Trial, Week 11: Summary - October 2



   * Day 49: Monday, September 30         * Day 52: Thursday, October 3
   * Day 50: Tuesday, October 1           * Day 53: Friday, October 4
   * Day 51: Wednesday, October 2


Edited by Roz Royce and Trond Halle, from notes by Trond Halle (Defendant)

Posted by FreeMedia


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

There's some media here today. Do they know something? Do they realize that a mistrial may be declared today? Stay tuned.

J tells foreman that he's aware that the jury wants more time to consider questions.

Cst. Sean Maloney back on witness stand. His manner is extremely evasive and shifty. He never looks over at the Counsel questioning him, preferring instead to look over at the Judge.

JF - SM told driver to "eliminate the shooter." SM says this meant to apprehend the shooter. Says the driver didn't hear him. The Bison was travelling up the hill at this point. SM could see from below the hatch, trees passing. SM claims he could see a limited amount through the driver's "window". He says he could see movement through this. Bison made a left turn. Bison stopped and backed up. Went forward and backed again. Then the driver said the Bison lost its steering.

Going up the hill, he never fired a weapon. He doesn't recall hearing shots during this time. Once the Bison was stationary on the hill, he heard multiple hits on the Bison - at least a hundred. Some rounds were heavy, others light. He could feel hits on right side of Bison. Nose of Bison was facing west. SM believes Cpl. Preston may have returned fire, but SM not sure. SM not sure if anyone was exposed in the hatches at this point. Hatches were open and they decided to close them.

Vancouver ERT member put weapon up and laid down cover fire, then withdrew weapon, and SM jumped up and exposed himself for several seconds to close the right rear hatch. He's not sure what happened to the left rear hatch. SM figures that several minutes went by between hearing first shots and closing the hatches. He says that the sound of gunfire never diminished and over time, increased. Bison never changed locations. Says that some rounds were light, and others were heavy like a high powered rifle. Agrees that all hatches were closed several minutes after they were stationary. He says that weapons can't be fired from Bison when hatches are closed.

Fifteen minutes later, Green Bison arrived. He could see from rear porthole Green Bison backing up to Red, ramp to ramp. He could see rounds hitting the Green Bison. Dust would be thrown up and a mark would remain where round hit. Cst. Smyth was in rear hatch of Green facing bushes up the hill. He was returning fire. SM saw no other members standing in Green. Smyth was only person firing. SM could see rounds hitting edge of Green Bison at top near left rear hatch.

Both ramps were dropped and orders were called out to move from Red to Green. SM didn't do so because plan wasn't satisfactory and the possibility of being killed was too high. One member from Vancouver ERT ran from Red to Green. As he was running, SM could see rounds hitting the back of the Green Bison and ricocheting into the Red Bison. SM stuck M-16 out of Bison and fired a blast of rounds into the treeline. SM believes Preston was firing his weapon too, but not sure when. Says that he can't recall Red Bison members providing cover fire when Vancouver ERT member was running between Bisons. SM says that rounds were coming from bushes from north side of Bison.

After SM returned fire, remaining members in Red Bison moved as far back into Bison as possible, so not to be hit by ricochets, and screamed for driver to close the ramp. The ramp was closed.

Noticed that the Green Bison had pulled away. He could hear rounds still hitting the Bison. These were hitting on the right side.

Prior to moving out of area, he could see smoke deployed. SM says that he wasn't sure if gas was deployed, so he put his gas mask on. He was then told that the smoke wasn't gas, but were smoke bombs. Says it's hard to tell how long they were in there, but it felt like an hour. By looking ahead, he could see that they were being pulled by another Bison. At 1000 Road, he got out and observed multiple hits and flat tires on the Red Bison. A naphtha can had a hole in it. SM says that he was standing next to this naphtha can when they were down at the lakeshore.

In photo book 5B, SM looks at photos. He says photo is similar to Bison he was in. He can't be sure if it's the same. He points out location of where naphtha can is strapped. He says that the right rear hatch that he's standing in is next to can.

