* Day 44: Monday, September 23 * Day 47: Thursday, September 26 * Day 45: Tuesday, September 24 * Day 48: Friday, September 27 * Day 46: Wednesday, September 25
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Abbreviations used in notes:
DC = Don Campbell (Defense)
SF = Shelagh Franklin (Defense)
GW = George Wool (Defense)
ST = Sheldon Tate (Defense)
MA = Manuel Azevedo (Defense)
HR = Harry Rankin (Defense)
LB = Lance Bernard (Crown)
JF = Jennifer Fawcus (Crown)
J = Judge
Five accused here voluntarily (Percy, Toby, Rob, Grant and Trond). Three accused here that have no choice (Wolverine, OJ, JoJo). This is an all time low record of attendance.
GW - Says that JoJo is here now and feels he can give proper instruction. Wants an order to ensure that he makes it to the hospital on Sept. 25th for a CAT scan. The J orders that he be made available for this appointment.
MA - Disclosure problems. Says that Ray Watson's notes would have been necessary for the last witness. Has learned Watson's notes are locked up at Grand Forks. We will be dealing with events of Sept. 11 for the next few weeks and likely, there are other missing notes. He's renewing the application for all notes for all RCMP, military and civilians that were involved on Sept. 11th and 12th. Reminds J that Cst. Arthur's comments of Ray Watson caught the Defense off guard and he suspects that there will be more surprises like this due to lack of disclosures.
LB - Isn't sure that these notes even exist and at the moment, there is a difficulty in getting them from Grand Forks. Wonders what the relevance is of these notes. LB says that if Defense wants to check if Watson did tell Arthur of the person with the shoulder holster, Defense can talk to him and verify if this is what he said. If Defense has any information that puts in question Arthur's credibility, then that issue can be furthered. Says that MA's demand for every person's notes is going too far. J wonders if Watson's notes can't simply be checked in Grand Forks, but LB says that Watson says he can't get them.
HR - Says this is ridiculous. If we were to do this practically, this trial will take forever. Upcoming witness, Bud Mercer's notes are made up of 80% of other people's information. He's watched LB run this trial and he has never seen a trial run like this in his life.
J has a clean copy of RCMP rules of engagement for the jury as per their request. Marked Ex. 206.
LB - Next witness (#41): Cpl. Gary Russell Mercer (GM) - 20 years on force. Member of Vancouver HQ ERT for a year. Previously an ERT member since 1984. He's also a dog master (15 years doing this). Working out of Chilliwack. LB wants to qualify GM as a dog master. GM in charge of Police Dog Services (PDS) for large region. He's a senior NCO, in charge of five person dog team in Fraser Valley.
In August 1995, worked with police dog Lukar, which he just retired. In Aug. '95, he had worked six years with Lukar, a German shepherd. Has responded to 1500 to 1600 calls with that dog. They use dogs to track the scent of people. Some dogs are innately inclined to work and track. The police then shape these innate skills so the dogs can track humans. LB tries to ask GM the reliability of dog tracking, but ST objects. LB declines to ask this then.
The J rules that the jury can consider GM an expert.
Called in to Gustafsen Lake in Aug. '95 to use dog and as an ERT member. On Sept. 10, he arrived in early morning to road south of lakeshore on 1000 Road with other members and with Lukar. Duty was to lay explosive charges on 1000 Road (Tiger). They first cleared the area around Percy's lease. Before that, they were told to place the explosives on the road on the evening of the 10th. The intention was to disable a red pickup on the 11th. Had heard that the truck had a history of going north and south on the road. While members were digging, he was providing security. Digging team used shovels and picks in a diagonal manner across the road 2"-3". Says the data sheets are like "fruit roll-ups, if you have kids." Gravel was placed on top of the data sheet. GM watched EDU (Explosives Disposal Unit) lay a wire from the data sheet to the west side of the road.
That night, he spent most of the time at the intersection of Percy's driveway and 1000 Road. Some members occupied a forward observation position 75 yards north near Lakeshore Road. At 10 a.m., he was in forward observation position and he observed two males come out at the intersection of Lakeshore Road and 1000 Road.
J stands down for a moment because he received a note from a jury member who needs to be excused immediately.
Jury back and J tells them they did the right thing and shouldn't hesitate to do the same in the future.
