Trial, Week 8: Summary - September 12


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

Without jury.

LB - Outlines an application to Madam Registrar about releasing evidence. Says it will be returned Sept. 15. Defense fine with this.

Jury in.

JF - Next witness (#34): Cst. Gordon John Molendyk (GM) - 21 years on force. Member of Prince George Detachment. On ERT since 1985 on and off. Called in to Gustafsen Lake in August 1995 to bolster numbers at checkpoints. Aug. 25, 17:00 arrived at 100 Mile House. Began shift that night at Checkpoint 2 with two Ashcroft general duties members. On Aug. 26, he was at Checkpoint 3 further down road from Gustafsen Lake. Shown Ex. 5 of map and code words or roads. He clarifies that map he had, Checkpoint 2 was C at time. Night of Aug. 25th, he was at Checkpoint C. Night of Aug. 26th, he was at Checkpoint E. E is intersection of 1000 Road and road that passes north of Gustafsen Lake. Started shift at 16:00. Came past E shortly after, around 16:30. Says that between E and D, the road was clear.

On Aug. 27th, he was called in early. He arrived with three others. Went with Clelland, Kohut, Morrison and self. Wearing urban commando dress - dark blue pants, black top and the "Beast" - bulletproof vest. He carried M-16 and Sig Saur 9mm pistol like others (except Clelland who carried MP5 submachine gun). He never spoke to Forestry workers that they accompanied. Police drove unmarked police vehicles - three Suburbans. Clelland in first, GM drove second with Kohut in his, and Morrison drove third. When they arrived, there were two large logs on the road which you couldn't drive over. They parked on right hand side of road, police vehicles in a row. Forestry truck in middle. Tree was 20-30 feet in front of lead vehicle.

Once parked, GM, Morrison and Clelland checked out area. They mostly checked the road around the trees while Morrison checked out part of the nearby bush. GM took position at top end of second tree opposite camp side of road. He knew Clelland was near workers. Morrison was in charge of area above trees, Kohut watched area around vehicles. He could see intersection of lakeshore and 1000 Road. He kept eye open for activity.

At time second tree was cut, he noticed yellow dog coming out where Morrison was with his dog on west side of road. He could see the dog come right up to Morrison and his dog. Couldn't see anyone else. Clelland ran up to dog man. Brief discussion and then ran back down to Forestry workers who put gear away. He could then hear teammate up at vehicles start hollering. He left position and went to vehicle where Clelland was getting in. Saw other members running back to vehicles.

Kohut was just getting to his vehicle when GM was about to hop in to his own vehicle. Forestry workers were in their vehicle and were starting to leave. He heard gunshots that sounded like "pop, pop, pop." He was standing on driver's side at back of vehicle and then ran to passenger side yelling something like "let's get the hell out of here." Says "pops" were coming from bush area near second Suburban. Sounded almost like pistol fire like a 9mm. Not a high calibre. Says it was a bit distant.

Once they got into vehicles, there was a loud volley of gun fire, high power rifle fire, sound of something like full auto fire, and the sound of a shotgun. Then heard vehicle getting hit. He was in passenger side and when he heard fire, he ducked head behind door post. Vehicle is backing up when fire began. They backed up for a total of maybe a kilometre.

Says he heard three different types of fire: pistol, high-powered rifle and a shotgun. He is a range officer and has fired numerous calibres of weapons. Trained with six different weapons in RCMP - he's a hunter, and has fired weapons since he was young. Aware that glass was hit in vehicle as was the side of the vehicle, all on his side.

