Trial, Week 12: Summary - October 7


WEEK 12: OCTOBER 7 - OCTOBER 11, 1996

   * Day 54: Monday, October 7         * Day 57: Thursday, October 10
   * Day 55: Tuesday, October 8        * Day 58: Friday, October 11
   * Day 56: Wednesday, October 9


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

Posted by FreeMedia

MONDAY, OCTOBER 7, 1996 - DAY 54

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

Inspector Roger Kembel (RK) back on witness stand.

LB - Wants to ask one question he forgot to ask last week. On Sept. 13, at 2:51 p.m., RK was at Zulu. Forsythe gave him 20 sealed envelopes, which RK placed in his car and later gave to Insp. Graves.

GW - RK agrees that he is a commissioned officer. Confirms this is the equivalent of management over employees. He commands ranks below him and agrees that the RCMP is a paramilitary organization, so that when he orders something, it gets done. His position also allows him to deal with resources that others can't below him. Above him is Superintendent. Agrees that generally, you don't question orders. Above Superintendent is Chief Superintendent, then Assistant Commissioner, Deputy Commissioner and Commissioner.

RK has been in force for 32 years. Came to B.C. in 1976 as a general duty officer. He had never been stationed in the Cariboo.

On Sept. 5th RK got a briefing from Supt. Johnson that included that a police officer had been shot at, but RK never questioned that.

RK doesn't recall hearing that on Aug. 19, 1995, Percy Rosette had called in with a complaint of men sneaking around the bush.

RK says that he had nothing to do with Sgt. Montague. RK says that the only people that knew what was going on was himself and the staff around him. GW wonders how information would come out of Zulu. RK says through Hall or Olfert. He gave nothing to Montague. He was only in charge of the ERT teams. He arrived in 100 Mile House on Sept. 6.

GW reads from Vancouver Province, headlined "Army helps RCMP", about an incident that alleged that officers were stalked by natives in the bush. RK says he didn't hear this in the media, but from his briefings. RK says he's aware of an ERT team that was stalked by natives. He thinks it was the Kamloops team. RK says he wasn't involved in checking out the story. He had just arrived and was only in charge of the ERT.

RK agrees that the media can be very useful for getting information out. Agrees that is why it is important for the information to be true. Says that if he was aware of inaccuracies, he would call in media to tell them of errors. RK says that when he was at Zulu, he never sent out corrections to the media. He never told his superiors that there were errors in reporting because as far as he knew, all the information was correct.

Deputy Commissioner Farrell and Assistant Deputy Commissioner Brown came out that day to Zulu. RK aware of no fire from camp directed at police on Sept. 6. On the 7th, it was reported to him that a helicopter had been shot at. Agrees there's a difference between hearing shots and being fired at. RK says he never questioned the source. Sgt. Ken Gates told him this.

RK says the information came from his superiors. Says it was either Hall, Olfert, Farrell or Brown. Agrees this news gave him concern for his members. Denies that this made him want to resolve this faster.

RK aware that Olfert, Hall, Moulton and Edwards had been working on a long-term plan. Plan as he understood it was to contain camp and wait. It had no call to make any moves to go in. Just set up roadblocks. Agrees that generally, it entailed no explosives on the road and no snipers. It was a wait and see plan. Agrees that long-term plans are more expensive because of overtime, lodging, meals, etc. for 400 officers stationed around the area. Agrees that it wasn't a provocative or aggressive plan against the camp.

RK knew from experience that the best tool was just to let the other people cool off. This is based on the police theory that time will often take its toll on a person. People will sometimes give up from boredom or rethinking. RK believes this knowledge is based on training and experience. RK agrees that this plan made sense to him. He endorsed the long-term plan because he wouldn't have to put his men at risk if he didn't have to.

