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Preliminary Hearing

Judicial Order for Crown Inventory

Delays Turn Order into Toothless Tiger

Provincial Court / Preliminary Inquiry
Prelim Closing Arguments

TRANSCRIPT January 25, 2007 (pages 1336-43)

MS. SIL:

The Crown did provide the Inventory. It arrived December 28th. There was disclosure there that I know I have never seen. There are some things by Sergeant Simpson. There's Request for Analysis Forms from the police officers to (RCMP expert) Heather Shalley. I know I saw the first report, but never saw any further than that. And Inez Cardinal listed some handwritten notes of Constable Lee Jones. I never saw those. I'm absolutely sure.

INEZ CARDINAL:

Your Honour, I have the box of disclosure that Ms. Sil can have today.

JUDGE SINGER:

Okay.

MS. SIL:

Something else I need, whether it goes on to trial or not, are all of the police incident reports. I have my reasons and I'd rather keep them confidential now, so as not to tip the Crown off to what I'm looking for.

JUDGE SINGER:

Incident report concerning what?

MS. SIL:

In September 1999, just a couple days before my bone biopsy, I went down to the police station to report persistent thefts to my Meals on Wheels, not resolved after phone calls to Home Care. I have a reason for wanting that, and also, all reports for 2006. The theft of prescriptions when I was in police custody on October 12th and 13th, 2006. Afterword:  Sgt. William Simpson was the officer at the Saskatoon Police Station who took my theft report in 1999 of persistent missing Meals on Wheels.

JUDGE SINGER:

You'll have to again discuss that with the Crown (outside of court). I don't think I have any power to make any orders there at all.

MS. SIL:

And something else – all correspondence between Inez Cardinal, or any other prosecutor, and the police. At least, it should be listed on the Inventory. Ms. Cardinal said in her cover letter that it wasn't. The point I'm making is that disclosure is far from complete.

JUDGE SINGER:

If this matter goes to trial, that would be your first request, before the matter is set for trial is complete the disclosure.

MS. SIL:

It's amazing, Your Honour, that you made a request for an Inventory from the Crown in May 2006. The Crown said they'd provide an Inventory, but couldn't Xerox the whole disclosure. She takes seven months, Inez Cardinal does, to create an Inventory (delaying it until) the Preliminary Hearing is almost concluded.

JUDGE SINGER:

Well –

MS. SIL:

I get it between the evidence stage and the argument stage, even though the defence case is far from complete. The defence case, really, has barely begun. But from your point of view, between the evidence stage and the argument stage, the Prosecutor Inez Cardinal prepares and sends the Inventory to me. Explanation of different points of view:
Defence view: Continue taking evidence (cross-exam Crown witnesses, and call own witnesses).
Judge view: Halt evidence stage over defence protest; start Prelim Closing Arguments today.

JUDGE SINGER:

Well –

MS. SIL:

I receive the Inventory on December 28, 2006 (after the final evidence session). Then she brings the disclosure to me today in a box she will give me after the argument stage (at the end of today's session). In other words, after the entire Preliminary Inquiry is over.

JUDGE SINGER:

Disclosure is an odd duck. Lack of disclosure provides the accused with an opportunity to make an application to a (higher) judge for various forms of relief. The leading case law really says you should have full disclosure before you even enter an election, let alone enter a plea. And there's an ongoing duty on the Crown to provide ongoing disclosure. All of those things exist. What affect it may have for lack of disclosure is really up to the trial judge.

MS. SIL:

There's something that's always puzzled me about disclosure, about Stinchcombe, for example. They say that disclosure is always a Charter argument, therefore, it's beyond the Preliminary Inquiry judge, and has to be taken to Queen's Bench Court. But what puzzles me is that the Charter argument was made by the lawyers who handled the Stinchcombe case. The Supreme Court has made a settled point, it's now settled law, so why can't a Prelim judge completely apply the settled law? It's no longer a Charter argument.

