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 22nd, 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 ) (np) Student-at-law 17 18 Anthony Ross ) Residents of 19 Cameron Neil ) Aazhoodena (Army Camp) 20 Kevin Scullion ) (np) 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.) 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 ) (np) 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 ) 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 ) (np) 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 2 TABLE OF CONTENTS 3 PAGE NO. 4 5 FINAL SUBMISSIONS BY ABORIGINAL 6 LEGAL SERVICES OF TORONTO 8 7 FINAL SUBMISSIONS FOR THE HONOURABLE MICHAEL HARRIS 98 8 FINAL SUBMISSIONS FOR MR. CHARLES HARNICK 115 9 FINAL SUBMISSIONS FOR MR. ROBERT RUNCIMAN 129 10 FINAL SUBMISSIONS FOR MR. CHRISTOPHER HODGSON 140 11 FINAL SUBMISSIONS FOR MR. MARCEL BEAUBIEN 159 12 FINAL SUBMISSIONS FOR MS. DEBBIE HUTTON 189 13 FINAL SUBMISSIONS FOR THE MUNICIPALITY OF 14 LAMBTON SHORES 242 15 16 17 Certificate of Transcript 248 18 19 20 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 7 (BRIEF PAUSE) 8 9 MR. JULIAN FALCONER: Good morning, Mr. 10 Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Good 12 morning, Mr. Falconer. Mr Roy, good morning. 13 14 (BRIEF PAUSE) 15 16 FINAL SUBMISSIONS FOR ABORIGINAL LEGAL SERVICES OF 17 TORONTO: 18 MR. JULIAN FALCONER: Mr. Commissioner, 19 as the Counsel before me have already indicated it 20 represents a somewhat special moment for those of us who 21 poured blood, sweat and tears into this Inquiry to be 22 standing before you for the last time. 23 I have known you historically, Mr. 24 Commissioner, and I again came to know you even better at 25 this Inquiry. I learned many things about you and about
91 myself and about my fellow colleagues because a journey 2 like this, as small as it is compared to the journey that 3 Sam George took, and the journey that Murray Klippenstein 4 and his legal team took, is a journey we keep with us for 5 the rest of our lives. 6 Mr. Commissioner, I want to acknowledge my 7 client, Aboriginal Legal Services of Toronto, for 8 providing myself, Julian Roy, Sunil Mathai, an 9 opportunity to represent such an important client on 10 important issues. 11 Aboriginal Legal Services of Toronto is 12 managed and directed by Ms. Kim Murray, also a lawyer, 13 who is here today and who's an integral part of the legal 14 team. I like to think to myself that Kim Murray is to 15 Julian Falconer as Gwen Boniface is to Mark Sandler. And 16 I want to emphasize that her work and the work of her 17 colleagues Brian Eyolfson -- 18 COMMISSIONER SIDNEY LINDEN: She's not 19 going to Ireland is she? 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 MR. JULIAN FALCONER: No, she's not. 23 She's not retiring. She's not resigning. 24 Kim Murray, Brian Eyolfson, Mandy Eastman; 25 these are all people who have contributed greatly to the
101 work of Aboriginal Legal Services and to the work of our 2 legal team and I simply wanted to acknowledge them. 3 Aboriginal Legal Services of Toronto was 4 granted standing in these proceedings with respect, Mr. 5 Commissioner, on the basis of its expertise in issues of 6 policing and issues of racism. 7 Needless to say we found some work to do. 8 Needles to say issues surrounding systemic frailties in 9 policing and issues surrounding systemic racism are 10 abound in this case. 11 Having said that there is also good news. 12 Important police work conducted by good police officers 13 who have good intentions are also characterized in this 14 case. This isn't only a bad news case. 15 The tragedy of the death of Dudley George 16 is why this Commission was convened but that doesn't take 17 away from the fact that there are many aspects of the 18 professionals working in this case who did good work. 19 I want to acknowledge at the start that 20 because of our expertise on issues of policing and racism 21 that will be the focus of my submissions. That means of 22 course that to some extent with great respect, Mr. 23 Commissioner, I will be disregarding the long-term 24 picture surrounding the lands. 25 Of course our written submissions are