LB cont'd with Cpl. Mercer - GM shows on small aerial photo where they spent night at intersection of Percy's driveway and 1000 Road. Forward observation post is in a small clearing 75 yards north of Percy's driveway. From forward observation post to intersection of Lakeshore Road and 1000 Road is 75-100 yards.
In morning, he had been in forward position for a couple of hours prior to noon with two other members. He was in constant contact with Eye in the Sky on the police radio. At 10 a.m., he and team was laying behind a couple of boulders looking up at intersection. Two males came into intersection. Both of medium height and build. One had black hair, other had dirty blond hair to the shoulders. He didn't have binoculars so couldn't see well. Black haired person had dark skin, but can't say for sure if he was native. Blond was Caucasian. Dark haired male had cammo coat, but can't recall pants. Blond person wore a pink shirt and may have had a cammo coat on with the front open. LB asks about the shade of pink. GM: "It wasn't blazing hot pink." Both carried rifles. People there for a while and carried rifles in a variety of manners. One of the rifles was an assault-style rifle. The two didn't seem to have a purpose. Just milled around. One of them did push-ups. They eventually left and went west.
Says there were two sets of binoculars there, but he was focused on keeping his dog quiet. The two people never knew team was there. The team never made an attempt to apprehend the two. Team kept radio contact with Command. Says people were of average build. Could not tell age of two.
The team did not try to apprehend the two. Says that as ERT, they don't take the initiative unless they are in danger. There were no orders either to do so. GM begins to tell of prior incidents and HR objects that now the Crown is leading the past. J tells LB not to pursue this.
GM says that after two people left, team stayed put. Around noon, GM left forward position and Sgt. Pete Marsh and one other took over that position. GM was part of the pre-planned arrest team that would arrest persons in truck if it was disabled. He went off 30 paces west of explosives to the west. They were behind a log. His role was to assist with the arrest of the occupants. Person that detonated explosives was near him. Understood that explosives would disable the front end of the truck to make it unworkable. On small aerial photo GM shows that data sheet was laid about 30 paces north of where the red truck is in the photo.
GM says they were given the "heads up" by Eye in the Sky and forward observation post. He could also hear the truck approaching. Sgt. Armstrong was about 15 feet away. Dog was laying down. Following explosion, as per instructions by EDU, they waited a two second count to let falling debris land. As soon as he, dog and team got up, he realized he couldn't see because of all the dust and dirt in the air. Truck wasn't where they expected it. Dust didn't clear for maybe 30 seconds. On the road, he couldn't see, but says the radio was going crazy. Two shots also added to the confusion.
Dog was on a 20 foot standard tracking line. He and dog went back into trees and moved south perpendicular to the truck. On the radio, he heard that one of the team had discovered the truck empty. He headed into bush joined by three other ERT members. Almost immediately, the dog discovered a track and GM allowed him to follow it. Says dog would put nose to ground, tail would go up and it would start pulling. Says the dog used to follow on command, but as it got older, it would just start pulling "and I'd just be pulled along for the ride."
Says that in the bush, they were clear of the dust. The woods were quite sparse here - not like coastal forest. One ERT member was with him, two others were on each side, and another one took up rear. The dog wanted to go quickly, but GM held him back because at this point, he still thought he was following two armed people. Says that this kind of rural environment is like kindergarten for tracking. Ideal and the type you train young dogs in. The worst kind of conditions are urban concrete.
They would stop every 40 feet and hunker down, ensuring area was clear. Had the wind been in their face, the dog could have cleared a longer area to the front in case someone was waiting in ambush. The wind wasn't in their face so they had to keep stopping and checking the ground. Says that at the time, he thought he had gone a kilometre, but when he walked it later, thought it was more like a few hundred metres. Along the way, dog found a loaded banana clip.
Glen, Pancho, and Shelagh arrive.
MB/ LB cont'd with Cpl. Mercer - GM says he had close look at the clip, but didn't touch it. Told members that they should either pick it up or get it later. Says the fact that the dog "indicated" clip meant it was consistent with the track he was following. Over the radio, he heard that two weapons had been found in the truck. GM allowed dog to go full tilt now. Found a set of gloves on the trail also related to the track. Further on, by a tree that had been fallen by a beaver, the dog retrieved a "hot pink" shirt and then released it on the track.