HR - SM says that the officer in charge of ERT in Red Bison was... "to my knowledge, there was no one in charge." There was a military driver and crew commander in there, as well as himself, Preston, two Vancouver ERT and two EDU personnel. SM says that there was no one in charge. SM says he was in Bison the night before with a group. SM can't recall if some of the people were left behind at Percy's lease. Says there were two ERT teams there, but doesn't know who. SM agrees that there was a plan to blow up truck and that there was a meeting to discuss this the night before. He was there, but can't recall who was in charge of the Bison. HR can't believe that SM can't recall this. HR: "Are you serious?" SM: "I'm very serious."

SM believes commands came from somewhere else - the Command Centre on 1000 Road. He doesn't know who was giving the commands from there. SM agrees that he made statement "eliminate the shooter." SM says he assumes that it was directed at the driver. SM claims that he had a view out the driver's port. SM says eliminate means "attempt to arrest." HR wonders how you arrest someone from a moving Bison. SM guesses Bison was moving 15 mph. HR wonders how driver was to arrest him. SM says that driver could catch up to person.

HR suggests that eliminate in the English language means to kill him, to run him down. SM says that the driver was to understand that he was to apprehend shooter. SM agrees driver couldn't do that because he was with the army. SM says there was no plan for which RCMP was to arrest the shooter. HR: "You expect us to believe that?" SM: "Yes I do."

SM says that his viewing of the Red Bison on the 1000 Road lasted a few minutes. He viewed it with Preston and two Vancouver ERT members. Says this happened around 3:30 or 4:00 p.m. on the 11th. SM says there were hundreds of hits on the Red Bison. "Several hundred. Close to 500 hits." Says that bullets leave little round marks. HR asks if SM ever counted ceiling tiles in the hospital. SM says he hasn't, but HR has and says it takes quite a long time to count over 500 of those holes.

HR notices that SM's testimony was as if events of the 11th happened in one sequence - compacted. SM says that to him, it was one big event that took place.

SM says he gave written statement to a GIS member, but can't recall who. He placed it in an office basket. He wrote statement himself at the GIS command in 100 Mile House. Can't recall when he wrote statement.

He heard explosion of red truck at 14:04 hours on Sept. 11. He was already in the Red Bison. He had got in about ten minutes before. He was getting commands from communications. He says communications didn't tell him to drop the ramp and to check the truck. SM says he just got on top of Bison, with Preston, on his own. "To my knowledge, there were no orders." SM says he has no idea who shot the dog. He didn't see anything. Says he was focusing attention on the red truck. He doesn't recall if anyone opened the doors of the red truck. He didn't see any movement around the red truck at all. He was standing on the roof of the Bison and says he saw nothing. He did see the Vancouver ERT members approach the truck. SM says the other two members stayed in the Bison. SM says he was standing out of hatch when Bison hit red truck head on. He remained in hatch during this. He saw dog laying on right side of road 50 yards away. He took it that the dog was dead.

They waited and then got further instructions over ERT communications. He heard that dogman was tracking through the woods. SM says the dogman was in the bushes, but SM never saw him.

At lakefront, SM never heard Preston tell swimmers they were under arrest. He did see Preston fire two shots at them.

Going up hill into woods, he says that he caught sight of "something" in front of them moving. HR wonders how you arrest "something". SM says that he believed there was a person there on the say so of the driver and Preston. SM agrees he never saw anything out of his rear vision slits. Was aware they were knocking trees down. SM says they hit something hard and came to a complete stop.

SM says that he was behind the crew commander when he was looking through the driver's slits. He claims he could see because he was trained how to drive the Bison and knew where to look. HR says that in a sense, SM took command because there was no commander there, when he told driver to eliminate the shooter. SM: "I wasn't in command." Says that he and Preston and two Vancouver ERT members were to make the arrest.

ST - SM agrees that he thought 20 seconds elapsed between explosion and ramming truck. He viewed Wescam footage with Preston. Says he watched this at Command Centre, but wasn't directed to watch it by anyone. It was in the VCR and others were watching it at the time. He says he only watched the Wescam footage once on the night of the incident. He says he was summoned by commander - he doesn't know who - to be debriefed on the incident.

