* Day 77: Monday, November 18 * Day 79: Thursday, November 21 * Tuesday, November 19 - no court * Day 80: Friday, November 22 * Day 78: Wednesday, November 20
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
No jury today.
MA and Jensen apologize for their dress today because they thought they were in chambers. They aren't wearing their black gowns. J says that it's alright. GW apologizes with a laugh for misleading Jensen.
GW - seeks an increase of money based on two things. One - the length of the trial. Originally, this trial was only going to last a few months, but has been lengthened over time. The second element is the change of weather. Many of the accused had been allowed to stay at the reserve, but with the weather change, it has caused a scramble to find suitable housing. GW says that he hopes he can make this point without bringing in social workers or landlords. He says that in their home area, they would have no problem finding accommodations with friends and relatives. That's something they can't do here. He heard from a defendant who had his furnace blow, while another has noted that he can't even afford cat food.
GW says that some people have suggested an increase to $80 a day.
ST - adopts GW's submissions. He says that when the original amount was awarded, it was summer. With the extended trial, there was no regard for all the phone calls that would be required to arrange for schooling for kids. ST uses Rob as an illustration, as he has now opted to get a job and waive his right to be here because he needs more money for his family. It's harder for the people from the interior who now have to consider getting snow tires to get over the Coquihalla highway.
DC - adopts above. Says that Flo has the trouble of maintaining two homes and has depended on the vegetables they grew in their garden to feed them and now they need to buy them. Sheila Ignace has been hospitalized in Kamloops.
MA - reminds the J that it is common law to charge people in the jurisdiction of the accused and it was on the request of the Crown to be down here - not the accused. He says that he has always felt that $40 a day was an insult and has learned from GW that Crown witnesses get $100 a day. This is the amount he wants and says that anything less is an insult.
Nils Jensen (NJ) - says the purpose of the per diem is only supposed to be a reflection of additional expenses and not cover all the expenses of being down here. NJ says that regarding GW's submission that witnesses not be called to prove the requirement for an increase, he says that this is required for the J to make an informed decision. He says that had the trial been held in the north, it would have been colder and the change of venue wouldn't have changed this. NJ says that there has to be more information to show that the move of venue has added extra hardship.
Regarding MA's position that $40 a day is an insult, NJ says that were there an obligation by the court to cover all expenses, such as the case with the RCMP, then MA may stand on better ground. NJ adds that there would be some people who might have suitable housing, so more details are required.
GW - regarding Jensen's comments that it's not any harder to live down here than it would have been up north, this simply isn't true and hopes that the J will disregard these comments.
DC - says that some people are in a bind because they can't get social assistance.
J says that he is considering a sensible submission made by HR before to deal with this in a global way, instead of having separate hearings for every accused. DC says that there is no quarrel that a global approach would be the way to go. J says that this global approach, like before, may be a windfall to some and hardship to others, but would be the most practical way to deal with it.
J takes a moment to look over the various letters submitted by the defendants which describe their hardships.
J reiterates that he is being asked to revisit the per diem amount that the accused are getting to compensate for additional expenses as a result of this trial happening in the Lower Mainland. He says that the Crown witnesses are not a good guide for per diems because they are being paid for all expenses. He does recognize that there are additional hardships, however, and will increase the amount to $60.
GW - would like to address a side matter. Last week he reported to the court that a radio station reported the amount of money that the accused were getting. GW characterized the report as redneck reporting, designed to create a reaction. He would like it made clear that this decision is not done in the presence of the jury and would even like the manager from this radio station to come in and have it explained to him that there is a legitimate reason for why this shouldn't be published as per Sec. 648.1.
NJ - says that this really isn't his issue. He wonders if Sec. 648.1 really has been violated and doesn't know if an investigation is necessary.
ST - makes it clear that his clients aren't so concerned about the amount of money, since they aren't ashamed of this, but the real concern is that their location of residence might be revealed, creating a possible backlash. He asks for a general publication ban for any evidence not heard in front of the jury.
The J takes a minute to look over his notes. J finally says that GW has concerns about the media publishing the per diem increase. J is aware that following the initial per diem being created, this was published and there was no concern then. If there is a concern about the jury being influenced by this, J says that this would be quite minimal. Regarding the publication of procedures without the jury present, J rules that a photocopy of Sec. 648.1 be attached to the order for the increase, so that the media will keep this in mind, but he won't do anything further.
MA - reminds the J that for the last break, the J ruled that the accused be paid the full $40 a day, but they were only paid $25. J tells NJ that this was his order. NJ notes this and will adjust accordingly. MA would also like the $60 a day to be retroactive from Nov. 1st, as this was the time period when a number of accused moved from their tents to trailers and began instalment plans. J rules that the $60 a day will begin on Nov. 1st.
