• Who is the crown? The Crown is the police, the prosecutor and the Attorney General of the province. In this dispute, the only member of the Crown the Law Society of B. C. has jurisdiction over is the prosecutor, as he is a lawyer. The prosecutor at the heart of this complaint is Mr. Sean Madigan who, as a part of the Crown in R. v. Lord (June 1992), did withhold evidence.

Justice Spence with Justice Laskin concurring at page 265:

"In my view, it is the duty of the Court to be vigilant to assure itself that the appellant has had a fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfairness then the Court should act with decisiveness to reverse such unfairness."

R. v. Jack (January 1992), 70 C.C.C. (3d) 67,

"There can now be no doubt that there exists a duty on the part of the Crown in a criminal case involving an indictable offence to make full, fair and timely disclosure of all relevant facts. For these purposes, the Crown includes the police."

• There has long been a duty at common law of the Crown to disclose all relevant material to the defence. The importance of full, fair and timely disclosure is well established in law.

"…that in a criminal trial where the liberty of a subject is at stake, the sole object of the proceedings is to make certain that justice should be done between the subject and the state, is firmly established."

Lemay v. The King (1951) 102 C.C.C. 1,

"I wish to make it perfectly clear that I do not intend to say anything which might be regarded as lessening the duty which rests upon counsel for the Crown to bring forward evidence of every material fact known to the prosecution whether favourable to the accused or otherwise;"

R. v. C.(M.H.), (April 1991) 63 C.C.C. (3d) 385:

"This court has previously stated that the Crown is under a duty at Common law to disclose to the defence all material evidence whether favourable to the accused or not. In Lemay v. The King (1952), 102 C.C.C. 1 [1952] 1 S.C.R. 232, 14 C.R.89, while holding that a prosecutor had a discretion regarding which witnesses to call, it expressed the opinion that the Crown must nevertheless produce all material facts."

R. v. Jack supra

"Relevant information now includes statements obtained from persons by the authorities touching a matter in issue whether they are proposed as Crown witnesses or not."

• What did Mr. Madigan know about what was being withheld by the rest of the Crown, the police? It is unconscionable that a Crown prosecutor would proceed with a prosecution of a citizen without full and complete knowledge of the facts of the case. The prosecutor and the police had to be involved in the persuasion of the Attorney General of B. C. to prefer a direct indictment. The Attorney General of B. C. is not in a position to analyze every case and determine if a direct indictment is warranted. He receives a recommendation from the Crown prosecutor, in this case Mr. Madigan.

"The preferring of a direct indictment under s. 507(3) of the Code in combination with the failure of the Crown to make adequate disclosure might, however, result in an accused being unable to make full answer and defence at his trial, thereby contravening s. 7 of the Charter and enabling the trial judge to fashion a remedy under s 24(1)."

Regina v. Ertel (1987), 35 C.C.C. (3d) 398,

"While the effect of a direct indictment may in some cases create several disadvantages, …. the Attorney-General, who is not impartial and does not hold a hearing, to commit people to trial, these disadvantages are not so unfair as to be discriminatory. In determining whether or not there has been discrimination it is proper to consider factors such as fairness, rationality and justifiability."

"The fundamental right to make full answer and defence is protected."

"In Arviv the court recognized two aspects of the direct indictment: the "charging" aspect and the "procedural" aspect. The procedural aspect of the direct indictment consists of the accused's deprival of the right to cross-examine the Crown witnesses at a preliminary inquiry. The conclusion reached was that the constitutional standard which a court must satisfy under s. 7 of the Charter is encompassed by the concept of "the principles of fundamental justice". Thus, the court held that a contravention of s. 7 of the Charter may result if the combination of the direct indictment with the failure of the Crown to make adequate disclosure results in the inability of the accused to make full answer and defence at his trial."

• In November 1991 the Supreme Court of Canada finally had enough of the provincial Crown prosecutors' ignorance of the facts and therefore not providing full, fair and complete disclosure. The Supreme Court in Stinchcombe v. The Queen (1991), 68 C.C.C. (3d) 1, Justice Sopinka made it perfectly clear they were fed up with non-disclosure.

"It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view overwhelming."

"I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done."

"In the Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1: Findings and Recommendations (1989) (the "Marshall Commission Report"), the commissioners found that prior inconsistent statements were not disclosed to the defence. This was an important contributing factor in the miscarriage of justice which occurred and led the commission to state that "anything less than complete disclosure by the Crown falls short of decency and fair play" (vol. 1 at p. 238).

"…much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to the manner and timing of the disclosure, the absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure."

"…all relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence."

• Should Mr. Madigan be allowed to keep his head in the sand? Absolutely not.

"The purpose of disclosure is to enable an accused person to make full answer and defence. If the disclosure is to be meaningful, it is incumbent upon Crown counsel to procure from the police all relevant materials gleaned from the investigation and, within his or her reviewable discretion, to disclose the results to defence counsel."

"The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel".

Boucher v. The Queen (1954), 110 C.C.C. 263,

"It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings".