111 before you, pages 7 through 20, cover what Aboriginal 2 Legal Services of Toronto perceives as the important 3 relationship between Aboriginal peoples and the land, the 4 special relationship, the deeply sacred nature of 5 Aboriginal burial grounds. All of those have been 6 canvassed far more professionally by My Colleagues than I 7 could. 8 My focus will be on a shorter term in the 9 sense of moving to the medium and short-term when it 10 comes to policing and when it comes to issues of racism 11 as they permeated and manifested themselves in the events 12 surrounding September 6th, 1995, when Dudley George died. 13 On the screen before you, Mr. 14 Commissioner, is the medicine wheel. Now, when My Client 15 gave me instructions to speak to you, Mr. Commissioner, 16 about the medicine wheel my throat went very dry and I 17 became very concerned because for Julian Falconer to try 18 to provide any insight into the First Nations medicine 19 wheel is problematic in the extreme. 20 Suffice it to say this, the teachings as 21 you know, Mr. Commissioner, and as Elders have sought to 22 taught you, the teachings from the medicine wheel are 23 completely consummate with the notions of healing that 24 you've espoused in your opening comments and throughout 25 these proceedings. Part of healing are the various
121 directions and teachings the medicine wheel gives to 2 First Nations people. 3 The west is reflection, Mr. Commissioner, 4 reflection on what occurred, what we say, Mr. 5 Commissioner are the facts. 6 Now, there can be no healing without 7 substantive and true reflection and of course to echo the 8 words of a very excellent counsel such as Mr. Rosenthal 9 there can be no healing without truth. 10 Our submission is directed to assisting 11 you to ascertain the truth about: 12 1. Whether there was political 13 interference in the police operations at Ipperwash. 14 2. If there was political interference 15 how if at all did that political interference play out in 16 the actions and decisions at OPP Incident Command at 17 Ipperwash Provincial Park? 18 Finally our submissions will convey the 19 realities of racism within government and within the 20 police as they pertain to Ipperwash. 21 If I may, Mr. Commissioner, I'd like to 22 get to the plot. Now, I often say to counsel that I work 23 with, in addition to not boring the judge, try to convey 24 the judge the story that you believe actually unfolded. 25 Don't tell a fictional story. Tell the story you think
131 happened. 2 Behind every human dynamic, behind every 3 tragedy there's a story. Your effort, of course, as an 4 investigative body is to piece together that story. Our 5 perspective on the story is as follows. 6 We say the story begins at the end. We 7 say the question how did some forty/forty-five (40/45) 8 police officers, either in riot gear or tactical gear 9 along with K9, how did they end up marching on the 10 occupiers in the dead of night based on fictional 11 accounts of violence by the occupiers? There was no 12 trashing of a private citizen's vehicle by Natives with 13 baseball bats. 14 How did it happen? We say by focussing on 15 the end we can work our way backwards and perhaps figure 16 out the story. The answer lies not in searching for a 17 taped conversation in which politicians are caught in the 18 act of saying, Commissioner O'Grady, Incident Commander 19 Carson, I want you to do the following. 20 There's no smoking gun that makes your job 21 a piece of cake, Mr. Commissioner, with respect. Now, 22 while noteworthy that there is no such smoking gun that 23 is hardly determinative. It is naive and facile to 24 believe that the kind of direction in issue in this case; 25 the kind of influence by politicians in issue in this