JUDGE SINGER:

Well, it is, in each individual case how Stinchcombe is applied, and the duty to provide disclosure. The remedy is up to the QB trial judge. One remedy is dismissing the charge. One remedy is just saying, oh, well let's just adjourn this for further disclosure. Another remedy may be yes, but I don't think it matters very much, so let's just go on. Stinchcombe set the duty on the Crown, and they know their duty, and they know the timing of that duty. The consequences of breaching that duty is a Charter application for a remedy. So it's complicated. The duty exists, what happens if the duty hasn't been followed to the letter of the law is up to the trial judge.

MS. SIL:

So the Supreme Court settled the law point, but the remedies are Charter argument?

JUDGE SINGER:

They just said there was a duty. It doesn't actually say in the Charter you have to have disclosure. Stinchcombe is based on being able to have a fair trial, which is in the Charter.

Role of the Speakers

Judge Singer: Provincial Court Justice

Inez Cardinal: Crown Prosecutor

Georgena Sil: Client / Pro Se

Session: Preliminary Inquiry

Court Transcript

Court Transcript
January 25, 2007

Deliberations on
Crown Inventory

Provincial Court / Preliminary Inquiry
Defence Statement under CCC s 541(3)

TRANSCRIPT July 6, 2006 (pages 930-1, 1010-1022)

MS. SIL:

The Crown Prosecutor, Inez Cardinal, has made a promise to provide an Inventory to the defence. This promise was made on May 4th as well as on May 11th, and Judge Singer asked for a specific date on May 11th. Inez Cardinal replied About a month, and I would like to know the status of that.

JUDGE SINGER:

We'll answer this when you're done (your Defence Statement)… This is hard for people to understand, but the more information you give to the prosecutor now, the more they can try and fix up their case if it goes to trial.

MS. SIL:

I do understand what you're trying to say, but I still want to present the exculpatory evidence now based on The Crown v. Arcuri. I still want to give this testimony, or Statement, to maximize my chances at the prelim.

JUDGE SINGER:

I know you want to, but there comes a time when what you want doesn't count anymore and if you're wasting the time of the Court and everybody that's here that's getting paid, then – and uses up the space, I have to take that into account.

MS. SIL:

Well, I'm trying to show that I could not have done it. I mean, I've answered that I did not – repeat, not. I made my election and plea in February of 2003.

JUDGE SINGER:

And perhaps if I was weighing the evidence I would agree with you, but I don't weight the evidence.

MS. SIL:

Arcuri says you do at a prelim.

JUDGE SINGER:

Well, there's nothing more for me to say. I'm tell you, what you're doing would be very good at a trial, but right now it's not helpful to me. It's not helpful to you and it's wasting everybody's time. You can accept that or not accept it.

MS. SIL:

I want to continue with my Statement, please, Your Honour.

JUDGE SINGER:

I know you do, but I'm going to cut you off at five minutes to two. You have ten minutes to finish your Statement.

MS. SIL:

I won't be finished then, I'm sorry.

JUDGE SINGER:

Yes, you will. You will be finished then, whether you are or not, so find the most important thing to tell me between now and then because that's when it's over.

MS. SIL:

I ask the Court if I may file the letter I wrote to Robert Borden on June 26th, 2006. Mr. Hillson asked me to do this letter so he could formally get the disclosure from Mr. Borden. It's all formal and in writing. It's just a request for disclosure, but it's also a list of what we did not receive from (RCMP expert) Heather Shalley. Missing charts, work notes –

JUDGE SINGER:

I don't want to hear what you … Just stop for a minute. Ms. Cardinal, first of all, why hasn't she received her Inventory?

INEZ CARDINAL:

Your Honour, the Inventory is not quite done yet. I've still got another box to go through – have gone through.

JUDGE SINGER:

When will it be done?

INEZ CARDINAL:

Hopefully by the end of July.

JUDGE SINGER:

All right. Please make it available by the end of July.

INEZ CARDINAL:

Thank you, Your Honour.

