Trial, Week 17: Summary - November 18


WEEK 17: NOVEMBER 18 - 22, 1996

   * Day 77: Monday, November 18         * Day 79: Thursday, November 21
   * Tuesday, November 19 - no court     * Day 80: Friday, November 22
   * Day 78: Wednesday, November 20


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

Posted by Settlers In Support of Indigenous Sovereignty

MONDAY, NOVEMBER 18, 1996 - DAY 77

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

Without jury.

JF - There are scheduling problems today regarding witnesses. She suggests that they not sit tomorrow, so that the Crown can use the time to deal with disclosure details with police.

ST - says that his audio expert will have tapes of police radio transmissions available this time next week. ST also says that regarding the constitutional issues of his application, he says he has further applications which may be of assistance. J says he doesn't think he has any questions, but will hear from ST later if he wants.

GW - would like to make a bail application later today regarding JoJo.

Jury in.

J asks if the jury member requiring time off knows which day. The foreman says Thursday. J says he will schedule other things for that day. He also says that there will no court day tomorrow.

JF - Next witness (#68): Cpl. Colin Farquhar (CF) - 16 years on force. In Prince Rupert now and in the Prince Rupert ERT since 1993. In ERT since '83. Went to Gustafsen Lake to assist in investigation there.

On Sept. 11, he was with Prince Rupert (PR) in Yellow Bison. They spent night at Monkey and Panther. Rick Ekkel was team leader. Six PR ERT members and two dogmen were at intersection providing security there. Ekkel guided two military persons in Bison. Prior to the 11th, CF was aware of a plan dealing with the red truck, but had no direct role in the plan.

On the 11th, he was made aware of the plan going into effect by listening to the radio. He heard an explosion. They moved afterwards to Monkey and Lion in the Yellow Bison and stayed there awaiting further instructions. They got instructions to assist the disabled APC, so went eastbound on Lion. He was exposed out of hatch in forward left hatch. All ERT members were out of the hatch while dogmen were below holding dogs.

Shortly before entering a field, he saw a person 200-300 yards away in the treeline, wearing dark clothing and maybe carrying a weapon of some sort. Person was left of Bison. Person was also heading eastbound just out of the treeline. Person was slouched down as if trying to conceal himself. Person was of average height, 5'10", 170 lbs. Hair appeared dark. He couldn't see face. Person appeared to be looking at the Bison, then the person disappeared. Person was carrying a long object - about three feet long - in person's hands down by the hips.

Bison was proceeding eastbound. CF fired two rounds at person. Mark Evans may also have fired. CF says he fired because in his opinion, person had fired at disabled APC or was on route to do so.

On small aerial photo, he shows that person was just east of eastern fenceline, just in treeline near hole. CF says that he saw an aerial photo before their mission, but hasn't seen one until now. He indicates Bison being in shrub area just west of eastern fence.

When they got to the disabled Bison, two Bisons were already there. He got instructions on radio and then began firing in the two o'clock position. The Bison was pointing westbound. Because of information, they drove westbound to treeline and then circled back to Bisons. During this time, CF threw two stun grenades, with the intent of scaring people back away from Bison's position.

When they first got there, he heard rifle shots from the two o'clock position which sounded deeper than the M-16 fire. During the hookup of the red APC, he maintained his position and fired more rounds at the two o'clock position. He threw two white smoke grenades. Other ERT members were also laying down fire. They followed towed Bisons out of the area and went to Percy's lease. Then returned to Zulu. He remained at Gustafsen Lake until Sept. 18th.

HR has no questions.

ST - CF is a Corporal. He confirms that his description of events on the aerial photo is based on his recollection. ST has CF stand by the large aerial photo. ST suggests that it is impossible to see into the Bison area from where CF says he saw the shooter near the fence. ST suggests that there is a hill between the two areas and that you can't see this.

CF says that if the Bison area is where ST says it is on the photo, then the person he saw in the bush was in the wood copse just west of the Bison area. CF agrees that the closest he could say this person was to the Bison area was about 300 feet.

CF says that as he's heading for the Bison site, he saw a person heading through some bush in the same direction as his Bison - either east or northeast. CF says that he saw the person a minute or less before they got to the Bison site. He thinks the Bison was going about 40 kph. He says that he only saw the person for about five seconds.

