Trial, Week 6: Summary - August 30


WEEK 6: AUGUST 26 - 30, 1996

   * Day 25: Monday, August 26            * Day 28: Thursday, August 29
   * Day 26: Tuesday, August 27           * Day 29: Friday, August 30 
   * Day 27: Wednesday, August 28


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

Posted by FreeMedia

FRIDAY, AUGUST 30, 1996 - DAY 29

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 or Wilby.

GW - seeks JoJo's release. LB doesn't object. J makes order for his release.

J asks about application for sureties. LB says that he prefers not to deal with it. Says that there was a default by OJ from charges in Kamloops. Says it's up to person who put up the surety to explain why. Anne Notnes called by J. Anne explains she doesn't understand a lot of the law, but believes that OJ didn't breach the conditions that she signed for. J looks over conditions. J notes that a delay of justice didn't occur and a breach of the signed conditions didn't occur so he grants her the return of her surety.

Cst. Raymond Paul Wilby and jury return.

DC continues his cross-examination. J: "Alright, the word." DC says he failed as a wordsmith and leaves it to the jury to interpret the ERT group photograph. RW agrees that this feeling of camaraderie is encouraged. Admits that ERT is an elite team and that persons are chosen for it. Says that when a situation has gotten to the point of a higher degree of danger, ERT is called in. They use semi-automatic weapons, but points out that all police have recently upgraded to Smith & Wesson semi-auto handguns. DC notes that the equipment seen in the photo are the same as from Vietnam era. RW agrees. Semi-auto M-16 was used in Vietnam and at Gustafsen Lake. C-7 he used can be used in full automatic or semi-auto. He fired C-7 in both modes. He wasn't instructed that he could use the C-7, he just grabbed it because his weapon had jammed. Reference to Vietnam in news interview - he said that he would have called in F-18 aircraft. DC shows him photocopy of three playing cards. One says "Wish you were here, Wild Weasel." VanERT is on cards too. RW had never seen cards before. They never used cards to mark site. Re: Aug. 18th, he had heard that members had been going to camp, but he never saw reports, nor did Supt. Olfert show him reports. DC says on Aug. 21st, negotiators had been scheduled to go in to the camp to try to resolve the situation, but RW never knew of this. Despite general failure of reconnaissance, he was able to relay some information to Olfert, like who he saw in the camp. He knows that after his mission, there was a buildup of people in the camp. He never thought that the buildup was a result of his mission.

Four members had M-16s, Callander carried a sniper weapon since he is the designated sniper. RW says basic training includes training on Sig Saur 9mm pistol, HK MP5 submachine gun and M-16. Sniper training is additional so Callander was trained on all. Says sniper can be used on a designated target, for surveillance using his optics, or as communications person since the sniper is usually left in a position further back. DC notes that Nordstrum was left behind. RW says Callander wasn't placed on the hill to observe with his optics or to cover group, nor given a designated target. DC notes that Callander was brought within 250 metres of camp then and wonders why he didn't carry M-16. RW says that was the weapon of his choice and that there is a certain amount of latitude to choice of weapon in team. RW admits he never told Callander to leave it behind. Denies that Callander had been given a target to take out. Says he had never considered putting Callander on hill.

Confirms that they were first compromised by horses and man standing in cammo. They moved to field and heard native speak. DC asks if he said "Nahanahey Nahheynaha" and says he's not being facetious by asking this, but is trying to get a handle on what was being said. RW says that is why he apologized in the court because he didn't know any native dialects. Confirms that it was inquisitive in tone and a sentence, not just sounds. A few seconds pause, then in English, "Who is it?" DC says a lawyer asked about the way he responded, and asks why he didn't respond. RW says he knew it wasn't one of the team. His members would never respond out loud like that on an operation and they have radios that they can whisper into. He knew there was a sixth person there.