SM agrees that he and Preston were assigned to Bisons because they had working knowledge of Bisons. He remembers that following this day, Preston was no longer in the Red Bison. He doesn't remember if Preston was at debriefing too.

SM says that at time of explosion, army crew commander was in charge of the Bison. He wasn't wearing radio headset to driver, though Preston was. SM wore ERT radio. ST wonders why SM didn't obey orders by Insp. Kembel to "get out of there". SM doesn't recall hearing this.

When Bison hit red truck, SM admits that it backed up and then rolled forward. ST suggests that Preston ordered driver to back up and ram it again. SM doesn't recall this.

Down at lake, he was initially facing the same direction as Preston was - facing the lake. After, SM turned to cover the hill.

SM agrees that he was aware of no danger moving into that area. Admits that he heard communications of a blue car and reports of fire. SM assumed that the fire was coming from the blue car.

SM points to large aerial photo where Bison came to stop in front of swimmers. Says that the Bison was parked with its nose slightly away from the lake. He heard Preston say "police" and two seconds later, Preston fired two rounds. A couple of seconds later, SM turned to face the hill. He watched people in lake for maybe 10-15 seconds. Agrees that he was aware of no danger to his backside at this time and had time to observe swimmers. He still doesn't recall what they looked like. He only saw them from the chest up. People were walking towards the Bison. He doesn't know why Preston fired at this point. He has no idea why Preston fired and admits that he has never in his career fired warning shots at someone walking towards them.

MB/ ST cont'd with Cst. Maloney - SM knows Preston personally. Denies that Cpl. Preston was in command there. Agrees that Preston was only a few feet away from him in the Bison. ST suggests that SM would have heard commands by Preston to the driver either over the intercom or if Preston was yelling. SM doesn't recall Preston giving any commands.

Down at the water, SM says he heard and saw rounds hitting the Bison. SM says that he was facing the hillside from where the gunfire was coming from. SM says that he turned his whole body to the side. He could see the shots hit the side of the Bison. He says he doesn't recall saying anything. ST suggests that he said on ERT radio "help". ST suggests he screamed this because he was in a panic. SM agrees. SM says that when he yelled "eliminate the shooter", he assumes it was to the driver. ST says Preston was also talking to the driver over the intercom at the same time. SM says the Bison was already moving. SM doesn't recall Preston telling the driver to turn around. ST asks if his lack of recollection is based on panic or because he's protecting Preston. SM says that it's because he was panicked. Denies that he's covering up that he and Preston lost their composure and acted in an unprofessional manner. SM denies that he was called in by Command Centre to view Wescam video because he was being reprimanded for his actions.

When Bison hit something in woods, he and Preston were sitting down. SM says that he fired three or four rounds by the lake and Preston fired two shots into lake. Recalls no other shots. SM agrees that if Preston would have fired while the Bison was chasing the shooter, he would have been aware of it. ST suggests that this is what happened. SM says that this might have happened, but he can't recall.

SM agrees that the driver would have turned from lake to hillside because he was given a command. Agrees that he was yelling "help" into the radio. ST asks if he said to "eliminate the shooter" because of anger. SM agrees that there was some frustration in the RCMP prior to this day. Agrees that there was talk of shootings and that there is a fraternity in the RCMP. SM agrees that there was some frustration about the length of time things were taking. Agrees that there was a lot of animosity against the camp. Agrees that he believed camp was full of "belligerents, unfriendlies, etc." Says that there was a concern that camp might have rockets. Understood that camp had a number of people in it -at least in the high 20s. Said he understood that there were armed people in camouflage. ST suggests that Preston was firing at the shooter during the chase because of this animosity. SM can't recall.

At lake, SM agrees that he tugged on Preston's leg to get him down, but Preston wouldn't come down for several seconds. ST suggests that Preston was firing during this time period into the treeline, but SM can't recall if that was so.

