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INFORMATION CONTAINED HEREIN IS BANNED FROM PUBLICATION AND/OR BROADCAST PURSUANT TO COURT ORDER OF THE HONOURABLE MR. JUSTICE W. HORKINS, P.C.J. AT COLLEGE PARK COURTHOUSE ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN versus NICOLE KISH (Continuation of) ********** P R E L I M I N A R Y I N Q U I R Y P R O C E E D I N G S ********** BEFORE THE ONTARIO COURT OF JUSTICE, THE HONOURABLE MR. JUSTICE W. HORKINS, P.C.J., on Wednesday, January 7th, 09, at Toronto, Ontario ********** CHARGES: Second Degree Murder ********** Courtroom No. 08 / Preliminary Inquiry College Park Courthouse ********** A P P E A R A N C E S: Provincial Crown Counsel Counsel for the Defendant Ms. Cara Sweeny Ms. Cidalia Faria Mr. John J.M. Scarfe T A B L E O F C O N T E N T S II ********** I N D E X O F P R O C E E D I N G S PROCEEDING PAGE NO. / LINE NO. Introductions 06 / 04 Set Date (next) 7 / 18 Caution/Warning (through Counsel) 07 / / Certification Page = 8 _ T A B L E O F C O N T E N T S III ********** I N D E X O F W I T N E S S E S WITNESS IN-CH CR-EX RE-EX DRANICHAK, G. 12/07-13/29 14/07-1/03 N/A ********** T A B L E O F C O N T E N T S IV ********** I N D E X O F E X H I B I T S EX' NO. DESCRIPTION PAGE/LINE N/A N/A N/A ********** T A B L E O F C O N T E N T S V ********** I N D E X O F P A R T I C U L A R S PARTICULARS: MM / DD / YYYY Date Ordered: March 23 rd, 09 Date Completed: Sunday, 17 May 09 Date Counsel Notified: Monday, May 18 th, 09 ********** Regina v. Nicole KISH, Page 6 of 8 Preliminary Inquiry Continuation / Procedural Matters U P O N C O M M E N C I N G: (:00 a.m.) Wednesday, January 7th, 09: 2 CLERK OF THE COURT: Order in court. All rise? Stand up, please? Good morning, Your Honour. THE COURT: Thanks. Good morning. CLERK OF THE COURT: Court is now in session. Please, be seated. THE COURT: Good morning. Just give me a second to get plugged in here? Okay. Have we got the witness? MS. CARA SWEENY: Yeah. I think, Mr. Scarfe indicated he wanted to say something, at the outset, so the witness is outside. MR. JOHN SCARFE: A couple of things: First, by way of housekeeping, Your Honour - Mr. Doran went to the hospital at 2: this morning vomiting blood. THE COURT: Okay. MR. JOHN SCARFE: He sent me a message about 6:. I haven't heard back. I hope he is okay. THE COURT: Okay. So do I. MR. JOHN SCARFE: Now I, myself, may be coming down with what you had on Monday. THE COURT: All right. Regina v. Nicole KISH, Page 7 of 8 Preliminary Inquiry Continuation / Procedural Matters 2 I hope it's not my fault. MR. JOHN SCARFE: Oh, I am sure it's not your fault. THE COURT: Well, I'll tell you what? With the -- well go ahead. Tell me where you are going? MR. JOHN SCARFE: Well, I am gonna try and get as much done as I can today, but you may find me fading. THE COURT: All right. Well, certainly I will try and accommodate the handicaps that you are working under. You just let me know, as we go along. MR. JOHN SCARFE: Okay. Having said all that, I feel it's necessary to put something on the record just for the purposes of the record. I am not going to ask you to Rule on anything at this point. It may be the subject of some applications later. THE COURT: Okay. MR. JOHN SCARFE: But essentially it's this: Given disclosure about a year ago - it included lengthy detailed D-V-D interviews with a number of civilian witnesses, and numerous witnesses were shown photo' line-ups containing a photo' of my Client. And by and large, nobody was really able to positively identify my Client. I understand that it's part of the process in Regina v. Nicole KISH, Page 8 of 8 Preliminary Inquiry Continuation / Procedural Matters 2 preparing for a Preliminary Hearing that the Crown would have their witnesses come in and conduct an interview by way of preparation. It's been done for years. There is nothing wrong with it. But what I learned, yesterday, it's quite disturbing, and with the greatest respect for the police and the Crown on this