Trial, Week 18: Summary - November 26


WEEK 18: NOVEMBER 25 - 29, 1996

  * Day 81: Monday, November 25      * Day 84: Thursday, November 28-no report
  * Day 82: Tuesday, November 26     * Day 85: Friday, November 29
  * Day 83: Wednesday, November 27


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

A jury member isn't here today so the whole jury has been sent home.

J in.

J says that one of the jury members had urgent personal matters and won't be here today.

GW wants to stand down for ten minutes so counsel can get themselves together.

MB/ LB - says that he isn't ready to deal with the RCMP training videotapes yet, but says that by tomorrow, they will have a good portion ready so there is no point in dealing with them today.

GW - wants to revisit request for Brown and Farrell's notebook which J had ruled inadmissible. GW reminds the J that the long-term plan was rejected by Brown and a short-term plan was put in its place. GW says that it's clear now that the Sept. 11 incident was incited by the RCMP. J asks when the testimony of the plans occurred. GW thinks that it came from Gates, but will check. GW adds that Kembel's testimony revealed that the Superintendents' ranks are payed according to performance. GW suggests that Farrell and Brown's decisions to revert to a short-term plan may have been based on money factors -concerns that the long-term operation might have blown their budget. GW says that this is why their notes are necessary to determine if this was the case.

GW says that yesterday, they received notes from Murray Johnston which show that Brown and Farrell were much more involved than initially put. Kembel wasn't in charge after all, he was only in charge at the site. These notes reveal that ? told Montague not to use the word "terrorists" anymore.

MA - says that Johnston's notes are crucial and wants to know why the Crown didn't make these available at the beginning of the trial. MA notes examples that would have been useful, including the mirror incident, shooting into the no-go zone, the .50 calibre machine gun, etc. MA: "There has been no disclosure in this case. It's been a sham." MA says that all the Crown has produced is a letter from Kembel who says that Brown wasn't there much. MA wants a sworn affidavit from Farrell and Brown to that effect. MA says that there is information in Johnston's notes that is crucial for a self-defense case.

On page 30 of Johnston's notes, there is reference to Brown coming to 100 Mile House where they have a meeting, discuss the Bisons. Johnston talks to Brown later about getting more ERT teams to the area. MA says that the point is that there is information in these notes that would assist in cross-examination of witnesses. MA says these should have been in our hands before the trial.

In early November, they received notes from Madeleine Gregoire, who was there during the eviction notice, and this would have been very useful during Lyle James' testimony. MA says that they have had to ask for every bit of important disclosures and the most useful of this has arrived at the end of the trial when it is the most useless time. This trial is turning into a farce, into a huge pre-trial. MA says that he is getting very frustrated. MA adds that Sgt. Hartl's notes just arrived, which would be helpful for crossing Ryan. MA says that this is a black mark for the justice system.

J asks what MA wants. MA says that he wants a list of documents that the Crown isn't disclosing, as well as a reason for why they are not disclosing it. He wants it immediately. He says an application for Farrell and Brown's notes was made earlier and dismissed, but now there is ample evidence to support it. MA says that this is no way to run a trial.

LB - says he didn't know this was going to be an application for all disclosures, so will only deal with Brown and Farrell. LB says that of course the commanding officer had involvement, but according to Olfert, Olfert was in charge of the operation and takes responsibility for it. Olfert claims he never took any directions from Farrell or Brown that he didn't take responsibility for.

J asks if Brown and Farrell even had any notes. LB says he doesn't know. J says that the impression he had last time was that Brown and Farrell took no role and now he is hearing that they may have given some direction which places them in a middle ground, since subordinates may heed their advice even if they are not given direct orders. J would like to ensure that there are notes to begin with and adds that disclosures are always a live issue.

LB - says that just because people discussed the operation during the investigation, doesn't mean their notes are necessarily relevant. LB says that the Premier, the Attorney General, the Solicitor General, senior RCMP officers and media were involved. He says that it isn't a reasonable request to ask for everyone's notes of who was involved. LB tells J that he will look into the existence of notes by Farrell and Brown nonetheless.

GW - says that the evidence of a long-term plan being rejected by Farrell came from Sgt. Gates. GW says that in his memory, he asked Gates if Olfert wouldn't have been in a better position to decide on the operation's direction.

