* Day 5: Monday, July 15 * Day 8: Thursday, July 18 * Day 6: Tuesday, July 16 * Day 9: Friday, July 19 * Day 7: Wednesday, July 17
Cst. Flemming testified that although he was briefed on August 28, 1995 by Sgt. Shakey for approximately 1-2 hours, he wasn't told of a planned assault on the camp the next day (August 29) at 7 p.m. Cpl. Smith testified that he too hadn't been briefed about the planned assault (subsequently aborted for reasons unknown). Flemming did know that Inspector Bass was the head of the investigation team, which consisted of 10-12 investigators and three or four Intelligence people. There were no native police on either team, nor did Cst. Flemming ever meet with Officers Wood, Andrew or Findley (the native officers pulled from their duties before the August 17, 1995 "covert" mission by the ERT squad - see notes from July 9, 1996). Cpl. Smith's only contact with native officers was with the "plants" placed in the jail cells of some of the Defenders. Cst. Flemming stated that he didn't investigate the destruction of a camp pick-up truck by an RCMP land mine, the killing of the camp dog or the bullet in Suniva Bronson's arm, incidents all arising from the RCMP and military attack on the camp on September 11, 1995. He also didn't investigate the lack of food or water in the camp nor whether any medical supplies had been given to Suniva. Cpl. Smith also admitted that he didn't investigate the attempted murder of Suniva, nor did he know of any investigation that took place concerning that incident. Although Cpl. Smith interviewed at least 15 ERT members about the red pick-up truck "incident", he didn't note every member he interviewed. He taped the interviews and gave them to Cst. Tassell, but only checked some of the transcriptions. When defense lawyer Manuel Azevedo asked Flemming if he was aware of the order to kill Jones (Wolverine) Ignace and of the "green light" to kill the Indians, his response was "no", but the jury's response was one of utter shock and surprise.
Cpl. Smith testified that Supt. Olfert had "overall command" at the time of his August 28, 1995 briefing with him, then gave a brief description of the command structure. Cpl. Smith was not a supervisor - he answered to Sgt. Shakey, who in turn answered to Inspector Bass, head of investigations. Bass and Shakey were usually present at the daily briefings, although there was no one there to record the minutes. And while Cpl. Smith admitted that it was important for all officers to file "TIPS" (reports) and notebooks to Cst. Tassell's file system, Smith never filed his own notes (or at least he couldn't remember filing them). When Command Centre was in an old warehouse at the beginning of the "standoff", Smith even assisted Cst. Tassell file or photocopy items. As an investigator, assisting in the filing of important documents, Smith admitted that he read some material in the file when he first got there, mostly of earlier incidents. He made it clear that any officer could access the file.
The jury heard details about "investigative techniques", about undercover surveillance of vehicles in the parking lots of hotels in 100 Mile House and about possible scenarios to work out on "targets". "Targets" were people the investigators felt had "inside" information about the people in the camp and might be used to gain further information.
A main "target" was Anne Notnes, Suniva Bronson's mother, and anyone associated with Anne. A "key target" was Ernie Archie, with whom an undercover agent was successful in making contact with. Cell plants were used for Stuart and Teddy Dick, although there were no reports submitted from those plants. After a meeting Smith had with Percy Rosette and Toby Pena in October, 1995, he had hoped to get them speaking to others on tapped phones. He informed the court that, "It's a routine thing done where you have the wires going."
Cpl. Smith stated that he investigated the incidents of September 4, 1995 (the bogus story of ERT members being shot at and stalked through the bushes by natives, when in fact their vehicle hit a tree branch - see notes from July 11, 1996) by interviewing some of the members involved. He admitted that this was unusual because interviews were conducted as incidents unfolded and that normally, officers prepared their own incident reports. Although he admitted that there is a danger when officers discuss incident reports with other officers, he nevertheless didn't warn the officers not to discuss the case after questioning. He also admitted that it was an "unusual occurrence of investigators investigating investigators."
As recently as March, 1996 Smith had a meeting with Crown Counsel, Supt. Olfert and other RCMP officers, but Smith testified that the meeting had nothing to do with the evidence that he had to give today. A later meeting in April or May, 1996 was held for that purpose.Defense lawyer Sheldon Tate wanted to know why Smith was still meeting to discuss the case if the investigation had been completed on September 29, 1995, and Smith responded that "it was routine."
