* Day 59: Monday, October 21 * Day 62: Thursday, October 24 * Day 60: Tuesday, October 22 * Day 63: Friday, October 25 * Day 61: Wednesday, October 23
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
GW wants to revisit statement made by JoJo to Tremblay and Russell. GW has learned that Russell wasn't true to what he said. On the first day of Russell's testimony back in June, on page 12 of the transcription, Russell says he told JoJo that his lawyer wasn't available when JoJo asked for Mr. Gibbs. There was no mention in Russell's notes where Gibbs was - only that JoJo wanted his lawyer. Russell said he learned from his partner Tremblay that Gibbs was at a press conference at the Red Coach Inn at 100 Mile House. When GW cross-examined Tremblay, he testified that he never told Russell of Gibbs' whereabouts. GW had an investigator talk to Gibbs. Gibbs said that between 8:00 and 9:00 a.m. he was on his way from 100 Mile House going to Williams Lake. He met with Crown Counsel Hawkins and other lawyers. Gibbs said he was available that whole day. He had his pager on and was in constant contact with his Prince George office. This puts in question what Russell said. Tremblay left the interrogation room, leaving JoJo alone with Russell. It was only when Tremblay returned that JoJo said some things.
GW maintains that Russell lied to JoJo - a person easily prone to suggestion. GW asks how the court should treat a lie. He says that courts in the past have allowed lying by police officers. It's very difficult to explain to the native community that there are acceptable legal lies which are different from perjury. Russell perjured himself when he said that his partner told him of Gibbs' whereabouts.
He says like in the OJ Simpson case, "a lie is a lie is a lie". GW says that he originally assumed that the officer was telling the truth, but now he has learned otherwise. He says now this can be approached in a couple of ways. The J can reopen the voirdire and have the witnesses reappear. This is a serious issue because this whole system is based on truth and the pursuit of truth.
645 of the Criminal Code sets down where the J's jurisdiction lies. The J has the jurisdiction to deal with any matter before the jury is impanelled. J says that this subsection doesn't further GW's argument. GW says that there are no authorities which say that the J can't reopen a decision. This is not a regular case because there were no pre-trial hearings and as a result, no disclosures. GW says this is a Charter violation because the Crown ought to have disclosed what the witnesses were to say. You have to make disclosures in a timely manner. GW asks the J to reopen the voirdire and to accept fresh evidence that Gibbs wasn't where Russell said he was. Cst. O'Donnell's evidence should also be put forward with JoJo's past history in Chase to show how susceptible he is to suggestion. GW says that Russell has to account for his actions.
LB - Regarding whether the J can reopen the voirdire, LB has a case, Regina v. Hunter, that does allow this to occur, despite GW not being able to find any. J assumed there was a case allowing this. But LB says that there are few cases where this has occurred. In those cases, it was only done where there was some misunderstanding about what the law was on evidentiary matters. It's only done in unusual circumstances. But of course, fairness and justice must prevail so the question is, on what basis should it be reopened.
LB has trouble following some of GW's submission. If Gibbs was not where Russell said he was, how does this now affect the credibility of Russell's evidence. In the cross-examination of Russell on June 18, LB notes that Russell never said he had personal knowledge of Gibbs' whereabouts, only of what he was told by Tremblay. During Tremblay's cross-examination, Tremblay said Gibbs was at a meeting, but didn't know where.
He said he heard something about Gibbs being at the Red Coach Inn, but doesn't recall telling this to Russell. LB says that whether Gibbs was at a meeting in 100 Mile House or Williams Lake, it doesn't affect what either witness said because neither said they knew one way or another. So they weren't lying and their credibility is not an issue.
LB says that what GW hasn't raised is the issue of whether the J would have taken into consideration the credibility of the witness when making his decision. Since Gibbs was actually in Williams Lake, he wasn't actually more available than previously proposed. J says that Gibbs may have been less physically available, but GW says he was accessible by telephone. LB says that no matter where Gibbs was, he would have been equally accessible by telephone.
LB doesn't understand the disclosure problems GW mentioned, but J understood this to be an explanation of why he hadn't investigated this during the voirdire.