RK isn't aware that Farrell rejected this plan. RK is not aware of this plan being rejected. RK says he approved the plan to place explosives on the road. Agrees that the plan to place explosives in road was separate to the long-term plan. He doesn't recall who came up to him with this explosive plan. RK agrees that it's a very serious thing to plant explosives on a public road. Agrees that the RCMP explosive unit usually disposes of bombs - dismantles them. RK says that he brought in Explosives Disposal Unit (EDU) based on discussions to place explosives on road. He agrees this wasn't his idea. It was an idea brought to him for his approval. He hadn't sought legal advice about placing explosives on a public road. He was relying on the judgement of the officers that brought him the plan. He understood explosives would only disable the truck.

RK says the two members from EDU had experience in placing explosives. RK says that he wasn't surprised to see how much damage it caused. Doesn't know how far the battery was ejected from vehicle from blast. RK doesn't believe that this much explosive would have injured or killed anyone.

RK agrees that if a Deputy Commissioner is able to cut costs, he is rewarded because of his salary contract. At Chief Superintendent position, the pay rates are no longer fixed as they are for the lower ranks. It is a negotiated salary based on how much money they can save the government. Both Farrell and Brown are in this category. RK not aware of the long-range plan being denied.

On the 8th, there are no shootings at the RCMP. On the 9th, there are no shootings at the RCMP.

RK agrees that boredom on an ERT team can be a problem because of stress and a fear of the unknown. He has to be aware of this as the field commander. Has to be aware of anxiety and stress.

RK admits that because of vastness of area, "if people really wanted to get in there, they could have." RK agrees that officers would be cautious out there.

RK agrees again that on the 9th, there are no shootings at the RCMP.

On the 10th, there are no shootings at the RCMP.

On the 11th, before 2:00 p.m., no camp members had come out and challenged the RCMP. RK aware that elders were being sent in to try to talk to the occupants. Agrees that the elders were going in a sincere way and that they weren't radical. RK knows that elders within the native community are regarded very highly. He knows from his experience that you can often get more done through the elders than through the elected chiefs. Knows it's important to be honest with elders. GW asks if there is a problem in the RCMP with trust with natives. RK is silent a moment. He is aware that there have been problems. Agrees that it is not very good to mislead an elder based on his cultural training. This may be acceptable to a drug squad undercover, but is not acceptable for dealing with native elders.

RK agrees that the elders weren't told of explosives on the road, but denies it was because he didn't trust them. He says he didn't coin the name "dream team" to describe the elders. RK trusted them. RK says the time frame didn't allow him to tell the elders of the explosives. "We had a plan in place and it was effective." RK admits that he could have stopped the plan if he wanted to.

RK agrees that he saw on the Wescam the elders heading down the road to the camp. He trusted them and agrees there was a chance that they could talk the camp members to come out. RK spoke to Hall in 100 Mile House on a secure "land line" and they agreed it was a good time to disable the truck and arrest the occupants. RK says he didn't have on his mind the possible results of misleading the elders and the affects it might have on the trust between the RCMP and the native community.

RK agrees that the elders would be met at the treefall by camp members. RK denies that he knew that the people in the red truck were going to meet the elders. He knew in the past though that people had gone before to meet the elders. He agrees that the people that got out of the red truck at the log were standing around casually. He admits they possibly may have been waiting for someone. He knew that the elders were heading down the road at this time. RK agrees that he could have stopped the plan right there. RK admits that it's possible that the people waiting there were there with peaceful intent, but he doesn't know.

He doesn't know if he called Supt. Hall at this point or before, but thinks it's more likely before. RK agrees that when truck turned around, he didn't see any weapons being waved around out the window. He says that he was aware that there were weapons in the truck by a source.

