11 2 3 IPPERWASH PUBLIC INQUIRY 4 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE JUSTICE SIDNEY LINDEN, 11 COMMISSIONER 12 13 14 15 16 Held at: Forest Community Centre 17 Kimball Hall 18 Forest, Ontario 19 20 21 ******************** 22 23 24 August 21st, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) 7 Rebecca Cutler ) (np) 8 9 Murray Klippenstein ) The Estate of Dudley 10 Vilko Zbogar ) George and George 11 Andrew Orkin ) (np) Family Group 12 Basil Alexander ) 13 14 Peter Rosenthal ) Aazhoodena and George 15 Jackie Esmonde ) Family Group 16 Amanda Rogers ) Student-at-law 17 18 Anthony Ross ) Residents of 19 Cameron Neil ) Aazhoodena (Army Camp) 20 Kevin Scullion ) 21 22 William Henderson ) Kettle Point & Stony 23 Jonathon George ) Point First Nation 24 Colleen Johnson ) (np) 25
31 APPEARANCES (cont'd) 2 Kim Twohig ) Government of Ontario 3 Walter Myrka ) (np) 4 Susan Freeborn ) 5 Sheri Hebdon ) (np) Student-at-law 6 7 Janet Clermont ) Municipality of 8 David Nash ) (np) Lambton Shores 9 Nora Simpson ) (np) Student-at-law 10 11 Peter Downard ) The Honourable Michael 12 Bill Hourigan ) (np) Harris 13 Jennifer McAleer ) 14 15 Ian Smith ) Robert Runciman 16 Alice Mrozek ) (np) 17 18 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 19 Jacqueline Horvat ) 20 21 22 23 24 25
41 APPEARANCES (cont'd) 2 Douglas Sulman, Q.C. ) Marcel Beaubien 3 Mary Jane Moynahan) (np) 4 Dave Jacklin ) (np) 5 Trevor Hinnegan ) 6 7 Mark Sandler ) Ontario Provincial 8 Leslie Kaufman ) Police 9 10 Ian Roland ) Ontario Provincial 11 Karen Jones ) (np) Police Association & 12 Debra Newell ) K. Deane 13 Ian McGilp ) (np) 14 Annie Leeks ) (np) 15 Jennifer Gleitman ) (np) 16 Robyn Trask ) 17 Caroline Swerdlyk ) (np) 18 19 20 21 22 23 24 25
51 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) 6 Clem Nabigon ) (np) 7 Linda Chen ) (np) 8 Chris Darnay ) (np) 9 Sunil Mathai ) 10 Adriel Weaver ) (np) Student-at-Law 11 12 Al J.C. O'Marra ) Office of the Chief 13 Robert Ash, Q.C. ) (np) Coroner 14 William Horton ) Chiefs of Ontario 15 Matthew Horner ) (np) 16 Kathleen Lickers ) (np) 17 18 Mark Fredrick ) Christopher Hodgson 19 Craig Mills ) (np) 20 Megan Mackey ) (np) 21 Peter Lauwers ) (np) 22 Erin Tully ) (np) 23 Michelle Fernando ) (np) 24 Maanit Zemel ) (np) 25 Patrick Greco ) (np)
61 APPEARANCES (cont'd) 2 3 David Roebuck ) (np) Debbie Hutton 4 Anna Perschy ) 5 Melissa Panjer ) 6 Adam Goodman ) (np) 7 8 Gary Penner ) (np) Allan Percy Howse 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 TABLE OF CONTENTS 2 PAGE NO. 3 Opening Comments 8 4 5 Final Submissions by Dudley George Estate 6 and Family Group 16 7 8 Final Submissions by Aazhoodena and George 9 Family Group 78 10 11 Final Submissions by Residents of Aazhoodena 148 12 13 Final Submissions by Chiefs of Ontario 211 14 15 Final Submissions by Chippewas of Kettle and 16 Stony Point First Nation 228 17 18 19 20 Certificate of Transcript 261 21 22 23 24 25
81 --- Upon commencing at 9:03 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 MR. MARK SANDLER: Good morning, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning, Mr. Sandler. 10 MR. MARK SANDLER: Just before we start I 11 -- I just wanted to indicate that this week Ms. Kaufman 12 is going to be here with me. As you know we're all 13 delighted that Ms. Tuck-Jackson is now a member of the 14 Ontario Court of Justice so she will not be here, but I 15 want to publicly acknowledge all of the hard work that 16 she did on the OPP's behalf before her very worthy 17 appointment to the Court. I'm very grateful for her 18 assistance throughout. 19 The second thing I wanted to mention to 20 you, Commissioner, is that I wanted to tell My Friends 21 who will be making submissions to you tomorrow that it is 22 no sign of disrespect that I will not be here for the 23 sessions tomorrow. As you may know in the Court of 24 Appeal tomorrow the Provincial Government and the OPP and 25 other parties will be seeking to set aside Justice
91 Marshall's order -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. MARK SANDLER: -- in the Caledonia 4 matter and it -- it does require my attendance there so I 5 apologize. Ms. Kaufman will be here. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 MR. MARK SANDLER: Thank you. 8 COMMISSIONER SIDNEY LINDEN: Thank you 9 very much, Mr. Sandler. 10 I'd like to begin by saying good morning 11 to everyone and saying that as I look around it's obvious 12 that everybody is a little more rested than when we were 13 last together in June. I hope everyone is feeling a 14 little more rested as well. 15 We have a demanding schedule this week, 16 but I just want to take a couple of minutes to briefly 17 explain where we are in the process and what still 18 remains to be done. 19 We've come a long way since our hearings 20 on standing and funding just over two (2) years ago. Our 21 efforts to conduct a thorough and fair investigation into 22 the events surrounding the death of Dudley George in 23 September '95 have resulted in the establishment of a 24 database of over twenty-three thousand (23,000) 25 documents, evidence heard from one hundred and thirty-
101 nine (139) witnesses including some expert witnesses 2 during two hundred and twenty-nine (229) days of 3 testimony, an archive of eighteen hundred and seventy-six 4 (1,876) exhibits, a verbatim written record of the 5 hearings amounting to over sixty thousand (60,000) pages 6 of transcript and a video recording of the proceedings 7 from beginning to end. 8 The legacy of our policy work directed at 9 making recommendations to avoid violence in similar 10 circumstances includes over twenty (20) commissioned 11 research papers by academics and other experts, all of 12 which are now available on our website, many papers on a 13 variety of relevant topics written by parties with Part 2 14 standing, over a dozen meeting symposia and other events 15 organized to assist the Commission in understanding the 16 different issues and perspectives. In total these events 17 were attended by several hundred and when webcast were 18 viewed by many, many more. 19 I hope that the results of our efforts go 20 beyond statistics and convey a sense of the depth and 21 scope of the work that has been undertaken not only by 22 the Commission but by everyone involved and once again I 23 would like to express my appreciation for the 24 contribution made by parties and their counsel to this 25 process.
111 The written submissions convey the 2 parties' positions on the evidence heard and they are now 3 available on our website as well. 4 I have reviewed all of the written 5 submissions and the responses. The next four (4) days 6 have been set aside for parties with standing to 7 highlight their written submissions and to respond to 8 points raised by others in their written submissions. 9 The purpose is not to provide an opportunity to raise new 10 issues. 11 It's important for me to remind everyone 12 that the submissions are not evidence, they are parties' 13 interpretation of the evidence and in some cases what the 14 parties urging me to conclude from the evidence. 15 All of us engaged in the process have a 16 professional obligation to treat the Commission, Counsel, 17 parties, and witnesses with candour, with fairness, 18 courtesy and respect. I believe we've all tried to do 19 that during the course of these hearings. 20 That duty extends to the submissions that 21 Counsel make. It's not helpful to me or to the process 22 and in my view it's unfair for Counsel in their 23 submissions to use language that is not rooted in the 24 evidence and is inflammatory or speculative. 25 During the course of these oral
121 submissions I'm asking Counsel to remember their 2 obligations and in particular their obligation of 3 fairness when making statements in characterizing the 4 conduct of witnesses. 5 Each party has been assigned a maximum 6 length of time in which to make its oral submission. 7 Some may not use the full amount of time assigned, but 8 they may not exceed that amount of time. In order to 9 proceed in an orderly and efficient manner and to 10 conclude by Thursday of this week I'm asking that Counsel 11 refrain from making objections during the submission of 12 another party. 13 Parties that participated in the hearing 14 process have had an opportunity to make their case in 15 their written submission and in their written response to 16 the other parties. 17 I intend to consider every argument very 18 carefully, but ultimately my report will be based on my 19 own assessment of the evidence and my own assessment as 20 to what policy changes and recommendations to include in 21 my report. 22 Notwithstanding the interests that Counsel 23 represent and the views that they wish to share during 24 these oral submissions I urge Counsel to please keep in 25 mind the principle of fairness which has governed our
131 proceedings. 2 On Friday morning the evidentiary hearing 3 phase of the Inquiry will conclude with a brief closing 4 to which all parties and their counsel and the public are 5 invited to attend. I will then be spending the next few 6 months writing my report. It's my intention to complete 7 it by the end of the year and subject to production 8 considerations to deliver it to the Attorney General as 9 soon thereafter as possible. 10 On a number of occasions I've expressed my 11 view that the value of a public inquiry with a mandate 12 such as this one may go beyond what is said in the 13 Commissioner's final report. The process itself 14 generates discussion and debate and may foster new 15 understandings and provide a catalyst for change. 16 The public's access to this Inquiry was 17 maximized through the webcasting of witness testimony in 18 Part 2 events to the posting of the research and 19 discussion documents on our website and through an open 20 consultation process on many complex policy issues. 21 Over the next few months I will be taking 22 some additional steps to facilitate individuals' and 23 institutions' awareness of the perspectives that have 24 been shared with me. For example, I will be exploring 25 means for bringing the Inquiry's research and other
141 materials to the attention of teachers, professors, and 2 others involved in furthering education. 3 I will also be taking steps to ensure that 4 our materials continue to be available to institutions 5 and other organizations beyond the duration of the 6 Commission. I'm also considering preparing short 7 summaries of key issues at the center of the Inquiry 8 which should provide easier access to some of what we've 9 learned during this process. 10 Time is still of the essence and so I'm 11 now going to call on Mr. Millar who will say a few words 12 and then we will begin by calling the first party Mr. 13 Klippenstein. 14 MR. DERRY MILLAR: Thank you, 15 Commissioner. I'm going to be very brief because we have 16 a lot, as you said, work to be done during the week. 17 What we're going to do is start with the 18 first party and just carry on until we're finished. I 19 anticipate that what we will do this morning is Mr. 20 Klippenstein first and then Mr. Rosenthal and Ms. 21 Esmonde, and we'll sit until 1:00 or 1:15 or whatever 22 time it takes to finish the first two (2) parties. 23 I just wanted to tell everyone just as a 24 friendly reminder, I've got three (3) sheets of paper 25 here; one's green that I'll pass up to them when there's
151 ten (10) minutes to go, one's yellow when it's five (5), 2 and a red one when it's time. 3 COMMISSIONER SIDNEY LINDEN: When a bell 4 goes. 5 MR. DERRY MILLAR: Well, we don't have 6 any lights or bells like -- 7 COMMISSIONER SIDNEY LINDEN: Or hooks, we 8 have no hooks. 9 MR. DERRY MILLAR: -- they have in the 10 Supreme Court of Canada so I thought we would do that. 11 So those are my comments. Thank you very much, 12 Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much. I'll now call on Mr. Klippenstein. 15 MR. MURRAY KLIPPENSTEIN: Thank you, 16 Commissioner -- 17 COMMISSIONER SIDNEY LINDEN: Good -- 18 MR. MURRAY KLIPPENSTEIN: -- and good 19 morning. 20 COMMISSIONER SIDNEY LINDEN: -- morning. 21 MR. MURRAY KLIPPENSTEIN: With your 22 permission, Commissioner, the -- Mr. Sam George who's 23 been with us for much of the Inquiry would like to make a 24 few comments on behalf of the Estate and Family of Dudley 25 George and then I will complete the submissions if that's
161 all right. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much. Yes. Welcome. Welcome, Mr. George. 4 5 FINAL SUBMISSIONS BY DUDLEY GEORGE ESTATE AND FAMILY 6 GROUP: 7 MR. SAM GEORGE: Good morning, Mr. 8 Commissioner. 9 The last eleven (11) years has been a real 10 journey, one I would not like to wish on anyone. The 11 start of it was not very pleasant for -- to my family, 12 myself, or to my community. 13 I have learned a lot over these years and 14 I've also lost a lot. There are things I can never 15 replace or ever re-live. I have seen so much hurt 16 towards other people just because they are upset at 17 something or at someone so they try to make themselves 18 feel better by doing things to -- to others. 19 I know there are people who don't like 20 what I -- what I did, but they never saw things through 21 my eyes or felt my heart hurt the way it did and it still 22 hurts when I think about that night. 23 In the beginning people told me I would 24 never find out the truth -- what the truth was, but I had 25 to try. As one (1) of the children of Reg and Jenny
171 George I am a member of a proud family with other 2 siblings; Reg Jr., Cully, Perry, Joan, Pam, Laverne. 3 We also knew that things were not right 4 about the death of our brother, Dudley. I knew from the 5 time I arrived at the hospital that night, the way 6 everyone was acting, it was like walking into a movie. 7 After hearing what they had to tell me, it was in -- it 8 was time to start helping Dudley get ready for that final 9 journey he was now going to make. 10 We also had to get back home to let the 11 rest of the family know, but before I could do that, I 12 had to find out where my brother and sister were. 13 The police at the hospital told me they 14 were at the OPP station, so I went over and then asked to 15 see them and after a little time, the police let me in to 16 talk to them. 17 The first question they asked was, how was 18 Dudley? I had to tell them he had died from the gunshot 19 wound. I had to leave them there in those jail cells. 20 Once I got close to Forest on my way back 21 I was stopped at -- OPP road block and told to get out of 22 my van. I had a gun pointed at me. My wife and son were 23 also in the van with me and it was only a short time ago 24 that I found out that they had guns pointed at them that 25 night.
181 I was asked by an officer where I was 2 going, so I told them I was going home to tell my family 3 about Dudley and they let us go. But the image stayed in 4 my head for a long time because I've never had a gun 5 pointed at me before and never again since that night. 6 This was the start of a journey which I 7 had no idea where it was going to take me until today. 8 On that evening, Dudley did not think he 9 would have been shot at, much less shot dead. I wished 10 it would have never happened. I think it should have 11 never happened. 12 I'm very proud of Dudley because of the 13 way he stood up for himself and his people. He believed 14 why he was there and it was time to protect our lands 15 where the burial grounds were and which had been promised 16 to us, and for this he gave up his life. 17 I would like to thank my brother for the 18 time he spent here with me. 19 20 (BRIEF PAUSE) 21 22 MR. SAM GEORGE: And as my brother -- for 23 all the happy times and for all he had taught -- taught 24 us and for all he has done for his family and his people. 25 His work is still being done and that is
191 what we ought -- now have to learn to work together and 2 listen to each other in a good way. 3 But Dudley can now rest because he has 4 given us the work that we need to do. 5 I would like to thank the Commissioner so 6 much for the way he had listened so carefully to our 7 people. Whatever happens, I will always be grateful. 8 I would like to thank the present leaders 9 of Ontario, the people of Ontario who have chosen to 10 spend a lot of time and money on this Inquiry, not to 11 fight against us but to listen to us and to try and 12 understand what Dudley and the others were saying about 13 our lands and our burial grounds. 14 I would like to thank Commission Counsel 15 and Commission staff; they worked so very hard and we are 16 very grateful for what they have done. 17 I would like to thank the many witnesses 18 who came forward and told the truth. I know it was a 19 difficult thing to go through and I want you to realize 20 that we are very grateful. 21 I want to thank the other parties and 22 their legal Counsels in the Inquiry who were often so 23 considerate. I would like to thank our legal Team -- 24 Counsel on behalf of Dudley and his family. 25 This is a team that came together to help
201 bring out the truth and also believe in our story. The 2 only bad thing that -- was that they had to put up with 3 me all them years. 4 I also believe that -- that when there is 5 work like this it has to be done, the Great Spirit sends 6 us to each other. We would have never got this done 7 without a legal time like the one we have. We are -- we 8 are a very lucky family and we would like to thank them 9 now for all their hard work, sleepless nights working on 10 the files with us. Thank you from the Dudley George 11 family. 12 There comes a time when one must look back 13 and thank some of the ones who watched me as I went 14 through this. I went through this trying to get where we 15 are today. 16 My children, who when asked to help, never 17 said no and they were always there to support their uncle 18 Dudley. I would like to thank my sisters and my brothers 19 for trusting me to do the -- this work with them. I hope 20 I did a good job. But the one who stood behind me the 21 most was my wife. She watched me I went -- as I went 22 through this journey. I thank my wife, Veronica, for 23 being there for me and with me. So to my wife, Veronica, 24 and my children who helped me and to my family, thank 25 you.
211 Dudley can now rest in peace. And as we 2 come to the end of the Inquiry we can start our healing. 3 We can start to learn how to forgive but we will never 4 forget the night of September 6th, 1995. Thank you. 5 COMMISSIONER SIDNEY LINDEN: Thank you, 6 Mr. George. 7 8 (BRIEF PAUSE) 9 10 MR. MURRAY KLIPPENSTEIN: Thank you, 11 Commissioner. Commissioner, I will be making a final 12 submission summary and highlights on behalf of The Estate 13 and Family of Dudley George and the -- my co-counsel 14 Basil -- Basil Alexander, Vilko Zbogar and Andrew Orkin, 15 was not able to make it today. 16 I would also like to congratulate our 17 colleague Andrea Tuck-Jackson for her appointment and she 18 will be missed for a short period because we're almost 19 done. 20 I would like to address a number of points 21 in our final submissions orally today, basically, six (6) 22 topics I'd like to cover. 23 First of all, the night of September 6th 24 and, in particular, the mobilization of the CMU, the 25 Crowd Management Unit, also known as the Riot Squad
221 colloquially. 2 Secondly, the question of political 3 pressure or direction or influence. 4 Thirdly, the question of burial grounds. 5 Fourthly, the question of the status of 6 the Ipperwash Provincial Park Lands. 7 Fifthly, comments on the rule of law which 8 have been raised in some parties' submissions. 9 And finally, sixthly, a number of 10 recommendations. 11 I will be referring to the written 12 submissions of the family -- the family, which you, 13 Commissioner, and everyone has. I don't propose to read 14 them and I don't propose to cite in detail the evidence 15 except for certain -- certain references. But generally 16 they are found in the written submissions if people wish 17 to look them up. 18 The first topic I'd like to cover is the 19 issue of the night of September 6th and, in particular, 20 the issue of the mobilization of the Riot Squad or the 21 Crowd Management Unit; that is found in the submissions 22 at Tab 6 and beginning at page 101. 23 The question of the mobilization of the 24 Crowd Management Unit or Riot Squad is an important one 25 and always has been an important one from the perspective
231 of The Estate and Family of Dudley George because from 2 the very beginning from the -- from the death of Dudley 3 George the question forced itself upon them, how was it 4 possible that a Crowd Management Unit -- that a Riot 5 Squad could end up marching down the road to Ipperwash 6 Provincial Park and confront protestors in the dark and 7 resulting in shooting? How was such a thing possible? 8 They never imagined or dreamed that such a thing was 9 possible. 10 What I would like to do is draw your 11 attention, Commissioner, to a number of the specific 12 facts or points of evidence about how the mobilization of 13 the Crowd Management Unit started and, in particular, how 14 the -- or the point in time when the Riot Squad suited up 15 or dressed up in its equipment. 16 That sounds like a bit of an odd focus but 17 I want to -- I choose that and highlight that for a 18 little bit of specific examination because the point at 19 which the CMU suited up, in my submission, is highly 20 important and very explanatory in understanding what 21 happened and why. 22 The CMU suited up in its hard TAC 23 equipment as they call it, including helmets and shields 24 and hard protective body padding, at approximately 8:00 25 p.m. on the evening of September 6th. And I'm going to
241 just identify a few points of evidence to highlight that. 2 And that, in my submission, is very 3 important. We have looked in great detail at the 4 sequence of events that night and in my submission the 5 fact that the Riot Squad or CMU suited up in its 6 equipment at approximately 8:00 p.m. is very important 7 because the various escalations that happened after that 8 point in time, after 8:00 p.m., have often been pointed 9 to as justifications for the use of the Crowd Management 10 Unit. 11 But I want to highlight the difficulty 12 arising when the CMU suited up at about 8:00 p.m. and the 13 problem or the illogicality of saying that what happened 14 after 8:00 p.m. can reach back in time and serve as a 15 previous justification for the suiting up of the Riot 16 Squad. 17 There's another -- there's several reasons 18 why I think, in addition, that 8:00 p.m. suiting up of 19 the Riot Squad is important and one (1) is, it would 20 appear that the suiting up, and I'll show -- I'll show 21 some of the -- the evidence in a minute, occurred without 22 the authorization of the Incident Commander or either the 23 daytime or nighttime Incident Commander; that, in my 24 submission, is a problem, a concern and, in fact, I will 25 argue part of an explanation of what happened.
251 I will be suggesting that Acting Detective 2 Sergeant Wright and Staff Sergeant Korosec had a big role 3 to play in the suiting up of the Crowd Management Unit at 4 around 8:00 p.m. and that they did so without proper 5 authorization from the Incident Commanders. 6 And I will suggest that the suiting up of 7 the CMU at approximately 8:00 p.m. crossed the line, an 8 important line, an explanatory line, and a very 9 significant line, that involved a commitment and a 10 mindset to the use of force that the -- the donning of 11 the shields and the helmets and the padding by the Crowd 12 Management Unit at about 8:00 p.m., in effect, escalated 13 the events to a level that was hard for the Incident 14 Commanders to back down from. 15 I will -- I will suggest that, later in 16 the evening, about half an hour later when Incident 17 Commander Carson returned to the Command Post after his 18 leaving at the end of the shift that the die was already 19 cast, that the CMU, the Riot Squad, was already 20 immobilized; not necessarily deployed or sent out, but 21 was mobilized. 22 I'm going to suggest that what happened in 23 that half hour, approximately, after 8:00 is not as 24 important as has been suggested to you because when the 25 Riot Squad has already suited up at eight o'clock what
261 happened later cannot be a cause of the suiting up. 2 I'm going to suggest that there were, in 3 effect, -- in effect two (2) parallel pathways going on 4 with the mobilization; the official one and the 5 unofficial one. And the unofficial one was the -- was 6 the one that resulted in the CMU, the Riot Squad, 7 dressing up in their riot gear. 8 I'm going to suggest the fact that the 9 Riot Squad was dressing up at approximately 8:00 p.m. 10 that evening without, in my submission, authorization of 11 the Incident Commanders, connects to my second topic 12 which is the question of political direction and 13 influence, and one needs to look at whether such 14 political direction and influence may have been part of a 15 contributing or important factor in actually causing the 16 events beginning around 8:00 p.m. 17 To begin a brief look at the detailed 18 evidence with respect to the suiting up of the CMU, I'd 19 ask you, Commissioner, to retrieve the written 20 submissions and turn to Tab A which is Appendix A, of the 21 written submissions. 22 And, in particular, if could ask you to 23 turn to Tab 8 -- excuse me, page 8, of Tab A. 24 25 (BRIEF PAUSE)
271 MR. MURRAY KLIPPENSTEIN: That's, again, 2 page 8 of Tab A, Commissioner. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 5 (BRIEF PAUSE) 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 MR. MURRAY KLIPPENSTEIN: And at the 9 bottom of the sideways holding of that page, there's a 10 summary of the evidence of George Hebblethwaite with 11 respect to the issue I'm looking at now and it continues 12 on the next page, page 9. 13 And Officer Hebblethwaite says: 14 "I'd like to go back to a debriefing 15 which was going to be the end of our 16 shift, which was approximately 8:00 17 p.m. that evening, at the Forest 18 Detachment or a little bit before." 19 Then dropping down, Commissioner, near the 20 bottom of that box: 21 "Sergeant Korosec came in and told us 22 to get ready in our Crowd Management 23 uniform; hard TAC it's called; that's 24 with a shield, helmet, pads. 25 P/C Webber and I drove immediately to
281 my hotel room in Grand Bend, picked up 2 the equipment that had been left, from 3 my vehicle, and so forth." 4 The reason I draw this to your attention, 5 Commissioner, is that the witness, Hebblethwaite, 6 described how, in the debriefing at about eight o'clock 7 he was told to get ready in the Crowd Management uniform. 8 In cross-examination by Mr. Alexander and 9 Mr. Falconer they went through the timing of it, and if I 10 can summarize the evidence, the conclusion was that when 11 you factor in the various times, the actual order to 12 dress up in CMU could not have happened before 8:10 -- 13 sorry, after 8:10 that evening. 14 Then, Commissioner, there are, and we have 15 prepared Appendix A to compile, I believe, is a 16 comprehensive selection and organization of all the 17 Inquiry documents including this -- in particular, the 18 statements of the officers, addressing that question of 19 what Hebblethwaite referred to as the getting ready in 20 the Crowd Management uniform. And one will find, if I 21 can summarize that, it is almost a uniform description 22 that the CMU was asked to be suited up at around eight 23 o'clock and I would just, without going through them, 24 mention the witness statements or the documents of Mark 25 Cloes, who says:
291 "At 19:58 told to get on Crowd 2 Management gear on and standby." 3 Glenn Gutjahr, who says: 4 "20:05 advised to get into Crowd 5 Control gear." 6 Kelly McGrath who says at 19:57: 7 "Advised to remain and suit up in hard 8 TAC." 9 And so on. There a few outliers, if I may 10 use that term, of people who have different times, some 11 are quite far ahead and some quite far behind of 8:00 12 p.m., but the center of gravity in my submission is very 13 clearly at around 8:00 p.m. 14 The -- the problem that this creates, in 15 my submission, when the rest of the evidence is put 16 together is that during the period from approximately 17 8:00 p.m. until at least approximately 8:20 that evening, 18 the Incident Commanders being John Carson and -- and 19 Linton were not discussing CMU at all. 20 There was absolutely no mention of the 21 Crowd Management Unit at the Incident Command level. 22 There was discussion as we have seen about the T-R-U, the 23 TRU Team, calling out the sniper team and there was some 24 very serious discussion you will recall, Commissioner, 25 when nighttime commander Linton said he had called out
301 TRU and daytime incident commander Carson said don't do 2 that, and there was phone calls and -- and very serious 3 discussion. 4 In fact a daytime Incident Commander was 5 suggesting that instead of TRU that the Emergency 6 Response Team be called out. What is -- what is a stark 7 and in my submission, very signif -- significant is that 8 there was no discussion of CMU, but meanwhile according 9 to these notes the Crowd Management Unit was already 10 suited up in helmets and shields at the Command Post. 11 What we have here would appear is the 12 parallel tracks which I mentioned before, which is that 13 somebody, and in my submission it's Korosec and Wright, 14 have ordered the Crowd Management Unit to suit up, have 15 begun the commitment to the confrontation and the 16 Incident Commanders have not only not considered that, 17 they haven't approved it. They haven't even discussed 18 it. 19 Furthermore, there was no mention in any 20 of the planning scenarios at all of using the Crowd 21 Management Unit. So what happened at 8:00 p.m. was a 22 huge departure from all the planning as well. In my 23 submission that is very significant. 24 Indeed we have the phone call with 25 Inspector Carson speaking with Wade Lacroix the previous
311 morning, on the 5th, when Carson makes it clear to 2 Lacroix that the Crowd Management Unit would not be used 3 as that formation which of course is precisely what 4 happened on the evening of the 6th. 5 6 (BRIEF PAUSE) 7 8 MR. MURRAY KLIPPENSTEIN: In my 9 submission if one reflects on the fact that the Crowd 10 Management Unit had suited up at about 8:00 p.m. a lot of 11 -- a lot of otherwise difficult facts fall into place. 12 It provides an explanation for some things that otherwise 13 are rather difficult. 14 For example, the handwritten scribe 15 notes of that period include an assertion and -- I'm not 16 sure it's necessary to call back, in which under the -- 17 in the testimony of Mark Wright he said he was suggesting 18 to Linton to take some officers down to the Park and ask 19 the protestors to go back into the Park. 20 That handwritten note actually does not 21 appear in the scribe notes and to be honest, 22 Commissioner, despite years of poring over those notes I 23 did not -- I was not aware of that one (1) line in the 24 handwritten notes because it was not in the typewritten 25 notes.
321 What is important is that given the timing 2 that at that point in time what was really going on was 3 that the CMU, the Crowd Management Unit, had already been 4 suited up in its armour, if you will, in its shields and 5 its -- and its helmets. And so the comment in the notes 6 of asking the people to leave must be taken in that 7 context. 8 They were going to be asked to go back 9 into the Park by a Crowd Management Unit riot gear; that, 10 in my submission, is a very important explanation to that 11 comment in the notes. 12 There's a -- another assistance we can get 13 from the CMU suiting up at eight o'clock and that 14 pertains to the comment by Mark Wright in his 15 conversation just after eight o'clock that evening with 16 Incident Commander Carson. 17 And you will recall the -- the phone 18 recording in which Mark Wright says: 19 "Don't you say we go get those fucking 20 guys". 21 And there's been some discussion, 22 including by the witness, Wright, about what he meant. 23 In my submission that comment takes on additional meaning 24 when one realizes that the CMU, the Crowd Management 25 Unit, has already been suited up at that time.
331 When I talk about the Crowd Management 2 Unit suiting up I make a couple of distinctions. I don't 3 necessarily say that suiting them up and deploying them 4 are the same thing. I can -- I -- I can understand that 5 it might be different. There is some suggestion in the 6 evidence of Officer York, I believe it is, that, in fact, 7 after being suited up the Crowd Management Unit was sent 8 down towards the Park and then recalled before being sent 9 a second time. 10 But, to be fair, that appearance -- or 11 that suggestion of two (2) separate deployments or 12 sending out appears, I believe, in only one (1) or two 13 (2) officers' comments. But I don't need to suggest to 14 you that there were two (2) deployments and I'm not 15 emphasizing that today. I'm suggesting that the suiting 16 up itself is important and it crossed a line towards 17 confrontation. 18 There's, in my submission, another 19 significant aspect to the suiting up of the CMU at eight 20 o'clock and that relates to Acting Staff Sergeant Mark 21 Wright. We heard a lot of testimony from Mr. Wright but 22 we heard no testimony about the suiting up of CMU at 23 about 8:00 p.m. from Mr. Wright. Nothing. 24 He was extensively cross-examined in this 25 Inquiry and in previous litigation procedures about how
341 the day shift that was leaving work at approximately that 2 time had been held back. It's that day shift which 3 became the Crowd Management Unit and Mr. Wright has 4 agreed that it was he who, so called, held back the day 5 shift by instruction Sergeant Korosec to hold back the -- 6 the District 3 and 6 Teams, totalling approximately 7 thirty (30) officers. And it was approximately those 8 officers that got suited up. 9 The connection to -- to Detective Wright 10 is that it appears now, and this did not appear from his 11 testimony, that not only did he hold back the day shift 12 but that some combination of himself and Sergeant Korosec 13 ordered the command -- the CMU to suit up in their 14 equipment at around 8:00 p.m. 15 The -- the -- the inference to Mr. 16 Wright's involvement on that specific point is 17 circumstantial and arises from the fact that the evidence 18 is clear that it was Wright who ordered the holding back 19 of the day shift and, in my submission, that's the most 20 logical explanation for the order for suiting up as well. 21 The suiting up at eight o'clock has 22 another very serious effect on some of the evidence we 23 heard. And that relates to the fact, in the evidence, 24 that Sergeant Korosec, the night before, on the evening 25 of September 5th, had made some comments rather harshly
351 and these are the comments about that he had spoken with 2 Detective Wright and that they were 3 "going to amass a fucking army and do 4 these guys." 5 When one looks at the inference that it 6 was Mark Wright and Korosec who apparently ordered the 7 CMU, a full day shift of approximately thirty (30) 8 officers, to suit up in Riot Squad gear at approximately 9 8:00 p.m. and that -- and you put that together with the 10 context from the comment about "amass a fucking army and 11 get those guys", the dressing up of the Crowd Management 12 Unit takes on, in my submission, additional meaning; both 13 explain each other. 14 The subsequent dressing up of the Riot 15 Squad without incident commander authorization help 16 explains the importance of the earlier comment and the 17 earlier comment help explains the subsequent suiting up. 18 19 (BRIEF PAUSE) 20 21 MR. MURRAY KLIPPENSTEIN: The -- the 22 interpretation that I'm suggesting to you of the 23 significance of the apparent suiting up at 8:00 p.m. of 24 the -- of the Riot Squad, in my suggestion, influences 25 the interpretation of Incident Commanders -- Commander
361 Carson's actions later that evening. I suggested to you 2 that the die was already cast to some extent when, at 3 about 8:00 p.m., the Riot Squad suited up. 4 The question then becomes, what was In -- 5 Incident Commander Carson supposed to do when he arrived 6 back at the Command Post? And my suggestion to you is 7 that he had the option of, supposing he had considered 8 all the evidence or information and decided that the Riot 9 Squad, which had never before been considered, was not 10 the appropriate tool, of ordering the CMU to -- to take 11 off their hard TAC. 12 In theory, I suppose, he could have done 13 that. But, instead, he was confronted with a CMU, a Riot 14 Squad, which had already been mobilized, that is dressed 15 up and in my submission, this put him in a difficult 16 situation. 17 If he was going to demobilize the CMU, 18 this would create the appearance of conflict in 19 commanding officers because he would be contravening the 20 order of another officer, whether that's Mark Wright or 21 Stan Korosec and so this fait accompli put him in a 22 difficult situation. And in my submission, Incident 23 Commander Carson having found himself with a dressed up 24 Riot Squad that he had not ordered, could have said no, 25 could have stopped the train, and he did not.