141 case comes in the form of such a smoking gun. It comes 2 differently. It comes nuanced. 3 It comes by understanding the human 4 dynamics of how powerful people influence those below 5 them. It comes by understanding the responsibilities of 6 power. We say, with respect, the neophyte Harris 7 government did not understand the responsibilities of 8 power in September 1995 and thereby breached its 9 obligations to the people of Ontario. 10 And how that breach played out was that 11 march, that march on those occupiers. There is a direct 12 link between how the Harris government failed to 13 discharge its responsibilities and the march on the 14 occupiers by the riot squad. There is a direct link. 15 The link is not a circumstantial link. 16 It's not a link by exclusion; that is we can't explain it 17 any other way so this must be how it happened. We're not 18 talking inferentially. We intend to show you, Mr. 19 Commissioner, that there is a direct link between the 20 actions of the Harris government and the absolute mess 21 that was that march by the Riot Squad on the evening of 22 September 6th, 1995. 23 As I said, I want to begin with the end; 24 the march, the actions of the police. What I refer to as 25 the Riot Squad, of course, is formally known as the Crowd
151 Management Unit, CMU. It wasn't just the CMU, it was the 2 Tactical Rescue Unit, the TRU team, what colloquially the 3 public come to know as different forms of SWAT teams, 4 different forms of tactical teams. 5 Four Emergency Response Teams combined to 6 make a CMU, thirty-two (32) officers. Eight (8) Tactical 7 Rescue Unit officers capable of sniper fire, though not 8 all deployed to do that, but capable of it, joined those 9 thirty-two (32) making for forty (40) plus two (2) K9 10 units. All engaged in the march. 11 Now, the march operated in the following 12 fashion, I say to you, Mr. Commissioner, based on the 13 evidence you've heard, that march was misguided. That is 14 it operated on a false premise. The things that John 15 Carson thought happened didn't happen. There was no 16 trashing of a car. There were no fires in the sandy 17 parking lot. The threats they perceived as threats 18 didn't happen. 19 Perhaps that's why John Carson ultimately, 20 out of candour, acknowledged to this court, John Carson, 21 the Incident Commander, acknowledged to this court that 22 on reflection, knowing what he knows today, he might not 23 have marched. 24 Not only was it misguided, the march was 25 poorly briefed. You heard from the head of the riot
161 officers that he had not reconnoitred the area. 2 Officer Lacroix testified that he had no 3 expectation of being used so he didn't familiarize 4 himself with the area that he marched on the dark, didn't 5 work out logistics, didn't engage in the standard 6 planning and preparation he might have as head of a Crowd 7 Management Unit. 8 You'll recall what I thought was 9 particularly noteworthy evidence when he said, We marched 10 down the road and the next thing I knew I was at this 11 fence. Lack of knowledge of the area. Poorly briefed 12 because the TRU team with snipers and observation teams, 13 the TRU Team, well, they thought that the occupiers had 14 guns in the form of AK-47's. They thought they had 15 Molotov Cocktails. 16 When I say, "they thought they had," they 17 believed there was a reasonable probability that the 18 people they were marching on possessed these weapons; 19 that was the TRU Team, the snipers and the observation 20 teams -- eight (8) officers. 21 The CMU Team that they were working with, 22 the one in charge of it, Officer Lacroix, testified with 23 surprise that they would think that. He didn't think 24 that. His officers, he didn't think, thought that. They 25 were operating on a different premise, that there were no
171 weapons in the hands of the occupiers. 2 How could one (1) set of officers all be 3 working on different premises and understandings? Again 4 I refer to the evidence of Officer Lacroix when he said 5 the following to you, Mr. Commissioner. He says: 6 "I can see how a TRU member who thinks 7 thirty (30) or thirty-two (32) officers 8 are marching towards people with AK- 9 47's might be jumpy about protecting 10 them, might be jumpy in the dark." 11 Misguided, poorly briefed, poorly 12 organized. You heard from the head of the TRU Team, Kent 13 Skinner, how he and John Carson agreed that this team of 14 Crowd Management officers were simply a diversionary 15 tactic. They were meant to go down and divert the 16 occupiers so that the TRU members could get in place to 17 see what was going on. From Kent Skinner, the head of 18 TRU, from his point of view they were simply being used 19 as a decoy at that stage. 20 I say, "poorly organized" because from the 21 point of view of the guy who was leading them, he 22 completely rejected that that what was happening. 23 Misguided, poorly briefed, poorly organized, finally, 24 regrettable, Mr. Commissioner, poorly deployed. 25 This Tactical Rescue Unit that consisted