ST suggests that as an officer, CF would have to ascertain that the person he was to fire on wasn't a police officer. CF insists that the person didn't look like a police officer and has no doubt that the person wasn't a police officer. CF doesn't know if the person was wearing a flak jacket or not. "It was some distance away."

CF says that the Special I people he saw were wearing ERT clothing. He agrees that Special O people he saw weren't. He admits that not all people there wore the same clothing as the ERT. "I knew there were no police officers in the bush in that area." He says he based this on information from Eye in the Sky. He doesn't know who Blanc is or who was driving his Bison.

ST suggests that Eye in the Sky didn't see a sniper and what really happened was that Blanc had yelled back and said that he saw a shadow in the bushes and that is why CF fired in that direction. CF denies this. CF says that he didn't fire until he heard information from Eye in the Sky. He doesn't recall what Eye in the Sky said. ST suggests he doesn't recall because it didn't occur. He says it did.

CF says that he was providing cover for the people hooking up the Bisons and he was told that there were people in the two o'clock position.

ST suggests that there was lots of firing and chaos and CF only fired because someone told him to. CF maintains that he fired after getting information from Eye in the Sky.

CF denies that people in the Yellow Bison were firing intermittently during their whole approach to the disabled Bison. ST suggests that CF didn't know what the person was carrying and just decided to start firing. CF says that he thought it could have been a gun and felt that the person was a danger.

GW - CF says that in Prince Rupert, he is in administration. CF agrees that Smithers is nearby and he was aware of a large cache of arms found there in 1995. GW suggests that this was associated with a white supremacist movement. CF says that he has no direct knowledge of this. JF objects to this. CF says that during that time period, he was in Haiti. CF says he didn't know anything about this prior to going to Gustafsen Lake.

CF says that he was given very brief instructions before going to Gustafsen Lake. He arrived on Sept. 6th. CF says that on the 7th, he wasn't attacked by anyone. He maintained positions around Gustafsen Lake. On the 8th, he wasn't fired on and agrees that it was basically quiet. CF says that he had information that the camp was making patrols, but agrees he wasn't fired on. The 9th and 10th were also quiet. "I've had no direct confrontations."

GW suggests that during this time he's getting edgy, but CF says that they're always alert. GW suggests this was more a military operation, but CF maintains this was a police-type operation, despite the use of Bisons and aircraft flying around. CF agrees that this plan on the 11th was to be initiated by the RCMP. He agrees that up to the 11th, no one had fired at him or come after him.

When CF hears the explosion, he knows that this was started by the police. He agrees that he heard that shots were being fired when he listened to police communications. He presumes that these were police shots because he could hear them on the radio. He agrees that he never saw any natives come out and take a shot at the police until this day. CF says that now the radio became chaotic and he understood that the police were chasing two suspects.

CF agrees that his adrenaline is pumping and he is alert. When he saw the person in the bush, CF only saw him for a momentary glimpse. CF agrees that, in these kinds of situations, a person could be mistaken when making an observation of what a person is carrying. He maintains that he thought it was a rifle. CF agrees that he was never fired on by this person, nor did he ever see anyone fire at him. CF agrees that he fired two rounds at the person. GW asks how many more rounds did he fire afterwards. CF isn't sure. GW suggests that he's just firing into the bush. CF says that he was firing at the sniper position, though he agrees that he never saw anyone. He denies being told to fire in that direction. "I made the decision to fire to protect the people hooking up the tow cables."

He agrees that he didn't see anyone and that he was under stress at the moment, though he denies that this affected his decision. He agrees that he was firing hollow point bullets at a position about 75 yards away. He just picked a spot, which he suspected was the spot. He claims that he saw a bullet impact between him and Evans on the rubber skirting of the Bison, but agrees that he never saw anyone fire at him. He says that the dogs were barking and the radio was chaotic.

He isn't sure how many rounds he fired. He thinks he fired four to five 30-round clips. About 150 rounds over 20 minutes.

He says that Cpl. Evans was the only other member from his APC also providing cover. GW asks if Evans was going round for round with CF. CF says that Evans was firing about the same, so it would be fair to say that 300 rounds were fired from his Bison. CF doesn't recall Evans saying to him that he saw someone.