371 I will not go through all the other 2 surrounding circumstances and there are many and My 3 Friends will go through that in other detail. But in my 4 submission the fact that the CMU was already suited up 5 put Incident Commander in a difficult situation. 6 I'm not suggesting he couldn't and 7 shouldn't have undone it. In fact, that is my 8 submission, but it changed the circumstances. 9 10 (BRIEF PAUSE) 11 12 MR. MURRAY KLIPPENSTEIN: What I would 13 like to do finally on this point, Commissioner, is to 14 play a short excerpt of a tape which has already been 15 played and exhibited. And I have had prepared a 16 compilation that has been distributed, of -- of the 17 transcript of this portion, and I don't know, 18 Commissioner, if we're still making exhibits or not, but 19 for -- should I request an exhibit number for this or no? 20 COMMISSIONER SIDNEY LINDEN: I'm sorry? 21 Is this -- are we set up for this? 22 MR. DERRY MILLAR: Well, I don't -- I 23 think -- we can mark it as something to assist us. I 24 don't think we need to mark it as an exhibit. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
381 MR. DERRY MILLAR: It really falls in the 2 category of Appendix A, Appendix B. 3 4 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 5 MR. MURRAY KLIPPENSTEIN: It's an 6 addition to the argument I guess. But what we have here, 7 in my submission, Commissioner, is a graphic 8 representation of the problem I've to explain about the 9 CMU or riot squad being suited up without authorization 10 and what was happening on the parallel track at the 11 Incident Commander level. 12 We have linked two (2) phone calls that 13 overlap. On the left is a phone call transcript 14 involving the two (2) Incident Commanders and that's -- 15 that's about 8:20-ish I think, something like that, we 16 can get the exact time but it's in the exhibits, in which 17 Incident Commander John Carson who of course has left at 18 the end of his shift, has connected with Incident 19 Commander Linton in the Command Post, particularly about 20 the issue of the Tactical Response Unit being called out 21 because at this point in time, at about 8:20, the 22 Incident Commander for the nighttime, Linton, has called 23 out the TRU team, the sniper team and daytime incident 24 commander Carson has said: 25 "Dale, don't do that."
391 And what we see in this transcript is, and 2 you can actually see it happening, Linton changing his 3 mind and what Carson has done has changed his mind from 4 TRU to ERT. And you can see how Carson says: 5 "Use E-R-T." 6 And Linton says: 7 "Okay, I will." 8 But here is the connection. There is a 9 point at 2:02 on the tape where there is a pause in which 10 you hear a voice in the background, and the voice I would 11 suggest is clearly that of Mark Wright, and ironically 12 Mark Wright is beginning another phone call, this time 13 with -- with McCabe. 14 And so we have two (2) interlocking phone 15 calls and it's I suppose ironic in my suggestion but it 16 happens at a critical moment because the phone call that 17 you hear beginning in the background between Mark Wright 18 and Mr. McCabe shows the other track that was going on 19 because we have within a minute or two (2) -- less than 20 minute -- Mark Wright saying to McCabe: 21 "They're coming down for a fight down 22 to the road so we're taking all the 23 Marines down now." 24 So Mark Wright is saying, "we're taking 25 down all the Marines" and the significance of that is
401 we've -- the Commission has heard that that part of the 2 transcript and the subsequent part of the same transcript 3 where he talks about we're going to war is -- is 4 inappropriate talk or something like that. 5 I'm going to suggest it shows more. It 6 shows that Mark Wright who's aware, it would appear, of 7 the CMU already being suited up, knows to some extent 8 what may happen in a way that the two (2) Incident 9 Commanders don't know. 10 The Incident Commanders are switching from 11 TRU to ERT just as Mark Wright is talking about the 12 Marines going to battle knowing that the CMU has already 13 been suited up and eventually what happens is the 14 Incident Commanders come around to Mark Wright's position 15 and it's the CMU that goes down the road. 16 So I will ask that the tape be played and 17 simply highlight 2:02 in the tape where you hear Mark 18 Wright say, "Hello Tim." 19 20 (AUDIOTAPE PLAYED, TRANSCRIPT TO FOLLOW) 21 22 Dale LINTON and John CARSON 23 September 6, 1995 24 TIME: 20:15:51 hours 25 Track 1.wav
411 LINTON: And I've got T.R.U. suited and close by. 2 CARSON: Well that's fine but I would leave them in 3 the Pinery Park, they're closer from the 4 Pinery than they are from from Forest and 5 then you're going to create a Media event 6 with the T.R.U. Team truck sitting in town 7 here. 8 LINTON: Okay so... 9 CARSON: So... 10 LINTON: I'll suit them up and leave them in Pinery 11 then. 12 CARSON: I I wouldn't do any more than that for the 13 time being. 14 LINTON: Okay. And then we'll do the arrest with 15 the E.R.T. guys? 16 CARSON: I would I'd call out all sixty of them if 17 you have to. 18 LINTON: Yeah. 19 CARSON: Whatever's necessary we'll do that but I 20 would I I... 21 LINTON: Alright. 22 CARSON: I tell you keep them in reserve. 23 LINTON: Okay. 24 (Background...hello Pam) 25 LINTON: Alright that's what we'll do.
421 CARSON: Okay. 2 LINTON: And then if something happens we'll bring 3 them down. 4 CARSON: Do you want me to come back in? 5 LINTON: No. 6 CARSON: You're in charge. 7 LINTON: No we're fine. 8 CARSON: Okay, well I'll be at my motel. 9 LINTON: Okay. 10 CARSON: Okay thanks." 11 12 END OF CONVERSATION. 13 14 (AUDIOTAPE ENDS) 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 MR. MURRAY KLIPPENSTEIN: The -- as I've 18 suggested one can hear clearly, or faintly, the beginning 19 of another conversation in which Mr. Wright is talking 20 about eventually going to war and -- and bringing down 21 the marines. 22 When Inspector Carson, in my submission, 23 is talking about using the ERT Teams, the E-R-T Teams 24 there, one could ask, but isn't that the CMU, isn't that 25 the Crowd Management Unit? In my submission, it's not
431 the same thing and that's a very important point. 2 The ERT Team, for example, was used that 3 very morning on the 6th to do down to the Park where, in 4 the night, the protesters had put some picnic tables on 5 the parking lot next to the Park. And it was the ERT 6 Team who came and removed them. 7 The ERT Team was different, in my 8 submission, because they don't have the hard TAC. They 9 have the soft TAC. They don't have the helmet, the 10 shield, the protective paddings. They do have guns. But 11 that morning the ERT Team went down, removed the picnic 12 table and that is a completely different operation I 13 suspect -- and my recollection is that it was dealt with 14 a number of times in the evidence. 15 So, while Incident Commander Carson is 16 talking about the ERT Team and then talking about large 17 numbers, he is not talking about -- there is no evidence, 18 no suggestion, that he had in mind the CMU, the Riot 19 Squad, the hard TAC; that is something entirely different 20 in my respectful submission. 21 22 (BRIEF PAUSE) 23 24 MR. MURRAY KLIPPENSTEIN: In summary 25 then, in my submission, the -- the evidence strongly
441 suggests that the CMU or Riot Squad was suited up in 2 their hard TAC, their Riot Squad gear, at about 8:00 p.m. 3 that evening; that it was done without the knowledge or 4 the authorization of the Incident Commanders; that it was 5 done by one (1) or both, probably both of Korosec and -- 6 and Wright; that Korosec and Wright, according to the 7 evidence, had made -- made these statements about "amass 8 fucking army and do these guys"; that Mr. Wright just a 9 few minutes after eight o'clock was saying to Carson "go 10 get these fucking guys" and the discussion or comments of 11 Mr. Wright at about 8:22 to McCabe about "sending the 12 Marines down" all of them tie together to show, not only 13 mind set, but an actualization in the dressing of the 14 Riot Squad of a confrontational approach that was -- that 15 developed its own momentum that was difficult for the 16 Incident Commander to step down from -- step back from 17 and in my submission was -- was inexplicable, 18 unnecessary, that none of the -- the events after 8:00 19 p.m. at the Park could justify simply on a chronological 20 basis. 21 I'm going to then turn to my second topic 22 that I mentioned, Commissioner, and that is the question 23 of political pressure or influence or direction. And I'm 24 going to be referring in significant part to the written 25 submissions of The Estate and Family at Tab 5, beginning
451 at page 71. 2 I want to go through a number of events on 3 September 5th, the day before the shooting, and that, 4 again, is at Tab 5 of the written submissions. And what 5 I want to do is show, eventually from the evidence how, 6 in my submission, there is grounds to conclude that the 7 wishes of the Premier, Premier Harris, on the issue of 8 the occupation were transmitted to the level of the OPP 9 Command -- Commander person and below that level to the 10 command team, a team which included Wright and Korosec, 11 and that there is possibly and probably a causal 12 significance, and -- in that we see that same Korosec 13 that evening talking about, "amassing a fucking army to 14 do them", and then we see that same Korosec and Wright 15 the next day, as I've just described, leading the suiting 16 up of the Riot Squad. 17 First of all, at page 71, there is a 18 description of how, on the morning of September 5th, 19 Inspector Carson speaks on the phone with Marcel Beaubien 20 who said, in essence, that he wanted something done and 21 that he would be calling the Premier. This is only about 22 8:20, the morning of the 5th, after the occupation began. 23 So what we have is the -- is the local 24 member of the Legislature suggesting to the Incident 25 Commander that the member of the Legislature would be
461 speaking to the Premier about his concerns about the way 2 the occupation was being handled; that says nothing about 3 whether the politician had or would speak with... 4 5 (BRIEF PAUSE) 6 7 MR. MURRAY KLIPPENSTEIN: My Friend 8 suggests that, in fact, it was Lacroix that Carson speaks 9 to, not Beaubien, but it doesn't change the subject 10 matter. The transmission of information is the same and 11 there's a second occurrence later on. 12 I thank My Friend, if he's right. 13 14 (BRIEF PAUSE) 15 16 MR. MURRAY KLIPPENSTEIN: The point is, 17 on the morning of the -- of the 5th, the -- the 18 suggestion that the Premier had personal or would be 19 personally contacted about the occupation was planted as 20 a seed in the Incident Commander's mind. 21 Later that same day, we have the first of 22 two of (2) what I'm going to suggest is messages from the 23 Premier getting down to the Incident Commander locally at 24 Ipperwash and, indeed, past the Incident Commander to his 25 command team.
471 That's found at 74 -- on page 74 of the 2 Estate and Family Submissions and that relates to the 3 phone call at approximately 2:47 on September 5th, 2:47 4 in the afternoon, a phone call we've all heard and 5 discussed many times and I won't go into the details 6 other than point to the excerpt that is in the written 7 submissions in which Mr. Fox, who's just emerged from an 8 Interministerial Committee meeting in Toronto, says to 9 Inspector Carson in the record -- recorded phone call 10 that the Premier's office had representation in the 11 person of Deborah Hutton and, quote: 12 "Basically the Premier has made it 13 clear to her his position is that there 14 be no different treatment of the people 15 in this situation, in other words, 16 Native as opposed to non-Native. 17 CARSON: Okay. 18 FOX: And the bottom line is, wants 19 them out." 20 So what we have here, I'm going to 21 suggest, is the transmission of an apparent message that 22 goes from the Premier, to the Premier's representative, 23 to the IMC meeting, over the phone to Incident Commander 24 Carson. 25 And leaving aside all the fine details
481 that My Friends have pointed out and that people can make 2 submissions about each step of the process, I'm generally 3 drawing a map -- a line here and, Commissioner, of 4 course, you've heard all the evidence and the critiques 5 back and forth and I'm sure will weigh those, but I'm 6 suggesting here a line of transmittal in a general way. 7 Well, in my submission, that is an 8 extraordinary event. For the Premier's political or 9 policy position and desires on an incident of this nature 10 being transmitted to the Incident Commander and what we 11 have is the idea that there be no different treatment of 12 the people in this situation, Native as opposed to non- 13 Native. 14 Now, that in my submission is an important 15 substantive point; it's -- it's a political position, has 16 legal implications because, I don't think I'm overstating 17 it, is clear legally and constitutionally that there are 18 some circumstances in which Natives are entitled to be 19 treated differently aside from the details. 20 What happens next is that the Incident 21 Commander does not disregard this transmittal of the 22 Premier's views, quite the opposite. He relays it to his 23 team at a team meeting, Command Team Meeting, at 3:07 24 that afternoon and the scribe notes, Exhibit P-427, 25 record in the handwritten form that -- that John Carson
491 says in the team meeting: 2 "Premier's no different treatment from 3 anybody else." 4 The evidence suggests in my submission 5 that Wright and Korosec heard that. Again one can argue 6 the details of what Wright and Korosec agreed to or what 7 -- what the note suggests but in my submission the 8 totality of the evidence says that the reasonably 9 conclusion is that Wright and Korosec heard that message 10 about the Premier's views and what those views were. 11 About an hour later we can get some idea 12 of what is the hidden implication of that particular 13 message when Carson who not long ago heard that comment 14 come or passed along by Fox speaks with his 15 superintendent, his boss Tony Parkin, on the phone, and 16 the excerpt from the transcript says: 17 "PARKIN: The people from the 18 Government are saying, you know, why 19 don't we just treat them just like a 20 bunch of bikers. 21 CARSON: Well -- well, they've got a 22 point." 23 And my suggestion is that it appears that 24 one (1) interpretation or one (1) possible inference of 25 the message that the Premier wants no different treatment
501 is the suggestion that they're just a bunch of bikers 2 then. If they are in the Park protesting and they have 3 no rights or -- or context as Native people then they 4 might as well be a bunch of bikers and we should act 5 accordingly. 6 Now, that is my suggestion to you from the 7 evidence as an inference or a -- or the type of attitude 8 or understanding that can flow from the statement that 9 there should be no different treatment in this occupation 10 of Native versus non-Native. 11 There is a second transmittal if I may 12 call it that of the Premier's position with respect to 13 the occupation -- occupation through intermediate steps 14 to Incident Commander Carson and to the Command Team 15 including Wright and Korosec. That occurs when, after 16 his conversation on the phone with Carson -- with Parkin, 17 Carson calls Staff Sergeant Wade Lacroix who had passed 18 on the information just the morning from Marcel Beaubien. 19 And it just happened that Beaubien had 20 spoken with Bill King, one (1) of Premier Harris' 21 executive assistants. Bill King told him that Ipperwash 22 was an MNR issue, not an Indian issue, that the Premier 23 was following the situation closely, and that the law 24 would be held no matter who was involved. 25 The evidence suggests that Beaubien passed
511 all of that along to Lacroix who passed it on to Carson 2 and the transcript of the phone call in Exhibit P-44A Tab 3 22 includes an excerpt we've included in our written 4 submissions in which Lacroix says: 5 "Marcel got briefed a half ago. 6 CARSON: Okay. 7 LACROIX: And he's going to get briefed 8 again in five (5). 9 CARSON: Okay. 10 LACROIX: That this is not an Indian 11 issue but an MNR issue and a provincial 12 issue. 13 CARSON: Uh huh. 14 LACROIX: Harris is involved himself 15 and quite uptight about it. 16 CARSON: Okay. 17 LACROIX: And the Ministry, I guess the 18 solicitor I imagine, is to do a press 19 release momentarily or soon, saying law 20 will be upheld, no matter who was 21 involved. 22 CARSON: Okay. 23 LACROIX: So I would say the signal is 24 that we're going to end up evicting 25 them.
521 CARSON: I would suspect." 2 There are a number of elements here that I 3 would highlight. One (1) is the suggestion that it is 4 not an Indian issue which is similar to the comment of 5 treating Native and non-Native alike, in the sense that 6 if this is not an Indian issue then there should be no 7 consideration or allowance of Native rights type of 8 factors. 9 Lacroix seems to be passing on the 10 information from Beaubien that Harris is involved 11 himself. And, finally, Lacroix says, interestingly: 12 "So I would say the signal is that 13 we're going to end up evicting them". 14 Now, you've heard various evidence about 15 what the meaning of the word 'signal' is, but in my 16 suggestion, in my submission, that is, in fact, an apt 17 way to describe what is happening here. There is a 18 signal being passed down of the positions and desires and 19 they are being passed down to the Incident Commander. 20 What happens next is the -- the 21 information goes further. It goes down past the Incident 22 Commander because after that meeting, after that phone 23 call, before he went off shift, Incident Commander has a 24 meeting with his Command Team and Inspector Linton, who 25 is substituting for him that night, and it is from that
531 meeting that the notes and scribe -- the handwritten and 2 scribe notes talk about Inspector Carson telling his 3 command team that there was heat from the political side, 4 lots of political pressure, and strong in house comments 5 by the Premier and Solicitor General. 6 In my submission, the -- the message that 7 is sent to, not only Incident Commander Carson, but to 8 his Command Team, including Korosec and Wright, includes 9 the message or a message about disregarding Native 10 rights, about the importance of the Premier watching and, 11 indeed, from Lacroix, about where this will end up, 12 namely an eviction by police. 13 It is with those various messages in mind 14 that I now return to the comments later that evening in 15 which Korosec, who, in my submission the evidence 16 suggests, has heard these various things during the day, 17 at the end of the day says on the phone in a record, 18 "their day..." that is the occupiers: 19 "Their day will fucking come. I was 20 talking to Mark Wright tonight. We 21 want to amass a fucking army, a real 22 fucking army, and do these fuckers big 23 time, but I don't want to talk about it 24 because I'll get all hyped up." 25 Rather than accepting the evidence that
541 you've heard about that comment and others like it that 2 it was an inappropriate comment, that it's not the real 3 me, that I was caught in a moment of inattention or 4 similar comments, I would suggest there is another 5 interpretation and that is that there is a connection 6 between the various messages that have come down during 7 that day and the attitude that is being expressed. 8 And then there is a further connection 9 between those attitudes being expressed and what happened 10 the next day when Korosec and Wright appeared to have had 11 a key role in suiting up the CMU at eight o'clock without 12 the approval of the Incident Commanders. 13 14 (BRIEF PAUSE) 15 16 MR. MURRAY KLIPPENSTEIN: I am not going 17 to go further into that -- that difficult issue. My 18 Friends from various other Aboriginal parties, in 19 addition to the various comments in our written 20 submissions, have also addressed in various detail, the 21 issue of political influence and political direction to 22 the police. 23 I commend to you, Commissioner, the -- the 24 more detailed description in the submissions of ourselves 25 and others. And I don't mean to suggest that the example
551 I've used is definitive. There are other examples of 2 messages. 3 I think My Friend -- My Friends from ALST 4 have it -- have a table in their submissions that lists 5 other instances of the apparent desires of the -- of the 6 Premier and their transmittal to the police. And I don't 7 mean to suggest those are less important. I've tried to 8 highlight as you -- to use your term, one example, which 9 in my submission, is significant. 10 I'd like to turn to the third topic I 11 mentioned which was that of burial grounds. That is 12 dealt with at Tab 3 of the Estate and Family Submissions. 13 The chapter on burial grounds in the 14 written submissions of the Family are found at page 47 of 15 the written submissions, or, rather, 46. 16 And the -- the issue of the burial grounds 17 is one in which, in my respectful submission, there is a 18 lesson to be learned about listening and understanding 19 the perspective of the First Nation parties and it is a 20 hard lesson because there was some effort made by the 21 police and the Government in 1995 to address the concern 22 or demand or statement made by the protesters that there 23 was a burial ground in the Park. 24 I have to say, I would submit the effort 25 was not that great on the part of the police and the
561 Province. But however one interprets that, in my 2 submission, the end result is that the First Nations 3 protesters in the Park were shown to be right in their 4 assertions and furthermore, my suggestion to you in the 5 totality of the evidence is that if the facts about, and 6 evidence about the burial ground in the Park which now 7 know had been known to the police and the Government in 8 1995, things would have been different. 9 And what that boils down to, in my 10 respectful submission, is if there had been a little more 11 listening and a little more time, so that more 12 information about the burial grounds could have come out, 13 things might have turned out very differently and we 14 might not be in here today and Dudley George might still 15 be alive. 16 I would -- I would like to go backwards in 17 time and pick out a couple of example of burial -- burial 18 ground information that came out. 19 One (1) is that there were, in fact, in 20 1993, a number of mentions by protesters and occupiers 21 and First Nations people at Kettle and Stony Point about 22 burial grounds in the Park. We've identified them. They 23 were not a formal submission to the Government that 24 included first rate, historical, non-Native academic 25 research or anything like that, but there were -- there
571 was a number of pleas, if you will, and assertions. It's 2 obvious to say that there was no follow-up of those that 3 led to the information and facts that we now have. 4 Going back before that to 1975 there was 5 archival evidence of the burial ground in the Park which 6 surfaced in the Provincial Ministry as we've seen in the 7 evidence in 1975 when Daryl Smith, an employee of the 8 MNR, happened to find in the archives several 1937 9 letters referring to or alleging the existence of a 10 burial ground in the Park. 11 Mr. Smith apparently, according to that 12 correspondence, passed on the information to the then 13 Park Superintendent. We have no evidence that anything 14 was done. It appears that nobody consulted with the 15 First Nation about this newly-discovered old evidence of 16 a burial ground in the Park. There's been no evidence 17 heard of any steps taken. 18 Ironically, Daryl Smith acted as a media 19 contact for the Ministry in 1995 in September, and one 20 can only -- one can only speculate I suppose, not that 21 that's too valuable, about why the burial ground 22 references he had discovered twenty (20) years earlier 23 were not raised at the time. 24 Another connection to that 1975 discovery 25 is the 1972 archeological survey of the Park which
581 ironically was the only document, it would appear, that 2 the Government relied on when it considered the claims of 3 the burial ground in the Park in 1995. That -- that 4 archeological survey says essentially that there's no 5 evidence of burials in the Park. 6 I think it's fair to suggest that if that 7 1972 survey had been conducted with the benefit of the 8 1937 letters it likely would have been conducted 9 differently and might have had a different result; we 10 don't know. 11 Then prior to -- to that, moving further 12 in the history in 1950 as we've -- as we've gone through 13 in this -- in the evidence there was a skeleton 14 discovered within the Park which was according to the 15 expert evidence we've seen probably the skeleton of an 16 Aboriginal person. And that occurred after construction 17 in the Park including some bulldozing that led to, 18 presumably after some strong winds, the uncover of -- 19 uncovering of the skeleton. 20 Photographs of that skeleton were 21 submitted as exhibits in this Inquiry and again it 22 appears that nobody told the Kettle Point and Stony Point 23 Native communities about this discovery at the time. As 24 far as we know nothing was done at the time to 25 investigate whether the burial was part of a larger set
591 of burial grounds. 2 The skull of the skeleton apparently sat 3 on the desk of Arnold Dale the Superintendent of the Park 4 for several months and the rest of the skeleton was 5 apparently abandoned. 6 The Park Superintendent's daughter Marilyn 7 Dulmage recalls that her father showed her a burial site 8 or pointed to a burial site at another location in the 9 Park. There does not appear to have been any follow-up 10 in any official capacity of that potential information at 11 the time. 12 In my submission there should be some 13 recognition of the way the skull -- the -- the skull in 14 1950 was treated and some awareness of the significance. 15 The fact that the skull of the Aboriginal -- apparently 16 Aboriginal person could be sitting on an official's desk 17 for months shows, in my submission, first of all, 18 something that would never happen with the skull of a -- 19 of a -- of a non-Native, mainstream, Euro-Canadian 20 because it would simply not even be conceived of as being 21 respectful or appropriate. 22 And the idea that the skull of an 23 Aboriginal person could somehow be treated in so 24 dramatically different a way which almost suggests that 25 the person is in a different category of humanity that
601 doesn't deserve that kind of respect is indicative of a 2 perspective which we should be aware of on other issues 3 including how the land itself was treated at the time, 4 and I'll get back to that in the other topic I've 5 mentioned. 6 Going back even further in time, we have 7 the series of correspondence in 1937 which was after the 8 construction of the Park had begun in which the Indian 9 Agent at the time, Mr. Trenouth, wrote saying: 10 "When clearing out this Park recently, 11 the engineer discovered an old Indian 12 burial ground and stated that if the 13 Band would make a request to the 14 Provincial Government, he was sure they 15 would be glad to mark off and fence the 16 plot. The Council would like this 17 done. I would be pleased if you would 18 advise me if the Department will make 19 this request or will so direct." 20 In my submission, that is strong evidence 21 that there was, in fact, a burial ground in the Park and 22 partly because it appears from this that it was an 23 engineer working for or on behalf of the Provincial 24 Government itself who apparently discovered what he, 25 apparently, considered to be an old Indian burial ground,
611 and seems to have taken the initiative to point out to 2 the Band what he had found. 3 Obviously, there are difficulties with 4 that evidence in terms of the degree of certainty but, in 5 my submission, especially given the subsequent finding of 6 the skeleton, it seems extremely plausible. 7 The other general conclusion that I would 8 suggest to you, Commissioner, to draw from this is, 9 arises from the fact that it was the Indian Agent not the 10 Band Council that drafted the letter, the fact that after 11 an exchange of letters it appears that nothing was done, 12 and in my submission, that is an important point. There 13 is no evidence of any sort that anything at all was done 14 in follow- up to that potential burial ground. 15 There is no evidence that the Indian Band 16 itself received copies of that correspondence and in my 17 submission, although I've seen suggestions from some 18 parties that there should be an inference drawn that 19 somehow the Band, First Nation, did not take normal or 20 responsible steps to follow-up on this, in my submission 21 there is an alternative and opposite and very sad 22 inference that can also be drawn which is that the Band 23 Council was simply not in a position to do anything about 24 it. 25 The fact that the Indian Agent is
621 initiating this, shows, in my respectful submission, the 2 -- the important role and domineering role of the Indian 3 Agent and that the -- in fact, the evidence, including 4 that of Joan Holmes in another context given in this -- 5 this Inquiry, also the evidence of Ron French, the last 6 witness, highlights the extremely important and 7 dominating role of the Indian Agent. 8 So there is a sadness to the fact that 9 this correspondence about a burial ground seemed to have 10 results in -- resulted in no action whatsoever. And then 11 the documentation itself got, if you will, buried and the 12 result was that when Natives many years later said there 13 was a burial ground, we now know that strong evidence of 14 that was in the Government files in several locations and 15 in several governments. 16 We know that the Federal Government had 17 the same 1937 correspondence. And we know that the 18 Provincial Government had the -- its own version of the 19 1937 correspondence and we know that there was yet 20 another iteration of this in the files from 1975. 21 I -- I have to say that there is a degree 22 of tremendous irony and sadness in the history of the 23 burial ground because the evidence is that the claim to 24 the burial ground in the Park is certainly one of the 25 main motivating factors for the protestors going into the
631 Park and one of the factors which influenced their 2 emotional commitment to being there. 3 And so the irony is that unless they'd had 4 the courage to stand up and take a -- to take a position 5 and stick by it, despite a great deal of opposition, that 6 this history of the burial ground probably would never 7 have come out at all, is a quite plausible explanation. 8 And so there's a tragedy that Dudley had to give his life 9 to make the point about the burial ground which the 10 evidence now appears to support. 11 12 (BRIEF PAUSE) 13 14 MR. MURRAY KLIPPENSTEIN: I'm going to 15 mention for a few moments the fourth topic I mentioned 16 which was the issue of the Park and the lands that the 17 protestors were occupying in September of 1995. 18 In -- in the jurisdictional authorization 19 given to the Commission there was reference to the events 20 surrounding the death of Dudley George and to avoid any 21 violence in similar situations. And it is obvious that 22 the Inquiry could not inquire into everything, but in my 23 submission the evidence shows that the protestors in 24 their -- in what they did in September of '95 repeatedly 25 referred, not only to the burial grounds, but to their
641 feeling that the Park lands were theirs, that they owned 2 them. 3 The evidence further suggests that the 4 Park lands, and indeed the sandy parking lot that is next 5 to the Park, the land where the actual confrontation took 6 place and where Dudley was shot and killed, were all 7 previously lands that had been promised to the First 8 Nation as treaty -- part of a treaty agreement and that 9 the Crown had said that those lands would be theirs in 10 perpetuity. 11 The evidence of Joan Holmes, in 12 particular, dealt, to some degree, with the history of 13 the land as context and she described in cross- 14 examination some aspects of the procedure in 1928 by 15 which the Provincial Government eventually came to say it 16 had a legal right to the Park instead of the First 17 Nation. 18 In particular, she talked about the 19 surrender that took place in 1928 which is a procedure 20 under the Indian Act whereby a First Nation community can 21 by community vote give up its exclusive rights to certain 22 lands that were promised to it under the treaty. And in 23 my submission it's obvious that what happened in the 1928 24 surrender is a key part of the background history of the 25 occupation in 1995.
