* 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
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.
MA - Disclosure problems again. Defense just received another inch and a half of notes. Porter's notes are illegible. A mistrial could be asked for which nobody wants, but it's something they have a right to do.
GW - JoJo will not be here.
ST - Re: witness regarding Aug. 25 checkpoint incident - doesn't believe it is relevant. Jury in.
JF - Next witness (#28): Cst. Steven Nordstrum (SN) - member for six years. In Kamloops City Drug Section since May '95. Also member of ERT team. (SN says "Early Retreat Team"). Was requested by Wilby to attend to 100 Mile House for a reconnaissance to get info on lay of land. Understood that these were grounds used for a Sundance ceremony. Met first at Kamloops, then at 100 Mile House Detachment where he was briefed by Tassell. Wilby, Callander, Overby, Greenwood and self made up team. After briefing, changed into "work clothing" - cammo pants, jackets, cammo paint on exposed areas of skin. Prepared bags for possible overnight stay. Had Sig Saur 9mm side arm and M-16 rifle. Understood that this was a covert recce and was ordered not to be exposed. Didn't think they would have to use side arms, but if they did, would only be used to protect self or members of the public. There were no instructions on what to do if they were exposed.
Once they geared up, they were driven to area west of Sundance grounds by Tassell and then proceeded by foot in an easterly direction towards Sundance grounds. He hadn't been there before, but got understanding from a map they saw at 100 Mile House Detachment. They were moving with an eye not to be exposed. Moved for about two hours. They made a few stops on way to see Sundance grounds and to consult with each other.
They finally stopped 200-250 metres away from Sundance grounds on rise above encampment on exposed rock. They were on other side of rock on the edge of the forest. From rock, camp was in southwesterly direction. From there, they could see camp. Group was together, but some members went on to exposed rock to take a look. SN stayed on forest side. Saw a structure built there with rocks and a rough roof. They weren't there long. Noticed that rock structure had an excellent view of camp and routes in. He saw smoke in camp so knew there might be people in there. Also heard voices. Now in position slightly pulled back into forest. Saw tents and a car in there. Voices coming from area in camp. One sounded like a male adult, adult female, child or young person's voice - sex unclear. Decided then they were going to spend night. Contacted Tassell on radio to tell him and then set up camp further in bush where they wouldn't be detected. Closest he got that night to camp was to rock. Understood they were camping far away so as not to be detected or come into harm's way.
Awoke before sunrise, cleaned up camp, walked to rock, down through aspen grove, and into low bush area. Clear and "extremely calm" morning. Team was together in patrol formation. Person up front looking forward, side men looking to sides, and person to rear being rearguard. SN was rearguard. In bush area, they were on stock path.
Order came back from Wilby through Greenwood that SN should stay there to ensure no one came up on team's rear. Greenwood came right up to his ear to speak to him. Wilby no more than 20 metres to front. Others were stretched in line between Wilby and SN. On orders to stay, SN crouched down. Once team was out of sight, he moved off path NW of position. He was in bushes described as scrubby bush at chest height. Stock path went through bush in north-south direction. Went off path because it wasn't a wise tactical position. In new position, aspen grove was 10-15 metres from SN. On small aerial photo, he points out camp area, rock rise, aspen trees, and low brushy area. He describes stock path, but it's not on photo. When he moved off path, he was in crouched position.
Says that he heard on radio that team had seen man in cammo, and horses that had looked in their direction. Then heard team was pulling back and pull right out of area and possibly find another observation area to watch the camp. He didn't move. He then heard an undecipherable voice in a question. Then he said, "Who the fuck is that, or who the fuck is it?" Second voice was nearly immediately right after the undecipherable voice. Voice was extremely close. Maybe ten metres away "but maybe adrenalin will do that." Voice sounded like it was right in front of him with camp behind him. Was not able to see anything. He had an obstructed view with only 10 metres in front. He didn't see team, but right before he heard voice, he got radio transmission to rendezvous the team together. Says both voices sounded like they came from the same person. Voice had sort of a native accent. First undecipherable phrases sounded like a couple of words strung together.
