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<html><head></head><body><pre style="word-wrap: break-word; white-space: pre-wrap;">C A N A D A COURS UNIFI​ES DU QU​BEC PROVINCE DE QU​BEC CHAMBRE CRIMINELLE ET P​NALE DISTRICT DE MONTR​AL CAUSE NO.: 500-01-017372-928 ​TAPE: PROCES - SUITE PR​SENT: L'HONORABLE JUGE MARTIN FRASER, J.C.Q. ET JURY NOM DES PARTIES: SA MAJEST​ LA REINE Plaignante, c. VALERY FABRIKANT Accus‚, COMPARUTIONS: Me Jean Lecours PROCUREUR DE LA PLAIGNANTE DATE DE L'AUDITION: LE 11 MAI 1993 FICHIER: 3208 P-5148 MICHEL DAIGNEAULT, S.O. TABLE DES MATIERES PAGE WITHOUT JURY 3 WITH JURY 12 EXPERT WITNESS: CLAUDE POTHEL Examined by Me Lecours 16 WITNESS: JEAN DION VOIR-DIRE Examined by Me Lecours 98 WITNESS DECLARED EXPERT Examined by Me Lecours 101 Cross-examined by Mr. Fabrikant 153 ​ PROCES - SUITE WITHOUT JURY THE COURT : I came in alone to settle one or two small housekeeping details before we commence. The article 672.28 of the Criminal Code reads as follows: "Where the verdict on trial of the issue is that an accused is fit to stand trial..." Which is the case here: "...the trial shall continue..." I'm editing as I go: "...as if the issue of fitness of the accused had never arisen." I interpret that to mean, and it's new law, I interpret that to mean that just as a "voir-dire" in the traditional sense, the fitness hearing is a separate hearing, and that the Jury must be instructed to disregard all of the evidence which has been heard during the fitness hearing. In this fitness hearing there was extensive evidence heard that may later, may well later bear on the Defense. I would be interested in hearing your views on that interpretation of 672.28 before I so instruct the Jury, it will be a very short instruction. Me JEAN LECOURS : My interpretation is that we shall continue with proper instructions from the Judge, in time, or right now. THE COURT : Yes, but simply... Yes, right now. Me JEAN LECOURS : To me it's crystal clear, it's black and white. THE COURT : That it is a separate issue, it is a trial within a trial, and that the evidence heard does not and cannot be considered on the trial of the issues. Me JEAN LECOURS : That's the way I see it. THE COURT : Mr. Belleau, is that how you see it too? Me BELLEAU : Oh well, insofar as the interpretation that you put on the section, I agree that it's, in parenthesis, an issue that should not contaminate the trial. THE COURT : The trial. Now... Me JEAN LECOURS : I think we should ask Mr. Fabrikant's opinion. THE COURT : I'm going to ask it. Now, Mr. Fabrikant, what is your view the same of article 672.28? MR. VALERY FABRIKANT : Well, I don't want to disappoint you but... THE COURT : But yes... MR. VALERY FABRIKANT : No, no, no, you would be disappointed very much if I say that I agree with you, therefore I do not want to disappoint you and I'm saying that I do not agree with you. THE COURT : All right. Okay. MR. VALERY FABRIKANT : So here we go. THE COURT : So what does that mean, that you feel what? MR. VALERY FABRIKANT : I feel very simple thing. If you remember, you were so concerned the Jury God forbid hear anything, let's say about torture in Pinel, that you sent the Jury out and you wanted witness to testify. Then you got even more scared, you didn't allow witness even to testify without the Jury. By using your logic, it would have been very simple, okay, Jury heard something, you just direct to disregard that the Jury forgotten this. No way, you understand that this is not how humain being works. You cannot just say: "Cross it out from your mind" and continue as nothing happened. This is not how human beings are. Therefore I bring to your attention that Jury has been contaminated to such an extent by evidence presented here that no matter what you say, they have heard that I am such a callous person who most likely to commit haineous crimes without having any remorse, and this is just, if it is in their mind, they would not be... hear properly any of my defense. They heard that I'm parano‹ac and I'm delusional about persecution, and all my defense is about persecution. If they think that this is just a fruit of my delusion, they would not take it seriously. So either... I don't know if there is any provision for such thing, we can kind of try some kind of issue of the Jury, or ask the Jurors to discuss whether they believe any of those allegations of psychiatrist. THE COURT : I will do no