While he was crouched down, Clelland was trying to get as low as possible while driving. GM got on radio. Clelland said "Gord, we have to return fire." He held M-16 out of window and fired into bush as a defensive move. He never saw anyone. Says Clelland and him were firing simultaneously at one time. While they were backing up, he felt something hit him and felt a burning sensation by his belt. Told Clelland he was hit. Right at same time, Clelland reported being hit too. GM told Clelland to lean forward and he checked his back. GM told Clelland that there was no blood and to keep on going. He realized as they were backing that a tire was flat. Saw other vehicles driving towards them and Clelland told others to keep going back. They all continued down road. Says he heard hit in upper part of back and then felt burning sensation. At time, he assumed it was a bullet. Later when they turned around going straight, he reached under belt and pulled out a slug (he's scratching his neck and pulling on his collar during this line.) "Then my training took over and I felt I didn't need this anymore and tossed it out the window." Describes the slug as a rifle slug. Says firing lasted maybe 45 seconds while they were driving. Says firing stopped after they cleared the brow of the hill. (Someone in the courtroom farts and half of the jury have to cover their faces as they crack up. OJ is covering his nose.)

GM checked his magazine and counted his remaining rounds. Says that when they checked vehicle they saw there were two holes through the glass behind them, the gas tank was leaking, the tire was off the rim. Says he noticed that two holes in window at rear of vehicle were in the bottom window corners. They took everything movable out of the vehicle and went to other vehicles. They drove on and stopped short of Checkpoint 3 where they were looked at by ambulance. Says he noticed no injury of area where he was hit. Says there was a small burn in the shape of a bullet just under belt area near spine.

He looks through photographs in book and says that photos were taken at 100 Mile House. Photo 2 is of GM taken at Detachment. Photo 11 is of burn mark. Ex. 113, bulletproof vest, is shown to GM. Looks at it and says it's the same one he wore. Tear marks are consistent with where he felt he was hit. Returned back to duties a few days later. Went home again and returned following the "surrender." Later returned to 1000 Road and returned to site of shooting. He shows area on small aerial map.

HR - GM says he had can't recall if vest had "Police" insignia on it. Says insignia is removable. Vest was taken from him and he doesn't know what happened to it. Agrees that insignia is not on this vest now. Regarding bullet he threw out the window, he says he can't specifically say where bullet was tossed, but has rough idea. Doesn't know of anyone searching for round with metal detectors. He never discussed it. He agrees the situation was serious and he did give a statement where he described throwing the bullet out. He never made a suggestion to use metal detectors to find it and doesn't remember Cst. Russell, the man who took his statement, suggesting it either. MB/ HR - GM has another vest shown to him (Clelland's). This one does have "Police" insignia on it. GM rips off the insignia to demonstrate removability.

GM says that wearing insignia is dependent on situation they're going into. GM says he would wear it in an urban situation or at a road check during the day. Figures that he probably didn't wear it on day of shooting if it's not on his vest now.

No other questions from Defense. JF shows GM Ex. 114, a sketch he made following the shooting. (Another fart from OJ, sheriff moves away from OJ. OJ inches his chair closer to sheriff.) GM goes over his drawing identifying features. Star is his position and arcs indicate what he's responsible for. No further questions from Defense.

LB - Next witness (#35): Cpl. David Gregory McCullagh (DM) - Ten years on force. In air section since 1994. Helicopter pilot for 20 years with 20,000 hours flying time. In Aug '95, involved at Gustafsen Lake. Operated a Bell Jet Ranger. Arrived about Sept. 1. On Sept. 7, he was flying in Gustafsen Lake area. He was transporting people to 19 km mark on 1000 Road. Two passengers in back, Sgt. Gates up front. Doesn't know who two passengers were. At 10:55, he got radio request from members at 29 km mark to give them a hand by doing an aerial search of area. He dropped off two passengers at 19 km mark and then flew to 100 Mile House to pick up Frank Pitts, a FLIR operator. Got him at 11 something that morning. Pitts was in rear on left hand side. Left 100 Mile House and went to 29 km mark and went to area where members asked them to search.