Role of the Speakers

Judge Singer: Provincial Court Justice

Inez Cardinal: Crown Prosecutor

Georgena Sil: Client / Pro Se

Session: Preliminary Inquiry

Court Transcript

Court Transcript
July 6, 2006

Deliberations on
Crown Inventory

Provincial Court / Preliminary Inquiry
Disclosure Conference

TRANSCRIPT May 11, 2006 (pages 614-6, 620, 689, 813-20)

MS. SIL:

Again, we're looking for the names of the two patrol officers (from the search).

JUDGE SINGER:

Why?

MS. SIL:

Because the police obviously withheld that information from the prosecutor. We're trying to find other means of obtaining it. I'm trying everything I can think of to do this as fast as possible, writing several requests in parallel through the Freedom of Information Act.

JUDGE SINGER:

Okay. So those are the matters. I think we can deal with them all by having the Crown give you an Inventory on the two separate Informations. I'm going to ask that the Crown provide you with an Inventory or a list of all of the items on their file and on the police file in relation to all of the Informations before the Court, including the Breach charge. And if there's anything on there that Ms. Cardinal has not given to you and does not wish to give to you, I'd like to know the reason why, and that should cover it.

MS. SIL:

Number six was Dr. Yelland's chart (which should be treated as business records) through the Canada Evidence Act and the Saskatchewan Evidence Act. We've seen a reference in Sergeant Bracken's notes that the prosecution provided only recently, in December 2005 to Robert Borden. The references shows contact (between Bracken and Yelland) and we want to see whether Dr. Yelland made any record of it.

JUDGE SINGER:

He had his chart there and I believe he was asked questions about it.

MS. SIL:

All medical questions, but we didn't know this in Sergeant Bracken's notes until December 2005. Dr. Yelland was last questioned in May of 2005. In the chart there may be some records of his interactions and conversations and lunches with Sergeant Bracken.

JUDGE SINGER:

What may or may not be on the file can be determined by an Inventory and so I've asked the Crown to prepare that. I have a question for the prosecutor: Did you have an opportunity to prepare the Inventory of documents?

INEZ CARDINAL:

Oh, no, Your Honour.

JUDGE SINGER:

How much time would you need to do that?

INEZ CARDINAL:

Oh, probably a month.

JUDGE SINGER:

Well we'll pick a –

INEZ CARDINAL:

I'm going to have an assistant to actually do that. And as I understood it, it was – Your Honour, perhaps you can clarify this. I didn't take it as a court order, I took it as a court request.

JUDGE SINGER:

Yes, I did make that request, yeah. I think it would make things simpler. I don't think I'm in a position to order it because it's Charter (inaudible) – and it's a Preliminary Inquiry. And there's some dispute about whether I can or cannot do it.

INEZ CARDINAL:

M'hm.

JUDGE SINGER:

But thank you for honouring the request.

INEZ CARDINAL:

I'm going to get someone on that hopefully – actually, once I was done here today.

MS. SIL:

But I would want the Inventory first from the prosecutor, and all of the other disclosure I requested (before the final cross-exam of witness Sgt. William Simpson).

JUDGE SINGER:

No.

MS. SIL:

I'm wondering if the Court is more interested in truth or in –

JUDGE SINGER:

I'm not interested in truth at this Preliminary Inquiry.

MS. SIL:

Is it image or substance that you are interested in?

JUDGE SINGER:

It's only substance. I'm not interested in truth. That's – you put your finger right on it there. At a Preliminary Inquiry I am not to judge whether someone's telling the truth or not. That's not my job. I'd love to, if I could, but I can't, and I've been told by superior courts not to do that.

MS. SIL:

But to put all of the evidence before you, exculpatory and other kinds.

JUDGE SINGER:

No, we're not going to do any more on the disclosure. The best I can give you on the disclosure is I've requested that the Crown prepare an Inventory. They have said that they will take care of that. I'm not doing anything more on disclosure. We're going to deal with this Preliminary Inquiry and this witness today. Unless something comes up I can't see why we can't ask these questions this morning and be done with it.