When defense lawyers wanted to ask Cpl. Smith about the state of mind of the Defenders, based upon statements made by Ron "Paintball" Dionne, the judge asked the jury to leave while the issue was discussed. Defense argued that this was acceptable, citing hearsay exception, to show that the Defenders feared an assault by the police. The judge stood down Cpl. Smith in order to review the cases in Canadian law that were submitted by the Defense.
The jury was then brought in and Lyle James took the stand. The 71-year-old cattle rancher appeared frail and Crown Counsel Lance Bernard even mentioned that he had to mark a map for Mr. James because James' hands shake. James testified that he had seven children (five daughters and two sons), and that he left Montana in 1972 and came to Canada, where he bought the Circle S Ranch at Dog Creek, consisting of 18,000 acres of deeded land and grazing permits for the rest of the area. He described the deeded land as being distributed throughout the permit land.
In the summer of 1995 James had 2,000 head of cattle. He stated that Gustafsen Lake is a distribution point for the cattle to surrounding ranges and that he uses the water in the lake for storage, which he shares with the Canoe Creek Band. (His son-in-law, Keray Camille, is a councilor with the Band, and four of his grandchildren are members of the Band.) When Lance Bernard asked James if the James Cattle Company owned Gustafsen Lake, Jonesy (Wolverine) asked the court, "Who can own this land if the area has never been ceded?"
James then identified his land by referring to a large aerial photograph on the wall. He pointed out a fence which was there when he bought the property and indicated that west of the fence was Lot 114 and east of the fence was Crown land.
The jury and Lyle James were then released earlier than usual, in order for the judge to hear a bail review for Jonesy (Wolverine) Ignace. The key points made by Harry Rankin and Manuel Azevedo were that there was a strong case for self-defense and that much evidence has surfaced since Chief Justice Dohm revoked Jonesy's bail on September 29, 1995, resulting in a great change of circumstances. Jonesy was described as a very determined man, a dignified man, and a man of humour who has been respectful in the courtroom. They argued that there has to be a real chance that Jonesy poses a threat to society or would commit another offense and then pointed out that he has been sober and has had no record since 1982.
Crown Counsel Lance Bernard argued that were no exceptional changes, that self-defense is not an adequate change and that three judges have already ruled in favour of holding Ignace. He emphasized the perceived leadership role Jonesy played in the "standoff", quoting a statement by Judge Vickers that "he was a leader throughout the event and his participation was vital."
Jonesy then stood and spoke of Crown Counsel withholding relevant disclosures from the Defense and only releasing them piecemeal. He referred to an earlier hearing of evidence which clearly showed that his son JoJo was 180 miles away from Gustafsen Lake on the date the Crown says he "attempted murder", yet the Crown is still trying to prosecute JoJo. He pointed to the rest of the Defenders in the courtroom and said, "These people are not terrorists. They were praying. Is that how they were terrorizing the RCMP? Maybe because I stand and speak my rights, is that why they keep me in?" He mentioned that the NDP was going up for re-election last summer and hoped they could get a few extra votes by "killing some more brown skins." He told the Crown that they are "blind and deaf when the law is put right in front of them." "Why do we have to have land claims and treaties? Is that to make up for what's happened in the past?", he asked. He told the judge that "it's not only us on trial. It's on the Internet and it's this court that is also on trial."
He referred to his earlier efforts to get this issue heard at the United Nations and in the International Court in The Hague, then asked "How much longer is the genocide going to continue in this country? When we are all gone?" He asserted that he was being held for political reasons and wondered, "Is this how politicians will get re-elected in the future? Bump off a few more of our people?"
The judge then ruled on Manuel Azevedo's request from yesterday concerning the admission of statements made by Ron "Paintball" Dionne upon his arrest last summer. The judge ruled that hearsay was not admissible, but that it was allowed if simply identifying the state of mind of the accused; however, Dionne's statement was made two days after the alleged offenses took place, so the judge ruled that Dionne's statement was not admissible.