DC has RW draw a map of clearing, noting all the locations of his team and where the voice came from. When RW started running after gun shot, he didn't know where Nordstrum was, nor did he speak to him at this point. When he indicated earlier that bullet passed by his head while facing jury, DC wonders about second time he showed it when he twisted his body around to demonstrate this. RW says that he didn't twist his body around, only his head. (OJ or JoJo just farted and the sheriffs next to them are holding their noses trying not to smile). DC suggests that shot could have come from Cpl. Callander but RW says he would have known. DC wonders if it makes any sense for a person to ask who it is and then try to kill them. RW: "None of the incident made sense." J says he doesn't have to answer that. DC wonders about his statement earlier that he didn't respond to native voice because he didn't have to - he knew it wasn't one of his men. RW says they were ordered not to compromise the mission. Admits though that had they bumped into some person on horseback or a hiker, they would have identified themselves. Disagrees that they didn't identify themselves because they wanted to deny police presence in the area. Says they were instructed not to compromise. He admits that five men in cammo would be seen as being there for a purpose. When asked why he didn't just answer "police" when asked who it is so not to alarm anyone, he says it was clear that their mission was not to compromise the fact that it was an RCMP covert mission. Says 70 feet is not a long shot and that he could hit a target under ideal conditions. When asked why he went in so close instead of using his binoculars, he says they wanted to come in close to get the lay of the land. He took no photos or video.

On Sept. 11, when Green approached the Red Bison, he had said he had seen Red because he was standing up. DC wonders what he meant when he said that he determined by looking that shots were coming from bush. RW says he agrees that he didn't see anyone or any muzzle flash, but determined direction of fire by hearing where it came from. When he is firing into treeline, he says he didn't see anyone or muzzle flash where he was shooting. Agrees he wasn't firing at ground or sky, but at level of where people would be if they were firing. Agrees that while blasting away in full auto, he would not be able to hear other gunfire and would have to select targets by sight. Reference to two heavy calibre hits on side of Bison, he agrees that he didn't note it in his report. When he went up to roof to retrieve tow bar, he was only addressing task of removing tow bar. DC suggests that for the two minutes he was up there, he would have made an easy target. Only RCMP casualty was dog man with burn marks from casings.

When they secured area following Sept. 17, he feels the place was secured. Says he wasn't there when politicians arrived, he was only there for when Ident. Unit was there. Agrees that this was the first time the camp area was secured.

Admits that usually he keeps notes. "Sometimes, yes." Agrees that only notes he took were two reports. DC notes that these aren't notes, only statements put on paper. RW not aware of ERT policy not to take notes. RW: "You can interpret covert to mean something else. This is not a secret fraternity that nobody knows about." Re: blowing up of red truck - didn't recall that he determined gunfire immediately following explosion to be RCMP gunfire. When he checked out Green Bison following incident, he noted a hole in accordion doors hatches on roof. Refers to yellow book of photos. Photo 108 (I motion to OJ with a pinched nose wondering who farted - he nods and points to Wolverine who is snoozing.) RW notes that hole he noticed came in the left side and went out the right side. Says vehicle was facing east and bullet came from south, same side as the lake.

MB/ Without jury - GW notes that Leanne Dick will provide surety for JoJo. MA - tells J he will cross-examine RW a little.

Jury in.

DC - Puts in RW drawing as an exhibit. Re: Aug. 18, he got in close that morning, but saw no firearms. DC says that RW told media he had been hunted and told jury that he was hunted on Aug. 18. DC: "In your considerable hunting experience, you wouldn't go up to a deer, say a few things, and then shoot him." Snickers in jury. RW agrees he would never hunt a deer that way.

MA - Has RW agree that what he said on video interview is indeed what he said and wants video made exhibit not for the truth, but for the frame of mind. LB doesn't want other parts of video shown to jury. GW says he will create sanitized version of video. MA looks at photograph of aerial view and asks him to mark where he was at time of firing. Does same for Callander right behind him, Overby, Greenwood, Nordstrum and voice he heard. Asked about a "No Go Zone". He understood that the people in the camp were not allowed to go beyond the fenceline, but was never told that by his superiors. Didn't know if he couldn't go in there.