LB says that the voirdire can be reopened, but suggests that there is no basis for doing so. If it is reopened, then the Crown's submission is that the J consider that as a fact, Gibbs was at Williams Lake and that it ought not make a difference.
GW says that Russell misdirected the young man about the truth and that was something GW couldn't (could) have crossed Russell regarding Gibbs' actual location had he known that at the time.
J would like to reserve the decision until he can examine the case laws.
GW next wants to visit separation of OJ from the others, not declare a mistrial for all. The J already agrees that there is no argument that an accused is due a fair trial. GW says that the thrust of his argument is whether OJ was in possession of a weapon dangerous to the public's peace, never mind the mischief. When his fingerprint is found on a weapon, then this can be explained by the circumstances, but when a record is mentioned, then this is very prejudicial. Even if the jury is told that the reference to a record should be disregarded, it would raise even more questions in the jury's mind. That's the thrust. GW would like to gather the case laws together while the Crown makes its submissions. J agrees.
LB - The witness said, "he had a record for various things." The actual record wasn't disclosed. It is a non-specific statement and would be hard to be misused. It is very obvious to anyone that it is dangerous to speculate on what this statement could mean and suggests that the J could even direct the jury in this regard if necessary. LB has an Ontario ruling for a request for a mistrial where the J dismissed the request. The Ontario J said that prejudicial comments should be looked at in context of the whole. LB suggests that the mistrial be looked at at the end of the Crown's case and not now. In another previous trial, LB reads a decision where a request for a mistrial was denied. LB says that between the two cases, the J should now look at what prejudicial impact a comment might have when there is substantial evidence against an accused. LB says that there is substantial evidence against OJ, including comments he made to Cst. DeMeester about being involved in shootings, a fingerprint on tape wrapped around a weapon and video evidence that OJ was in possession of a weapon. This evidence is so overwhelming that one has to question just how much impact the comments of his record would have on the jury. LB says that this non-specific comment can easily be removed by a direction to the jury.
GW - Notes that Cst. DeMeester also said that OJ had told him that he had collected money on the skids.
J says that GW never asked for that to be edited, but GW says that he was going to cross the witness about this by asking "well don't you all brag anyway?" The J understands GW's point.
GW says that this comment, plus the comment about the record, is very prejudicial. J doesn't want to wait to the end of the trial to make his decision on this and says that he already knows what he wants to do. He will not declare a mistrial, but will give the jury a direction now while it's still fresh in their minds. He will also direct them again at the end of the trial. He will give his reasons after this break.
MB/ J reads his reasons. He reiterates evidence that LB mentioned, including the fingerprint found and OJ's statement to Cst DeMeester. The witness made an error yesterday. In a trial of this size, there are bound to be some errors made. The concern by the Defense is that a direction to the jury will not be sufficient, but that will have to do.
LB - acting as a messenger for Jensen, accountant for the Attorney General - he says that those people that were not at court on the Friday prior to the break will not be paid their per diem for the break. J will allow Defense to consider this.
LB also says that the next witness, Tremblay, showed Lorraine Heinzl photos taken by Ian Flett to help her identify who she dealt with at Gustafsen Lake. LB says that these photos aren't the type normally shown, as in a police line-up. The Crown doesn't want to put the photos to Tremblay, but instead to Ian Flett for identification. LB reiterates for the J that Heinzl claimed she had been threatened by some people from the camp. She identified OJ and Edward "Pancho" Dick to Tremblay during his investigation, but those two weren't in the courtroom at the time she testified. Heinzl said she had seen the most abusive person that confronted her later on a newscast and when Tremblay showed her a series of newscasts, she identified Glen Deneault. But in the courtroom, she was not able to identify Deneault. LB wants to lead Tremblay that he showed Heinzl the videotapes of the newscasts.
DC - He is concerned that the person that Heinzl said was the spiritual person was identified as Percy in the courtroom - a person 30 years older than Dick. J says that he didn't think that identification was a problem before, but now it appears to be so.
ST - Says Heinzl's identification of Percy was later taken back by her, but is indicative of what happens when an improper line-up is put to a witness.
