Trial, Week 8: Summary - September 11


WEEK 8: SEPTEMBER 9 - 13, 1996

   * Day 34: Monday, September 9             * Day 37: Thursday, September 12
   * Day 35: Tuesday, September 10           * Day 38: Friday, September 13 
   * Day 36: Wednesday, September 11


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

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

Cpl. Callander (MC) back on witness stand. DC - Re: Sept. 12/95 - MC says that Wescam told team that a person was heading for the dock. He understood that there had been people going to the dock in past occasions. MC agrees that he didn't note in report that man was heading for ERT team. DC asks if it would have been prudent to let the person walk for another ten seconds to see where the man was going. MC says they had a consensus to take him out as soon as possible even if they had another 20 seconds when he would be in clear ground. MC agrees that in his report, he didn't note that man was in any way threatening any RCMP officers. Says that he never raised the legality of the shot with Kembel. Doesn't know of any team members that did talk about it. DC reads from a document and says Kembel gave the "green light" to kill any armed natives they encountered. MC denies ever hearing this. He believes that if this was a note by Kembel that he would have heard about this through Wilby.

Re: Cst. Andrew's information of the camp - MC says that Andrew was at briefing on Aug. 17 with Tassell and addressed the ERT team with all the information he had. Andrew gave one name of a person in there, but nothing else very concrete. Agrees that ERT recce didn't add to intelligence of camp. He also agrees that the only way to keep tab on numbers in the camp was to contain it or to send in daily recces. Says that the 308 rifle he had on Aug. 17th, he didn't have standard model because it was too heavy for hiking through the bush. He used Detachment standard 308 with upgraded scope and bipod. Explains that the M-16 has a 30 round magazine while 308 had only a five round magazine. On day of Sept. 12, he carried M-16 and explains that weapons are selected for the task at hand.

DC wonders about MC's earlier testimony recounting how he thought it was too dangerous and pulled the team back - it sounds like he was in charge. MC explains that he had been a team leader earlier and since he was in the forward position ahead of Wilby, he had a better look at the situation. Says that he only made a suggestion that he and Greenwood move forward of team to take a look and Wilby agreed.

Following gun shot, MC recalls that it was a high powered rifle and from the right. Agrees that it was difficult to pinpoint where exactly it came from, but figures it was 75 metres to right and was fired in their direction. MC says there was some confusion about whether Nordstrum was involved because he had been left behind in the bush area.

In an Oct. 15th statement, DC wonders about last sentences that says that Overby was the only person to see the person in camouflage before he fled and further nonsense notes. MC says it doesn't make sense because he typed this up at 4:00 in the morning. Explains that Overby didn't shoot because he didn't know the exact location of Nordstrum. MC says that he wrote this up after a shift. MC denies that he always makes notes when on general duties. He says that with the amount of duplication, members are encouraged to put their notes into continuation reports unless what they're involved with is going to go to court -then they put it in personal notebooks. He didn't write of Aug. 18 because he didn't think it was going to go to court. DC has MC clarify that weapons found were at Churn Creek and even if aerial photograph was the size of the wall, the creek wouldn't be there.

Re: Sept. 11th - At Perch was Wyton, O'Donnell, O'Gorman and "Paul". Says they heard several hundred shots. When asked about his note reference that he laid down covering fire on request of the Bison, MC explains he isn't sure if it came direct from Bison or from Zulu.

Explains that all four members emptied their magazines from the roof of the Perch. 30 rounds per magazine and four magazines each means 360 rounds from roof. Says two members fired from roof. MC says that from roof of Perch, you could not see the Bisons.

MA - at Aug. 17 briefing, MC says Tassell, Andrew, Porter there. Says he was there for about an hour and a half. Says Wilby may have been taking notes though he doesn't know if it was on foolscap or in ERT notebook. Says ERT notebook is military type with grid on it. Briefing began by Porter who outlined past events. Tassell was next saying that an operational plan was being created and search warrants were being secured. Andrew was next to explain his visits there. MC confirms that Porter had said the land was deeded land belonging to Lyle James and the natives were trespassing. Following recce, Tassell told team that Percy had called saying that there were armed men around camp and Percy thought it was the military. Tassell also said that someone had called Ottawa - maybe someone from the camp. Believes that it may have been the lawyer Bruce Clark that called from Ottawa, but can't be sure.