RK admits that he was getting information from someone that was in the camp earlier. He was getting information on the number of weapons, including makes and models. RK agrees he knew this information in advance from this informant. RK got further information that informant was in camp for a time. RK agrees that there is such a thing as reliable information and unreliable information. Part of the job as an officer is to separate the two. In this case, he considered the information reliable. GW suggests that this person had weapons in the camp too. RK doesn't know this. RK agrees that the information he had was that the camp had hunting rifles and a few AK-47s. He was aware of no rocket launchers or machine guns. As commander, this was his reason for using armoured personnel carriers (APCs). He agrees that the APCs were only to be used as glorified taxis and were not intended to run anyone down with or to enter the camp with.

MB/ Without jury or Kembel.

ST - wants to defer cross-examination until the 16-track tape of radio transmissions are released. Likewise, he wants Supt. Hall's notes and his involvement in the shooting episode.

Kembel and jury back.

GW cont'd with Insp. Kembel - Regarding the truck explosion, RK agrees he watched this on the monitor as it happened. In Command Centre was communication dispatcher, two plainclothes general investigations members. Zulu was the only Wescam downlink. Any information in there was highly secret. Agrees that no media or politicians were allowed in there. Any information that RK would have had would have gone to Hall or ?.

Agrees that he saw the dog go down and knew that the first shots fired that day were by the RCMP. As commander, RK knew where everybody was around the lake. Some were at Perch. A dozen members were there with either M-16s or .308 sniper rifles. Agrees there were also members at the dam area at the west end of lake. About a dozen there too. RK didn't know Gustafsen Lake was a dammed lake. Up at 1100 Road ("Elephant"), there were at least two teams, making about 24 members. Near Zulu and closer to camp, there were more members. All were aware of the plan and all were on the same radio.

RK agrees that following explosion, a lot of talk began to jam the radio system. Agrees it was hard to figure out what was going on. "It was difficult to control what was going on at this stage." RK agrees that the dog had been shot. He knew down the road there would have to be some accountability for killing the dog. He knew it might be controversial in the media from his own experience of having to put down stray dogs. He knew that he would have to report on it eventually.

Following explosion, he didn't see anyone exit the truck with rifles. RK says that he didn't want to tell pursuing team that people didn't have rifles.

Next, the Bison went around to north side of lake. RK admits that until Bison went around, there had been no firing from the camp. He admits that all the two people had done at this point was be in a truck that was blown up. He had no arrest warrant for them. He says he didn't order ERT to pursue and arrest the two people. He says the team did this based on direction of team leaders. RK agrees that the intent of plan wasn't to chase people around the lake.

RK confirms that in RCMP manual, there is no such thing as an "attention shot." There is no provision for this. RK agrees that he wouldn't endorse training officers to shoot at people to see what they would do. On Wescam downlink, he saw two people in lake facing Bison with member in it. He didn't see officer shoot at two people or point weapon at them. He did see people trying to make it to shore. He agrees that the two people didn't appear to be armed and seemed to be heading to the camp.

RK denies saying on radio that there are two unarmed people heading for the camp. He didn't tell the ERT members on the south side of the lake this either. GW suggests that the ERT members in the Red Bison might have started shooting at the two unarmed people, believing them to have weapons. RK didn't think of that at the time. He wasn't aware that police were firing at two swimmers, but learned later that one had been hospitalized with a bullet in the arm. There was a lot going on over the radio at the time. RK admits that sometimes in life and death situations, people sometimes make mistakes.

RK never authorized Bison to chase person through the woods. He left it to people on the ground to decide what to do. He agrees that he told Eye in the Sky to scan the area around the Bisons to look for the shooter. RK agrees that he was watching the Eye in the Sky for most of the time, trying to help members on the ground. RK admits that in that entire time, he never saw a shooter. He only saw a person running through the woods. He never saw someone with a rifle blasting the Bisons.

Person he saw running was coming from camp running towards the APCs. The APC was already broken down at this point. GW suggests that RK thought that the running person was going to check out what the shooting was all about. RK thought the person was going to the APCs. RK figures person he saw was halfway between Bison and camp. Person wasn't shooting.

