* 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
9:30 start today for voirdire (without jury). Jones and OJ come in wearing their red track suits. Wolverine has a smile on. He gives a little bow to us. J in.
LB - gathers this is a voirdire regarding seized exhibits from a roadblock on the 1000 Road. The voirdire will question whether the search and seizure was proper. LB wants it reflected which accused are here this morning so witness' identification will make sense.
GW and DC will admit identification to streamline process.
ST - contends that this was a warrantless search and the onus is not on the accused to explain their actions. Concerned about LB leading this in a conspiracy nature. The prejudicial value outweighs the evidential value.
LB - First witness: Constable Kathryn Baumber - stationed in 100 Mile House since '91. Familiar with Gustafsen Lake area. In '95, her Staff Sgt. was Sarich. Up to Aug. 24/95, her duties were highway patrols. Got call Aug. 24 at home from some member at 100 Mile House Detachment required for duty midnight of the 25th. Duty was to operate a checkpoint at intersection of 1000 and 1100 roads. Had to check vehicles passing by to see who was going in, search weapons and if any weapons were found, they were to seize them, including ammo and magazines. She was permitting people to proceed to Gustafsen Lake as per orders from superiors.
Got to intersection at 12:30 a.m. of the 25th with partner Cst. Horton. Received briefing from Horton or Hicks at 100 Mile House Detachment. At this time she had knowledge of what was happening at lake from other members at Detachment. Knew Lyle James was owner of property. Year before, she had spent ten days camping at north end of Gustafsen Lake being part of Arrival Club. On large aerial map, she points to north of the west end of lake. She knew of Percy's name and that he was holding a Sundance in area and James was having trouble with him. Fellow Constable was Charlie Andrew. On occasion she spoke with Andrew and she believes he gave her information regarding Gustafsen Lake. Before roadblock, she was aware of weapons incidents, including one of James' cowhands being shot at, Fisheries "incident", "shooting" at three members, and shooting at helicopter.
Thompson and Martin of Ashcroft Detachment were already at roadblock when she and partner arrived. They were there for same reason. Instructions were to obtain names, dates of births, descriptions, where they were going and searching vehicles. Says they weren't preventing people from driving through. Stopped vehicles by having four officers step into road and asking people to stop. Road area not lit in any way. Shift was midnight to 8:00 a.m. Minimal traffic that night on logging road. Road provides access to Gustafsen Lake area and other logging roads and recreational area. Only one permanent resident on road near that intersection. She doesn't know who that person is. Between 5:20 and 5:30 a.m., she stopped small Honda civic with B.C. plate HGE 430. A member told her the car belonged to Suniva Bronson from Pinantan Lake. Car was coming from direction of 100 Mile House. Five people inside. She spoke to driver, Brent Potulicki, who was dressed casually with bandanna on head. She asked where he was going and he said he was going to Percy's trailer.
She understood that Percy was residing at Gustafsen Lake. She asked people to step out, but two stayed inside. Then had others step out to so they could search vehicle. Occupants: driver Brent; passenger Stuart, DOB 1968; behind driver Ron, DOB 1964; in middle Mindy, DOB 1979; behind passenger Francis. She doesn't recall how many produced ID. All were from Chase, B.C. That sent her "warning signals" because "Wolverine, one of the main players" was from Adams Lake in the Chase region. All appeared to be native except maybe Dionne who might have been part native. She describes Stuart and points him out in courtroom. She told people in car purpose of roadblock as being to limit weapons going into Gustafsen Lake, to search vehicles and to seize any weapons found. Officers had no physical contact with persons in car and no physical altercation took place.
They first searched interior of vehicle. They found blankets and sweet grass on dash. Occupants were standing on edge of road and occasionally assisted members to remove items like duffle bags. Found black case containing compound bow and arrows. Also found 200 rounds of rifle ammo, several shotgun shells and a shotgun. While searching, members asked who owned what. Dionne claimed the bow. Nobody claimed ammo. Shadow said friend owned shotgun, but wouldn't say who. Cammo pants claimed by Dionne and black trench coat claimed by Shadow. Also found smoked salmon and rabbit pelts. Only weapons and ammo were seized. Occupants were allowed to "carry on their way" and they went down 1000 Road. Seized items were tagged and placed in exhibit locker by her and Horton. She was there continuously until Honda arrived. Approximately three vehicles passed before Honda arrived. After Honda, one more vehicle passed.