• Mr. Madigan, even though he had to be aware of the fact that the police officer swearing out an affidavit to obtain the wire-tap court permission had lied in his affidavit about having positive identification of Derik Lord and David Muir, insisted that the illegally obtained wire-taps be allowed in court. Mr. Madigan had the statements of the witnesses who were used to identify the photo line up prepared by police. Statements which clearly did not identify Derik Lord or David Muir as being seen in the vicinity of the murder scene. Statements such as "# 2 rings a bell", "sort of looks like one he had a crew cut as well", "sort of looks like one but his hair was longer", "maybe him, yes #8, someone like him". Independent statements such as from both taxi drivers, who identified the people they picked up as about 25 years old when in fact both boys were under 18. These witnesses' identification was so feeble that Mr. Madigan didn't even ask them, when they were testifying, to identify the defendants as the persons these witnesses had seen.

"A person swearing an information, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the truth of his assertion."

"If it should transpire that the person swearing the information has done so falsely or has misled the Justice of the Peace, then he risks the possibility of both criminal and civil proceedings against him personally for his misconduct".

R. v. Whitmore (1987), 41 C.C.C. (3d) 555,

"The laying of a false information obviously can found an action for malicious prosecution: Casey v. Automobiles Renault Canada Ltd., (1964) 2 C.C.C. 289".

• Mr. Madigan is accountable for his actions and non-disclosure of information which could assist the defence to make full answer and defence is nothing short of unethical, immoral, and amounts to malicious prosecution.

"Prosecutorial immunity is a question of policy. Absolute immunity for the Attorney-General and his agents, the Crown Attorneys, is not justified in the interests of public policy. An absolute immunity has the effect of negating a private right of action and in some case may bar a remedy under the Canadian Charter of Rights and Freedoms. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. The considerations in favour of absolute immunity have some merit but these considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim. The inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney-General and Crown Attorneys will not be hindered in the proper execution of their important public duties".

"A ruling on a preliminary motion to the effect that Attorneys-General and their agents are absolutely immune from all liability for suits for malicious prosecution may be too expansive and even ill-founded".

Re Cunliffe and Law Society of B.C. (1984), 13 C.C.C. (3d) 560,

"In dismissing the appeal of Mr. Bledsoe the court held that Mr. Bledsoe had failed in his duty to advise counsel for the accused in a timely manner of the existence of the additional Thursday witnesses once he learned of counsel for the accused's ignorance of such witnesses. Upon becoming aware that counsel for the accused was ignorant of such witnesses he postponed performing his duty and the mistrial then intervened. He had failed to instruct his successor, Mr. Cunliffe, who could have remedied that breach. Mr. Bledsoe's failure could not be described as a mere oversight or excused because of inexperience".

"I would dismiss the appeal of Mr. Bledsoe and allow the appeal of Mr. Cunliffe".

• The Law Society of B.C. has an duty to expel members who have been negligent or lack bona fides. Mr. Madigan has proven to be negligent and lacks bona fides. The Law Society of B.C.'s Mr. Timothy Holmes, staff lawyer - complaints, states in his letter to Mrs. Elouise Lord dated March 21, 1996. "While I agree with you that Stinchcombe is a case relevant to the subject matter of your complaint, I think it is worth pointing out that the case was comparatively recent at the time your son went to trial and the principles of the case had yet to be absorbed into general practice."  This statement is nothing short of excusing this prosecutor's ignorance of the law. Ignorance of the law, for Mr. Madigan, is a lack of bona fides. The Canadian Criminal Code section 603 and section 650 are not new. The Canadian Charter of Rights and Freedoms section 7 and section 11 are not new. R. v. Harris [1927], supra, Lemay v. The King (1951), supra, Boucher v. The Queen (1954), supra, R. v. Caccamo (1975),supra, Re Cunliffe and Law Society of B.C. (1984), supra, Regina v. Ertel (1987), supra, are not new cases. The fact is Stinchcombe was the result of Sopinka J's disgust at the prosecution's continued violation of the statutes and common law of full disclosure. Section 603 of the Canadian Criminal Code states the accused is entitled to inspect the evidence and exhibits which to any reasonable individual means all evidence and exhibits, not just those the prosecution intends to use. Full disclosure has been and continues to be a requirement of a fair trial. There is nothing new about the requirement of a fair trial as part of the principles of fundamental justice. Mr. Madigan has never tried to repair the damage he caused by the non-disclosure of information to the defence as required by the Code of Professional Conduct.

"An accused is entitled, after he has been ordered to stand trial or at his trial, (a) to inspect without charge the indictment, his own statement, the evidence and the exhibits, if any; and (b) to receive, on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the province, a copy (i) of the evidence,".

Canadian Criminal Code, s. 650 (3);

"An accused in entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. R. S., c. C-34, s. 577; 1972, c. 13 s. 50; 1991, c. 43, s. 9".

Canadian Charter of Rights and Freedoms, s. 7;

" Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Canadian Charter of Rights and Freedoms, s. 11 (d);

"Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;"

Calvert et al. v. Law Society of Upper Canada (1981), 32 O.R. (2d) 176,

"If the Benchers are aware of allegations of lack of good character on the part of an applicant that they consider serious enough to be considered, then I am of the opinion that there is a duty upon them to investigate them. In the absence of any such allegations, I am of the opinion that an applicant is entitled to be deemed to be of good character".

"…if it should be that the Benchers found Pearson to be of bad character but still admitted him to practice, they may have been negligent or lacked bona fides".

"…there is a duty owed to the plaintiffs by the Law Society for its negligence in not properly undertaking its function of investigating complaints and making a decision or in failing to exercise such duty to the public and to these plaintiffs in a bona fide manner".

