Trial, Week 16: Summary - November 12


WEEK 16: NOVEMBER 12 - 15, 1996

   * Monday, November 11 - no court      * Day 75: Thursday, November 14
   * Day 73: Tuesday, November 12        * Day 76: Friday, November 15
   * Day 74: Wednesday, November 13


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

Posted by Settlers In Support of Indigenous Sovereignty


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

Before court begins, Wolverine (W) is instructing Harry Rankin on Constitutional law. HR says that we have to deal with the charges at this court level. W says that the Crown is doing this to cover up for all the theft of resources in this province. HR is called away by a court worker before the two of them get too heavily embroiled in an argument. W says to the sheriff next to him, "it looks like a couple of old guys got up on the wrong side of the bed this morning," and W's laughter fills the courtroom.

There is a new sheriff today. Pancho calls him over and shakes his hand, saying something to him in Shuswap.

Here comes the judge. There is no jury today for today's voirdires.

The voirdire begins.

ST - he asks the J if he has a copy of the Defense submissions calling to make evidence obtained from the roadblock of Aug. 25 inadmissible. The J does. ST says that Crown has asked where the Defense is going with Constitutional arguments. ST proposes that he will go over cases. The main case relies on an Ontario case in which Section 101 was unconstitutional. R v. Dunn argued that there had to be reasonable grounds by an officer before firearms are searched for. In the case of the roadblock of Aug. 25, the officer only searched vehicles because she was told to do so by a superior officer.

There are four conditions that have to be met for an officer to have reasonable grounds. The first case ST brings up deals with the purpose of the search. The officer on Aug. 25 was told to search all vehicles that came to the roadblock that was set up that day. In the early morning, five young natives pull up to the roadblock saying they are on their way to Percy's trailer. This makes no difference to the officer, who makes no independent charge and seizes weapons based only on instructions of her superior. ST argues that in the past, in situations which would have been unconstitutional, the police would create an arbitrary authority and order a subordinate to carry out acts that otherwise would be illegal.

ST reminds the J that only the subordinate officer has been called to give evidence and we don't know what orders may have been given by the superior officer. The Crown has provided only one officer who has no answers for why an arbitrary search was carried out. ST says that we have to know what threads of evidence were available to commanding officers to provide the grounds for the search in the first place.

ST asks what the circumstances were to put a roadblock up on the 25th instead of on the 24th. Or why not on the 18th? There were grounds as early as the 15th. Why not then? ST says that the link by the police between the weapons seizure by fisheries officers on Aug. 11 and the Gustafsen Lake camp are flimsy at best. But this was enough to create a press conference to call the camp members radicals and terrorists. What were the grounds?

ST reminds the J that the Defense has been trying to find out who the decision makers were for the last three months.

ST reiterates the conditions which would allow an improper search and seizure.

a. ?
b. It is acceptable considering the objective. ST says there is no clear objective here.
c. Has the Constitutional right been abused as little as possible?
d. ?. ST says that this kind of suspension of civil liberties is akin to the Emergency Powers Act.
ST says the question then becomes, is there anything to show that these people, at this place, are going to commit a crime? Other than Percy's name and that they were from Chase, there are no grounds. Even the weapons seized were not criminal and possession is never established by any of the five occupants. The Crown is relying on the underpinnings of their argument.

ST says that there was no roadblock to the south of the camp until weeks later. Who designed this? Who made the decision to place it there that night? Why?

ST says that the Defense want to make this evidence invalid. If the J finds it is a Charter breach, then there is no further argument. If it is found valid, then we will argue relevancy.

GW - says that if the evidence is valid, then relevancy is important. GW remembers William Thomas' testimony that there was no control of people going in or coming out. There was also media coming and going. And this traffic was created by the RCMP by having a news conference in Williams Lake in which they didn't tell the whole story, calling the camp terrorists and claiming they fired at police. Olfert never gave the background that his men were sneaking through the bush dressed like militiamen.

This press conference was created to draw all kinds of people to the area. They created the traffic and then waited until Aug. 25th before setting up roadblocks. GW remembers Ray Wilby being surprised that roadblocks hadn't been set up right away. GW says that the RCMP wanted all the activists and all the political people to come in and then they could put roadblocks up and say, "look at all these people, there's a standoff."

GW asks what is so out of the ordinary about a native trying to drive in to an area with a shotgun and a bow. There is no evidence of anyone trying to hide the weaponry or anyone trying to run away when the trunk is opened. What the Crown wants is to infer that the weapons were being transported to the standoff. There is no evidence of even a standoff. This makes the weapons a non-issue.

GW also wants to know who this evidence is going to be linked to. The Crown won't be able to say who owned the weapons. There were five people in the car, so who becomes the owner? The car wasn't even registered to any of these people. The Crown will say that the weapons were being brought in to a standoff. No one would say who's ammunition it was, although the officer testified that everyone was cooperative. GW says that if you look in nearly anyone's car in the 100 Mile House area, you will find a weapon. He says that you can't put a narrow focus on this and say that this will be used in a standoff.

GW says that this comes down to the prejudicial effect, which is very high.

He says that it will be said that these people had weapons and were heading for a standoff. Compared to the probative value, who will the Crown say owns these weapons? Mindy Dick, who wasn't even charged? What is the point of putting this evidence in front of the jury if they are told that none of it is useful.

GW says that the term "standoff" has been created by the police. We have to remember that many people were going in to the camp because there were family members in there, not because they wanted to combat the police. Evidence has shown that the police provoked nearly every incident heard.