ST - Message on answering machine concerned only the length of her shift. She has no note of who gave her briefing. Thinks it was Horton or ? She says people were free to refuse the search, but doesn't recall telling people that. First question was where they were going. She doesn't remember asking anyone other than the driver. Says it wouldn't have mattered if they said they were going to Gustafsen Lake or not. Said she based it on suspicions. She searched all vehicles and says it didn't matter if they were native and it didn't matter where they said they were going. There was a vehicle they searched that wasn't native. Agrees that regardless of wishes of occupants, they were intent to search all vehicles regardless of answers she got from them. Had no formal briefing of Gustafsen Lake, but gleamed information from fellow officers. Had met Lyle James once. She knew none of the individuals in the vehicle. Had no personal reason to suspect they had weapons. When she searched vehicle, she didn't inform them they had a right to refuse the search. GW - At 100 Mile House for about five years. Gustafsen Lake incident information initially came from what she gained from members. At time of Aug. 24th, she wasn't following events on media. She had indication that things were escalating. This was the first time to her knowledge that road was blocked except for one prior shift that went from 4:00 p.m. to midnight on Aug. 24. Agrees that prior to this shift, anyone could have come in and out undetected by the police. Agrees that anyone intent on bringing in weapons could do so by motorcycle, foot or horseback.
Says that she might have travelled up a few of the roads to break up the boredom. Hadn't been on a roadblock where a member would be stationed a hundred yards up road to see if anyone was throwing things out their car before getting to the roadblock. Says this wasn't done on this roadblock and it was clearly in the open.
Agrees that there were no ifs, ands, or buts about seizing all weapons. No explanation would have allowed weapons past. Knows that before seizing items, you need to have legal rights. But was told to seize any weapons in a car. Understood that Percy and others were status native "Canadians" and knew they had a right to hunt and fish throughout the year. Knows that many natives have hunting weapons, but doesn't know if they rely on hunting to stay alive because she has never lived with natives. She never questioned the authority to seize these weapons because it never crossed her mind and she was only following orders. Had heard that one of James' cowhands had been shot at and believed that. Understands difference between being shot at and hearing a shot. Doesn't recall the exact information she was given. Never had been told specifically what had happened. She heard of a helicopter being shot at just before going out to roadblock, but never questioned the basis of the information. Heard of Fisheries Officers seizing weapons, but in a very general way. Didn't know the circumstances, but she understood occupants were from the camp.
At roadblock, Cst. Horton was the senior officer there. Agrees that in the Constable rank, person with most seniority would be officer in charge. She says that Horton was given orders from a senior member. As a car approached the roadblock, all officers got out of their vehicles at the same time. They then put on their red and blue police lights. There was no attempt to run the roadblock. Driver answered questions quickly and no one tried to stop the search. Inside passenger compartment, no weapons or any illegal substances found. Someone opened the trunk, but not sure who. Agrees that a shotgun found on a native isn't unusual. Shotgun wasn't sawed off - perfectly legal. Agrees that at a normal roadblock at Christmas, shotgun might not have been seized. Doesn't know who put the ammo in trunk or how long it had been in there. The bow too is not prohibited. Bow hunting not unusual around 100 Mile House. She says that shotguns found in 100 Mile House area were only a big deal at time because of what her superiors told her.
Says that Cst. Andrew at that time hadn't been pulled off going into the camp, but isn't sure of what his duties were because she wasn't involved in the decision- making process. Andrew had told her a little of what he was doing out there. Doesn't know what happened to him in camp. Doesn't know of change of policy on Aug. 19.
Regarding other vehicles, she recorded Sherri Bondi, her daughter and husband Rob Flemming. Sherri and Rob went in at 12:30 a.m. and out at 7:30 a.m. There was another older man with him, but doesn't recall his name. Vehicles were searched, but nothing was found. DC - Agrees that the briefing she got was very brief. Primary purpose was to keep the peace. Agrees that if persons would have breached the peace, she would have arrested them. That never happened. Would have arrested someone had they discovered any outstanding warrants, but doesn't recall if she came across any. Understands that briefing she got was formal because senior officers told her what to do. Claims she was well aware of background already, but agrees that it came from informal sources.
DC is finished cross-examining the officer and she is stood down. Wolverine wants Cst. Baumber back on the stand because she mentioned his name. Witness takes stand again.
HR - She noted Wolverine's name because she knew where he was from. Had heard his name in rumour, from the news and from the office. Wolverine had nothing to do with the vehicle.
Wolverine - wonders about her reference to James being the owner and states that this is unceded native land. The onus is on the Crown to prove this is Crown land. No one has proved that this land has been ceded. A judge cannot sit here and judge us. In the Constitution, only two things can happen, a purchase or a treaty. None of this has happened. Crown talks of rule of law. Until there is a purchase, how can they say this is Crown land. I'd like to have an answer before the end of the trial.
MB/ LB - says that there is no issue by Defense regarding the exhibits seized so will not call any more witnesses.
ST - was a little surprised by the lack of further witnesses and asks for a few minutes. J stands down and Defense lawyers head outside for a huddle. DC heard remarking as he leaves, "I might as well sit through some of Harry's irascibilities." Back in the court. Submissions.