CF says that all the other members in the Yellow Bison fired at least one round. He say Cst. Sellers fired at least one round at the time CF was firing at the two o'clock position. CF can't really say how many rounds were fired. He says he has no trouble admitting how many rounds were fired from the RCMP.

CF agrees that when he dropped down to reload, another member would replace him above and also fire in the same direction. CF agrees that he isn't the only officer to fire at the two o'clock position. GW suggests that all six ERT members fired 150 rounds at this position, but CF denies this. Some may have fired more and others may have fired less.

CF agrees that he threw out smoke canisters with the idea of concealing their position. He has experience with smoke grenades from his ERT work. He knows how much smoke these put out and when to use them and when not to. CF agrees that there was no concern about a fire because he looked over the terrain and saw it wasn't tall grass. CF says that he didn't throw them far, only 30 or 40 feet away from the Bison.

MB/ Without jury.

DC - says that Sheila had to travel to Chase to go to her doctor and would like to have the $40 continue to be paid to her. J agrees.

GW - says the same thing regarding Suniva, who is in the hospital. GW says that regarding JoJo's bail review, he has talked to JF and he would like to push it to another day because they have to deal with the Mental Health Act. J tells GW to raise it when he's ready.

Jury in.

GW cont'd with Cpl. Farquhar - CF agrees that after the disabled Bison was towed out of there, they went to Percy's lease to pick up other officers. CF says that he didn't discuss with them how many rounds they had fired. CF doesn't remember how many extra officers went into the Bison. He says that there was a lot of equipment put into their Bison and maybe only six officers got in. Afterwards, they went north on 1000 Road.

CF recalls that the Bison stopped on the road. CF agrees that when they stopped, they were not under fire or under threat from any native people. CF doesn't know why they stopped there. Once they stopped, he learned that some members were going to be airlifted out, so they wouldn't have to drive up the same road they just came from.

On the 12th, CF and team returned to area to re-establish their post. He and Evans went 200 yards west of the Perch. He was there early in the morning. When he was there, he doesn't recall hearing a shot being fired from the Perch to the other side of the lake. CF confirms that no one from the camp took a shot at them or approached them. He says that they left Williams Lake at 4:30 a.m. and it took about an hour to get to the Perch.

CF doesn't recall who was at the Perch. He doesn't recall any reports of anyone firing at the encampment.

On the 13th, CF agrees that no people from the camp came out and fired at him, nor on the 14th, 15th, or the 16th. CF agrees that the only time he fired his weapon was on the 11th and this was the only day he saw someone there, which was when he fired at this person.

CF recalls the RCMP Commissioner coming in to check on things to see if the operation was going as it was supposed to. CF says that the Commissioner never came out and talked to him or his team.

DC - CF doesn't recall when he heard about the plan to cut off the red truck. It happened at a morning briefing prior to the 11th - probably a day or two before. He heard on the radio that they may try to cut off the truck, but he wasn't aware how. CF says that from the radio, he learned that the explosion he heard was part of the plan, but didn't know if it was used on the truck or as a diversionary device.

At the same time, he was aware from radio transmissions that negotiators were on their way to the camp.

CF agrees that the person he described in the treeline was moving through it. DC suggests that the person could have been travelling in the direction of the camp. CF agrees that he testified that he saw a person "who may have been carrying a weapon." CF agrees that this is when he fired. CF says that Evans was the person who drew his attention to the person in the treeline, but doesn't recall if Evans fired while CF did. DC wonders why it is that CF doesn't know if Evans fired. CF says he just doesn't recall.

CF says that when he reported this to his other members, he told them that he fired at a person who was armed. CF says he said this because he believed that the person was carrying a rifle. CF says he fired after the person ducked down into the shrubbery. "I hate to characterize this as a warning shot, but this is essentially what it was." He hoped that the two shots would keep the person from firing at the Bisons. He says that you're not trying to kill someone as an officer, you shoot them to stop them from doing what they're doing. He agrees that he was trying to kill this person to stop the person from firing at police.

DC suggests that from the stand of trees near the fenceline to the Bison site would take about a minute to travel in the Bison. CF agrees. CF agrees that the person more likely would have been in the large group of trees south of the camp.