case, but after all of that careful scientific, procedurally correct photo' lineup efforts, the witnesses are now being shown the video from City-TV, that was made an Exhibit, for identification, yesterday. The video shows -- well Your Honour saw it -- my Client, and Ms. McDermott, or Watts, the two gentlemen, and all within a few feet of the victim. And so what's happening is that I am getting some new disclosure, which, you know, disclosure is an ongoing process, and this always happens during a Preliminary Hearing. But it's pretty disturbing that after all the lessons we learned from the Sofino (phonetically) inquiry, et cetera, that the evidence, the identification evidence of the civilians in this matter is in the process of being tainted, very severely, and it may become a subject of an evidentiary application at this Preliminary Inquiry. It will certainly become an issue at the trial, or maybe as part of a pre-trial application. I haven't done my research on Regina v. Nicole KISH, Page 9 of 8 Preliminary Inquiry Continuation / Procedural Matters 2 it, yet, but I spent a lot of time thinking about it last night, and I feel it's necessary at this point, because I only learned about this yesterday, to raise it, and encourage the police, who are entitled to investigate and prepare any way they want, to think carefully about whether or not they are going to continue in this practise of showing this highly prejudicial video to witnesses who have, previously, been unable to pick people out of the photo' line-up and then rely on that evidence. So it'll be a developing issue, but it would be remiss of me not to raise it as soon as I have sort of processed it. So I thank you for letting me put that on the record. THE COURT: Okay. So you are not asking me to do anything? You just wanted to note that on the record? MR. JOHN SCARFE: I may be asking you to do something. I may be asking you, at the end of the Preliminary Inquiry, to find that certain portions of the identification evidence is so tainted that it's inadmissible and that you can't rely on it for the purposes of committal. Or I may make it part of a section seven application, as part of the trial, or before the trial. THE COURT: Okay. MR. JOHN SCARFE: I am not sure yet. Regina v. Nicole KISH, Page of 8 Preliminary Inquiry Continuation / Procedural Matters 2 THE COURT: Okay. MR. JOHN SCARFE: But I know that it's dramatically changed the landscape. The Crown and the police can proceed from here at their own peril. But they are on treacherous ground and it's certainly going to expand the scope of what I have to deal with in cross'. That's all I had to say. THE COURT: Okay. Why don't we get the witness and continue. MS. CARA SWEENY: Okay. Thank you. I can just indicate, as I told Mr. Scarfe, Mr. Dranichak is leaving the country on Saturday. So he is available today only. So he should accomplish - do his best to accomplish as much as he can. THE COURT: Okay. Are we worried about not finishing with him? MR. JOHN SCARFE: Yes. I am worried about it. I only learned yesterday that he was leaving the country. I don't know how long he is leaving the country for. If I don't finish with him today, I am happy to proceed out of order, and do whatever we can to accommodate him. I assume he is booking for a week in the sun or something. THE COURT: Okay. Regina v. Nicole KISH, Page 11 of 8 Preliminary Inquiry Continuation / Procedural Matters Well, let's continue and see where we get to. We'll cross that bridge when we get to it. MR. JOHN SCARFE: Okay. MS. CARA SWEENY: Thanks. So Mr. -- if he could just be paged, because he is just standing outside? And I just have a few follow-up questions. THE COURT: All right. I was trying to remember whether you'd finished, or not. That's right. MS. CARA SWEENY: I hedged my bets. THE COURT: You reserved. You reserved. That's right. Fair enough. (Reporter's Note: At this point in the proceeding, the witness George Dranichak was paged into 08 Court - three times, and re-entered the witness box for further Examination-in-Chief.) 