Trial, Week 19: Summary - December 6


WEEK 19: DECEMBER 3 - 6, 1996

  * Monday, December 2 - no court       * Day 87: Thursday, December 5
  * Day 86: Tuesday, December 3         * Day 88: Friday, December 6
  * Wednesday, November 27 - no court


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

LB - is here to deal with parts of the videos that have been edited which the J has now seen. LB has created a list of the edited items for the Defense should they want to argue for their release.

LB wants to discuss the most obvious matters first for privilege. Video A2 has a 15 second bit of conversation dealing with other investigations which has nothing to do with this investigation. LB explains that these videos were not created to gather evidence, but because this was an unusual incident the RCMP wanted to be able to reference it for future incidents like it.

ST - says that the Defense was going to deal with Crown's privilege, but LB is going forward with only arguing relevance. Regarding this reference, as long as other investigations have nothing to do with the accused, he has no problem with it not being disclosed.

MA - says that he has no problem with deleting telephone numbers and unrelated investigations. There is, however, some reference to "possible tactical plans to take over the camp" that were not implemented. LB thought that ST was going to argue this. MA says that ST is going to deal only with privilege, not relevancy.

ST - goes over the phone numbers and unrelated issues that the Defense will not seek to be made evidence.

DC - says that there is no question that unrelated matters will not be sought, but if there are references to John Hill or Mr. Ignace, then the Defense will want this.

J asks what the Defense position is on discussions that might deal with accused regarding investigations that don't have to do with Gustafsen Lake.

DC - says that they will want them because it could affect the accused in how the RCMP dealt with the accused.

LB - realizes that he will have to argue everything except phone numbers. J says that this would be wisest.

LB starts at the top.

- discussion between two members discussing possible tactical plans to take over the camp, as well as APC specifications. LB says that every discussion is not necessarily relevant. The argument that this can be used for an excessive force or self-defense argument is weak - otherwise, the entire police force would have to be called in to discuss every conversation they had.

- starting at 1:13, there are discussions of other investigations. Disclosing this could jeopardize those investigations.

- Tape 4 - an officer's personal views on the safety of recovering the Suburban and the risks of doing so. LB says that personal views are not relevant.

- 1:20 - negotiators discuss the use of Mercredi as a third party intermediary. LB says that this has the possibility to embarrass, but the main point is that it is not relevant.

- negotiators discuss the use of Bruce Clark as a third party intermediary. Again, these are personal views and are not relevant and will only embarrass them without any probative value.

- more Clark discussion where someone mimics someone else in jest. Not relevant.

- more Mercredi discussions. Not relevant.

- talk of another person's views of Clark which have nothing to do with this case.

- same types of Clark comments.

- member using foul language to describe a camp occupant who is not an accused. LB says that this is not useful for anyone.

- member's personal view of Mercredi's view of Clark. This is a third party's view of a third party.

- member makes jest of media coverage. This isn't helpful.

- member uses foul language in describing views of whether he thinks a person in the camp will come out. LB says that this is only one member's point of view. If this is allowed, then the Defense could ask every member what their personal views are on every issue and every accused.

Tape A12:

- members discuss various tactics that were never used. LB concerned that this could lead Defense to ask for everything that was considered, but wasn't used.

- in the same discussion, members discuss the same as above.

- phone numbers of RCMP. DC says there is no issue here.

- members discuss the possibility of intercepting phone calls of Clark if he becomes a third party. LB says that the only issue here is whether there were interceptions or there weren't and the Crown has not led any such intercepted conversations.

Tape E5?:

- instructions are given to ERT members to protect themselves from "a variety of things" in the bush. LB says that this was an impromptu lesson and these kinds of things shouldn't be disclosed. LB says that officers utilize all the training they get and to say that this is relevant is to say that all their training is relevant.

- a conversation of using flak jackets and radios by the Shuswap Liaison Committee. This follows another conversation and would only be embarrassing.

- more phone numbers.

- discussion of using a third party to get Suniva Bronson out of the camp. There is no relevance here and could compromise the third party.

Tape E15 - E17:

- member describes Clark's appearance in court. There is a description of a third person and includes personal views. LB says that Clark's conduct in court has no bearing on this case.

- 17:50 - a discussion of gathering intelligence.

- comments in jest when the last occupants will come out. These personal views are not relevant. J says that he believes that the comment is of when the last person came out.

- another police investigation.

Tape C1:

- discussion of Ray Wilby's interview to the media and its effect. LB says this is only one member's point of view.

- talk of danger to RCMP if APCs aren't brought in fast. LB says that the issue here is that the APCs were used and a personal view of the delay is not relevant.

- an excerpt of a voice that makes a personal view of the search of the camp.

These are LB's submissions. He says that just because a video is made available doesn't mean that it is relevant. The Crown has released many things simply because they were asked for and there was no opposition, but these things aren't necessarily relevant. He's not saying that there is no relevancy in the 50 hours of videotape, but most of it is innocuous. He says that in most instances, when notes are made, there is a lot of freewheeling conversations going on.