GW goes over points that he credits to MA. He suggests that the small amount of weaponry and ammo would be more useful for target practice than to engage with an army of police.

DC - adopts the other counsel's arguments. He stresses that this was an illegal search to begin with - much like officers conducting interviews they know will not be admissible, but they want information anyway.

LB - says that the Crown has already made its submissions. Regarding the Constitutional challenge, he says that the search was admissible. LB says that regarding Defense's argument using Dunn, he did research and found no challenges to it.

ST - asks if he should make his submissions regarding admissibility should the J find the search not infringing on Charter rights. J says go ahead. ST says that the Crown alleges that the officer knew that "a bunch of radicals had taken over land that was legally owned by Lyle James." ST says that the officer could also have known about the information that Findley had found regarding the Band Councils.

ST says that the officer refers to incidents, but there are many incidents that the J hasn't even heard yet. There is also mention that Wolverine and John Hill are involved, but ST asks what the connection is between the five occupants of the car and these two men. There are other points that ST won't even comment on, but ST asks if the superior officer knew of these things when he briefed Cst. Baumber.

J reserves his decision.

MB/ GW - wants to raise the abuse of process argument that he wants to open up after the Crown's case. GW wants to raise the issue of bringing in Montague and the Attorney General, Dosanjh. These people are crucial into understanding what the government and the police were doing.

GW says that the government has used the media in the recent past for their own means. He says that the demonization was so bad that the accused will come across like Waco cultists. Montague conspired with other senior officers to publish the youth record of JoJo. Montague has already given evidence on this. The Crown has just given him Montague's press releases, but there is no mention of JoJo's youth record. It is against the law to disclose a youth record without a court order. J is wondering who made that decision. GW says that he remembers Montague testifying that he was given direction to release criminal records by senior officers. GW says that he is concerned about this regarding the abuse of process relating to JoJo.

GW says that the first time Montague was here, a prima facie offense was committed by releasing the youth records. J asks if it makes a difference to know who gave this order. GW says that this is important to figure out if this was just a mistake or was it a calculated effort to ensure that the accused didn't get a fair trial.

He wants Montague to come in here with all his records, including the CPIC. J says it's no secret how officers get criminal records.

GW says that he just learned that it is alleged by the CBC that Montague told CBC executives that they had to air criminal records because it was a matter of life and death. GW explains that the CBC radio reporter at 100 Mile House was called by Montague to attend and broadcast a police broadcast. The CBC didn't want to get involved in a police matter, but because of things Montague said to the reporter and executives, they did play the police broadcast.

GW says that between the youth records being aired and this broadcast, the police have created a slant to demonize people in order that a jury become contaminated without proper instruction. The conduct of the process is so outrageous, like in the Rodney King incident. It comes to a point that the process suffers. There is a difference between the police making a mistake and doing this and the police purposely doing this.

The way the police went about this is the error and the abuse.

GW cites some cases to back this up. He reads that a witness should be called if it is in the interest of justice. GW says that the J can say to Montague that this is a trial with no preliminary trial and that to get at the truth of the matter, Montague should be called to shed light on the abuse of process. J asks down the road if Montague is called, what line will GW pursue regarding an application to stay the trial based on an abuse of process. GW says that he will be relying on a similar case in Quebec in which Rene Levesque stood up in the legislature and made comments on an ongoing trial.

GW says that he wants to call in the Attorney General, who is commenting on the incidents at Gustafsen Lake. This is alright until Dosanjh begins to call the people in the camp AK-47-toting criminals. Then on Sept. 11, the AG cites incorrect information that the people in the truck fired back. Was the AG doing this in anticipation of laying a charge or was he doing it for political reasons? GW wants to find out the motivation of the AG and that's why he wants him here.

GW also wants to find out how and why the AG gave false information to the public. Was he fed it and by who? GW says that he doesn't think the Crown will even argue this point. GW says that politicians are able to put a spin on it which tells the public that these people are terrorists and the police are great.

J asks why it's then important to follow the chain to find out who told who what. GW says that he wants to show there was a conspiracy to defeat the people in the camp before they even got to trial. GW suggests that it could become clear that after spending $5 million, they had to justify why it was spent. GW says that the AG said these things and it has to be determined whether this was a mistake or whether it was a calculated move to put out a certain story.

GW notes that the AG shows up at the scene to make an outlandish statement that "there is no other side of the story." No process here. This story is open and shut. The AG has to account for his actions. Who told him to go there? The J says that surely the AG made his own mind up on this. GW says that his experience shows that the police constantly tell the politicians to show up to help.

The J asks if it is a conspiracy to invite the AG up to the site. GW: "You bet it is." GW says that the AG had to account for all the money they spent. GW says that we don't know how the decision was made. The J asks if we are going to ask everyone the AG spoke to regarding the investigation to testify.

GW says that if the AG says that he went up there alone, his credibility could be questioned as to what he was doing there. Was he there to give his side of the story or was he there to congratulate the police?

J says that he has to decide on this based on law. GW will get photocopies of the case laws. J asks for a written submission from GW, which he can then put to the Crown too. GW will do this.

LB - has some case law for his submissions which he will put forward now.

GW - Jensen will be here on the 19th and GW hopes that we can set aside some time for monetary matters.

LB - says that they may not have a witness tomorrow afternoon. They're getting to the end of the Crown's case and have less witnesses to fill the gaps. The J understands and says that he's quite surprised about how smoothly this trial has gone considering its complexity.

   * Monday, November 11 - no court      * Day 75: Thursday, November 14
   * Day 73: Tuesday, November 12        * Day 76: Friday, November 15
   * Day 74: Wednesday, November 13