such thing. MR. VALERY FABRIKANT : Well... THE COURT : I will do no such thing. MR. VALERY FABRIKANT : I know. THE COURT : I'm sorry, you're completely wrong. MR. VALERY FABRIKANT : I am just asking if there is such thing, if there is no such thing, then my impression is that you should announce mistrial and commence anew, because no matter what you say to the Jury, they've heard all this, and it is just not in human power, and you are not a magician to erase it from their memory what they have heard, especially taking into consideration that you spent yesterday about forty (40) minutes repeating it all over again, without giving any criticism to what you were saying. Now yesterday you told them that I am such, such, such, such, such and such, according to Morisset. Now today you are going to tell them: "Okay, erase it all and we start in new, and everything is fine". This is not how human beings are. So I ask you to ask your own conscience -- well, I hope there is something there to ask, and I hope that something will respond to you that it is time to announce a mistrial. That's all. THE COURT : Thank you. First of all, when a special issue is ordered in the course of a trial, the code provides, that is, the Legislator who makes the law, not I, provides that the issue will be decided by the Jury, which has been empanelled to hear the case. First principle. I can't change that, that's the law of the land. Secondly, in dealing with a special issue, two elements must be proved. 1) the presence of a mental disorder, because absent a mental disorder there is no need for the Jury to go to the second question of whether it impedes the hearing, it impedes the accused's ability to defend himself or understand the proceedings. So, inasmuch as a special issue was ordered, it became imperative that, in the first place, the psychiatrists who were named, Lafleur and Talbot, discussed and testified on the question of mental disorder. They did, and they raised the question of personality problems. The matter, of course, could have ended there. I was in no way in error, in my view, in permitting them to testify on that; quite to the contrary, if I had not done so, there would have been no basis for the issue even to have been debated. You tell me that the Jury has been contaminated. I doubt it very much. I have more faith in human beings, perhaps, than you do. MR. VALERY FABRIKANT : Ha, ha, ha. Did I not prove otherwise? THE COURT: I'm speaking Mr. Fabrikant, it will be your turn. You proved nothing. I'm, in my view, I do not believe that the Jury has been contaminated. I underline that you were the one who elected to go in detail into the question of parano‹a and narcicism in your cross- examination of both Lafleur and Talbot, and you are the one who decided to ice the cake by bringing along Morisset, and having Morisset testify for whatever reason you gave, which, in my respectful view, and I did not say this to the Jury, was furious. Secondly, or thirdly... MR. VALERY FABRIKANT : What it means furious? THE COURT : Look it up. Thirdly, I agree there are those who hold the view that a Jury may find it difficult to put certain things out of their minds. You will find various Courts of Appeal, in certain circumstances, making the point. You will find the same Courts of Appeal making the point that it is sometimes difficult for Judges to put certain things out of their minds when they have to instruct themselves to do so. But by and large, by an large, our law recognizes that jurors in good faith will follow the directions of the Judge, just as Judges will follow their own directions to themselves. Parliament has made the jurors judges of fact. In my book that put them on every bit the same plane as any other judge who is sitting, whether he be deciding facts or whether he be deciding law, and to say that on one hand the judge is capable of putting certain things out of his mind but on the other hand jurors are not is pure ego‹sm, pure ego‹sm and nothing else, and furthermore the law foresees, particularly in conspiracy trials, it happens every day, that jurors are instructed in determining first of all whether there is a conspiracy to ignore a whole raft of evidence in coming to the initial decision as to whether there is a conspiracy, and only after, arriving at that particular point, may they take into account that evidence.

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