Rank structure: Sgt. Gates - E Division ERT coordinator - man between command structure and ERT teams. Below him was "I don't know." In field, he reported to Insp. Kembel at command centre. RW was Kamloops Division ERT commander. Agrees Kembel was in charge of field operations. Involved Aug. 15 and ended around Sept. 22. Says he had roughly a meeting every day or second day with Olfert. Each time he would go into command post, on second floor of carpet store in 100 Mile House, and see Olfert. After Aug. 15, he had formal meetings during first week following Aug. 18 when Insp. Moulton was preparing the operational plan. Moulton was working with Wilby, Capt. Keith McDonald of Canadian military, a Major whose name he didn't know. Discussed "if they had to go into camp to arrest occupants, what would be the best way." MA shows him Operational Plan with note for planned assault for Aug. 28. RW says this is how ERT works by making timetables and constantly evolving and adapting. Says there were a number of plans put forward by RW, Moulton. Doesn't recall Sarich ever coming to Kamloops.

RW asks MA to repeat a question. MA can't remember question and replies, "good question." Chuckles. RW clarifies that in first week after Aug. 18th, meetings were at Kamloops with Insp. Moulton of Vancouver. Says "Moulton was the boss, I was the gopher." Second week, he had no idea what happened. With Moulton, he says that there was a number of planned dates for going in.

He was on site at Gustafsen Lake on Aug. 27th. MA shows him other operational plans. RW doesn't remember that plan. Asked about the "Tiger South Ops Plan". Hadn't seen that one. Says there are no women or native members in ERT. Thinks there's an East Indian member. RW says that he was never given a plan. He saw documents but that's it. Says briefings were difficult to get everyone involved because of set-up of building they were in. Gates' office there and if he had something of interest to note, Gates would write it up on big sheets of paper for anyone to read. Doesn't know what happened to these papers. Says there were two meetings a day in Gates' office with whatever ERT officers could attend. He only made it to one meeting which Gates chaired. He was never given map of "No Go Zone" or told of where boundaries were.

J asks if counsel could put heads together to come up with revised end date for trial.

L/ Without jury. HR - They spoke over break of how long case will last but says they can't say until Crown is finished - "certain it will be when the snow is falling." J: "Or when it's melting." Chuckles. HR doesn't think it will be until Christmas. J figures that with his experience, that means something.

Jury in. J tells jury that originally he said the trial would last three months, but this kind of case is quite big. Crown estimate thinks they will go until early November. Says that he can't say more than that right now.

MA continues his cross-examination of Wilby - Looking over his hand drawn map, RW figures Callander maybe 30 feet behind him. Everyone else behind him. Confirms there were five ERT members there including himself. MA suggests that there were eight persons there and that the other three might have worn black. RW says he didn't take more than four with him. Says that there's about ten in Kamloops SubDivision. RW says that HK MP5s are semi-automatic with 15 or 30 round clips. Says that maybe eight ERT members from Kamloops in total at Gustafsen Lake site. ERT members don't sign for weapons or ammo - they are carried in large cube van. He carried four or five M-16 clips, filled with 30 rounds each for total of 150 rounds. Says Cst. Trudeau was responsible for stores of weapons and ammo in the van. Says ammo freely available in van. Van locked and keys on ignition keys. Parked at head of 1100 Road. On Sept. 11th, he said he helped himself to army C-7 weapons. Confirms that thousands of rounds fired. Shells ejected to right. Some of the casings fell inside. He doesn't know who cleaned up APC after and doesn't know what happened to those spent casings.

JF - Understands that video of re-creations is on tape with narrative with Overby who is a witness coming up. Wants it as exhibit. Made Ex. 196.