They got to Gustafsen Lake by some shallow water and then spotted two males moving from the bush into the lake. Shows on aerial photo the track as a straight line going west from truck directly to the lake. Banana clip was 100-200 yards from truck. Another 100-200 yards were gloves. Pink shirt was found on edge of bushline. Says that bushline is 100 feet from where the ground becomes wet and the shallows of the lake begins. Shirt was 100-200 yards west of gloves. As team came out of bushline, the two people were 75 yards ahead to west making their way to lake.
He made decision to unclip dog. Dog would have been in full attack mode and would have gone for one of the two people. Two people were in shallows of water and he could see full bodies short of their feet. Both were shirtless and of medium build. One was dark skinned with dark hair. White person had blond hair to shoulders. Were middle age or in 20s.
Then heard buzzing, winding sounds like being too close to a bee's nest. Then heard reports. Bullets were landing in trees above him. Reports were coming from across lake. Saw blue car and people around car. Heard from Wescam that people were pointing weapons across the lake. GM believed that gunfire was coming from car. They hit the ground and decided not to unclip the dog because he didn't think it was worth sacrificing him. He and team decided then to retreat. On aerial photo, he was just a little north of a point near a small bay. It was swampy here and grass grew to knees. They retreated straight back 75 feet into treeline, where they found some logs which they stayed behind.
Watched the two people making their way across lake. Sometimes they were up to their knees, other times up to their waists. Never actually saw them swimming - just wading. Then saw Bison come from west. Blue car spun around very quickly and left area. Bison pulled up to lake side and stopped where blue vehicle was. Says that Bison, two people and his team were in a straight line. When Bison pulled up, people were two inches (on aerial photo) from shore.
Another note from a jury member and the J stands down again.
J back. Says that a jury member is sick and would like an early lunch. ST says this will complicate things for him because he needs to do some catch-up work for his other clients in Kamloops. J says we'll be back at 1:30 then.
L/ Without jury.
GW - Has been informed by sheriffs that OJ may have Hepatitis A, B or C. The most dangerous is A which is very contagious. If it is A, everyone will need to have a vaccination. Will know by Wednesday the soonest, Friday the latest. When OJ left the other day, there may have been an inference that OJ had left because the witness's testimony related to him. GW says that this was the day that he was feeling symptoms of his condition. Suggests that the jury could be told of why he left. Regarding JoJo, GW has spoken to person in charge of Surrey Pre-trial, and would like JoJo's bail revoked and that he be remanded to Surrey Pre-trial while waiting for his Wednesday CAT scan at the hospital.
J tells jury that OJ is ill and was so during Cst. Mann's testimony last Monday.
LB cont'd with Cpl. Mercer - GM points to aerial photo and shows where Bison came in. When Bison hit clearing out of woods along lake, blue car made power turn and took off west along Lakeshore Road. Bison stopped where blue car was.
GM saw upper hatch on Bison open and a person emerge out of the top so that his waist and up was visible. Two people's hands were up. GM says that his radio was the only one that didn't get wet running through the brush, so he was telling Bison crew where people were. GM made the request for the Bison to come on the scene when he felt he was being shot at. At time, primary reason for requesting the Bison was to stop the gunfire so that team could make it back to the treeline. Secondary purpose was for the Bison to effect an arrest of the two people.
Blue sedan he saw was a very large, older American four-door car. Guesses the car was from the '70s. He saw the person emerge from Bison and saw his weapon come up too. He heard two reports from weapon and saw two shots hit water to west of two people. The people put their hands up then. Saw that the person in the Bison had his weapon to his shoulder. Two people were up to their waist in water. Next, he got on the radio and told them that the shots he heard may not have come from the car, but from the treeline. GM never got a response because almost immediately, he heard reports from the treeline. Person in Bison dropped into vehicle and two people in water dropped hands and made way to shore. Bison made a hard right turn and went north into bush area. He never saw anyone in the bush at this time.