651 Indeed the surrender documents were filed 2 in court by the Province when the Province filed 3 injunction documents on September 6th and -- for the 4 hearing of the injunction on September 7th and the 5 Province referred to the surrender as part of its basis 6 for title to the Park lands. 7 In my submission the Commissioner should 8 take into account some of that history and it is not 9 necessary to exhaustively look at the history of the Park 10 lands, but in my submission there is sufficient evidence 11 on the record, both from Joan Holmes and in some of the 12 other documentation that's been either filed as an 13 exhibit or else made available, is that or to -- to -- 14 for the Commission to be cognizant of the delicate issues 15 arising from the Province's claim to own the Park lands. 16 It was clear from the evidence of a member 17 of parties including Sam George and Bonnie Bressette and 18 many of the protestors that they simply do not consider 19 the Province's claim to the Park based on the 1928 20 surrender to be legitimate. And by legitimate I don't 21 mean the technical non-Native viewpoint of legally valid 22 or not legally valid in the way that a court would 23 decide. I mean something else and something broader. 24 And in my submission that broader 25 perspective of including political or social or even
661 moral legitimacy is precisely the kind of consideration 2 that this Inquiry and you, Commissioner, in your wisdom 3 can attempt to bring to the issue recognizing the 4 difficulties of doing so. 5 But in my submission when one looks at, 6 for example, the evidence of Joan Holmes who says back in 7 the 1920's it was extremely difficult for any band to 8 resist the pressure from the Indian Agent to surrender 9 land. And when one looks at, and you can take judicial 10 notice of this in my respectful view, certain aspects of 11 the Indian Act which in various ways give the Indian 12 Agent of the time overwhelming power even over the Chief 13 and Council, some of those have been -- have been filed 14 with the Commission and one can understand that the First 15 Nations people legally have concerns about what happened 16 in 1928. 17 And finally on that point, Commissioner, 18 the -- the Estate and family filed a letter dated I 19 believe it was March 29 -- March 19th, 1929, Exhibit P- 20 1021, and I've included in the Appendix B of the argument 21 some surrounding documents which were distributed during 22 the Inquiry which appear to suggest on their face that 23 the Indian Agent at the time was personally involved in 24 the financing of the 1928 surrendered lands, and that 25 such personal involvement by the Indian Agent was
671 specifically prohibited by the Indian Act at the time and 2 indeed probably could have -- should have resulted in him 3 being removed with the result that there is a very good 4 argument in my submission and the 1928 surrender would 5 never have been completed if the law had been followed. 6 I don't plan to go into further detail on 7 that, Commissioner, this morning. Some further 8 discussion of that is in the written submissions and in 9 my submission that is very important. And I say that 10 understanding on the one hand that the Inquiry was not 11 able to go into all matters of all issues, but also, 12 respectfully urging you, Commissioner, as I believe you 13 have the power and the wisdom to do, to consider those 14 issues in your deliberations and recommendations. 15 16 (BRIEF PAUSE) 17 18 MR. MURRAY KLIPPENSTEIN: Fifthly, I 19 mentioned I would make some comments to you, 20 Commissioner, on the topic of the rule of law and I do 21 that because the issue has arisen from some of the 22 parties' submissions in -- at th end of the proceeding 23 here and including the submissions of Mike Harris. 24 Mr. Harris' suggestion is, in his reply, 25 is that:
681 "The real question arising from 2 Ipperwash is how a government may 3 restore order and maintain the rule of 4 law and civil order where it is 5 disregarded by persons who have 6 experienced historical injustice." 7 It appears, first of all, Commissioner, 8 that there is built into that an assumption or an 9 assertion that the people disregarding the rule of law 10 are or were the protesters in the Park. 11 And, in my submission, that is not 12 necessarily a justifiable conclusion and that one should 13 be careful making that conclusion. 14 In my submission, the rule of law which is 15 a complicated concept that has to do with order and 16 stability, can be looked at from another perspective and 17 that perspective is a perspective of First Nations people 18 who believed for certainly a hundred (100) years that the 19 treaty Joan Holmes spoke of in evidence, in 1827, gave 20 them a certain order and stability when they, in exchange 21 for ceding certain lands, were promised, what became the 22 Park, would be theirs in perpetuity. 23 And that order and stability, under the 24 rule of law of the treaty, if you will, in my submission, 25 has not been respected and that although it's a more
691 difficult and more detailed topic than one can proceed to 2 in this Inquiry at this time, in my submission, as the 3 topic has been raised by former Premier Harris, there is 4 another side to it. 5 And that if the rule of law is to be 6 raised as a concern, then all of the law must be 7 considered, not only non-Native law, but Native law and 8 from the perspective of First Nations who believed that 9 the written agreement signed in legalese in 1827 was law 10 and would be respected. 11 The rule of law has a different meaning. 12 It has -- it's part of a bigger picture and in my 13 respectful submission, that bigger picture not only half 14 of it, must be taken into account and doesn't -- it's no 15 answer, in my submission, that the 1928 surrender that we 16 looked at was on its face, at first glance, a community 17 vote to release lands because when one looks at how those 18 votes were conducted and the overall context, and I've 19 gone into those in my written submissions in detail, the 20 -- it would be a misstep to put too much big picture 21 justification on what has been known as the 1928 22 surrender. 23 24 (BRIEF PAUSE) 25
701 MR. MURRAY KLIPPENSTEIN: A moment's 2 indulgence. I'd like to bring to your attention on the 3 topic of the rule of law the last paragraph in the reply 4 submissions of Mike Harris which I'll -- which are not 5 long in the last paragraph in the conclusion, but I'll 6 read them in the entirety to you and then comment on it. 7 "As stated at the outset of these 8 submissions the real question arising 9 from Ipperwash is how government may 10 restore and maintain the rule of law 11 and civil order where it is disregarded 12 by persons who have experienced 13 historical injustice. We say that the 14 real lesson of Ipperwash is that we 15 must find a way to ensure that the rule 16 of law and civil order is recognized as 17 just by all people of all ancestries 18 and opinions. There is no house 19 without a foundation." 20 And that is found at page 364 of the -- of 21 the written submissions of Mike Harris. I believe I may 22 have misspoken myself and referred to the reply 23 submissions, but in the ma -- final submissions at page 24 364. 25 In my submission, there is some truth in
711 that -- in that suggestion that "we must find a way to 2 ensure that the rule of law and civil order is recognized 3 as just by all people of all ancestries and opinions". 4 And in my submission that requires one to 5 take a bigger picture view of the kind that I've just 6 commended to you a few minutes ago. And that looking at 7 the rule of law from the point of view of convincing 8 people of First Nations ancestry that it is a just rule 9 requires considering whether some of the lands that were 10 promised originally to be theirs forever need to be 11 returned to the status of the original promise. 12 13 (BRIEF PAUSE) 14 15 MR. MURRAY KLIPPENSTEIN: Finally, 16 Commissioner, I would like to make a few comments about 17 some of the recommendations suggested by the Estate and 18 Family of Dudley George. Those recommendations are found 19 at Tab 7 (sic) and page 137 of the final written 20 submissions of the Estate and Family. 21 22 (BRIEF PAUSE) 23 24 MR. MURRAY KLIPPENSTEIN: There are a 25 number of submissions. I will only refer to one (1) of
721 them at this point by way of highlighting and that's the 2 one called, Restoration of the Stoney Point Reserve. 3 And... 4 5 (BRIEF PAUSE) 6 7 MR. MURRAY KLIPPENSTEIN: I would like to 8 refer in -- by way of introduction to the chapter in the 9 written submissions that talks about Dudley George 10 himself; about Dudley as a person and his friendships and 11 his view of the land. And the evidence that came out in 12 the Inquiry was that before the occupation in September 13 of 1995, when Dudley had taken up further -- residence on 14 the other part of the reserve, the Army Camp lands, he 15 was, in fact, spending some time camping on the inland 16 lakes right next to the Park and I believe the comments 17 that he made at that point were, which I'll read to you, 18 were intended not just for the Army Base part of the 19 original reserve, but the whole reserve including the 20 Park. 21 The family submits: 22 "It was a combination of deep respect 23 for the burial places of his ancestors 24 and the knowledge that the land 25 belonged to his people that gave Dudley
731 his sense of purpose. 2 As he sat beside one of the inland 3 lakes, reeling in the fish on a 4 beautiful summer day in 1995, he felt 5 it was really where he belonged. 6 'I love this place', he told his 7 fishing buddy. 'I would die for it.'" 8 That, in my submission, is only the voice 9 of one (1) of the protesters and it is somewhat similar 10 to what many other protesters have said. 11 Sam George, in his testimony, spoke about 12 healing but said, that in his view, there could not 13 really be healing unless the land was returned. By land, 14 in this context, the reference is to the Ipperwash 15 Provincial Park lands that were included in the original 16 treaty. 17 It is for that reason that the Estate and 18 Family suggest to you that you make the following 19 recommendation. The Province of -- this is on page 137. 20 The Province of Ontario should waive and 21 renounce its ownership of or any claim to the Ipperwash 22 Provincial Park lands. 23 In my submission, there are no significant 24 jurisdictional issues for you to make such a 25 recommendation. In particular, there is no
741 Federal/Provincial jurisdictional issue since, according 2 to those same existing Federal/ Provincial understandings 3 in the legal world, the Province is the owner of the 4 Park, to speak colloquially, and presumably could do with 5 it what it wants to some extent. 6 I note that all the Aboriginal parties 7 have made a similar consistent recommendation in their 8 written submissions with the exception of the Chiefs of 9 Ontario and it's not my understanding that they disagree 10 with that. 11 In particular, I note that he Kettle and 12 Stony Point First Nation has made a similar and 13 consistent recommendation to the effect that the lands, 14 the Park, be transferred to the Province in trust for the 15 Stoney Point reserve. 16 So all the Aboriginal parties, in my 17 understanding, are making what amounts to exactly the 18 same recommendation. 19 I would point out that that form of the 20 recommendation does not involve any part of the dispute 21 between the two (2) communities, if I can use that term. 22 In other words, that recommendation as we 23 have worded it, as the Kettle and Stony Point First 24 Nation have worded it, does not require the Commissioner 25 to make any comment on the dis between -- dispute between
751 people living at Kettle Point and Stoney Point. 2 That issue, in my submission, is an 3 important one that can be left for another day and that, 4 I suggest, is the understanding of all the First Nations 5 parties today. 6 In other words, one can take a step 7 forward in the right direction to real healing and not be 8 distracted or bogged down or discouraged by other issues 9 that are very real. 10 In my submission, and finally, there can 11 be a variety of types of healing that can come from your 12 work and the work of -- of all of us in this room. There 13 can be shorter term healing, intermediate term healing, 14 and longer term healing. 15 Sam has spoken of the possibility of some 16 immediate healing, but I would suggest to you that some 17 of the bigger issues that I've just discussed, including 18 issues about the future of the land and the rule of law 19 are a longer term type of healing that can also take 20 place. 21 Those are my substantive submissions and 22 it's -- so it's -- I confess a bit emotional for me to -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. MURRAY KLIPPENSTEIN: Thank you, 25 Commissioner, for your incredible patience and listening
761 over several years and, you know, the family has 2 confidence that you will -- and -- and your team of 3 hardworking and competent staff exercise the utmost of 4 the available wisdom and concern to help hopefully all of 5 us in this room and all of Ontario and all of Canada and 6 I want to wish you the best in your considerations. 7 And I know that the Estate and Family have 8 mixed emotions but have overall a sense of many large 9 steps forward in this process and hope that a lot of -- 10 that the cause of truth and justice for -- for all people 11 of Ontario will be well served. Thank you very much.. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. Klippenstein. Thank you very much. 14 MR. DERRY MILLAR: Commissioner, before 15 we break for the morning break which I suggest we take 16 now I would ask that perhaps if they could if all Parties 17 could check the website. We've posted the submissions 18 and the reply submissions but we've had a number of small 19 corrections made in submissions and I'm hopeful that I 20 would ask the Parties to check to make sure we've got the 21 right version -- 22 COMMISSIONER SIDNEY LINDEN: Version. 23 MR. DERRY MILLAR: -- on the website. We 24 were advised that we had an earlier version of one (1) of 25 the -- one (1) of the submissions and -- which we're
771 trying to correct right now, but I would ask everyone to 2 just check to make sure we've got the final one. 3 COMMISSIONER SIDNEY LINDEN: Thank you, 4 Mr. Millar. We'll take a short break now and come back 5 and deal with Mr. Rosenthal. Thank you. 6 THE REGISTRAR: This Inquiry will recess 7 for fifteen (15) minutes. 8 9 --- Upon recessing at 10:57 a.m. 10 --- Upon resuming at 11:17 a.m. 11 12 THE REGISTRAR: This Inquiry is now 13 resumed. Please be seated. 14 COMMISSIONER SIDNEY LINDEN: Good 15 morning, Ms. Esmonde. 16 MS. JACKIE ESMONDE: Good morning, Mr. 17 Commissioner. Mr. Rosenthal and I have divided the time 18 between us -- 19 COMMISSIONER SIDNEY LINDEN: I'm sorry. 20 MS. JACKIE ESMONDE: Mr. Rosenthal and I 21 have divided our time between us. So just to let you 22 know where we'll be going, I will be speaking to the 23 issues related to the land and the sovereignty of the 24 Stony Point People and Mr. Rosenthal will be speaking to 25 the attitudes and actions of the Harris government and
781 the OPP. 2 I also wish to alert you, just at the 3 beginning, that there are a few areas where some of the 4 members of our group have different views on the 5 recommendations. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 Is the microphone working as well as it should? Is the 8 amplification working properly? Is everybody hearing it 9 all right? I'm having a little difficulty -- okay. Yes, 10 carry on. I'm sorry. 11 MS. JACKIE ESMONDE: And where those 12 different views arise -- 13 COMMISSIONER SIDNEY LINDEN: That's 14 better. 15 MS. JACKIE ESMONDE: -- during my 16 submissions I will alert you to that. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 MS. JACKIE ESMONDE: And I do wish to 19 draw you attention to one correction in our submission 20 which is at page 22, paragraph 49. 21 COMMISSIONER SIDNEY LINDEN: Twenty-two 22 (22) did you say? 23 24 FINAL SUBMISSIONS BY AAZHOODENA AND GEORGE FAMILY GROUP: 25 MS. JACKIE ESMONDE: That's right. Mr.
791 Calvin George is referred to at that page. He was the 2 brother of Melva George and that family was from Kettle 3 Point. And I just wanted to point out, I believe he's 4 identified as being from Stoney Point and that is an 5 error. 6 The circumstances that led to the tragic 7 death of Dudley George cannot be limited to the events of 8 September 4th through 6th, 1995. As you heard earlier 9 this morning, Dudley George died fighting for the return 10 of Stoney Point lands and to protect his ancestors' 11 burial grounds. 12 By necessity, then, to fully understand 13 all of the circumstances this Inquiry has quite properly 14 considered the historical context that led to his death. 15 So we begin our submissions this morning with what we 16 view as one of the keys issues that led to the death of 17 Dudley George and that is the seizure of the lands that 18 were guaranteed to the Stoney Point people in the Treaty 19 of 1827. 20 And in my submissions to you this morning 21 I wish to address four (4) points. First, Stoney Point 22 and its independence. Second, the 1928 surrender of a 23 portion of Stoney Point. Third, the 1942 appropriation 24 of the rest of Stoney Point and, finally, the problems 25 associated with the land claims process and their
801 contribution to what occurred. 2 So turning to my first issue then, that 3 Stoney Point First Nation is a separate and distinct band 4 and I would respectfully disagree with Mr. Klippenstein 5 as he said earlier this morning, it is our view that that 6 is not an issue that should wait for another day. 7 Now, understandably, the Commission has 8 shown some reluctance to engage with this issue. 9 However, this Inquiry must recognize that the group of 10 people who were involved in reclaiming the army camp 11 lands and the Ipperwash Provincial Park did identify 12 themselves as Stoney Point people and Dudley George has 13 been described by witnesses at this Inquiry as a nation- 14 builder for the Stoney Point First Nation. 15 The historical record in the oral 16 traditions of the Stoney Point people provide 17 overwhelmingly strong support for the claim by the Stoney 18 Point people that they are a separate First Nation and we 19 would ask that any recitation of that history provided by 20 this Inquiry should be true to that fact and the 21 recommendations that are aimed at avoiding violence in 22 the future must also recognize this fact. 23 The Stoney Point people have a deep 24 connection to their history and their territory. From 25 the earliest discussions about the cession of land in the
811 Huron Tract, those discussions which ultimately led to 2 the Treaty of 1827, the land at Stoney Point was 3 consistently identified as a territory that would not be 4 ceded. 5 And ultimately Stoney Point was one of 6 several territories that were not ceded in the 1827 7 Treaty. One of the reasons that the Chippewas Chiefs 8 negotiating that treaty would have refused to cede these 9 territories is because they were being used by particular 10 groups and had great significance to those groups and in 11 fact we have heard evidence at this Inquiry that the 12 Superintendent who negotiated at least the early 13 provisional agreements did recognize that the groups he 14 was dealing with were separate bands associated with 15 different locations. 16 And we've also heard from witnesses at 17 this Inquiry about the oral histories of today's Stoney 18 Point people that place them in that locality as a 19 separate and autonomous community. Our written 20 submissions refer to some of the documentary evidence 21 that supports this oral history. 22 Of course relying on government records in 23 order to determine whether communities considered 24 themselves to be separate and distinct is very 25 problematic, particularly in this case as we've seen that
821 to make matters convenient for the colonial government 2 the peoples at Walpole Island, Moore Township, Kettle 3 Point, Sarnia, and Stoney Point were all treated as one 4 (1) Indian band for the colonial administration. 5 But of course the Indian Department's 6 treatment of those populations living at those five (5) 7 reserves as one (1) band is not determinative of the 8 question of whether they actually were separate 9 communities. The Canadian Government cannot define a 10 First Nation; that's something that they define for 11 themselves. 12 And we ask why is it that the treatment of 13 the five (5) bands as one (1) is acknowledged to be an 14 error with respect to some of the adherence of the 1827 15 treaty but not others. For example today it's 16 unquestioned that the Sarnia Band and the Walpole Island 17 First Nation are separate and independent, yet in the 18 19th century the Indian Affairs Department treated them 19 as a single band that included the people of Kettle Point 20 and Stoney Point. 21 One (1) other source of confusion on this 22 question is the petitions by the people at Kettle Point 23 and Stoney Point to separate from the Sarnia Band and 24 this was a joint request that was granted in 1919 after 25 almost thirty (30) years of petitioning by Kettle Point
831 and Stoney Point. 2 Both Kettle Point and Stoney Point were 3 concerned that the Sarnia Band was using its majority at 4 the general council to interfere with their rights to 5 deal with their own reserves and as a result Kettle Point 6 and Stoney Point joined in a collaborative effort to 7 separate and this was likely a wise move given the 8 Department's policy at the time of amalgamating rather 9 than separating bands in order to lower their 10 administrative costs. But even working together it still 11 took several decades to achieve their goal of separating 12 from the Sarnia Band. 13 Now, some, including Joan Holmes who 14 testified at the is Inquiry with respect to some of the 15 historical issues have characterized these efforts as the 16 Kettle Point and Stoney Point people wanting to join 17 together as one (1) band and clearly that's not an 18 accurate description of what occurred, rather Kettle 19 Point and Stoney Point were already joined by the Indian 20 Act administration and not by their own choice. 21 And as we describe in detail in our 22 written submissions the separation petitions themselves 23 demonstrate that Kettle Point and Stoney Point saw 24 themselves as distinct bands and their own words should 25 be given the greatest weight in determining how they
841 perceive their relationship to one another. 2 Ultimately the loss of sovereignty that 3 has resulted from the failure on the part of the Canadian 4 state to recognize the independence of Stoney Point 5 community has caused enormous hardship that leads up to 6 the current period and this Inquiry has heard from many 7 witnesses who have testified to these hardships. 8 Turning then to the 1928 surrender. In 9 1928 the Federal Government accepted a surrender of a 10 large portion of Stoney Point Reserve Number 43 which a 11 few years later then became the Ipperwash Provincial Park 12 and Mr. Klippenstein did review this morning already some 13 of the details with respect to that surrender and some of 14 the very questionable aspects of that surrender. 15 Our written submissions also cover that 16 surrender in some detail. I don't wish to repeat the 17 submissions of Mr. Klippenstein earlier, but I do want to 18 refer to a few of the following -- a few other 19 questionable aspects of the surrender that we highlight 20 in our submission. 21 First, the amount paid for the land was 22 extremely low and was not a reflection of its value. 23 Second, documents have recently come to 24 light that suggest that there may have been some bribes 25 paid to obtain the surrender and we refer to that in our
851 submission. 2 Third, the purchaser of the land, William 3 Scott, was very active as the Mayor of Sarnia in pushing 4 for the development of that land for the creation of the 5 Provincial Park. Mr. Scott made an extraordinary profit 6 when he sold the land for that purpose. 7 And, fourth, it is of concern that members 8 of the Kettle Point Band were permitted to vote on the 9 surrender of Stoney Point lands. 10 In legal terms the 1928 surrender may be 11 termed an improvident surrender. We prefer to call it 12 what it was: a rip off and a theft. Joan Holmes, though 13 she preferred not to use such language as a rip off in 14 Court, did acknowledge that it was a rip off. 15 Mr. Klippenstein has also summarized the 16 strong evidence of burials in the territory that became 17 the Provincial Park. 18 And it's my submission that the evidence 19 is conclusive, that there are and were burials in the 20 Park and also that the Province of Ontario was aware of 21 these burials since 1937 at the very least, with several 22 reminders and further discoveries through the years. 23 Nonetheless, the Province did nothing to 24 protect these burials. 25 Thus, Mr. Commissioner, there is very
861 strong evidence before this Inquiry to demonstrate the 2 serious unfairness in the manner and outcome of the 3 surrender in 1928; the continuing attachment of the 4 Stoney Point people to that land and the presence of 5 sacred sites in the parklands including burials. 6 The land that became Ipperwash Provincial 7 Park was indisputably part of the original treaty lands. 8 The Park has been in the control of the Stoney Point 9 people for over ten (10) years now and it has not re- 10 opened as a Park since it was closed on September 4th, 11 1995. 12 The Park remains an emotional symbol as 13 Dudley George was killed in the struggle to return the 14 parklands. 15 Given that background, the Aazhoodena and 16 George Family Group recommends that Ontario cede the 17 administration and control of the lands known as 18 Ipperwash Provincial Park to the Crown and right of 19 Canada to be set aside as part of Stoney Point Indian 20 Reserve Number 43. 21 We also recommend that the care, control 22 and ownership of the property known as the Ipperwash 23 Provincial Park should be returned to the Stoney Point 24 First Nation. 25 Turning then to the 1942 appropriation.
871 In the years following the 1928 surrender, the people at 2 Stoney Point continued to live it in as an independent 3 community. 4 Stoney Point had its own school, had its 5 own church. It also had its own young mens' fast ball 6 team. Clifford George and Rose Manning both described 7 the community at Stoney Point as self-sufficient. 8 People grew their own food on small farms, 9 made crafts and hunted and fished in their territory. 10 And I do wish to acknowledge the recent 11 passing of Rose Manning. 12 The Stoney Point community was torn apart 13 in 1942 when the Federal Government decided to seize all 14 of the lands that remained as part of the reserve for an 15 advanced infantry training centre. 16 Stoney Point community did not consent to 17 this use of their territory and the Federal Government 18 was then forced to rely on the War Measures Act to take 19 these lands. However, the Government promised to return 20 the land after the war. 21 In the meantime, the families at Stoney 22 Point had to be relocated. Most were forced to live on 23 Kettle Point, leading to enormous disruption there as 24 well. 25 And although they were promised that homes
881 would be bought for them at Kettle Point, the Stoney 2 Point people had to purchase their new land and homes at 3 Kettle Point. 4 It's very difficult now, decades later, to 5 reconstruct the names of all of those people who were 6 forced to leave Stoney Point as a result of the 7 appropriation. 8 We know that the Indian Agent of the time 9 listed the names of the heads of twenty-two (22) families 10 who were entitled to relocation assistance. 11 However, it's also clear that there were 12 people living at Stoney Point who were not captured in 13 this list, for example, those that were living with 14 relatives. 15 The location ticket system also cannot be 16 relied upon to determine the names of those who were 17 forced off the land. Joan Holmes testified that the 18 location ticket lists of the time were in complete 19 disarray and some people had location tickets who were 20 not so entitled whereas others who did have an 21 entitlement did not have a location ticket. 22 As we know, the Government of Canada did 23 establish the training camp on the Stoney Point lands but 24 there was nothing that made that parcel of land 25 particularly suitable for a training camp of that nature.
891 There were numerous very similar properties that were 2 available in the area and some other local lands, in 3 fact, had been offered up for military use. 4 It is impossible to fully describe or 5 understand the impact that the appropriation had on the 6 Stoney Point community. Though it's clear that the 7 Stoney Point community was devastated by its losses and 8 the land has still not been returned today. 9 Throughout the years the Stoney Point 10 people struggled for decades to have their territory 11 returned to their possession. They marched. They wrote 12 letters. They prepared petitions. They appeared before 13 government committees. They leafleted in front of the 14 army base. They used every means available to them 15 except simply taking back the land and the Federal 16 Government ignored all of these actions. 17 Despite the fact that the appropriation 18 was a clear violation of the Treaty, at least one party 19 before this Inquiry has taken the position that the 20 appropriation of the entire reserve was appropriate and 21 that is Marcel Beaubien who was the member of parliament 22 in 1995. And we would submit to you, Mr. Commissioner, 23 that such a submission is only possible if the Treaty of 24 1827 is utterly ignored. 25 The history that I have so quickly
901 summarized for you this morning leads to the following 2 inescapable conclusions; the Stoney Point people were 3 completely justified when they walked onto their 4 territory in May 1993 and they have been completely 5 justified in continuing to live on their territory every 6 day since. 7 The Stoney Point people were completely 8 justified when they walked onto their territory in the 9 Ipperwash Provincial Park on September 4th, 1995, and 10 they have been completely justified in continuing to 11 protect that territory everyday since. And we would ask 12 that you so find. 13 The violence that occurred at Stoney Point 14 in September 1995 was the culmination of years of 15 frustration and the lack of response by government to 16 legitimate and longstanding grievances. The government 17 of Canada was particularly indifferent to its treaty 18 obligations. Though the Government of Ontario showed 19 little interest in protecting the burial grounds that it 20 knew were present within the boundaries of the Park. 21 The prime reason for conflict between 22 First Nations and the Crown is the failure by the Crown 23 to recognize and affirm First Nations' rights to occupy 24 their territory set out in the treaties. Where no 25 legitimate and fair process is available to quickly
911 address such grievances First Nations people will have no 2 choice but to take direct action as the Stoney Point 3 people did to protect their rights, their territories and 4 their sacred sites. And that is just common sense. You 5 don't need Part 2 papers or studies to show that. 6 But what the Part 2 papers do show quite 7 well is that the process that's currently in place for 8 addressing Aboriginal and treaty right claims are 9 completely inadequate and lack legitimacy in the eyes of 10 First Nation people. 11 And so I turn now to some of the problems 12 associated with the land claims process. In terms of our 13 understanding of how a negotiation process should work, 14 we begin with the following premise; that the settlement 15 of Canada was premised on a relationship with the First 16 Nations people who lived here and who were never 17 conquered. The treaties represent international 18 agreements between independent nations setting out how 19 settlement could occur in a manner that would allow for 20 peace, friendship and respect. 21 And when that relationship breaks down 22 negotiation is the most effective method for resolving 23 disputes. Negotiation honours the nation to nation 24 relationship, however these nation-to-nation principles 25 are not acknowledged in the current land claims
921 negotiation processes in Canada and Ontario. 2 And that leads to a number of problems 3 which we have identified in our written submission in 4 more detail. Today I will just highlight the problems 5 that we identified. 6 First, there is an inherent conflict of 7 interest in having the Crown essentially ruling on the -- 8 the legality of its own past actions. The process as it 9 is now has the party that is alleged to have stolen the 10 land completely controlling both the process and the 11 outcome. 12 Second, the land claims processes are 13 biassed in favour of the Crown. Third, reliance is 14 placed on Canadian law to determine claims. Indigenous 15 frameworks and international laws are not considered but 16 the First Nations who participated in the treaties did 17 not agree to give up their own legal systems. 18 And it would be my submission that the 19 crisis that arose at Ipperwash Provincial Park involved 20 just such a clash between Canadian law and First Nations 21 law. For example the Stoney Point people believed that 22 they had a formal obligation to protect the burial 23 grounds of their ancestors and given the importance of 24 burial grounds in their culture, such obligation is 25 properly characterized as a legal obligation in their
931 view. 2 Yet to the Government of Ontario and the 3 OPP the so-called occupation of Ipperwash Provincial Park 4 was an illegal act from a Canadian legal perspective. 5 And during the days that followed the commencement of the 6 occupation government actors repeatedly took the position 7 that even if there was a burial ground in the Park, which 8 was denied, that the presence of burial grounds would not 9 give the Stoney Point people any legal right to occupy 10 the Park. 11 And in fact that allegation is repeated in 12 many of the written submissions from other parties. 13 It would be my submission that such a 14 submission demonstrates a failure to understand and 15 respect indigenous legal perspectives. 16 The fourth problem we identify with the 17 land claims process is very well known and that's the 18 extremely long time that it takes to settle a claim. It 19 can take decades to resolve a claim while First Nations 20 are forced to watch their lands and resources occupied 21 and destroyed. 22 The fifth problem we identify is the 23 refusal to accept claims from so-called unrecognized 24 First Nations which flies in the face of internationally 25 recognized rights of all people to self-determination and
941 flies in the face of collective rights. 2 The Ontario Government and the Canadian 3 Government exclude the Stoney Point people from the land 4 claims process, thus the formal land claims process is 5 not even an option that is available to them, as 6 problematic as it is, and in light of this policy the 7 Stoney Point people can hardly be criticized for failing 8 to bring a formal land claim to the lands in the 9 Ipperwash Provincial Park for example. Such a claim 10 would not have been accepted by the Government. 11 A policy of refusing to acknowledge groups 12 that are asserting claims will necessarily lead to 13 conflict as it did in this case. For that reason we have 14 made Recommendation Number 25 in our submission. 15 "Where a First Nations group asserts 16 that it is an independent First Nation 17 with an interest in a land claim or 18 assertion of an Aboriginal or treaty 19 right, the Governments of Canada and 20 Ontario should treat these claims as 21 they would any other formal land claim 22 or assertion of an Aboriginal or treaty 23 right, even if the said First Nations 24 Group does not have formal status in 25 Canadian law at the time."
951 At its core, the current negotiation 2 processes reject the sovereignty and independence of 3 First Nations and thus are fundamentally antithetical to 4 First Nations who assert their continuing nationhood. 5 And we have made a number of other recommendations to 6 address these problems with a view to completely changing 7 the land claims process and fundamentally changing the 8 relationship between First Nations peoples and Canada. 9 And it is our view that this is necessary 10 in order to avoid conflict in the future. 11 A further aspect of defining a new 12 relationship is the place that First Nations issues holds 13 in government. In Ontario First Nations issues have 14 historically been sub-issue in a larger portfolio often 15 bouncing between the Ministry of Natural Resources and 16 the Attorney General. 17 But indigenous peoples are not natural 18 resources, nor are they properly situated with a Minister 19 also responsible for the judicial system and laws. 20 First Nations are separate nations and 21 their treatment by government must reflect this and for 22 that and other reasons we have recommended a separate 23 ministry be established. In our submissions we 24 recommended the wording Ministry for Relations with First 25 Nations which was loosely modelled on the wording used in
961 British Columbia. 2 I wish to point out that Marcia Simon, who 3 is a member of the Aazhoodena and George Family Group 4 does not support that wording and she cogently points out 5 that such terminology could inappropriately exclude 6 persons who are not part of First Nations and also Metis 7 people. 8 But the central issue for all of the group 9 is, of course, that there should be a separate ministry. 10 The name given to that ministry is, of course, important 11 and should reflect the sovereignty of the indigenous 12 peoples of Canada. 13 The need for a separate ministry is amply 14 demonstrated, in our view, by the written submissions of 15 the Former Attorney General and Minister responsible for 16 Native Affairs, Charles Harnick. His reply submission 17 which was delivered late consists of one sentence 18 "Nothing that Charles Harnick did 19 caused Dudley George's death". 20 There is no recognition in that submission 21 that as the minister responsible for Native Affairs he 22 had a responsibility to ensure that he did everything he 23 could to address the issues and prevent the death from 24 occurring. 25 And that role was in fundamental conflict
971 with his role as the Attorney General. The conflict of 2 this dual role will continue until there is a separate 3 ministry. 4 To conclude my remarks this morning a 5 fundamental change in the relationship between First 6 Nations peoples and the Crown is required. The new 7 relationship must be built on the recognition of the 8 continuing sovereignty and independence of First Nations 9 in Canada and a commitment to renewing the promises made 10 in the treaties. 11 Without a fundamental change, conflict 12 will continue and does continue as we've seen a number of 13 conflicts arise over the course of this Inquiry itself, 14 including at Six Nations, Grassy Narrows and Big Trout 15 Lake. But such so-called occupations are political 16 disputes. They're not criminal. The police do not have 17 the power to resolve them, only governments can. 18 The Stoney Pointers are not a splinter 19 group. They are not a breakaway group as they have 20 sometimes been described by witnesses at this Inquiry and 21 in documents. For the members of the Aazhoodena and 22 George Family Group the land and sovereignty issues are 23 the central issues in this Inquiry. Dudley George would 24 not have been killed by the OPP that night had the Stoney 25 Point people been recognized and respected and their
981 territory protected. 2 We have argued for thirteen (13) different 3 recommendations that are designed to see the restoration 4 of Stoney Point First Nation. Their essence, however, is 5 captured in our recommendations numbers one (1) and two 6 (2). Number one, the Governments of Canada and Ontario 7 should formally recognize the Stoney Point First Nation 8 as separate and independent from the Kettle Point First 9 Nation. 10 And, two (2), the Government of Canada 11 should restore Stoney Point Reserve Number 43. Thank you 12 very much, Mr. Commissioner -- 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much. 15 MS. JACKIE ESMONDE: -- and I'll turn the 16 podium over to Mr. Rosenthal. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 20 (BRIEF PAUSE) 21 22 MR. PETER ROSENTHAL: Thank you. Good 23 morning, Mr. Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Good 25 morning, Mr. Rosenthal.
991 MR. PETER ROSENTHAL: I feel nostalgic 2 already that this is the last time I'm going to say good 3 morning to you on the record and I won't get to say good 4 afternoon to you. I'll say goodbye in the afternoon but 5 not good afternoon. 6 It's been a long two (2) years and my work 7 is close to coming to the end and your work is very much 8 in the middle. And as you know, Mr. Commissioner, you 9 are going to be making factual findings and also 10 recommendations and I would urge upon you that both are 11 equally important. 12 Some may urge upon you that the past is 13 not so important as the future; that -- don't deal with 14 some of the more difficult items in the past, just look 15 forward to recommendations. 16 But you, Mr. Commissioner, are going to 17 write the historical record as to what happened in 18 Ipperwash Provincial Park on September 6th, 1995. 19 There's been much said in the press and much bandied 20 about since. There were press releases right at the 21 beginning that said certain things. The truth is an 22 important basis for the future and, Mr. Commissioner, you 23 have ample evidence on which to make findings. 24 We have, in our submissions, made a number 25 of recommendations. Ms. Esmonde referred to some of them
1001 concerning the land. 2 We have recommendations concerning 3 policing and other issues. I won't be able to spend very 4 much time on any part of our submissions, given the 5 limitation in time and, in particular, I'll be mainly 6 talking about the factual findings that we would urge 7 upon you. 8 That is not meant to imply that the 9 recommendations are any less important. 10 The central factual question, I would 11 suggest to you, Mr. Commissioner, is why did the OPP 12 officers march down the road in the evening of September 13 6th, 1995, to confront the Stoney Point people? 14 And, in particular, was the political heat 15 that was exerted by the Harris government and definitely 16 communicated to the OPP, was that a factor in the march 17 down the road that night? 18 That's the question that's been in the 19 press since it happened; that was the central question 20 throughout this Inquiry and that question must be 21 answered. 22 And I believe that the answer is obvious 23 now that we have had two (2) years of careful testimony. 24 And I should like to look at one (1) little piece of 25 testimony that relates to that.