After Bison hit something in woods, it backed up and turned left. He agrees that Bison was facing the west in the end. SM says that he determined that it was facing west because they had turned left and that was his feeling that they were facing west. SM was not aware that police on south side of lake were shooting in his direction. ST says that there was a jag in the tree they hit. SM points to area on large aerial photo where he believed Bison was disabled. SM says that the hatch wasn't closed until Bison was disabled. ST suggests that when Bison backed up, it was facing southeast and the right side of the vehicle was facing due south - the direction of the lake, and the rounds he heard were coming from the police. SM says that he doesn't feel that the Bison was faced this way.

When SM exposed his chest to close the hatch, he says he had to do this to grab the latch. ST suggests that the lever should have been available without exposing his body. SM agrees that hatch is poorly designed and required coming out to close it. SM tried to fire out of hatch, but his rifle jammed. Preston may have been firing too. ST suggests that SM was firing a burst into the bush while Preston closed his hatch, and Cst. Arseneault fired while SM closed his hatch. SM agrees Arseneault covered him, but he doesn't recall getting any fire out himself because his rifle jammed.

SM calls firing at no target "suppression fire." At lake, when shots were hitting Bison, SM admits he was firing into the bushline with no target and no idea where the fire was coming from.

In photo album 2B, photo 322, SM points out viewports at rear of Bison above door. SM agrees that this is a small glass port in which you could only see out of Bison to rear, but not out to sides. SM still claims he could see through the driver's viewport.

GW says DC will handle his questions.

DC - SM agrees he heard several hundred rounds hit APC. In his statement on page 7, DC points out "our Bison received well over a thousand hits." SM says that this was the best estimate he could make on Sept. 17th. SM agrees that this is based on what he heard and what he saw later. SM maintains that there were thousands of hits. SM says he would be surprised to hear that Cpl. Carrothers said there were only 26 hits on the vehicle. SM agrees that part of his assessment was based on what he heard. He agrees that Carrothers' specialty as an Ident. person would be correct. He agrees that the figure he gave of a thousand would be incorrect.

In photo 27 of Bison, he says he saw that the whole right side of Bison was hit, including the red flag that isn't visible in the photo. He agrees that in the pictures, he can't see any indications of the hits he referred to, including the flag.

At lake, SM maintains that Preston fired two shots towards swimmers. He can't recall exactly where these shots hit. Following this, he turned to hillside. He agrees that he had his M-16 in front of him pointed in the general direction of the hillside. He says that at this point, he heard the shots. He didn't see a shooter or any smoke. He returned fire in the general direction of the hillside. He drops down, as does Preston, and Bison begins moving. He says, "eliminate the shooter." He can't see direction the Bison is moving.

He can't see the person the Bison is following. He can't be sure that person they're following, if there is a person, is the same person from hillside.

L/ DC cont'd with Cst. Maloney - SM says that the gunfire "appeared to come from the hillside". He says he only hears a sound and sees where the rounds are hitting on the Bison. SM agrees that it's only his opinion that the rounds were coming from the hillside.

When he got up and closed the hatch, he agrees that he would be a fairly easy target to someone with a rifle up to a couple of hundred yards away. He confirms that he wasn't hit. SM agrees that he couldn't tell whether bullets hitting Bison were RCMP or otherwise.

When he saw bullets impact on Green Bison as it was backed to Red, he says he fired rounds in the direction he believed the bullets were coming from. He believes that he could tell by the angle bullet was hitting the Bison. DC raises a card and asks that if a bullet hit it, whether he could tell what angle it hits. SM agrees he can't, but says he could on the Bison with the way the dust flew. After he told others that he believed fire was coming from two o'clock position, they laid down fire.

When he saw smoke and put gas mask on, he says he thought it might be tear gas because the RCMP were carrying this and he assumed the police had laid down tear gas.

SM agrees that as bullets are fired, empty casings are being ejected and would hit the Bison with "pinging" sounds. Also says there were people shouting commands and firing. DC suggests that in all this noise, SM could not discern what shots were hitting the Bison. SM disagrees, saying that he could clearly make out the thousands of hits.