2 THE COURT: All right. We'll just pick up from where. THE WITNESS: Swear in? THE COURT: No. THE WITNESS: Okay. THE COURT: You have already been sworn. I was going to say: You are still under oath. Regina v. Nicole KISH, Page 12 of 8 Preliminary Inquiry Continuation / Dranichak in-ch (SWEENY) THE WITNESS: Okay. THE COURT: And we are just going to carry on from where we left off yesterday. THE WITNESS: Thanks. 2 MS. CARA SWEENY: Q. Good morning, Mr. Dranichak. I just wanted to ask you a couple of sort of questions that I didn't ask you yesterday. And that's about the injuries that you suffered as a result of this altercation on August the ninth. A. To my knee? Q. Well, any injuries. Did you suffer any injuries and what did you do about the injuries? A. I ah, I was on a waiting list to have my knee checked out, for around nine months, for an M-R-I, and it didn't go through, just due to my work schedule. So I recently did an M-R-I in Rochester, New York. I paid for it out of my pocket. And the results came back that I had two tears in my A-C-L and some minor strains in my cartilage. And I had swelling on the top and bottom part of my knee. And were those pre-existing injuries? A. The results say that they were from two years ago. So it would have been from this time, and a little bit before. I had hurt my knee prior to this incident. Regina v. Nicole KISH, Page 13 of 8 Preliminary Inquiry Continuation / Dranichak in-ch (SWEENY) But this definitely made it worse. What about sort of the kicks - the blows to the head? Were there any -- did you go see a doctor after this incident? A. I did not see a doctor. I was more worried about Ross. And I have had concussions before. I think I had a minor concussion because I was throwing up and I was dizzy the whole day and things like that. But no permanent damage from that. Any other scrapes or bruises or marks? A. No. Q. Was there anything wrong with your stomach? A. No. Q. All right. MS. CARA SWEENY: Those are all of -- sorry. 2 you: MS. CARA SWEENY: Q. I did just want to ask Do you have a criminal record? A. No. Q. In Canada or the United States? A. No. MS. CARA SWEENY: Thank you, very much then. Mr. Scarfe will have some questions for Regina v. Nicole KISH, Page 14 of 8 you. CROSS-EXAMINATION BY MR. JOHN SCARFE: 2 Q. Mr. Dranichak, my name is John Scarfe and I act for Ms. Kish. And good morning. A. Good morning. Q. I understand, Sir, that you have got a trip coming up on Saturday? A. M'hmm. Q. Yeah. Now, you are going on vacation? A. No. I am going to a seminar in Las Vegas, for work, yeah. Q. And when are you back? A. I am back, Thursday morning at 9:00 a.m. I am taking the Red Eye, Wednesday night, back. Q. So you are gone less than a week? A. Yes. My Friend just asked you if you had a criminal record anywhere, like here or in the United States. You said, No. Have you ever been in trouble with the police? A. Have I ever been in trouble with the police? Regina v. Nicole KISH, Page of 8 2 Q. Yeah. A. Can you be more specific? Like, arrested, or? Q. Yeah - arrested, charged? A. I was arrested in Louisville, Kentucky --- A. --- when I was 18 years old. I was attending college there, but there was no charges or anything like that. Q. And what was that about? A. There was just an altercation. Q. Anything else? A. No, no. Q. So were you born in Kentucky? A. No. Q. Where were you born? A. I was born in Lackawanna, New York. Q. And is that where you grew up? A. I grew up in Pavilion, New York. Q. Pavilion, New York? A. M'hmm. Q. Are your mom and dad still --- A. They are still there, yeah. Q. And you came to Canada about four or five years ago? A. August of 02. Q. In 02. And you came on a work permit, I think you said --- A. Yes. Q. --- in one of your interviews. Regina v. Nicole KISH, Page 16 of 8 2 And you had applied to be a permanent resident here in Canada at some point. Had you not? A. No. Q. You never applied for your permanent residency? A. No. Q. So you just