Shelagh Franklin, representing herself, asked the judge for free copies of the court transcripts. The judge wasn't sure if that was normally done, but offered to look into it. Defense had no more questions for Cpl. Smith, so the jury and Lyle James were brought in. As soon as Crown Prosecutor Lance Bernard began to refer to a survey map as exhibit #102, defense lawyers Sheldon Tate and George Wool asked for a break to make copies of the exhibit and to address the judge before the jury re-entered. Wool argued that there may be admissibility problems with this exhibit, since the document was not made by Lyle James and that he doesn't know who made it, when it was made or under what circumstances. While Bernard felt it was admissible because it was clearly from the Land Titles Office, Wool reminded the judge that the Land Title system has no guaranteed boundaries and that the map doesn't establish or validate boundaries. Jonesy (Wolverine) Ignace reminded the court that there are only two ways land can be transferred from the natives to the colonizers - by purchase or treaty - and wanted the Crown to show how this was done. Shelagh Franklin thought that the map was false and wanted the Crown to prove that it was a legal document. "Who gave the authority to divide it up?", she asked. Manuel Azevedo pointed out to the judge that, with respect to Jonesy's bail, the discussion of the map was indicative of how long this trial will go on. The judge refrained from marking the map as an exhibit until later and the jury and Lyle James were brought back into the courtroom.
Lance Bernard then had Lyle James refer to the large aerial photo and point out the circle (Sundance Arbor) that is on his alleged property, Lot 114. James stated that the Lot is 160 acres and that he valued the land at $1,000 an acre because of its location near the lake and because it's a central distribution point for cattle. After indicating on the photo all the property that he "owned", Bernard then questioned James about his meeting with Percy Rosette in 1989. James testified that Percy had asked him about holding a Sundance on the land and that Percy told him, "If you don't let us dance, I'll pull the Indian Act on you." This elicited laughs from the Defenders and from their supporters on the other side of the bullet-proof glass. James claimed that although he saw structures being built, like the Arbor and the cabin, and saw signs saying "this is reserve land" and "no trespassing" posted on trees and a fence line along the lake shore road, he didn't do anything to stop the ceremony. Bernard was about to question James about "incidents" that had occurred that had changed James' mind about allowing the Sundance to continue, but Manuel Azevedo objected to allowing hearsay into the courtroom. The jury was asked to leave yet again.
Bernard claimed that it wasn't hearsay since he wasn't speaking to the truth of it, only to explain the actions of James that followed (this was the same line of reasoning that the Defense gave yesterday for allowing Ron Dionne's statements, but the judge ruled it inadmissible - see above).
All lawyers were concerned that the "incidents" were more prejudicial than helpful. (One incident, of a tent being shot at, resulted in two male Caucasians being questioned and no charges laid). Defense lawyer Sheldon Tate asked that Lyle James be removed from the courtroom and then referred to the prejudicial disclosures of the Crown to which he had objected to in pre-trial sessions. It was clear that Bernard was beginning to get frustrated by these constant objections and when Tate asked for clarification from Bernard as to the year ('91 or '92) for which the "incident" occurred, Bernard finally lost it and petulantly told the judge that "this is ridiculous", refusing to answer the question. The judge then scolded him that "this kind of comment is unnecessary, especially coming from the Crown" and Bernard apologized. Bernard maintained that the evidence was essential to illustrate James's state of mind and was more prejudicial than helpful. (One incident, of a tent being shot at, resulted in two male Caucasians being questioned and no charges laid). Defense lawyer Sheldon Tate asked that Lyle James be removed from the courtroom and then referred to the prejudicial disclosures of the Crown to which he had objected to in pre-trial sessions. It was clear that Bernard was beginning to get frustrated by these constant objections and when Tate asked for clarification from Bernard as to the year ('91 or '92) for which the "incident" occurred, Bernard finally lost it and James stated that "after shots were fired" he became concerned about allowing the Sundance to continue. James then talked about a meeting that was held in 1992 at the RCMP Detachment in 100 Mile House before the Sundance was held that year. An agreement was made that the Sundancers would only be there for a certain amount of time and that following the Sundance James could dispose of the structures. When the Crown brought out a copy of the agreement dated July, 1993, James then remembered that the meeting had been in 1993, not 1992. Bernard asked for the agreement to be admitted as an exhibit, but Sheldon Tate objected because Percy Rosette never signed it. (The RCMP prepared the agreement for James and it was signed by Percy with an "X".) The judge admitted it though, stating that Defense can cross-examine.