On Ex. 5 of map, he says 29 km is D. Says this is about 5 km from E mark at Gustafsen lake. Says members on ground indicated that something was in the bush towards Gustafsen Lake. Went down "Monkey" road westbound and searched for anything moving. Flying at 1500 feet and didn't see anything until they rounded bend, two km down road and spotted red pickup truck parked at side of road. No one was seen around truck. Says they were directed to fly at a minimum of 1200 feet in case of gunfire. As soon as he saw truck, he veered to right, northwest and descended to lower altitude. Descended to be out of range of sight. As he banked, he heard four distinct sounds that sounded like gun shots. Distinct "tack tack tack...tack" sound. At time, he was wearing a flight helmet. Was sitting on protective equipment and wearing protective vest. Says helmet enhances voices inside helicopter and cuts down high frequency sounds of helicopter. He still heard "tack" sounds. Not very familiar with guns, but has qualified with pistol. In training with ERT, he has had members firing out of flying helicopter for practice.

Once he banked right, he flew north for about three minutes and then when he felt safe, he climbed to 5,000 feet. Five minutes after, he returned to area of truck and saw truck was still parked in same location. Observed it for ten minutes and then it started moving in direction of camp. It moved slowly. He didn't see anyone around the truck. Truck made its way back to Gustafsen Lake camp, but he didn't see anyone get out. He had to return to 100 Mile House then because he was low on fuel so another helicopter in area took over observing the red truck. Says that helicopter isn't armoured in any way, but he sat on protective vests and wore one too. Back at 100 Mile House, he had engineer go over helicopter with him to check for any damage. They found none.

HR - DM confirms that they were directed to fly at minimum of 1200 feet. Doesn't remember who two passengers were at back of helicopter. Can't even say if they were RCMP officers. Says Sgt. Gates had the two people ride in the helicopter. He didn't check people because they were under Gates' instructions.

He picked the two up at 100 Mile House airport. They wore suits. Took them to 19 km mark on 1000 Road. Never saw them again. Doesn't know where men went after dropping them off. They were picked up at 10:40. It would have taken them seven minutes to get to 19 km mark if they went directly, but they didn't fly direct. Flew over 100 Mile House and followed road to 19 km mark. There was a police presence at 19 km mark. Doesn't know age, but says they were Caucasian and spoke English. Says that normally he would check to see who passengers are to see if they are authorized. This is the first time in his 20 year career that he didn't know who his passengers were. Agrees this was unique. Says Sgt. Gates introduced them. Gates told him men's names and reasons they were boarding helicopter. He remembers neither. No more questions from HR, but he mutters "it sounds like CSIS." ST - asks if men were picked up at Peace Arch. DM says no. ST suggests that names were Riemer and Camphouse, but DM doesn't recall.

GW - DM doesn't recall occupation of two men in suits. DM says that media area was at 17 km mark. Agrees that there were many trailers there and it was a large production. Agrees that media had invested a lot of money and personnel in area. Two days prior to Sept. 7th, he recalls a story of RCMP officers being stalked in the night. GW wonders if DM knew that the police emptied their weapons into the bush that day, but DM not sure of details. Hadn't heard that in "Monkey Tiger" area, police often took shots in the woods. Didn't know RCMP weren't accountable for shots they took. Wasn't aware that at any one time in that "Monkey Tiger" area, there were 100 officers there. GW wonders if two passengers were media, but DM doesn't think they were. Admits they could have been media. When he flew out to check out road with FLIR, he didn't know what he was looking for. Admits he heard the sound of what he believed to be gunshot, but never saw anyone firing at him. Agrees that it's possible that the four shots weren't directed at him. Also admits it could have been people doing target practice or the RCMP firing out of boredom. Heard the next day on the media that the helicopter had been shot at. Admits that he doesn't know if the helicopter was shot at and that there's a difference between what the media reported and what he knew. Never spoke to Montague, but knows who he is. Admits he never went to Montague to tell him that he only heard four shots. Agrees he was never prevented from telling Montague what happened.