Agrees that he saw people moving around in the camp at this time too. GW asks which of those people are here in the courtroom that didn't go to the APC. RK doesn't know. RK admits that distance between camp and APC would be about a quarter mile. RK is satisfied that the people that remained in the camp were not firing at the APC. Agrees that Wescam never got close enough to identify faces. GW asks if he ever saw a person from the camp going to the Sundance circle and standing there in a prayer-like way. RK hadn't.

RK says that Cpl. Mercer observed people firing from a foxhole. RK aware that ERT members on east end of lake began firing when Bison reported being shot at. He was not aware at time of members firing in direction of APC. He heard this the next day at a debriefing. He didn't detect this on the Wescam.

When Bisons were towed away, RK wasn't aware that the Bisons stopped 200 yards north on 1000 Road so personnel could pick up personal gear. RK later learned at Command Post that negotiators were discussing a no-go zone. He was not aware of any perimeters of this, so he couldn't advise members where borders were. RK says there was no no-go zone on the 11th.

That night, he watched some media of events. He never watched the Attorney General get on TV and describe the events. RK agrees that he briefed the command group in 100 Mile House, but never told them that the truck occupants had taken weapons and fired at police. He never mentioned a no-go zone because he wasn't aware of it. RK didn't see Montague that day. Montague was at briefings with Olfert. He had nothing to do with press releases and wanted nothing to do with it. He smiles when GW suggests that sometimes the media can get in the way.

RK never told the Attorney General what happened on the 11th. He agrees he would be surprised to see the AG describe the events. He agrees that he is aware of events being politicized and this occasionally happens.

RK never saw the AG being flown into Zulu around Sept. 18 - 20.

Regarding the sniper shooting of Sept. 12, RK reiterates that his downlink was clearer than the video we saw the other day. He says that it was the sniper team that first brought to his attention the person walking to the lake. Within two minutes, RK says he gave the team "compromising authority" - a green light. GW suggests this means shoot to kill. RK says that this isn't the only thing it means, but in this case, it meant shoot to kill. RK agrees that he didn't initiate the idea to shoot. He only authorized it. RK actually isn't sure how this came about, whether he initiated the idea or if it came from somewhere else. He agrees that he could count on one hand the number of times he has authorized a "shoot to kill". RK says he had no problem about the decision he made.

He agrees that it went through his mind about the legalities of shooting a native person. GW sees that in RK's notebook, Sept. 16, there is reference to "Crown Counsel, legality of shoot". RK says that he knew person was still alive.

RK knows that a hollow point bullet expands and rips apart flesh. RK says the ammo was approved by the Commissioner in Ottawa. RK admits that this is at the high end of deadly force. Agrees that there is no such thing as a "shoot to wound." Agrees that when a member pulls that trigger, it's to kill.

L/ DC - DC wonders why explosive device would be used when the elders were on route. RK was not aware that one of the elders had a heart attack when the explosion happened. RK aware that Marlowe Sam and Jeannette Armstrong were involved in negotiations, but is not aware of them being on the RCMP payroll. He was not aware that blowing the truck up contravened Ovide Mercredi's advice to the police to back off.

RK aware that people in the camp were making political demands. He says that they initially brought in the APCs to bring out the members that were "hunkered down", but then the duties were expanded to transport members around. "They weren't an offensive tool, they were a defensive tool." DC: "They were used defensively in an offensive manner?" RK denies this, but agrees that the Bison rammed the red truck in an offensive manner. DC wonders why the green light only referred to armed natives and not to armed non-natives as well. RK says that he only referred to natives in his notebook, but says that in his briefing, he meant that to mean any armed members in the camp. Even if he only said native, he understood that members would know he meant all armed persons.

RK says that despite the fact that the army doesn't allow hollow point bullets, he says that in the RCMP hollow points are the only approved rounds. Tracer rounds are also approved, but solid rounds (full metal jacket) aren't.

MA - MA notes that RK's notes are complete, except for mention of the sniper incident of Sept. 12. RK reads "unknown walking west on Lion armed...shot authorized and injuries unknown."