MA - says that Glen is in hospital for kidney failure and asks that he continue to be paid. "But more importantly..." Heinzl was unable to identify Glen in the courtroom. MA cites authorities which will not allow lack of identification to be put in.
J says that Tremblay shouldn't be called because there are too many unresolved issues around him. Break to 1:00 p.m.
GW reminds J not to tell jury that DeMeester didn't "inadvertently" say the wrong thing. J agrees and won't tell jury this.
L/ J has a copy of the warning he's going to give to the jury for the Defense to look at.
DC advises court that he's going in for surgery and will not be back for a few days.
J asks MA if it isn't clear that the Crown's reference case clearly overrules MA's reference case regarding identification of Glen Deneault by Lorraine Heinzl. MA notes that in one of the cases the Crown cites, there was no identification made in the courtroom. MA's objection to Heinzl's evidence is that it isn't relevant. MA can't find any ruling dealing with Heinzl. MA notes that he didn't admit Glen's identity, though DC admitted his client when Heinzl testified. MA explains that Heinzl said that a man came up and swore at her who she earlier identified as Glen. Glen has been charged with weapons offenses and this incident has nothing to do with that and is highly prejudicial.
LB says that it's a little late in the day for MA to say now that the evidence isn't relevant.
HR suggests we hear Tremblay's evidence without the jury and see what his testimony is. J understands that Tremblay will testify that he showed Heinzl a video and she identified a person that she recognized as Glen. J doesn't think it's proper that the witness speak about a video that the jury hasn't seen and then say that she testified that it was a certain person. J suggests that the video be shown and stopped where Tremblay says he stopped it and Heinzl identified Glen.
LB says that the video comes from a collage of news items that he assumed that Defense wouldn't want shown. LB suggests that instead of showing the whole video, he'll just show the excerpt.
Wolverine asks what's on the video that the Crown doesn't want us to see.
HR says that we should just look at that section of the video and then rule on that. J wonders if that should be done in open court with jury.
LB says the video was given to the Defense.
ST reminds the J that Heinzl was shown this video in court and she said it wasn't the one she was shown by Tremblay.
HR says that just a portion of the video could be shown, so the whole two hour tape doesn't have to be shown. J is concerned that if only a small portion is shown, it may not appear to be a fair representation of what she was shown. J wants Counsel to get together and to decide on what would be a fair representation of the video. Court stood down for ten minutes waiting for the next witness, DeMeester.
There is a half hour of waiting around in the courtroom. GW is telling a joke to the defendants. A bug spray salesman shows up at a farm house and tries to sell the farmer some mosquito repellent. The farmer tells the man that in all his years of being on the farm, he's never had a mosquito bite. The salesman tries to prove how effective the repellent is by offering to strip and to spend the night tied to a fence post. He guarantees that if he puts the repellent on, he won't get a single bite. The farmer is impressed by the salesman's conviction, so he promises to buy a bottle if the man remains bite-free. The man strips, covers himself with repellent and the farmer lashes him to a post. The next morning, the farmer comes out to find the salesman still tied up and notices that his eyes are red and wide open. "Well," says the farmer, "did you get bit?" The salesman shakes his head. "No, but doesn't that calf have a mother?"
J back. LB apologizes because he can't find DeMeester, so he can't tell if he's late or not. LB says that MA has asked for the first seven minutes of the video to be played, along with the section that Tremblay says Heinzl watched.
J declares a voirdire and Tremblay is called in.
JF - Next witness: Cst. Maurice Tremblay (MT) - July 12, 1996, MT met with Lorraine Heinzl for the purpose of showing her a video compilation. MT understood that she had seen the man that had threatened her on Aug. 24/95 on a news broadcast. Heinzl made comments as she watched the video. The video is played. BCTV news shows Glock pistol and AK-47 taken from two men "associated with the native Sundance ceremony". Olfert says that during a police probe, a shot was fired that narrowly missed an officer's head. Glen comes on video speaking of the Creator's laws. When he raises his voice, MT says that this was the point where Heinzl identified Glen as the man that threatened her. The video continues and a band councillor claims that the Sundancers are not supported by the native community. AG Dosanjh is then interviewed in the BCTV newsroom who says that he supports the RCMP. He says that his government is moving quickly to assure B.C. residents that they will resolve this promptly. MT says that this is the video that he showed Heinzl.