Right after second voice, he heard a very high powered rifle. Says it was high powered because it sounded like the RCMP 308 rifle. From position, he couldn't tell which way the rifle was pointed "or who it was aimed at." At sound, he "flattened out". Then heard over radio other members checking to see if everyone was safe. He was told by Callander to go back to trailhead at the aspen forest. He crawled out unaware whether person who fired was in area or not. He moved slowly, cautiously on hands and knees. He moved to aspens and saw team to left. Saw Greenwood, Callander and Overby about 40-50 metres away. They were in shrub aspen area. Once he met up with three, he could see Wilby on other side of clearing on North side. They leap frogged across open area while Wilby kept watch and then made their way away from the camp/Sundance area. On small aerial photo, he points out where voice came from and where team met and crossed clearing. Team retreated in a northwesterly direction towards area they were dropped off, but that wasn't where they ended up. Got to area about 9:15-9:30 a.m., but they had to wait for Tassell. He was back at camp on Aug. 24 with Sarich and Cpl. Hodgkin from HQ ERT. Purpose that day was to drive in marked vehicle in uniform to see if Sarich could open up dialogue with the camp. Drove in from 1000 Road and drove in along lakeshore. At fence, he saw two male individuals whom Sarich had a conversation with, but he wasn't a part of that. Then proceeded north to camp. Sarich spoke to two males from vehicle. Can't describe the two, other than that they were young. Conversation lasted only a few minutes.
They drove to gate at camp and stopped. Observed a male who he was told was a reporter who was in the camp. Sarich got out and went to gate and had conversation with someone, but didn't notice who. He and Hodgkin stayed inside the vehicle at first. The only person he can identify for sure was Percy Rosette, whom he had seen on news and in photographs in briefing notes. Reporter he saw was inside the camp and came to fence when they spoke to two males. Recalls that reporter was Caucasian male in 40s or 50s with blond, sandy hair. They were there for about 15 minutes.
Aware that there were members of the media on the same side of the fence as the police were on. Saw a van and spoke to members of BCTV news crew - one being Clem Chappel. Chappel was agitated and nervous and appeared scared. GW objects to JF leading what Chappel said to him. JF wants to lead for content, not truth because of Defense arguments that media worked for police. J has jury leave to hear arguments.
HR says this is the formula now to let every type of hearsay evidence in. He admits that they use it on occasion, but it's a sloppy way of getting evidence in. If they want to bring Chappel in to give evidence, then fine. J says he would normally agree, but this is a different case because Chappel asked a question and didn't make a statement of what happened. GW says he was caught by surprise and doesn't like objecting in front of the jury and would like it if Crown would telegraph what they will lead in the future. MB/ JF cont'd with Cst. Nordstrum - When he came up to Clem Chappel, Chappel asked if he could go back into the camp. Chappel was told by Sarich that he could do what he wished. If he wanted to go back in, he could go. They proceeded to camp and SN believes Chappel came with him. Thinks there was media there on the police side of the fence. Also believes there was a person from the media on the camp side of the fence and understood this person was staying at the encampment. During time there, there was loud yelling coming from the rock outcropping. Couldn't tell what was being said. Just loud shouting. Doesn't recall who else was around on their side, but says there were people there. After Sarich finished speaking, they left and went back to lake. Instead of turning left to 1000 Road, they turned right and followed along the lake. On Sept. 11, he was working with Kamloops ERT. That day, they were in forward observation post designated "Gulf" on 1000 Road just north of intersection with Lakeshore Road. Bison was there, as well as other small observation posts. In his posts, Macahonic and Coupland of dog service were with him. Other Kamloops ERT members in other posts or at Bison. Bison was 40-50 metres into bush off 1000 Road. His post was 10- 15 metres west and 25 metres above 1000 Road, behind a rotten log. Using log for concealment. They were wearing standard camouflage uniform including hat and jacket and wearing facepaint and same firearms as before.
From this post, he observed what he felt first was a stump, but then thought it was a human on east side of road between road and forest at 9:30 a.m. "The longer I looked at it, the longer I felt it was a human. Then the head looked at me and it was confirmed." Head wore beret and face was painted in camouflage. Coat was also cammo. Felt by size of body that it was male. Couldn't determine if person was carrying anything. Says person was 200 metres away. Person was in a depression at side of road. Doesn't recall what direction head turned. He watched for about 15 minutes before head turned. Asked Macahonic to take his place to confirm his observations. They switched positions. He didn't see that person again. Looked again and didn't see anything. Told Wilby or one of his designates by radio. Plane up above listening to communications also would have heard this. He was at post until Bison departed. He saw Bison proceed southbound on 1000 Road much later in the afternoon. When Bison went southbound, he could hear gunfire from direction of camp to west. Heard gunfire before Bison left. After it left, gunfire increased rapidly. Before Bison left, heard gunfire that sounded like M-16 but sounded faster like automatic fire. At one point, he could hear three different rifle sounds, including something like RCMP 308.