The Canadian Bar Association's Code of Professional Conduct at page 35, 36 and 37:

Rules

Prohibited Conduct

2. "The lawyer must not, for example:

(e) Knowingly attempt to deceive or participate in the deception of a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct".

Errors and Omissions

3. "The lawyer who has unknowingly done or failed to do something that, if done or omitted knowingly, would have been in breach of this Rule and discovers it, has a duty to the court, subject to the Rule relating to confidential information, to disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it".

Duties of prosecutor

9. "When engaged as a prosecutor, the lawyer's prime duty is not to seek a conviction, but to present before the trial court all available credible evidence relevant to the alleged crime in order that justice may be done through a fair trial upon the merits. The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to the accused or defence counsel (or to the court if the accused in not represented) of all relevant facts and known witnesses, whether tending to show guilt or innocence, or that would affect the punishment of the accused."

• The Law Society of B. C. has a duty to the general public of B. C. to protect them from injustice. They must expel incompetent lawyers such as Mr. Madigan. His actions resulted in an unfair trial in which two boys have had their liberty removed for life. The B. C. Appeal Court found that the prosecution depended on one witness almost exclusively, Amanda Cousins. The Crown didn't use the physical evidence and didn't inform the defence about it.

Part 1

Organization and Duties

Public interest

3. It is the object and duty of the society

(a) to uphold and protect the public interest in the administration of justice by

(i) preserving and protecting the rights and freedoms of all persons,

(ii) ensuring the independence, integrity and honour of its members,

and

(iii) establishing standards for the education, professional responsibility and competence of its members and applicants for membership

Court of Appeal for British Columbia, Regina v. Derik Christopher Lord ( page10 ), Mr. Justice Wood stated, " But this case is somewhat unusual. The Crown's case stood or fell on the evidence of Amanda Cousins. Either the jury believed her or they did not. ..... The jury clearly accepted the evidence of Amanda Cousins. ...... In that event it is inconceivable that their verdict could or would have been any different if the proper instructions had been given to them on the co-conspirator exception to the hearsay rule.".

• To this day prosecutors in Canada continue to violate justice by withholding information clearly needed by the accused to make full answer and defence. We had to hire a private detective to obtain police information that was clearly withheld from the defence. Mr. Firestone, defence counsel, made request after request both in court and through letters to Crown Counsel up until one week before trial for full disclosure. If you are leaning toward accepting Mr. Madigan's ignorance of the law, you are directly opposed to the overwhelmingly obvious direction of the courts towards full and complete disclosure of all relevant facts, statements, evidence, or other relevant material.

"In my view, the Crown has a duty to disclose all relevant information in its possession, and the trial judge has a broad discretion, at common law, to order disclosure of any relevant statement required to enable the accused to make full answer and defence and to assure a fair trial."

R .v. Pearson (February 1994), 89 C.C.C. (3d) 535,

"Disclosure should be made upon request, even if the information to be divulged is relevant primarily or exclusively to issues like entrapment or insanity, which are in principle dealt with only if …. Even in the absence of a request, information that might be helpful should be disclosed at the first reasonable opportunity."

R v. Johnson (March 1994), 89 C.C.C. (3d) 90,

"Mr. Mulligan urges on us that defence counsel have a duty to conduct reasonable inquiries and investigations themselves. He says an accused person ought not to be heard to complain of non-disclosure where partial disclosure has been made from which it would be apparent to defence counsel that there may be further material in the hands of the Crown which had inadvertently been omitted from disclosure, and counsel makes no inquiry of the Crown".

"We agree with that submission to this extent. If a court were of the view that defence counsel must have known that there had been an inadvertent disclosure omission, and had deliberately abstained from making inquiry of the Crown, the court might be justified in rejecting an application thereafter for Charter relief based on that omission. We do not agree that the defence in this case had an obligation to find out by independent inquiry that which the Crown ought to have disclosed to it but had not. Nor could defence counsel have been expected to inquire of the Crown….".

R v. Farinacci (1994), 88 C.C.C. (3d) 1,

"The Charter guarantee to make full answer and defence requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused. In order to justify non-disclosure the Crown must bring itself within an exception to that general rule".

"… non-disclosure can only be justified on the basis that disclosure will prejudice the interests of informants, innocent persons or the law enforcement authorities and that such prejudice overbears the interests of the accused".

"The appellants should not be required to demonstrate the specific use to which they might put information which they have not ever seen. The respondent (Crown) has not been able to satisfy me that no prejudice occurred and an appellate court which does not have the benefit of access to counsel's brief cannot be expected to speculate in the circumstances. I must conclude, therefore, that the ability of the appellants to make full answer and defence was compromised".

"The fact that the trial judge may not have seen how the excised material could have assisted the appellants does not necessarily mean that defence counsel would not have found a way to use that material to their advantage".

R. v. Durette, [1994] 1 S.C.R. 469, 1993:  November 10; 1994:  March 17.

Per Lamer C.J. and Sopinka, Cory and Major JJ.: The Charter guarantee of the right to make full answer and defence requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused. The accused should not be required to demonstrate the specific use to which they might put information which they have not even seen.