181 of observation teams and sniper teams and sniper teams, 2 the eight (8) officers, they'd never worked with the Riot 3 Team before. They've never worked with CMU. 4 These two (2) teams that had never worked 5 before together were sent down the road in the dark. The 6 head of TRU said: 7 "We were sent down the road in the 8 dark, but we had not gotten our 9 observation teams in place." 10 They were sent down the road in the dark 11 with no eyes. They were down in the road in the dark 12 with no eyes with no ability to communicate with the 13 occupiers what their intentions were. Poorly deployed, 14 poorly deployed. 15 The sum total is a show of force by 16 approximately forty (40) officers that was in the end 17 almost inevitably going to lead to disaster. Frankly, 18 and with greatest of respect to the memory of Dudley 19 George the only surprise is that more lives weren't lost. 20 Now what led to this extraordinary show of 21 force being deployed in such questionable circumstances? 22 The dynamics of the decision making process that led to 23 this show of force involved by all accounts a 24 professional, apparently, and a seemingly very reasonable 25 officer in the form of John Carson.
191 It's not just how John Carson presents in 2 this forum because to be honest, Mr. Commissioner, I will 3 be making submissions about how Mark Wright presented in 4 this forum, but it ain't the real Mark Wright you saw. 5 On the other hand John Carson does present 6 as reasonable and when you listen to him on the tapes he 7 presents as reasonable. There's not that dissonance in 8 personalities. There's not a personality change when he 9 gets to court. 10 So how does a reasonable man like John 11 Carson end up mismanaging such -- and creating such a 12 poor operation? 13 Now, this was the first critical incident 14 of a First Nations occupation over which John Carson 15 presided as an Incident Commander. Parenthetically, Mr. 16 Commissioner, from Mike Harris and his office, the 17 Premier's office, this was his first First Nations 18 occupation that he personally addressed as the new 19 Premier. 20 Now, how did it get away from John Carson? 21 How did it get away from John Carson? We say the fact of 22 political interference accounts for much of the mess. We 23 say that the interplay between two (2) key events 24 accounts for that march and accounts for the death of 25 Dudley George.
201 And Aboriginal Legal Services of Toronto 2 flatly rejects, the -- with great respect, Mr. 3 Commissioner, the facile statement in the reply 4 submission of Mr. Harnick, former Minister of Native 5 Affairs, former Attorney General, when he said, "I did 6 nothing that caused the death of Dudley George". 7 Well, with great respect, Mr. 8 Commissioner, if what we're looking for is Mr. Harnick's 9 fingerprints on the trigger of Ken Deane's gun, well we 10 didn't need to start this commission to know that. What 11 this is about is the dynamics of the acts or omissions of 12 politicians that led to the acts or omissions of police 13 officers. 14 The interplay between two (2) key events; 15 on the one hand, the dining room Meeting, on the other 16 hand the decision making process that led to the march, 17 the CMU. Those two (2) key events, the dining room 18 Meeting and the CMU are the focus of the two-thirds 19 (2/3's) of my submissions today. The last focus is the 20 issue of racism in the Government and police. Those two 21 (2) key events and how they relate, the dining room 22 Meeting and CMU, explains the mess. 23 Now, I want to first deal with CMU. 24 Mr. Commissioner, in our written submissions we've posed 25 four (4) questions. Four (4) questions that with the