Coupland was having trouble with his dog who was getting anxious and gunfire seemed to get louder so SN moved position up road to meet up with Surrey ERT. He couldn't get Surrey on the radio so they moved north on 1000 Road. At clearcut they went over to east side and then back to west. At one point, he saw three men - one pointed his weapon at him. They were wearing gear similar to them. Clearcut was separating him and three by about 300-500 metres. He was on west side of road, and three men were moving from west to east. They stopped in middle when person aimed weapon at him from standing position. He ordered Coupland and dog off road and he followed. He grabbed binoculars to take a better look, but by then, 15 seconds later, the three were gone and heading east again. He made inquiries over radio to see who three were, but got no response. He asked later and heard nothing. SN and Coupland continued north until they met up with snipers from Kelowna and Surrey ERT who arrived in a Suburban.
On Sept. 17, he was in camp area maintaining security posts. Wasn't involved in arrests. Was involved clearing the camp area and securing the camp at night.
JF wants to show him a video that Sarich has already identified. Video played: Sarich at camp gate on Aug. 24. SN recognizes it as fence where they earlier met two young men. In shot of Sarich, SN says he was in rear. Shelagh seen talking to Sarich. SN recognizes shouting coming from rock area. SN didn't hear conversations from back of seat. Sarich asks if there is anything he can do for anyone. Shelagh says that the only thing he can do is contact the Governor General. SN didn't recognize anyone else here because he was paying more attention to the area where the shouts were coming from. Sarich drives off. SN says this accurately depicts the events of that day.
GW - Re: morning of Aug. 18 - SN says he wasn't nervous until he heard the shot. Says he is trained in this sort of thing, but says he had never been in Gustafsen Lake area. Doesn't say he was uneasy, but says that there is always a measure of uneasiness in these missions. Noticed that morning that it was very quiet. He noted that at 5:20 a.m., they started out from their night camp. He estimates that it took from 10-20 minutes to move through that area. There was a radio transmission that horses had looked at team when he was stationary. He has experience with horses and knows that they are herd-bound and will keep an eye out for the others and look atsomething if they hear or smell something. Time between hearing of horses and the indiscernible voice was some time because there was also mention of a man in cammo. Made mental note that shot took place at 6 a.m. Doesn't know when horses signalled. Noticed that in video, there was a lot of barb wire. During time he waited, he didn't hear any gate opening. Doesn't know how far away he was from gate - maybe 200 yards. He heard undecipherable voice and then voice in native accent. He didn't note sobriety of voice. Admits that he has worked a lot with slurring drunks. Didn't note slur in voice. He then heard "Who the F is that or it"? He didn't hear the word (GW says "I'm gonna say it now") shit. GW: "Shit was not what you heard." He didn't record this in his notebook, but it's something he remembers to this day. He realized that when shot rang out, his order to remain undetected had failed. He knew he would have to tell superiors what happened. He did not hear an officer say "shit" when shot rang out. They discussed together what happened. When they returned to 100 Mile House, he remembered the gist of a complaint from Percy Rosette being phoned in. He learned about complaint in 100 Mile House Detachment but doesn't remember who told him. He doesn't remember being concerned about complaint. Remembers being picked up at about 9:15 a.m.
Heard of complaint before leaving 100 Mile House for Kamloops somewhere around noon. Says it's unusual to get a complaint of men sneaking around the bush in camouflage. Says he can't interpret what person who complained had thought. He had no discussion of complaint with his superiors. Says it wasn't his duty to discuss this with superiors "whose duty it would be, I don't know." Had heard media reports in newspapers of Wilby being shot at, but doesn't remember any reports of how they were dressed.
Re: Aug. 24 drive with Sarich to camp - he was asked day before when he was in Kamloops to accompany Sarich. He left at 6:00 a.m. from Kamloops with Hodgkin. Can't recall weather exactly except it was clear and partly cloudy. Remembers that the roads around Gustafsen Lake were muddy. The left mid-morning, coming in on 1000 Road - he doesn't recall any roadblocks on the road. Doesn't recall seeing a camper coming out when they came in. He wasn't aware why they went in that day. He wasn't aware that there was a police helicopter in the air that morning. He recalls seeing a cameraman with Clem Chappel. SN was wearing summer uniform without rifle. Doesn't recall running into Maclean's reporter. Remembers that camp was somewhat hostile. He doesn't know whether camp was mad at Chappel or RCMP. Doesn't know when Chappel came in. Does know Chappel was following police car. GW suggests that camp was yelling at Chappel. In video, he recalls seeing a man standing to side with camera, but doesn't know if it was CTV. Says that none of the police were threatened that day.