LB - Next witness (#24): Cpl. Malcolm Thomas Callander (MC) - 21 years on force. Two years on Kamloops SubDivision. At Williams Lake for last three years. In Hope before that for ten years. Role of ERT learned at six week course in Ottawa. Role is support section for general duty personnel where weapons are used beyond their normal training. In 1991, took two week marksmen course given to those with above average marksman skills. If successful, made designated marksman. This is a member that has additional training above regular ERT training.

Uses 308 rifle to engage targets at longer rangers "to neutralize targets with a single shot." Says for summer of '95, Wilby was team leader. MC was second in charge. On Aug. 17th, he got call from Wilby and was told to meet at 100 Mile House Detachment with other ERT members to be briefed on events at Gustafsen Lake. He had been in area a year to year and a half prior to this time. Then was assigned to livestock section that deals with cattle rustling. Had been on 1100 Road and Nettle Road, but never to Gustafsen Lake.

On Aug. 17th, met with other four members of ERT and discussed with Porter, Andrew, and GIS member Tassell. Advised of several incidents that occurred on Fraser River near Williams Lake. Cst. Andrew supplied map. Told of firearm use in area. Told they were going on recce and told not to have any contact with those at camp. Primary info they were after was number of people and vehicles there. Recce described as patrol in stealth mode trying not to make contact. No other members from Kamloops ERT were at meeting, only the five team members that were going on the recce. Following meeting, they went to warehouse that Tassell had secured to gear up. Went with Cst. Andrew to look at lay of land and routes in and out. Drove around area and returned to 100 Mile House. He was only with Andrew who gave him information on camp, roads in and out, distances involved. Shows on large aerial photo route taken with Andrew. Took 1029 Road around north of lake to west side of Sundance area. Drove down fenceline to gate, turned around and returned along the same route to 1000 Road. Went south to 1035 mark all the way to lakeshore intersection, then turned and returned to 100 Mile House.

Back in town, he got dressed in ERT gear, quickly told team of route they'd take, and then all left. He wore summer cammo pants and jacket on. Underneath that is beige turtle neck. Beige jacket has burlap scrim attached to break up human silhouette. Soft cammo hat also has scrim on it. Some paint their face, some wear nets. Black boots and gloves - some black, some cammo. Dressed that way because they didn't want to make contact. Says this wasn't unusual dress for a rural setting. Would wear urban blue in urban settings. No writing on uniform saying "Police". Says this is to remain camouflaged.

Cst. Tassell drove him and other four ERT members in. Tassell left after they advised him that they would be picked up at 9 p.m. that night and if they weren't there, they would spend the night there. No other ERT members met them there. Once they started hiking, they were surprised by size of fields they had to travel on, so it took them longer than expected. Saw fire and smoke of camp as well as flying Mohawk flag. Got within 300 metres of camp from rock butte. He and Overby checked out butte from east side and made sure no one was there. Once confirmed it was clear of people, they found cammo clothes there. Realized they were 300 feet away from cabin at the camp. Surprised when black and white dog came up to them. Dog didn't bark and after having a look, dog left.

He and Overby returned to team and they all decided that it was getting dark and they could hear dogs barking, so would spend the night east of butte and return in morning. He was carrying 308 sniper rifle with bipod and sling as primary weapon. Others carried M-16s. He also had Sig Saur pistol as secondary weapon. Says weapon would only have been used if they were engaged or fired at and he believed he or team were in danger of death. Secondary weapon used for short range and if primary failed. Said he had no intention of using weapons as this was only a recce.

On night of Aug. 17th, they made a camp with an 8'x 8' black tarp and curled up together for the night. Some members had ground maps, but they weren't really prepared for staying overnight. No cold weather clothing. That night was cold even in August because of elevation. Decided to spend night because of safety concerns. Didn't want to be tripping through the night. Decided best time to see licence plate numbers was early in morning before others were awake.

