Trial, Week 9: Summary - September 20


WEEK 9: SEPTEMBER 16 - 20, 1996

   * Day 39: Monday, September 16            * Day 42: Thursday, September 19
   * Day 40: Tuesday, September 17           * Day 43: Friday, September 20
   * Day 41: Wednesday, September 18


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.

GW - says that he has looked at remainder of video and there is nothing he wants to further cross-examine SA on. Marked Ex. 115a. GW wants to have it copied and J lets him. GW also understands that OJ is still ill and would like him excused. J says fine. Finally, GW has found out that JoJo is at "colony farm." GW wants to have JoJo here on Monday and has found it impossible to reach him on the patient phone. He also wants JoJo available for a scheduled CAT scan on Sept. 25. J directs that JoJo should be sprung. Sheriff instructs that he called earlier and JoJo is under assessment and can't be sprung. J would like sheriffs to look into this.

GW says that LB will object to him putting in a letter by Supt. Hall that designates a no-go zone. J says that this witness hasn't seen letter and it isn't admissible. GW argues that witness can identify RCMP letterhead and Hall's name. J says that he can do that as well, but this isn't the witness to do so. J says he can mark it for identification, but not as an exhibit. GW says that's fine for now.

ST notes that witnesses will come forward in three weeks to discuss the negotiations and it would benefit everyone for Hall's letter to come in now. J says that this letter is apparently not a final end result of negotiations. MA says that this letter is the only disclosure they have regarding a no-go zone - are there other no-go zones that we haven't heard about? J doesn't know.

LB says that this letter will come in later, but now isn't the time through this witness. J agrees and will mark the letter only for identification at this time.

Jury in. Cst. Steven Arthur (SA) back on witness stand.

GW - that's it for his questioning of this witness.

DC - Regarding SA's notes written Sept. 12. Says that he was informed by Marsh that red truck was heading down the road. Confirms that these notes were written on the 12th at 1:00 p.m. DC reads from page three: "Search continued through bush...found a pink shirt on the track...Marsh had advised earlier that driver wore a pink shirt carrying a weapon in an aggressive manner." SA agrees that this was Marsh's observation of the individual, which occurred a few hours earlier when person was walking.

DC notes that in SA's statement of Sept. 13th to Flemming, there is a reference to the person in the red truck carrying a weapon in an aggressive manner prior to the truck being blown up. His statement makes it sound like they blew up the truck because the occupant was carrying his weapon in an aggressive manner. SA explains that his statement actually referred to two separate incidents - Marsh's observations in the morning of a person carrying the weapon and later, of the truck driving by before being blown up. DC notes that both incidents are not noted in his notebook. Only the morning observation is noted. SA claims that "obviously, there may be bits of information that I forgot." DC suggests that Marsh told SA over the radio that the rifle butt was on the floor and the occupant's hands were holding the forestock as the truck drove down the road. SA says he doesn't recall Marsh saying this.

Re: shots fired at person wearing a shoulder holster. DC suggests that when he was dealing with this person, he was aiming at this person. SA agrees that he would have been looking through his scope and aiming at the person.

Admits that when he was laying down cover fire, he was "lobbing" shots in an area near the Bison. Admits that he thought that he could see the nose of the Bison, but after seeing the video, realizes this might not have been the case.

Agrees that he didn't visually confirm that ERT members were safely inside Bison, but got confirmation on the radio. Says taking a person out is to stop the threat. Agrees that death can be a consequence.

Regarding the shoulder holster person, he wasn't satisfied that this person was the same blond he tracked to lake and saw swimming. Agrees that he has referred to both persons as shirtless and that if he had seen a holster or a halter top, that he would have noticed this. Agrees that swimming with a holster or a weapon would be possible, but difficult. Bud Mercer found pink shirt and identified shirt to one of the people they were tracking. Says that when he saw Bison come up, both persons put hands up. Confirms that he saw no weapons on these people.

On page four of his notes: "I must admit my attention was taken away from the swimmers and to the Bison...later, I saw the Caucasian moving from one foxhole to another. Someone thought the person was firing at the they lobbed a few rounds at person." Confirms that the Caucasian he was referring to is the same Caucasian he referred to in water. When DC asks if that means he had formed in his mind that the person he was firing at was the same person that went into the water, SA looks a little nervous and explains that he wasn't sure.

