That evening, however, Const Cameron asked Sgt Michalowsky when the cigarette butt had been discovered. From Sgt Michalowsky's answer, Const Cameron determined that the butt had been discovered prior to his arrival at the body site. Accordingly, he felt that the butt could not have been his. At the second trial, Cameron said that he contacted Det Fitzpatrick and Crown attorney Susan MacLean to advise them of this fact but he was unsure of precisely when he did this. In cross-examination at the first trial, Const Cameron said that the brand of cigarette he regularly smoked was Craven Menthol. During the subsequent cross-examination of Insp Shephard at the first trial, he noted that the cigarette butt, tendered as an exhibit, was not a Craven Menthol. On March 14, 1990, prior to the second trial, it was discovered that Sgt Michalowsky had prepared duplicate notebooks of the M investigation. The second set of notebooks included an account of a conversation at the body site in which Const Cameron allegedly indicated to Michalowsky that the cigarette butt found in the area was his. Ultimately, at the second trial, the Crown conceded that the cigarette butt introduced at the first trial was not the one found at the body site, and was not the butt depicted in the photograph marked as an exhibit. The Crown also conceded that the cigarette butt depicted in the photograph taken at the body site had been lost. Sgt Michalowsky said at the second trial that it was only on May 29, 1990, in the course of being questioned by the Ontario Provincial Police (OPP) that he became aware that another photograph tendered as an exhibit at the first trial, depicted not a cigarette butt, but a piece of birchbark. He added he did not know how it came to be that the cigarette butt tendered in evidence at the first trial was not the cigarette butt found at the body site in the vicinity of the remains of CJ.
In the summer of 1990, following an Ontario Provincial Police investigation, Sgt Michalowsky was charged with perjury (for allegedly knowingly making false statements under oath), wilfully attempting to obstruct justice (for allegedly preparing and testifying from the second undisclosed notebook), and wilfully attempting to obstruct justice (for allegedly tendering a cigarette he falsely claimed to have seized at the body site). On November 12, 1991, these charges were stayed by OConnell J of the Ontario Court of Justice (General Division), due to Michalowskys ill health. The Crown declined to call Sgt Michalowsky as a witness.
The defence brought a variety of applications in response. The defence position was that if the Crown elected not to call Sgt Michalowsky, it was precluded from leading the expert opinion evidence regarding hair and fibre exhibits which had at one time been in Sgt Michalowskys possession and control. Without the evidence of Sgt Michalowsky, the defence submitted there was no foundation for that opinion evidence. The trial judge ruled that the hair and fibre evidence was admissible without the necessity of the Crown calling Sgt Michalowsky in that there was evidence identifying the exhibits in question. The issue of continuity was not a matter of admissibility but of the weight to be assigned to the evidence. The defence brought a second application to compel the Crown to call Sgt Michalowsky, as a consequence of the Crown being allowed to file hair and fibre exhibits. In the alternative, the defence sought an order compelling the Crown to call Michalowsky for the purpose of making him available to the defence for cross-examination, or, in the further alternative, an order whereby the Court would call Michalowsky. The trial judge ruled that none of these orders were required to ensure a fair trial, noting that Sgt Michalowsky had said for 5 days on the stay application and the defence may have resort to section 9 of the Canada Evidence Act. The defence subpoenaed Sgt Michalowsky. Counsel for Sgt Michalowsky applied for an order quashing the subpoena issued to Michalowsky on the basis that his physical and emotional health did not permit him to testify. On the application, several doctors were heard. Donnelly J ruled that subject to Dr Rowsells final opinion, Sgt Michalowsky would testify in the presence of Dr Rowsell who would monitor his condition and advise as to the taking of recesses.
Very very very strange stuff. And has been well pointed out here just the tip of the iceberg. What was going on?