• The Attorney General of this province has betrayed justice and the people by not forcefully demanding that Crown prosecutors make full disclosure. The Law Society, in the interest of justice, must expel lawyers who are ignorant of the law or allow the law to be brought into disrepute. Mr. Madigan had to have known about all the different police officers at the crime scene as their presence was noted in the log started by the first two officers on the scene. These other officers' notes or statements or information produced by them, were never disclosed to the defence because in Mr. Madigan's words he didn't know about them. Mr. Madigan preferred murder charges against Derik Lord and David Muir without the benefit of any physical evidence that was collected, such as the hair and paint.  Hairs found did not match the victims. Which means the entire Crown is incompetent or stupid because no one thought to compare the hair with the accused. I speculate someone did ask for this comparison, especially Mr. Madigan, as he is not stupid, and when it didn't match he discarded it and did not inform the defence.

"The desire of any Court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a Court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty."

Royal Commission on the Donald Marshall, Jr., Prosecution (1989)

"This decision of most American States to codify disclosure requirements is a good one. The approach reflected in current case law involves assessing each individual case of real or alleged non-disclosure to determine if it actually impairs the accused's constitutional right to make full answer and defence. We believe that such an ad hoc approach to disclosure means uncertainty and possible unfairness. The inability of an accused to adequately prepare a defence threatens the fairness of the criminal justice system, and it is desirable that as much discretion and subjectivity as possible to removed from decisions concerning disclosure. The fundamental interest in a fair trial of the accused requires that the accused receive from the Crown all information known to the Crown that might reasonably be considered useful to the accused. The Crown should have a positive and continuing duty to provide this information to the defence. It is immaterial whether or not defence counsel fails to request disclosure of the information in possession of the Crown, or indeed whether defence counsel is negligent in failing to do so. The circumstances of non-disclosure should not be permitted to affect adversely the fairness of the trial received by the accused. The focal point of the issue of fairness is the fact of disclosure of material evidence.".

The New Zealand Law Commission, Report No. 14, Criminal Procedure: Part One , Disclosure and Committal (1990)

"There is the further important advantage of increased public confidence in verdicts of guilt where both sides have been able to make suitable preparation and with little chance that any significant fact has been kept from the defence.".

In October 1981, the then Attorney General of Ontario tabled in the Legislature a set of guidelines to Crown prosecutors respecting disclosure in criminal cases. The Honourable Mr. Justice Zuber, in his 1987 Report of the Ontario Courts Inquiry, recommended that the guidelines be upgraded to a directive. On October 1, 1989, the previous guidelines were upgraded to a directive, which remains in force today in Ontario.
 

2.  Selective witness statements were provided. ( Charles Smith's statement wasn't provided
        until after Darren Huenemann's trial, eight months after it was taken. )

3.  Evidence was hidden:
                    a)  Video tape.
                    b)  Police notes.
                    c)  Phone records from the Ferry.
                    d)  What equipment Cst. Black used and what he produced with it.

4.  Evidence not acted upon:
                    a)  Hair found at the crime scene.
                    b)  Paint found in the wounds.

5.  Evidence manipulated:
                    a)  Identification statements were never supported with identification in court by
                        the individuals
                    b)  Darren Huenemann ( a convicted murderer ) was called to the stand
                        when the court was told he would refuse to co-operate.
                    c)  Witness coerced until he refused to co-operate ( Charles Smith )
 
 
 

2. The Minister of Justice has started an investigation into my son's case after I presented an application under section 690 of the Criminal code of Canada. Mr. Allan Ferguson, from the office of Criminal Convictions Review Group, on April 18, 1996, during a interrogation of my daughter, Dawn, revealed the fact that even more information was withheld by the Delta police. He produced a wiretap tape that contained my daughter in conversation with a friend in which she states she saw her brother Derik at 8:30 pm, a time inconsistent with the police story. Susan Beach, co-defence council for Derik Lord, attended this interrogation and confirmed this evidence was not disclosed to the defence.

3. The Crown prosecutor stated that there was no physical evidence to convict the boys. However he never revealed to the defense that there was indeed physical evidence. This physical evidence pointed away from Derik and David or at the least could have been used by the defense to point out reasonable doubt. Mr. Justice Wood of the B. C. Appeal Court stated, "The Crown's case stood or fell on the evidence of Amanda Cousins." This statement displays the fact that the Crown did not use the physical evidence available and did not disclose it to the defense for their use.

a) The RCMP Forensic Laboratory Vancouver ( Lab file # 902553 October 26, 1990) examined exhibit 26 ( a piece of skull with a small amount of foreign black material ). The black material was found to be paint. The lab's conclusion was " 4 CONCLUSION: The black material was a nitrocellulose-melamine-based resin paint similar to that found on some tools such as crowbars.". " 5 REMARKS: 2. This type of paint, with black colouring, is designed for use as a hard surface coating for metal objects such as tools. It is less commonly used than other alternates. Information received indicates that its use with an aluminum object is unlikely and that iron or steel surfaces are more likely.".

b) Saanich Police, Cst. Rhodes, exhibit report # 901772, purchased a 17" black hexagonal crowbar, and a Kmart bag, on November 27, 1990. Why did he purchase this crowbar and bag? Was it to compare the paint as well as the wounds left in one of the woman's skulls ( Exhibit 26 )? The paper work indicates this crowbar was purchased in regard to this case. We received this paper work from Saanich police, in July 1995, after we asked for all the information they had about this case under the Access to Information Act

c) The defense received a report ( file # 90-27658 90-08 ) on a crowbar ( exhibit 100 ), the report states " that the comparison is negative, due to the fact that the crowbar submitted has paint which does not contain one essential element present in the paint on the skull, namely melamine." Which crowbar was tested, the one from Kmart or the one from Capital Iron? Where is the lab report on the other crowbar? Why was it never released to the defense?