211 deployment of this level of force should be capable of 2 easy answer. 3 Now, the four (4) questions that we say 4 you should be able to answer without even starting a 5 commission of inquiry given you're talking forty (40) to 6 forty-five (45) officers marching in the dark, the four 7 (4) questions are as follows. 8 Who of the incident commanders made the 9 decision to call out the Crowd Management Unit? 10 Why is there no record of the decision to 11 call out the Crowd Management Unit? 12 Accepting the distinction for a moment 13 that the OPP draws, who of the Incident Commanders made 14 the decision to deploy the Crowd Management Unit? 15 Why is there no record of the decision to 16 deploy the Crowd Management Unit? 17 These four (4) questions should have been 18 capable of answer immediately after the incident. As you 19 know, Mr. Commissioner, they are hardly capable of simple 20 answer. 21 We say that in understanding the answers 22 to these questions we understand what really went wrong 23 with the march. To begin with let me point something out 24 in terms of the answer to question 2; why is there no 25 record of the decision to call out the Crowd Management
221 Unit and where is there no record, in question 4, of the 2 decision to deploy the Crowd Management Unit? 3 We say we can be realistic that sometimes 4 in the heat of the moment decisions get made and notes 5 don't get taken properly. But that's not what happened 6 in this case. There was a scribe taking minute by minute 7 detailed note. The scribe noted down, you'll recall, Mr. 8 Commissioner, during important command team discussions 9 how the -- the nature of the menu the officers were 10 enjoying. What food they were getting at the Pinery. 11 The scribe noted, a scribe for those who 12 don't know, of course, is someone whose only job is to 13 take detailed notes while it's all going on. Between 14 8:29 and 8:46 that scribe did just that on the night of 15 September 6th, 1995, but what is more interesting is not 16 withstanding all of those detailed notes, you can't find 17 a record of a decision to call out the Crowd Management 18 Unit or a decision to deploy the Crowd Management Unit. 19 And I say, it's the position of Aboriginal 20 Legal Services of Toronto, is there is a reason for that. 21 And the reason is that the decision to call out the Crowd 22 Management Unit was made outside of the conventional 23 chain of command and ultimately that decision that was 24 made outside of the conventional chain of command was 25 never ratified in any formal way, and ultimately what was
231 a decision made outside of the chain of command simply by 2 momentum propelled itself into the march. 3 Now, that's not pithy, I got that, but at 4 the same time that's the dynamic that we're dealing with. 5 The dynamic that we're dealing with is nuances, how this 6 happened. 7 Now, what I want to emphasize is the key 8 position to Aboriginal Legal Services of Toronto is the 9 CMU train left the station prior to 20:29. There is 10 absolutely no credible evidence to suggest that the 11 decision to deploy was actually made by John Carson. 12 John Carson says he made the decision, but we can't find 13 it. 14 Not only can we not find a record of an 15 actual decision, we can't find a weighing process. We 16 can't find an Incident Commander engaged in a weighing 17 process of the different options in coming up with CMU as 18 the least form of force. 19 You know, Mr. Commissioner. You've been, 20 not only educated in this proceeding but historically, 21 your life experience, you know that use of force options 22 by police officers are based on a simple notion, you use 23 the least force necessary to get the job done. 24 That's how we: 25 1. Inform them and educate them on how to
241 cause minimal injury to those you're trying to control 2 but at the same time ensure public and personal safety. 3 My respectful submission to you, Mr. 4 Commissioner, is that if you look at the scribe notes 5 between 8:29 and 8:46 you will see a number of things. 6 You will see that John Carson gets briefed on some 7 fragments of information of the conduct of the occupiers. 8 9 He spends a lot of time between 8:29 and 10 8:32. Remember 8:29 is when John Carson comes back to the 11 Command Post from dinner. It's the first time he's in a 12 position of decision making power. 13 Between 8:29 and 8:32 John Carson is 14 scrambling to call off a decision his Incident Commander 15 Linton made. He's trying to get the TRU Team to back off 16 and then John Carson spends a great deal of time looking 17 at evacuating the cottages but not evacuating the 18 cottages. 19 And then John Carson spends time trying to 20 determine how to deploy CMU; that is, is the kiosk 21 something that would threaten them when they go own 22 there? And then the mechanical act of deploying CMU 23 occurs. 24 There is nothing that shows us that John 25 Carson looked at whether there were alternative uses of