HR - HR says the two passengers were Riemer and Camphouse, were Americans, military men or Deputy Sheriffs. DM denies knowing this is who they were. Doesn't recall if they spoke in American accents. Says occasionally, he carries civilians when on search and rescue missions - civilians who are specially trained for search and rescue operations. Agrees that no civilian is going to go joy riding in an RCMP helicopter. Says other than search and rescue people, he has never taken civilians on board. When asked if he has ever allowed a senior officer to take civilians along a flight, says he would have to have authorization first.

DC - DM says he took media people once on flight from 100 Mile House to 19 km mark. Doesn't know who theywere or for which station they worked. Thinks it was on request by Montague. Not sure if this is a strange event. Says he has taken media before on helicopters when Detachment Commander asks him. Says he only does so if there is a request from a Commander. Agrees that when media is invited, they are controlled by the RCMP. Two passengers he took on Sept. 7th were not media.

Says that there was conversation between Gates and men in suits, but only recalls Gates was showing them around. Says there was no indication that they were agents of the American government. Now says he can't recall how they were dressed and even if they wore suits. When he flew at 1200 feet and began banking, he agrees that the sound can get louder. Agrees that he heard shots when he banked, but isn't certain they were gunshots.

MA - Re: Sept.. 8 statement he made: There is no reference to two people he picked up. He made no notes. MA asks jury and witness to leave. They leave. MA - says there are disclosure problems. On March 26/96, GW had requested all RCMP notes including statement by Gates and Pitts. On Sept. ?, MA asked for Gates' notes and this morning, he received over a hundred pages of notes. Many pages are illegible as are some of the Sept. 7 notes. MA will not cross- examine until proper disclosures are made. Some pages are black and writing is illegible.

ST - says we're going to need to see the originals. JF - explains that many of the entries were made in pencil so won't photocopy any better. Gates has written a summary of the Sept. 7 incident. Says this witness's testimony won't be impacted by notes. Says that Gates is scheduled tomorrow. J wonders if a laser copier wouldn't reproduce these better. JF says they only have regular copier. HR wonders if notes can't be typewritten up and J says there is a question of time. HR says people can be hired to do that in a short time. L/ OJ singing in cells. He comes out smiling. OJ: "Hey, it echoes in there."

GW - says that charges OJ was up against in Kamloops were stayed. Now he wants original bail revised and that he be released on his own recognizance. HR - Regarding Wolverine's bail, HR says the J had wanted to see more of the case the last time. HR says that no evidence has come out against Wolverine and wants to give Crown notice of bail review. JF - Has Sgt. Gates' notes and they are the same as those that she has just given to MA. Crown's position is that they don't have to submit supervisors' notes regarding investigations. They have submitted them because of a request, not because they are relevant. Says there may also be notes that are not relevant or of a confidential nature. Claims that these notes are not relevant nor necessary and just because a person is on a witness list, doesn't mean these person's notes are required. J says that if the notes are going to be made available, shouldn't they be legible. He says that most of the new notes are now legible.

MA wonders if JF has said that they are not obligated to provide notes of witnesses. J explains that the Crown has said that until the witness is on the stand, documents aren't necessary until witness has made them relevant. MA says the problem is that Gates' 120 pages of notes only arrived a day before he's due to appear. These would have been relevant before Cpl. Callander appeared. Says the Defense's ability to cross-examine has been made difficult because all notes of senior officers haven't been disclosed.

Jury and Cpl. McCullagh back.

MA - DM clarifies that other than two men in suits, he also flew other civilians like the press. Agrees there is no mention of these people in his reports.

Says that he started flying around Aug. 25 and flew up to Gustafsen Lake some time in Oct. Between Sept. 7th and 18th, he has no idea of how many times he flew. Roughly flew about three to five hours a day. Says that this includes civilians and RCMP passengers. Figures he flew about three or four flights with civilians. One flight was with media, but isn't sure of date. Other three or four flights were to take people from Gustafsen Lake area, but isn't sure who instructed him. Other than prisoners and two mysterious men, he flew no other civilians. Says there is no written manifest of passengers they fly. Says he does record number of people in aircraft logbook. This stays with the helicopter. He doesn't have a copy of this book, but there is one at Kamloops. He was never asked to produce this to the Crown.

