Jan 23/97: Gustafsen Lake-Letter from Minister of Defense

LETTER FROM MINISTER OF DEFENSE TO TS'PETEN LEGAL TEAM - AND RESPONSE

RE: OPERATION WALLABY - GUSTAFSEN LAKE - USE OF MILITARY

Jan. 23, 1997

From:

Douglas Young
Minister of Defense
To:
Dr. Keith Martin, M.P.
Esquimalt-Juan de Fuca
1096B Goldstream Avenue
Victoria, British Columbia
V9B 2Y5
Dear Dr. Martin:

I am writing in response to your correspondence dated October 24, 1996, concerning Operation Wallaby.

The Canadian Forces (CF) became involved in the Gustafsen Lake incident at the request of the Royal Canadian Mounted Police (RCMP). Specifically, the Solicitor General of Canada wrote the Minister of National Defence, requesting Department of National Defence assistance in pursuance of a peaceful conclusion to the standoff. This procedure is consistent with existing practise for requesting the support of the CF in any Canadian domestic law enforcement operation. A review by the House of Commons is not required.

The involvement of the CF was one of provision of technical support. The CF was not authorized to perform in a confrontational capacity and, therefore did not fire any rounds during the standoff. The Bison armed personnel carriers which were used by the RCMP were provided only as means of protected transport for RCMP officers. The armament of the Bisons was not available for RCMP use.

I hope the foregoing is of assistance.

Sincerely,

Douglas Young


February 4, 1997

From:

Azevedo & Associates
Barristers & Solicitors
Manuel Azevedo LL.M
300-195 Alexander St.
Vancouver, BC V6A 1B8
Tel: (604) 687-0231
Fax: (604) 687-0241
To:
Dr. Keith Martin, M.P.
Esquimalt-Juan de Fuca
1096B Goldstream Avenue
Victoria, British Columbia
V9B 2Y5
Dear Sir:

RE: OPERATION WALLABY - GUSTAFSEN LAKE - USE OF MILITARY

[Name deleted] has asked me to address the letter dated January 23, 1997 from the Honourable Douglas Young to you. The letter raises a number of issues which I will deal with separately.

Use of the Canadian Forces (Military) in Civilian Situations

The use of military in civilian situations is permitted by the Emergencies Act and the National Defence Act. The Emergencies Act essentially replaced the War Measures Act and provides for consultation (s. 25) by the Governor in Council with the Lieutenant Governor in each province before an emergency is declared and provides both for a parliamentary review after the emergency is over (s. 62) and an inquiry by the Governor in Council within 60 days (s. 63). The Emergencies Act was not invoked at Gustafsen Lake.

The use of the military in aid of the civil power may also be invoked pursuant to s. 277 of the National Defence Act. The suggested form to be used by a provincial Attorney General in writing to the chief of the defence staff is provided at s. 279. Section 281 requires the Attorney General of the province, within seven days after making the requisition, to cause an inquiry to be made into the circumstances that occasioned a calling out of the Canadian Forces. The National Defence Act was not invoked at Gustafsen Lake (relevant sections of the ND Act enclosed).

How the Military Became Involved at Gustafsen Lake

Based on a request by the RCMP, the provincial Attorney General on August 25, 1995, wrote the Honourable Herb Gray, Solicitor General of Canada, requesting four armoured personnel carriers, one explosive ordnance disposal team and 100 allotments of one-day food rations. Honourable Herb Gray responded on August 27, 1995 and stated that he had discussed the matter with the Minister of National Defence, the Honourable David Collenette, and advised that the Department of National Defence would provide the resources requested. A further request was made on September 12, 1995 for five armoured personnel carriers. In addition, on September 15, 1995 the Attorney General requested from the Honourable Herb Gray four .50 calibre MacMillan sniper rifles complete with 4 X 40 leupold scopes and ammunition (relevant correspondance attached).

Is a Review by the House of Commons Required?

Technically, no because neither the National Defence Act nor the Emergencies Act was invoked. This is probably the first time in Canadian history in which the army has been used in a civilian situation without a review by either Parliament or the legislature. The National Defence Act was invoked when the army was called into Quebec during Oka[against the Mohawks] I include a copy of Hansard dealing with that issue. You will note at page 4 that the Quebec minister at least filed a two - page report with respect to the $22 million dollar expenditure. You will also note at page 8 that the them Minister estimated a cost at $6o.6 million dollars.

At the beginning of the Gustafsen Lake trial, I brought a motion to have the case dismissed because of the failure to invoke the National Defence Act. I believe this is the first time that s.277 or the equivalent has been interpreted. The judge ruled that the provisions of the National Defence Act were permissive and not mandatory. I enclose a copy of the Reasons for the decision and a copy of my application.

Nature of Military Involvement

The military provided the armoured personnel carriers, drivers for the APC's and crew commanders. There were at least a total of nine APC's used at Gustafsen Lake. Mr.Young states that the army was not authorized to perform in a "confrontational capacity". Evidence indicates that an armoured personnel carrier was used in an operation to disable a red truck by exploding a device underneath it while it travelled along the road. The plan called for the APC to ram the red truck when the explosive device was set off. This has been captured on video tape and is referred to as the "September 11 Red Truck Incident". I enclose a copy of the operational plan.

Did the Army Fire Any Rounds?

The drivers and crew commanders of the APC's were equipped with C-7 rifles and side arms (technical information enclosed). During the battle on September 11, 1995, RCMP semi-automatic M-16's became jammed and the RCMP borrowed army issue C-7 automatic weapons to fire at the camp occupants. Evidence indicates that the RCMP fired thousands of rounds into the bush and top ranking RCMP personnel have not disagreed with the figure of 10,000-20,000 rounds. Army figures indicate that at least 2,800 rounds for M-16's and C-7's (they use the same ammunition) were charged to the RCMP. The type and amount of ammunition brought to Gustafsen Lake by the military is attached and includes cartridges of 5.56 mm ball, 5.56 mm tracer, 9mm ball, various types of hand grenades, comet flares and flare surface trip devices. I enclose a table prepared by the military under the auspices of Lieutenant Colonel Capstick. I also enclose a question and answer disclosure information provided by the army.

As you probably know, one of the army personnel suffered an injury when a grenade exploded in his hand.

I hope the above information assists you. If you have any questions please contact me.

Yours truly,

Azevedo & Associates

Per:
Manuel A Azevedo
MA/ip

Enclosures

cc: Ian Haysom (The Vancouver Sun)


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