RK's Nov. 8/95 statement is half a page dealing with exhibits. RK agrees it doesn't deal with anything he has given testimony about, except the exhibits. RK doesn't recall when he gave notes to the Crown. Says it was about a year ago to a member at 100 Mile House.

At Zulu they had a map on the wall, as well as a road map, identifying roads. These maps were posted on the briefing boards. On Sept. 11, he made a map where all the ERT members were. At the Perch, there were a dozen or more members spread around. "Operation Eagle Eye" was a plan to insert members at the Perch. He didn't make this plan. The "birdhouse" was within the Perch. The "nest" was in the same general vicinity of the Perch. Observation Post #2, he doesn't recall. In map drawn by Cst. O'Gorman, #2 is shown on it, but RK doesn't recall designating this.

Sept. 11, at dam, there were a couple of teams, 10-20 members. He checks notes to see who was at Perch. Victoria and Prince Rupert ERT were at dam. Courtney team was at Perch overnight where Special I had set up the video camera. They were having some trouble getting constant visuals. RK says that this wasn't being monitored from Zulu, only from the scene.

On Sept. 12, person by lake heading to lake was posing a threat. RK says he was posing a threat to the members at the west end of the lake.

RK agrees that west end of the lake was 2,000 metres away from man and no gun found at the camp was capable of firing 2,000 metres. RK says that based on the circumstances of the day before with the big shootout, he had a fear for his members. RK agrees that he had information that the lakeside by the dock was a spot where individuals had been spotted going to wash their face.

RK later saw letter and map on morning of the 12th. This is the letter signed by Insp. Hall dealing with no-shoot zone. RK looks at it and says for the record that he saw the covering letter on the late 12th or early 13th. The map is not the same one he was shown. He doesn't recall which commander showed it to him at a briefing in 100 Mile House. He says that everyone involved on the 12th put forth what they did that day. He says that the map he saw was sent from 100 Mile House to Zulu. He was told by Sgt. Gates that the shooting may have occurred in a no-go zone. 15-20 minutes after the shooting, RK told them where person was shot at. He was later told that the person may have been shot at in a no-shoot zone.

RK says that long-term operational plan was a few pages long. MA shows him plans the Crown submitted. RK read long-range plan, but never signed it. RK mentions a member whose name is on the plan. This person filled in for personnel around Zulu, but was not part of the command structure.

F1 and F2 were designations for Wescam planes. At one period of time during the day, two planes were flying at the same time. Wescam wasn't carried on helicopters, only planes.

On Sept. 11, he was in Zulu all day. RK doesn't know who was in helicopters nor how many were flying. Communication Centre kept track of when helicopters came and went. He doesn't know who was in command of Communication Centre.

He was in contact with Rick Hall and ? on a daily basis. It was a group decision to order in four more Bisons.

RK not aware of a lengthy letter Bruce Clark sent to Staff Sgt. Sarich. RK had heard comment that Clark had given legal advice that the camp had a legal right to remain on the land and that it was the RCMP who were in the wrong.

ST and MA defer to further cross-examine RK until they have the disclosures they've requested from Crown Counsel.

SF - says she stands on constitutional law, but that it continues to fall on deaf ears. Says that she and the camp members are victims. SF says that she prefers to argue law, but since it won't be entertained, she has to rely on facts. Since the Crown hasn't passed on all the disclosures, she wants to defer cross-examination until later.

JF - Next witness (#53): Cst. James O'Donnell (JO) - In Aug. 1995, stationed in Chase and part of Kamloops ERT. Stationed at 100 Mile House fulfilling ERT duties until Sept. 21/95.

On Sept. 11, he was stationed with Courtney ERT near the Perch. He had gone into area on the 10th and had been there for about 24 hours. There were about 12 members there. Some were: Wyton, O'Gorman, Klassen, Browning, Jakes, Callander, LeCroix, Paul (last name unsure). On Sept. 11, Cpls. Farrell and Jones from Kelowna Special I showed up to set up observation equipment. They never set this up on the 11th.