When he flew media people, it was on instructions by Montague. Doesn't know how many he flew, but did take them to 19 km mark and then flew them out an hour and a half later. OJ tells MA to "ask what equipment they had." MA laughs, nods and asks the officer "what equipment did the media have?" DM says they had equipment, but doesn't remember what kind. GW thinks it's funny that OJ has helped.

JF - Next witness (#36): Cst. Frank Paul Pitts (FP) - stationed at Prince George. At 100 Mile House in August 1995 and had been stationed then at 100 Mile House for four years. He is a FLIR operator. Describes FLIR detecting heat and says he has a monitor that he looks at. Trained in May '95. Sept. 7, he was asked to report to 100 Mile House. McCullagh flew and Sgt. Gates was in passenger seat. He understood that around the 29 km mark, activity had been noted and they were to look around the area. Once on board, he turned on FLIR equipment and set it up. Weather was clear and sunny, 28 degrees celsius. Equipment was cooling during the flight. He made no observations during the flight to the area as he was waiting for equipment to cool.

Understood from Gates that he was heading for 29 km mark. As they approached area, Gates said he saw red pick-up truck, then heard four distinct crack sounds indicative of rifle fire, then the helicopter banked. He never saw anything on the monitor during this. Gunfire sounded like gunfire because he is familiar with weapons. He was wearing a helmet that covered both ears. In '82, he was a firearms instructor. Later he was responsible for testing officers on weapons. Has hunted since he was young. Gates' window was open. After shots, helicopter banked and veered away rendering FLIR equipment useless, so "I sat back and enjoyed the view."

Says he saw the pickup on 1000 Road and then used the roads through the bush for fifteen or twenty minutes as it made its way back to the camp. Didn't see anyone at anytime. He can't remember if truck stopped at camp or short of it. When he heard the shots, he doesn't know for sure where helicopter was. Says he wasn't wearing protective gear until after he heard shots. Says he wasn't wearing it because he didn't know he was heading into that kind of situation. Put it on after. Says total flight lasted no longer than 30 minutes. They returned to 100 Mile House and assisted with Gustafsen Lake investigations afterwards.

GW - FP says that he saw roadblocks, but says the area wasn't secure by any means. He never saw where the truck came from. FP says that the truck couldn't have made its way back to 100 Mile House, as GW suggests, because of roadblocks.

Says he heard four shots, but never saw any firearms sticking out of truck. He never saw any media the next day because of the way his hours were arranged.

Agrees that there were many police in this area a quarter mile away from truck area. Agrees that police were armed with 308s and M-16s. Had never heard of police officers that were scared of coyotes because his air unit members were all from rural areas. When it is suggested that it's possible that shots came from RCMP, FP says he thinks he would have heard something about it. Agrees that the area is vast and there were media in area.

DC - FP agrees that truck had a red canopy on it. MA - FP says he was checking out area because of report of movement. Says some sort of alarm was activated to indicate this - maybe a trip alarm, but not sure. Says he flew over camp on Sept. 17 to ensure there were no more people in the camp. When he flew on the 7th, there were no other passengers other than Gates. There are no more witnesses so jury is dismissed. J exits while Defense decides what to do with further applications re: bail review.

J returns.

GW - re: OJ - says that originally there was a $5,000 surety required and a $50,000 deed to property. Last month, he was arrested and charged with break and enter and possession of stolen goods. Since then, the charges have been stayed and the deed has been revoked as a surety. GW notes that now that the J has heard evidence in this case, things are looking quite different than the way they looked at the beginning of the case. The only evidence regarding OJ is his fingerprint on a piece of tape that ended up on a weapon. He also notes that the weapons charges against David Pena resulted in only four months jail. OJ has spent time in jail already. J wonders if GW has explored getting the surety again from Ms Notnes and GW says he would rather just get OJ's conditions to be the same as everyone else. GW will explore other options while HR speaks.