CF agrees that he threw two stun grenades. He says that in his statement, he wrote "diversionary device", but called them grenades here because most people don't know what you're talking about when you say diversionary device. This was the only time he ever threw a stun grenade. He knows of no one else who used one. He didn't hear any stun grenades in the night, nor did he see any flares, as DC suggests.

MA - MA says that CF has 11 people in the Yellow Bison. CF says that there were 10 - six ERT, two dogmen and two military people. MA suggests that Ekkel fired 10 to 12 clips (400 rounds), but JF objects to the manner MA puts it. CF says he only recalls Sellers firing. MA suggests that the Yellow Bison ran out of police ammo and used army ammo. CF says that this is likely, as the ERT had only two mags. MA suggests that there were members below who did nothing but load magazines. CF remembers asking one dogman to load a magazine for him, but doesn't know if the two ERT below had only one function - to load mags. CF says that the two members below were too afraid to stand up, so they ended up loading mags.

CF knows of Special O members, but doesn't remember when he saw them. CF was made aware of a safe zone at a briefing at Zulu. CF says that his ERT team was at that briefing, but doesn't recall who gave that briefing. It may have been his leader. He was shown a map and was told that the fence lines were the boundaries. They were told not to shoot anyone within the fence lines, whether they were armed or not. He says that the team leader handed out the maps.

MA shows CF a map that has been marked for identification. CF says that this wasn't the same map he was shown, though it was similar. He says the map he was shown was the same one initially given to him and then marked with the safe zone boundaries. He says he thought he still had the map, but can't find it now in his ERT gear.

CF heard about the safe zone on the radio before the battle of the 11th. He doesn't recall if it was on the team radio or if it was a general broadcast.

SF - CF agrees that he arrived on the 6th and was briefed by his team leader. CF says that Lyle James was described as the tenant occupying the land. He understood that the natives had permanent structures there that they were not supposed to have. He understood that negotiations were ongoing when he got there.

SF reads from a part of the radio transcript of negotiations which said that when this matter is addressed by a third party tribunal, "then we'll see who the real squatters are." CF wasn't aware of this conversation.

CF says that they weren't given transcripts of the negotiations. CF denies that he was there to evict people from the camp - he was there to keep people from going in or keep them from going out while negotiations were going on. SF suggests that he knew that the overall plan was to evict the people. CF says that his job was to maintain position while negotiations were going on and to "avoid contact".

SF asks if CF was aware that people in the camp were saying that things would be resolved peacefully when this case went to the Privy Council. CF maintains that he wasn't privy to the negotiations that were going on. No more questions.

Cpl. Farquhar stood down.

MA - Sgt. Ken Gates (KG) is recalled from Sept. 16. KG agrees that he was part quartermaster and part of the command team. KG agrees that he ordered 20,000 rounds of .223 ammo. MA says that KG had testified that he didn't have notes of this because he would just call Frances Christofoli. Bill Ingram was stores person sent to Gustafsen Lake. MA says that he had asked the Crown for notes by Christofoli or Ingram, but they haven't been provided. KG says that Christofoli told KG that her notes probably went into a computer log and she doesn't know where her handwritten notes would have gone. KG agrees that he is the quartermaster, but claims that he would only have some information of ammo. KG has no idea how much was expended. He might know how much was requisitioned, although he didn't keep a tally. KG claims he only heard of the request for notes regarding ammo last Friday and has no recollection of MA's request in September.

KG says that there are forms that deal with ammo, but isn't sure where these forms would be now. He says that when Ingram came on site, he would have handed all his forms over to him, including the ammo requisition. KG says that he will request these notes from Ingram.

MA asks that he also check on the computer records of Christofoli.

L/ MA cont'd with Sgt. Gates - KG has no personal knowledge of army ammo being used. MA points out that the army charged the RCMP for 2,850 .223 rounds. KG says that this bill would have gone to administration.

MA says that we learned last week that a .50 calibre machine gun had gone up to Gustafsen Lake. KG wasn't involved in procuring it, though he recalls hearing about it. He says Brian McConaghy from the lab would have brought this up.

