12 lawyers.'" 13 Over to page 7844, line 15: 14 "Okay. The next line it says 15 of your answer: 'I spoke to 16 someone, I can't recall who, 17 but they did not want them. 18 I still have them beside my 19 desk.' Then it says: 'I 20 faxed a chronology of case 21 and summary of strengths of 22 case.' -- and then slash -- ' 23 or summary of incidents that 24 showed bias to Murray Segal. 25 Can't recall who asked, 1031 1 Pelletier or Segal, or who 2 told me not to give it.' 3 What exactly are you 4 referring to when you say 5 'summary of incidents that 6 showed bias?' 7 "Answer: Okay. That's 8 -- that's one of the 9 documents that was sent to 10 Mr. Segal which I prepared, 11 showing a series of incidents 12 where I believe that the 13 court was showing bias." 14 Then over to page 7845, it says at 15 line 5: 16 "It was certainly my view 17 that, for some time, that the 18 court had showed a 19 significant amount of bias 20 against the Crown, and so it 21 may well have come from me, 22 but I had shared my views 23 with superiors that I spoke 24 to and discussed the case, 25 and so I don't know if, as a 1032 1 result of my discussions they 2 said, 'well, prepare a 3 summary', or if I said, 'what 4 I should do here is prepare a 5 summary and give it to you'. 6 I can't recall the specifics 7 of that." 8 Then at the bottom page 7846, 9 about line 26, the witness gives this answer: 10 "The problem I have is that I 11 forward many documents to Mr. 12 Hoffman, I guess, or 13 Constable Walker's attention, 14 and I have no recollection, 15 you know, of a specific 16 incident on December 30th. 17 And when you say 'the 18 summary', I'm concerned 19 because my memory clearly is 20 that the new lawyers were not 21 going to get the summaries 22 which I have just referred 23 to." 24 On August the 5th, the issue 25 became as to whether that group of documents they 1033 1 were eventually found, and I haven't taken you to 2 all of that, but they were eventually found. The 3 issue upon which Justice Cosgrove ruled on August 4 the 5th was whether those documents -- and for the 5 purposes of this particular, those documents 6 include the one concerning bias -- should be 7 produced to defence counsel.