MA notes that the video repeats itself. MT says that when Heinzl watched it the second time, she again identified Glen as the man who threatened her. MT says that the first time she saw Glen and his voice was raised, she recognized man on screen by saying "that's the man that threatened me at Gustafsen Lake." MA looks at MT's notes written July 12, 1996. "02:12 identifies suspect as Glen Deneault." MT says that he made a typewritten copy for the Crown. "07:25 identifies Glen Deneault in repeat." He makes no reference in his notes to what she said. He showed her a video on Aug. 26, '95, but she didn't identify Glen then.
MT says that she was adamant that the video she could identify man in was of an eviction of a film crew from the camp. That's why he showed her this footage. MT called her and said he had a video to show her regarding the threats made to her. When he got to her place, MT instructed her to note whenever she recognized anyone. MT told her he felt that this footage was what she had said she had seen. He has no notes of the instructions he gave her before showing the video. MT stood down.
MA - would like the video shown up to the end of the AG's interview with sound on. J wonders what the relevance is of the footage of guns being shown. MA says that this is the context in which the identification of his client was made and could have an impact on his client.
GW - says that comments by Chief Bill Chelsea should be omitted by turning off the sound. J agrees his comments aren't relevant.
LB - Says that the video following Glen could not have influenced Heinzl and should not be included.
HR - He doesn't know how this footage was assembled. HR says that if you want to have someone identify someone else, it is fraught with peril. HR notes that it wasn't the image that convinced her, but the voice. We don't know what percentage of voice or face was the convincing factor. The case of Swanson is quite different from this case. HR says that the J has to decide how he's going to show the jury a nicely slicked up video and say this is what the witness identified.
This is more than just identification - this reflects a man's character. A man that is prone to violence. We don't know why the man is angry in the video.
DC - says that Defense is not in agreeance with this matter. DC wants only the relevant portions played because if all the footage is played, it forces the Defense to question Tremblay on all aspects of the footage, like the weapons found that we have since found out had nothing to do with the accused here.
ST - If the jury is told that this evidence is of only marginal significance, then the jury will be wondering why they're watching it.
MA - makes it clear that his objection still stands. He says that the video makes it look like Glen is the only native person in the camp. J wonders if MA can question the witness with regard to this, so it won't intrude on the other accused. MA says perhaps he can do this.
J decides that only the portion with Glen on it be shown and turned off following Glen.
JF - suggests that the fingerprint chart of OJ have the record portion whited out. She has this ready. GW agrees with this. Court stood down while tape is re-cued.
At 2:30 p.m., the jury is finally in. J apologizes "on his knees" and hopes they understand. He thanks the cooperative Counsel that this doesn't happen more often.
JF - Next witness (#59): Cst. Maurice Tremblay (MT) - In Kamloops SubDivision and was involved in the investigation of Gustafsen Lake. He became a type of file coordinator. On Aug. 26, '95, he had an interview with Lorraine Heinzl at Langley police detachment to show her some videos and two dozen photographs. The purpose was to have her identify the person that threatened her at Gustafsen Lake. She identified two people. At the time, she didn't know who these two people were. MT learned later that the identified persons were OJ and Pancho. She said that these two were with a third person who threatened her. At that time, she didn't identify the third person.
The video MT showed her was of a compilation of news broadcasts. Heinzl had informed him that the third person that allegedly threatened her was in a broadcast she saw on Aug. 24/95 at 6:00 p.m. of BCTV reporter Clem Chappel getting thrown out of the camp. When Heinzl watched the videos on Aug. 26, she didn't see the footage that she had mentioned. She did identify OJ and Pancho in the video footage, but again, not the third person.
On June ? '96, he showed her another videotape with more footage on it. Heinzl operated the machine and set the meter to zero before starting. MT instructed her to tell him whenever she identified anyone and he would then note the marker numbers. She identified the person that threatened her and MT knew him to be Glen Deneault. MT doesn't recall exactly what she said except that the person was the man that threatened her. In the two hour tape, she identified a total of three people - OJ nine times, Pancho in one segment, and SF seven times. She identified OJ, Pancho and SF as being there during the incident of Aug. 21/95.