Then there was a loud continuous barrage of gunfire that began and lasted a long time. It was made up of auto gunfire and single shots. Says these shots were bigger than .22 rounds. As Bison went into the trees, there was gunfire. Quantity of gunfire increased. When Bison was going into bush, he lost sight of two people in water until later when he saw them go into a grove of trees near water west of where Bison was. Says they either went into grove by fenceline or another grove slightly east of fence. Says he saw two people go into bush area. Then he saw two people emerge from bushes and he felt they were the same people except that now they were carrying rifles. Both still appeared to be bare from the waist up. Felt they were the same people from the lake because one had dark hair and one had light hair. People disappeared again into scrub and GM and his team's attention was diverted again to escalating gunfire from Bison area. He can't recall if he saw people come out of the water with his naked eye or with binoculars.
When he looked over to Bison area, he was using binoculars. Heard on radio that the Bison was stuck. Then saw people moving through woods from the west to the east towards the Bisons. GM says it's difficult to show on the aerial photograph exactly where people were running because it's not the same as viewing it from the ground. Can say that people were moving north of dirt road triangle. Saw maybe five or six people moving around, but isn't sure if they were the same people running back and forth. "They were just shapes moving through the woods."
Then saw person running up from water near fence on the east side, cross the fence, and then move northwest. This was the light haired person. Person went into the treeline just north of the point in the lake. Saw person going to treeline. There was fire coming from police at both Bison area and where person was by fence. Saw person go down hard to the right of "bunker". Person got up and appeared to have a red patch, one foot square, on his shoulder. Looked like red cloth or what he believed to be blood. GM was using binoculars. Person got up and went into treeline. At the time, he thought he was 200 yards from person, but later learned later that he was 400 yards away. They were using M-16s, which are accurate to 100-200 yards. Says that at 400 yards, M-16 would be pretty ineffective.
During this, gunfire was still going on near Bisons. There were reports of sniper positions firing at Bisons. Saw "camp reinforcements" heading for area. Also heard on radio plans to rescue Bison.
GM didn't fire because he was handling dog who was getting excited during the gunfire. He was also trying to keep the dog from going at the ERT members. GM had given his M-16 to another member when he began his track. Was only carrying his 9mm handgun. Never fired a shot.
Heard later that person was moving west on north side of lake, but then person changed direction. They eventually went to site of red pickup and then retreated with team back south on 1000 Road.
Day after people left camp, he returned to track and retraced tracks looking for his personal kit (equipment). He also re-evaluated his distances. In the afternoon, they did some re-enactments in which he narrated events.
LB plays short tape to GM of truck blowing up. APC slams into red truck and dog is killed. End tape. GM agrees that on the video he saw the yellow dog in the truck at the time of blow up. Says his dog is also on the screen. Says he was on the side of the road trying to pull his dog back into the trees.
HR - GM says that he only heard two shots when dog was killed. He got to area on Sept. 10th, but had been involved a long time before then. GM says that he has gone over this event about a hundred times. HR suggests that a lot of the information he got was from Wescam and this influenced what he remembered. GM says that what he recalled was from memory.
GM says that he didn't prepare the "Will Say" that HR has in front of him. LB says that these Will Says were prepared by investigators and may not be correct as they are only summaries.
GM says that he saw red on the Caucasian person's chest area. HR suggests that this was the first time GM made observations. GM agrees. The next time he made observations after the camp members left, he walked around with his dog and was able to get a more accurate idea of the distances involved.
GM agrees that the plan to blow up the truck and arrest the occupants went astray because of the dust and smoke. Agrees that there were 30 or so officers in the general area, but only 10 were part of the arrest team. GM speculates that they all knew of the plan down to the last detail, as he did. HR reads from GM's statement which says that "if we could guarantee results, we had the green light to get the driver." GM says that this means that if the truck only went to the water hole, they would try to snatch the driver. He claims "green light" only means to capture the driver. HR says that "to get the driver" sounds like to shoot the driver. GM asks if HR means that his instructions were to shoot the driver and HR says yes. GM: "Then you're sadly mistaken."
AB/ HR cont'd with Cpl. Mercer - GM says that he believed white person was a male from the time he saw person walking on the intersection. Saw front of person then and believed person to be male, but never saw people's backs later.
HR notes that in GM's statement, he says that he saw white person's face, but GM clarifies that he only saw front of people when they were at intersection in the morning and that this was 200 yards away.