On large aerial photo, he points to Perch on south side of lake.

On the 10th, they went there to make sure there was no one in that area. They were to stick around while Special I was setting up equipment. JO wasn't aware of plan to blow up truck until around noon of 11th by listening to radio. At around 2:00 p.m., he observed and heard an explosion. A minute or two after dust cloud, an older blue car came out and stopped in the opening. It was a 70's large car - robin's egg blue.

On small aerial photo, he points to area sightly west (1.5" to left) of eastern fenceline where blue car stopped. He could see some movement around vehicle. He was looking with his naked eye. Next he could hear Bison start up and approach. It was moving west along the lakeshore. Blue car was still in original spot. He heard 10-12 rifle shots, then car turned around and went west and then north back to camp. Shots came from direction of blue car. Shots seemed to come from a medium-sized rifle, like a .308 calibre. Last he saw of car was as it headed towards camp.

On small aerial photo, he shows where he first saw Bison emerge from treeline as it first headed west along lakeshore. Bison stopped momentarily - 15-20 seconds - and then went north into treeline. He couldn't see anyone around the Bison or exit the Bison. He could again hear gunfire. Single and even-sounding shots that increased as the Bison headed into the treeline. Shots sounded the same as what he heard earlier. Sounded heavier and deeper than M-16 sound. He was aware of no gunfire coming from the Bison.

Gunfire continued as Bison disappeared into trees. Ten to fifteen minutes later, a second Bison appeared and turned north to disappear into the woods too. Gunfire calibre sounded similar to that heard earlier. There were single shots as well as automatic fire. "I can't say how many shots or who was doing the shooting, but there was a lot of shooting going on."

JO not aware of gunfire coming from second Bison. After second Bison disappeared, he heard lighter round that sounded like a .223 M-16 round.

Next he got instruction from Kembel to fire onto northern shore of Gustafsen Lake to make noise and draw attention away. Fired 700 metres west of Bison area. Used both M-16 and Sig Saur handgun. He was firing at shoreline. He saw no targets. Fired 30 .223 rounds and 60 9mm rounds. He was with Jones and Farrell at right side of old cabin. Jones was firing his M-16 at same time. On small aerial photo, he points to where he fired at. On road triangle there, he was firing to left leg.

AB/ Without JO or jury.

MA - Again bringing up disclosures. He's been going after Kembel's notes from beginning. At beginning of trial, Defense was only aware of him handling exhibits. Now we've learned that he gave his notes in a year ago. MA doesn't want to have to go to Crown again. Kembel said that there were two teams at the Perch, JO says there were a dozen people there, and the Crown has only given us disclosures of six people there. Some of the names from this witness haven't even been heard before. From JO, there are statements given to Cpl. Kiloh. We don't want summaries. MA: "I have lost all confidence in the Crown regarding disclosures."

JF - says that the list they had was not meant to represent all those people involved at Gustafsen Lake. The names on the list were only of the people they received notes from. Where a name comes up and there are no notes, these are people the RCMP determined had no knowledge of the events.

J asks if a list could be provided of all the RCMP at the lake. JF says the Crown can do this, but not a list of all support people and civilians.

J asks if JO made a statement to Cpl. Kiloh. MA says they just received this statement today because Defense was told that it had been misplaced. MA wants all statements made to the Serious Crime Unit investigators, whether they are witnesses or not. J asks that JF report on this tomorrow morning.

Jury and JO back.