DC finds another note on page eight that repeats same idea that Caucasian person that he was firing at was the same Caucasian he saw swimming. SA shows DC his notebook. DC reads "member observed person getting out of water, move from one foxhole to another." DC suggests that all these notes consistently show that person he was firing at was the same person he had earlier concluded was not a threat and unarmed. He took the word of another person that this person was now a threat. Agrees that the person likely was the same. SA: "My feelings at the time were that they were the same person, now I'm not so sure." DC: "I'm not the student of sport bras as my friend makes me out to be, but I'm familiar with their construction." Jury laughs. They compare constructions of shoulder holsters with sport bras. They are similar. DC: "With considerably less dangerous cargo than a shoulder holster." Jury laughs.

Says distance from him and Bisons and people in water was 200 yards. DC suggests that the person that was posing a threat to the Bisons couldn't even see the Bisons. SA agree that there is a lot of shrubs between the two, but felt that the person could have seen the Bison. SA says that he didn't see the person fire at the Bisons, but felt person was a threat. Agrees that the person was moving from hole to hole in direction of the camp. DC suggests that this person wasn't "lumbering" the whole distance and SA agrees that this means something. DC asks if lumbering would be consistent with someone being wounded. SA understands that this means they were ducked down while moving. SA says he saw no indication that person was wounded and doesn't believe anyone else in the team did either. Doesn't recall Brooks reporting seeing red on the person. SA doesn't know members at Perch were firing too and whether or not this person was caught in the crossfire.

In notes, he says that he was debriefed later by Kembel that if anyone was spotted outside the no-shoot zone, they were to be shot. Agrees that M-16 fires .223 shell. DC shows SA bullet, exhibit ?. SA describes this as copper shell bullet that looks similar to that of .223. Agrees that they fired both hollow point and solid that day. Confirms that this bullet is a hollow point, which is designed to expand when it meets resistance.

Regarding the cheering he heard, SA says the helicopter pilot suggested this was because an RCMP member was down. Agrees that no members were downed that day. Says that cheer was around the same time the camp members could have made it back to the camp. Agrees that cheer could have come from camp when two persons returned after having survived their truck being blown up.

MA - Agrees that distance between Bison and "shooter" was more like 250 yards than 50. SA agrees that there was a rise in the land between the lake and the holes the person was crawling to. Agrees that during that day, "it certainly wasn't a typical ERT operation." Agrees that he doesn't know how many rounds were fired from each Bison and that it could have been a lot more than 1000. He thinks that from the time of the truck blowing up, there was about an hour of constant gunfire with only the occasional lapse. There were also helicopters and airplanes. Agrees that he never saw any native members on the ERT team. Says he saw one uniformed native member from 100 Mile House. Doesn't know if this was Charlie Andrew.

SA agrees that there are rules of engagement regarding the use of firearms in day to day police operations. MA shows him the various conditions that have to be met before discharging a firearm. MA says that none of these regulations were followed. SA says that it was an extraordinary day. Rule one says to identify self as a police officer. SA thinks there were letters going in to the camp stating that there were officers around, but can't comment on what negotiators were dealing with. The other rules weren't followed either. Confirms that they were issued army helmets, eating army rations and sleeping in army bags.

AB/ Without jury and Cst. Arthur.

GW - seeks ten second application to spring JoJo for Monday.

ST - Wonders if the jury knows the delay for admitting Hall's letter of the no-go zone. J says it's simply because this witness isn't the one to admit it. ST says that it doesn't serve the expediency of the court to delay document when the jury has already heard about letter. J says that this can be dealt with on Monday and Crown just wants to contact the author to ensure this is the document he authored.

Jury and Cst. Arthur in.

MA - SA says the person they shot at was in the vicinity of the fenceline and the dug out. SA first saw people further east when red Bison pulled up. Then Bison took off north into woods. Later he saw Caucasian somewhere near dugout or fence. This is when he fired 10 or 15 rounds. SA thinks the Bison is just north of lake - not in clearing seen on video. MA says that distance between this dugout and where he sees Bison is 200-300 yards away. SA says 300 is too great. More like 200.

