Moncton, New Brunswick – The afternoon session of day two of the trial of Germaine 'Junior' Breau and Aaron Francis, two members of the Mi'kmaq Warriors Society who have been incarcerated since an October 17th raid against their anti-shale gas encampment, saw the first of the Crown's supposed 'eye-witnesses' take the stand.
The crux of Breau's charges surround whether or not he is guilty of five counts of pointing a rifle, while Francis' major charges are related to whether or not he threw Molotov cocktails.
For a full list of Breau and Francis' charges, click here.
The first of the Crown's witnesses was a Sergeant Pierre Gardner, who is a member of the Police Dog Services. Gardner, who claimed he was an eye witness to “between five and seven” Molotovs thrown on the morning of October 17th, could not however identify who the alleged thrower was.
“I didn't notice, as I was only focused on the safety of my tactical members,” testified Gardner. “He was male, slim, agile, wearing a cammo jacket, and by the way he threw the cocktails I knew he was right handed.”
In his cross-examination, defence lawyer Gilles Lemieux highlighted what over the course of the afternoon was to become a trend; that Gardner's initial hand written report was relatively vague and lacking in detail, and that it was only after reviewing tapes and being prompted by superior investigating officers – which included inter-departmental circulation of photos of Francis, Breau and a third individual, William Clair – that later written reports became more fully detailed.
In fact, Gardner's initial hand written report of his part in the October 17th raid did not even mention any Molotov cocktails being thrown.
Lemieux, with access to these circulating inter-departmental emails, pinpointed that Gardner was asked on November 20th , now over a month after the incident, by a Constable Blakely to assist in building the case against the alledged Molotov cocktail thrower by filling out a more detailed written report.
In re-creating the email conversation, Lemieux noted that Blakely learned that Gardner had been present at the scene on the morning of the 17th, and that while Gardner couldn't identify the thrower, that his testimony would back up identifying the individual the RCMP had pinpointed as the thrower; namely Francis.
“After that I wrote up my report,” agreed Gardner.
The Crown's next witness was Constable Rob Frennet, currently stationed at Canadian Forces Base Gaugetown. On the morning of the 17th Frennet was part of the Emergency Response Team. Frennet, armed with a 9 millimetre pistol and an M-16 assault rifle, had 'lethal oversight', meaning that the ultimate decision to shoot to kill on the morning of the 17th rested with him.
From his vantage point on the 17th - which was behind a power poll - Frennet noted that he had a clear and unobstructed view of the gun handler, who he identified as Germaine Breau in the courtroom. It is important to note that Breau has already pleaded guilty to handling the firearm in question, but not to pointing it at any officer, let alone five.
It is also important to note that Frennet's position would have put him directly behind Breau, so that whatever he observed would have been focused on Breau's backside. Frennet would certainly not be amongst those five officers that Breau allegedly pointed the rifle at.
During his testimony, Frennet noted that Breau shouldered the rifle several times and raised it to a 45 degree angle. At each of these occasions, Frennet noted that he began to pull the trigger of the M-16 that he had trained on Breau.
“He was very, very close to getting shot that day,” testified Frennet.
Frennet also noted that he had a clear view of Aaron Francis as he ran into the woods, around the same time that Breau had the rifle in the on-again-off-again shouldered position. It was Francis, said Frennet, who then lit the “six or seven” Molotov cocktails, threw them, and then when less-lethal rounds were fired into Francis' wooded position, came running back to the main stand-off on Hannay road several minutes after that.
Frennet provided clear details of an individual who he believed could only be Francis, based upon the length of his cammo jacket, his black balaclava and a “chain of beads” that was hanging from his pants.
In her cross-examination, defence lawyer Alison Menard began to piece together a very similar situation as that of Sergeant Gardner; that of an initially vague written report, followed by an evermore detailed account of events after group reviews of video and photo evidence and inter-departmental emails and prompts.
Menard noted that in Frennet's initial report he noted that Breau “shouldered the rifle, but did not raise it.”
“Had Breau wanted to shoot he could have done it,” said Menard to Frennet. “You had a clear shot on him, and had he pointed (the rifle) you would have shot him.”
Further, Frennet's initial written report noted that he thought Breau was using the rifle as intimidation, but was not using it as a weapon. Frennet also did not provide a physical description of Breau in his initial report.
In terms of the Molotov cocktail throwing, Frennet's initial report also did not have a description of the person throwing the cocktails. It was in fact an email sent on November 15th by Investigating officer Blakely that prompted Frennet to write up his description of Francis, whom he identified to Blakely as the thrower through an emailed image of Francis that was already circulating through the RCMP.
“My report writing is just sub-standard,” testified Frennet in reference to the fact that numerous physical details of what Francis was wearing were being brought up for the first time in court today, and were absent from any of his reports. “I wasn't nearly as thorough as I probably should have been.”
“To be fair I think it was a very volatile, difficult situation,” said defence lawyer Menard at the wrap-up of the second day. “People's attentions were scattered. It puts people under an enormous amount of pressure and anxiety, and I think the testimony we heard today made clear that that can have an effect on peoples' observations.
“The core of the question before the court is really about identification. Molotovs were thrown. But of course it's troubling [that more detailed police reports are surfacing over time]. Over time memory changes and people can have a tendency to become more certain about events, when maybe that's not how memory works.”
“Memory is the faculty that allows you to forget,” added defence lawyer Lemieux.