keep doing the work permit thing? A. Ah, yes. Q. Any plans to stay? A. I would like to, sure. Q. Have you explored what's involved in doing that? A. I have asked a few people about it. I'm possibly going to hire a lawyer to look into it. Sure. Q. An immigration lawyer --- A. Sure. Q. --- to help you do the process? A. M'hmm. Q. Your work permit expires, at some point, presumably? A. Yeah. It's a one-year work permit. Q. A one-year work permit. So you have renewed it four or five times now? A. Five times. Q. Five times. To the best of your understanding, is there a limit on how many times you can renew it? A. I don't know. Regina v. Nicole KISH, Page 17 of 8 2 I know nothing about that subject. Q. I see. And you are married? A. Yes. Q. Is your wife a Canadian Citizen? A. No, she's not. Q. American Citizen? A. Yes. Q. And -- excuse me. Can you think of any reason why -- you understand this is a Preliminary Hearing and not a trial? A. Sure. Can you think of any reason, if the trial was to take place even a year or two from now, why you might be unavailable? A. I'll always be available for this, no matter what. Q. So you are not suffering from a terminal illness or? A. Not to my knowledge. Q. Are you facing any kind of deportation? A. No. Q. After this event happened, did you hear about it in the media? Do you watch TV? A. What time frame? Q. Well, obviously you didn't hear about this event before it happened. A. I heard about it from my wife. Q. From your wife. Right. Regina v. Nicole KISH, Page 18 of 8 2 And then in the subsequent weeks, there was a fair bit of news coverage? A. Yeah, yes. Q. Right. A. I was advised not to pay attention to the media or follow the case at all. Q. And who advised you to do that? A. The people that I work with. Let's see, who else advised me? The police officers at the time - I think it was Umbrellow. Q. M'hmm. A. They said that just, it would be too hard emotionally, and that the media tends to mess up a lot of the information. Q. Having said that, you'd agree that this is a - was a highly-publicized event? A. I think for a few days. It was - there was a spike - sure. Q. And you watch local news from time-totime like the weather or the sports? A. No, not really. No, I don't watch too much TV. Q. You don't watch too much TV? A. No. Q. Newspapers? A. No, never. Q. Internet? A. I am on the internet, sure. Q. Do you keep up with your favourite sports teams, and basic news on the internet? A. No, not really. I am not big on Regina v. Nicole KISH, Page 19 of 8 2 Canadian news. I'm -- I was more involved with American politics and George Bush. Q. I see. Okay. At one point in the interview, I think it was your first one, you'd made reference to the media getting it all wrong. You've had a chance to --- A. Well, I was hearing it, second-hand, from people coming up to me. I had friends from all over Canada and the U.S. coming up to me and showing me things, and telling me things. Q. Showing you things? A. Well, yeah. Sure. I have seen a couple of articles. I'm not oblivious to the case. A. So yeah, of course. Q. So --- A. I didn't actively seek it. Q. M'hmm. But people, I guess, at work, or friends who sort of clipped articles for you because they know that --- A. Well, no. They didn't clip out. Q. --- this was your best friend? A. I probably saw three articles, in total, about the case. Q. M'hmm. A. And one had a video of Ross. Q. Was that an internet article? Regina v. Nicole KISH, Page of 8 2 A. It was an internet article. Yeah, that was on C-TV, I believe and it was the one where he was crying out for an ambulance. Q. M'hmm. A. And after that, I stopped looking at all. Media sucks. It was just too hard. Q. Yeah. What does the word panhandler mean to you? A. Panhandler, to me - someone begging for spare change, I guess - a homeless person or a transient. Q. M'hmm. And from what media you did hear about, and discussions you had with other people, does this case sort of have a nickname? A. A nickname? Q. A nickname that