Says that when shot rang out, MC to right, Wilby ahead, Overby behind, Greenwood ?, and Nordstrum was to MC's right and rear. He couldn't see Nordstrum, but could see rest of team. MC says M-16 accurate from 100 to 200 metres. HK MP5 submachine gun is like M-16, only pinned for semi-auto fire. MP5 has good range only to 50 metres. AK-47 accurate up to 200 metres with iron sights. With scope, 400 metres. 308 ERT sniper rifle with McMillan barrel, Winchester action, good to 600 metres. Says that standard training is for 400 metres. Extra training for up to 600 metres. Agrees that distance from Perch to dock is 1000 metres. Observation post at end of lake to Bison sight 3 km. Perch to Bison scene 2 km.

On Aug. 17 briefing, there were no military personnel. On Aug. 18, he didn't attend Kamloops briefing with Wilby. Oct. 18 report created when he received a CPIC (Canadian Police Information Centre) message requesting observations from any officers involved in any incidents. Initially, Cpl. Smith was only interested in Aug. 17-18. Then second report was requested the next day regarding laying down cover fire on Sept. 11 and of attempted shooting of Sept. 12. Says that no other RCMP members have contacted him regarding Sept. 12 nor has Crown counsel.

On Sept. 12th, he heard radio broadcast from Wescam of man in camouflage walking away from camp - this spurred them to scan the lake. Says that at one point, he was handed a 25-45x variable power Bushnell spotting scope on a tripod. Says he could see person with naked eye and could tell it was a man dressed in green. Then he looked through spotting scope for about 30 seconds. Says that he saw a male, heavier than average build, wearing cammo jacket with scrim or "Gilly suit", which in ERT terms describes the dyed burlap strips attached to their jackets. Claims that he felt person was of a dark complexion and he felt at the time he was a native male.

During 30 seconds, he says he observed the man carry rifle at a port arms position. Says at time he concluded that it looked similar to an AK-47. MA says that in the statement, he said for sure it was an AK- 47. MC explains that there are different makes of AK- 47s. Says AK had natural grain colour and metal parts were black. Says there was no black tape wrapped around the stock. Says he could see some of person's hair and recalls it being shoulder length. Can't remember if it was tied up. After team looked through the optics, they decided male was native. Wyton and O'Gorman also looked through spotting scope.

MB/ MA says he isn't quite finished because he has a video to play. MA asks MC who in the Wescam airplane spoke to him. MC thinks it was Staff Sgt. Vanderbass. Wescam video played. MC identifies two docks on lake. Figure seen walking down road. MC says it's hard to ID what is happening because video is taken from the air and he viewed scene from the ground. Person is carrying a coat. Man seen running now and lays in rut of road. MC says this is consistent with what he saw when man hit the road. MC confirms that the second and third shot happened when man was laying in rut. Man laying on road for a long time. MC estimates that man was in rut for about three or four minutes. While watching tape, MC agrees that it may have been five or six minutes. Tape plays on and dock seen clearly in front of that person. MC says he isn't aware if an ambulance was called. MA asks J to stand down court so Defense can view the video without jury present. J stands down court. Jury and J leave. Defense watches the video. OJ says that he doesn't see any cammo or any gilly - "Someone should revise his statement." The courtroom is quiet. Suniva and Trond are giggling. Then she tells Trond this isn't a big top. Trond says sure it is because there's "Monkeys and Lions and Bears."

DC looks into gallery and sees Doc (Hill) sitting there with a nice coat on. DC: "Hey Doc, did someone get married or die?" Doc laughs and GW says, "There's a guy out there somewhere without a jacket on." Everyone cracks up.

J back. MA asks that Callander be brought back another day when the radio transmission tapes are made available, so we can watch the video and hear the transmissions at the same time. J agrees to bring witness back later. Jury back.

MA cont'd with Cpl. Callander - radio log of Sept. 12 says first shot fired at 8:31 a.m. and log says that 20 minutes later, they notice the person is gone. MC says that it's possible that person was there the whole time. MC agrees that there appeared to be a towel or coat slung over his arm on the videotape. MC can't say whether or not the person's hair was light coloured on the videotape. Video made the next exhibit. Defense can cross-examine regarding the new exhibit. DC - MC confirms that yesterday, he said person appeared to be walking along the road towards the west side of the lake. Video shown of person just before first shot. MC agrees that person has left the road and is heading for the dock when person reacts to shot and runs back to road. MC agrees that yesterday, he said he didn't believe person was going to dock to wash because he wasn't carrying anything other than a rifle. Now agrees that person was carrying something else. When asked if he now agrees that the person was heading for the dock, MC says that he can't say what the person's intentions are. DC says it's clear after the shot when he runs for the road what his intentions are. GW - MC agrees that on video, he sees no shadow or anything resembling an AK-47. Agrees that yesterday, he testified that he saw a man wearing cammo and a weapon with a banana clip. GW suggests that MC, being a member of the RCMP for 21 years, would never intentionally mislead a jury. MC agrees. GW suggests that MC knows of hunter investigations where a hunter swears that he thought he saw a moose and instead it was a human. MC knows of this. GW suggests that hunters will see what they intensely want to see and MC has heard of this. MC maintains that he honestly testified that the person was armed, but when GW suggests that there is no weapon seen in the video, MC says you can't tell that from a video because of how the light is.