1011 This is some evidence of Inspector, as he 2 then was, and incident commander as he then was, John 3 Carson. This is his evidence on June 20th, 2005 4 beginning at page 73 and Mr. Millar has kindly offered to 5 put some of this on the screen as he often did in the 6 course of these proceedings, and I'm very grateful for 7 that assistance. 8 But I do also have a hard copy for you, 9 Mr. Commissioner, knowing that it's difficult for you to 10 see from your position. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MR. PETER ROSNENTHAL: 16 MR. PETER ROSENTHAL: John Carson was 17 being questioned. 18 "So you say you were afraid that 19 someone might go into that area and 20 become the victim of violence. Is that 21 what your evidence is, sir? 22 A: Well, we didn't want that to 23 happen, yes. 24 Q: Yes. But you had observation 25 posts at various points approaching
1021 that area, did you not, sir? 2 A: Correct. 3 Q: And so, wouldn't the reasonable 4 way of dealing with that possible 5 concern to have been to warn anyone who 6 was marching down the road, driving 7 down the road or whatever, as they came 8 to the observation post, that it might 9 be dangerous to proceed? 10 A: Correct. That's fair. 11 Q: And that would have been a safe 12 way of dealing with that potential, 13 would it not, sir? 14 A: That -- that's one option. 15 Q: Yes. And if you had chosen that 16 option, Dudley George would not be 17 dead, isn't that fair, sir?" 18 And then the transcript says "brief 19 pause". And I would submit to you that the pause speaks 20 very loudly because that is entirely fair and while Mr. 21 Carson may have had various pressures on him at the time 22 and while he, perhaps, made an understandable mistake, 23 it's obvious now that it was indeed a mistake. 24 And after the pause, the questioner 25 resumes, not Mr. Carson:
1031 "Is that not fair, sir? 2 A: Well, it's very obvious what the 3 alternative is. 4 Q: Is that not fair, sir? 5 A: That's a fact. 6 Q: That's a fact. So this was a very 7 serious error on your part, was it not, 8 sir, that resulted in the death of a 9 human being. Is that not fair, sir? 10 A: I don't believe there was an error 11 on my part. 12 Q: I see. You agree that the same 13 objective could have been obtained by 14 officers at the observation posts 15 warning any persons that they should 16 not go down that road. Isn't that 17 fair? You said that before. 18 A: Yes, I did. 19 Q: And so you don't agree that it was 20 an error not to choose that way of 21 handling it as opposed to the way you 22 did handle it, sir? 23 A: In hindsight that's easy to say." 24 Well, yes, Mr. Commissioner, we are 25 looking at it in hindsight and it is easy to say. It's
1041 compelling to say and I would urge you, Mr. Commissioner, 2 to say it. 3 But then question for Inspector Carson: 4 "Yes, well in hindsight do you agree it 5 was an error in hindsight, sir? 6 A: Ah, no, I wouldn't agree it's an 7 error in hindsight. 8 Q: I see. It's easy to say in 9 hindsight for other people, but for 10 you, sir, is that correct? That's what 11 you meant say by, it's easy to say, in 12 hindsight?" 13 I would suggest a word is left out. It 14 must be, "but not for you, sir." 15 And then Mr. Carson says: 16 "You don't have all the facts. We -- 17 we dealt with the situation as we had 18 it at the time and at that time we felt 19 that it was the best decision. 20 Q: I appreciate, sir, that that's the 21 decision you made, but would you not 22 agree in hindsight it was an error? 23 Everybody makes errors and did you not 24 make a grievous error that night, sir? 25 A: No, sir."
1051 Inspector Carson, one may say many things 2 about him and many things have been said about him in the 3 submissions and so on. He's certainly an intelligent 4 man; there's no doubt about that. And he's smart and his 5 lawyers are even smarter perhaps and I do have great 6 respect for Mr. Sandler and, Her Honour now, Ms. Tuck- 7 Jackson. 8 And they list in their submissions what 9 they say were factors in forming this decision. In my 10 submission it doesn't stand up to scrutiny, any of that 11 argument. Inspector Carson's difficulty in looking at it 12 as reflected in the passage we've just looked at is a 13 genuine difficulty and intelligent people can try to 14 surmount that but it's impossible. 15 In the conclusion of the OPP's submissions 16 they write in part and -- and I'm not suggesting you turn 17 to it given time constraints, Mr. Commissioner, but in 18 their paragraph 151 they say: 19 "Had the CMU not been deployed and the 20 occupiers armed with bats and clubs 21 encountered and clashed with nearby 22 cottagers the OPP would have been 23 justifiably criticized for failing to 24 take measures to preserve public safety 25 and order and prevent the
1061 confrontation." 2 Now, with respect, Mr. Commissioner, 3 encountered nearby cottagers at eleven o'clock at night? 4 That is absurd, Mr. Commissioner. With the OPP 5 checkpoints there, if they were worried about nearby 6 cottagers what happened between eight o'clock and eleven 7 o'clock? Much more likely for people to be walking down 8 the road at nine o'clock, 9:30, ten o'clock. If they had 9 a concern that these people armed with bats might be 10 attacking people they would have rushed down there, not 11 at eleven o'clock at night. 12 We deal with some of their other -- so- 13 called other factors in our reply submissions. I don't 14 ask you to turn to it at pages 26 to 29, and our original 15 submissions dealing with that -- those issues are at 16 pages 187 to 231. 17 But, Mr. Commissioner, if you take all the 18 factors at their highest and you assume that it was a 19 woman driving by in a car attacked with -- by eight (8) 20 to ten (10) people with baseball bats. Take it at the 21 highest. That doesn't explain marching forty (40) 22 officers down the road at eleven o'clock at night in the 23 way they did. 24 And the officers had no clear direction as 25 to what they were supposed to do. We've had
1071 contradictory reports. If they saw people in the sandy 2 parking lot they were just supposed to leave them if they 3 were just having a campfire according to some of the 4 evidence. According to some of the other evidence they 5 were supposed to force them from the Park no matter what. 6 According to Skinner's evidence they weren't supposed to 7 go all the way down there until it was determined later. 8 What would the reasonable responses have 9 been to the factors that they enumerate, if you accept 10 them even, and even accept the ones that we now know to 11 be false? Well, Inspector Linton said, Let's wait for 12 the report of the vehicle incident. That sounded 13 reasonable. 14 If you're worried that maybe somebody's 15 going to be doing something down there, why don't you 16 send an officer to drive by in a car? Drive by that 17 location, see if they're attacking anybody or -- or have 18 any potential of attacking anybody, don't march forty 19 (40) officers against them. 20 Of course the marching and the marshalling 21 of the forty (40) officers created more response by the 22 Stoney Pointers. We have evidence they -- they knew 23 about it and they started getting anxious about it and 24 then now the OPP relies on that anxiety -- the evidence 25 of that anxiety as further factors.
1081 If they thought somebody might be in 2 danger of getting hurt by people in sandy parking lot why 3 didn't they drive by there and check it out sometime 4 between 8:00 and 11:00? 5 People tend to rationalize their behaviour 6 and eleven (11) years later many rationales will appear. 7 But in my respectful submission, Mr. Commissioner, when 8 you look at the rationales it's inconceivable that they 9 could have obtained at the time -- and we have to look at 10 the political heat as playing at least some role in an 11 otherwise intelligent incident commander allowing this to 12 occur, this recipe for disaster to occur of forty (40) 13 men marching down the road at eleven o'clock at night. 14 Now, I won't go over all of the heat from 15 the political side. There is, as Mr. Klippenstein 16 referred to, a detailed chart in paragraph 55 of the 17 final Part 1 submissions of Aboriginal Legal Services 18 that enumerates much of it. 19 I would just point out a couple of 20 additional factors. One thing, Incident Commander Carson 21 testified that he understood that the Premier had been 22 talking to him through Deb Hutton and Ron Fox. And you 23 can find that evidence, I don't suggest you turn to it, 24 but just you might wish to make a note, Mr. Commissioner, 25 at June 9th, 2005 at page 178.
1091 And then there is the pressure of Marcel 2 Beaubien. Now, the police and Harris government 3 witnesses at this Inquiry took pains to distance 4 themselves from Marcel Beaubien at the Inquiry. They 5 didn't at the time. Mr. Beaubien testified, and, again, 6 I don't ask you to turn to it now, given time 7 constraints, on the 24th January, 2006 at page 284, that 8 his actions seemed to be appreciated at the time by all 9 the parties he dealt with; the Premier's office, OPP and 10 so on. 11 And the record supports that, Mr. 12 Commissioner. There's nothing in the contemporary record 13 that suggests any distancing from Mr. Beaubien and his 14 pressure on Incident Commander Carson was quite 15 extraordinary including on the fateful night at 6:42 p.m. 16 as you, I'm sure, remember, Mr. Commissioner. Some of 17 Mr. Beaubien's pressure on the OPP is discussed in our 18 original submissions at pages 102 to 109. 19 Now, we have many recordings, in the sense 20 of audio recordings and also written recordings and 21 scribe notes, of Inspector Carson at the time talking 22 about the heat from the political side. He tells a lot 23 of people about it according to the record that we have. 24 He must have said it sometimes that weren't recorded as 25 well.
1101 We have a number of times in those several 2 days in which he's said to people he's feeling political 3 pressure. Pressure from the alligators. Heat from the 4 political side and so on. It was on his mind. There's 5 no doubt about it, this was on Inspector Carson's mind a 6 lot during those several days. 7 He faced pressure from below from officers 8 like Mark Wright who clearly wanted to confront the 9 people. And Mr. Klippenstein took you to some of that 10 indication and there's much more as you know and it's 11 detailed in many of the submissions. 12 Whether or not the die was actually cast, 13 as Mr. Klippenstein suggested, when the deployment -- 14 rather the amassing and the suiting up of the CMU was 15 already ordered by Mark Wright before Inspector Carson 16 returned, reasonable people might disagree as to the 17 extent to which the die was cast. 18 But there's no question that John Carson 19 made the ultimate decision. And there's no question that 20 he knew he was the guy in charge and it was his 21 responsibility for what happened. He had earlier told 22 Linton not to all up TRU -- or not to involve TRU. 23 Why did he allow this to happen? Why did 24 he have those people march down the road? It's -- it 25 can't reasonably be argued in hindsight that that was the
1111 right decision. 2 In fact, even the OPP doesn't try to argue 3 that; they can't argue that. What they said in paragraph 4 153 of their submissions is: 5 "Whether the decision to deploy the CMU 6 was, in hindsight, correct, it was a 7 reasonable decision based in good faith 8 upon the circumstances known to Deputy 9 Carson at the time." 10 That's the highest they put it. They 11 don't try to argue it was correct. In my submission, it 12 can't reasonably be argued that it was reasonable, 13 either. 14 All the factors they list are factors that 15 would suggest someone taking a look, not marching on them 16 at night. 17 And there's the question of not telling 18 those people that they wanted them to remain in the Park. 19 They say in their reply: 20 "Now, the OPP CMU units have 21 bullhorns." 22 Well, at the time, TRU had bullhorns. 23 Skinner told us there were bullhorns sitting right there. 24 If Carson really wanted the people back in the Park he 25 surely would have told some officer, tell them that
1121 through a bullhorn. 2 These are all justifications afterward, 3 Mr. Commissioner. I would suggest to you it's clear John 4 Carson had on his mind the political heat. 5 Mark Wright is pressure from below, 6 there's that pressure from on top. They are sort of in 7 motion already as Mr. Klippenstein said. He figured, I 8 have to do something. I have to do something. 9 And whether he consciously was thinking 10 the Premier is really going to be upset if I don't do 11 something, or subconsciously being affected by all the 12 political heat, it may be difficult to tell. 13 But I would respectfully submit, Mr. 14 Commissioner, you must find that the political heat had 15 to have played a role. 16 And, if you wish to test that, Mr. 17 Commissioner, I ask you to consider a converse situation. 18 Suppose that Incident Commander Carson had got the clear 19 message from the Government that these people in the Park 20 have suffered historical injustice. 21 These people in the Park might well have 22 some legitimacy to their concerns. You must proceed with 23 great caution and try to minimise any possible violence 24 in dealing with these people in the Park. 25 Is it conceivable, Mr. Commissioner, that
1131 John Carson would still have allowed those officers to 2 march on these people at eleven o'clock at night if that 3 had been the political message he had received? 4 Sorry, I just got stung by something. 5 It's not just a fly. It was -- excuse me. All right, it 6 was a very big fly. 7 COMMISSIONER SIDNEY LINDEN: A very big 8 fly. 9 MR. PETER ROSENTHAL: The OPP has agents 10 everywhere. 11 COMMISSIONER SIDNEY LINDEN: Do you want 12 to have a moment? Do you want to take a... 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 MR. PETER ROSENTHAL: It's actually a 16 sting of some kind. No, it's okay. It'll inspire me to 17 greater venom. 18 But I did interrupt myself at a rather 19 crucial point and so may I reiterate that. 20 If the political direction had been in the 21 opposite direction, it's inconceivable he would have 22 allowed that to occur. It had to have been at least a 23 subconscious factor and I urge you, Mr. Commissioner, to 24 so find. 25 That is the main question that's been open
1141 for eleven (11) years and I would urge you to resolve it 2 in the way that I've suggested as to how conscious a 3 factor reasonable people could disagree. 4 As it to being a factor, given Carson's 5 obvious intelligence, and given the situation, including 6 the fact that nobody's going to be walking around at 7 eleven o'clock at night to be accosted by people with 8 baseball bats and given the fact that if you were worried 9 about that you'd send somebody down there to see if 10 something's happening, it's inconceivable that that 11 political heat did not play at least some role. 12 Now, what about the political heat? And I 13 have mentioned references to it. One aspect is Harris' 14 statement, "I want the fucking Indians out of the Park." 15 Some have urged -- Mr. Harnick seems to be 16 urging, that you maybe don't have to decide that 17 question as to whether Mr. Harris said that or not; 18 that's what Harnick's submission seems to suggest. Again 19 I would urge upon you, Mr. Commissioner, that that 20 question has been a question we've all been concerned 21 about for eleven (11) years. Did Mr. Harris say 22 something to the effect of, I want the fucking Indians 23 out of the Park? 24 And I would respectfully urge upon you 25 that it is your responsibility to determine that question
1151 and you have sufficient evidence to make such a 2 determination. And the evidence is the very cogent 3 evidence of Mr. Harnick. 4 I certainly agree with the submissions of 5 Mr. Harnick or his counsel that he showed great candour 6 in coming forth with his evidence in that respect. 7 It was clear from the manner in which he 8 gave the evidence and the content of it that he did so 9 very reluctantly because of his friendship with and 10 respect for Mike Harris and his realization that it would 11 damage Mike Harris to give that evidence but he gave it. 12 And at the same time in giving it he 13 labelled himself as a dishonest person for having denied 14 it in the House previously and for having not volunteered 15 it in discovery when he was asked how did the dining room 16 meeting begin? 17 And he also labelled himself in some 18 quarters as a fink for telling on his friend Mike Harris 19 when nobody else was going to do so. You must accept his 20 evidence as being true and especially when you contrast 21 it with the manner in which Mr. Harris denied it with his 22 lack of recalling. 23 And I would submit to you that all the 24 evidence at this Inquiry leads to conclusion that Harris' 25 statement epitomized his government's attitude towards
1161 the people in the Park and towards First Nations people 2 generally. 3 Now, in addition to finding that the 4 political heat generated by the Harris Government 5 contributed to the CMU's march down the road and thus the 6 ultimate killing of Dudley George I would submit it that 7 you must find that the Harris Government contributed to 8 that death in another way, a related but different way. 9 Deb Hutton's participation at the 10 Interministerial Committee Meetings. One (1) of the 11 prime responsibilities of the IMC was to appoint a 12 facilitator/negotiator who could do process negotiations, 13 not substantive negotiations about land claims but 14 process negotiations that would help to diffuse violence 15 and prevent misunderstandings, but Deb Hutton came into 16 those meetings and made a tone that did not allow that to 17 be discussed, when she talked about the Premier being 18 "hawkish" on the issues and so on. We've had a lot of 19 evidence about that from Julie Jai and other members of 20 the meeting. 21 We detail in our submissions how Ms. 22 Hutton precluded the possibility according to the 23 evidence of Julie Jai and others of appointing a 24 facilitator/negotiator in the short run. 25 Even if there hadn't been all that heat on
1171 the OPP it would be possible that a situation like that 2 might lead to violence. The OPP might, for one (1) 3 reason or another, good motive or bad motive, get 4 involved with the people in the Park in a way that could 5 lead to violence. 6 But a facilitator/negotiator could help to 7 prevent that and in particular if there's any truth to 8 the statement that the OPP wanted the people back in the 9 Park on the night of September 6th at eleven o'clock when 10 they'd been telling them for a couple of days they wanted 11 them out of the Park, if they really wanted them back in 12 the Park at eleven o'clock, if there was a 13 facilitator/negotiator who was respected by both sides, 14 the OPP could say to that person, Please go tell the 15 people in the Park that we're going to have to do 16 something if they stay in the sandy parking lot but 17 they're okay if they move back. 18 And if that was a respected person 19 undoubtedly they would have moved back and Dudley George 20 would be alive. 21 Now, we did make one (1) mistake pointed 22 out in the reply submissions and this was pointed out in 23 the reply submissions of Mike Harris and of Deb Hutton. 24 In our overview at paragraph 15 of our written 25 submissions we spoke of Hutton's insistence that there be
1181 no negotiations. 2 That's not entirely correct. The spirit 3 is correct but it's not entirely correct. Ms. Hutton did 4 not insist there be no negotiations. She said, the only 5 negotiations should be by the OPP and possibly MNR. 6 The conclusion is the same as what we 7 said, as the evidence shows, and as we detail in our 8 written submissions at paragraph 325 and thereabouts, 9 what prevented negotiations was her insistence that only 10 the OPP and possibly MNR could be the negotiators. And 11 you may recall, we refer to it in our submissions, Julie 12 Jai's evidence about how the OPP isn't likely to be able 13 to do that kind of a job, no matter how wonderful they 14 are as individuals. 15 As police they are in an antagonistic 16 relationship with the people in the Park and that's why 17 the policy of the Inter-Ministerial Committee was to 18 appoint a facilitator/negotiator who would be a go- 19 between. A police officer, no matter how wonderful an 20 officer he may be, can't fill that function. 21 And Deb Hutton's performance, one could 22 say, based on the evidence of her imperious demeanour and 23 so on at the two (2) meetings of the Inter-Ministerial 24 Committee, prevented them talking in a positive way about 25 resolving things and appointing a facilitator/negotiator.
1191 Her frustration of the work of the IMC is 2 discussed in paragraph 392 to 321 of our submissions and 3 the consequent effect on negotiations is discussed at 4 paragraphs 322 to 328. 5 So in addition to the political heat 6 through Ron Fox to Carson and through Beaubien to Carson 7 and to Lacroix and to the other officers, it is submitted 8 that you should find that another way in which the 9 attitude of the Harris government contributed to the 10 killing of Dudley George was by precluding the 11 possibility of the appointment of a facilitator/ 12 negotiator who could have prevented the confrontation. 13 Now, Mr. Commissioner, you've said many 14 times and others already today have referred to the hope 15 that the Inquiry will promote healing and that's a 16 laudable goal. We all share that hope. But you can't 17 have healing if you don't have truth. 18 And I would urge upon you to reject 19 submissions to the effect that healing requires you not 20 to make hard findings about what happened. It requires 21 quite the opposite for true healing. True healing 22 requires truth and justice. 23 In South Africa, as we all know, they had 24 a Truth and Reconciliation Commission - truth first, then 25 reconciliation.
1201 It's striking -- striking, in my 2 respectful submission, that neither Premier Harris nor 3 Deb Hutton in any way resiled from the positions that 4 they took at the time. You might have thought that one 5 of them would have said at this Inquiry, gee, in 6 retrospect we didn't realize at the time but our -- our 7 political position and our being hawkish, which we had 8 good reasons to believe in, did perhaps contribute to a 9 problem here and in retrospect we wish that we had, for 10 example, supported a facilitator/negotiator being 11 appointed by the IMC, even if it was a First Nations 12 person or something like that. 13 There was nothing in that direction at 14 all. Harris and Hutton were firm. Their program of 15 actioning, they didn't reject it at all. Their 16 precluding that kind of negotiation, their hard line, 17 they didn't reject it at all, even in the light of the 18 consequences. 19 And as Mr. Klippenstein pointed out, 20 Harris' written submissions and end with the assertion: 21 "We say that the real lesson of 22 Ipperwash is that we must find a way to 23 ensure that the rule of law and civil 24 order is recognized as just by all 25 people of all ancestries and opinions."
1211 That's what Mr. Harris concluded in his 2 written submissions to you, sir. 3 The same law and order attitude that they 4 had in 1995. No bending whatsoever, even in the case of 5 Aboriginal peoples when it's generally understood, as Ms. 6 Esmonde discussed, that there are problems in Canada 7 imposing its will on these people, no recognition of the 8 fact that they could have perhaps, even in retrospect, 9 bent a little bit. 10 And you must, therefore, Mr. Commissioner, 11 make those hard findings. 12 And similarly, Mr. Commissioner, I would 13 suggest to you with respect to Incident Commander Carson. 14 The OPP says, oh, yeah, we acknowledge some mistakes. 15 There were communication problems. Got the George 16 incident a little bit wrong and so on. 17 But why didn't Carson come to us and say, 18 at the time I honestly believed that it was appropriate 19 to send the CMU down East Parkway Drive that night, but 20 in hindsight, knowing that they weren't posing any danger 21 at the time and given what happened to Gerald George, I 22 wish I had sent an officer or two (2) down there to find 23 out what was happening. 24 I wish I had done something else. I 25 didn't think of it at the time.
1221 No such admission. They're saying it was 2 a reasonable decision. They're saying it was a 3 reasonable decision and I submit to you it was entirely 4 unreasonable, as I indicated. 5 But then they say, for people who insist 6 that they were unreasonable, and insist that you find it 7 so, that they say in their reply submissions, for 8 example, and again I don't suggest you turn to it, given 9 time constraints. 10 Paragraph 6, they say: 11 "Unfortunately it must be said that the 12 written submissions of some parties 13 show little or no interest in 14 contributing to the healing process. A 15 hearing requires parties, every party, 16 to listen and not just be heard and so 17 on." 18 And a few examples make the point and the 19 first example is Aazhoodena and George Family Group in 20 the next paragraph. But we call for hard findings about 21 John Carson. 22 Now, I want to point out that in several 23 places, the OPP submission misstates our original 24 position, makes it stronger than it was and then counters 25 the stronger assertion, particularly they say that we
1231 call -- that we suggested Deputy Carson should have been 2 dismissed. 3 We didn't say that. We did point out that 4 it is very unfortunate and might be considered a great 5 affront to First Nations people that he became a deputy 6 Commissioner after this, one of the highest ranks. 7 Only four (4) deputy Commissioners and 8 then the Commissioner in the OPP. Many ranks in between 9 Inspector and that. 10 When he was in charge, and one often 11 thinks that the person in charge takes responsibility 12 even if the person was not responsible, even if it wasn't 13 that person's direct responsibility, although here John 14 Carson did make the decisions. 15 Now, depending upon time, I will deal a 16 bit more with Inspector Carson later on in my 17 submissions. 18 One allegation that's been out there for 19 eleven (11) years almost now is that the Stoney Pointers 20 fired on OPP officers on September 6th, 1995. 21 That was said in the original press 22 release put out by the OPP and it's been out there. 23 One of the factual findings that you must 24 make, Mr. Commissioner, in our submission, is that that 25 is not true. That is a slander of the people in the Park
1241 and it's not true. 2 There's clear evidence at the Inquiry that 3 that's not true and I will ask that you look at some 4 other time, not right now, at our submissions pages 134 5 to 144 and our reply submissions, pages 45 to 49. 6 But the OPPA is still desperate to 7 maintain that fiction, even now, after all this evidence. 8 And they are so desperate that they rely on the testimony 9 of Constable Cossitt. 10 Now, Mr. Commissioner, I must say when I 11 cross-examined Constable Cossitt I felt sorry for him. 12 He was the person who, at the Dudley George -- sorry, at 13 the Deane trial, the Judge at the Deane trial said: 14 "Rather than scrutinize Constable 15 Cossitt's testimony for any grains of 16 truth that might fall out I've 17 dismissed it entirely as being clearly 18 fabricated and implausible." 19 And he's the only person of all the 20 officers who testified at this Inquiry who claimed to 21 have seen a Stoney Point person firing any weapon on the 22 night of September 6th, 1995. Not only was he 23 characterized that way at the trial of Kenneth Deane, but 24 his testimony at this Inquiry was pathetic, Mr. 25 Commissioner.
1251 For example, and I should -- I turn to 2 another excerpt. This is then the second excerpt in the 3 document that I gave you, Mr. Commissioner, and it's now 4 -- thank you -- on the screen for other persons as well, 5 the testimony of Constable Cossitt -- I think I 6 misspelled his name, May 24, 2006, beginning at page 143. 7 "Q:..." 8 This is about his testimony in a different 9 trial. 10 "Now, sir, did you tell the Court then, 11 quote, "I'm not sure which officer had 12 contact with him"? 13 A: Yes, sir. 14 But you knew you were the officer who 15 had contact with him, right? 16 Yes. 17 So you mis-informed the Court when you 18 said you weren't sure which officer had 19 contact with him? [Brief pause]" 20 That's just one (1) of a number of 21 examples, Mr. Commissioner. There's more -- later on he 22 tries to deal with it. 23 The question of his perjury was allegedly 24 investigated by the OPP after the Deane trial and the 25 finding of the judge in that trial and they concluded
1261 that there was no evidence of it. 2 I'm not asking you to find him guilty of 3 perjury. You can't. You don't have that power and I'm 4 not asking you to even make that finding. I am asking 5 you to, as the judge did in the Deane trial, totally 6 disregard his evidence, not try and find any grain of 7 truth. There may not even be a grain of truth, but the 8 OPPA still relies on it. 9 And there's no other evidence. They also 10 in their submissions quote some documents referring to 11 statements of officers who didn't testify. We -- we deal 12 with all that in our reply submissions. 13 One (1) of the essential findings you must 14 make in my respectful submission -- suggestion, Mr. 15 Commissioner, that's another one that can sting; it's a 16 wasp or something I think. 17 You must, Mr. Commissioner, find that no 18 Stoney Point person fired any shots whatsoever on the 19 evening of September 6th, 1995, and in fact there is no 20 evidence suggesting that any Stoney Point person had a 21 firearm of any kind on his or her person on that evening. 22 Now, as you know, Mr. Commissioner, there 23 were other victims that night besides Dudley George. All 24 the people in the Park were victims but then there were 25 others who were particular victims. Pierre George and
1271 Carolyn George, brother and sister of Dudley George 2 accompanied by a young man J.T. Cousins made a heroic 3 effort -- sorry, I've now got you anxious about them. 4 COMMISSIONER SIDNEY LINDEN: I saw 5 something go by. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 MR. PETER ROSENTHAL: Pierre, Carolyn, 9 and J.T. Cousins made a heroic effort to try to get 10 medical attention for Dudley. At the end of that effort 11 they were grabbed by officers and slammed against walls 12 and placed under arrest. That is unbelievable. 13 The arguments in favour of that are 14 absurd. Well, first off we're told that they were 15 suspected of maybe shooting at the officers. Well, now 16 we know there wasn't anybody shooting at any officers 17 anyway so that -- but assume for the sake of argument 18 that at the time they thought that officers had been 19 fired upon. So anybody coming from that area was going 20 to be arrested? 21 But even if they were to -- they knew that 22 these were the people taking Dudley George to the 23 hospital. Even if they were to arrest them they didn't 24 have to grab them and throw them against the wall right 25 then. They weren't going anywhere except into the
1281 hospital. They could have just watched the situation, 2 helped them get Dudley into the hospital, allowed them to 3 give information to the doctors at the hospital that 4 might have assisted in treatment, and then if they really 5 thought they had grounds, arrest them. 6 There's no excuse for them treating them 7 that way, Mr. Commissioner, and I urge you to so find. 8 They didn't have any reasonable and probable grounds at 9 all, and even if they had, they should not have done the 10 arrest in the manner that they did; especially the young 11 man, J.T. Cousins. What kind of message did they send to 12 that young man to carry through life about police 13 officers? 14 Other victims included Marcia Simon and 15 her elderly mother, Melba George. Worried about the 16 possibility that her sons, Kevin and Marlon, might have 17 been injured, might have been shot. Marcia Simon goes 18 with her elderly mother to a telephone booth to make a 19 phone call for an ambulance. 20 She's grabbed out of that phone booth. 21 Four (4) officers point firearms at her. Four (4) 22 officers. And at her aging mother. Marcia Simon's 23 evidence, if you could take you mind back, sir, was 24 compelling as to the horror of that event on the evening 25 that it occurred and in her memory as she testified and
1291 it will be in her memory forever. 2 Again, no excuse for that kind of 3 treatment and, again, no apology. No repentance by any 4 of the officers. Just as in the Pierre and Carolyn 5 George case and J.T. Cousins case, nobody said, we could 6 have done it differently. 7 Marcia Simon was trying to find a phone to 8 make a phone call. And, as she testified, there weren't, 9 at the time of her testimony and I believe still now, 10 there are not telephones, even, in Stoney Point. We do 11 have one of our recommendations, number 12 I believe, is 12 that normal services be provided to the people at Stoney 13 Point. 14 One of the problems if you're living in a 15 situation that they've been living in which is a not 16 regularized situation, even the Camp -- the Army Camp has 17 not been formally returned, is that they don't get normal 18 services. And we make that recommendation that they 19 should be given such. 20 Related to the pointing of long guns at a 21 human being, you may recall there was evidence from 22 Commissioner Boniface and from Staff Sergeant Skinner 23 agreeing that it might be appropriate to expand the 24 regulation that restricts the use of handguns to the 25 pointing of long guns at a human being. And our
1301 recommendations 39 and 40 which are presently on the 2 screen on the next document there are designed to that 3 effect. 4 "The Province of Ontario should amend 5 Regulation 926 to the Police Services 6 Act so that it restricts police 7 officers' pointing of any firearm, not 8 only a handgun, at a human being to 9 situations where the officers believes 10 on reasonable grounds that to do so is 11 necessary to protect against loss of 12 life or serious bodily harm." 13 And then we've suggested specific wording. 14 It would just mean adding a phrase to the 15 existing regulation with respect to handguns. Adding the 16 phrase "point any firearm at a human being". 17 And similarly with respect to the next 18 recommendation, that's concerning use of force reports, 19 if an officer -- currently if an officer draws a handgun 20 even, he doesn't have to point it, but draws a handgun in 21 the presence of a member of the public he must fill out a 22 use of force report. 23 We're suggesting that be expanded to 24 including pointing any firearm at a member of the public. 25 OPP Commissioner Boniface agreed that that second
1311 recommendation would be of assistance to her because 2 she'd like to know if an officer pointed a firearm at a 3 human being. 4 And I would respectfully request that as 5 one consequence of the horror that Marcia Simon faced on 6 that night that you recommend these changes to the 7 regulations in the hope that it might limit such horrors 8 in the future. 9 Now, with respect to John Carson, in my 10 submission, sir, it was disturbing the way John Carson 11 reacted when he came back to deal with disciplinary 12 matters to the confrontation -- to the existence of the 13 special policing protocol for First Nations persons. 14 You'll recall that we had evidence that 15 one of the things that Stan Cloud had complained about as 16 being racist against First Nations people was an order 17 that there be special policing of those people; that the 18 MNR employees, if they saw a First Nations person 19 contravening the law, they should report that person to 20 the OPP and so on. 21 Not other people, just First Nations 22 people. Commissioner Boniface recognized that there was 23 a serious problem with that, and other witnesses did as 24 well. 25 John Carson didn't seem to appreciate
1321 that. That's very disturbing, in my submission. We deal 2 with that more fully at pages 182 to 185 of our 3 submissions. 4 I'll just note that the OPP in its reply, 5 says that it's not clear what the role of the OPP was in 6 designing that. 7 Well, some things are clear. It's clear 8 that Staff Sergeant Bouwman was involved in the creation 9 because we have evidence that effect and also I would 10 request that you read John Carson's testimony as referred 11 to in our written submissions. 12 We don't list all the testimony, but we 13 have references to it. Refer to his testimony about that 14 issue; it's disturbing and it's especially disturbing in 15 someone's who's now a deputy Commissioner of the OPP. 16 Now, there are other disturbing things 17 that must be looked at. Did John Carson know at the time 18 that he approved sending out the press release, that it 19 gave a mis-impression of the Stoney Pointers' actions? 20 That night, the press release that said, 21 "several with a bat". 22 Let's look at some of his testimony on 23 June 9th, 2005, beginning towards the end of page 84 and 24 continuing to page 85 and then continuing later. 25 The first answer he made me aware -- this
1331 is discussing what Mark Wright he had informed him of, so 2 the "he" is Mark Wright. 3 "He made me aware a vehicle had been 4 damaged. I certainly agree to that. 5 Q: And he told you the essence of it, 6 that it was by one (1) person, right, 7 who did the damage, right? 8 A: I'd have to look at the transcript 9 of the discussion, sir. I do not 10 recall one way or the other whether it 11 was one (1) or three (3) -- two (2) or 12 three (3)." 13 Okay, then let's skip down to a little 14 later in John Carson's testimony, beginning at page 91 15 the same day. 16 "And then I had also turned you to the 17 scribe notes at 1:28 in the morning of 18 September 7, which was several hours 19 after the purported other exchange of 20 information. And at that time, do you 21 agree you were present, right, 1:28, 22 September 7? 23 A: Correct. 24 Q: With Mark Wright, when he, as the 25 scribe notes say, spoke about the
1341 incident with Worm, damaged vehicle, 2 right?" 3 Of course, Mr. Commissioner, you'll recall 4 that the truth of the matter was the only damage to a 5 vehicle was a rock that Worm threw at Gerald George's 6 car. 7 "When he, as the scribe notes say, 8 spoke about the incident with Worm. 9 Damage vehicle, right? That's quoted 10 from the scribe notes. 11 "A: Correct. 12 Q: So you would agree that certainly 13 by at least 1:28 in the morning, you 14 knew that the allegation was that the 15 vehicle had been damaged by Worm, also 16 known as Stuart George, right? 17 A: That appears to be the case, yes. 18 Q: Yes. So you knew at least that 19 much, sir? 20 A: That -- that's what the scribe 21 notes 22 indicate, that that was said in my 23 presence." 24 At 1:28 that is. And we turn to another 25 document, logger tapes, and we -- a phone call continuing
1351 on the next page. Thank you. That phone call was at 2 about 1:40 in the morning. Sorry, you went a little too 3 far, Mr. Millar. 4 MR. DERRY MILLAR: Sorry. Sorry. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 MR. PETER ROSENTHAL: Thank you. It was 8 at 1:40 in the morning of September 7th. You recall, Mr. 9 Commissioner, the previous was at 1:28. 1:28 he learned 10 Worm did it. 1:40 phone call: 11 "Q: And if we could please turn to 12 page 440 of the transcript there's a 13 call between Officer Babbitt and you 14 where he is checking with you, a final 15 check on the press release, right? 16 A: Correct. 17 And so on page 440 he reads to you the 18 press release and as he has it at that 19 point towards the bottom of the page, 20 right? 21 A: Correct. 22 And this is for your verification, 23 right? 24 A: Right. 25 And the first sentence that he reads to
1361 you is: A private citizen's vehicle 2 was damaged by a number of First 3 Nations people armed with baseball bats 4 right? 5 A: Correct. 6 And this is at 1:40 in th morning, 7 right? 8 Right. 9 And early -- twelve (12) minutes 10 earlier you knew that it was just one 11 (1) person who did the damage, right? 12 A: I wouldn't agree. 13 Q: You just agreed that you learned 14 at 1:28 that Worm had done it? 15 A: I was -- I was -- obviously I was 16 present when Worm's name was mentioned 17 but whether I -- I cannot say with any 18 certainty that I was aware..." 19 And so on, Mr. Commissioner. You can read 20 the whole transcript. 21 This is one (1) of at least two (2) 22 instances that night when Mr. Carson misinformed people 23 and we have a clear record. And this was a 24 misinformation that led to that slanderous statement 25 being sent out and being not retracted to the present day
1371 about the First Nations people. A number of First 2 Nations people armed with baseball bats damaged a private 3 citizen's vehicle; a totally false statement. 4 And I would put it to you Inspector Carson 5 knew that it was false twelve (12) minutes earlier before 6 he approved it. Not when he originally drafted it 7 perhaps; he had drafted it earlier, but when he approved 8 it. 9 Now, the -- there is similar -- there's a 10 similar situation with respect to calling the Special 11 Investigations Unit. If you turn to the next excerpt of 12 his testimony. 13 14 (BRIEF PAUSE) 15 16 MR. PETER ROSENTHAL: This is his 17 testimony also on June 9, 2005, from pages 135 to 139. 18 And just to get to the -- the crux of it, if you look at 19 page 136, question at line 9: 20 "Now, if we could look at page 440 of 21 that call, sir, look towards the top of 22 page 440 the first entry attributed to 23 Carson reads as follows: 24 Well, I -- I got a note here. I've got 25 to call SIU.