SF tells court that she agrees that she was at the camp, but doesn't need an officer to stand up and say that a person in their living room told him that SF was there. J says that she doesn't have to say this, but it is noted.
Videotape is played. Glen speaking about the Creator's laws. MT says that when Glen's voice raises and he gets more excited, this is when Heinzl identified the man as the man that threatened her. JF has the tape segment marked as an exhibit.
JF wants to have MT admitted as a fingerprint expert. GW says that he admits that MT is an expert and is willing to admit that the fingerprints he took were of OJ.
JF has MT describe his fingerprinting of OJ at 100 Mile House on Sept. 15, 1995. JF submits a copy of the fingerprints MT took from OJ and MT agrees that these are the fingerprints he took. MT explains how the prints are taken and GW says that he's willing to admit that these are the prints taken. JF sees that the jury hasn't got a copy of this paper yet, so she has MT finish his description. A photocopy of the prints (minus the police record parts) is made an exhibit. The jury gets a copy of this.
MT says that on Sept. 17, he was one of the arresting officers who met with camp members that were brought to him in Suburbans. He read two camp members their Charter rights as a videocamera recorded this. MT also told people that they were under arrest for mischief, forcible detainer and attempted murder. The first person he arrested was identified as Grant. MT identifies Grant in the courtroom. MT then turned Grant over to another officer who was taking him to a waiting helicopter. At 4:00 p.m. he took custody of Mary Pena. She too was videotaped, told she was under arrest for mischief, forcible detainer and attempted murder. MT identifies Toby in the courtroom.
MA - MT says that he has been an investigator for three years now and agrees that this includes identifying people. Heinzl came down to the station complaining of an event that took place on Aug. 21/95. MT didn't notice if Heinzl was high strung and says that she appeared normal. MT agrees that normally in identification procedures people are shown a photo line-up as well as a "ballad", which are written instructions for the person identifying people in the line-up. MT agrees he did neither of these things when he showed Heinzl photographs and video footage. MT claims that Heinzl knew why he was there. MA shows MT photographs and MT says that she may have been shown more photos than those in front of him. MT says that she didn't identify Glen in any of these photos, assuming these were the photos he showed her. He didn't make notes of what he showed her. MA asks if this isn't pretty sloppy for an investigator. He says that he just didn't note it down.
There was other footage taken by CBC reporter Brian Fraser that she was not able to identify. MT doesn't know what footage he showed her, except that it was a compilation. MA notes that he doesn't know what photos he showed her nor what video he showed. In June, '96 when he showed Heinzl the video, he says she wasn't high strung again, but agrees he took no notes of this. He made no notes of what she actually said when she identified Glen. He doesn't know who made that tape, except that it was in the files. MT agrees that there were two excerpts with the same image of Glen in it, "so if she doesn't get it right the first time, she will the second." MT: "That's the way the video was made."
MT agrees that in that newsclip, Glen is the only native seen in that entire shot. MA: "It's the antithesis of a photo line-up." MT: "It wasn't a photo line-up."
MT also took statements from military personnel that had let ERT members use army weapons. This was under the order of Shakey and Bass.
He didn't interview anyone regarding the sniper incident of the 12th nor the shooting of Suniva Bronson.
DC - MT agrees that Heinzl mentioned the other two people, but described them as simply being in the background. He was given no instructions regarding how to treat her since she was taking nerve medication. MT said she didn't appear to be medicated at the time.
GW - MT works in Kamloops and agrees that around Kamloops there was the Douglas Lake blockade, as well as the Adams Lake Blockade prior to Gustafsen Lake. His office only dealt with Adams Lake. MT's boss was Shakey. Olfert is higher than Shakey.
