Trial, Week 7: Summary - September 3


WEEK 7: SEPTEMBER 3 - 7, 1996

   * Monday, September 2 - holiday (no court)   * Day 32: Thursday, September 5
   * Day 30: Tuesday, September 3               * Day 33: Friday, September 6 
   * Day 31: Wednesday, September 4


Posted by FreeMedia


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

JF - Cst. Leatherdale (AL) back on witness stand - After making circles of lake and heading for Percy's lease, AL noticed that two persons were walking towards the lake, so he focused his FLIR sensors on them. The persons appeared glowing on the black screen. They were about 25 feet apart. He also scanned the campsite and saw activity around there too, but can't remember specifically what they were doing or where they were. He can't tell if they were carrying anything. Pilot said they were under fire and helicopter banked hard. During bank, he heard three pops. Looking back, he saw some wisps of smoke without the FLIR, but can't say if that smoke was there before because FLIR wouldn't pick that up. When pilot said they were under fire, AL had FLIR directed at two people. He had just switched over to high power so he could see two people and 50 odd feet of field around them. When he heard pops, camera banked so the FLIR went off of the two people. He wasn't looking at the screen then anyway because he was trying to look out, but he couldn't see anything. He didn't see anything in the camp. Three pops could be heard slightly above the noise of the helicopter. Heard it when the aircraft was banking away. After that, they made much wider turns at higher altitude. Flew for a few minutes and then returned to 100 Mile House. They couldn't see anything during those last circles.

AL, Wilby, Gates and Greening returned to area later in that evening. Purpose was to check FLIR and to practice a few landings. They practised just west of the campsite, on east side of far western field. They hovered just a few feet above the ground for a few minutes while he watched the treeline. He saw nothing. Then checked camp with FLIR and saw some activity there. Was back on Aug. 25, 26, 28, 29. Used FLIR on those days. On Aug. 25th, it was early morning flight. He noticed a couple of people running around. He was under the impression that bunkers were being built so checked around to see anyone. Had heard of bunkers in briefings. Was at 2000 feet which was higher than usual for FLIR use. Other flights similar.

HR - AL couldn't tell if shots came from two people. Doesn't know if he could have seen two without FLIR. People were working fairly slowly and may have even stopped. This was at about 7 a.m. Other than two people, he saw one or two other people walking around. Says he wasn't close enough to tell, being 1500 feet up and a mile and a half away. Says his main observations were to deal with people on the outskirts of the camp. Says distance from him and pilot is about three feet. Says pilot can hear more because he only has plexiglass around. HR notes that his experience in planes were that they were very noisy and AL agrees that small planes can be as noisy. AL says this is why you need headsets to communicate. AL says pilot can hear better and knows this because usually FLIR is operated from the passenger seat up front.

In his statement to Cpl. Smith, AL noted that he discussed incident with Greening. HR reads that in statement, Greening and AL both saw two people on ground and felt that the two were involved in shooting incident. AL says he never saw anything, but says that it's natural for the two to talk about incident. HR: "It's the most natural thing in the world to talk about things. Me and my friends talk all the time." Laughter. J: "Perhaps ex-friends soon."

HR wonders if FLIR wouldn't pick up a gun being fired. AL says that either they weren't firing or guns were held upwards and bodies masked the heat. AL agrees there is no evidence to suggest that two people fired at him and says that this is what he told Greening. HR wonders why in his report he stated that "we felt" they were being shot at.

AL says now that there is no evidence to indicate this. AL doesn't know if you could see people pointing a weapon at 1500 feet. HR suggests that he and Greening discussed the incident and created a composite report saying these two people were involved. Finally agrees that there was no evidence "either way" that these two people were shooting.