d) Memorandum to Sgt. Hugh Davies, October 17, 1990: "I have today informed Dr. Ruth Sellers of the discovery by Brian CALLOWHILL that the fragments of black pigment observed in two places under the wounds that were inflicted to Sharron HEUNEMAN have been identified as black paint."

e) The RCMP Forensic Laboratory Vancouver ( Lab file # 901522 October 31, 1990) examined exhibit 74: three (3) hairs; exhibit 78: one (1) hair; exhibit 80: one (1) hair; exhibit 81: three (3) hairs. " 2 PURPOSE: 1. To examine Exhibits 74, 78, 80 and 81 for the presence of: a) scalp hair and, if found, compare same to the known scalp hair samples, Exhibit 32A and 32B ( previously described in Laboratory File 901522 dated September 13, 1990. b) pubic hair and, if found, compare same to the known pubic hair samples, Exhibit 35 and 36 ( previously described in Laboratory File 901522 dated September 13, 1990).". " 3 CONCLUSION: 1 a) The two (2) scalp hairs from Exhibit 74, the single scalp hair, Exhibit 78, the single scalp hair, Exhibit 80 and the single scalp hair fragment from Exhibit 81 are not consistent with having originated from the same source as the known scalp hair samples, Exhibits 32A and 32B. b) The single pubic hair fragment from Exhibit 81 is not consistent with having originated from the same source as the known pubic hair samples, Exhibits 35 and 36. i) Exhibits 74, 78 and 80 were found to be negative for the presence of pubic hair.".

a) The RCMP Forensic Laboratory Vancouver ( Lab file # 902553 June 17, 1991 ) examined exhibit 10A: tapings; 11B: tapings; 24A: tapings; 25B: tapings; 104: one jacket; 1-7: three pairs of black jeans; 1-2: two pairs of black jeans. The defense again was never told where the exhibits came from. Presumably exhibits 10A, 11B, 24A, and 25B, are tapes containing fibers and hair from the floor at the crime scene. Presumably exhibit 104, 1-7, and 1-2 are the clothes taken from Derik's closet at our home, these exhibits match what was taken during a police search. " 2 PURPOSE: To examine Exhibits 10A, 11B, 24A and 25B for the presence of fibres consistent with fibres used in the construction of Exhibits 104, 1-7 and 1-2. 3. CONCLUSIONS: The tapings Exhibits 10A, 11B, 24A and 25B are negative for the presence of fibres consistent with having originated from Exhibits 104, 1-7, and 1-2.".

b) The RCMP Forensic Laboratory Vancouver ( Lab file # 902553 February 21, 1991 ) examined exhibit 60A: one pair of slacks; 64A: one sweater; 80B: one pair of slacks; 86B: one sweater; 28: questioned hair; 29: questioned hair; 56A: known scalp hair standard; 74B: known scalp hair standard; 1-7: three pairs of black jeans; 1-2: two pairs of black jeans; 1-1: one black backpack; 104: one bomber jacket; 105: one shoulder bag. I repeat again that the defense was never informed as to the source of these exhibits. Presumably exhibit 60A, 64A, 80B, 86B, 56A and 74B were from Mrs. Huenemann and Mrs. Leatherbarrow. " 3 CONCLUSIONS: 1. A. Scalp hairs removed from Exhibits 60A and 64A are consistent with having originated from the same source as the known scalp hair standard Exhibit 56A. B. Scalp hairs removed from and comprising Exhibits 28, 29,80B and 86B are consistent with having originated from the same source as the known scalp hair standard Exhibit 74B. C. Scalp hairs removed from Exhibits 60A and 105 are not consistent with the known scalp hair standards Exhibits 56A and 74B.".

5. There was a hole measuring 3.5 centimeters in Mrs. Leatherbarrow's skull. Today's technology can determine the force needed to break any material. Why were there no tests done to determine the force needed to make this 3.5 centimeter hole? These tests would have determined if a 17 year old with a 17 inch crowbar could have the strength to produce this damage. Tests of the blows to the heads could have determined approximately how tall the murderer was. If these tests were done, the defense was never told. All of the above information is physical evidence which indicates reasonable doubt that Derik Lord and David Muir were ever at the crime scene.

6. Detective Jackson stated under oath that he told Derik only one person killed both women.

Page 48 of the trial transcript;

Mr. Rusk " You told him at one point it was obvious to you that one person had killed both of them, both of the deceased, isn't that correct? "

Det. Jackson " No, I didn't tell Mr. Muir that. I may have said that earlier to Mr. Lord, but I certainly didn't say that to Mr. Muir."

Q " When did you say that earlier to Mr. Lord? "

A " I said that to Mr. Lord when I spoke to him on the 25th of November, but I didn't say that to Mr. Muir.".

7. The prosecution withheld from the defense council any evidence produced by the RCMP officers who attended the crime scene, including any notes and results of the work they performed. We hired a private detective who discovered that the RCMP officers produced a video tape of the scene, a blood splatter analysis, and used a "LUMA" light. This was confirmed by one of the officers who did the work. When asked what happened to it the officer said they sent it to the Delta police. This work could hardly be considered by the police and the prosecution to be irrelevant. The only information the defense received about the work and equipment these officers used and produced was from the log by the first police officers on the crime scene. " 0744 hrs Sgt. LEROY returns to back yard with equipment". The Delta police refused to deal with us but did deny ever receiving this material from the RCMP. We have a letter from the Delta police telling us we would not be allowed to speak to any Delta police officer until the very last appeal is over. Why? What is the Crown hiding?