MC admits that he never told the jury yesterday of a coat the person was carrying. Denies that it was a case of mistaken identity.

GW suggests that he is afraid to admit that he might be mistaken. "No, I'm not afraid." GW rolls video again. MC agrees that person has slung something over his shoulder. MC says he never saw the cape through his scope. MC reluctantly admits that the person was wearing an off-colour shirt - maybe red. Agrees that what was thrown down on road was not consistent with an AK-47. GW: "I'm not suggesting that you lied. I'm saying you misinterpreted and the video has assisted you in your recollection." MC: "Yes, the video is different from my recollection." Agrees that the video has raised some doubt in his mind about what he remembered. MC: "Yes, that's fair." Realizes that this video was created by RCMP technology by an operator that would have no reason to distort the image. GW: "You'll admit that this video has raised some doubt in your mind about what you saw." MC: "Yes."

ST - Would like to play video again later after he's done some timing to correlate it to other events. SF - MC says that he spoke to Cst. Andrew on Aug. 17th. MC doesn't recall if Andrew or Porter gave the background to the events at Gustafsen Lake. MC understands that Porter or Andrew told him that Lyle James wanted to evict natives there. Also heard that there had been a Sundance ceremony in July and they hadn't left after the ceremony. Remembers that Andrew said that the people in the camp believed they were on Indian land. Knows George Findley because both are at Williams Lake. Doesn't work directly with Findley. Wasn't aware that Findley was attending Gustafsen Lake and had written up a report on historical background of the area. Knows that Chilcotin and Shuswap people live in area. Didn't know that people at Gustafsen Lake were Shuswap, but may have been told that Andrew was Shuswap. Says Andrew didn't tell him that many of the people at the camp were Shuswap. Doesn't know if the area is traditionally Shuswap. When asked if he has friends that are Shuswap, he says he has many First Nations friends, but doesn't know which Band they're from. SF wonders if he knows the difference between Bands and Nations and he understands that Bands were created by the government and Nations existed before contact with the colonizers.

When Bruce Clark called in on Aug. 18, his supervisor was Porter. Isn't aware of letter requested by RCMPfrom Clark regarding the legal position of the people in the camp.

L/ SF cont'd with Cpl. Callander - MC understands that Dennis Ryan was a negotiator. He wasn't aware that Clark had told Sarich that the people in the camp were standing on Constitutional rights. Claims he was aware of Clark's involvement through the news. He wasn't aware of Clark's position through the RCMP - only through the media. Wasn't aware that Clark had told people at camp that they were legally right to protect their own land.

Reiterates that he hadn't heard of no-fire zone until an hour after they shot. He doesn't believe that not knowing the position of the camp compromised them being there. He doesn't believe it's important for all members below command to know all that was going on. SF wonders if it's not important for a sniper to know before he shoots at people whether or not they are legally correct being somewhere. He agrees that as a human being, he has a responsibility to do more than just obey orders. He says that he was given information from superiors of what was going on, but SF suggests that they were only given partial information.

MC agrees that Constitutional law is the highest law of the land. He understood that the position of the camp was that the land was sacred and they were making a claim to their traditional lands.

SF reads from Constitution Act which upholds 1763 Royal Proclamation. He had read it and understood basically that the natives have existing rights. SF asks if knowing this wouldn't make what he was doing murderous? LB objects. SF asks if people in the camp are correct in their position, and the RCMP are shooting at them, wasn't he concerned that what they might be doing was murder or does it concern you now as a police officer? MC: "No, that doesn't concern me." She wonders if his superiors had placed him in a position to compromise his morality. SF says that the court doesn't want to recognize Constitutional law. She wonders if a year ago, when thousands of bullets were fired at the natives, wasn't the RCMP guilty of attempted murder? J won't let her ask that.

She asks that if the land was unceded, wouldn't the RCMP have been unlawfully there? J says it's not a proper question and he is the only person that can interpret the law. SF asks J to interpret the law then. J won't and says he wants her to continue her cross-examination.

SF asks if he is given full information from his superiors and he says no. Prior to Aug. 17, MC says that Cst. Andrew was kept from going in past the fence, but SF says this is inconsistent with Andrew's testimony who said that he was drinking coffee and joking around.