DC - says that Francis Dick is still seeking compensation for the time period that he had to return to the Cariboo for the birth of his child. Dick had tried to get social assistance from Merritt and they had erroneously said that because he was being paid by the court, then he wasn't entitled to assistance. But of course, he wasn't in court to receive money. NJ says that this should be dealt with in Merritt with Social Services. J asks if DC has approached Social Services. DC says that he's handicapped regarding this, but J asks that he try to find out the ruling made by Social Services before J makes a ruling. NJ asks that DC send him a memo from that office once he learns the answer.
GW - asks that the cheques come into his office on Thursday instead of Friday. NJ says that this can be done by changing the pay period. J agrees that this is fine.
NJ - says that regarding weekends, NJ has understood that if someone had failed to attend on a Friday or a Monday, then they would not receive pay for the weekends. NJ says that for some time, this ruling was ignored by those cutting the cheques until he checked the attendance records. He has since informed GW that the original conditions would have to be applied to get weekend pay. He would like some guidance on this regard. J would like to keep this policy in place and if an accused has a problem on a Monday or Friday, then counsel can make an exception as they have in the past.
There is a two hour break waiting for the Crown to prepare.
L/ MA - seeks that Glen get paid for the previous week. J grants this. JF says that regarding this, J may want to get proof of medical problems before granting pay. J says he may do this in the future, but won't require it this time.
DC - says he is having trouble getting through to Social Services and has spoken to Jensen. Both agree that perhaps a figure could be agreed upon. J happy to hear this.
MA - asks for an adjournment until full disclosures are made. He is also making a bail request on behalf of Wolverine, but this time it will be in relation to disclosures. The previous bail application had to do with the strength of the evidence, but this request won't. MA notes that if the bail is denied, then he will withdraw the adjournment application, as Wolverine doesn't want to delay things.
MA says that there is a lot of evidence that has not been disclosed, including 50 hours of videotape and the Tip index file. MA says that this should have been disclosed a long time ago. He says that the Crown dumped a dump truck of useless disclosures on the Defense at the beginning of the trial.
MA recounts the disclosures made. 34 letters were sent to the Crown requesting disclosures - mostly during the trial. These letters have resulted in disclosures. June 1st, the trial began. Evidence began on July 9th. On the 11th, we got the operational plan. On the 26th, the J made an order to make available the radio communications tapes of Sept. 11th and 12th. MA thought that the order was that a master tape be made available. He has since learned that there was no master and that tapes of the 11th and 12th were lost, which are the most significant days they requested.
In Sept., we received more radio logs and information of Special O and I. We also asked for the radio logs of Aug. 18th when people in the camp were phoning for help because armed men were sneaking around. The Crown said it would look for dispatch tickets, which are created during these calls. The Defense have received no tickets.
They received Shakey and Gates' notes. They finally received notes by Hall and Edwards in October. In late October, they finally got disclosures about how much ammo the army provided to the RCMP. MA says that he asked for this on May 28.
October, they received massive volumes of radio tapes and transcripts. At the same time they learned of ERT teams from Regina and Ottawa. Defense has asked for notes of all the ERT involved on Sept. 11 and 12. They finally got Insp. Latimer's notes. Nov. 4th, they got 73 pages of Edwards' notes. Porter and Shakey's notes finally arrived in November.
MA says this is a rough breakdown. These were all crucial disclosures needed for the beginning of the trial. Regarding a briefing on Aug. 27th, there was a plan to make an assault on the camp. MA has learned that briefing packages were created for this meeting, but Defense hasn't got this yet. This is a significant disclosure.
Another significant thing is that someone took minutes of the meetings, but Defense has never seen these. They haven't received any notes from Farrell or Brown. These men are very instrumental. There are also the logs from the aircraft which haven't been provided. Sgt. Gates' assistant is supposed to supply us with more information, which has yet to appear. These things are only part of the list he has. There are also 50 hours of videotape taken by Norm Torp as training tapes. These tapes are no good if they arrive after the Crown's case is over. The Crown never told us about these tapes and the information was only gleaned from witnesses.
The Tip index is crucial too. Defense hasn't been told about an investigation log, but Defense wants this too.
MA wants to say that the Defense has been misled. The Crown has not given the Defense a complete list of documents which they have, but will not disclose. He made a request for this a long time ago and without it, Defense can't figure out what we have or don't. MA says that if HR hadn't found out about the .50 calibre machine gun, the Defense wouldn't have known about it because it doesn't appear anywhere in the notes.