JF cont'd with Cst. O'Donnell - JO saw Jones fire his weapon, but not Farrell. JO moved his location to the opposite side of the cabin. Saw another Bison dispatched from east end of lake. At this point, he observed muzzle flashes in the treeline across the lake. Saw two sets of four and then another two sets of four. Then could see what he thought were bullets landing 30-50 feet in front of the cabin into the lake. On small aerial photo, saw muzzle flashes to right of top of large triangle and slightly up. The flashes appeared to be "side by each" in that location. Thinks that muzzle flashes were about five feet from side to side. Could hear gunshots and sounded closer than the other gunfire going on. He was at the left side of the cabin facing the lake. Several members from Courtney arrived from a base camp set up in woods. He and other members returned fired into the treeline where he saw the muzzle flashes. He fired another 60 rounds. Other members were firing in same direction.

Third Bison came from east and went up to same area as the first two. "It sounded like a war was going on. There was continuous gunfire for about 45 minutes - .223 and .308 rounds, which would peak whenever a new Bison would arrive and then slow down to single shots." During this time period, he was unaware of any shots coming from the south side of the lake.

A fourth Bison came from the west and went up to Bison area. Ten minutes later, all four Bisons came out. He was still outside of Perch.

Overnight, he moved to hillside on west end of lake. On morning of the 12th, he returned to Perch to pack up equipment that would be airlifted out for replacement. Callander, O'Gorman, Wyton and others were with him. Around 8:30 a.m., Callander, O'Gorman and Wyton went into woods. He didn't observe where they went and had nothing to do with them.

Later he observed lone male coming from camp. JO was at Perch and observed man with naked eye. Could distinguish features. Heard three rifle shots. Person went to ground and remained on the ground. He never saw the person again.

HR - When first Bison went into woods, JO says that he thought the Bison hit a mine because of an explosion. He saw blue smoke and he thought maybe it was diesel fuel and fertilizer mixed together. He says it sounded like an explosion, but learned later that the Bison hit a tree. HR says this sounds more like he had been reading about an explosion in the United States. JO says that he couldn't see any of this, but could see blue smoke.

JO says that he had never heard a car explode on a mine before, but HR points out that the red truck had just hit a data sheet mine earlier. JO says there was about a ten minute difference between the sounds and both sounded similar. First explosion created black-grey smoke and second created more of a transparent smoke.

Says he was involved in a similar standoff at Akwesasne and Oka in 1991. His notes say, "I never thought I'd see anything like this in Canada." He agrees that this was worse than Oka.

JO agrees that he is firing 700 metres with his M-16 and handgun. He says that he would be scared of someone firing a pistol at him at that distance. HR: "It sounds rather futile to fire a pistol that far - even stupid." JO says it was designed to create a diversion. "The pistol shot noise will go further than the round." JO has fired an M-16 accurately to 200 yards. HR wonders about the other 400 yards. JO says that he could see the shots hitting the lake. First few shots he fired landed halfway across the lake. He elevated the barrel and then the rounds landed about three quarters of the way. This is where he fired the rest of the rounds. He and Jones fired first and then were joined by others. Six in total. Sixty M-16 shots and 45 9mm shots. Then 60 more M-16 shots. Likely all six fired about 1,000 rounds, he guesses.

HR notes that in JO's testimony, he has divided the shooting he heard into two groups, rather than as a whole barrage. He testified he first heard .308 shots (implying the camp guns), and then heard the M-16 rounds follow (implying RCMP guns). He admits that RCMP also carry 22-250 and .308, other than their M-16. These guns sound very much the same as the .308 sounds he heard and admits he wouldn't be able to tell the difference. He says that no one in his group had a .308, though he saw the RCMP with them. JO claims the sound of their gunfire was designed to create a diversion.

JO's notes say that when Bison went into woods, he thought it was being led into an ambush. Then he thought the APC hit a mine. HR: "Isn't your imagination going into overtime? Aren't you creating all this in your mind?" JO: "No." He says that it sounded like an explosion. HR points out that JO didn't put in his statement that it sounded like an explosion, but rather that it was an explosion. In statement JO made to Cpl. Kiloh, he heard "a massive explosion and saw smoke raise a hundred feet up. Minutes later, I heard that it had been disabled." HR points out that this is reflective of his mindset. JO's statement goes on to say that smoke looked like diesel and fertilizer mixture. He had first heard of this mixture in '91.