Role of the Speakers

Judge Singer: Provincial Court Justice

Inez Cardinal: Crown Prosecutor

Georgena Sil: Client / Pro Se

Session: Preliminary Inquiry

Court Transcript

Court Transcript
May 11, 2006

Deliberations on
Crown Inventory

Provincial Court / Preliminary Inquiry
Disclosure Conference

TRANSCRIPT May 4, 2006 (pp 579-603)

MS. SIL:

Number two is the prosecution's disclosure file according to the Freedom of Information Act. The Saskatchewan FOI Access Directory allows access to the full prosecution file. There is a difference between the defence file and the prosecution file. It's per the precedent of the Wilfred Hathway case that Robert Borden handled in autumn 2005.

JUDGE SINGER:

No, no, I don't understand that. Are you saying there are things on the prosecutor's file that you haven't received?

MS. SIL:

We expect so. According to the news report –

JUDGE SINGER:

No, no, no. Do you know if there is or not?

MS. SIL:

Oh, yes, we do.

JUDGE SINGER:

Okay. Do you know what those things are?

MS. SIL:

Yes.

JUDGE SINGER:

What are they?

MS. SIL:

The full roster of police personnel that executed the search warrant.

JUDGE SINGER:

Just a moment. You want the names of all the police officers who were present –

MS. SIL:

Who executed the search warrant on May 22nd.

JUDGE SINGER:

Well what do you mean by executed a search warrant? Were you present when the search warrant was executed?

MS. SIL:

That's the word Robert Borden used, I'm sorry.

JUDGE SINGER:

Were present when the search warrant was executed. Yes?

MS. SIL:

On Victoria Place … We know the names of four officers, the senior officers. We do not yet know the names of two male, tall, young patrol officers.

JUDGE SINGER:

Okay.

MS. SIL:

They are essential. They will contradict some of the major evidence of Bracken and Simpson.

JUDGE SINGER:

All right. So first of all, you want the names of all the police present when the search warrant was executed at your residence?

MS. SIL:

Yes. The remaining two, the patrol officers is what we need.

JUDGE SINGER:

Well we'll get all of them and that way you'll see who's missing. What else are you aware of that's missing on your file?

MS. SIL:

Probably information about the breach of undertaking, because it's so sketchy –

JUDGE SINGER:

You're entitled to that, but I can't really make much of a thing because that's really not in front of me, other than it's just being carried along here.

MS. SIL:

No, but –

JUDGE SINGER:

We're not having any hearings (on the Breach). We've had no evidence called on the Breach. But it is a charge, and so you're entitled to all the disclosure.

MS. SIL:

To answer it, yes.

JUDGE SINGER:

Okay. So on the Breach charge you feel you don't have –

MS. SIL:

There would be communications between the police, and specifically between Sergeant Bracken and the prosecutor, that we probably don't have. There would be more than exists in the Occurrence Reports that were provided to us.

JUDGE SINGER:

I'm not sure what you mean by communications? They phoned up and said hello or –

MS. SIL:

Well communications, notes, reports. Prosecutor's Summaries rather than Defence Summaries. That is how it's defined in this news report.

JUDGE SINGER:

Well let's go –

MS. SIL:

(In the news report) one of your prosecutor's, Klause, says that to get the full disclosure file you have to hit the print button designated for the Crown, rather than the print button on the computer designated for the defence.

JUDGE SINGER:

We'll we're going to deal with this in another fashion, in a way that was recommended by the Supreme Court, not by the Star Phoenix.

MS. SIL:

All right. It's more than just the Star Phoenix though, it's conversations with my own lawyer, Robert Borden, at that time.

JUDGE SINGER:

There's a Supreme Court of Canada decision on this that handles it, that I'm bound by.

MS. SIL:

Stinchcombe?

JUDGE SINGER:

No, it's even more recent than Stinchcombe. I can't remember (the title) right now. What it says is the prosecutor has to prepare an Inventory of all the documents in evidence that they possess, and the police have, with regard to the charge. They have to indicate to the Court what they've given to you or your lawyer and lastly, if anything hasn't been given to you, they have to tell me why not.