ST - Says he guesses the popping noises happened at 7 a.m. He checks notes. Reference to 1.3 hours refers to total time he operated FLIR system. Notes said he left Kamloops at 05:30 hours and noted shots fired at 06:00 hrs. Says this was a mistake. Should have written 7 a.m. Says he then flew and landed at 100 Mile House. Doesn't recall landing anywhere else. Admits he wasn't really paying attention to flight paths while at campsite. ST suggests that he didn't really know where he was flying and his memory was based on what he saw on the screen. He agrees. Based on his memory, he says that they arrived at camp while it was still dark or at sunrise. Says he made notes a few days later after incident and after he spoke to Greening. He never noted time of shooting at time. He doesn't know why he wrote down wrong time - "maybe I was thinking of something else." Admits that his memory should be better at time of incident than now. Can't think of a single reason why he has time wrong. He recalled that sky was clear and there was ground mist. Agrees that ground mist can look like "wisps of smoke". Recalls seeing mist that morning. Doesn't know the difference between ground fire smoke and mist. During bank of helicopter, Greening asked if AL could see smoke in the area and AL said he could. Not sure where smoke was.

At Percy's lease, he says he probably looked out the window. When asked what direction he flew into camp from Percy's lease, he shows on large aerial map that he flew in from west end of Gustafsen Lake. FLIR sensors are mounted on underneath of aircraft, but AL says that he can turn it any direction including down. Says that on first sighting of two people, he can't say they were coming from the camp. They were moving he thinks, but doesn't recall them running. Admits that on return to 100 Mile House, he and Greening had a look at FLIR tape to see footage. Agrees that request to look at tape was unique because he had never been asked before. Greening believed that two people seen were involved in incident. Doesn't recall if Greening told him how many shots he heard. MB/ ST cont'd with Cst. Leatherdale - Will show FLIR video. Video played. White dots are people or dogs. Large blob is building that has heated up. Cattle and horse blobs seen. Says that if you're close enough you can tell the difference between horses and cows. He also checks the outskirts of the camp. AL notes that the tape is not continuous because he would turn it off if there wasn't anything interesting to look at or if they were moving to another area. There are indicators on the side of the video that show which direction the camera is pointing in relation to the flight path. (JoJo comes walking in slowly - I think he was just sitting outside of the court house.) Just when video gets to two people in field, the tape ends. AL says that this isn't all that was videotaped. ST agrees and says that on his tape, there is a close-up of the two people. Jury and Judge stand down until another tape is found. Another tape is found and ST checks it with AL and it too is cut short. They check out another and it too is short.

J back without jury. ST explains that he thought there was additional material at end of videotape, but he must be mistaken. He will check his personal copy to ensure that this is so.

Jury back.

ST asks AL if tape he made was longer. AL thought it was. On approach to camp, AL believes he was coming in from east and was a half mile away when he saw two figures.

Agrees that on screen, there was no indication of gunfire or muzzle flash. On afternoon flight of Aug. 24, confirms that Gates and Wilby were with AL and Greening. Notebook says a "mock insertion" exercise was conducted north of the camp. The exercise consisted of descending behind trees and hovering a few feet above the ground, simulating the flying manoeuvre required to "insert" personnel into an area. For that flight, he was wearing light body armour and was sitting on some too. ST: "Just like in those Vietnam films." AL: "Ah, yes." They wanted to get to camp before dark. Says nothing unusual happened on that flight. Doesn't recall anyone saying anything. Didn't fly around camp that time.