KG agrees that he was involved in the formulation in some of the plans, though he didn't have final approval on them. KG agrees that he was part of the command structure and was part of the planning. MA says he has five operational plans that bear KG's signature, but there doesn't appear to be any references to plans in KG's notes. KG says that he has a reference to an ops plan. KG looks over the various plans MA puts to him. KG recalls the arrest plan. KG agrees that there is another plan to tighten the surrounding perimeter and that he was involved with this.

KG says he met with Dennis Ryan a number of times. Olfert was at the top. Hall was in charge of ERT. Assistant Operations Commanders were Edwards, Moulton and ?. Bravener and KG were operational support members.

KG believes that notes were taken at briefings, but he doesn't know by who. He went to Kamloops on Aug. 20 and to 100 Mile House on Aug. 28th. He believes that there was a plan, which was aborted, to assault the camp on the 28th.

DC - KG says that there is a difference between the .50 calibre sniper weapon that he inquired about and the .50 calibre machine gun that was brought up. He says the request for the sniper gun was denied. KG agrees that bringing up a .50 calibre machine gun is quite extraordinary and would have required high level approval, but he was not involved in any meetings making this approval. He says that just because he was a quartermaster, doesn't mean that he was involved in procuring everything. He doesn't know how the .50 calibre machine gun was to be used and is aware of no one trained to use this.

ST - KG agrees that usually two briefings were held a day and assumes that he made note of them because of their importance. KG was aware of a proposed safe zone, but he doesn't know when that was sent in to the camp. ST shows KG Hall's map and KG says that it isn't the same map that was displayed at the command post. KG agrees that the same safe zone was indicated on both this map and the one displayed at the command post. KG believes that he saw Hall's letter that ST puts in front of him, but can't be sure. ST asks that this letter be made an exhibit. It is.

KG agrees that there was an earlier plan that was considered to tighten up the perimeter. KG denies that this was part of a way to lay siege on the camp and says that this was a matter of bringing his people closer to the camp area.

ST suggests that once the command group had come upon a decision to create a safe zone, then they would have wanted to tell the people in the camp about this so they would know that if they went out of the zone, they might be arrested. KG doesn't know when this safe zone information was made available to the camp, nor when it was told to other officers.

KG doesn't know if a safe zone had to be established in order to take out the truck, so the police could claim that it had gone beyond the perimeter.

KG doesn't believe that one person was given the responsibility to tell the people in the field about the safe zone. He says the standard way of getting information out was to tell the team leaders and they in turn would brief their teams. He says the team leaders were briefed prior to their teams going out to the field. KG agrees that either Moulton, Edwards or ? would have briefed the team leaders, depending on who was at Zulu on the 10th. KG was not aware of a directive ensuring that all members be told of the safe zone.

KG agrees that Wyton and O'Gorman spoke to him at Zulu. He claims they were there to discuss problems within the team that required that they be flown out of the area. He doesn't recall them speaking about a shot being fired on the 12th at a camp member. KG agrees that Wyton is a personal friend. ST suggests they had a discussion about this. KG says it's possible, but he doesn't recall. ST suggests that this was a heated discussion. KG says he would have recalled a heated discussion. ST suggests that he spoke to Hall at 9:30 a.m. telling him to ensure that all members were told of the safe zone. KG doesn't recall this, nor that they spoke about the Criminal Code.

KG agrees that whenever a weapon is discharged a report is made, as per normal police practice. ST suggests that on the 12th, a camp member went down to the water to wash and he was almost killed by a police .308 sniper bullet. KG recalls this. ST says that the police who fired were upset because they had got permission to shoot the person by Kembel. KG says that ST would have to speak to them. ST says that these men testified that they were upset because they were the trigger men to do something that they would have never done had they known about the safe zone. KG maintains that he still doesn't recall this conversation with Wyton.

KG agrees that there probably would have been maps on the bulletin board at Zulu that clearly would have delineated the safe zone. KG says that this map may have been photocopied by team leaders and handed out to ERT members. He doesn't know why it wouldn't have been. KG still doesn't recall Hall telling him to ensure that all members were made aware of the safe zone, but says that if he was given direction to do something by Hall, then he would have likely done so.