SM says that he could see driver's ports because driver's head was slightly down and SM could see above his head to see the ports.

When SM yelled "eliminate the shooter", DC suggests that real intent would be to kill the person. SM denies this because he is a police officer and he doesn't kill people, he arrests them. SM received trauma counselling. He's not on drugs today. He's wearing a gun right now.

MA - SM was in Chilliwack before army arrived. He agrees there was a change of plans in Chilliwack and he and Preston were no longer going to drive Bisons. SM denies that Preston was calling the shots. SM says that he didn't direct his comment to "eliminate the shooter" to anyone in particular.

MA looks at SM's notes that he has on him. MA points out that Defense was given his seven page statement. SM agrees that statement isn't the same as his own notes. He says he gave his notes to commander. MA looks at page four of SM's statement, which says, "I then advised driver to eliminate the shooter." SM now says that he gave the instructions to the driver assuming the driver knew where he was going.

When the ramps went down, and he says Smyth gave fire, MA suggests that SM is mistaken and Smyth didn't fire at all. SM says that this is possible - he saw Smyth point weapon and assumed he was firing.

At Lakeshore and 1000 Roads, he was given instructions on ERT radio to engage blue car. MA suggests that the actual order was that blue car was heading his way and Bison was not to engage.

SM says that "engage" meant to go to truck and hopefully arrest. Going westbound on Lakeshore Road, SM admits that he and Bidwell are standing out of their hatches. He confirms that blue car turned around and left without firing shot at Bison.

On small aerial photo, SM points to where he thinks dog team was - at southeast end of lake. When SM saw swimmers, SM agrees that he couldn't see the dog team. He agrees that from time of red truck explosion, to time Preston fired, he doesn't recall hearing any shots. MA suggests Preston fired first and then said "police", but that's not how SM remembers it. He says he has no problem with his memory. "Not generally."

LB - Next witness (#49): Cst. Neil Anthony Smyth (NS) - currently stationed in Agassiz. Member of Chilliwack ERT for four years. Team leader is Donovan, second in command is Marsh. In August 1995, he was sent to Chilliwack to train with Bisons. At time, there was uncertainty about who was going to drive. He then went to Kamloops and then to 100 Mile House.

On Sept. 10, he went to Zulu and received instructions. He was member of Green Bison. Driver was Dale Horton and crew commander was Warrant Officer Trelnuk. That day he was directed to 1034 marker on 1000 Road to become part of forward observation post. Went to this position at 5:30 p.m. Knew there was a blockage on road and was told not to proceed past it. NS says forward site was 400-500 metres north of roadblock. Position was on small hill. Bison was on top and observation posts were set up around Bison. A 24-hour watch was set up that night.

They were to observe and deal with any people going north of roadblock. "Deal" means to intercept them and to deal with anything that would arise out of this interception. On small aerial photo, he points out 1000 Road. He can't say for sure where position would have been other than it is at the most northerly position on the left hand side. He couldn't see "log block" (fallen trees on 1000 Road) from position, but the most forward position could. At 11:30 p.m., there was a change from Prince George ERT to Kamloops ERT.

On the 11th, he heard on radio of movement of red truck. He knew that there was an ERT set up south of them. He heard on radio a request from Red Bison to ambush the red truck. After he heard explosion, there was a brief silence, some gunfire, more silence, and then sustained fire. He then got word that Red was disabled. They got permission to help, so went down road to roadblock. They hooked up tow cable to log and pulled it out of the way. Then proceeded onwards to Red's location. For two thirds of the way there, he was in rear left hatch. His job was to liaison with ERT members inside.

When he caught sight of lake, he dropped down below. Next he saw Red Bison through the rear porthole. Radio communication was established with Red. He could see five of eight tires were flat. Initially he was looking through portholes. They sat near Red and spoke for about five minutes deciding what to do. Green circled perimeter of clearing trying to draw fire to determine where hits were coming from. He heard hits to the armour when he was at the north end of the clearing. Says it was hitting the right side of Bison, which was facing north. About five to eight hits. Bison continued circling and stopped next to Red. He heard nothing at this point. A plan was created then to back the Green to the back of Red. Both hatches would be dropped to leave opening of about two metres. Red members would cross to Green. There was a plan for Kamloops team and NS to provide cover fire. This happened and five to eight members gave cover fire. Bulk of ammo went to north.