ST - We're not dealing with Section 1. Dealing with warrantless search. Referring to Charter #?, sec. 9. Up to Crown to show it wasn't warrantless. She had orders to search and seize. It wasn't arbitrary. Driver and occupants weren't free to do as they please, they were told what to do. Says there are a series of breaches. No law that allows arbitrary seizures without warrants. Searches may have been to keep peace. Subjects weren't allowed a lawyer to ascertain legalities. There was no contraband found. She doesn't know who opened the trunk. Dionne is not given the choice of whether to comply or not. There is nothing to suggest that anyone in vehicle except driver is going to see Percy. Has no iota of belief that they will go on to commit a crime. Items seized were not illegal and they were not committing a crime. This can only go to show they were going to conspire to commit a crime, which there is no evidence to the Constable. GW - In this case, the facts will be very important to determine what was happening up until Aug. 25. It appears the police have inflicted a situation on themselves. They have puffed up a position and then go to act against the puffery. Roadblock was sterile and ineffective at stopping people from walking around it. Clear starting point was Cst. Andrew and Findley. Both stated there were no weapons and a meeting was planned. There were only five people in the camp. What was the problem? Then the RCMP dressed up like a Latin American hit team and provoked a situation. They provoked a shot. The next day, there is a highly publicized press conference where Montague brings out that there is a problem with "terrorists" at the camp. They don't say who is in the camp according to their own reports by Andrew and Findley. Also, there are no roadblocks set up immediately as Wilby was surprised to notice. Now a useless roadblock is set up for the benefit of the media. Helicopter shooting is questionable - there is a lack of consistency between Greening and Leatherdale, and video shows no shots at all.
The police overreacted and made an event. It wasn't the people in the camp on Aug. 18 that created what the Crown calls an armed standoff. No evidence of a cowhand being shot at. He heard shots, but that's all. Police put more emphasis on creating publicity than investigating. Roadblock doesn't fit. Fear was generated, but no evidence was generated that there were crimes committed in the camp.
Isn't it a fact that the RCMP-generated publicity attracted attention and people to the area? Olfert gets on the TV and says there are terrorists up there. What did they expect? There were no AK-47s seized. GW says this was unreasonable.
If this was a serious roadblock, nobody would have gotten in. It was a cosmetic roadblock and then they find a shotgun on a native person? "How remarkable is that?" There's no electricity up there and a lot of ducks. This was unreasonable.
Also mentions Klimson where Court told Prosecution that they can't bring in all these undefendable things to show that something happened. Says this isn't fair because to other accused, the co-accused are shown to be bringing weapons in. This will hurt the balance of accused even if you direct the jury to disregard the items. Car people were not even in possession, they were only in the same car. There is a danger that conspiracy could be suspected and then J would have to instruct the jury that there was no conspiracy. The prejudicial value would outweigh any evidentiary value. DC - Says situation comes down to mechanical factors. Did this officer have reasonable and probable grounds to make the search? Done only by instructions of superiors. Can't be based on office chit-chat or sources that can't be tested for reliability. She had no reasonable grounds. Her formal briefing dealt only with what to do, not why. We see how misinformation and disinformation has been disseminated to the public and the RCMP. There may have been a bonafide peacekeeping role, but that doesn't make them admissible in the court. HR - Remarks preposterous statement that because of Wolverine's address, these people came from the same area. How does his client answer to this? Officer didn't even know his name. HR wants to know what the purpose is of putting this evidence in. "I've been on this case for three months and there hasn't been a single bit of evidence against my client and he's been in a jail for a year." There is a man coming in that will testify that he took a shot at a person 1000 yards away. A man yesterday said he threw a stun grenade to clear people out of a culvert. Soon a man will come in saying he lost part of a hand to one of these stun grenades. It seems like they think if you throw enough mud on the wall, some will stick. Says Crown will have to show how evidence will be used.
MA - says this evidence should be made inadmissible. Cites case which says that a check stop can not be used to check every vehicle other than to check for sobriety or licences. Officer's orders were to check each and every vehicle. At beginning of trial, there was an application to stay the trial because the War Measures Act had not been invoked and J had ruled that the Charter was still in place here. This checkpoint was like an emergency and they could have used a telewarrant. They didn't.
ST - Wants to add Devoe case - there are three basic reasons to search, and none of these apply. LB - Crown not ready to respond to all these arguments. Surprised by some of ST's Charter Sections. Not ready to make submissions without research. Would like to respond either orally or in writing to Defense and then let the J respond so that we can continue with the trial on Monday.
J - says there has been some trouble about this in the higher courts. Wants clarification about oral statements during the search. Prefers written submission from Crown and invites further submissions to respond to the Crown.
DC - explains that in disclosures, there was no mention of oral statements so the Defense was caught by surprise.
J - would like Crown's position on how this will be presented to the jury if the evidence is made admissible.
LB - says he would like a week or two to respond. Says that on Monday, they would like to begin with Aug. 27/95 incident.
GW - says that no one is charged with Aug. 27th incident. Wants it agreed that only the incident will be discussed.
J regrets that afternoon is lost. Adjourned at noon.
* 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