KG agrees that Wyton was part of Operation Eagle Plan and that the members at the Perch had radios, but he doesn't know if their radios were working well or not. ST suggests that Wyton and O'Gorman asked KG if he was aware of the safe zone, but KG can't recall. ST suggests that Wyton then said that Kembel had given them clearance and again, KG can't recall. He also can't recall if they then discussed that the reasons why they would have been given clearance was because the person was walking in the direction of ERT members.

SF - KG was aware that Bruce Clark was going into the camp. KG says that he was briefed on Clark going in. SF asks if he was briefed that Clark was concerned that people were being illegally evicted from their own homeland. He wasn't. Nor was he aware that Clark was saying that the issues had to be dealt with by the law - international law.

SF finds a note of KG's that says "want to go in." KG says this referred to someone who wanted to go in. SF finds a note from Sept. 9th that says "address diehard - voice out here not dead." KG says diehard means...? KG looks through notes. He says that the negotiator team briefed the command team every day. He maintains that there was a distinction between the negotiators and the operational team. There is a note from the negotiators congratulating the command team for a good job on Sept. 4th. KG can't recall what they were complimenting them about.

SF suggests that on the 3rd, Ryan spoke to the camp and asked if there was anything else the camp wanted to tell him about where the camp had to go for their necessities. SF suggests that the negotiators were thanking the tactical team for providing them with information. KG says that SF would have to ask Ryan.

KG says that the negotiating team was separate from the tactical team, though they all worked together. KG says that he didn't work with the negotiators in the camp.

SF asks about a note from Sept. 6th that says "belt fed MG" and "burying 15 in the camp". KG can't find this page. SF brings him her copy. KG says that the 15 people refers to the people that they know about in the camp.

Note of the M-16 bullet catchers refers to a device that was requested which mounts to the rifle to catch spent casings. He eventually got eight of these catchers.

KG agrees he ordered 20,000 .223 bullets. SF asks about "3,000 338 Winchesters". KG says this was to do with a request of how well these rifles fired. He says they didn't get any of these. SF goes back to the note of "belt fed machine gun." KG says that this note is not in the same order in his notes as it is in SF's copy and knows nothing about it. He says it may have been an intelligence note.

SF asks about his note to "maintain mindset." KG says this was about remaining focused.

KG agrees that he ordered 20,000 rounds on the 12th. SF asks if he is aware of a newspaper report that said the police had fired off every round in western Canada. He was not aware of this. He is aware that they ordered more from Regina.

KG says that the camp may have contested the jurisdiction of the police. He says that the RCMP were following the laws of the land. SF reminds him that this includes constitutional law. SF asks if he is aware that the camp told the police every day that they wanted a rule of law solution by a third party tribunal. KG was aware of a request for a tribunal.

Sgt. Gates stood down.

J tells jury that there are two items which have now been marked as exhibits - the M-16 and the Shuswap Declaration.

The jury is dismissed for the rest of the day.

AB/ SF - asks if before the J makes a decision on Wolverine's bail, that a friend of the court may make a submission. J agrees.

David Emery (DE) comes forward as a friend of the court. DE says that it appears that the only reason that the Crown wants to keep Wolverine (W) in is because he said that he wants to "make Canada pay." DE goes back to the negotiator tapes. DE reads and notes that W will take this all over the country to make Canada pay. J notes that HR already made this point. DE asks how addressing the law can be a threat. DE says that this is only innuendo. "Everyone who knows Jones knows that he isn't a terrorist." DE points out that officers have also said that they don't consider Jones a terrorist.

DE says that he is a Canadian and he also believes that Canada has to pay. "This doesn't make me a criminal, does it?" DE says that W was only making a legal point that Canada has to pay. DE says that he sees no grounds for keeping W in. This has been a great strain for him and his family. End of DE's submission.

J says that he has considered HR's powerful submission regarding W's bail. J says that he has considered the evidence of the trial and unfortunately for W, the Crown's case is no different than what the Crown alleged it would be. He says he respectfully has to decline the submission for bail. J stands down until Wednesday.

W isn't very happy. He tells HR that he won't be needed anymore, as he is led out.

   * Day 77: Monday, November 18         * Day 79: Thursday, November 21
   * Tuesday, November 19 - no court     * Day 80: Friday, November 22
   * Day 78: Wednesday, November 20