SF - SA arrived Aug. 28/95. He doesn't know who briefed him at time. He was briefed on the 27th by Supt. Olfert in Kamloops. Insp. Moulton was there too. Meeting started at 2:00 p.m, but was cut short because members from ERT had been shot at and had been hospitalized. He was briefed that this was a land dispute. Was told that Lyle James was the owner and 30 people were on his property. Can't recall if the 30 were saying they had a right to the land. Wasn't told how long dispute had lasted - only that it has been going on awhile during the summer of 1995. He says no documents or deeds were shown him. He agrees that he took Supt. Olfert's word for it.

Wasn't aware that people there appealing to existing Canadian laws. When asked if SA had direct knowledge if he had jurisdiction to be there, J rules that is a question of law. SA agrees that he had no direct information that Lyle James owned the land. He agrees that the RCMP have to uphold the peace and that Canada generally pushes for peace in the world. He wasn't aware that Canada signed a U.N. declaration to ban the use of land mines.

SF asks if he understands the history of Canada and J rules that his knowledge of Canadian history is irrelevant. SA says he was satisfied that the RCMP was there legally. SF wonders if he has any direct knowledge that he had a legal right to be on the land. SA repeats that he believed that the RCMP were legally there. SA was aware of a Sundance ceremony being held there and is aware now that Lyle James wanted the people out of there. He was not aware that James wanted them off the property forever. SA says he understands that the people stayed longer on the land than agreed to. SF wonders if this was his justification for doing what he did. SA says that he got the understanding from his superiors that the people up there were very dangerous. He says that he was told of various incidents. SF suggests that his superiors mislead or lied to him. He doesn't think that they would do that. SF wonders though if it was possible, but J says this is a submission for the jury.

SA agrees that the intention of the RCMP was to remove the people. Says that Dennis Ryan was the negotiator and had briefed them on arrest procedures. SF says that this makes her point that there were no negotiations going on. SA claims that they were seeking a peaceful end, but SF points out that this isn't consistent with blowing up a truck, killing a dog and shooting at unarmed individuals. She also points out that they shot at a person in the no-shoot zone. SA says that he was aware of a no-shoot zone, but didn't know the boundaries. SF says that having a no shoot zone where you don't know of the boundaries is pretty useless. SF shows him Hall's letter which indicates the boundaries for this zone. SA hadn't seen this.

SA claims that he was firing at Caucasian to protect fellow officers. Admits that it's possible that the unarmed swimmer he observed may have been the same person he fired at.

Wasn't aware that camp was denied legal counsel in the camp. Knew that Bruce Clark had gone in, but didn't know he was counsel for the camp. SA unaware that Clark had met with Ryan. SA says superiors never told him that Clark had informed people in the camp that they were legally right to be on the land. SF wonders if this isn't an important thing for an officer to know before being sent in. Agrees that he would never want to break the law and that he is sworn to uphold the laws of Canada. Admits that there were at least hundreds of officers there. SF wonders if a handful of people on a little piece of land was a threat to 400 officers. SA says that after seeing the police Suburbans shot up and hearing of people carrying automatic weapons, he did consider them a threat.

Isn't aware that the RCMP misled the public. Isn't aware that Dosanjh called the data sheet that blew up the truck an "early warning device". He agrees that he wouldn't call it that and that he never gave Dosanjh that information.

SF wonders if SA knows that Constitutional law supersedes domestic laws. J won't let him answer that. SF wonders if superiors withheld information or lied to officers, that this would compromise his position as an officer. SA says that sometimes, information has to be withheld. SF: "Does that mean you act regardless?" SA: "I do my job the best that I can." SF: "Even if that means killing someone?" SA says that no one wants to kill anyone, but they are prepared to if they have to.

SF finally asks if he had any direct knowledge that the RCMP had jurisdiction to be there. SA says he saw no documents to prove this.

Jury asks J for clarification for RCMP rules of engagement. J agrees this would be useful and promises this for Monday.

   * Day 39: Monday, September 16            * Day 42: Thursday, September 19
   * Day 40: Tuesday, September 17           * Day 43: Friday, September 20
   * Day 41: Wednesday, September 18