Left camp just after 5 a.m. on Aug. 18th. Light was just breaking. Weather clear and cool with heavy dew on ground. Very quiet in morning other than birds. They proceeded to south east of butte across open area to aspen grove. Went to area of low bush close to encampment. Went single file, staggered. Two hundred metres short of camp, they stopped. He didn't feel it was safe to bring whole group in so he and Greenwood went closer to look at licence plates. Brush was four or five feet high. Aspen grove was 150 yards wide with no cover. Tactically, grove wasn't a safe area. That's why they staggered team so whole group couldn't be caught in there. He and Greenwood made it to within 150 metres from cabin. Smoke still coming from fire pit. Mohawk flag there. Could see some tents in area. Saw three vehicles, but couldn't see licence plates. Told Greenwood that he wanted to take another route. Two went to brush and got within 75 metres of cabin, but couldn't get any closer without crossing open ground. Could see front of cabin, old Suburban, new Grey pick-up and grey car. Old native male came out and stood in front of fire doing his morning stretch like he just woke up. Thought team was too close and wanted to back off. Greenwood told him he saw male in cammo with cammo headband. Male he saw was 5'6" in mid-20s with shoulder length hair. MC saw three or five horses in nearby paddock. Horses were a concern because they had seen them or winded them. MC concerned that man might see horses looking in his direction. Man didn't notice and took wood from wood pile and started fire going.

He and Greenwood returned to team. Nordstrum had separated himself, taking a rearguard position. MC told Wilby that he didn't think it was safe and wanted to get out of area. Wilby agreed. They took same route back because they knew ground was safe. There were no booby traps and they hadn't encountered anyone. They stopped at aspen grove because there was no cover and was the area of most vulnerability. Wilby went first. After he went 15 metres Overby followed. Greenwood next. When Wilby was 40 metres into grove, a shot rang out to right. When shot rang out, Wilby sprinted out of aspen grove into timber southeast of butte. Other members hit the ground. MC checked on radio to see if everyone was alright. When shot rang out, Wilby was moving slowly at a fast walk with his back to MC. Shot to Wilby's right. Then Wilby sprinted. Sprint didn't surprise him because Wilby in the most vulnerable spot in the middle of the aspen grove. It would be harder to shoot him running.

HR says there's enough speculation already. MC saw Wilby make it to rock butte. MC could tell it was from a high powered rifle like his 308 - a 30 calibre or larger. Says he could tell from sound of discharge that barrel had been pointed in his direction. Says there's quite a different sound when gun is pointed in opposite direction. Familiar from thousands of rounds he's fired on a range. Figures distance of shot was 70 feet away. After making contact with other ERT members, they leap frogged through aspen grove.

AB/ ST introduces his new associate, new on the Bar.

LB cont'd with Cpl. Callander - After shooting, members got together and decided to get out of area, return to 100 Mile House and report back to Porter. MC didn't discharge his weapon and he didn't hear any other discharges. Says that on morning of Aug. 18th when he woke up, only his ERT members with him. Following decision to leave, they took more of a direct route to return to 10-29 area instead of retracing old route. They tried to raise Kamloops dispatch on the move, but no one answered. At 8 a.m., a member in a police car got their call and Tassell was dispatched to pick up team. No other ERT members with him. They encountered no one until they were picked up by Tassell. Didn't see anyone who might have fired shot. Says shot came from aspen grove where it blends into heavy timber. At that time of morning, there were many shadows in the brush. He feels that man sighted at the cabin could not have been person that took the shot because they went as quick as possible from sighting, to team, and then to aspen. Man would have had to circle around three times the distance to intercept team. Even in best of conditions, it couldn't have been done.

He took no notes. Says team leader, like Wilby, would have made debriefing notes. As soon as they returned to 100 Mile House, Wilby returned to Kamloops to make his debriefing notes. When asked if he made notes, MC says that team didn't get any sleep that night and only thing he could think of was to get some sleep. On small aerial photo, he points to rock butte, aspen grove and low brush. Horses were by open area to east of cabin where fallen trees are. MC shows the jury up close.