L/ DC - Re: SN's comment that he would only have fired to protect members and the public - says this doesn't apply only to recce, but to all police duties. Confirms that there were no specific instructions for what they would do if exposed during the recce and would rely on common sense. Wilby no longer team leader now, but was at time of recce. Says if he was exposed, he would identify himself as a member of the RCMP. When suggested that they would have looked like survivalists, he says he doesn't know what they would have thought. Says that there were the voices of a male, a female and a child. It was not discussed what people might think by the way they were dressed. It had never occurred to him how parents might react if children were threatened by men in the bush. On hearing the voice and the sound of the rifle, he believed that it was similar to that of the 308. Says the only 308 there in team was that of Callander's. Didn't know where shot was aimed.
On Aug. 24, he met Chappel. Says Chappel wanted to go back in, but not alone. Doesn't recall the exact reason he was kicked out, but understood that it had to do with his conduct there. Gist of Sarich's comment was that Chappel could do what he wanted. SN maintains that he didn't offer Cahppel an assurance of safety, but admits he has a duty to protect him and everyone. Says he never personally offered personal protection.
On Sept. 11, his Bison was Green. He heard some firing before Bison left, but increased after it went by. Clarifies that he heard three different weapons including M-16 that sounded like an automatic. Wasn't aware that C-7s were being used, but understands that they are automatic. Admits automatic fire he heard could have been C- 7s. Re: three persons he saw, admits they could have been RCMP, but it was never determined. MA - Re: Aug. 18, when shot was heard - says he can't show specifically where he was on aerial map because he can't see stock trail. He looks at Overby's drawing and says he is west 10 metres of red mark indicating trail.
Says he carried 30 rounds in his M-16. He doesn't have to sign for weapons or ammo.
At end of Aug. 18, he emptied magazine into shell case in staging area in 100 Mile House. Everyone was responsible for container. This container was taken back to Kamloops. There are no written records of how many rounds were turned in. Says no other ERT members were involved in his recce. Knows "Special O" was at Gustafsen Lake in observation role, but has no personal knowledge of when or where.
SN had mentioned seeing a timeline of events where he saw Heinzl's name. Saw it in Kamloops, but doesn't know who the author was. Has an idea, but not sure.
He was in area from Aug. 28 to the end of standoff. When there, he heard of a "No Shoot Zone", but doesn't remember where. He never saw a map and he remembered borders being mentioned, but doesn't know where they were except that they were around the camp. Understood that the camp was given borders where they could go as long as they didn't act in any hostile way to cause any grievous bodily harm. Doesn't recall being instructed not to shoot into this zone. Says at an Aug. 28(?) meeting in Kamloops, there were 30 members and lasted about an hour. Members were mostly ERT. Olfert and Wilby were there. An operational plan was discussed "but not sealed or written in stone." Moulton was in charge of ERT operations. Doesn't ever recall seeing a written operational plan.
On Sept. 11, he recalls seeing a green van going by with elders. Recalls hearing the explosion of the red truck. Says that the green van passing and the explosion were pretty close together. He heard of elders over radio. There were daily bulletins given further up the road. There were briefing boards - the type with erasable magic markers. Some of the people giving briefing were Hall, Kembel, Gates, Vern Braburman.
Re: Aug. 18 after shooting, they met quickly to see if everyone was alright. When asked if they ran out of there he says, "We patrolled out at a faster pace than we came in." Picked up by Tassell. There were debriefing sessions in 100 Mile House. He made his notes on Aug. 18, but doesn't remember what time. ST - ST notes that SN's notes are quite meticulous with drawings and tight text. Then notes that meeting notes make up four pages. Lots of notes even on days where nothing happened. ST wonders about gap in notes and SN explains nothing regarding Gustafsen Lake happened then.
When Wilby called him on Aug. 17, he was doing general duties. Call he got on 23rd of Aug. was impersonal by Hodgkin. Says he keeps a separate notebook for Kamloops general duties. He did not note Hodgkin's call in that notebook. He recalls Aug. 24 through memory and didn't keep any notes. Aware that Sarich had many people he could have had come along. On drive there, Sarich spoke of his intentions to open or maintain dialogue of camp. He admits that it is part of his duty to note lay of land and gain intelligence. ST wonders why there is no note of his observations. "I can't answer that honestly." He had seen photographs of Percy Rosette before on the news. He agrees that he is a junior member of the ERT team. Says he was asked to go and he went. Remembers arriving in the camp at mid-morning. SN looks at his notebook at Sept. 5th entry. Shift began on Sept. 4th. He began at 20:00 hours. At 21:45, there is a note of FLIR activity. Note of a hot spot in a culvert. Attended OCC (Operational Command Centre) at 02:00 hrs. FLIR is infrared sensor in helicopter. Doesn't know when he got this communication. He and three other members throw two stun-grenades into the culvert. He found nothing there. Looks at large aerial photo, but can't find it.