1381 So this our one (1) opportunity to 2 discuss that? Do you see that, sir? 3 Yes, I do." 4 He had said that he got a note he has to 5 call the SIU and then when he did finally call the SIU in 6 the interest of time, Mr. Commissioner, I'm going to cut 7 this shorter, but when he did finally call the SIU he 8 told them, I couldn't call you because I had to speak to 9 Chief Bressette. There's a whole interchange where they 10 say, Well, I also had to speak to Chief Bressette. I was 11 speaking to Chief Bressette too. Well, you evaluate that 12 evidence, Mr. Commissioner. 13 And then one (1) final bit in that kind of 14 direction. The next transcript excerpt about recorded 15 phone calls. It is quite remarkable, Mr. Commissioner, 16 and we're quite lucky that we got so many recordings of 17 so many calls. Of course we're quite unlucky in that the 18 TRU call recordings were apparently never made because 19 the wrong switch was pressed or there wasn't a switch 20 pressed on the recorder; that's the evidence. 21 So we did miss a whole chunk of calls in 22 that respect. On the other hand as you are well aware or 23 we're all well aware there was as lot of information on 24 phone calls including a lot of times people saying, it's 25 okay, it's not recorded, go right ahead, when it was in
1391 fact recorded. But then Incident Commander Carson was 2 asked about his concerns with respect to recorded and 3 unrecorded. 4 And -- and questioned, beginning at page 5 81, about line 18: 6 "Q: Now, sir, in the course of these 7 events of September 4, 5, 6, 1995 you 8 asked that one of the communication 9 lines be unrecorded or de-recorded or 10 whatever the proper terminology is; 11 right? 12 A: Right. 13 Q: And the explanation that you gave 14 us in part on June 20th when you 15 testified when you were asked the 16 following question..." 17 And then referring to those questions, you 18 asked: 19 "You wanted to have persons speaking to 20 you to not be concerned about the 21 possibility of being recorded; is that 22 correct? 23 A: Right. 24 Q: And concerned, therefore, that 25 other people would know exactly what
1401 they said as a result the recording; 2 right? " 3 So I am at page -- yeah -- page 2. 4 "A: No. So they could speak freely 5 and not be concerned what they may want 6 to say to me in order to be, for lack 7 of a better term, more concerned about 8 grammar and correctness and language as 9 opposed to being frank and honest with 10 me." 11 That's what he claimed was the reason he 12 wanted an unrecorded line -- or unrecorded lines because 13 he was concerned about grammar and correctness of 14 language. 15 Just without anything further, Mr. 16 Commissioner, I would suggest to you that's not very 17 plausible; unrecorded line because you're concerned about 18 grammar. 19 But let's go on and see how implausible it 20 is. Now, at page 83 of that transcript, line 3: 21 "Q: You gave an order to someone at 22 some point to de-record one (1) line; 23 is that correct, sir? 24 A: Yes. I did. 25 Q: And that person evidently failed
1411 to obey that order? 2 A: Correct. 3 Q: Did you later find out who that 4 person was? 5 A: Yes. 6 Q: Was he disciplined? 7 A: No. 8 Q: I see. Now, let's turn..." 9 Then there's a call between him and 10 Superintendent Parkin and he thought the lines had been 11 de-recorded. Sorry, may I skip a bit further just to 12 save time here? 13 Okay, if we could turn please to page 85 14 of the transcript. This is on September 6th at 9:45 in 15 the morning. And we turn to page 217 of a given 16 transcript, this was at Tab 6 and so on. 17 And then going over to the next page 18 you're talking to a person who's identified as female and 19 you are Carson. 20 About five (5) lines down it says: 21 "Female: Don't worry. We're not 22 being recorded or anything. I mean, 23 you can trust me." 24 And then Carson: 25 "Well, well, until about ten (10)
1421 minutes ago my lines were being 2 recorded.' So, first, I want to stop 3 there. And can we take from this, sir, 4 that given the time of this call being 5 9:45 it's your understanding that at 6 least one (1) of your lines stopped 7 being recorded at about five (5) 8 minutes after 9:00? 9 A: Fair enough." 10 And so on. Line 10: 11 "So at some point -- at some point in 12 the course of these several days you 13 found out that all the lines were being 14 recorded except for your cell phone 15 line; is that correct? 16 A: No." 17 There's a discussion with Inspector Parson 18 --Carson and so on. Sorry, Mr. Commissioner, I'm going 19 to go more to the essence, if I may. Okay, if we could 20 go please to page 87, about line 20. 21 "Okay. In any event you answer on page 22 217 of this transcript, that's the 23 discussion with the female person, 24 about ten (10) minutes ago my lines were 25 being recorded and the female answers 'get
1431 out of here. 2 Really?" 3 And you say: 4 "I just had one line 5 de-recorded." 6 And she says: 7 "Holy cow'." 8 Was she concerned about grammar too, Mr. 9 Commissioner, you think? 10 "She says 'holy cow' and you say 11 'because anything -- anything in the 12 command post goes through the logger.' 13 She says 'Oh dear.' 14 And you say 'So that all the 15 communications here is recorded for 16 posterity.' 17 And she says 'I don't know what EWE is 18 supposed to transcribe but she says 19 some reaction to that. 20 And then you say 'But I have one (1) 21 line de-programmed, so I can talk 22 freely. " 23 Now he's not worried about other people's 24 grammar maybe he's worried about his own. 25 "And she says 'Oh, good'."
1441 Line 21: 2 "Now, sir, I suggest to you that this 3 interchange suggests a much more 4 serious concern about the recording of 5 lines than grammar and expression like 6 that suggests, that there's a serious 7 concern about not having the content 8 recorded for posterity. What's your 9 reaction to that, sir? 10 A: I don't have any reaction to it. 11 It's simply as I've stated time and 12 time again, and so on. It simply 13 explained the process." 14 Well, I won't belabour the point. I 15 respectfully request that you read the next several pages 16 about Mr. Carson and come to the conclusion, the only 17 conclusion, that he wanted lines unrecorded so he could 18 have discussions that would not be available for 19 subsequent inspection. 20 We're lucky that he didn't succeed to as 21 great an extent as he would have hoped. But we do not 22 know, Mr. Commissioner, how many unrecorded calls were 23 made. 24 In particular, he had a cell phone and he 25 was concerned about recorded calls, obviously.
1451 But more importantly, Mr. Commissioner, I 2 would suggest that the excerpts that I've read to you 3 about the last several different aspects of his evidence 4 suggest that Mr. Carson was trying to rationalize his 5 behaviour. 6 We're all guilty of that to some extent. 7 We all make mistakes. You've seen me make many mistakes 8 in the course of the last two (2) years. 9 We all make mistakes and we all, to some 10 extent, try to rationalize our behaviour. And he did so, 11 even in these cases where I would suggest the 12 rationalization obviously doesn't make sense. 13 Would it have been conceivable that he 14 would have come to you and said, the reason I allowed 15 those officers to go down the road was because of the 16 political heat? Not possible. 17 Whatever he was thinking as he was 18 standing -- sitting over there, giving his evidence, he 19 couldn't have possibly have said that. 20 And I would respectfully suggest that his 21 denials that political heat influenced his actions are 22 not worth anything at this Inquiry, and that is not 23 necessarily a reflection on his integrity. 24 He might honestly believe that these days 25 when he looks back on it, but it's not consistent with
1461 the evidence at the Inquiry. 2 Now, the OPPA, in its reply submission, 3 paragraph 115, says that the OPPA itself is critical of 4 racist acts and comments. 5 Well, that would be good if it were true 6 but their previous paragraph, 114, they characterize the 7 memorabilia so-called, including the second T-shirt, 8 presumably, as merely culturally insensitive. 9 I'm not suggesting you check it now, 10 sorry, Mr. Commissioner, but you may if you wish. But 11 they characterize it as culturally insensitive.. 12 Now, Mr. Commissioner, it's beyond 13 culturally insensitive and I would urge upon you that you 14 find clearly that the second T-shirt is obviously and 15 grotesquely racism and the first T-shirt is racist in a 16 less obvious but similarly offensive manner. 17 For anyone to look at the second T-shirt, 18 the one (1) that shows an anvil on which it says CMU and 19 a TRU symbol coming down on top of it and an arrow being 20 broken in between, for anyone to not find that incredibly 21 obviously racist against First Nations persons, indicates 22 that that person is totally insensitive to such racism at 23 best. 24 Mr. Commissioner, I find that I've 25 curtailed myself sufficiently that I will stop right here
1471 and give everybody the lunch that they're all wishing for 2 and just thank my clients very much for the opportunity 3 to represent them at this Inquiry. 4 This has certainly been one (1) of the 5 great experiences of my life. I've learned an awful lot 6 about First Nations issues and many other things and to 7 thank you, Mr. Commissioner, for your indulgence at times 8 even though I've disagreed with you at times and to say 9 that I really will feel nostalgic about not appearing in 10 front of you anymore; I've gotten used to it. 11 Every week or two (2) I have to do 12 something in front of you and I will regret not doing it 13 any further and wish you the very best in your very 14 difficult job of writing this report. Thank you. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Rosenthal. Thank you very much. You have 17 given us a little longer lunch hour than we expected. 18 What time should we break 'til? 19 MR. DERRY MILLAR: Perhaps I suggest we 20 break to two o'clock? 21 COMMISSIONER SIDNEY LINDEN: 'Til two 22 o'clock? Why don't we break now for lunch 'til two 23 o'clock. Thank you, Mr. Rosenthal. 24 THE REGISTRAR: This Inquiry stands 25 adjourned until 2:00 p.m.
1481 2 --- Upon recessing at 12:53 p.m. 3 --- Upon resuming at 2:02 p.m. 4 5 THE REGISTRAR: This Inquiry is now 6 resumed. Please be seated. 7 COMMISSIONER SIDNEY LINDEN: I think 8 we're up to Mr. Ross. 9 10 (BRIEF PAUSE) 11 12 MR. ANTHONY ROSS: Thank you, 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: Good 15 afternoon, sir. 16 17 FINAL SUBMISSIONS BY RESIDENTS OF AAZHOODENA: 18 MR. ANTHONY ROSS: Commissioner, during 19 the evidentiary phase at one stage, I asked that a 20 section of a video be drawn to the attention of one (1) 21 or two (2) of the witnesses. 22 And I think it is appropriate that 23 throughout the submission on behalf of the Residents of 24 Aazhoodena, the sign which was put up by community 25 members, business people in the community not residents
1491 of Aazhoodena be made so very public that in case until 2 now the Government has not gotten the message they might 3 at least observe the sign. 4 Now, Mr. Commissioner, you indicated to us 5 today that you were just seeking to have us highlight 6 submissions. Now on behalf of the Residents of 7 Aazhoodena we're going to do a split submission. I am 8 going to fast forward up to what I consider the occasion 9 which gave rise to the circumstances resulting in the 10 police shooting of an unarmed member of the Aazhoodena 11 Group. 12 I will not go into the sixty (60) hours 13 starting on the 4th of September, because as I predicted, 14 as I suspected, it was admirably covered by those who 15 went before me. 16 And it is not my suspicion that Mr. 17 Scullion who will follow me will address those sixty (60) 18 hours. We are trying to present you with a different 19 approach. Something to say that there was something 20 wrong in the first place. 21 And what was wrong will inevitably lead to 22 difficulty. The difficulty manifested itself in what 23 happened in the sixty (60) hours starting around 7:00 24 p.m. on Monday, the 4th of September, 1995, and going 25 through until Thursday morning.
1501 Those hours have been addressed by Mr. 2 Klippenstein and by Mr. Rosenthal. Now having worked in 3 the area of Aboriginal interest for a while, it was 4 always been my view and supported by the evidence that 5 has come forward through this Inquiry that there was 6 something wrong in the beginning. And the question then 7 becomes: When is the beginning? 8 Is the beginning the Royal Proclamation? 9 And I don't think so. And Chief Justice Dixon, as he 10 then was when he gave the decision, indicated no, it 11 didn't start at the Royal Proclamation. Indian interest, 12 Aboriginal interest, indigenous interest were here from 13 time immemorial. 14 And what the Royal Proclamation did, it 15 pretty well drew a line and said, Look, from here 16 forward, settlers, you are going to run into difficulties 17 with indigenous people. So what the Crown is going to do 18 is going to walk with its honour and interpose itself 19 between the indigenous people and the settlers, to make 20 sure that there were no further land grabs. That's what 21 the Royal Proclamation was all about, in a nutshell. 22 Now, it is important to recognize that -- 23 it is important to look at the circumstances around the 24 time of the Royal Proclamation. By then law had 25 developed in England to the extent that even during --
1511 even during the Tudor period, that law had developed to 2 the extent that as far as the more fields and area which 3 had been set aside someplace in London and was being 4 fenced, that the Crown, by royal decree, decided, No, we 5 are going to make some changes to accommodate usage that 6 had been happening before. 7 We went on and we saw what happened in the 8 so-celebrated decision called Spencer's (phonetic) case. 9 We have the concept of covenants and covenants to run 10 with the land was enshrined. And then we go further and 11 we've got, in 1660, the Statute of tenures. The Statute 12 of Tenures being, for all intents and purposes, a 13 codification of British -- or English property law. 14 And what is interesting is that as we try 15 to understand how far did this Statute of Tenures 16 stretch, we recognize that there are very few -- very few 17 situations in which that law is considered outside 18 Britain. And as far as Canada was concerned, the first 19 real decision which touched on it happened in the 1950's. 20 And then after that you still had around 21 1660's -- it's the great fire of London. And all of this 22 to say that what you were dealing with is a totally 23 different group which was coming from Europe to what is 24 now Canada. And they were bringing with them their owns 25 views of property.
1521 And what was happening in this country is 2 that the indigenous people had a total different view of 3 land. They didn't consider it as property. They 4 considered them to be part of the land and the land to be 5 part of their existence. So there were no fences. There 6 were no boundaries. People were free to move, live with 7 the land, enjoy the land. 8 And this is where the conflict comes. 9 Because here's one (1) group coming with the concept of 10 fences and ownership, and ownership of the soil, and 11 another group without those ideas. 12 And then you've the Proclamation of 1763. 13 And what happens after 1763 is that you find the -- there 14 is a consideration in the United States, in Fletcher vs. 15 Peck, which is mentioned in our submission at paragraph 16 24, in which the Statute of Tenures is considered. 17 And the American judges are taking the 18 position that as far as the land is concerned there was 19 no concept of ownership as far as the indigenous people 20 are concerned, so that there was nothing to be 21 transferred. There was something to be extinguished. 22 So then if we pause for a minute and say, 23 Let's talk about this concept of what's there to be 24 extinguished, we know that from time immemorial, that 25 these interests were indigenous interests. And then
1531 somebody is going to come along and say, No, I own this 2 land. 3 Now we know from a point of view of 4 philosophy, it is impossible to prove a negative. We 5 also know from our own law that he who asserts must 6 prove. Therefore, the question is that any land to which 7 an Aboriginal says he's got any aspect of title, provokes 8 on the other side the proof of proving extinguishment. 9 If you cannot prove it is extinguished, then there could 10 be a problem. 11 Against that background there is the 12 Anglo-American war and then the Treaty of 1827. Now as 13 far as the Treaty is concerned, if we were to look at it 14 and say; in our modern concepts of law, what does it 15 parallel. Does it parallel tort, does it parallel 16 criminal law? 17 No, because it has come to the concepts 18 enunciated in contract where there's something for 19 something there's an expectation interest, there's 20 something where you can consider the interest of the 21 parties at the time they're putting together this 22 relationship. 23 Now I do not know, I would not go as far 24 as to say that it was a contract where there was a quid 25 pro quo on consideration but I'm saying that is
1541 contractual in nature. So that you look at the two (2) 2 parties or look at the parties to this Treaty and say; 3 what were their reasonable expectations? What were their 4 reasonable intentions at the time? 5 If we fast forward backward to 1827, I 6 would suggest based on what we've heard by way of expert 7 testimony and the various reports, if one were to tell 8 the -- the Chiefs back then, sign over your land. Now 9 what we're going to do is put you on some little 10 Reserves, we're going to isolate you from what's 11 happening as far as the country's concerned. 12 We're going marginalise you and then when 13 we get a chance, we're going to try to steal the little 14 of that land that's left. The question is to ask, do we 15 really believe there would have been a Treaty? 16 And I hardly think there would. And then 17 it provokes the other question, what really was the 18 Treaty. Now the Treaty is represented in two -- in two 19 (2) ways. 20 Number 1, in the way of the settlers which 21 is incorporated in a document put together by the 22 settlers, their words and their pen so they must not be 23 able to argue against it. 24 But it is not necessary the observations 25 of those who were the other part of the Treaty. But
1551 their representation is in something else. It's in the 2 wampum belt. The two (2) row wampum, that we will go 3 along parallel paths towards the common destiny. You on 4 your side, we on our side. 5 We will not impose our ways on you but we 6 don't want you to impose your ways on us. And I think 7 that it was a much smarter move to put it in the terms of 8 a two row wampum than it is to put in the terms of print. 9 Print is subject to lots of 10 interpretations. The two row wampum is so very clear. 11 Parallel lines are lines which never meet regardless to 12 how far produce, but they're going the same direction. 13 So that is the sense of what we had coming together by 14 way of the Treaty. 15 Now it is to be recognized that here's a 16 Treaty in 1827, five (5) years later Beamish Murdock is 17 writing the epitome of the laws of Nova Scotia. 18 Now we understood historically how Nova 19 Scotia relates to what is now Canada. And in his 20 writings as referenced in our material to you, he's 21 saying that we are not going to look and determine the 22 justification of European settlers coming and 23 dispossessing these people of their lands. 24 We're going to leave that for sociologists 25 some time. You see and that brings me now to the very
1561 interesting ques -- position, Mr. Commissioner, and it is 2 the terms of reference and how you've interpreted the 3 terms of reference and how you've conducted these 4 Inquiries against those terms of reference. 5 You went back to first content, so whereas 6 Beamish Murdock and a lot of people are prepared to step 7 over it, you didn't do that. And I'm going to suggest to 8 you, Mr. Commissioner, to the same way that Justice 9 Laskin in the cardinal decision when he attacked the 10 concept of the enclave theories for Indians, and the same 11 way as a Justice Dixon, Chief Justice Dixon codified -- 12 codified equitable fraud in the Guerin Decision, to the 13 same way that we've got in your beginning here. The only 14 thing is whether or not the politicians are going to be 15 able to take the baton that you pass them and move 16 forward. 17 We have seen many inquiries to date and 18 many reports have been shelved. We have seen decisions 19 coming out of the Supreme Court of Canada. We have seen 20 as I said, Justice Laskin, we've seen Chief Justice 21 Dixon, we've seen Chief Justice Lamer, we've now got 22 Chief Justice McLaughlin, all in one trend. 23 But somehow in spite of all of this, 24 they're decisions have not been followed. We pride 25 ourselves in being part of a constitutional democracy.
1571 But somehow it's almost like, leave the law to do its own 2 work and we will look after the rest. 3 We've got to get this thing integrated 4 because if you think in terms of just numbers, thinking 5 in terms of just numbers there's a very slim chance that 6 any member of Aazhoodena or their future generations, 7 based just on numbers, they're going to be elected Prime 8 Minister of this country. 9 A very, very slim chance. But that should 10 not deprive them of their rights to be able to pursue 11 their interests through the institutions established as 12 part of this country. The Courts must come to their 13 assistance. 14 And I don't know whether it's a failing of 15 lawyers in not being able to present sufficiently 16 persuasive arguments to the Courts or it's -- I don't 17 think coward -- cowardice and Judges go -- should go in 18 the same sentence, or is any reluctance on the part of 19 Judges to embrace the arguments. 20 But until such time as those arguments are 21 embraced, and justice is based on equity rather than just 22 principles of equality, we're going to have problems. 23 So we see that the problems had started, 24 because here we are, signing a treaty in 1827. Five (5) 25 years later we are looking at problems as far as the
1581 relationship is concerned, not to forget that the ideas 2 as espoused by Beamish Murdock have been reviewed against 3 commentaries and some others, was that the Aboriginal 4 people had no ownership of the land no more and as they 5 put it, of the wildcats and the caribou, okay? 6 Now, interestingly, in 1849, you've got 7 the symbolic petition which was going to Washington, 8 document -- Inquiry Document Number 4000490. 9 Now, I would suggest to you that this was 10 evidence that there were problems as far as the treaty 11 process was concerned. But there is no evidence that, on 12 the presentation of the petition, that the concerns, the 13 concerns of the petitioners were being taken seriously. 14 I would suggest to the contrary, that 15 there was a mood of trivialization and these are the 16 seeds which were sowed back then, that are -- that are 17 sprouting in these days. 18 Interestingly enough, following just the 19 development of the law, we find that there is another 20 important case which went to the Judicial Committee of 21 the Privy Council and that was in re. South Rhodesia, a 22 case which is referenced in paragraph 39 of our 23 submissions, in which indigenous interests were again 24 considered and there was recognition that there were 25 these indigenous interests.
1591 So as we fast -- fast forward, we come to 2 and I will not touch -- we come through to 1927 and in 3 1927, what have we got? 4 We've got one (1) of five (5) pieces of 5 land which was excluded from the treaty of 1827 and one 6 cannot help but recognize that when over 2.2 million 7 acres is surrendered and firstly is sort of surrendered 8 by way of treaty, there were five (5) areas which were 9 absolutely excluded. 10 I'm going to suggest, Mr. Commissioner, 11 that to the same extent that if these were the lands that 12 were part of an estate and that you needed all the 13 beneficiaries to sign off the interests first time 14 around, that as far as the remaining sections were 15 concerned, you could not pick beneficiaries who happened 16 to reside in those areas. 17 As part of the estate, you require all the 18 signatures, the same way that you required all eighteen 19 (18) chiefs to sign off on in excess of 2 million acres. 20 You cannot because you're dealing with smaller areas say, 21 Look, well, we're going to get the Kettle Point to sign 22 off on some and Sarnia to sign off on others and Walpole 23 Island. 24 That presents its own difficulties as far 25 as First Nations people are concerned.
1601 And again, if you consider just the 2 relative positions off the Aboriginal people, of the 3 Anishnaabek who were signatories added to the Treaty of 4 1827 and -- and their descendants, one hundred (100) 5 years later to the community at large, you'll recognize 6 that it did not work out to be a very good deal for the 7 Anishnaabek. But in spite of that, the Indian Agent was 8 instrumental in securing what was referred to as the 1927 9 surrender of a section of the Kettle Point lands. 10 With luck on his side, there was also a 11 surrender, or a purported surrender in 1928. And as far 12 as the '28 surrender is concerned, that is of particular 13 importance to us because it is from that surrender that 14 the front end of what was Stony Point IR-43, that part of 15 that became the Park. 16 Now, the thing is, Mr. Commissioner, that 17 when the Treaty was signed it was the Crown that was 18 being dealt with, not the Crown in one capacity or the 19 Crown in another capacity and one hiding behind the other 20 to avoid responsibility. It was the Crown. 21 So that when, in 1928, that surrender is 22 sought, you have to go back and look at the Indian Act 23 current at that time. There is a process -- a technical 24 process required for the surrender. But even after the 25 surrender has been signed and has been submitted, there
1611 is no compulsion. As a matter of fact, there is an 2 obligation on the Crown to determine whether or not that 3 surrender should be accepted. 4 And if the Crown concludes that it amounts 5 to an improvident surrender, it is duty bound not to 6 accept it. And that.s very important because when one 7 looks at the documentation related to the surrender of 8 1827 -- I.m sorry, the surrender of 1928, it becomes 9 very, very apparent that the few dollars that was paid 10 for that front section of land, 377 acres, was rolled 11 over just about -- very shortly thereafter for 12 substantial amounts of money. 13 And also to recognize that the thinking, 14 the public thinking at that time was that that front 15 section of the land was beachfront and was the most 16 valuable portion. As a matter of fact, the documents 17 suggest that they gave zero value to the rest of the 18 land. 19 All this to say to you that assuming for a 20 minute that the technical requirements of the surrender 21 meeting and the surrender were met, then it is incumbent 22 on the Crown not to accept that surrender. 23 And accepting that surrender, it tends to 24 taint the land. It taints the land. And I say that 25 because I.m going to go further and tell you that when
1621 one aspect of the Crown accepts an improper surrender and 2 another aspect of the Crown intends to take advantage of 3 that, it.s not fair. It.s not right. It.s not 4 honourable. And it should be reviewed. 5 By way of follow-up we.ve got the 6 situation now in 1935. And for the first time in Canada 7 there.s a real look at the Statute of Tenures. And what 8 provokes this is that in Alberta oil is found in large 9 quantities. And while the Government of Alberta and the 10 Government of Canada are fighting over royalties, it 11 comes back down to who owns the land. Tell me about the 12 land. 13 And then it goes from trial to appeal, to 14 Supreme Court of Canada, to the Judicial Committee of the 15 Privy Council. This is caught in -- in paragraph 45, at 16 page 46 of our submissions, where one of the Learned 17 Lords, by way of obiter, is taking a look at the Statute 18 of 1660 and saying, look, as far as they were concerned 19 it was not intended to apply anywhere outside Britain. 20 As a matter of fact they said not even to the Isle of 21 Mann. 22 And they went on further to say that it 23 was definitely not intended to apply to what they refer 24 to as a vast tract of land thousands of miles away. And 25 then they went on to say while it was inhabited by.
1631 So I'm saying to you that here on the one 2 hand you've got a two (2) row wampum identifying the 3 expectations of one (1) group, on the other hand you've 4 got a treaty. And with all of the interpretations there 5 is a question of how is it supposed to apply to the 6 question of title. So with all of that confusion we 7 continue and then there is this situation which developed 8 around the time of the taking of the lands pursuant to 9 the War Measures Act. 10 Now, what is very, very interesting about 11 that taking is that there was an effort to see whether or 12 not a surrender would be arranged, and that was rejected. 13 So the will of the people is understood, rejected. It's 14 rejected. All the lands are available. The other lands 15 that are not taken. The Indian Agent and the Department 16 of Indian Affairs in collusive conduct with the 17 Department of -- of Defence pretty well offers up these 18 lands. 19 Offers up these lands and they are taken 20 in spite of -- and there's two (2) -- two (2) documents 21 which I -- I think captured the entire spirit of what was 22 happening at that time. It was the Green Bird letter of 23 Inquiry Document Number 4000286 and the courier response 24 of May 4th, 1942, Inquiry Document Number 4000287. 25 Those two (2) documents seem to embrace
1641 the two (2) positions as far as the Indian lands are 2 concerned. And then further with the taking, one has got 3 to go and do the arithmetic on the amount of land that's 4 there. 5 It is started with twenty-five hundred and 6 sixty (2,560) acres, three hundred and seventy-seven 7 (377) were part of the -- the quote unquote "Surrender" 8 of 1928 and then that would have left twenty-two hundred 9 and seventy-three (2,273) acres of which the Order in 10 Council for the war -- giving permission under the War 11 Measures Act, spoke about twenty-two hundred and forty 12 (2,240) acres. 13 There's still thirty (30) acres -- there's 14 still thirty-three (33) acres that's unaccountable for 15 and, Mr. Commissioner, unless somebody's going to say, 16 well it didn't matter and I don't see how they can say 17 that, what bureaucratic bungling or just indifference to 18 what was happening at the time, resulted under British 19 Law concepts, in a tenancy-in-common. 20 And how can we then when we don't take all 21 the land and we don't actually identify what's taken and 22 what's left, how can anybody then say to any one of the 23 members of Aazhoodena, no, you shouldn't be on the lands. 24 A problem of their own making. 25 Then we continue, Commissioner, and it is
1651 to recognize that even when in 1981 Canada makes its 2 promises to return the land. And then determines that -- 3 that -- it was still necessary for military purposes. 4 One must recognize that the Order in 5 council was specific. It didn't say you must take it for 6 military purposes for whenever you want to. It was a 7 specific Order in Council. It was time specific in that 8 it was for the duration of the war and it was purpose 9 specific. 10 It was an advance -- the wording is found 11 in the -- in the Order of Council -- in Council. But 12 what I'm saying to you is that after the war was over, 13 the purpose for which that land was taken had expired and 14 the lands should have been cleaned up and returned. 15 And then what makes things more 16 interesting and a little worse, is that we have the 17 Guerin Decision -- sorry, we have the Charter of 1982 18 whereby whether or not -- whether or not things -- any 19 matters have been determined by the court, it is that any 20 and all un-extinguished rights, Aboriginal rights remain 21 now -- they're crystalized. 22 You cannot walk around that, they become 23 part of the -- of the premium law of the land. Then we 24 can see what happened as far as the Guerin Decision is 25 concerned in which the doctrine of -- the law on
1661 equitable fraud was made applicable to First Nations' 2 interest. 3 If one was to pause for a little while and 4 still could find, nowhere up to 1990, what is the 5 situation? Who are the politicians and what is their 6 thinking? 7 The general answer is we don't know except 8 for the fact that there's something happening out at Oka. 9 And with the Oka matter there's a leader of the Tory 10 Party who is quoted in the Toronto Star saying and is the 11 statement is that the Tory Leader, Mike Harris is quoted 12 as saying that: 13 "If premier, he would take time from 14 the election campaign to talk with 15 protesters and call high level 16 consultations between Government and 17 Native officials." 18 Now this is his view in 1990, when he's 19 not in power. And then we move forward and we come onto 20 1993 with the occupation of the range. The occupation of 21 the range was classified as being occupation of Federal 22 territory. 23 I invite you, Mr. Commissioner, I don't 24 have the document number or -- but there's a -- there's a 25 Indian Affairs policy paper entitled, Fiduciary
1671 Relationships of the Crown with Aboriginal People 2 Implementation and Management Issues, A Guide of 3 Managers, which is an exhibit that was put in by Mr. 4 Henderson. 5 Now, if one were to take that document and 6 have a look at it against the background of this file, 7 you see that even as far as their own Indian Affairs 8 policy paper is concerned, the officials are falling far 9 short of what their own standards -- not the standards 10 imposed on them, of their own design standards. 11 And unfortunately, in August of 1993, 12 there's what has been referred as the helicopter 13 incident. Now, with respect to the helicopter incident, 14 I would ask that one consider the claims of the police on 15 the one hand and the duties of the, quote/unquote, 16 "occupiers" on the other hand. 17 The occupiers, they have -- they've have 18 taken -- they're on the range. There is some suggestion 19 that a helicopter is in the area. There is further 20 suggestion that the helicopter has been shot at. And many 21 of the Aboriginal witnesses, many of the Aazhoodena 22 individuals who gave testimony were quizzed and almost 23 grilled on what did they do, there was a shooting of a 24 helicopter and what did they do, many of them said they 25 didn't know about it.