HR - re: Wolverine - at the beginning of the trial, the Crown said it would be putting forward a strong case against Wolverine, but there hasn't yet been a single piece of evidence against him. While there may be some evidence against OJ, there is nothing against Wolverine. HR points out that Wolverine's position has remained constant in that he maintains that the land is his. There has been no problem from any of the sheriffs and he has demonstrated no violence. He will not leave this jurisdiction because he wants to see the end of this case. An Indian reserve and its Chief has come forward offering to house and care for Wolverine. There is no question that he is an original person of this land and only his verbal position is offensive to the court. Wolverine has a lawyer that he wanted to represent him who hasn't been able to represent him here (referring to Dr. Bruce Clark). This lawyer, a member of the Upper Canada Law Society, has told Wolverine that he had a legal right to stay on the land. Wolverine has been in jail for a year now and there is no indication the trial will end soon. Even the Court of Appeal recognizes that time served now is regarded as double time so he can be seen as spending two years in jail.

GW - says Ms Notnes will post $5,000 cash, but not the property deed. He adds that the other people here aren't loaded. J asks that GW explore further if someone can post the surety.

ST - Asks that Percy and Toby need to take day off tomorrow. He also asks if Percy can say something with regard to Wolverine. Wolverine consents to this.

Percy (through interpreter) states that his brother, Wolverine, was only protecting the Sundance area - his church - and that the Judge take that into consideration. The J thanks him for his words. LB - Says that HR has suggested the Crown's case is different from what it said it would be. LB says there is evidence against Wolverine, including the fact that he was involved in negotiations with the police. Says he was the spokesman and the leader of this group. LB says that there is no evidence that the Crown has put forward that was different from what they expected. Says the evidence against Wolverine is still strong. (Suniva says that LB is a windbag and that he needs weights in his shoes so he won't float away.) Wolverine - says the Prosecution calls him a negotiator with the RCMP. One of the things they tried to negotiate was for a third party tribunal because they won't get justice here. We rely on Constitutional law and Rule of Law. We try to bring this to a court of law and we won't be heard. Says that a treaty or purchase has to happen before the court can assume jurisdiction here on these lands. They have taken documents to United Nations. Took it to the Hague, but it was stopped there by a man that used to work for Canada by the name of Jennings. In '93 and '94 testified to the U.N. '94 was about the treaties and the violations. We brought these things out because here, the Indian people aren't listened to. We brought out Constitutional law to the people outside so we might be heard. The RCMP started everything and yet the media painted us black. Led by Montague by Dossanjh. At first we were terrorists, then we were campers. What changed this? The only terrorists here are the RCMP. We tried for justice with very little resources. We are a poor people, but always find a way of getting to where we're going. We don't rely on the system here, because we aren't seen as human. (Some Defenders have stood up while Wolverine spoke.) HR - Notes that re: negotiations, there are people in the audience like John Hill who made more representations to the media than Wolverine. As long as people are talking, there is no fighting. He is charged with shooting at an armoured car. Crown is alleging he fired at an APC that fired off thousands of rounds. His son is likewise weakly charged. The rest of the people are lumped in.

This is a media-driven trial. "Media-driven to the hilt." This court is about evidence. Says J will probably end up telling the jury that what Wolverine spoke of regarding the Privy Council is not relevant. Reminds J that it was Clark, a member of the bar, who counselled Wolverine on his legal position. Should Wolverine be victimized because he listened to this lawyer? He's done two years hard time.Says the J had asked for changes in circumstances and LB responded that things are unfolding as expected, "but that is a bit optimistic." Says that at no time has such a show of force been applied to a group of people other than maybe Oka which might share a few similarities. The mandate was to wait and see what shows up. "He spoke to the media which is to his credit. Talking is not killing." Says one of the rights to argue is one of the strengths of this country and shouldn't be made a weakness.

J says he would like to consider these submissions overnight. Trond mumbles "and to make your phone calls." Suniva snickers.

   * 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