DC - Says FLIR measures difference in temperature. In statement to Smith, he said he saw no muzzle flash. AL says flash supressors are standard items on assault weapons. He confirms that in his statement to Smith, he never described the popping sounds as gunfire. MA - MA looks through AL's notebook for a minute. AL says that he was briefed of bunkers by either Gates or Wilby in Kamloops. He also had briefings in 100 Mile House command centre. Doesn't remember how long main briefing took. Maybe one or two hours. When he first arrived, he thinks he might have had a briefing with Wilby or Bradner, but isn't sure. Main briefing in Kamloops on Aug. 28. Olfert may have been there. Briefed in 100 Mile House on a daily basis. He didn't really report to anyone. Spoke to various people. MA: "Did you have a sense of someone being in charge here?" AL: "Yes, but I just took instruction from the pilots." Says that some days Wilby would give instruction, some days it might be Gates. Says instructions for flights were verbal. Olfert may have given instructions too. SF - Asks if he remembers what was told to him at briefings. He doesn't remember being told that those in the camp were standing on unceded Shuswap land. Says he was told by one of the three superiors giving briefings that the people in the camp were occupying private land. Doesn't recall being told that the camp was standing on constitutional rights. Was aware that communications were cut off. Doesn't believe that most of the time, the RCMP were surrounding the camp. Didn't know that camp stated that the RCMP were the ones acting illegally according to Canadian constitutional law and international law. Says he wasn't privy to behind the scenes strategy sessions. Says he had no reason to question his superiors. LB - Next witness (#27): Cst. Ralph Overby (RO) - Stationed at Barriere for three and a half years. 17 years on force total. Before Barriere, at Kamloops for 10 years and a member of ERT there. In Barriere, he is also ERT and senior Constable there in charge of Serious Investigations.

On Aug. 17/95, he was asked to get involved in Gustafsen Lake by Wilby. Was asked to conduct surveillance patrol on camp to observe occupants and gather evidence. Went to Kamloops at 8 a.m. with three other ERT members. Met Callander later. Provided rough map of area. ERT staging area was located in a rented garage in 100 Mile House. Had all equipment: cammo pants and jacket, backpack, 9mm Sig Saur hand gun, M-16 semi-auto rifle. Wilby, Nordstrum, Callander, and Greenwood only Kamloops ERT there. Wilby gave him rough sketch of area and advised of plan to walk in.

Dropped off at 6:30 p.m. Cst. Tassell dropped him off. This was first time in the Gustafsen Lake area. Figures he was 30-40 miles west of 100 Mile House. All wore cammo. He didn't wear body armour because it was a hot day and they were only to go in undetected, get info and get out. Purpose of radio equipment was to communicate with each other without compromising their positions.

Initial plan was to be picked up at 9 p.m., but because of time it took, they told Tassell to pick them up the next day.

Came in from the north of Gustafsen Lake along fenceline. Came in to Sundance area from East. Only ran into cattle which were spooked and ran away. At Sundance area, he and Callander went to high rock area east of camp. They couldn't see camp from bush, but could see it clearly from the rock. Saw log house, tents, vehicles and horses. On rock point there was a dugout surrounded by small rocks covered with cammo tree boughs. Nearby was blanket and cammo pants by tree. He and Callander summoned other members to rock and because of darkness, called Tassell and then went east of encampment to set up their own camp for the night. "It was quite cold." He and Callander heard voices of mother and father and couple of young children. Next morning at 5 a.m., took camp down and returned to rock at 5:30. Went single file through shoulder high brush towards camp. Nordstrum maintained rear. Callander and Greenwood went left while other two went right. Clear weather conditions.