1681 But if -- what did they -- they do. And 2 the truth is that they were under no obligation to do 3 anything. And you must -- you must compare this with 4 what happened to Cecil Bernard George. 5 Here is Cecil Bernard George in reasonably 6 good health, taken into police custody on the night of 7 the 6th of September 1995. He winds up in the hospital 8 later, beaten almost to a pulp. He's in the hands of 9 police under a duty to make notes. 10 Until now, the best we can get is one 11 officer saying, yes, he struck at him. Somebody is 12 saying, Yes, I remember there was a baton in the air but 13 I don't know if it came down. 14 And I'm saying to you that we can't have a 15 double standard. We cannot have one standard imposed on 16 the Aazhoodena residents and another one on the police. 17 By July of 1995, other things are 18 happening, and they're happening not only in Ontario, but 19 they're happening, by and large, across the country. 20 And all of this is captured in the 21 Pitawanakwat Decision which is mentioned in our 22 submission and it deals with the Gustafson Lake 23 occupation. 24 And you will recall, Mr. Commissioner, 25 that for just about every one of the Aazhoodena residents
1691 who were called to give evidence, I made sure I asked 2 them whether or not this idea of taking or moving on, 3 whether or not they intended to take the land personally, 4 the answer at all times was no. 5 It was part of a political struggle. You 6 see, and that was my purpose then. I wanted, Mr. 7 Commissioner, that you have it very clear in your mind 8 that this was not a criminal conspiracy. 9 There was no collective will for criminal 10 activity. There was a collective will for a political 11 purpose and the political purpose was to move on and 12 occupy lands which they genuinely believed would be their 13 own or was their own, as accepted by the Judge in Sarnia 14 when he indicated to the Crown that this whole idea of 15 colour of right is going to be difficult for the Crown 16 and they withdrew charges, only to be picked up by 17 Justice Stewart who was dealing with the Pitawanakwat 18 Decision in -- in the United States. 19 He was one of the individuals who was a 20 part of the Gustafson Lake occupation. And aft -- he was 21 actually the last one out. 22 He was convicted on some -- on criminal 23 charges. He was sent to prison and he was let out on 24 parole and he skipped and went to the United States. 25 That is a very, very interesting read,
1701 that decision of the -- of the Judge in the United States 2 because you see it's read with a sense of distance from 3 what is happening in Canada. 4 Everybody here, we stay in Canada, we'd 5 like to believe that this is Canada the good where only 6 good things can happen. 7 In the United States they had a look. 8 They looked at what's happening between Canada and the 9 indigenous people and looked at a very jaundiced 10 standard. 11 As a matter of fact, even as far as the 12 comments on turning over Peltier to the United States 13 under the extradition warrant one can read between the 14 lines and recognize that if it was reversed, there's no 15 Peltier would have been brought -- no. 16 So what happens here is that Justice Judge 17 Stewart had an opportunity to distance herself from the 18 problems and take a look. And in that regard what I'm 19 saying here is that she had a much better objective 20 perspective than we can have, being subjected to what's 21 happening around us. 22 We then recognize that -- we are now 23 moving into the latter part of July -- the latter part of 24 July 1995. And the sentiments -- the sentiments of the 25 populous at large can be gleaned from two (2) things.
1711 Number one (1) is the evidence of the involvement of 2 Marcel Beaubien and his evidence, and also the evidence 3 of Fran Hannahson, and it was taken -- which was taken on 4 June the 19th and the 20th. 5 Now, her evidence is interesting because 6 she was the only one of the, quote/unquote, "community 7 members" to be called. And, you see, she spoke so very 8 well about her cottage down at the end of Army Camp Road. 9 There's no value that you could put on it. I mean, 10 whether the prices went up or down it didn't matter 11 because it never ever was for sale. 12 And I'm saying to you that that is the 13 same kind of emotional start that you have with First 14 Nation people and their land. That same emotional 15 attachment that she has demonstrated through her interest 16 was here, except with the Aboriginal people it goes a lot 17 deeper and a lot longer, but we can see that there's one 18 set of people looking at this land with one -- with one 19 set of views and on the other hand you've got the 20 Government officials, particularly the Government of 21 Canada, being very, very dismissive of the interest of 22 the First Nations. 23 And we then look at Exhibit P-421. And I 24 -- as I say, I'm just going to go up until around the 4th 25 of September. And on September the 1st they had this
1721 meeting in London, at London District Headquarters, with 2 this: 3 "When we approach Natives to leave we 4 always stay in their face. The more in 5 their face we are the less risk you 6 have. When people come in the Park we 7 will see them and we will arrest them." 8 I'm saying to you that on the 1st of 9 September there was already -- there was read -- already 10 a mindset of how things must happen, because the OPP knew 11 that the Park was going to be occupied and it is almost 12 as though it was a trap being set. We will wait. We 13 will let them occupy. And here is how we will pounce. 14 Now, of course, this might be police 15 parlance and police parlance might mean something very 16 different, laughably as it may sound, but I will suggest 17 to you that as far as the occupants are concerned, they 18 were of the view, reading this information later, that 19 all of this would have been -- could have been avoided 20 had the police really shown their hand rather than allow 21 a trap situation to develop which takes me to just a few 22 more points that I want to address to Commissioner. 23 One of them is that you've been asked to 24 deal with the land and with that, Mr. Commissioner, I am 25 going to ask you to exercise a level of caution and take
1731 a second look at the report of Justice Robert Reid, 2 Inquiry Document Number 2005300, where over on pages 3 3 and 4 he speaks about the Band's concerns with respect to 4 the land and he goes over and he speaks about the 5 position of the Stoney Point -- this creates a dilemma. 6 The dilemma would be resolved if Council 7 could create a negotiating committee which truly 8 represents the whole community, including Mr. McNair's 9 clients. Those are the members of Aazhoodena. If they 10 accept representation on such a team, they would have no 11 reason to demand a separate negotiation with them or 12 separate representation at the negotiating table. 13 So all of these things -- I am suggesting 14 to you, Mr. Commissioner, that there's a lot here that 15 you've got to work with that can have a desired end 16 result without really, quote/unquote, "going out on a 17 limb" - not for a minute to suggest that you'd be afraid 18 to. But I'm saying it would not be necessary. 19 Then, Mr. Commissioner, before I turn over 20 to Mr. Scullion, it is necessary that I address one (1) 21 or two (2) portions of submissions. 22 Here, I refer to the submission on behalf 23 of the Premier. And the last paragraph is made up of 24 three (3) sentences. The first sentence is: 25 "As stated at the outset of these
1741 submissions, the real question arising 2 from Ipperwash is how Government 3 restore and maintain the rule of law 4 and civil order, where it is 5 disregarded by persons who have 6 experienced historical injustice." 7 Now here we're going to stop for a minute. 8 This is not a situation of people who have experienced 9 historical injustice. These are people whose rights, 10 whose Treaty rights, whose Treaty rights which are 11 enshrined are just absolutely brutally being stamped 12 upon, not merely ignored. 13 So to put them in the category of a quote 14 unquote "Minority group experiencing historical 15 injustice" is to trivialize it is the kind of language 16 that was used by Judge Stewart in the Pitawanakwat 17 decision on page 6, paragraph 9 where she said, look 18 merely to see this as a -- a land issue is to trivialize 19 the situation and this is what is happening here. 20 That's total trivialization. But then he 21 redeems himself partially, by saying, we said that the 22 real lesson of Ipperwash is that we find a way to ensure 23 that the rule of law and civil law is recognized as just 24 by all people of all ancestries and opinions. 25 Now that is an admirable -- that -- that
1751 is an admirable goal. It dovetails with what we are 2 saying. That we've got to -- we've got to -- our people 3 have got to feel as though they're a part of this system. 4 We do not want a situation where if 5 there's a First Nation problem, you run out and try to 6 find a couple of First Nation police officers. We can't 7 take it to its limit. Then we have what? Judges 8 policing judges, dogcatchers policing dog -- it just 9 doesn't work. 10 We want one system, a system that works 11 properly for everybody. A police system that respects 12 everybody. A police system that does not want to take 13 sides. A police system that is sufficiently confident in 14 itself that when a situation develops as we have seen 15 here with Ipperwash, that they're not running around 16 trying to find themself a Vince George or somebody else 17 because Indians are involved. 18 Police officers are police officers and 19 they're got to behave as police officers. 20 Mr. Rosenthal, your wasp is back. 21 It says here there is no house without a 22 foundation. I really don't know what that means but I'm 23 prepared to buy into it and give him my idea that for our 24 view the foundation is the two row wampum. That's what 25 it is and over history there's not one (1) situation in
1761 which any Indian Band, any Aboriginal Band has ever gone 2 to the court and said, no, we want to walk away from what 3 we said as far as the Wampum belt is concerned. 4 The word was given, the belt was knitted, 5 they stay with it and they still want what it stands for. 6 They do not want spin on the Treaty document by those who 7 wrote the words. 8 Again, with respect to submissions on 9 behalf of the Premier, I find it interesting and perhaps 10 saddening that somehow without there being any direct 11 linkage between the police and senior politicians, they 12 all wound up at the same mind set. 13 If that is the mind set of the Province of 14 Ontario toward First Nations, it is a very terrible mind 15 set. And I don't think it is. And then that leaves the 16 question, how can the police officers come here and in 17 good faith say there was no communication and at the same 18 time the Government officials come here and in good faith 19 said there was no communication, is almost like saying, I 20 throw a hammer in the air and it didn't drop. It doesn't 21 make sense. Okay? I'm not -- I am not attributing to 22 one or the other. But I'm saying that what they said 23 does not make sense. 24 I then from necessity must address one or 25 two -- the recommendation portion of the submission on
1771 behalf of Marcel Beaubien. 2 Here at paragraph number 143, he says: 3 "While there may really be similar 4 circumstances, being the occupation of 5 a Provincial Park by a group of natives 6 who are not authorized or endorsed by 7 an elected Band Council, the recent 8 First Nation blockade of the public 9 highway and occupation of the 10 residential housing development near 11 Caledonia, Ontario can fairly be 12 described as similar circumstances and 13 it is submitted in making a 14 recommendation on the Part II of the 15 mandate, the Commissioner should take 16 judicial notice of that event. 17 Well, I'm not going to argue with either 18 judicial or other notice, but I think it's sufficiently 19 notorious that one can say it's helpful to look at it. 20 And while we are looking at it, I do not 21 know how it can be classified that these circumstances 22 are real circumstances. 23 We've seen Ipperwash; we've seen Gustafsen 24 Lake; we've seen Oka; we've seen Serpent Mounds and all 25 of them have got the common thread that it is First
1781 Nation people rising up in their own land trying to 2 change their own circumstances. 3 And I will suggest, Mr. Commissioner, that 4 we're going to see a lot more than less, unless 5 Government recognizes that the day is long gone when 6 First Nations people are just going to sit by and take 7 whatever is handed down to them. 8 What they've got now is a team, there's a 9 lot of them in law school. There are a lot of them in 10 the police. There are a lot of them doing all kinds of 11 things that they did not have access to before. 12 When you stay and you recognize that up 13 until 1951, if one of these groups wanted to go and 14 retain legal services it was a no, unless approved by the 15 Superintendent General. 16 That while I'm talking to you here right 17 now, if somebody from Manitoba goes and exchange a bag of 18 corn for a bag of wheat with somebody in Saskatchewan, 19 they have violated the Indian Act. 20 Of course, there is nobody is going to 21 enforce it, because it's a shame to have it on the books 22 still. And these are some of the things that we need to 23 look at. 24 We need to stop and we need to recognize 25 that we need a renewal, a renewal of the covenant
1791 relationship between First Nations and Canada for the 2 benefit of all. 3 It's not going to hurt Canada. Canada is 4 a big country, it's a rich country, and it's not going to 5 hurt for everybody to come and have a clearer and better 6 understanding. 7 And even more, what's more important is 8 that if Canada takes the position that there is no such 9 thing as First Nations rights, then they should try to 10 make it very clear to First Nations so that they can 11 either fight it or live with it. But this idea of 12 keeping it in a grey area is not useful. 13 In paragraph 144 he speaks about the 14 circumstances in Caledonia arising out of frustration by 15 certain members of Band over longstanding land issues. 16 "The actions of persons occupying the 17 public highway and private lands were 18 not authorized or endorsed by the local 19 Band Council." 20 Now, why does the local Band Council have 21 to authorize? I mean, this is a free country. People 22 are free to do a lot of things. 23 I mean, you know, does it mean that every 24 lawyer must go ahead and only do what is prescribed by 25 the Law Society of Upper Canada?
1801 They just can't do that. They've got 2 freedoms to operate so long as they don't violate certain 3 things. And these are these peoples freedoms. 4 If that is their -- they want to go ahead 5 and demonstrate their freedom, go ahead and do it. If 6 they got colour of right on their side, they will 7 survive. 8 In paragraph 146, he said: 9 "The OPP has employed a greater -- a 10 great number of officers in Caledonia 11 just as they did at Ipperwash, albeit a 12 much larger number of officers are 13 being used in Caledonia." 14 Again, similar circumstances. I don't 15 know how he could say similar circumstances, when the 16 officers are down there with all this -- without all of 17 this hard TAC or whatever protective equipment and guns 18 and ready to -- and ready to create havoc. 19 The situation is -- is a much improved 20 situation by employing more people rather than weaponry. 21 Again they speak about: 22 "Injunctions were obtained in both 23 circumstances." 24 And again, here is where I think there's a 25 difficulty. As far as the injunctions are concerned, I'm
1811 very happy that -- of the understanding that the Court of 2 Appeal has appointed legal Counsel to represent the 3 interests of the people at Caledonia and I believe that 4 had this been done around the time of the attempts to 5 force that injunction through back in 1995, it would not 6 have worked. 7 You take an independent court and have 8 somebody come up here and say, Look, there are situations 9 here of colour of right, it would have become a triable 10 issue and some reasonable thing might have been worked 11 out for the interim, but I've got my doubts whether or 12 not it would have been a quote/unquote "slam-dunk" 13 injunction. 14 15 (BRIEF PAUSE) 16 17 MR. ANTHONY ROSS: Paragraph 151 I found 18 particularly interesting. It reads: 19 "The obvious first and foremost 20 recommendation to avoid violence in 21 similar situations is for all involved 22 to respect the law, whether it be the 23 law of trespass, of criminal law 24 relating to mischief, destruction of 25 property, threatening, assault, or
1821 civil law with respect to these 2 injunctions." 3 I think he forgot to say that we're going 4 to also bring back the divine right of kings. Because 5 it's only during -- up until the end of the Tudor period, 6 when there was the divine right of kings, that there 7 could be such arrogance as far as other people's rights 8 are concerned. 9 Following this paragraph 151, India would 10 still be a colony, Mandela would still be in jail. And 11 whether or not one aspect of society would like it or 12 not, it's unjust. 13 He goes on to say: 14 "In order to avoid violence the recipe 15 is simple, follow the proper -- proper 16 statutory process, respect the Code 17 process, do not use self-help, and do 18 not take the law into your hands." 19 Commissioner, the only words that I have 20 for that kind of suggestion is that it's trite and it's 21 simplistic, with no real understanding of what the 22 problems are. It is fed by a system which is privileged 23 without understanding burdens. 24 It then goes on, at paragraph 157, and 25 this is not to suggest for a minute that I accept the
1831 other paragraphs. As a matter of fact, I can deal with 2 just about every one but I think that time will not 3 permit. It says here, in paragraph 51: 4 "If there is a land claim properly 5 filed which claims the provincial Park 6 lands, then that should proceed on a 7 separate track in accordance with the 8 laws of Canada. If the claim results 9 in the Natives having the land turned 10 over to them, then the determination 11 will be made within the rule of law and 12 not as a result of self-help. Should 13 the claimants be successful, then they 14 can determine how they wish to use the 15 land at the point and the option -- and 16 the option to operate a Park such as 17 Serpent Mounds would be available 18 there." 19 Here again it is that attitude of 20 directing First Nations again on what they can do, as 21 though we walk around with this bottle of very, very good 22 medicine and we begrudgingly give them a half teaspoon 23 for every time if they're prepared to go along with what 24 we want. 25 Those days are passed, Commissioner.
1841 They're not going to happen. And I say this to you 2 because you recall that throughout this entire process I 3 did not emphasize what happened on the 5th or the 6th of 4 September. I looked at the big picture. I said that the 5 circumstances -- what were the circumstances. And that's 6 what I'm drilling on still. I'm saying that a lot -- a 7 lot of opportunities were missed. These result in a set 8 of circumstances which, left on their own accord, could 9 only result in the difficulties similar to what we saw in 10 -- in September of 1995. And the -- when I say similar I 11 mean from the perspective of the occupation. 12 As far as the policing is concerned, I 13 trust that Kevin will deal with it, but I think there is 14 this -- this whole question of police and policing 15 attitude. 16 The bottom line is that as at September, 17 early September 1995, the interest from the date of 18 treaty to then had translated. Around the time of treaty 19 there were just these two (2) groups, on the one hand a 20 number of chiefs, on the other hand the representatives 21 of the Crown. They documented the best way they could, 22 not the only way but the best way they could, in 23 different ways, their understandings of what actually 24 happened. 25 But by 1995 you had a Federal Government
1851 interest which was -- which is seen by the Aazhoodena 2 people as put them on hold, keep the problem in the 3 region, we've got enough problems in Ottawa. 4 And there's a Provincial Government 5 interest, there's a Municipal Government interest, and 6 there's and Anishnaabek interest. And mixed in with all 7 there's a policing factor. 8 Now, Mr. Commissioner, I don't know that 9 we want to rub salt in any of the wounds. So what I'm 10 hoping is that there's enough material before you that 11 you will be able to find some way to paint the Province 12 in such a way that it does not appear that the Province 13 was a group that was prepared to do nothing to prevent 14 the persistent abuse of the Anishnaabek and rather, that 15 there will be prepared to benefit from the situation of 16 abuse and division. 17 Whether or not that is so hardly matters 18 now. What we've got to do is determine how do we get to 19 some place that gives us a chance, gives us a promise for 20 the future rather than how do we consolidate in any one 21 of the many interests and say, we were right. 22 Nobody is right. Nobody is right. But 23 everybody could be part of the -- of the big picture and 24 of the major good. As far as the Province is concerned - 25 - as far as the Municipality is concerned, we do not want
1861 the municipality to be the good or not so good Samaritan. 2 We don't want them to have the attitude 3 that they, whoever they are, are good neighbours so long 4 as they stay on the Reserves. We want a more inclusive 5 environment. And the thing is that if we start with the 6 truth of what happened here, we can only go forward. 7 And then as far as the Band Council is 8 concerned, the Band Council unfortunately is caught in 9 the jam where it is totally funded by Canada along 10 Canada's rules and along Canada's regulations so that 11 even if the leaders don't like what is -- certain things 12 that are happening, they are almost bound to do it 13 because this is their only access to funding and short 14 term power. 15 Now this is a problem and in that regard 16 that's part of the reason why you've got this split off 17 between the Band Council and Aazhoodena. 18 And then last of all here, our good 19 friends the police, caught in a bad jam. Required to 20 step in and rather than the Government get -- get it 21 together, the police are thrown in the breach. 22 The police is the first line when anything 23 goes wrong. We don't like their authority when it's 24 directed at us but we seek the power of their authority 25 whenever we want to invoke it against others. That's a
1871 hard fact. 2 But in spite of the fact that they bound 3 themselves in a hard situation where they were asked to 4 provide the police solution to a political problem, I do 5 not know that they can hold their head high because as we 6 look and -- and -- sorry, I don't want to paint the 7 entire OPP, I say those who gave evidence here, obviously 8 fall into two (2) categories. 9 Those caught on tape and prepared to seek 10 redemption and those who were not caught on tape and 11 remain inflexible. 12 Mr. Commissioner, I thank you for allowing 13 me this opportunity and I take this opportunity to also 14 commend you on a very thorough Inquiry. And I cannot 15 help but remember that in March, two (2) years ago when I 16 was asked to become involved while keeping the client 17 group on hold, I decided to pay you a visit and I met 18 with you and I met with Ms. Vella and I met with Ms. 19 Henson and with Moss and my question was, is this going 20 to be a bit of a show or is it going to be a real 21 inquiry. 22 I was satisfied then it was going to be a 23 real inquiry. Based on that, I accepted the retainer and 24 Mr. Commissioner, I don't regret it. I think that you 25 did not only open Pandora's box, but you threw away the
1881 lid. I thank you. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much, Mr. Ross. 4 I understand Mr. Scullion you're going to 5 use the balance of the Aazhoodena time? 6 Mr. Scullion...? 7 MR. KEVIN SCULLION: Mr. Commissioner, 8 good afternoon. 9 COMMISSIONER SIDNEY LINDEN: Good 10 afternoon. 11 MR. KEVIN SCULLION: That is the plan. I 12 am to take up the remaining time, but not all of the time 13 unless I need to. 14 So, I may be shorter than the two (2) 15 hours allotted, I may not. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. KEVIN SCULLION: And I must just take 18 this one opportunity to indicate that Mr. Neil is also 19 with us, but we are good enough to allow him to take some 20 vacation, so he's not going to be making submissions to 21 you today, having just returned last night. 22 He may have been called upon to do the 23 sixty (60) hours that Mr. Ross referred to. That's going 24 to be an area that I'm not going to go through. 25 I may touch upon it in terms of
1891 suggestions on how we go forward and some reflections 2 back to submissions made by other parties, but as you've 3 seen throughout the two (2) years, two (2) years plus of 4 our Inquiry, our approach has been somewhat different and 5 what we've tried to show is that Ipperwash is not an 6 isolated incident. 7 It's part of a number of incidents that 8 occurred back in 1995, that followed upon Oka in 1990. 9 There's other incidents as recent as Caledonia. 10 There is more to the picture than simply 11 addressing the issues at Ipperwash and something that I 12 appreciate and we appreciate, the Commission has 13 recognized by going as Mr. Ross referred to, back to 14 first contact. 15 Now, it was my task to look at where we go 16 from here, following September -- say September the 7th, 17 our sixty (60) hours that we referred to in our 18 submissions takes us from mid-afternoon September 4th to 19 about mid-morning September the 7th. 20 And I think I can safely say that you have 21 thousands of paper or doc -- or papers, pages of 22 documents that relate to that period. 23 And I would suggest that if My Friends 24 before us have dealt with many of those issues and we 25 don't intend to give our clients' spin on each and every
1901 incident that occurred along the way, other that to 2 accept the fact that we were involved in cross- 3 examination and we made most of our points along the way 4 with the police officers who testified about what 5 occurred during that time period. 6 Now, when I look at the question of where 7 we go from here, I have to recognize that your job from 8 this point forward in making recommendations -- is very 9 difficult because we're not in 1995, we're not in 1996. 10 Last time I checked, we're in 2006. We have eleven (11) 11 years' worth of history to review, to see what changes 12 have been made by the OPP and the Government; what 13 changes, if any, to the situation have occurred. 14 Of course, there's reference in the 15 submissions to a number of other incidents that have 16 occurred along the way and we've tried to highlight those 17 in our submissions. 18 But I think that you're faced with a task 19 of trying to determine recommendations flowing from 1995 20 that have been, in part, addressed by parties up to 21 today's date and I would note that the OPP, and we heard 22 significant evidence on what changes have been 23 implemented by Commissioner Boniface when she testified, 24 but I'd suggest to you that in her cross-examination by 25 various parties, there was still suggestions that there's
1911 more work to do. 2 So, while we accept that the OPP has 3 looked at the situation, have recognized difficulties 4 with how they approached the situation, and taken steps 5 to address that, there's still more to be done. 6 Mr. Ross looked at the history and our 7 first forty-five (45) or forty-six (46) pages of our 8 first submission deal with the history leading up to 9 this. And again, it's because we don't see it as an 10 isolated incident, we see it as part and parcel with the 11 treatment of First Nations, of Aboriginals by the 12 Government following first contact. 13 And the treaties are a part of it, the 14 Royal Proclamation is part of it and we address all of 15 that throughout, along with case law that has begun to 16 develop. 17 Mr. Ross alluded to a number of cases but 18 there's obviously more to come. It's a description and 19 an understanding of the rights that First Nations 20 individuals have and the cases continue to -- or the 21 situations continue to evolve and the rights continue to 22 be recognized, appreciated and enforced. 23 I think I can safely say that in 1995 and 24 through to today, there's a bit of a mess. There's an 25 occupation, there's a rift you've heard lots about
1921 between the residents of Aazhoodena, the First Nation and 2 that's something that we're not looking to you to solve. 3 We can't. You can't solve that and we're not looking to 4 you to do that. That's something internal and it's 5 something that when left to the people they will resolve 6 it. It's not going to take a week or a month, it's going 7 to take years, and it will be resolved. That's an issue 8 that, while it has to be recognized, it's not something 9 that we're looking to you to resolve, and we haven't made 10 recommendations in that regard. 11 What we tried to do in our recommendations 12 is recognize the fact that one (1) year, in around about 13 a year after this, the Royal Commission on Aboriginal 14 Peoples came out with a four thousand (4,000) page -- 15 well, the result of five (5) years of inquiry and 16 testimony and submissions, and came out with a four 17 thousand (4,000) page document that included over four 18 hundred and forty (440) recommendations as to how there 19 needs to be a fundamental shift in thinking. 20 And that I'd suggest has been our theme, 21 hopefully it's been fairly obvious, but, our theme 22 throughout this Inquiry has been, 1), accountability for 23 what happened September 4th through the 6th and, number 24 2), a fundamental change in thinking is necessary in 25 order to address the circumstances that underlie the
1931 blockades, the occupations and the protests that occur 2 because they all come from the same root, and that's the 3 treatment by the Government. 4 Now, Ms. Esmonde referred to a -- a number 5 of points about that exact recommendation, a change of 6 thinking and I'd suggest that it is helpful to go back to 7 comments made by the Royal Proclamation -- or, sorry, the 8 Royal Commission. And if I can quote from the very -- 9 very beginning of the Royal Commission: 10 "Looking forward, looking back.' 11 I quote: 12 "After some five hundred (500) years of 13 a relationship that has swung from 14 partnership to domination, from mutual 15 respect and cooperation to paternalism 16 and attempted assimilation, Canada must 17 now work out fair and lasting terms for 18 the coexistence with Aboriginal 19 people." 20 And it goes on. It says: 21 "A careful reading of history shows 22 that Canada was founded on a series of 23 bargains with Aboriginal peoples, 24 bargains this country has never fully 25 honoured. Treaties between Aboriginal
1941 and non-Aboriginal governments were 2 agreements to share the land and they 3 were placed by policies intended to 4 remove Aboriginal people from their 5 homelands, suppress Aboriginal nations 6 and their governments, undermine 7 Aboriginal cultures and stifle 8 Aboriginal identity." 9 We've seen that with the residential 10 schools. We've seen that with all of the examples that 11 have been raised by the parties throughout. It's a 12 process that has -- that Canada has undertaken, and 13 before that the British Government, from the time of 14 first contact. 15 While treaties were signed and the 16 proclamation was given, it's a far cry from the actions 17 that followed. And that recognition, that fundamental 18 recognition of the underlying problem is what is 19 necessary if this is going to change. 20 Now, I -- I bring that up because the 21 Royal Commission, of course, came down the year after. 22 And I'd suggest it's unnecessary for us to try to 23 reinvent the wheel. They have recommendations throughout 24 that are applicable to this Inquiry and we've referenced 25 that in our submissions.
1951 And I'd suggest that it's as important now 2 as it was ten (10) years ago to take a look at the 3 recommendations made. It's not a blueprint for effecting 4 change, it's a discussion piece, it's a research paper, 5 it's a way of evoking discussion and trying to get a 6 change in the fundamental thinking, a recognition of 7 what's going on. 8 And it bears repeating that Canada wasn't 9 built on conquest, it's built on treaties, it's built on 10 cooperation. Mr. Ross walked through the two (2) row 11 wampum. You may recall that I asked a number of 12 witnesses, What does the two (2) row wampum mean to you. 13 Unfortunately, many of the witnesses had no idea what two 14 (2) row wampum meant, what it signified, what it meant, 15 how it could possibly relate to Native issues. 16 And that's unfortunate. It's unfortunate 17 that those are Government witnesses, they are individuals 18 employed by the Government. It's unfortunate that it's a 19 -- it's a way of thinking that isn't adapted by our 20 Government. And again it comes back to our primary 21 theme, which is that a change in fundamental thinking is 22 necessary. 23 Ipperwash is an example. It's an example 24 of what can happen when First Nation or residents of a 25 First Nation feel that their concerns have not at all
1961 been addressed, that their treatment at the hands of the 2 Government has gone a certain way and they protest out of 3 frustration. 4 We've put that on the table from the 5 beginning. It was a political protest. It was a problem 6 experienced over centuries. Certainly the Army Camp was 7 an obvious example and I don't think anybody here 8 questions other than perhaps Chief and Counsel and the 9 Federal negotiators, questioned the movement back onto 10 the Army Camp lands. It seemed understandable. 11 The problem comes up with the movement 12 into the Provincial Park lands and that's what I suggest 13 to you that it's all part and parcel. It comes from the 14 same underlying core. 15 And the process of changing the way of 16 thinking, I suggest to you is remark -- remarkably 17 similar to the suggestions that Mr. Ross has referred and 18 that Mr. Downard put in his submissions on behalf of Mr. 19 Harris, that you need the foundation. 20 You need a foundation that people 21 understand. You need a foundation that people trust. 22 You need a rule of law that's understandable and trusted 23 by all to be appropriate to all. 24 There isn't a need for separate policing 25 of First Nations communities on its face. There isn't a
1971 need for having First Nations police officers only deal 2 with First Nation issues. 3 If we have a rule of law that makes sense, 4 that's understandable that is trusted by all involved as 5 representing -- a representative of all views, then we 6 have a different situation. That's not what we had here 7 and that's part of the political protest that occurred. 8 I could go on and on from the Royal 9 Commission. There are statements in there that review 10 the history. There's statements in there that reviews 11 ways of dealing with it; criticisms of the Federal 12 Government; criticisms of governments in genera. 13 The Royal Commission came out in 1996, the 14 Federal Government took a couple of years to take a look 15 at it. They finally came down with something in 1998 16 that was marginal at best. It hasn't addressed the 17 primary recommendations put in here. 18 But we have to recognize that in eleven 19 (11) years other changes have occurred. We have more 20 court decisions, we have a movement by the Federal 21 Government, we have a residential school settlement, a 22 recognition that there's problems. It's moving in that 23 direction. We have to recognize that it's moving in that 24 direction and as Mr. Ross indicated, we have to find a 25 solution that everybody's involved in.