Initially, he could hear rounds hitting Green Bison, but as ERT began firing, he could hear no more rounds hit because of noise. One member from Red crossed and that was it. NS told driver to raise ramps. Red's were already closed.

There was discussion on radio to try it again. Green's ramp was lowered, but he saw that Red's wasn't moving. NS told driver to raise ramp because plan wasn't working. They began brainstorming and they called other Bisons to site. New plan was made after Blue and Yellow arrived. They created a small box formation. NS, Maze and Wilby exited with a tow bar. Plan was to hookup bar to Red to tow it out of there. During this time, members of Blue, Green and Yellow were standing to provide cover fire. Maze and Wilby provided fire through gaps, while NS dealt with tow bar. Says that there were still gaps between vehicles, but this was the best they could do. Initially, he put it on upside down and had to re-hook it. This hookup took between 20 and 30 minutes. During this time, he couldn't tell if other fire was being directed at them. Maze and Wilby returned to Green, as did NS. They then pulled Red out of area.

He guesses that Green got more than 20 hits. At 1024 marker, a person with a video camera got on board and NS explained what had happened. Man is associated with RCMP and deals with a lot of the RCMP training films.

GW - NS confirms that 2,000 - 3,000 rounds were fired from Green Bison.

MA - NS says that he fired his weapon when Red crew was crossing to Green. He guesses he fired about 30 rounds. MA notes that NS made a statement on Sept. 30th, which NS agrees he did. MA notes that a Will Say the Crown gave Defense says that NS didn't fire any rounds. NS looks at Will Say and says he didn't fill this out.

When Green pulled up from lake, NS says that he was standing up, but Kamloops was down. NS didn't see any members on other side of lake. NS says that Green didn't take any fire as it drove along Lakeshore Road. MA suggests that there were 19 people in the Bison, but NS can't remember. NS confirms that at least one C-7 military rifle was used during this period. After smoke grenades were thrown, there were lulls in firing. He can't say whether he was being shot at when he was hooking up the Red Bison to the Green. He arrived on Sept. 5. Left on Sept. 19. He doesn't recall knowing of members on south side of lake. He doesn't recall a place called Tango or Dock.

End of questions. J takes adjournment while jury discusses issue of length of trial.

AB/ Without jury.

MA - MA is concerned that the jury may think it has the authority to declare a mistrial. J says that the jury only has to comment on whether the time involved is too long. MA wants them only to comment on this, not on general matters.

HR - Would like any comments made by the jury members to be put forward in a written statement so that the J can comment on only the relevant parts.

LB - He is now optimistic about the length of the trial, as has been noted by the increased pace of the last couple of days. He has a new estimate by eliminating some witnesses and finding a way of playing the negotiators' tapes.

The optimistic date isn't confirmed yet.

GW - thinks that things can be quickened as negotiator tapes can be played quicker than originally planned.

MA - doesn't want to dampen the enthusiasm, but there are witnesses that aren't being called that will have to be argued in front of the J. There is also a completely unacceptable disclosure problem. He is still waiting for an amount of ammo expended by the RCMP, which is crucial to a self-defense argument.

ST - says to be fair, jury should be told that it could go into February so they're not misled that it is guaranteed to be finished by Christmas.

Jury in.

J says that some Counsel is more optimistic than others. The trial pace has quickened, but there will be some witnesses that will require careful examination. J says that the jury is not asked to declare a mistrial, but is asked whether they can continue on or not. If any member has a problem, he can write it down or take the witness box. The final decision will be the J's.

   * Day 49: Monday, September 30         * Day 52: Thursday, October 3
   * Day 50: Tuesday, October 1           * Day 53: Friday, October 4
   * Day 51: Wednesday, October 2