8. The defense was not made aware of what the exhibit was that RCMP Sgt. Leroy took from the carport during his investigation of the scene. The only reference the defense got was in the police log "11:54 hours: Sgt. LEROY brings out exhibit from carport." This was more physical evidence.

9. The defense was never told what equipment was used and for what purpose by Cst. Black.

a) " 0412 hrs Cst Black returns into back yard with equip."

b) " 0417 hrs Cst Black returns with more equipment "

c) " 0504 hrs Cst Black returns with more equipment "

d) " 0507 hrs Cst Black returns with equipment "

e) " 0555 hrs Cst Black returns to yard with more equipment "

All the above physical evidence completely contradicts what the prosecution said in court about the fact that there was no physical evidence. We must agree that there was no physical evidence that indicated Derik Lord or David Muir did this crime. However there is plenty of physical evidence that raises doubt that Derik and David were ever at the crime scene. The prosecution presented their entire case on hearsay evidence. The prosecution, along with the police, withheld from the defense substantial evidence that when combined presents an overwhelming indication of reasonable doubt.

11. As the evidence indicates there is little disputing the fact that a phone call was placed to the Huenemann residence by David Muir at about 8:00 p.m. The police know that all long distance phone calls times and numbers are recorded. The call, if the police are correct, must have been made from the ferry as it left Tsawwassen at 7:30 p.m. and never arrived at Swartz Bay until about 9:00 p.m. This, then, was a long distance call and therefore the time and number must have been recorded. The police never accessed the telephone records or, if they did, they did not inform the defense of the results. Our private detective attempted to access these records and was told they had disappeared for the day in question.

a) Amanda Cousins stated ( Statement October 6th, 1990 ) " At about 8:00 p.m. Dave and Derek phoned then Darren told his dad we were leaving so I talked to his dad while Darren got his jacket then we left. Darren and I drove downtown and met with Derek and Dave and we drove around town for awhile .....".

b) Darren Huenemann's preliminary hearing page 21 of Amanda Cousins testimony:

Ms. MacLean: "And the second call that you recall, what was said about that by Darren Huenemann?"
Amanda Cousins: "I didn't actually hear the phone ring but he came upstairs and said that -- he said, "That was them." And I said, "What was them?" And he said, "The phone just rang. It was Dave. We have to go and pick them up pretty soon."
Q "Do you remember what time it was approximately that he told you that?"
A "It was close to eight o'clock."
Q "And how is it that you recall the time?"
A "Because I had been watching Night Court and it had just ended."
 
c)  Darren Huenemann's trial page 23 of Amanda Cousins testimony:
 
Amanda Cousins: "I didn't actually hear the phone ring, but Darren came back upstairs and said that was them, and I said that was who? He said it was Derek and Dave, they're on the ferry, but the ferry is late so we should go and pick them up in about twenty minutes. We should leave in about twenty minutes."
Ms. MacLean: "Do you remember when it was that he told you that?"
A "It was --"
Q "What were you doing when he told you that?"
A "Oh, I had been watching T.V. It was close to eight o'clock because a show had just ended."
 
d)  Derik Lord's trial page 565, 566:

Amanda Cousins: "Well, Ralph made his dinner when he came home, and Darren and I finally received a phone call."
Ms. MacLean: "Who took the phone call?"
A "Darren."
Q "Did he say anything after he took this phone call?"
A "Yes. He came back into the room and told me that it was them, and I asked him who."
The Court: "You asked him what?"
A "I asked him who it was."
The Court: "Yes."
A "And he said it was Derik and Dave."
Ms. MacLean: "Did he say anything else?"
A "He said that they were on the ferry, but the ferry was late so we'd have to pick them up around 9:00."
Q "Do you recall what time it was that he told you about that phone call?"
A "It was approximately 8:00."

e)  Derik Lord's trial page 817:

Derik Lord: "We ended up eventually back down in Chinatown where Darren picked us up."
Mr. Firestone: "How did that come about?"
A "We phoned from a pay phone on Douglas."
Q "Who's we. sorry."
A "David Muir and myself."
Q "Who actually made the phone call?"
A "David Muir."

13. This case has been extremely frustrating for the defense. The police did not tape record Amanda Cousins' statements, they did not tape record David Muir's statement, they did not tape record their conversation with David Muir on November 22, 1990, they did not tape record their conversation with Derik Lord on November 25, 1990 and they did not tape record various conversations which could be used by the defense. Their equipment did not work when it was convenient for it to fail. eg. Trial transcript page 802, 803, " we had problems with the bug and we weren't able to record any of that information.".

14. Darren Hunemann's lawyer Chris Considine was forced to sign an undertaking not to releasecertain information he received from the prosecution. Not to even reveal it to the other defense lawyers. As far as we know this information was never released to Derik's defense lawyer.