MT arrived Aug. 27/95, 2:30 a.m. at 100 Mile House. First involvement was on the 26th when he attended Langley. Shakey directed him there. MT agrees that Shakey directed him to take specific photographs along. Shakey's direction was very specific. He didn't tell MT to ask about a meeting with a Macleans news reporter. Heinzl did mention this when she was speaking with him. MT claims that it didn't interest him that there was a Macleans reporter in the area at the same time, despite the fact that he would have had information on who was in the camp then. MT doesn't know if he told Shakey about the reporter. MT agrees that his role was to find out who was involved in the threatening incident. He also agrees that at this early stage, his office wanted to know who was in the camp at the time.
GW suggests that MT went to Heinzl to put it to her that OJ was at the camp at that time period. MT says that he was only trying to find out who was involved in the threatening incident. MT agrees that he didn't know who OJ was at the time. He didn't show Heinzl any photos of OJ carrying a weapon. He only showed her the photographs he had received on Aug. 26. MT says that the RCMP received the BCTV footage on Sept. 1 by search warrant. GW notes that he had footage prior to this date on Aug. 26. MT says that everyone has TV, implying that anyone could have recorded it. GW notes that MT had access to TV footage on Aug. 26 and MT agrees. MT agrees that he understands that a search warrant is what is necessary to get information. MT says that the video he showed to Heinzl was just a video compilation of news broadcasts. GW wonders why his investigation unit would need a search warrant for footage if they already have it. MT says he understands that the footage the media shows isn't always all there is. GW: "You mean the media edits?!"
MT has heard of Clem Chappel from TV. MT doesn't know who was talking to Glen during the interview we just saw. MT agrees that he was investigating the shooting of officers of Aug. 27, helicopter shootings and the Sept. 11 shootings. MT agrees that he looked at the Suburban mirror two weeks after the Sept. 4 alleged shooting and stalking incident. MT removed the mirror and handed it to the exhibit man. MT recalled seeing the news regarding the Sept. 4th incident, but doesn't recall Cpl. John Ward saying that this is why the APCs were being called in. MT never investigated the mirror. He doesn't recall the RCMP ever issuing a correction to the media regarding this stalking incident. MT wasn't aware that the APCs were called in the following morning.
MT fingerprinted OJ on Sept. 15. OJ was not dressed in white coveralls until after Cst. Leslie seized his clothing. MT doesn't know where the clothes went after this. He never sent the clothes out for analysis. He agrees that sometimes clothing is sent out to check for gunpowder residue. MT says that Cst. Leslie is in charge of exhibits. MT says that ultimately, Sgt. Shakey or Insp. Bass would have ordered the clothing taken. MT says that OJ wasn't being a smart aleck to him, but was to other officers.
MT agrees that this means he's playing around with the police - doing things that are designed to irritate and to test a person's temper. An example is of OJ telling Russell that he wouldn't be fingerprinted.
MT agrees that occasionally, he and Russell had worked together like they did at that time in the cell blocks. MT agrees that Russell is larger than him and of a large build.
MT says that OJ was taken from his cell and to the fingerprinting area. OJ said that he wouldn't be fingerprinted. Russell said that he would talk to his lawyer, Gibbs, and left the room. MT said to OJ that sooner or later, they would get the fingerprints. MT agrees that they would have used force if they had to. OJ then said that he was only joking and allowed MT to take his prints. MT agrees that he didn't know how OJ reacted to other officers. OJ was very cooperative with him.
MT arrested Grant Archie on Sept. 17. The best MT can say is that Grant was at the roadway of the arrest site. MT agrees that Grant told him his name and was not like OJ - he was a serious young man. MT remembers that Grant wore a black leather vest, but doesn't recall if it was seized or not. MT doesn't know if Archie is a common name in that area. He has been in the Cariboo area for three years, but knows nothing of the area around 100 Mile House. MT never saw any surveillance video of Grant. He only saw some photos and Grant on the roadway during his arrest. MT agrees that he was a quiet young man.
No more questions for MT. No more witnesses for the day and the court is (text error - unreadable) A supporter walks up to HR after the court is dismissed and asks him what kind of day he would call today. HR: "A fucking disaster."
* Day 59: Monday, October 21 * Day 62: Thursday, October 24 * Day 60: Tuesday, October 22 * Day 63: Friday, October 25 * Day 61: Wednesday, October 23