1981 But again it comes back down to what we 2 say is the fundamental problem which is a shift of 3 thinking; an appreciation that the First Nations of this 4 country are the original inhabitants; that they need to 5 be recognized as self-governing nations; that they have 6 special rights, they're recognized by the courts, they're 7 recognized by the Charter, and it seems to be going that 8 way. 9 So in our submissions, we've -- we've 10 focussed as I say, the first half of our submissions was 11 focussed on history. We then focussed to an extent on 12 the sixty (60) hours to repeat our view of what was 13 important in the circumstances and how certain 14 accountability should come from the actions of certain 15 parts -- certain parties to this Commission. 16 One of the criticisms that we levelled in 17 the first submission that we made, was against the 18 police. The OPP brass in terms of the approach taken. 19 And we recognized that it was an option available to them 20 to use this Project Maple and what we've dissected into a 21 prevention of the occupation and then a cohabitation. 22 We've indicated in our submissions that we 23 saw that as a use of force and inconsistent with previous 24 methods of dealing with situations. And we also 25 highlighted that in our cross-examinations with respect
1991 to Serpent Mounds, Cape Croker, other incidents in or 2 about the same time period that seemed to have been 3 addressed differently and peacefully and without injury 4 and without the loss of life. 5 And it is our submission that we need to 6 learn from these things and we need to have processes and 7 as we suggested to various police witnesses, we need a -- 8 a type of review that brings all that together that says 9 this worked here, it didn't work there. And I think that 10 that has occurred to an extent. 11 We now have what the OPP refers to as a 12 nuanced approach. And the acceptability of the new OPP 13 approach I would suggest, since I'm entitled to do it, 14 being -- submitting today and the OPP appearing tomorrow, 15 is going to come on for discussion before the Court of 16 Appeal tomorrow. 17 They're going to have to justify their new 18 approach and I suggest to you that the Court of Appeal is 19 going to view it as not only acceptable but the better 20 way to do it. A much better way to do it. 21 Peaceful, see what happens, maintain the 22 peace. I see Mr. Commissioner grinning at Mr. Sandler 23 and I appreciate he's going to be making those 24 submissions tomorrow. 25 But I suggest to you that the new approach
2001 that's being employed while not perfect, it's not 2 perfect, but it's getting there. It's getting there. 3 We have Caledonia and we have it on public 4 display. We're seeing it in action. We have our own 5 criticisms of various aspects of Caledonia. 6 But it's a new approach and it's an 7 approach, I would suggest, far better than this Project 8 Maple and we've put those submissions in print. 9 They are, as you've indicated, you've had 10 a chance to review them. 11 That was our basic criticism of the 12 approach by the OPP that it wasn't an occupation or a 13 protest allowed to simply exist. 14 It was one that they interacted with; that 15 they were in the face of the people and as opposed to the 16 goal, which was to reduce tensions, I suggest that it 17 raised tensions. 18 And My Friends before have gone into 19 detail and sort of response and counter-response on 20 September the 6th where certain things happened on the 21 police side and the reaction on the First Nations side 22 and then further reaction from the police and further 23 reaction from First Nation escalated a situation. 24 It escalated to the point that we are now 25 examining in detail.
2011 And again, I come back to our theme of 2 accountability. While I appreciate that there is a 3 movement by the OPP to change the process, recognizing 4 that there's difficulties that occurred, accountability I 5 would still suggest is -- falls somewhat short. 6 And Mr. Rosenthal went into detail with 7 respect to evidence given by Mr. -- Inspector, at the 8 time, Carson, Deputy Commissioner Carson now, that fails 9 to be accountable, in my submission, for the choice that 10 was made. 11 A choice was clearly made. He had options 12 available. The way to deal with it is to accept 13 responsibility for the choice, explain the options and 14 appreciate that there were better ways to do it. 15 I don't think he went that far and I think 16 that Mr. Rosenthal was very candid and very clear on 17 approaching that. 18 And that's the accountability aspect and 19 that takes me, because we're not altogether without 20 criticism in our submissions. 21 As you may see from our reply submission, 22 we received the submission from the OPPA and we had 23 concerns about the submissions of the OPPA and their 24 failure, in our view, to account for their actions that 25 occurred.
2021 So I'd suggest to you that accountability 2 -- accountability is not simply for what was done but 3 it's for what was not done and it's accountability for 4 what could have been done. 5 And it's an acceptance that there were 6 choices made and the choices led to a certain series of 7 events with the unfortunate consequences of the death of 8 Dudley George, injuries to our client, Cecil Bernard 9 George, and a situation that remains chaotic, not because 10 of the police action but the police action was part of 11 the situation. 12 I use the term SNAFU without going through 13 exactly what the letters in SNAFU means, I take it we can 14 take judicial notice that it's a chaotic situation. 15 It's a question of situation normal gone 16 wrong. But when did it go wrong? I suggest to you that 17 most of the submissions from the parties take September 18 4th as the time period where things went wrong. 19 What was the situation normal is now 20 something that needs to be dealt with and dealt with 21 quickly. 22 And I suggest to you from the viewpoint of 23 our clients and other First Nation parties that have been 24 before you that to view September 4th as the beginning of 25 a situation normal going wrong is to miss the point.
2031 It starts a whole lot sooner than that and 2 it doesn't start in 1942, it doesn't start in '28, it 3 doesn't start in 1827. It starts well beyond that, and 4 again it comes back to our other theme which is 5 fundamental change in thinking. 6 But to take you back to our criticisms of 7 the OPPA, they have standing in both Parts 1 and 2. They 8 have standing to make recommendations on how to avoid 9 violence in the future. I haven't seen any of those 10 recommendations. Perhaps they're still to come. They 11 have two (2) hours coming up on Wednesday. Perhaps we 12 have still to see them. 13 But what I don't see from the OPPA is 14 accountability. I see various members of the OPPA that 15 are caught on tape apologizing for what they said on 16 tape. They didn't apologize back in 1995. They didn't 17 apologize to their friends in '96 or '97, '98. It's only 18 when they're caught on tape and it comes to light in 19 2003, when the tapes are reviewed and somebody says, Hold 20 on, you said that back in '95, and they say, Well I 21 didn't know that but I shouldn't have. 22 I suggest to you that waiting that period 23 of time to address a situation that, as Mark Wright 24 candidly admitted in his cross, was a situation that 25 existed at the time. The words that he used -- I don't
2041 know -- I don't know how many times it was, twenty (20), 2 twenty-five (25), thirty (30) times, he used certain 3 words that everybody focussed on and said, What is this 4 all about, What are you doing. And he says, Well that's 5 just the way we talked, Shouldn't talk like that anymore. 6 And I appreciate that I'm sure he doesn't talk like that 7 anymore. He gave very different evidence here but the 8 fact is the tapes came out and that wording was used. 9 I look to the OPPA submissions to say, How 10 did they deal with that, How did they deal with the 11 wording that everybody around says is not right. And how 12 did they deal with it? They dealt with it as saying, 13 Well it was inappropriate and the people apologize for 14 making it. But it's not accepting that that was the 15 situation. It's not accountable. It's justification. 16 Justification is not accountability. 17 Explaining why you think something should be or shouldn't 18 be the way back in '95 is not taking account of what was 19 not, it's not taking responsibility for what was done. 20 And we repeatedly refer to the concept of healing -- of 21 healing, of bringing together. 22 And our -- our clients are -- we candidly 23 admit, they need to deal with the OPPA members in years 24 to come, after this Inquiry leaves, after everybody packs 25 up and goes elsewhere, our clients are left here, as is
2051 the First Nation, as are the OPPA members. 2 We need to figure out a way that we can 3 all be in the same place at the same time, if it comes to 4 that, and can deal with each other. And as Mr. Ross 5 indicated, you don't need First Nation police officers in 6 order to do that, you need a change of thinking, you need 7 a fundamental shift. 8 And that was proposed by the Royal 9 Commission, it was looked at by the Federal Government, 10 but I'd suggest to you that the Provincial Governments 11 for the most part saw that as a Federal Court, a Federal 12 responsibility. And something -- a good reason why we 13 say it should form part of this Inquiry because the 14 Provinces watching this very closely. They obviously are 15 interested in the Commissioner's recommendations. And 16 something that reflects a report issued ten (10) years 17 ago that was neglected, for whatever reason, it comes 18 back up and shows that it's still an issue. 19 There's two (2) other issues with regards 20 to the OPPA that I need to touch upon, and that's the 21 memorabilia. The memorabilia is dealt with by the OPPA 22 in their original submissions, page 269. And they have a 23 line at paragraph 1005 that says: 24 "In the June 5, 2006 ruling, 25 Commissioner Linden expressed the
2061 creation that any memorabilia arising 2 from an incident where someone has died 3 is inappropriate." 4 It's hardly something that needs a ruling. 5 It's common sense. It's something that you look at and 6 you say, It's inappropriate. It wasn't all that 7 difficult for all the parties to agree, it's 8 inappropriate. Every witness that got up here said, 9 looking at it, yeah, that's right, it's inappropriate. 10 But they say at the time that they did it, 11 and regardless if we believe them or not, they just say, 12 At the time that we did it, it didn't seem inappropriate 13 to us. And I would suggest that that goes back to the 14 fundamental themes once again. 15 Fundamental shift in thinking is 16 necessary. You have to appreciate that something of that 17 nature is discriminatory. It's how it's seen by those 18 that are affected by it. And the First Nations 19 communities were unanimous in their view that it was 20 offensive. And we've put in our reply submissions 21 certain quotes from certain Supreme Court judgements that 22 deal with discrimination, and it's not in the view of 23 that person or persons that create the memorabilia to 24 determine if it's discriminatory or not. It's who's 25 affected by it and I just ask you to take that into
2071 account when reviewing our reply submissions. 2 There isn't an accountability that should 3 be there because they go on for the next line and says 4 that such a ruling goes too far and puts into doubt 5 anything that commemorates current and historical 6 incidents where there's been a loss of life. 7 Well, again, that's -- similar to many 8 submissions made along the way. It's simply a straw man 9 that they knock over. It's not what was said, it's 10 taking it too far and it's not accepting or being 11 accountable for what that memorabilia indicated. 12 The last example and the one that we 13 focussed to a fairly large extent upon is the rulings 14 made by Judge Fraser in the Kenneth Deane trial that went 15 to the Court of Appeal. 16 Supplementary evidence was attempted to be 17 put in. It went to the Supreme Court. At all levels it 18 was dismissed. He was found guilty, findings were made, 19 he accepted those findings. He might not agree with 20 them. Who would agree with them if you're in Mr. Deane's 21 shoes and honestly believing what he testified to. But 22 he accepts them. 23 It's an acceptance, it's an 24 accountability. It's an accountability that the OPPA 25 today, for whatever reason, doesn't seem to have.
2081 Because they come to you, Mr. Commissioner, in their 2 submissions and they suggest to you at paragraph 716 of 3 their submissions that: 4 "In conclusion the Commission should 5 find based on the evidence given at 6 this Inquiry that Dudley George had a 7 gun when he was shot or alternatively 8 Dudley George had a stick or pole in 9 his hands when he was shot which Acting 10 Sergeant Deane mistook for a long gun." 11 Honest but mistaken belief, thrown out by 12 Judge Fraser as not only being dishonest, but not at all 13 a mistake. 14 He goes through in detail why. He heard 15 from Kenneth Deane. He had the benefit of his testimony. 16 You can't be asked after the fact to go through and to 17 make a finding of that nature. 18 And I suggest to you as the OPPA, as the 19 group that's required to enforce what everybody who keeps 20 looking at by way of rule of law, they have to accept 21 findings of the court even when it relates to one of 22 their own resulting from an SIU investigation. 23 A Crown position which they publicly 24 criticized the Crown for taking. They said the Crown did 25 them wrong. That's not accepting the institutions. It's
2091 not what we see as an accountable -- accountability by 2 the OPPA. 3 And it shows a huge disconnect, in our 4 submission, between the OPP which we see making steps or 5 taking steps to change and to learn from this situation 6 versus the OPPA that for whatever reason, is today in 7 2006 trying to justify which we all know did not occur in 8 1995. 9 It's a disconnect and it's a disconnect 10 that we see in Caledonia when the OPPA criticized their 11 role as peacekeepers. When they criticize actions taken 12 by their -- what I've -- quote, OPP "brass", in taking a 13 neutral role. 14 And it's a disconnect that I don't have a 15 solution for. We don't. But we have to recognize that 16 it exists. They're separately represented here and 17 they've taken different positions and it's hard to 18 reconcile the two (2) positions. 19 Perhaps My Friends will in their 20 submissions. They have the benefit of our written reply 21 and my comments which will be in print soon. So they 22 have the benefit and perhaps that will be there. 23 But then it comes back to, where are we? 24 It's full circle, I'd suggest. It comes back to 25 accountability for what happened between September 4th to
2101 6th. There's ample opportunity for that and the Royal 2 Commission has made a number of recommendations on how 3 this fundamental thinking can occur. 4 The shift needs to be a recognition of the 5 rights and privileges enjoyed by First Nations members 6 that are constitutionally protected and are over and 7 above those of everyone else. 8 I think that the OPP and the members of 9 the OPP, Ms. Potts and Claremont in their paper referred 10 to it as citizens plus and I suggest that a recognition 11 that there are those rights that it has to involve -- a 12 difference in thinking before any of this can change is 13 necessary. 14 That's the conclusion of our submissions 15 and I've stayed true to my word; I'm less than the two 16 (2) hours, but I'd like to extend our thanks, Mr. 17 Commissioner, on behalf of our clients and their counsel 18 in being allowed to be part of this Inquiry for 19 contributing where we could and for making submissions 20 and suggestions on where you can go with your report. I 21 appreciate that it's not an easy task. Thank you, Mr. 22 Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much, Mr. Scullion. I think we'll take a short 25 break now and then we will call I think Mr. Horton going
2111 out of order? That's fine. We'll start with you, Mr. 2 Horton, after the break. 3 THE REGISTRAR: This Inquiry will recess 4 for fifteen (10) minutes. 5 6 --- Upon recessing at 3:32 p.m. 7 --- Upon resuming at 3:46 p.m. 8 9 THE REGISTRAR: This Inquiry is now 10 resumed, please be seated. 11 COMMISSIONER SIDNEY LINDEN: Good 12 afternoon, Mr. Horton. 13 MR. WILLIAM HORTON: Good afternoon, 14 Commissioner. Commissioner, I'm going slightly out of 15 order because of an urgent matter I have to be back in 16 Toronto for and I thank Mr. Henderson for allowing me to 17 play through. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 MR. WILLIAM HORTON: And also I am -- I 20 don't expect to be my full time, in fact I'm hoping I'll 21 be something like thirty (30) minutes so that should help 22 the cause I'm sure. 23 24 FINAL SUBMISSIONS OF THE CHIEFS ON ONTARIO: 25 MR. WILLIAM HORTON: Commissioner, I want
2121 to start of course by expressing on behalf of Chiefs of 2 Ontario thanks to you and Mr. Millar and your very 3 competent staff for the amazing efforts over the last two 4 (2) years. 5 It's a humbling thought that no matter 6 what we do as mere mortals we -- it's not given to us to 7 know the ultimate truth with total certainty about 8 anything, but those of us who have been involved in this 9 process can be left in no doubt that you and your staff 10 have turned over every stone and every leaf and have been 11 as thorough as you possibly can be and also most 12 importantly to the First Nations clients you've brought 13 multiple perspectives to bear and not defined the issue 14 too narrowly which is always to pre-judge the issue and 15 that has been very much appreciated. 16 On behalf of Chiefs of Ontario I would 17 like to also take this opportunity to thank Sam George 18 and his family and his counsel for their courage and 19 vision and commitment in continuing on the effort until 20 the Inquiry was called and throughout -- throughout the 21 Inquiry. 22 As you know, Commissioner, the role of the 23 Chiefs of Ontario is to provide a coordinating body for 24 First Nations in Ontario through the office of the 25 Ontario Regional Chief and the Political Confederacy.
2131 And in that connection the Chiefs of 2 Ontario is particularly concerned with the government-to- 3 government aspects of issues such as this and is 4 particularly preoccupied with policy and the political 5 implications of positions taken by Government. 6 And so that has been the focus of our 7 involvement and that is the focus of our submissions. 8 And I want to simply advise you that the submissions that 9 have been filed both with respect to Part 1 and Part 2 10 have been reviewed verbatim with the Ontario Regional 11 Chief and the Political Confederacy and -- and have their 12 seal of approval. 13 And in being respectful of that process, 14 what I intend to do today is simply to precis those 15 submissions for potentially a wider audience than might 16 wish to actually read all of the submissions. I'm -- I 17 ask you indulgence in advance, Commissioner. I'm not 18 sure there's anything that anybody could say today that 19 you haven't heard before or considered. So the only 20 thing I can really do is offer to be brief, and I -- I 21 will try to deliver on that. 22 So in keeping with the focus of Chiefs of 23 Ontario, as we said in our submissions, the main point 24 that we wish to make is that Government policies have 25 consequences. When a government adopts policies which
2141 are hostile to the rights of a group of citizens, those 2 policies will have consequences. When a government pits 3 one group of people against another for political 4 advantage, those politics will have consequences. And 5 Dudley George was a victim of such government policies 6 and politics. 7 Anti-Native government policies and 8 politics are wrong. They are wrong not only because they 9 can lead to tragic events such as the death of Dudley 10 George but because they are inherently antithetical to 11 Canadian Constitution and Canadian values. 12 Preventing such tragedies, as a number of 13 people have said today, in the future requires a 14 rethinking of the way in which governments relate to 15 First Nations people and adjustments to the institutional 16 framework of government will be futile if the underlying 17 mind set that pervaded the Harris Government continues to 18 hold sway. 19 Instead, a relationship with First Nations 20 people which fully respects their inherent rights and 21 which creates effective and timely processes to address 22 their legitimate claims is required. 23 Such a relationship cannot be based on the 24 mere legalities of Aboriginal rights but must instead 25 flow from an understanding and respect that recognizes
2151 the essential foundational role of First Nations in 2 Ontario. 3 Four (4) realities have emerged over the 4 course of this inquiry. 5 1. Mike Harris and his Conservative Party 6 were elected to Government on a platform hostile to First 7 Nations people and their rights. Instead of embracing 8 the special history and culture of Ontario's First 9 Nations, the Harris Government sought to limit their 10 place in Ontario society to the bare legal minimum, 11 supporting the position of non-Native citizens in any 12 conflict between the two (2) groups and adopting a broad 13 policy of treating First Nations and non-Native people 14 the same. And I'll add a few comments about that in a 15 minute. 16 2. Once elected the Harris Government set 17 to work implementing its policies. The occupation of 18 Ipperwash Provincial Park by a group of First Nations 19 persons in the fall of September 1995, provided the new 20 government with the opportunity to apply its policies, to 21 appear tough and to be seem as actioning on First Nations 22 issues. 23 At meetings with civil servants Premier 24 Harris's Executive Assistant, Deb Hutton, reiterated the 25 Harris Government's policy that this government treats
2161 aboriginals and non-aboriginal people the same. The 2 situation at Ipperwash was viewed by the Harris 3 Government as a test and the decision was made to be seen 4 to control the situation. 5 3. In the face of resistance from 6 experienced civil servants attending the meetings with 7 Mr. Harris's representative an unprecedented meeting was 8 convened in the Premier's dining room with the relevant 9 Ministers and Deputy Ministers. 10 Inspector Fox, the OPP's First Nation 11 liaison who had attended the earlier meetings was also 12 invited and in attendance. At that meeting, Premier 13 Harris declared "I want the fucking Indians out of the 14 Park." And... 15 4. Following the meeting, Ron Fox 16 informed Inspector John Carson, the OPP Incident 17 Commander at Ipperwash Park, of the Premier's views and 18 incidentally, that is not necessarily the only way in 19 which communications took place as others have pointed 20 out. 21 Following this exchange of information, a 22 decision was made to deploy the heavily armed Crowd 23 Management and Tactical Rescue Units and to have them 24 march down to the Park in the dark of night to confront 25 the occupiers contrary to the OPP's operational plan and
2171 policy. In the ensuing melee between the police and the 2 occupiers Dudley George was fatally shot by a TRU Team 3 member. 4 These four (4) sets of objective facts 5 encompass the core reality of the events of September 4 6 to 6, 1995. In their testimony before the Inquiry, Deb 7 Hutton, Mike Harris and other representatives of the 8 former Conservative Government, attempted to reconstruct 9 their actions at the time as being responsive to 10 particular exigencies on the ground. 11 Similarly, now Deputy Commissioner John 12 Carson and other senior OPP provided elaborate 13 explanations for why they broke with the operational plan 14 and OPP policy to order a dangerous nighttime deployment 15 of heavily armed personnel. 16 Such ex post facto reconstructions should 17 be rejected. The Harris Government had an explicit 18 policy and approach to First Nations issues. Their 19 reaction was entirely consistent with that policy and 20 approach. 21 The OPP heard and understood the Harris 22 Government's message and broke with past practice in a 23 manner that was consistent with that new message. There 24 is no reason to search for any alternate explanations nor 25 can any alternate explanations with -- withstand
2181 scrutiny. 2 In their campaign and in their Government, 3 the Harris Government adopted policies that were hostile 4 to First Nations in order to appease other 5 constituencies. These anti-Native policies were 6 communicated under the principle of equality. 7 That principle when applied to First 8 Nations people meant that the inherent rights of First 9 Nations which were promised to First Nations in exchange 10 for massive contributions to the national wealth of 11 Canadian society would be minimized wherever possible 12 and balanced against the interest of non-Native 13 supporters of the Harris Government. 14 To label this as a policy to promote 15 equality is especially toxic when one considers that the 16 policy was aimed at restricting the rights of some of the 17 poorest communities in the province. 18 As stated by former Regional Chief Gord 19 Peters, the emphasis of the Harris Government was 20 assimilation of First Nations into mainstream economic 21 activity with Government policy being focussed on 22 encouraging such developments rather than on giving First 23 Nations what was rightfully theirs and providing the 24 basis for them to make their own choices. 25 The assimilation approach treats First
2191 Nations as mere stakeholders and their rights as mere 2 interests to be balanced against the interests of other 3 stakeholders. 4 As described by Gord Peters, First Nations 5 were under no illusion the so called principle of 6 equality was code for an anti-Native political agenda. 7 With the takeover of Ipperwash Park on the 8 evening of September 4, 1995, the Harris Government was 9 faced with an important opportunity to put its First 10 Nations' policy into practice and Premier Harris did not 11 let the opportunity pass adopting the hardline position 12 that had underscored all of his previous statements on 13 First Nation's issues. 14 From the very outset the Premier's office 15 represented by the Premier's Executive Assistant, Deb 16 Hutton, and the Premier himself took a lead role in 17 managing the Ipperwash situation. The takeover of 18 Ipperwash Provincial Park was approached as a political 19 opportunity to demonstrate the Government's tough line on 20 First Nations people and to differentiate their position 21 from that of the previous government. 22 The juxtaposition of the Government policy 23 of equal treatment with an urgent approach to remove the 24 occupiers expressed clearly the anti-Native animus of the 25 Government policy. In fact as Ron Fox and Elizabeth
2201 Christie noted a slow, cautious approach would have been 2 the standard procedure for the OPP regardless of the 3 First Nations aspect. 4 Much has been said about the two (2) IMC 5 meetings that took place on September 5 and September 6. 6 Following the September 6 IMC meeting, a further 7 unprecedented meeting was convened in a boardroom 8 adjacent to the Premier's office at Queen's Park. 9 Although no witness was certain who had organized the 10 meeting, several conceded that a meeting in the Premier's 11 dining room would most likely have been organized by the 12 Premier or his staff. 13 In attendance at the meeting were the 14 ministers of all departments relevant to the situation at 15 Ipperwash, the Minister of Natural Resources who was 16 responsible for the Park, the Solicitor General who was 17 responsible for the police, and the Attorney General who 18 was responsible for any legal actions the Government 19 might take as well as for Native affairs. 20 The Deputy Ministers for all three (3) 21 ministries were also in attendance along with some 22 political staff, Inspector Ron Fox, Sergeant Scott 23 Patrick, Deb Hutton, and the Premier. The purpose of the 24 meeting was according to Deputy Attorney General Larry 25 Taman to make sure, quote,
2211 "To make sure everybody understood what 2 the Premier's view was". 3 That view was made absolutely clear at the 4 outset of the meeting. The former Attorney General of 5 Ontario and lifetime ally of political -- political ally 6 of Mike Harris, Charles Harnick, testified that as he 7 walked into the dining room meeting Mr. Harris stated in 8 a loud voice, I want the fucking Indians out of the Park. 9 This view, while expressed emphatically 10 and leaving no doubt as to the Premier's wishes, was 11 entirely consistent with the policy that his 12 representative Deb Hutton had expressed at two (2) 13 previous IMC meetings. The chilling truth is that the 14 comment may have seemed quite unremarkable to others in 15 the room at the time. 16 During the course of the Inquiry a 17 significant amount of evidence was heard regarding 18 whether Premier Harris knew that Inspector Fox who was 19 attending at the meeting was an OPP officer seconded as a 20 First Nations Liaison Officer with the Solicitor 21 General's Office. 22 Despite the fact that Ron Fox had 23 repeatedly provided updates on OPP operations at the IMC 24 meetings on which the Premier was briefed and did so 25 again at the dining room meeting Premier Harris maintains
2221 that he has no recollection of Ron Fox. Moreover, it is 2 rather troublesome that no witness was prepared to take 3 responsibility for Mr. Fox having been invited to the 4 meeting. 5 Nonetheless, one (1) fact is 6 incontrovertible. Premier Harris forcefully expressed 7 his view that the occupiers should be removed as possible 8 -- as soon as possible, to a meeting of all relevant 9 ministers, deputy minsters, and political staff, persons 10 who were capable of carrying out the Premier's demands. 11 In the end it is irrelevant whether Mike 12 Harris knew that Ron Fox was an OPP officer. He was well 13 aware that all of the persons required to carry out his 14 wishes were present. The instructions of Premier Harris 15 were that the occupiers of the Park be removed. Nothing 16 turns on whether he anticipated the precise means by 17 which that would be accomplished. 18 It is necessarily the prerogative of a 19 government to set its own policies, however, whereas here 20 the Government attempts to implement those policies in a 21 delicate situation over the protests of its most 22 competent advisors, more than mere policy is at play. 23 In the case of Ipperwash a very dangerous 24 game of politics was being played, a game that was played 25 with peoples' lives by a Premier who had no experience in
2231 dealing with policing issues or matters of public safety. 2 In my written submissions I deal with the 3 justifications provided by Inspector Carson for deploying 4 the Crowd Management and TRU units. And I deal with them 5 one by one and in some detail. I won't do that now. And 6 I would refer anyone who is interested to my written 7 submissions, but I will summarize it by saying this. 8 Inspector Carson could not come up with 9 one (1) good reason as to why he deployed the CMU and the 10 TRU, so he came up with eight (8) bad excuses. And I 11 have noted in the reply submissions of the OPP that an 12 effort has been made to bolster those excuses by saying 13 they were informed -- quote: 14 "Informed by various considerations." 15 Commissioner, whatever word you may choose 16 to describe Inspector Carson's decision on that night, 17 "informed" would not be the best word. It was distinctly 18 an un-informed decision. 19 On the evening of September 6th, 1995, 20 John Carson, contrary to the OPP's operational plan and 21 general policy and without any evident justification, 22 deployed the heavily armed CMU and -- crowd management 23 unit and tactical response unit in the dark to confront 24 the First Nations protestors who were occupying an empty 25 provincial Park that was closed for the season.
2241 At the time that he made his decision John 2 Carson was aware that the Premier of the Province was 3 displeased with the performance of the OPP up to that 4 time and that he wanted swift, affirmative action. 5 Carson's receipt of that information provides the only 6 reasonable explanation for his decision to take such 7 dangerous action as deploying the CMU and TRU at night 8 without any confirmed threat of death or serious injury. 9 The reality is that the actions of the OPP 10 on the evening of September 6th, 1995 were entirely 11 consistent with the preferred option that had been 12 expressed by Deb Hutton and the Premier over the course 13 of the previous two (2) days. The action taken by the 14 OPP was the logical foreseeable and desired result of the 15 proactive actioning approach that the Harris Government 16 had been pursuing. 17 Clearly, the death of Dudley George was a 18 tragedy but it was a risk that had been entirely and 19 clearly foreseen by experienced civil servants and police 20 officers over the course of the previous days. The 21 Harris Government ignored these warnings and did so to 22 further to anti-Native policies that they had been 23 elected on. 24 It is not possible to know with certainty 25 what is in people's minds, not even after a protracted
2251 inquiry and enormous effort. That is why the law 2 presumes that people intend to cause those results which 3 are the natural and probable consequences of their acts. 4 Government policies have consequences. 5 Dudley George died as a result of the anti-Native 6 policies of the Harris Government and the specific 7 interventions of Mike Harris in the occupation of the 8 Ipperwash Park. 9 The prevention of such tragedies in the 10 future requires a change in the way our governments deal 11 with First Nations people. Changes to the legal 12 structures of Government are not in themselves 13 sufficient. The IMC was established to provide a 14 framework and a process for dealing with the frustrations 15 of First Nations people who had suffered hundreds of 16 years of injustices, but this was insufficient for 17 dealing with an attitude and approach to First Nations 18 issues that was as hostile to Aboriginal persons as in 19 this case. 20 Without understanding and accepting the 21 frustration felt by First Nations people after centuries 22 of mistreatment, governments will be unable to deal 23 effectively with their legitimate claims and grievances, 24 or to build relationships with First Nations to prevent 25 such tragedies from occurring in the future.