L/ LB cont'd with Overby - When he left rock area, he followed Callander through wooded area proceeding towards camp area - through alder area to shoulder high open brush. Just before entering brush area, Nordstrum went back. He went with Wilby to south. Callander and Greenwood went to north. Since horses were alerted to ERT members and since Callander radioed that person was stirring a pot in front of the cabin, they decided to go back. Callander was fifty yards ahead and closer to camp. RO could see horses to south of camp, but couldn't see anyone in camp. He could see into camp and smoke coming from cabin chimney, but didn't see man that Callander spoke of. He and three others headed east back to rock area. They approached the alder patch, this time 40 yards north of their original path in. They decided to retreat because horses would give their locations away. Alder patch described as sparse. In alders, he could see Wilby ahead and Greenwood and Callander behind. Didn't know where Nordstrum had gone, but had been directed to retrace his steps back to area near the rock. Wilby was ahead. RO to left, Callander to ? and Greenwood to ?. They were 100 feet from rock. RO spotted movement to left. Looked and saw silhouette of person standing there along original path they took in. RO thought it was Nordstrum and waved. No response. Wilby was standing left of him. From right side - "Who is that?" Person was looking in direction of Wilby butfacing RO. RO still couldn't figure out who it was. Thought it was Nordstrum. Looked back at Wilby. Heard gunfire to right, heard whistle of bullet pass in front of him to where Wilby was standing before. Says he knew it was a high powered rifle because of ERT tests they had taken. Noted that he wasn't hit. Looked at subject standing there and decided person's stature was less than Nordstrum. He pointed M-16 at chest of man, putting laser aim point on heart, but still couldn't tell who the person was or if he had a weapon. Saw person was wearing cammo. Callander said, "Ralph get down." Heard subject say, "Oh shit." Person disappeared. Wilby said that he had made it to rocks and that it was clear. Team joined Wilby near rock. Nordstrum was back now. From there they quickly departed area. In a safe spot they discussed what happened and then continued on, calling Tassell to pick team up.

He describes person as 5'8" slender. Clarifies that Wilby was at point of edge formation looking at rock area when voice heard. Says there was only a fraction of a second between voice and gun shot. Voice and gun shot came from same area to right.

When he pointed M-16 at subject, he says that scope doesn't magnify the view, it only places a red dot on the person. Says this person said "oh shit" when RO's rifle was pointed at his heart. Same voice that said "who is that?" Person made sharp right and turned into bush and "ran like a jackrabbit." Didn't engage subject or try to arrest him because they were only there to gather data. HR objects to his use of "we". He and team decided then to leave. RO didn't know the sex of the person, but the voice was male. They were picked up by Tassell. Says that no other ERT or RCMP joined them. Tassell took them back to 100 Mile House. He made a statement later. He made notes of time and place in notebook, but didn't make a detailed report because it is ERT policy to have a verbal debriefing first before writing reports.

Later in the standoff, RO involved with Kamloops and Kelowna ERT manning a checkpoint at one of the logging road junctions. Was at camp on Sept. 18 to conduct foot patrols and to search area. On Sept. 19th he was involved in video re-enactment. Sept. 19, 3:30 p.m. to afternoon of the 20th, he maintained security at camp. He has seen video of re-enactment and says it's his voice that is narrating it. Using small aerial photo, he retraces his path for the courtroom. (OJ sneezes and Wolverine points to floor where some of his exhaust landed. OJ laughs.) On retreat and moving through alder, they formed diamond with Greenwood to left, he to right, Wilby up front, Callander at rear. Nordstrum eventually finding them. RO shown four photographs of ERT photos. He was not a part of these photos as he was called back to Barriere.

HR - Agrees he had the ability and skill to kill the man he saw. At first he wasn't sure who it was, but eventually he was sure it wasn't Nordstrum. He was never sure that the man he saw was the man that fired. Best he can say is that there was one person there engaging members of the ERT. Because they didn't know the area, they moved slowly. Agrees that it would have been more sensible to fly over a few times first to get to know area. Was taken to area with Tassell. Denies that ERT members were stalking family, saying that they retreated from area for night. Agrees that next day they did go back, but only to gather evidence. When asked what he would have arrested people for, RO says mischief because of the weapon discharge "and anything else that may have happened." Agrees that it wouldn't be far-fetched to go camping with a weapon. Agrees that they were not as unobserved as they thought they were. Agrees that a person might be concerned if they saw people in bush without police badges. Agrees he would be concerned too. They never discussed this possibility in briefing.

At night on the 17th, they agreed that original plan to do it all the first night had fallen through, so a new plan was created.

Says that had he seen man shoot, that man would be dead, "pursuant to the criminal code." HR says that by creating that situation, and having a man react as expected, then that person would be dead. He agrees. Says he is trained to protect life and to take life if he has to. HR wonders where it says in the guide book that you can kill a person if he does a predictable thing. LB objects wondering what is predictable. HR explains that it is predictable for a man to protect his family with a gun if someone is skulking through the bush. RO says that he wouldn't camp with a gun.