ST - MC confirms that in the video of Sept. 12, opening shot is of lakeshore in front of docks. He agrees that he testified that he wasn't aware of person until Wescam reported in. ST wonders how long it took between Wescam spotted it and ERT members saw man. MC says Wyton and O'Gorman found man quite quickly through spotting scope. MC looked next. Says this took a couple of minutes. He saw man walking along lakeshore road. First shot was 8:32 a.m., three minutes after Wescam spotted him.

ST wants him to watch video again to look for a reason why he may have missed man removing jacket. Video played. ST puts it to MC that in the time period from first seeing man on video to the time he drops down onto the road, a number of communications are made securing permission to shoot. MC agrees and says he was there with Wyton when he was on the radio. ST says that right before the shot is fired, in the radio log, someone confirms that there was a rifle in the possession of the man. He can't remember if it was Wescam or men at Perch that confirmed weapon. MC agrees that from the video, there is nothing to suggest that person has a rifle. Agrees that when man flings coat over his shoulder, it's not consistent with a man holding a weapon at port arms position. MC can't say that man isn't holding weapon in port arms position, but says his view wasn't necessarily better than Wescam's. ST reminds MC of testimony that he categorically denied that weapon was slung over shoulder and maintained that he carried it in port arms position. MC agrees that he has doubt now. "After watching the video, yes, there is some doubt." MC says that in video, it appears man was laying there for 20 minutes.

Agrees he was upset that superiors hadn't shared all pertinent information. Agrees that later, someone realized a mistake was made and a report came over radio of no-fire zone. He denies that at 8:33 a.m., they made a transmission wondering how long it would take to retrieve the body. He can't recall Wyton saying subject was laying 20 metres from dock. Confirms that purpose was not to arrest individual. Confirms that he wasn't fleeing from officers trying to arrest him. Says there is nothing on the tape to prove that shooting the man was essential.

He says that his belief was that man was a danger to other ERT members. Denies this was an excuse made to justify their shooting. Says authority had been given to kill man.

Agrees that later, they had some concern about legal action arising out of the shooting, but no Crown counsel or police ever spoke to them about this. Says that at west end of lake, men stationed there were likely armed with M-16s and wearing body armour. Says that men would have been aware of person over the radio. MC says distance between person and ERT team at west end of lake is less than the two km that ST suggests. MC checks this on the map and confirms ST's estimate that person was indeed two km away from ERT team at "Lion" and "Monkey".

LB - says SF had asked for B.C. flag to be made an exhibit and has it. He wonders if she still wants it. SF: "Yeah, sure, that would be great." Jury cracks up. Wescam video made Ex. 201.

LB - Next witness (#32): Cst. Joe Kohut (JK) - Seven years on force. Aug. 27, he was on road going to Gustafsen Lake. Asked to go to CP (Checkpoint) 2. Was requested by team leader Clelland. JK member of ERT for two years. Got to CP 2 at 2:00 p.m. Clelland told him he should go to CP 1. Then told to accompany Forestry workers to fallen tree. With Molendyk. He was wearing combat blue pants and "Beast". Two other vehicles with him. Clelland, alone in Suburban, led. JK and Molendyk followed. Then Forestry workers. Then Morrison and dog. At trees, he took position on camp side of road on a berm. Trees were further west down road about 200 yards from his position. From this position, he could see three vehicles and first downed tree. People were on road looking left toward 100 Mile House. Says Morrison and dog cleared area before letting Forestry workers in. He could see north about 1 km, south 400- 500 feet. His purpose was to keep observation of area. His area hadn't been cleared. Clelland was with Forestry workers. Molendyk was across the road from JK down a bit. He lost sight of him. JK's position the most northerly point.

He heard chainsaws running for ten minutes or so, just as first log was finished, when he heard hollering and yelling. He didn't see anyone. Then saw person walking up the road, walking and waving his hands. Person was quarter mile away. Couldn't tell sex. Hands were above his head waving as he walked. JK indicates both hands up. Saw red shirt and something over his face. He went over berm to tell his workers what he saw. Thought thing on person's face was like a handkerchief. Didn't see person carrying anything. JK ran to fellow workers and still saw person. Then he saw a second person come on to the road as he glanced back quickly. Second person was 100 feet behind, just coming out of the treeline onto the road. Clarifies that second person would have been looking at first man's side. Again, can't tell if person was male or female or what person was wearing. Both had stature of an adult.