On Aug. 29, 1996, the Crown wrote a letter to the Defense which said that Porter didn't write any notes and that the Crown would provide a summary of what he did. Later, Defense got his notes. Likewise, regarding Dr. Webster, Crown said that he had no notes. Then a document shows that he made notes. It is pretty clear that Webster was giving Ryan serious advice and we have no information about this.
Also, Crown said that the Special O six man teams provided no intelligence and that is why there was no disclosures by them. Later, a senior investigator from Vancouver testified that he got intelligence once a day from Special O and now the Crown refuses to hand over those reports.
MA says that the Defense has had to make a number of requests for disclosures when it is the Crown that is supposed to be doing this. The spirit of Stinchcomb has not been addressed. "This case has really been a glorified pre-trial." The Attorney General may say that they didn't have the resources, but after spending $5 million already, adding a few more lawyers to assist this is necessary.
MA wants an adjournment until the disclosures are complete. The end result of the delay is that Wolverine has remained in jail, which no one wants, but disclosures are necessary. The trial was not supposed to go this long. MA says that we should adjourn, Wolverine should be let go, the jury stood down, and the court stand down until the Defense is ready with full disclosures.
GW - says that it is not for the Crown to say that certain disclosures are relevant or not. His clients, like Trond Halle and Suniva Bronson, were under surveillance and these clients should have access to full intelligence reports should they want to testify to say why they were in certain places at certain times. The same goes for John Hill, who made a number of calls to the Ignace residence at crucial times. These intercepted calls are necessary to have.
Regarding the Tip file, GW picks an example of Lester House being interviewed while "masked". GW says that information about this is necessary to make a strong Defense argument for the jury.
GW says that regarding 50 hours of videotape, he has never heard of training tapes being a secret thing. GW says that he only came across a portion of these tapes by accident because he saw video of Cst. Smyth speaking to a camera telling about the thousands of rounds being fired. Maybe the Crown hadn't intended us to see this, but we did, and now we want to see it all because it shows the RCMP's point of view before and after a battle. "It's like pulling hen's teeth to get disclosures." GW says that if these tapes show that the RCMP were gearing up for a fight before the Sept. 11th battle, then this is very important.
GW says that he cannot cross-examine the senior RCMP management with these kinds of disclosures. He doesn't buy that the training tapes are any sort of national secret. GW points out that Defense stumbled on this by accident.
GW says that he is very concerned about the telephone call that was made to the RCMP on the morning of Aug. 18. He has learned that several calls were made, but hasn't learned yet who took these calls. In an officer's notes, there was a debate in the RCMP of whether they should deny that an ERT team went in there that morning or not. Regarding JoJo's defense, GW's going to put forward that on that morning there was a call for help from the camp saying that they were being surrounded.
GW says that he needs the details of the Chase calls because they are necessary for his cross of Olfert.
ST - says that according to case law, that as long as there are full disclosures, there is no case to be made regarding Constitutional breaches. ST suggests that it is not only the Crown that is misleading, but also the police that are misleading the Crown. He says that the Defense should be asking why don't we have what the Crown has. Instead, the Defense has to find out what disclosures there are.
Regarding the report by Findley, this is crucial for the colour of right argument. "This is the nodding and the winking that puts the justice system into disrepute." He doesn't place the blame on JF or LB, but says that it's broader than that. ST says that if we had in June what we have now, Defense could have been more efficient. Defense has not been frothing at the air here to kill time, it's only been trying to get at the truth. ST says that the Crown has put forward a bunch of red herrings, like ambushes and shootouts, designed to send the Defense down a bunch of dead ends. Had we had full disclosures, this trial could have been conducted much quicker and these accused would not have been subjected to all the psychological stresses that such a trial begets. He questions if Stinchcomb is nothing more than just a nicety and means nothing.
DC - says that his comments are simple. This trial is quite unique. The institution of the RCMP is open to scrutiny. Self-defense is the key here.
If this was a bar room brawl, Defense would be allowed to plumb the depth of the combatants and their states of minds, but each time an ERT member gets up here they say that they don't know anything because they didn't form policy. DC joins his fellow counsel's comments.
SF - says that people's right to disclosures really mean nothing compared to the rights of religion and freedom. She says that we could fight this with pure law and disclosures don't mean anything. She wants the trial just to carry on.
MA - says that this afternoon they received Will Say notes by Olfert. In it is a heading titled miscellaneous topics, including "green light for killing natives" and "officers taken off the investigation." MA says that normally, they get notes to compare issues raised in the trial with the credibility of the witness. MA says that this Will Say has been tailor made and is basically useless to put to the witness because he has obviously been alerted to the issues of the trial.