With regard to their formation, he says group was in a square about 60 feet long. Person was 40 yards from where RO was standing. They had camped a quarter mile away from rock. All the action took place very quickly. Original diagram of area was provided by Tassell.

Briefing took place with Wilby, but he wasn't there for that. Later at the garage, Wilby gave them their instructions because he was their team leader. Briefing took ten minutes. Agrees mission was important and straightforward. HR: "The best made plans of mice and men - don't always pan out. Those last words were mine, the first Burns." They went early in morning so as not to impose on the people there.

Re: ERT photos. RO says they don't have victory parties. Had he not gone to Barriere, he would have been in photograph. Has taken group photos before like for Christmas or sporting events. HR suggests that he is part of an elite force and RO dodges around saying he is just upholding his duty. Remembers photographs being taken in the past following a call-out when everyone was there. Agrees there were no charges of camp members discussed in briefing. ST - Callander was not at 100 Mile House Detachment briefing. Recalls knowing that Callander had gone out to area with native officer. Was aware that 100 Mile House had attended the area. On Aug. 17th, he was aware of this. Callander told him this before Wilby returned from 100 Mile House Detachment briefing. RO not sure who was at Detachment meeting, but thinks Tassell was there. Not sure if Charlie Andrew was there. They didn't have much information. On patrol, he saw vehicles, but made no notes of them. He didn't know that Wilby was carrying a camera or a video camera. He had binoculars like everyone else presumably did. On Aug. 17 or 18, he never saw any firearms - he only heard one. During shot, he didn't see shot or Wilby's reaction. They were in close formation to be able to see each other. Person 40 yards away was even harder to see than team members because of dark, but person was in the open out of the brush. Person was in front of dense bush with morning light coming out from behind him. The sun wasn't up yet. When he placed red dot on heart, he could do so because he could see silhouette of the man. ST wonders how RO could tell man wore cammo. RO says he noticed that only when man turned away.

AB/ ST - asks if Rob can be absent for remainder of week to deal with matters at home. J agrees if his rights have been waived.

GW - RO agrees that he wore cammo clothing, assault rifle and wore cammo facepaint. Agrees it would be fair enough for person in the camp to presume from his appearance that he is a dangerous person in the bush. GW suggests that furthermore, they were walking in a catlike stalking way, but RO says that he was walking upright. When GW speaks, strange noises are heard in the courtroom. He stops speaking and the noise stops too. This is repeated a couple of times until the noise is discovered to be coming from Madam Registrar's tape machine. GW: "Boy it's just like a movie - cut." Jury laughs. Agrees that they are walking in a cautious way. Then he sees figure that he thinks is Nordstrum. He waves to signal at him. Agrees that he was exposed and that if person wanted to kill him, he could have "planted a shot right into his chest." They had been in camp area for about ten minutes. RO aware that there was a barb wire gate along the fence in front of the camp. Knows that as a farmer, you can't open a barb wire gate quietly because of the noise it makes.

Admits that the person that he waved at would have had to have opened the gate or crawled through it unless he was already outside of the camp area. He also saw horses that weren't hobbled as far as he could see. Knows that horses bounce when moving. The odd ones were walking around and their attention was on ERT team. Knows that horses can signal quickly what's going on. Admits that when he saw the horses signalling their presence, he knew they had to withdraw.