2261 The issue is not what can be done to 2 better protect the police from political interference. 3 The issue is how to make both the Government and the 4 police more responsive and accountable in their dealings 5 with First Nations. 6 Many witnesses at the Inquiry sought to 7 fill real or alleged gaps in their memory with idealized 8 accounts of how Government is suppose to work. Although 9 all the facts can never be objectively established, this 10 Inquiry has given us a unique insight into how Government 11 processes actually work to the prejudice of Aboriginal 12 people. 13 The problem is nothing less than a 14 corrosive and systematic refusal within the entire legal 15 system to provide appropriate mechanisms for addressing 16 the legitimate claims and grievances of First Nations 17 people. 18 In idealized political theory, the law 19 must be respected. In the real world respect must be 20 earned even by the law. For this purpose the effect of 21 the law is perceived by those against whom it is enforced 22 as indivisible with no distinctions between levels, 23 branches or agencies of Government. 24 It is a matter of political leadership to 25 ensure that the law is used and is seen to be used as a
2271 fair arbiter of the rights and obligations of all. An 2 emphasis on swift legal procedures to deal with protests 3 by those whose claims have been ignored for many 4 lifetimes and deliberately hobbled by our Government and 5 legal system is neither fair nor just. 6 If it is perceived by an individual or 7 community that the law is being used to break them, they 8 may come to view the breaking of the law as a matter of 9 indifference or even as a justified necessity. 10 The failure of the Canadian legal system 11 to provide effective and timely redress to the legitimate 12 claims and grievances of First Nations created the 13 explosive situation which existed at Ipperwash and which 14 exists elsewhere in Canada today. 15 The shortsighted divisive and abusive 16 attitudes of Mike Harris and his Government with respect 17 to Aboriginal people lit the fuse at Ipperwash. 18 Thank you, Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Thank you, 20 Mr. Horton. 21 Mr. Henderson...? 22 23 (BRIEF PAUSE) 24 25 MR. WILLIAM HENDERSON: Good afternoon,
2281 Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Good 3 afternoon, sir. 4 MR. WILLIAM HENDERSON: Mr. George and 5 Ms. Johnson and I have had the honour of representing the 6 Chippewas of Kettle and Stony Point at this Inquiry and 7 Ms. Johnson was -- back . I think she's here now -- 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 10 FINAL SUBMISSIONS BY KETTLE POINT AND STONY POINT FIRST 11 NATIONS: 12 MR. WILLIAM HENDERSON: -- sitting in the 13 audience. This has been a long road that has brought us 14 to this point but we have travelled it well. We have 15 travelled it together. 16 And we are impressed and grateful for the 17 courtesy, the professionalism and the exchange that has 18 gone along in I think the best fashion and that has 19 brought us to this place in a good way. That thought has 20 been expressed by others and we certainly share it. 21 We are of course especially indebted and I 22 think we've said it more than once, it deserves to be 23 said again to your Commission counsel, your senior 24 counsel Mr. Millar, and Ms. Vella and all of their staff 25 who have been of incredible assistance to all of us in
2291 managing a record which you described to day and which 2 seems incredible even though we saw it accumulating as we 3 went along. 4 I've also indicated that we are grateful 5 to all counsel for the relationships we've developed with 6 them and for the professionalism that we have shared. 7 And that has assisted us all as we've gone along. 8 And the First Nation also wants to 9 acknowledge of course, the work of Mr. Sam George who has 10 left for the moment, and his counsel who I'm sure will 11 pass this along for the efforts they put in over the 12 years to bring this exercise into being and to advance 13 its purposes over these two and a half (2 1/2) years. 14 I should also indicate that while there is 15 no question about who did the heavy lifting, the First 16 Nation has continuously supported the call for an inquiry 17 and as you know, Commissioner, through your visits with 18 Chief and Council and indeed with all groups among the 19 membership of the First Nation that support has continued 20 throughout the Inquiry. 21 Your mandate is two-fold of course. Part 22 of it, the Part 1 mandate to inquire into an event that 23 occurred eleven (11) years ago and to the events 24 surrounding that. 25 Many of us learned that the surrounding
2301 events were matters of decades if not centuries, but that 2 past and your examination of the past brings you part way 3 forward in terms of your global mandate to the Part 2 4 mandate which is to give advice as to how to avoid the 5 kinds of violence and the kinds of situations that arose 6 at Ipperwash Provincial Park in September of 1995. 7 Many counsel have commended to you the 8 work of the Royal Commission on Aboriginal Peoples in 9 terms of understanding the past of First Nations in 10 Canada, their relations with settlers and colonial 11 governments and ultimately the governments of Canada and 12 the Provinces and indeed the Territories. 13 We have made submissions as have many 14 others and as indeed you will -- you will find in -- in 15 the RCAP Report that Canada has an unfortunate and racist 16 history in its relations with Aboriginal peoples that has 17 manifested itself in many ways: disrespect of their 18 culture, disrespect of their religion, disrespect of 19 their language, disrespect of their families, disrespect 20 of their -- their governments and their leadership, and 21 ultimately disrespect for the agreements that were 22 solemnly made with the First Nations of Canada and which 23 have not been observed either literally in the words that 24 they were written in the language of other nations and 25 other laws or figuratively in the sense of the broad and
2311 expansive and -- and generous relationship that the First 2 Nations anticipated in entering into treaties. 3 When we come down specifically to the 4 history of the Chippewas of Kettle and Stony Point I 5 think that Mr. Scullion spoke wisely when he said there 6 are many issues in the history and many points that have 7 been brought forward and many viewpoints that you do not 8 have to resolve and I do not anticipate that you're going 9 to be addressing them so I will not dwell upon them to 10 any length. 11 Our first recommendation is to the extent 12 that you deal with -- with the history of the First 13 Nation, that you do so in a manner faithful to the actual 14 history and to the full documented record in your 15 database and of course to the evidence that you have 16 heard including the expert evidence you have heard. 17 The difficulty is I suppose that you have 18 heard so much that it is going to be a task for you to 19 manoeuver through any recital in any way that will 20 reflect all of this. We simply ask in addition to what 21 the submission already is that you be fair to everyone 22 and that your ultimate balance that you strike have an 23 air of reality to it in light of all that you have heard 24 and learned and have before you. 25 In addressing the relationship between
2321 governments in Canada and in particular the Government of 2 Ontario we know that there has been traditionally minimal 3 respect for the Aboriginal and treaty rights of the First 4 Nations of Canada. 5 That changed after a bumpy constitutional 6 process in 1982 when the Constitution Act of that year 7 came into force and effect in Section 35, which is Part 2 8 of that Act, recognized and affirmed the Aboriginal -- 9 the existing Aboriginal and treaty rights of the First 10 Nations, of the Aboriginal peoples of Canada including of 11 course the First Nations, the Metis, and the Inuit. 12 Recognition, once it was in the 13 Constitution, also had a bumpy road. In Ontario for 14 example the litigation policy of the governments of the 15 day was to say that the word 'existing' in fact meant 16 that Part 2 of the Constitution Act added nothing, that 17 Aboriginal and treaty rights had been much deformed under 18 laws as they were prior to 1982, and that it was in their 19 deformed and/or malleable state that they were recognized 20 and affirmed in that year. 21 That word, that issue, the word 'existing' 22 was litigated for eight (8) years, until the Supreme 23 Court, in 1990, in the Sparrow Case, said, Existing means 24 unextinguished. If you haven't extinguished the right, 25 it doesn't matter what you've done to it in the past, you
2331 can't do anything to it in the future unless you follow 2 the Section 35 analysis, which the Supreme Court began to 3 lay down in that case. 4 So the law substantively changed in the 5 practice in this Province in 1990. And indeed all of the 6 hunting and fishing cases that relied upon treaty rights 7 that had been lost prior to that year, if they were still 8 alive, all of a sudden started to be one (1) on a treaty 9 defence. 10 One (2) of those cases we've brought to 11 your attention because it involved the Chippewas of 12 Kettle and Stony Point, and that was the -- the Jackson 13 case, which we've distributed broadly. And you will 14 recall, sir, that that involved a virtual -- an actual 15 raid upon fishermen of the First Nation not far from 16 here, on Lake Huron, involving the Ministry of Natural 17 Resources, that's the provincial department, the Ontario 18 Provincial Police and the Michigan Department of Natural 19 Resources, or Wildlife, or whatever it's called. 20 For the first time in this area the treaty 21 defence of a treaty right to fish vindicated the 22 practices of the First Nation. When the Supreme Court 23 had addressed that in the case of Calvin George, whom you 24 heard referred to earlier today, twenty-five (25) years 25 earlier, the fact that he had a treaty and the fact that
2341 he was hunting migratory birds on his own reserve was no 2 defence. He was convicted. 3 The analysis laid down by the Supreme 4 Court states that laws affecting Aboriginal and treaty 5 rights -- and Sparrow was of course a fishing course, it 6 was a harvesting case, laws affecting those must be 7 balanced first against conservation but also against a 8 legislative scheme setting up a set of priorities, and 9 affirmatively recognizing Aboriginal and treaty rights, 10 and controlling the exercise of any official discretion, 11 whether it be a ministerial discretion or a bureaucratic 12 discretion or anybody else's discretion that could affect 13 the exercise of those rights. 14 In Ontario, notwithstanding what the 15 Supreme Court said in 1990 and notwithstanding that this 16 is 2006, sixteen (16) years later, that has not happened 17 in any statute. 18 I'm looking at -- as I speak, at the 19 online E-Laws version of the Provincial Fish and Wildlife 20 Conservation Act, 1997, which I've put on the screen 21 today as the Provincial Government makes it available on 22 its -- on its website. Section 6 is headed, Requirement 23 For a Hunting or Trapping Licence. 24 And Subsection 6(1) says: 25 "Except under the authority of a
2351 licence and in accordance with the 2 regulations, a person shall not hunt or 3 trap a) a black bear, whitetail deer, 4 moose, caribou or elk; b) a game mammal 5 that is not referring to in clause a; 6 c) a game bird." Et cetera, et cetera, 7 et cetera. 8 This is -- Mr. Millar continues to astound 9 me; he got that up very quickly. 10 You will see that that is a 'no person 11 shall' except under the authority of a licence. 12 Now, you can search through that Act as I 13 have many times including as recently as this morning for 14 the words, 'Aboriginal', 'Treaty', 'Indian', 'First 15 Nation', or anything like it; it's not there. 16 It's not there because in Ontario under 17 Ontario law there is no recognition of Aboriginal and 18 treaty rights. That section does not say a treaty right 19 is a defence. Nothing in that Act says that a treaty 20 right is a defence, whatever the purpose being of the 21 actual exercise of that right. 22 Now, this is the sort of thing that we 23 have addressed in our submissions and I think others have 24 addressed it in terms of the rule of law. Silence is a 25 tacit statement that the rights are not important because
2361 if they were important they'd be in our Statute. If it 2 was a defence, it would be recognized as a defence in our 3 Statute but it's not. We have silence. 4 So you have a constitutional right that is 5 not reflected in the laws of this Province and the people 6 who are opposed shall we say to the exercise of those 7 rights by treaty First Nations people look to the Statute 8 and they say, Well, you know, these can't be important 9 considerations because if they were they would be in 10 Ontario laws wouldn't they and they're not. 11 Is this and acceptable situation? Well, 12 no, Commissioner. What we have rather than a statutory 13 or regulatory scale, the regulations of course being as 14 devoid of reference to Aboriginal and treaty rights as 15 the statute itself, is a system where by and large most 16 First Nation people exercising a right as the Ministry of 17 Natural Resources defines it in their treaty area as the 18 Ministry of Natural Resources understands it will not be 19 prosecuted if they are shooting a game animal or a game 20 bird for food. 21 That is in effect a discretion which is 22 not set out in Statute and not set out in regulation, 23 that is recognized -- acknowledged by the Government and 24 put into practice by the Government, but which has no 25 basis in law other than under the broader rubric of
2371 prosecutorial discretion. 2 In its decision in the British Columbia 3 case of Regina and Nikal, N-I-K-A-L 1996, one the Supreme 4 Court reports, page 1013, at paragraph 108 the Court 5 says: 6 "It has long been recognized that the 7 holder of a constitutional right need 8 not rely upon the exercise of a 9 prosecutional -- prosecutorial 10 discretion and restraint for the 11 protection of the right." 12 In other words, and this is again an 13 Aboriginal harvesting case, and again like Sparrow from 14 British Columbia, the Court is saying prosecutorial 15 discretion is not a constitutionally valid way of 16 recognizing and affirming a right, but that is the regime 17 in Ontario. 18 In the Quebec case in the same year, 1996, 19 this is ten (10) years ago, the case of Regina and Adams 20 1996, three (3) Supreme Court reports page 101, at 21 paragraph 54 of the then Chief Justice rights -- and I'm 22 going to read the whole thing here. It's -- it's still 23 one (1) paragraph but fairly lengthy, because it's 24 important, Commissioner. 25 "In light of the Crown's unique
2381 fiduciary obligations towards 2 Aboriginal peoples Parliament may not 3 simply adopt an unstructured 4 discretionary administrative regime 5 which risks infringing Aboriginal 6 rights in a substantial number of 7 applications, in the absence of some 8 explicit guidance. 9 If a statute confers an administrative 10 discretion which may carry significant 11 consequences for the exercise of an 12 Aboriginal right, the statute or its 13 delegate regulations must outline 14 specific criteria for the granting or 15 refusal of that discretion which seeks 16 to accommodate the existence of 17 Aboriginal rights. 18 In the absence of such specific 19 guidance, the statute will fail to 20 provide the representatives of the 21 Crown the sufficient directives to 22 fulfil their fiduciary duties and the 23 statute will be found to represent an 24 infringement of Aboriginal rights under 25 the Sparrow test."
2391 The situation is so woefully bad in 2 Ontario that the Fish and Game Conservation Act doesn't 3 even confer a discretion. There is nothing there but 4 silence. 5 It certainly doesn't provide any guidance 6 for the exercise of a discretion. Everything is shifted 7 over to prosecutorial discretion. 8 I think I have made that point, so I'm not 9 going to pursue it any longer, Commissioner, but our 10 recommendation on the point is number 6 and it speaks to 11 legislative change in the Province of Ontario to 12 incorporate in the manner directed by the Supreme Court 13 of Canada as constitutionally necessary, recognition and 14 affirmation of Aboriginal and Treaty rights. 15 This goes not only to the constitutionally 16 validity of the Acts, it goes to the rule of the law -- 17 to the rule of law in the way many people have addressed 18 it today and that is in the sense that the rule of law 19 has content and if the content does not respect people 20 with legitimate expectations of the law or entrenched 21 rights, they will not respect the rule of law. 22 That has been said many times, many ways 23 and I expect in some form it will find its way into your 24 report, at least, with respect, we hope it will. 25 In the same recommendation we also talk
2401 about recognizing the Aboriginal and treaty right as the 2 -- as a -- in the interest of First Nations in their 3 grave sites, burial grounds, and sacred sites. 4 Without going into any great detail, the 5 Commission has before it a lot of information on the 6 various types of statues and ways in which the issue is 7 addressed. 8 There are more of them than there need be 9 and none of them starts from the premise that there is a 10 legitimate interest, nd I do not necessarily say a real 11 property interest, but a legitimate interest of the First 12 Nations and the Aboriginal peoples in their sacred sites 13 and their burial grounds. 14 We see that as a matter of legislative 15 change and we see it as a matter of Aboriginal and treaty 16 rights, if not indeed as a matter of human rights. 17 When I quoted from the Adams' Decision, 18 you will have noted, Commissioner, the word 19 'consultation'. Consultation again under the Haida 20 Nation and the Taku River cases and the Mikisew Cree 21 cases, all of which are of more recent vintage, 2004 and 22 2005, give direction to all governments including 23 Provincial Governments, that they must consult where 24 there is any risk of an infringement or impairment of 25 Aboriginal and treaty rights.
2411 They must consult with the First Nations, 2 they must consult in a meaningful way; they must inform 3 in a fulsome way, and based on that consultation there 4 may arise a duty to accommodate the Aboriginal interest 5 in terms of what is planned. 6 Your staff has drawn to your attention a - 7 - a draft consultation guideline dated June 2006 which 8 the Province has -- has issued, presumably for comment. 9 It does -- it does make the right noises in terms of what 10 the courts say. It is very iffy in terms of everything 11 being may, and may, and may. 12 It is not particularly strong, in our 13 respectful submission, in terms of the duty to inform and 14 consult because it considers such factors as whether or 15 not the First Nation has requested information, which 16 seems a rather vague criterion. 17 If they're aware of some plan and some 18 potential impairment, does it really matter whether the 19 First Nation has requested that information? Surely the 20 duty is there to provide it. 21 We've also suggested, and this goes to our 22 Recommendation Number 7 on consultation, that a 23 government policy should go further than the court cases 24 have to date. And for very good reason. 25 We already know on the basis of what we
2421 have learned in Part 1 of this Inquiry that at several 2 junctures, three (3) distinct junctures, the Province of 3 Ontario had knowledge that there was or could be a burial 4 ground in Ipperwash Provincial Park. 5 Now, in 1937 that information was conveyed 6 to the First Nation and representations were made, and 7 the historical record goes silent. In the early 1950's 8 there was an actual skeleton -- skeletal remains of an 9 Aboriginal woman found in the Park. That knowledge was 10 not communicated to anyone, not even apparently to the 11 Ministry of Natural Resources. 12 There is correspondence, I'm sorry, in 13 1975 a provincial researcher discovered the 1937 14 correspondence and, if I recollect the evidence 15 correctly, advised the Park superintendent of that. And, 16 again, the record goes silent. The next communication is 17 in 1993 or 1994, when the -- the residents of the Camp 18 communicated to the Park superintendent the need to 19 investigate the burial ground in the Park. 20 Now, in isolation or under the 21 consultation plan as at now -- as it is now, the 22 awareness of these things would not be brought to the -- 23 to the attention of the First Nation because there was no 24 plan, there was no development, there was no proposal, 25 there was no proponent that might significantly impair
2431 these burial grounds. 2 We suggest that where knowledge comes to 3 the Provincial Government, that indicates the existence 4 of an Aboriginal and treaty right, or a conflict, that 5 information should be conveyed to First Nations and if 6 necessary a consultation process should proceed or an 7 accommodation should be made. It should be self- 8 actuating. It should not be triggered, it should not be 9 simply reactive. 10 Government is responsible for what 11 Government knows. And if that doesn't mean an archival 12 search in every -- in every instance, information that 13 comes forward in the course of business should certainly 14 be captured and shared. That's transparency, that's 15 accountability, and that gives rise to real consultation. 16 How many issues, if you go through the -- 17 the hundreds of which you have been advised in one (1) 18 way or another, might have started down the road to 19 resolution much sooner if Government had been more 20 proactive in terms of sharing what it knew. 21 Our Recommendation 16 goes to the 22 Government structure. And of course it is -- there is 23 some irony in the fact that a First Nation would make 24 proposals to the Ontario Government in terms of how it 25 ought to organize itself since one (1) of the historical
2441 complaints is that governments have intruded too far -- 2 excuse me -- into the internal organization of First 3 Nations. 4 In any event, recommendation Number 16 5 and, of course, I've tabbed our recommendations and 6 summarized them in our reply submissions along with 7 indications of who else in their original submissions may 8 have made similar recommendations or even identical ones. 9 10 (BRIEF PAUSE) 11 12 MR. WILLIAM HENDERSON: Recommendation 16 13 goes to the creation of an Ontario Ministry of Aboriginal 14 Affairs. 15 We are not unique in making that 16 recommendation. 17 Again, it is a question of taking rights 18 seriously. It's a question of having a Minister, having 19 a Ministry, having a staff and having someone at the 20 Cabinet table whose sole job is to ensure that these 21 matters of importance are being dealt with. 22 In your closing remarks on June 28th, 23 Commissioner, you indicated a view that relations between 24 First Nations and governments and communities, et cetera, 25 would continue to dominate the agenda over the
2451 foreseeable future. 2 The fact is, in our respectful submission, 3 it does not dominate the legislative agenda. If you look 4 at the Part II submissions of the Ministry of Natural 5 Resources on regulatory matters, they say they're -- part 6 of their problem in not implementing Aboriginal and 7 Treaty rights is that there have been six (6) governments 8 -- eight (8) governments..? 9 I'm sorry, I -- whether it's six (6) or 10 eight (8), I forget now, but the number is there. But 11 it's a significant number of governments between 1982 and 12 the present. 13 And the reason that they can indicate that 14 is a problem because none of those governments -- I'm 15 told it's six (6) or a half dozen of the other. 16 The -- they say that each of those 17 government had it's own leg -- set of legislative 18 priorities and everything else and these matters just 19 didn't get attended to. 20 Well, that's another way of saying none of 21 them had a legislative priority of recognising Aboriginal 22 and Treaty rights. 23 Is an Ontario Ministry of Aboriginal 24 Affairs the way of doing that? Well, it would be a step 25 in the right direction.
2461 As you can see under -- under our own 2 recommendations, the beginning of a list including the 3 Union of Ontario Indians, the George Family Group, the 4 Chiefs of Ontario office who have made similar 5 recommendations and the ALST. 6 That indicates, I think, quite strongly 7 that they would -- many on the First Nations side, would 8 see this as a signal of respect. 9 Can it do the job alone? Perhaps not. 10 Several, although we did not make a recommendation 11 ourselves, several have towards reconstituting the 12 tripartite process that was formerly the Indian 13 Commission of Ontario process. 14 We believe that that idea deserves support 15 as well, because that was a useful organization while it 16 was in business. 17 Part of the criticism that it would get 18 was that it did not always agree with government and 19 governments would say that some of the ICO staff appear 20 unduly sympathetic to the First Nation's side and some of 21 the ICO reports criticised the action or inaction of 22 government and that was not well received. 23 For that reason, sir, you might also 24 consider the recommendations for an Aboriginal 25 Commissioner, which again is one (1) of the -- one (1) of
2471 the ideas that's discussed in your staff's own discussion 2 papers which were circulated in June. 3 An Aboriginal Commissioner at the very 4 least as an independent officer of government could 5 report on actions and inactions of government at arm's -- 6 at arm's length from the actual operations and 7 interactions and everything else. 8 There are several precedents for persons 9 discharging that role. That is a useful -- would be a 10 useful contribution to the balance sheet and of course 11 those who have spoken in favour of it also emphasize the 12 need for Aboriginal people to participate in the design 13 of that office and the selection of the individuals who 14 would discharge it. 15 We do not intend, Commissioner, to go 16 through the evidence in any detail of the -- the 17 incidents or the famous sixty (60) hours from September 18 4th to September 6th. If it will assist you we will try 19 to offer a perspective on it. Excuse me. 20 21 (BRIEF PAUSE) 22 23 MR. WILLIAM HENDERSON: You may be 24 familiar, Commissioner, with the -- the passage that 25 William Faulkner wrote in -- in the book Intruder in the
2481 Dust. It's rather well-known. It talks about every 2 southern boy of fourteen (14) years of age imagining 3 himself behind the fence line just before Pickett's 4 Charge is launched. 5 Of course Pickett's Charge was a famous 6 strategic disaster. But when he writes about that and 7 the capacity to put himself in that situation he talks 8 about the moment and he does it in these terms. He says: 9 "It's all in the balance. It hasn't 10 happened yet. It hasn't even begun 11 yet. It not only hasn't even begun yet 12 but there's still time for it not to 13 begin against that position and in 14 those circumstances." 15 I don't think it takes much imagination, 16 Commissioner, to see how that -- the description of that 17 moment applies in this situation because it provides a 18 perspective for several players, right? 19 For Mark Wright there is no consideration 20 of it hasn't happened yet; to him it has already 21 happened. Even before it happens it's happened because 22 he's telling Tim McCabe it's happened. We're going to 23 war. We're sending the Marines down the road. Of course 24 at the end of the road is not the Halls of Montezuma, 25 it's a sandy parking lot with a couple of people in it.
2491 We have the perspective of Superintendent 2 Parkin who has a discussion with -- with Dale Linton and 3 their conversation of course is recorded. And he gets 4 the worse scenario. He gets the one (1) about the woman 5 driving down the road and this gang comes up with sticks 6 and trashes her car. He's told all this and his reaction 7 is contain the situation so people can't drive down the 8 road and see what else happens. 9 Now, he doesn't give that as a direction, 10 he gives it as an observation but it's right there. He 11 was closely cross-examined on it, right? See what else 12 happens. All right? Not only it hasn't begun yet but 13 there's still time for it not to begin. 14 What about John Carson? My Friends for 15 the Estate have -- have indicated there's even doubt 16 whether he made that decision, whether it hadn't been 17 taken out of his hands so far back that by the time he 18 arrived it was just going to happen and indeed we don't 19 have a moment when somebody actually makes the decision. 20 We have a briefing and we have the gang go down the road. 21 He took responsibility for the decision of course to his 22 credit. 23 But against that position and in those 24 circumstances we're not going to go through, you know, 25 the classic eight (8) excuses. We're not going to go
2501 through the circumstances. We're not going to describe 2 the position. We've done that in our -- in our written 3 submissions with some brevity I hope. 4 But the simple fact is, right, there was 5 absolutely no need to go down there to achieve any 6 realistic strategic objective. It was bound to be a 7 confrontation, it was bound to be nasty, and it was bound 8 to fail and it became a debacle and it caused death and 9 injury and damage that has yet to heal sixteen (16) years 10 later. It was a disastrous decision. But nobody, as has 11 been pointed out, is coming forward here and saying to 12 you, We clearly did something wrong here, right? 13 Mr. Taman was much more -- or Taman was 14 much -- much more candid when he came here. The next 15 day he reorganized the structure of government meetings 16 because he was the problem. In sixteen (16) years nobody 17 in the OPP or the OPPA has said, right, This was a 18 disastrous decision and I wish we hadn't made it because 19 it was the wrong thing to do in the circumstances, 20 against that position and in those circumstances. 21 And what about Bernard George? He had a 22 position too. He begins when he comes out of the Park, 23 he starts to walk down East Parkway Drive to see what's 24 happening. And his evidence is perfectly consistent with 25 everything else. He walks down the road, he hears the
2511 police formation moving towards him, he sees them stop. 2 He can hear them talking on the radio. Everything is so 3 quiet but they came to complete stop. That's his 4 evidence, right? 5 What they were talking about is they were 6 trying to figure out whether or not the stick in his hand 7 was a gun. Fortunately, they decided it was a stick. 8 Then he backs up but he starts telling 9 them, Put down your weapons, There's no need for this, as 10 he's backing up. One would think that Bernard George was 11 the perfect person to be there at that time because he 12 was willing to talk, but nobody would talk to him, nobody 13 would respond to him, nobody said a word to him. The 14 column kept advancing and eventually he comes back in -- 15 excuse me -- into the Park. 16 The police deploy in a shallow parking lot 17 with the hill at their back and they advance, right, 18 across this restricted space to the fence line. And 19 according to Bernard George, they're swinging their 20 sticks across the fence line at the people who are there, 21 and then they withdraw. Well, we've made our show of 22 force. We're not going any further. 23 And we talk about that in our submissions, 24 if you were being the fence and you thought they were 25 trying to get across the fence line you would say, Oh, we
2521 -- we were able to repel this -- this attack on us. 2 So instead of showing strength in fact 3 they showed weakness. Even so Bernard George is still 4 there, he's in that moment, does it need to happen? It 5 hasn't happened yet and it doesn't necessarily need to 6 happen. 7 So he comes out and he has a pipe with him 8 or a heavy stick -- I think it's a pipe was the final -- 9 the final decision -- and he is standing there saying, 10 These are the graves of our grandfathers, right? He 11 says, and this is his evidence at pages 58 and 59 on 12 December the 7th, 2004, he says, If they continued they 13 would have no respect and no honour. He is telling them 14 this is unnecessary, it still doesn't need to happen. 15 But it did happen. At page 63 he heard the words punch 16 out and they charged. 17 Now we come back, as many have, to the 18 submissions of the Ontario Provincial Police Association. 19 And I'm looking at paragraph 33, the last clause of 20 which: 21 "Cecil Bernard George made the decision 22 to leave the confines of the Park and 23 attack a police officer with a pipe." 24 In fact, it's better at that, it says: 25 "For the reasons he described,
2531 including the rage he felt at the 2 moment, he made the decision to leave 3 the confines of the Park and attack a 4 police officer with a pipe." 5 The beauty of that of course is Bernard 6 George gave evidence and according to this statement it 7 appears to be credible evidence, the reasons he 8 described. And he made the decision to leave the 9 confines of the Park which he did clearly. 10 No one forced him out into the sandy 11 parking lot. But the last part: 12 "And attack a police officer with a 13 pipe." 14 This came out in the evidence several 15 times. Bernard George did not attack anyone. He was 16 standing there making those statements, he heard the word 17 'punchout' and they attacked him. As we all know 18 'punchout' means my gang is here and we're going over 19 there. 20 Bernard George was over there. There's no 21 question in the evidence about who attacked who. Then we 22 move onto paragraph 38 and just to make sure that Bernard 23 George is something other than he is or someone other 24 than he is, the OPPA submits: 25 "At 21:28 his vehicle was turned away
2541 by the officers at Checkpoint Alpha. 2 The officers also seized a number of 3 baseball bats, clubs and golf clubs 4 from the vehicle." 5 And the cite for that in the footnote is 6 Exhibit P-1526 I believe. In any event, the evidence in 7 relation to that was led by Mr. Sandler and I'm not -- 8 not going to ask you to turn to it, Commissioner, because 9 it's fairly straightforward. 10 It was led by Mr. Sandler from Mark Wright 11 and it's taped. Sorry, it's 1126. Exhibit 1126. It's 12 the transcript of -- of a tape. Or it was the tape 13 itself that was played. 14 And it's an exchange between Lima 2 and 15 Checkpoint Alpha and they say: 16 "We stopped three (3) men in a truck." 17 And basically they had some clubs, a golf 18 club and -- and that sort of thing and we appropriated 19 it. We took it away from them. That tape does not say 20 it was Bernard George in that truck. 21 But Bernard George's evidence was and this 22 is at page -- pages 224 and 225 of his evidence on 23 December the 6th. His evidence was that he drove down 24 East Parkway and they couldn't get through because of a 25 checkpoint.
2551 He was accompanied by his wife and his 2 brother Jeremiah. It was not three (3) men and a 3 truckload of clubs and golf clubs and whatever, he was 4 down in that area with his wife and his brother. Two (2) 5 men and a woman. 6 Nowhere is there anything connecting that 7 particular piece of evidence to Bernard George. We can 8 note with some pleasure that one (1) of the things the 9 OPP has not been accused of at this Hearing is 10 discrimination on the basis of gender. 11 And that may well be because this is the 12 second instance where they appear not to be able to tell 13 the difference. 14 Mr. Horton has talked about political 15 pressure. He said it's more than mere policy. And this 16 is undoubtedly true. The pressure directed either John 17 Carson's decision or his acquiescence of a decision. 18 Whether it was the dissatisfaction that 19 was conveyed to him at the highest levels about the way 20 the OPP had performed, whether it was the instruction 21 conveyed to him to get the Indians out of the Park in a 22 hurry or whether it was merely the fact that a lawyer 23 called him and said, we're doing an injunction tomorrow 24 morning, do we have the evidence, right, for an emergency 25 injunction and he said yes.
2561 All of these things were pressure. Before 2 the dining room meeting, an injunction was not pressure, 3 it was a strategy, a measured strategy. 4 After the dining room meeting we find a 5 note that says; "P wants [you know] injunction in a 6 hurry." And all of a sudden somebody is phoning, you 7 know, Osgoode Hall to see if they can get a superior 8 court judge that afternoon and they can't, but they do 9 get one (1) first thing in the morning in Sarnia. 10 All of a sudden it's an emergency. That 11 part came out of the -- that was part of the pressure, 12 too. That was what the Premier wanted to convey. 13 Wanted to make sure everybody was on side. 14 If we're going to get an injunction, let's get an 15 injunction and let's get it fast and let's get those 16 Indians out of the Park. John Carson knew that. 17 Mr. Horton says, and we've already 18 adopted the submissions of the Chiefs of Ontario on these 19 points, Mr. Horton says informed the decision. 20 21 (BRIEF PAUSE) 22 23 MR. WILLIAM HENDERSON: I'm also pleased 24 at this point, to adopt many of Mr. Scullion's 25 submissions. Rather than repeat them, I noted that you,
2571 sir, were taking careful note of them; we're happy to 2 endorse them. 3 In terms of the other recommendations we 4 have made, we -- we would note at this time and I'm not 5 going to take you through every one (1) of them because 6 there are twenty (20) of them, you'll note at this time 7 at Number 8, which talks about the public rights 8 injunction and the considerations that may be brought to 9 bear on that, and we note that even after our original 10 submissions Justice Marshall had taken some other action 11 so the story isn't over and, of course, Mr. Sandler will 12 be no doubt faxing us an endorsement tomorrow afternoon 13 so that we'll all know what the next chapter in the saga 14 is. 15 But the basic consideration is this. An 16 injunction has been used perhaps recklessly at times, as 17 a weapon in confrontations with Aboriginal people. 18 And there are special considerations that 19 ought to be brought to bear and we've suggested ways in 20 which that might be done and I'm very pleased to note 21 that, in fact, Mr. Sandler and the Ontario Provincial 22 Police have addressed the same subject and considered our 23 recommendations with some favour and with some comment. 24 But certainly injunctions are an overall 25 part of the piece. They were in this instance; they will
2581 continue to be in the future and they need to be an 2 instrument more subtly wielded. 3 We talk in our recommendation Number 9 4 about the desecration of burial grounds and Mr. 5 Klippenstein addressed that issue this morning and we've 6 addressed it in our written submissions. 7 The First Nation makes -- wishes to make 8 the strongest possible statement in terms of that as a 9 violation of human rights, as a violation of their 10 dignity and, indeed, in many cases, as an expression of 11 racism. 12 And I want to note that we seem to have 13 little difficulty conceding racism as something in our 14 past but when we look at the exercise of the War measures 15 Act, when we look at the disempowerment of Indian people 16 as individuals, in terms of their legal inability to 17 advance their claims or hire lawyers for that purpose, 18 the fact that they could not vote in Provincial elections 19 or municipal elections or Federal elections or sit on 20 juries or any of those things, these are things within 21 living memory, right? 22 You have heard or had said it before you, 23 submissions and you may hear before the end of the week 24 again, right? 25 That there's no racism around here,
2591 there's some cultural insensitivity and we shouldn't get 2 carried away and call it racism. 3 When did racism stop being racism, right? 4 We have statutes, we have all of the wisdom that we have 5 learned through Human Rights tribunals, international 6 tribunals dealing with human rights, and, My God, what 7 we've learned about human rights violations, when did 8 racism stop being racism? 9 We're not talking about offensive remarks. 10 We're not talking about cultural insensitivity. We're 11 not talking about people who are a little too thin 12 skinned, just because one (1) of them got shot, right. 13 Some of this is racism. It's 14 stereotyping; it's depriving people of their dignity; 15 it's treating them in ways you wouldn't treat other 16 people. It's aggressive, it's hostile, right? And it 17 results in conduct that cannot be condoned. 18 Now we don't say that everything that you 19 have heard or everything upon which you will comment is 20 necessarily racism, but we do say necessarily that there 21 is racism at play. And racism hasn't stopped being 22 racism here because we'd rather call it something else, 23 or because it might hurt somebody's feelings, or because 24 it's not promoting healing or reconciliation to tell the 25 truth.
2601 The First Nation is appalled by racism in 2 all its forms, it's appalled by it when it sees it, it's 3 appalled by the way it has suffered from it, and if you 4 see it, sir, we want you to identify it and to show a 5 better way. We are not asking for that finding in 6 isolation for punitive purposes or for the purposes of 7 embarrassment, we want to find a better way. And that is 8 healing, sir, and we hope you can take us toward it. 9 10 (BRIEF PAUSE) 11 12 MR. WILLIAM HENDERSON: Commissioner, you 13 will be familiar with the -- the quotation from Socrates 14 that four (4) things belong to a judge. 15 The first two (2) are to hear courteously 16 and to answer wisely. We've all had ample opportunity 17 over the course of many, many months to see you 18 demonstrate those virtues in abundance. 19 The second two (2) are to consider soberly 20 and to decide impartially. If we are entitled to 21 anticipate those as well, sir, Chippewas of Kettle and 22 Stony Point look forward to reading your report. 23 And those are our submissions. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much, Mr. Henderson.
2611 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Where does 4 that leave us, Mr. Millar? Do we call on Mr. Falconer 5 now? It's five (5) after 5:00 and -- 6 MR. DERRY MILLAR: Well, I suggest -- 7 we're a little running ahead of our schedule, I suggest 8 we break now and start again tomorrow morning nine 9 o'clock. 10 COMMISSIONER SIDNEY LINDEN: Yes. I 11 think that's the wiser course. We will adjourn now and 12 start again at nine o'clock in the morning. Thank you 13 very much. 14 THE REGISTRAR: This Public Inquiry is 15 adjourned until tomorrow, Tuesday, August 22nd, at 9:00 16 a.m. 17 18 --- Upon adjourning at 5:07 p.m. 19 20 21 Certified Correct, 22 23 _________________ 24 Carol Geehan, Ms. 25