First person was in his view for a minute. Person was walking at a fast pace while he waved. JK ran down to team leader to tell Clelland just past first tree. Morrison was there. Took him about 30 seconds to cover 200 feet between his post and team leader. AB/ John the interpreter needs to leave and there are no complaints.

LB cont'd with Cst. Kohut - JK told Clelland what he saw and was then told to escort workers out of there. He noticed that both trees were clear now. Forestry workers had just left and Clelland and Molendyk were just getting into their vehicle. He heard distant shots coming from camp side of road, right across from his vehicle which was pointed towards the trees. He waited for Morrison to turn around.

Heard more gunshots coming from bush and saw bullets hitting road around him. JK assumed that Clelland was going to go to his vehicle. Says first shots weren't really that loud, like "pop, pop, pop". Second volley was closer and more rapid. Figures he heard about ten shots. As he was leaving, he heard another 40-50 shots. Says the different shots were coming from different places. Sounded like people were lined up and firing as he drove by. Morrison and his Suburban was now ahead of JK's. Third Suburban was still facing trees. They travelled 1.5 km before Morrison stopped. He kept checking his mirror looking for third Suburban, but it didn't appear. He thought when he was originally turning around that he heard a ping and thought he had been hit, but later when he checked, he saw nothing. Saw two or three bullets hit ground near driver's door and ditch next to him. After Morrison had stopped, about three minutes later Molendyk and Clelland finally arrived. As vehicle pulled up, he could see back windows were shattered. Molendyk and Clelland left the damaged Suburban there and rode back in the other Suburban. Regarding the two people JK had seen on the road, he stated that he never saw them before or after the shooting incident.

No questions from the Defense.

LB - Next witness (#33): Cst. Barry Allen Morrison (BM) - Stationed in Prince George for seven years. He's a dog handler. On Aug. 27, he was directed to Gustafsen Lake. He is also an ERT member. He met up with Clelland and team at 2:00 p.m. and was assigned to accompany Forestry workers. His role was to stand guard. BM is about to describe what his dog smelled, when ST objects. ST wonders if BM will be qualified as an expert dog handler before leading any evidence regarding his dog, claiming "The dog has a nose, it's not his nose." LB has BM explain his qualifications. He took a 100 day course and is now qualified to be a person to interpret his dog's reactions. Dog's name is Rico. His qualification paper is made exhibit. Defense admits his qualifications with no questions. BM says that when he got to area of logs, the dog picked up no human scent. Command is "search". Dog reacts with upright head, wagging tail and becomes much more alert. Says that ability to detect scent can be thwarted by wind and weather, but was confident that day that dog hadn't detected human scent. Following the dog clearing the area, he took up a position north of fallen trees. From this position, he could see road, but his attention was directed away from road because wind was coming from there and from the camp. Says this was a great advantage to the dog being able to detect scent.

Trees were just below from where he was standing. When first tree was removed, he and dog stayed there. On removing second tree, he and dog moved down 50-100 feet next to that tree. Just when they cleared second tree, dog jumped up wagging his tail, sniffing the air. Then a yellow Lab-type dog ran up to him. Police dog was still on alert smelling other scents. Says the dog is trained not to react to other animal scents. They discourage dogs from socializing with other animals. BM told Clelland of news. Dog was still reacting to "something" in bush. "Something" would be human or anything with human scent. He knew the area was void of any houses and this dog was comfortable socializing with other people. They also had reports of other dogs. The presence of the yellow dog indicated that there were people present. He told Clelland, and from information from other member, they told workers to get out. When he was turning vehicle around, he heard about five shots.

As he drove off, he heard more rapid fire like semi- auto fire and then heavier shots like a shotgun. Bullets hit the ground and knocked stones flying into vehicle. Says first five shots sounded like they may have been fired into air to scare them off. Rapid fire followed along with other shots. Can't say how many. Figures that shots were coming from both sides of the road. He figures some of the shots came from the camp side because of how the stones were kicked up. He didn't see anyone.

They drove up road and he stopped to make sure everyone was together. He tried to raise Molendyk and Clelland on radio. Those two finally came around bend waving hands and they continued up road another eight km before pulling over and checking everyone out. They saw shot-up vehicle wasn't suitable to continue driving so left it there.

No questions from Defense.

Jury leaves.

LB - Wants to give official notice of releasing evidence for further Forensics testing. He wants bullet fragments from vest, tires and other things to be tested further. He is giving three day notice of application. HR says that the Defense agree already and no notice is required. J appreciates this.

   * Day 34: Monday, September 9             * Day 37: Thursday, September 12
   * Day 35: Tuesday, September 10           * Day 38: Friday, September 13 
   * Day 36: Wednesday, September 11