Says it's possible that the person in bush could have been stalking them for ten minutes. From training, he learned many different ways of shooting. Says it's possible that you could make a warning shot. GW tries to explain a warning shot as what happened on Sept. 11 when RCMP fired warning shots at people in the water. LB objects. RO says he can't tell the difference between a warning shot and a shot directed at Wilby. Says that after shot, he heard person say "oh shit." He tried to see where shot came from. Admits that he might have been a little frightened by the situation. RO doesn't think the voice could have been one of the ERT members who realized the mission had been compromised because he didn't recognize the voice. Admits that he never went around to the other members later to check if they said those things. Had it been one of the other members, it would be appropriate to utter such a four letter word. GW: "I'll let you in on a secret, sometimes police officers swear." RO: "That's correct." Snickers in the jury. Says the voice wasn't slurred or drunk. Very clear. Says the person ran through the bush like a jackrabbit. Agrees that the person appeared to be co-ordinated. Says in 18 years, he has worked with natives and is familiar with people with fetal alcohol syndrome. Agrees that some of these people appear to have a speech impediment and trouble moving and trouble interpreting what you are saying.

DC - RO agrees that he would have been closer to person than to Wilby. Says that he didn't hear anything in a native dialect like "Nahanahaey". Confident that if person said this in same tone as other words, he would have heard it. Person was where RO expected Nordstrum to be because Nordstrum was instructed to walk in that area. Because person stood like Nordstrum, that was why he thought it was Nordstrum. Wasn't aware person wore cammo until he looked longer at him. His notes reflect that he saw cammo at first, but RO says he was silhouetted at first. He believed it was Nordstrum and then heard "who is that?". He began to scan left of figure when shot rang out.

After fire, he engaged figure, Callander told him to get down, he went to one knee, and person became aware of RO because Callander spoke to him. When he looked through scope, he saw silhouette of man with his arms to his side. It was too dark to see whether his hands were in front of him or to his side. DC notes that in his notes, RO noticed that at all times that he observed man, arms remained to side and man never assumed an aggressive position. Determined man wasn't Nordstrum. Can't say for certain man was 5'8". Nordstrum was not seen until some time after man disappeared. He heard over radio that others were okay. Initially Wilby didn't answer. On radio, he asked for location of Nordstrum who said he was in bush to our backside. There was no discussion that their survivalist-looking gear might alert people crawling through the bush.

MA - RO explains that pit with cammo was on rock. MA has him plot on paper locations of men when they heard shot. This is done on photocopy of aerial map photo. General discussion of where they went. This photo made an exhibit.

After they made it up to rock area, they left area and then had a debriefing. Ran about a quarter mile before debriefing. Meeting lasted a few minutes. They walked from there to pickup with Tassell. He believes there was talk up front in vehicle, but he sat in the back behind the glass. MA: "Well you didn't have ear muffs on or any intercoms?" RO: "No." After that, they had a debriefing in 100 Mile House, they had a discussion of what happened and what was said. No notes were made.

"Special O" is "Special Operation" in RCMP. One division is able to go into an area in disguise to gather information. "Special I" has camera equipment. Doesn't know what "Special O" wear. Says they're very secretive and doesn't know if they were involved at Gustafsen Lake.

SF - RO says he was notified on evening of Aug. 16 around 8 p.m. by Wilby. Wilby told him to attend to 100 Mile House to do surveillance. Agrees that as ERT, he responds to emergencies. He is aware that there is a native officer at 100 Mile House and it was his diagram they were given. Wilby didn't tell RO that Charlie Andrew was at the camp and was seeking a peaceful resolution to the dispute. Didn't speak to Sarich prior to their mission. No one told him that Andrew had arranged a meeting for Aug. 21 to resolve things, three days before their covert probe. This is the first he's heard of it. When asked what the emergency was to go into the camp, he says they were just to go in there to gather information. He was not aware that he was being endangered by his superiors sending them in covertly. He was just gaining information. Wasn't told of background of area other than that people were trespassing. Tassell told him that Lyle James owned the land. Knew there was a dispute there, but never asked any questions. J says tomorrow he would like to end at 3 p.m. to attend a "court function." Court stood down. Wolverine says that everyone else can go on holidays and we're still locked up.

   * Monday, September 2 - holiday (no court)   * Day 32: Thursday, September 5
   * Day 30: Tuesday, September 3               * Day 33: Friday, September 6 
   * Day 31: Wednesday, September 4