MA - makes it clear that his position is that Brown and Farrell were not bystanders who just allowed Olfert to run everything. MA says that there is a note of Johnston's that Farrell told Olfert to rewrite some of his plan. Johnston writes that "there is a small group in the camp and the hardcores will have to be killed." MA says this is very important for more questions. MA reads more where Johnston says that Brown tells Olfert to cut off the north area of the camp to keep out infiltrators. MA says that the delegation of power is very important in law.

LB - complains that MA reads these notes out of context.

ST - says that he shares MA's feelings and it could be said that there is a cover-up here. J says that this is a serious allegation. ST says that Kembel had said that on the 12th, he was not aware of a no-go zone. Yesterday, Ryan said that he would have liked to have known about the plan to blow up the truck. J asks what this has to do with disclosures. ST says that we know that on the 12th, ERT members who took the shot were upset that they didn't know about the no-go zone and yet there were some members who did know about the no-go zone. ST wants to know who created the no-go zone, did it exist or didn't it? J says that these are submissions for the jury. ST says that we have heard direct evidence that the no-go zone existed on the 10th, and yet the one person who should have known, Kembel, claims he didn't know on the 12th when he authorized the shooting of a person.

ST says that normally there is an inquiry after such incidents, but not so in this case. ST wants to know how this all happened. J asks what all this has to do with a cover-up. ST says that we are learning about all this information in bits and pieces.

He says that the most disturbing disclosures that have arrived are from Madeleine Gregoire, who has given information about the eviction notice. Had ST known about this at the beginning, he would have had more tools for cross-examination of James and police officers who knew about this. J says that this is still a long way from a cover-up. ST says he's getting to it.

ST says that Gregoire was witness to the cowboys coming to the camp and a shooting incident occurring another day. This information also would have been useful. ST says that these late disclosures have hamstringed the Defense.

J says that he has heard nothing of a massive cover-up. He understands that there are frustrations from the Defense, but he would like ST to be careful with the words he uses. ST agrees that he is frustrated, but without these disclosures, these suspicions can not be allayed. The Crown should be fully open with the notes and the J can decide on relevance afterwards.

J says that regarding the notes of Farrell and Brown, he wants to deal with this in a two-step process. J asks if the Crown will be ready to respond to whether notes even exist first. LB says he will be ready tomorrow.

MA takes umbrage to LB saying that he is misleading the court by saying that the late disclosures are a sham and invites the J to look at the facts. J notes MA's comment.

W - asks the J if these are the same officers who were asked to appear in court in New Westminster in June and instead of appearing, were represented by a lawyer. W says that the federal government has a fiduciary trust to protect the Indian people and LB is being sent here to quash evidence, which W doesn't feel is right.

SF - asks the J to revisit her original request for daily transcripts. She wants transcripts from the beginning of the trial. She says that she can't order them through legal aid. J asks if she has any idea of the cost of this, as he doesn't. She doesn't either. J says that he won't change his decision yet, but will listen to requests for transcripts of specific witnesses. He doesn't want to grant her a carte blanche order for all the transcripts. She says that her memory doesn't allow her to recall everything that happened and needs the transcripts to help her. SF thought that the J had previously said that money was not the reason for denying this. J says that it wasn't the overriding deciding factor. J asks her to be specific with what she wants.

DC - is providing informal notice of Constitutional validity, which sets up the colour of right to deal with the mischief charges. DC says that the mischief section of the Criminal Code puts the onus on the accused to prove colour of right, which he will challenge Constitutionally.

GW - says that he expects that W will be referring to the 1763 Royal Proclamation and Section 25 of the Charter, and says it may be of assistance if the J reads this section to the jury. He reminds the J that W is unrepresented and it may help the jury to understand what W is reading to the witnesses. W is not legally trained and this would help the jury to remain on top of the law.

J says his concern is that he has allowed a lot of latitude to SF and to W, with some objections by the Crown. J is concerned that the jury isn't being helped by the manner in which SF and W put their evidence to witnesses.

GW - says that later, there may be evidence that this land has never been treatied. J says that he still doesn't believe that these kinds of questions regarding the law should be put to police witnesses. He would appreciate it if GW could help W with any questions.

  * Day 81: Monday, November 25      * Day 84: Thursday, November 28-no report
  * Day 82: Tuesday, November 26     * Day 85: Friday, November 29
  * Day 83: Wednesday, November 27