Toronto Star

Convictions overturned in Ottawa-area murders
January 26, 2007

Tracey Tyler
LEGAL AFFAIRS REPORTER

He’s the sort of unsavoury character your mother would warn you about.

But when it came to thoroughly warning a jury about the dangers of Denis Gaudreault, a trial judge never did - one of many mistakes that led the Ontario Court of Appeal to order a new trial for two men convicted in one of Canada’s longest and costliest murder prosecutions.

In its 3-0 ruling Friday, the court quashed the convictions of Richard Mallory and Robert Stewart, citing multiple, serious errors at their trial seven years ago for the double murder of Ottawa-area drug dealer Michel Giroux and his pregnant wife, Manon Bourdeau.

High on the list was the trial judge’s failure to warn the jury in the strongest terms about the danger of relying on the unconfirmed evidence of two jailhouse informants and Gaudreault - a career criminal, admitted perjurer and a man described as a “poster boy” for the kind of untrustworthy witness who should never set foot in a courtroom.

For 17 years, the Crown’s case against not just Mallory and Stewart, but two other men charged in the shotgun slayings of the Cumberland, Ont. couple, has been built around Gaudreault’s account of allegedly driving the four men to the murder scene.

Earlier this month, Justice Colin McKinnon of the Superior Court of Justice freed two of those men, James Sauve and Richard Trudel, who had collectively spent more than 25 years in prison for first-degree murder in connection with the Jan. 16, 1990 slayings.

Excessive court delays, undisclosed evidence and Gaudreault’s unreliability were among the reasons cited by the judge.
Sauve and Trudel were convicted of first degree murder after a 16-month trial in 1996, but the Ontario Court of Appeal ordered a new trial three years ago, citing the trial judge’s failure to strongly warn jurors that Gaudreault and two other underworld figures were “quite capable of lying and manipulating the truth to an astonishing degree.”

“If you look through all the indicia of people who are not to be trusted when they go into the courtroom, he (Gaudreault) fits every single one,” said Richard Litkowski, one of Mallory’s lawyers. “He is the poster boy.”

“I think it’s very fair to ask why this investment by authorities in Mr. Gaudreault for so many years,” Litkowski said in an interview on Friday. “I think that requires some answers.

The court also rebuked the Crown for demeaning and denigrating defence counsel during inflammatory opening and closing addresses to the Mallory-Stewart jury and faulted the trial judge for failing to stop her “overly aggressive” courtroom tactics.

Among other things, the prosecutor labelled Sauve a “mad dog” and “wacko” and warned jurors that while the defence was trying to “seduce” them into ignoring evidence, the two accused would not be able to “crawl behind” any “shadows of doubt” by trial’s end.

Brendan Crawley, spokesperson for the attorney-general’s ministry, said Crown officials are reviewing the ruling and have no comment.

Lawyers representing Mallory and Stewart at trial argued that because a pregnant woman had been murdered, police were under pressure to make a quick arrest.

Within days of the slayings, Gaudreault contacted police from British Columbia, where he had fled with a large amount of hashish and about $13,000 he owed Stewart, described by the appeal court as a high-level Ottawa-area drug dealer.

Gaudreault described how he allegedly drove dealers Trudel and Stewart, and their enforcers Sauve and Mallory to the scene in Stewart’s white Cadillac, staying in the car with Stewart while the rest went and killed the victims over unpaid debts.

Gauldreault’s account grew more detailed over time, as he elicited assurances of being placed in a witness protection program and provided with money.

Under cross-examination, Gaudreault was exposed as a person who had lied to police and in court and fabricated evidence.
He had used cocaine on the day of the murders and had been using large amounts of drugs generally, which were causing blackouts, hallucinations, memory loss and paranoia.

Two years ago, the appeal court said Justice David McWilliam, who presided at the trial of Sauve and Trudel, should have also warned jurors that Gaudreault might have lied to cover up his own involvement in the case.

McWilliam also presided at Stewart and Mallory’s trial.

In both cases, the adequacy of his warnings were in issue.

“The problems associated with (Gaudreault’s) evidence went beyond having a significant criminal record and being an accomplice to the crime,” Justices Robert Sharpe, Janet Simmons and Susan Lang said in Friday’s decision. “As this court noted in the related case, Gaudreault had lied under oath and fabricated evidence.”

“Just as in the related case,” the court said, “it was therefore essential that the jury understand that Gaudreault was `quite capable of lying and manipulating the truth to an astonishing degree.”

Litkowski said he hopes to get his client out on bail quickly. He is now 60 and eligible for parole after 15 years in prison for second-degree murder. Litkowski said if the Crown reprosecutes, he will consider seeking a stay of proceedings.

Stewart represented himself on appeal.

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