GM says that two shots fired from Bison were 75 yards away from two people in water. GM says that police can fire when protecting self or others. Agrees that two shots from Bison don't fall into this category. Says if he was in this situation, he wouldn't shoot at these people.
On day of re-enactment, GM agrees that this was the third time that he went over incident. He went with two cameramen. This was requested by the Serious Crime Unit. Says his statement was taken the day after the incident. HR suggests that each time he went out there to recount the incident, he learned something new, like what the distances were. GM agrees. GM clarifies that what he lost during the track was his fanny pack, which had his sunglasses in it.
Reiterates that when people came out of the bush, they were naked from the waist up. Never saw the native male. HR reads from GM's statement that he saw crimson. GM thought the person was shot. Says he never heard on the radio that an ambulance was being called because the person was thought dead, but he admits that the rumour was that someone had been killed. He had heard later that a woman had been shot in the arm. GM says that later he searched the bush area where he saw the person with the red on his chest. That's when it occurred to him that the blond person could have been the woman he had heard had been shot. However, he still believes that it was a man who was shot.
He later picked up the pink shirt again. He thought he had heard that exhibits had been picked up, but on the morning he was looking for his fanny pack on the track, the dog came up to him with the shirt in his mouth. There is a point in his statement where he admits that it's difficult in some cases trying to differentiate between what he saw and what he heard. This is with reference to a question of whether or not the native at the intersection was wearing the pink shirt or whether he had it wrapped around his waist.
GM agrees that the closest he got to the people was 75 yards away when he came out of the woods to the lake. His reference to the people being middle aged means to him not a child and not walking with difficulty. Agrees that the people could have been 45-50. HR suggests that a person doing push-ups sounds more like a 25-year-old than a 50 year-old. GM says that he's 40 and he does push-ups. HR says that this is still 15 years under this bracket. GM says there is no way for him to know how old these people were.
HR looks at diagram at end of GM's statement. GM doesn't know what all the things he drew meant.
GM says that there was about a half-hour between the time of the truck blowing up to coming to the end of the track by the lake. Time between bullet sounds over his head from the blue car and the time the Bisons finally left was maybe an hour.
ST - Agrees that there were two parts of the day. The first part was when he was in the forward observation area. Says he was with Sgt. Marsh, Hodgkin and maybe one more person. Location behind the boulders was level with the road. Agrees that in a laying down position, he would not be able to see down into the cab of the red truck. Agrees that you would only be able to see from the shoulder up.
Says that previous to this, he heard many references to cammo, but not to red or pink shirt. Agrees that there were many days previous to this where little happened. Says the portion of this memory that he plays over and over again is the high adrenalin period from when the truck was blown up to when the Bisons left.
Says that the Crown has never shown him transcripts of radio transmissions. ST suggests that over the radio there was a reference that the people at the intersection weren't the same ones that were in the truck.
GM says that he was comfortable with the codes being used on the radio. ST says he's a little confused. GM says that his radio call sign was Victor Delta Two or Red Delta Two.
ST wonders about the person doing push-ups on the road. GM agrees that this was odd to him. GM agrees that forward observation post was a back-up for Eye in the Sky, as well as being there in case any foot traffic came along the road. GM doesn't remember if he got on radio to say person was doing push-ups. ST suggests that he called for relief at 12:14. Figures that he saw people on road about two hours earlier. ST wonders about a radio transmission at 12:07 p.m. of two men in field that laid down and that were doing sit-ups. ST wonders if this might be GM's radio transmission. GM doesn't think this is his transmission. He thinks he saw someone doing push-ups on the road.
GM had no expectation of who would be in the truck when it came.
Jury stood down.
J reviews MA's application for disclosures of Watson's notes as well as one for all officers, military and civilians involved on Sept. 11 and 12, 1995. J reiterates that Watson told Arthur that blond person wore a shoulder holster. J makes a ruling to make Watson's notes available. J says that the Defense has put forward self-defense as a reason for requiring notes of all officers. J says that this isn't necessary as disclosures have already been made on a large scale. Will only put forward what is reasonably necessary and will hear Crown's idea of what it feels is reasonably necessary tomorrow.
* Day 44: Monday, September 23 * Day 47: Thursday, September 26 * Day 45: Tuesday, September 24 * Day 48: Friday, September 27 * Day 46: Wednesday, September 25