W - says that the Crown has picked up on every comment that he made, but doesn't want to do the same with the RCMP. W says that he would like to see the people who say things about us face to face. The Crown is trying to keep from embarrassing the RCMP. He says that the videos show all the lies of the RCMP. They've been asking for the videos and right at the end of the Crown's case, they make it all available to save face to make it look like they gave full disclosure.

W says that Clark was being discredited by Webster and others. Now the Upper Canada Law Society has cleared him of all charges and yet the Crown has kept us from being able to use Clark. We want to use Constitutional law, but the court doesn't want to hear it. When we stand on law, Constitutional law, how are we going to get justice here? "Do we have to jump over your head to get a third party tribunal to get justice?" J thanks him for his comments.

ST - says that regarding LB's list of conversations, it's important for him to know who is making these comments. There is a difference between a Constable's comments and a Superintendent's. In the first item, we already know about a plan to take over the camp that was abandoned after the Suburban incident on Aug. 27. ST says that it's not clear to the jury whether there was a plan to go in or there wasn't. They jury is entitled to know that there was such a plan. J assumes it is the details of the plan that the Crown likely has troubles with. ST says that it's important to know what the police were really going to do. If the camp believed that an attack was imminent, then cutting down the trees could be an act of self-defense.

ST says that regarding the clips of other investigations, it's important to know if there are negative matters regarding his clients.

Regarding the negotiators' concerns of Mercredi and Clark, these are relevant because Ryan testified that they had to decide on suitability of people.

ST says that Olfert later says that they "sent in the clowns" before they sent in the right people. ST wonders if the police did this on purpose to gain intelligence or incite things. Personal views are necessary to know to compare to witnesses' testimony.

Regarding mimicking, there is a difference if a Constable does this or if Olfert does.

ST says that earlier witnesses have testified that they were told to leave psychological playing cards around by either their team leaders or the psychologist. Personal views could assist here.

ST says that there is a question of whether the police treated Clark like the camp's solicitor or otherwise.

Regarding tactics on the ground at Gustafsen Lake, these could be helpful for understanding what the police were told about what they were facing since there have been witnesses who have thought there were rocket launchers in the camp.

Regarding flak jackets and radios for the third party intermediaries, this reflects concerns for their own safety and makes one wonder why the police sent them in.

MB/ E13 - ST not concerned with this.

E15 - ST not sure that Clark's court visit happened after people came out of the camp.

ST goes over a few other items that don't give him much concern.

Regarding the Wilby interview, ST says that GW has made much of the use of the media to control public perceptions. The jury has already seen the video of Wilby's interview and if the person speaking about this is from the command structure, then this is highly relevant.

Regarding the APCs, ST says that the Defense knows that the APC used in the red truck incident was used without knowledge of the superior military commander. J wonders how comments of the APCs relate to this issue. ST says that it will be up to the jury to decide whether the police contravened the restrictions put on them with regard to the use of the APCs. These comments might reflect the police attitudes.

Regarding the searching of the scene, the jury could find that the weapons cache under the tree and the pipe bomb were unrelated to the camp if they find that the police search was improper. The Defense could decide to call someone regarding the search based on these comments.

DC - says that withholding this evidence on the basis of relevance is not proper. He says that it should be disclosed first and then the Crown can argue that they have Crown privilege. DC says that this is more relevant than what the Defense has already received. DC says that although LB claims that attitude is not relevant, DC says it is - especially with regard to self-defense. Attitudes are important to understand the types of force they were using. DC says that ST's suggestion of delineating comments made by police only by rank isn't useful and DC feels any evidence that reflects attitude should be disclosed.

DC says that the tactics that were not used are just as relevant as those that were used. If there was a less violent option that was discarded, then we should know that. DC says that if we were dealing with a barroom brawl, the attitudes of those in the fight would be important and embarrassment would play no role here. J agrees that if he finds things relevant, then embarrassment would play no role in his decision. DC says that we have to look at fairness. The Crown has made many issues of things that occupants of the camp said in emotional states. Some things were said in anger, and the jury will consider this when assessing attitudes. To only have the police testifying in calm attitudes, then that would be a sham. If these tapes show the police's real attitudes, then the jury should see this too.

DC has trouble with not seeing the tapes and only relying on a typewritten summary provided by the Crown. DC cites the Wilby interview in which following his rational testimony in court, the video was played where he tells the media that he would have called in the F-18s and killed the people in the camp. This reflected the truth more thoroughly than Wilby's testimony alone.

MA - adopts DC's comments and compliments them as persuasive and elegant. MA says that the J is obliged to get into the Defense's heads when assessing this. J agrees that this is a shortcoming in the Stinchcomb rules. MA says that the accused should be given the benefit of a doubt. MA says that the J should consider that following this, natives may feel that this was a coverup to protect the police. He says that the Crown doesn't want to put the Suburban issue forward because there are no accused charged with this and yet the Crown led this evidence in front of the jury. MA agrees that attitudes are important to consider. Regarding Bruce Clark, it's important to understand whether he was denied as counsel to the accused. He says that this case has been run assbackwards and a voirdire should have been held to decide whether the accused were denied access to their lawyer.