James continued his testimony, stating that despite complaints, he allowed the Sundance to continue in 1993 because the RCMP said people were already on their way for the dance. Another Sundance was held in 1994 and James instructed his cowhands to stay away from the area. In 1995, James saw that a new fence had been erected at the west end of the Sundance area. James also noticed that in the winter of 1995, a roof was put on the cabin at the Sundance grounds and turned into a permanent residence. He was told by the RCMP to serve a trespass notice and to bring plenty of witnesses, so he brought 10 people with him - his two sons and eight employees. He informed the RCMP of his intentions and three officers met with him on June 13, 1995, but wouldn't go into the camp with him. Percy Rosette wasn't at the camp, but John Stevens and his two sons were there. While James and his gang waited for Percy, he admitted that they took the stove and the door from the cabin because it belonged to them. He waited two hours until Percy and a woman arrived. James read the notice to Percy, then Ernie Archie came and put a "spear" in the ground. Percy wouldn't take the notice so they placed it in the feathers on the spear and left. James stated that Percy wouldn't speak English to him, but that the woman with him did (something about this land not being his). Although James' son Dale shot video footage of these proceedings, James claimed to have never seen the video. He testified that no one was carrying weapons and that they wore work clothes. The next day (June 14, 1995), James went to the camp to see if the Sundancers had complied with his eviction notice, but the RCMP stopped him and told him that he couldn't go in.
He claimed he spent the summer working at his home ranch and that in August, 1995 he met with Ovide Mercredi, Ed John, Antoine Archie, Agnes Snow, Irvin Charleyboy and Keray Camille to try to resolve things. Bernard asked James about the changes to his property following the standoff and he testified that there were "trenches, a well, structures, toilets, and a tree had been dug out under." He claimed the effects of altering the land would make it hard to move cattle around and that because of the standoff, the Ministry of Forests had told James that he had overgrazed. James was asked to look around in the courtroom to see who he could identify and he only recognized Percy Rosette and Toby Pena. He also didn't recognize the names of any of the accused, except for Percy and Toby.
Harry Rankin began the cross-examination. He suggested that there were two lines of approach to this situation - hard and soft - but James disagreed, stating that they had no choice and that his whole family was united in their feelings on how to approach it. Rankin then referred to reports by Cpl. Hicks that stated that Hicks didn't agree with James' "confrontational" approach and that James was determined to bulldoze and level the place. Hicks noted that James had lost patience with his lawyers at Ladner Downs because they wanted $20-30,000 to initiate a civil suit against Percy Rosette, but James denied that the RCMP wanted him to do it civilly and said that the police had told him that he had to try to evict the people first. Rankin then turned to the events of June 13, 1995, suggesting that it wasn't a normal eviction process. He referred to a bullwhip "being played with" by a couple of the cowhands and although James admitted it was unfortunate, he wasn't concerned enough about it to tell them to stop. Rankin suggested to James that removing a stove and a door wasn't part of an eviction process. Although James didn't think his approach was confrontational, his manner with Rankin was very "confrontational". At one point Rankin had to remind James that he asked the questions. "Look, this is the way it works", Rankin told him. "I ask the questions and you answer them. It may not be fair, but those are the rules of the game."
James admitted that he spoke to several politicians, including MLA Dave Zirnhelt and Jack Weisgerber, Head of the B.C. Reform Party, but denied that there were any politics involved.
Rankin asked James if the burning of the Arbor was the final, necessary step, but James claimed he had no participation in the burning - he only gave permission for others to burn it down.
After the jury adjourned for the day, the judge listened to George Wool's arguments for the release of JoJo Ignace and Shadow Potulicki. The judge warned Wool that in the future, absconding will result in confinement. There were no objections raised by the Crown, so the judge released both JoJo and Shadow.
A final note: the mainstream media were present in the morning when Crown Counsel questioned Lyle James, but were absent in the afternoon when Harry Rankin cross- examined James. The mainstream media have generally not been present when Defense has cross-examined witnesses and the media coverage in general has been so scant, it begs the question that if this was front page news for a whole month last summer, why isn't it news now?
* Day 5: Monday, July 15 * Day 8: Thursday, July 18 * Day 6: Tuesday, July 16 * Day 9: Friday, July 19 * Day 7: Wednesday, July 17