15. The police continually lied to all concerned.

a)  Derik's trial transcript page 797,

Mr. Madigan read from police notes, " We know that you and Derik Lord went over to Tsawwassen on the 3:00 p.m. ferry and returned on the 7:00 p.m. ferry to Victoria. You've been positively identified. An East Indian taxi driver picked you up at the Tsawwassen ferry terminal at 4:55 p.m. that day, October 5, 1990, and dropped you and Derik Lord at the Safeway Mall in Tsawwassen. At 6:45 p.m. a caucasian taxi driver picked you both up and took you both to the ferry terminal.".
 
i)  The statement from Parmajit Bhinder, October 26, 1990,

" I was flagged down at the ferry terminal by two youths, described as white male, 18 - 20 years, 5'8 - 5'9". He was chubby, 160 - 180 pounds, ...... Question: Can you describe the other guy? Answer: White male, a little bit older than the other guy, mid 20's, a little bit taller than the other guy. ....he wasn't as chubby as the other guy.".

ii)  From Mr. Bhinder witness response form dated November 7, 1990,

Lineup 1 he stated, " I don't recognize anyone.". Lineup 2 he stated " #2 rings a bell.". Lineup 3 he further stated " I don't recognize anyone.".

iii)  Tika Cheema November 9, 1990,

Lineup 1 he stated, " I don't recognize anyone.". Lineup 2 he stated, " I don't recognize anyone.". Lineup 3 he stated, "Maybe him, yes #8. Someone like him.".

iv)  Daniel May was shown the same lineups.

Lineup 1, " I don't recognize anyone.". Lineup 2, " #2 sort of looks like one, but his hair was longer.". Lineup 3, " #8 sort of looks like one, he had a crew cut as well.".

v)  Greg May did not identify anyone.

16. Next door neighbor, Charles Smith, in a statement taken at 9:45 a.m., October 6, 1990, said hesaw one of the women, he assumed to be Mrs. Huenemann because she had glasses on, in the passenger side of the car in the drive way at 8:00 to 8:30 p.m. In his statement he stated that the dome light coming on in the car drew his attention to the fact someone was in the passenger side of the car with the door open. He also stated that when the light went out he could not see anything any more. On page 383 of the trial transcript the trial judge states in defense of the police and their failure to disclose relevant information to the judge who granted the wiretap order, " The evidence of Charles Smith was explained by the corporal as being suspect as to accuracy.". Mr. Smith may not have been accurate as to the exact time but he was very emphatic that it was definitely dark out, it is very hard to be mistaken as to whether it was light or dark outside. It was dark outside.

a)  Darren Huenemann's trial, Mr. Smith's testimony:

Mr. Madigan: " Could you tell His Lordship and the jury any indication of when that might have been that that happened?"
Mr. Smith: " Well, again, because I hadn't slept all day I was a little uncertain as to the time, but I think it was probably around eight o'clock because that's when we put our kids to bed, and that's generally the time when I go around closing curtains, locking doors and things, but it could have been earlier. I can't be positive. It could have been earlier. It could have been seven o'clock, seven-thirty. It was dark. I know that because the light was clear on the roof of the car."

17. The entire prosecution of this case was based on lies, deceit, and intimidation of witnesses, both by the police and the prosecutor. The prosecutor deceived the jury when he called the May boys and the taxi drivers to give their testimony. It was noted by the judge that none of these witnesses who were identified by the police as providing positive identification were asked to identify the defendants in court. This deliberate deceit by the prosecutor left the jury with the belief that positive identification was made because of their statements. In fact positive identification was never made inside or outside court.

18. Royal Commission on the Donald Marshall Jr. Prosecution

A summary of the Royal Commission on the Donald Marshall Jr. Prosecution. It virtually mirrors my son's case. I include some of the summary findings from the Royal Commission with some comparison to Derik's case.

a)  That this miscarriage of justice could have and should have been prevented if persons involved in the criminal justice system had carried out their duties in a professional and/or competent manner.

b)  That the miscarriage of justice was real and not simply apparent.

c)  That McIntyre, without any evidence to support his conclusions and in the face of evidence to the contrary, had identified Marshall as the prime suspect by the morning of May 29, 1971 and concluded that the incident occurred as the result of an argument.

i)  Detective Jackson's notes indicate that he wanted photographs of Derik on October 25, 1990. He never received Amanda Cousins statement implicating Derik until November 28/29, 1990, one day after arresting Derik for murder. There was no evidence implicating Derik until after his arrest.

ii)  Jackson admitted in court ( transcripts, page 48 ) that he told Derik that only one person committed the murders, yet there are two young men serving time for the murders.

d)  That McIntyre accepted evidence that supported his conclusion and rejected evidence that discounted that conclusion.

i)  Charles Smith's original statement said he saw Sharron Huenemann at about 8:00 p.m. in the passenger side of the car. Jackson went back a year later and persuaded Mr. Smith that it was likely 6:00 p.m.. Mr. Smith changed his story.

ii)  The Delta police, if they got the phone records from the ferry, realized that no long distance call was made from the phones to the Huenemann residence. They discarded this information.

e)  That MacIntyre's interview with Maynard Chant was conducted in an intimidating and unacceptable manner.
 
i)  Amanda Cousins made her statement starting November 28, 1990 at 22:30 hours and ended November 29, 1990 at 02:30 hours with her signing it November 29, 1990 at 03:15 hours. Detective Jackson admitted in court that he threatened to charge Amanda as an accessory to murder if she did not implicate Derik and David in the murders.