SF - says that her personal views led her to Gustafsen Lake because she didn't feel that the hereditary faithkeeper should be abused. She didn't go there to commit crimes, she went there to prevent crimes already in progress. She adopts the other counsel's comments and says that this video is the most relevant disclosure to come out.

LB - says that he did not remove policemen's racist comments from the videos as W suggested. Regarding ST's submissions, he doesn't feel that the witnesses gave personal opinions improperly. Just because it wasn't objected to doesn't mean they are relevant. Regarding the playing cards that were used, LB says that just because things are in the court doesn't make them relevant. Regarding the flak jackets and radios, just because it raises a curious question, this doesn't make it relevant either. Bruce Clark's actions in the court are not relevant to any of the accused.

LB says that everyone's attitudes aren't relevant despite the Defense's claims. Regarding the comments made of the search of the camp, LB says that there is nothing in the personal views which go to the issue that there was a lack of continuity in the search.

LB says that DC's claims that all the tapes are relevant were made very strongly, but this is not so. The few opinions in this video cannot be made relevant just because they were recorded or else the Crown would have to solicit all the personal views of all the officers. As far as revealing all the tactics, whether used or not, this too would require the Crown to find out every tactic considered, which wouldn't be relevant in the end anyway.

Wilby's video interview was in fact put to the jury, but his personal opinions are not relevant.

LB says that there is no evidence of a coverup as MA suggests. LB says that disclosure is not disclosed simply because there is a perception of a coverup. LB says that MA's suggestion that Clark was refused as counsel is not an issue in these tape segments.

ST - says that there is an obligation on the Crown to disclose all known evidence.

Glen Deneault says that the comments made by the police reflect the state of mind of the police.

W - says that the negotiators were aware that third party intermediaries were on their way to the log when the red truck was going to be blown. W says that he believes that the third party intermediaries were supposed to get caught in the crossfire and this is why they were refused flak jackets. W says that Clark has represented him since 1990 and that he is in good standing with the Upper Canada Law Society. He would like to submit the statement made by the Law Society which vindicates Clark.

J asks LB to indicate on the list who the speakers are on the video. LB will.

L/ LB says the only outstanding issue is the criminal intelligence file. The RCMP are not prepared to disclose it and the Crown says it isn't relevant. He says that this is a standard file created in all criminal investigations as a depository of suspects, people linked to suspects, or possible links to other investigations. It's very large in scope and if it was made evidence, it would have to be vetted. This file would be a very broad-ranging file that would contain confidential information and sources. LB says the important aspect is that this file contains a large amount of speculative files that don't lead anywhere. An example of this kind of information is on Anne Notnes. The police has gathered some information on her and her background, her financial information and her activism. This isn't relative, but something that the police would follow up in the course of an investigation.

J isn't certain how the intelligence file differs from the investigatory file. LB says that the intelligence file contains profiles of various people that goes beyond just the accused. Evidence of events like shootouts or other incidents wouldn't go in here - only intelligence information. LB says that this kind of file wouldn't be expected to be released. Like the information on Anne Notnes, this information is no one's business. This kind of information would not be appropriate for disclosure. The onus of relativity falls on the Crown. The police regard this as highly sensitive. J asks if LB or JF has seen this file. LB says they haven't, but base their position on what the police have told him.

J asks if there are any authorities dealing with this kind of file. LB doesn't know of any. Either does the J. LB says that regardless, it is very sensitive.

MA - says he requested this on Nov. 6 and asked for the entire file. MA says that of course he would only expect relevant information. MA asks again for an order to force the Crown to disclose all material that it will not disclose. The Crown never told MA about the file - the Defense only learned about it through its own prying. MA asks how the Defense can call the accused to the stand if the Defense doesn't know what is in these files. MA says that at least the J should look at it, but the Crown isn't even claiming Crown privilege.

How can he advise his client on whether to take the stand if he doesn't know what is in it.

J says that he would feel more comfortable if at least the Crown has seen the file. We can't just take the word of the police.

LB says that the accused would not be surprised by their own backgrounds, as they would know about this. But he says that he will look at the file.

J asks LB to look at the file with the J's eyes by not just looking for information of the accused, but also of relevant information.

LB says he has the next witness scheduled for Thursday. He also has a new witness list. W would like to know who this next witness is so that he won't be surprised when preparing his case.

MA - wants to make an application that regards these witnesses which should be dealt with before Thursday. He sees that Porter and Chief Anges Snow are on the list and wants them pulled because of late disclosure. Tuesday or Wednesday would be good.

ST - needs to have some time to deal with other matters. Monday wouldn't be good.

MA - says that he will not put forward the application to pull Snow, only Porter, based on discussion with other Defense. He will make written submissions.

W - says that he wanted to make sure that Agnes Snow be brought in because she had a lot to do with what went on. What she said to the media almost caused our death. W says that Snow is one of his own people and he wants to show how the immigrants use these people to assist in the theft of their lands.

J stands down until Wednesday at 10:00 a.m.

  * Monday, December 2 - no court       * Day 87: Thursday, December 5
  * Day 86: Tuesday, December 3         * Day 88: Friday, December 6
  * Wednesday, November 27 - no court