MS. SIL:

I didn't bring a detailed list with me actually. I just assumed that when we got the file we would get everything we needed. I'm not prepared to actually answer that in full, I'm sorry.

JUDGE SINGER:

Okay. So if you don't know –

MS. SIL:

I didn't know I would be asked.

JUDGE SINGER:

Probably you needed the Inventory to know anyway, if there's anything on there that they haven't given you.

MS. SIL:

Yes.

JUDGE SINGER:

All right. I do forget the name right now of the case, but that's what's required actually in a case such as this. I think that we'll have to have an Inventory done. And that Ms. Sil is entitled to review that Inventory. If there's anything on it that she hasn't received, then the Crown will have to explain why.

INEZ CARDINAL:

Well, Your Honour, just –

JUDGE SINGER:

Is there a problem with it other than it's a lot of work?

INEZ CARDINAL:

I'd have to go through the whole file again – the boxes of files we have. But at this stage I can see where the Crown would probably want an Inventory when it comes to the QB trial, but at this stage in the proceedings I would suggest that maybe we focus on completing the preliminary hearing.

JUDGE SINGER:

Well –

INEZ CARDINAL:

We have given her everything so …

MS. SIL:

No, we know that you haven't.

JUDGE SINGER:

Well you suspect she hasn't.

MS. SIL:

I have a letter here from Legal-Aid attorney Tanis Talbot. It's been filed in court previously. The prosecution has a copy as it was addressed to Mr. Ritter in 2004, several months after Ms. Talbot withdrew. As soon as Robert Borden took over, she wrote this to help resolve some of the disclosure issues. Talbot says, The 85 exhibits that are missing, in this letter.

INEZ CARDINAL:

I think they've gone over that before, Your Honour.

JUDGE SINGER:

Yeah, we have.

INEZ CARDINAL:

But if there is an Inventory requirement, I'll certainly do my best to get it done at this stage.

JUDGE SINGER:

I take it at this point in time you're stating that as far as you are concerned all of the disclosure has been made?

INEZ CARDINAL:

Yes, Your Honour.

JUDGE SINGER:

And that you're prepared to do an Inventory, if I request it, but that you don't think it's required here?

INEZ CARDINAL:

No, thank you. Your Honour. That's accurate.

MS. SIL:

The problem is it's possible the police have not given the Crown the full disclosure. Ms. Cardinal is aware we don't have the names of the final two police officers and yet she can't produce it for us. She's aware of that very well, the correspondence has been given to her by Robert Borden. She's aware that we are missing those essential witnesses.

JUDGE SINGER:

Do you want to comment on that?

INEZ CARDINAL:

Well, Your Honour, previously Robert Borden requested information about who all attended. That information has been provided. To the Crown's knowledge, there were no other people in attendance and we've reiterated that a couple of times to counsel, that –

JUDGE SINGER:

All right.

INEZ CARDINAL:

– these are all the people that were involved at the search at the time and if they think there's someone else, then they're mistaken and that there was no other officers involved. And that information has been provided to my friends.

JUDGE SINGER:

All right. That's the position of the Crown.

MS. SIL:

Your Honour, I was the one who was present during the search and I am absolutely clear and certain that there were six police officers –

JUDGE SINGER:

Well you have – she's an officer (of the court).

MS. SIL:

There were five who actually participated in the search and then there was Constable Lee Jones, whose role was to drive me to the station.

JUDGE SINGER:

The prosecutor has indicated they've given you this information already.

MS. SIL:

But the police have withheld it from the Crown. What do we do then?

JUDGE SINGER:

Well I can't do anything at a Preliminary Inquiry about that. But it may be significant to your trial, if there is one.

Role of the Speakers

Judge Singer: Provincial Court Justice

Inez Cardinal: Crown Prosecutor

Georgena Sil: Client / Pro Se

Session: Preliminary Inquiry

Court Transcript

Court Transcript
May 4, 2006

Deliberations on
Crown Inventory

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia

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