ii)  Neither Amanda Cousins's or David Muir's statements were recorded on audio or video tape. We do not know what intimidation or unacceptable manner took place at these interviews. I suggest if the Crown were made aware of the conditions the Crown could not have used these statement. As it was, the police broke David Muir's Charter of Rights in taking his statement, if he did make one. I suggest this unsigned confession was deliberately fabricated by the police so they would have something to show Amanda and threaten her with. I suggest it was deliberate that there is no audio or video tape of these interviews.

f)  That the information in Chant's statement of June 4, 1971 concerning a dark-haired fellow in the bushes, an argument, and Marshall stabbing Seale, resulted from suggestions McIntyre made to Chant.

i)  All the information that Amanda Cousins gave in her statement was given to her by the police. On November 6, 1990, when Tregear and Jackson came to our home, they told my wife and I every single detail of the crime scene. False information was also included in her statement. eg. David Muir hit Mrs. Leatherbarrow over the head with a crowbar. The paint found in Mrs. Leather barrow's skull was paint that is used on wood, not metal. David Muir said he put a one inch hole in granny's head. This statement came from someone older than these kids. All these kids had grown up in centimeters and use centimeters among their peers. Size ten foot prints found at the scene were completely ignored. Derik's foot size was eight and a half and David's was nine.

g)  That the Crown prosecutor and the defense counsel in Donald Marshall, Jr.'s 1971 trial failed to discharge their obligations, resulting in Marshall's wrongful conviction.

i)  The Crown did not provide full and complete disclosure.

h)  That defense counsel failed to provide adequate professional representation in that they did not arrange for any independent investigation, interview Crown witnesses, or seek disclosure of the Crown case.

i)  Mr. Firestone ( defense counsel at trial ) repeatedly asked Crown for full and complete disclosure, however, he failed to arrange for an independent pathology report nor did he question the fact that he did not receive the statements or notes from the RCMP officers. He also did not interview Crown witnesses.

ii)  Mr. Martin ( defense counsel at appeal ), having discovered through the private detective that evidence was hidden from the defense, requested the information. Crown continued non disclosure. He did not request an independent pathology report which the private detective had arranged for, but Crown would not allow without a letter requesting access for the pathologist from a lawyer. Mr. Martin did not make that request.

iii)  We have never been allowed to see them, but apparently there are reports as to the mental health of Darren Huenemann both before the murders and after. If the reports are true then all the hearsay evidence told by Amanda Cousins at trial about what Darren Huenemann had said to her came from an individual living in a fantasy world.

i)  That the cumulative effect of incorrect rulings by the trial judge denied Marshall a fair trial.

i)  Despite knowing that Darren Huenemann would not be sworn in, the judge allowed Huenemann to enter the stand and refuse. This simple act now associated Darren Huenemann with Derik Lord and David Muir. Since Darren Huenemann had already been convicted in these murders, the jury now associated him with the accused. The prosecution did not provide a "will say" statement or indicate what was expected to be obtained from the testimony of this witness. We believe that the prosecution's only purpose was to associate a convicted person with the defendants. A similar tactic would have been to bring in Clifford Olsen and have him wave at the boys. The judge denied an immediate application for a mistrial.

j)  That the Court of Appeal had a duty to review the complete trial record and ensure that all relevant issues were argued.

i)  The trial transcripts are edited with stupid comments by the judge removed. eg., The judge made a ridiculous comment about the name of the park in Tsawwassen called Diefenbaker Park. He said something to the effect that if they had named the park after a famous Liberal then maybe people could remember the name.

k)  That the errors by the trial judge were so fundamental that a new trial should have been the inevitable result of any appeal.

i)  The entire transcript is full of sarcastic and degrading remarks to the defense by the judge. The judge's comments and questioning of the witnesses put forth an atmosphere of a whimsical day at the park, not a serious trial involving the freedom of two young men for life and the murder of two loved women.

l)  That the Appeal Court's decision amounted to a defense of the criminal justice system at Marshall's expense, notwithstanding overwhelming evidence to the contrary.

i)  The B. C. Appeal Court said that there were errors in law but they didn't matter that in the end all that mattered was that the jury believed Amanda Cousins and still would despite whether the errors in law were corrected.

ii)  The B. C. Appeal Court and the Supreme Court of Canada completely ignored the stunt by the prosecutor of putting Darren Huenemann on the stand.

m)  That Donald Marshall, Jr. was not treated properly by the Attorney General's Department.

i)  We have never been told why, but the Attorney General of B. C. proceeded with direct indictment, thus depriving the defense to a preliminary hearing and the ability to cross-examine witnesses. Every time Amanda Cousins tells her story, it changes.

You have the ability, the legal responsibility, the public interest, the necessity to prevent justice being brought further into disrepute, and you now have the information that Mr. Sean Madigan is not qualified to practice law as he lacks a conscience, morals and bona fides to practice law in British Columbia. You must disbar this man before he is allowed to destroy more lives because of his ignorance of the law. You must demand that this man attempt to amend his violation of the laws of disclosure and contact the courts and the provincial Attorney General and the federal Minister of Justice to rectify his abuses and live up to the Canadian Bar Association's Code of Professional Conduct; Errors and Omissions
 

3. "The lawyer who has unknowingly done or failed to do something that, if done or omitted knowingly, would have been in breach of this Rule and discovers it, has a duty to the court, subject to the Rule relating to confidential information, to disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it".