Insp. Kembel instructed them to fire across the lake "to draw some heat." JO says command was to fire across the lake, though he fired into lake.

JO says that he was fired on in his location from treeline across lake. He estimates that this was 900 metres away. HR suggests there was no grave danger from this, but JO says he was concerned about it.

"Dense fire" was continuous fire of intermixed .223 and .308 rounds. Says thousands of rounds were fired. There were four Bisons in there total. He assumes that the members inside the Bisons would be carrying M-16s and handguns. He couldn't differentiate the number of rounds of the different types. Thinks it would be equal or so. Agrees that half would be .308 and half .223, though he's reluctant to say it's half and half.

Says that you could fire 60-120 rounds a minute with the M-16. With a bolt action rifle, you could get off 20 rounds a minute or less. Agrees that it's possible that a bolt action could fire only 10% of a semi-auto.

In his statement, he said that he had only fired the M-16 up to 200 metres for accuracy. The initial volley was a ruse to draw fire from the Bisons. The second volley was self-defense.

ST - JO hadn't heard of "Operation Eagle Eye". ST suggests that JO was a bit of a stray in that he wasn't with his team and Ray Wilby. JO says he was asked to assist team leader Wyton and the Courtney team. On Saturday, he was told that he might be sent to Courtney ERT and on Sunday, Sgt. Bravener told him to go. Says that the briefings weren't regular. ST: "I realize the briefings weren't of a Tim Horton donut regular nature, but you did get briefed, didn't you?" JO agrees he did. JO was not made aware of a no-go zone until about three weeks after everything ended. He was listening to radio on the 12th, but doesn't recall hearing about shooting a person in a zone that was guaranteed to be safe for the camp.

JO says that his team members were sending bullets into the same area that he was firing, but admits that later, he could only vouch for Jones and Wyton. JO admits that unless you are firing the weapon, it's impossible to tell where people are firing unless they are using tracers. He agrees that he can't account for where every bullet he fired landed because his experience with the M-16 was only to 200 yards - not the distances he fired that day.

Jury and JO dismissed. J will give decision regarding OJ's bail in a moment.

J back.

J asks for details of conditions. GW agrees that place of residence is with John Hill and that home is alcohol and drug free. J wonders about a curfew. GW says that sometimes there are ceremonies in Vancouver and on the reserve. J asks if John Hill will provide any sort of supervisory role. GW says that Hill is the Sundance Chief and the supervisory role is more of a spiritual nature. J notes that Hill is here everyday and wonders if OJ is planning to come to court everyday. J asks that if OJ is missing, that OJ give GW instructions to continue in his absence until the court can decide whether or not he has absconded. J notes that people being frank about alcohol are frank only in the courtroom. GW says that OJ is prepared to accept consequences should he fail to abstain.

J goes over the background of the old decision, GW's position and the Crown's position. J concerned about someone being held because they don't have financial resources. J says that he has decided to let OJ go, though it wasn't an easy decision because the Crown made a strong case. Wants a surety of $1,000, without deposit. OJ will abstain from alcohol or illicit drugs. Will provide breath samples of breath to peace officer if it's suspected he has been drinking. He is also to remain in jurisdiction.

LB - suggests that there be other bail conditions consistent with the other accused.

GW wants to let OJ go to Alberta for a fast during the upcoming break. J will wait until Friday to decide on that.

J adds that OJ will have to report to bail supervisor, not go into the no-go zone, not be with more than four accused without a lawyer present, and not to handle firearms.

J leaves.

   * Day 54: Monday, October 7         * Day 57: Thursday, October 10
   * Day 55: Tuesday, October 8        * Day 58: Friday, October 11
   * Day 56: Wednesday, October 9