GW - says that he has heard of surveillance of Trond Halle done on Sept. 24-28 '95. He wants the surveillance reports to prove that Trond was carrying out actions consistent with being a journalist.
J asks JF to focus on what has been disclosed and what hasn't. JF says that she will not discuss the issue of prejudice against the accused resulting from late disclosures nor the allegations of the Crown misleading the Defense. JF says that regarding MA's request for an adjournment, if the request is only for a couple of weeks, then this would be wisely spent by the Crown, but if it is for a long adjournment, then the Crown would prefer to carry on.
JF confirms that the Crown does have the training tapes now, as of Tuesday, and says that the RCMP have concerns of about an hour and a half of the video not being shown because it is of a sensitive nature. The Crown would put forward an argument that these sections aren't relevant, but they haven't seen the tapes yet. The tapes are being copied right now, but JF would like some time to view these tapes and then make a determination if these are relevant or not. She would then like the J to make a judgement on relevance of the hour and a half that the police are concerned about.
J asks if the tapes could be made available to the Defense, minus the hour and a half, so that Defense can alleviate any doubts they might have. JF says that she is looking at making a copy that would be copy protected and would like assurances that the tapes would not be copied and would be returned following their viewing. J asks if he could view the sensitive material privately in chambers. JF says that this would be a good idea. JF says that some of the clips are privileged material because they show police tactics and strategies. She's not aware of what the other sensitive matters are.
JF says that her concern is that the Crown first familiarize themselves with the material before making them available to Defense, in order to fulfil their own responsibilities. J asks that they be made available as soon as possible.
JF says that regarding the minutes of the briefings, she says that they are having people review the material so that they can decide if there is anything sensitive in the notes. She says that this might be done by mid-week next week.
Regarding the request for notes of Brown and Farrell, the Crown says that regarding what Olfert told the Crown, he said that he took full responsibility for the situation at Gustafsen Lake and says that he was never given direction by Farrell and Brown and that they only showed up a couple of times. The Crown claims that their notes are not relevant.
Regarding the aircraft logs, the Crown is working on that and is on its way.
JF says that the request for information of army and police ammo has been made to Gates and she's still waiting for his reply.
Regarding Johnston's notes, they're being couriered over. Likewise for another inspector's notes.
JF says that this deals with the outstanding inquiries for disclosures. As far as the written submissions go, the status is as follows. The Tip index is a standard system used by the RCMP and the bulk of the Gustafsen Lake index is made up of the investigation during the fall of '95. MA says that what he is interested in is the investigators' logs and not the index. JF would like some time to deal with this. J allows this.
Regarding information of Special O, Insp. Bass, who was in charge of them, says that the agents dealt with subjects in 100 Mile House and not in Gustafsen Lake. Bass says that the information was inconsequential and of common knowledge. JF says that these reports are not part of their disclosure responsibilities because they are not relevant.
ST - says that he's interested in the notes of Special O concerning Rob Flemming. J wonders why. ST says that he doesn't know if it's relevant or not and would like at least a summary from the Crown. He points out that Stinchcomb errs on the side of disclosure.
J makes the comment that this is an unusual case and he appreciates that the Crown has been quite lenient with disclosures considering the lack of a preliminary trial. J asks that the Crown continue this policy and not to put the brakes on disclosures at this late stage of the game. He can't force them, but asks that they try. J says that if there is a question of sensitive material in the RCMP videos, then he can view it in privacy. J makes it clear that he is not setting a precedent by having Crown disclose RCMP training tapes.
MA withdraws his request for the Tip files. MA will also defer the question of military ammo for the moment. MA wants it made clear that he is not abandoning these points, but there has been so much today that we will deal with this later.
GW says that the Crown has cited the Canadian Evidence Act for not revealing portions of the RCMP training tapes, but GW says that the Crown has to identify the specific grounds before the J views evidence. The Crown has to make it clear what interests are at stake here. J asks if the Crown will be in a position to do that tomorrow. JF doesn't know if she can, but says the J can view the material under other grounds, but she will endeavour nevertheless to declare their position.
J asks about tomorrow. JF hopes to continue the trial tomorrow with the scheduled witnesses. J hopes so too. He will have his decision tomorrow regarding the adjournment.
* Day 77: Monday, November 18 * Day 79: Thursday, November 21 * Tuesday, November 19 - no court * Day 80: Friday, November 22 * Day 78: Wednesday, November 20