Next day on Aug. 19th, he was on duty at Williams Lake Detachment and was involved in press conference held there. He was watch commander that day. Persons at press conference were: Olfert, Porter, Sarich, Staff Sgt. Wendel, officer from Federal Fisheries, Montague, Lyle James. His role was to explain various weapons and firearms on display to media relating to charges from earlier that week. He systematically went through weapons on tabletop and went over what they were and how they operated.

On Sept. 11, he worked with Courtney SubDivision ERT. They had been tasked with setting up electronic eye video equipment at the "Perch", at an old fishing lodge across the lake. Courtney ERT short on men so he was one of three additional helpers. With Cst. LaMoia, he helped set up an observation point at a crossroads where three roads converged at dam. That day they were listening to ERT radio and became aware of an incident with Bisons and heard many rounds being discharged. They were not involved in this incident - they manned their position all day. He's a little confused describing which direction is which on the large aerial photo. Some laughter. J: "I think we all need a long weekend." LB: "Don't worry, I'll give him a map to find his way home tonight."

(WOW! Lance cracks a joke!)

On night of Sept. 11th, he slept outside at crossroads with Courtney ERT. Spent night because "Special Eye" was still being set up. On morning of Sept. 12th at 8 a.m., he and Gorman, "Paul" and one other member of Courtney ERT went along lake to set up a sniper position. In old lodge, at "Perch", he spotted an individual walking along lake from camp. He had 7x35 binoculars and Bushnell spotting scope. Person was moving along lakeshore away from camp towards observation point. MC saw person through spotting scope walking with high powered long barrelled rifle similar to AK-47. Says it was shorter barrel with big magazine. Other three ERT members were all aware of this individual.

Person wearing cammo and wearing a gilly suit with bandanna. (A gilly is a camouflage jacket with dyed burlap strips sewn on to break up a person's outline.) HR doesn't want witness to justify what he's about to say. MC says person was walking in direction to where other members were located. Courtney leader called Insp. Kembel and permission was given to "treat the individual as a target of opportunity and to neutralize the threat." They had a laser range finder with them which told them that the distance was 1000 metres from team to individual. Cst. Gorman had 308 sniper rifle. They set Leopold 10 power variable scope by consulting sniper charts. Gorman fired a shot at the individual. MC saw bullet land at feet of individual. Person went to ground. Second shot fired by Gorman which went right. Cpl. Wyton took third shot and person ran into bush. Could see person was not hit. Cpl. Wyton called HQ and said three shots were fired and all were misses. After this, he and "Paul" went further down lake to look for better positions. After half an hour, they returned to team. He didn't fire any shots that day.

After Sept. 12th, he continued his duties with ERT, but never had any more contact with individuals from the camp. He never discharged his weapon once during his work at Gustafsen Lake. After Sept. 17, he was involved in a grid search of camp area and marking items with yellow tape. Following this, he spent night with team to secure the site until the Ident. team got there the next day. He was aware of no breach that night. He was there the next day, but seized no items.

On Oct. 15, he made a statement to Murray Smith regarding Aug. 17-18 incident. This was the first time he wrote of this incident. He received a CPIC report from Smith requesting this statement. Next day he received another CPIC over fax asking to respond if he was involved in Bison incident or of shooting across the lake. LB asks MC to look at four photographs of Kamloops SubDivision ERT including two dog men and two radio men from Kamloops in the photo. Says this photo doesn't reflect what he wore on Aug. 18 because these photos show black body armour called "the beast" - they didn't wear "the beast" that day. Some of the members wore soft body armour underneath clothing. He is kneeling between two dogs and photo was taken night they secured the scene near the end of the Gustafsen Lake incident. He was involved in re-enactment video the day after camp members left. He played himself as did the other members that day.

HR prefers to begin cross-examination next day on Tuesday after long weekend.

   * Day 25: Monday, August 26            * Day 28: Thursday, August 29
   * Day 26: Tuesday, August 27           * Day 29: Friday, August 30 
   * Day 27: Wednesday, August 28