HR - SN says use of stun grenade was a clearing method. HR wonders if he couldn't have just asked the people to come out. HR: "Isn't a person given a chance to give up before injuring them?" Says O'Donnell threw "stun grenade, I mean diversionary device." Says it's not a weapon, it's to divert their attention. HR: "Let's be serious here, this is designed to hurt people." SN: "I have no personal knowledge of that." (Evidently, he hadn't heard of a military man blowing off his fingers from a stun grenade.)
Crown has run out of witnesses. Jury stood down for the day.
ST - says that a number of items were seized from a vehicle heading into the camp on Aug. 25/95. Weapons weren't illegal or stored in an unsafe way. The officer's notes that seized them have not come out and ST doesn't know what they will say. It's unclear the relevance of this evidence other than creating an incorrect inference. ST doesn't know if incident is only for identification or to link legitimate weapons to individuals. ST wonders if a voirdire is in order. J prefers not to have a voirdire, but ST says it's necessary because he doesn't know what witnesses will say.
LB - says this happened on Aug. 25th on logging road at 5:25 a.m. Expects officers will say that five occupants were in there - Mindy Dick, Francis Dick, Ron Dionne, Brent Potulicki and Stuart Dick. Inside was 12 gauge shotgun and shells, bow, 2 x 30 round clips, 200 308 rounds, a speed loader and cammo pants. Other officer noted Rob Flemming and Sherri Bondi coming through roadblock. LB says it's so relevant that he doesn't know where to begin because a quantity of weapons were seized headed for Gustafsen Lake with some of the accused. Dates critical to indictment. Flemming also seen leaving encampment and then comes back the same day. LB has trouble understanding ST's objection. This places accused in area and weapons generally with them.
DC - Re: Stuart and Francis Dick - since these two are neither owner or driver of car, they are only passengers in vehicle with weapons in the trunk - hence they are not legally in possession. Why should they have to take the stand to defend against this?
GW - says Potulicki was there, but why Suniva's name should be brought up is in question. There is an inference that they are all guilty because of association. Prejudicial outweighs probative value.
ST - says this is a search and seizure issue. There is no warrant to do this and these weapons were not the ones they were arrested for. These officers had a right to lay charges there. J needs to know if ST will be making a charter application.
GW - In nature of re-opening voirdire of statements made by Joseph Ignace to Cst. Russell. There was question of where Richard Gibbs was at 11 a.m. Russell said he was at Red Coach Inn. GW says he has a letter that says Gibbs was with Crown in private chambers with Judge Friesen discussing what to do with Bruce Clark. GW wants to re-open voirdire because this is fresh evidence and goes to question the reliability of Russell's evidence. Was it perjury or was it an error? Gives Crown and J notice.
MA - says that if J rules that prejudicial outweighs probative, then we don't need a charter application. J doesn't want to decide it in stages. Asks Defense to consider options over break. J leaves.
Wolverine tells Rankin to put his Habeas Corpus by Bruce Clark into the Supreme Court of Canada. HR says you have to first go through the Court of Appeals. Wolverine says, "Ah forget it. You're fucken too much a brown noser."
AB/ ST - Wants to bring in the charter application. J wonders if all four witnesses are necessary for the application and all the exhibits. ST happy not to have the exhibits. LB doesn't understand that if this is to do with search and seizure, that ST wouldn't need the exhibits. LB says Crown is very frustrated because these four witnesses will be inconvenienced because they have to be called in early and stay the weekend as well as stay for testimony in front of jury.
HR - Doesn't believe we should be bantering this around. These are police officers who don't care one way or another. Says there is only one person that is being inconvenienced by this - Wolverine has been in jail for a year. "Lets not flog one another." J: "I don't want to join in the flogging because I don't have enough evidence." J says that last minute request for a voirdire was an oversight by Defense, but generally this is sorted out beforehand. J hopes we could start at 9:30.
GW - says that OJ has another court appointment tomorrow in another courtroom so OJ will be late.
* 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