distinguishes it from other crime scenes? A. I wouldn't know. I wouldn't that. Now, you told us yesterday that you have been on a work permit since 02. Have you worked the same job? A. Yes. And your employer is called Virtual? A. Virtual Service Inc., yes. Q. Virtual Services Inc.? A. Yeah. Q. And it's obviously and incorporated Regina v. Nicole KISH, Page 21 of 8 2 company. Is that the name that it sort of gets its clients with, or does it operate under another name? A. That's the name of the company. Q. That's the name of the company. And how many people work there? A. At the time, or now? Q. Well, okay. Well, let's do it, at the time? A. Probably around forty-five, roughly. I mean, that's just a guess. Q. M'hmm. And do you know who owns it? Or is it a group of shareholders? A. I don't know the particular details of the company. I just work in marketing, and a lot of that information is not -- I'm not privy to it. Well, who is your boss? A. Who is my boss? Q. Yeah, you go to work, and someone hires you, fires you, gives you a raise, tells you what to do. A. I guess -- I guess, it's really hard to say. I don't -- I would say that I have run my own department. I really -- I don't answer, really, to anyone. I mean, I collaborate with other people, but I don't have a boss. Q. Oh, I see. You are the head of your department? Regina v. Nicole KISH, Page 22 of 8 2 A. Right. Q. Right. Does the company have a president or C.E.O. or someone who sort of manages the whole company? A. I would assume. I would assume that it does. Sure. I don't know the details of my company. It should be public knowledge though. I mean like --- Q. I hadn't anticipated this. So that I would have come with something to sort of assist you. A. I just don't want to give you a wrong name. I don't want to be -- I don't want to be - give out incorrect information. A. There's shareholders. There is, probably, presidents. There is -- you know, I just -- I just don't know that information. Q. All right. Does Virtual Services have a head office somewhere in the world? A. Yeah, our Toronto office. Q. So the company is basically run from the Toronto office - managed, directed? A. Yeah. Sure, sure. Q. Yeah? A. Sure. Yeah, our 'phone number goes there. Sure, yeah. Absolutely. Q. And you have got offices other places in Regina v. Nicole KISH, Page 23 of 8 2 the world? A. I don't believe Virtual Service has offices other places. And is there someone in Toronto who is sort of listed as the president? A. As I said before, I don't know that information. Q. You don't know that information. So you don't ever --- A. At one time, I was -- I was -- well, no. I wasn't. No, I wasn't. No, never. Q. So you run your own department. You don't report to anybody --- A. I am a consultant. My work permit says that I am a Management Consultant, so I am mostly you know on a consultant level. I come in and I am a consultant so I don't really know the exact details of the thing. Q. I see. Well, are you -- do you get a pay cheque? A. Of course, I get a pay cheque. Sure. So you are an employee. Do they withhold some of it --- A. Sure. I pay Canadian taxes. Yeah. Absolutely. Q. Do you work a regular forty-hour work week? Regina v. Nicole KISH, Page 24 of 8 2 A. More than that but sure. Yeah, I come into the office on a regular --- Q. It's not a part-time job? A. No. Q. No. And it's the same job you have been doing since 02? A. Well, we are on the internet. So the day-to-day things change. Q. M'hmm. A. You know, the business changes, but yeah. Yes. Q. But the basics, of being the head of he marketing department --- A. Sure. Q. --- for Virtual Services Inc. --- A. M'hmm. Q. --- and manage/running that department --- A. Yes? Q. --- that's what you've been doing since 02? A. Yes. Now, is Virtual Services sort of the only company that you're contracted or an employee of, or is - are there subsidiaries and divisions and is there something - is there another aspect to your job?
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