251 force that he could have employed to get the job done of 2 doing what he says he wanted to do which was simply 3 return the occupiers to the Park. 4 For example, did John Carson simply send 5 some officers down there to determine whether the 6 occupiers were in the sandy parking lot? Did John Carson 7 make an effort to negotiate, to facilitate their re-entry 8 to the Park? Were there any forms of lesser force used 9 or considered? Did John Carson notify his superior and 10 say this is the use of force I'm contemplating? 11 In my respectful submission none of those 12 things happened and there's a reason. The reason is that 13 the decision to call out CMU, the decision to call out 14 CMU was one that was actually engaged in by those other 15 than John Carson. 16 Now, you've heard from my various friends, 17 I'm not going to spend a tremendous amount of time on it, 18 I simply want to point in a -- I adopt the submissions of 19 My Colleagues who have already appeared before you, but I 20 want to add two (2) things. We have two (2) major 21 members of the command team that are either 1) prescient, 22 that is they can predict the future with certainty, or 2) 23 they knew something that John Carson didn't before John 24 Carson arrived at the Command Post. 25 Firstly, Mark Wright, second in command at
261 8:25 within the first three (3) pages of a nineteen (19) 2 minute conversation says: 3 "We're taking all the Marines down 4 now." 5 I will show in the next slide how he 6 defines Marines as the CMU, but when John -- when Mark 7 Wright, when Mark Wright tells Tim McCabe, the lawyer for 8 the Attorney General, in a telephone call, "We're taking 9 all the Marines down now", that is before John Carson is 10 even on the scene. 11 Is Mark Wright prescient? How does he 12 conclude as a fact that's going to happen? 8:32, three 13 (3) minutes after John Carson arrives at Command Post, 14 Stan Korosec declares: 15 "Lacroix is on his way up to do these 16 guys." 17 How does Stan Korosec know that? 8:41, 18 Stan Korosec, the one who said he wasn't involved in the 19 planning, do you recall his evidence, Mr. Commissioner? 20 "I was not involved in the planning of 21 the decision to deploy CMU." 22 Quote, 8:41 in the scribe notes, this is 23 what the scribe notes say Korosec said. He said, quote: 24 "My team is dressed and ready in the 25 rear office."
271 Well, that sounds like a man that's 2 involved in the planning. Why would Mark Wright and Stan 3 Korosec run from the decision to deploy CMU? 4 And when I say "run", I say look at the 5 evidence of Mark Wright. Mark Wright testifies that when 6 he spoke to John Carson on the phone at approximately 7 8:05 p.m., that the deployment of CMU wasn't even on the 8 table. 9 That's what he testified to. He said that 10 the deployment of CMU at 8:05 wasn't even on the table. 11 And when I put it to him it was really him and Korosec 12 who called out CMU, he rejected that notion flatly. 13 Korosec, of course, rejects all of this. He says he had 14 nothing to do with it. Why would they run from it? 15 Now, the next slide that's in front of 16 you, Mr. Commissioner, simply provides you that 17 definition of Marines. The definition of Marines that 18 Mark Wright conceded. The definition of Marines that 19 Mark Wright conceded which was CMU. 20 But what is interesting to note is that 21 the positions of Mark Wright and Stan Korosec in terms of 22 their place in the command team, placed them uniquely to 23 make this call. That is, Mark Wright was second in 24 command of the entire operation and Stan Korosec headed 25 the Emergency Response Team, the members of which made up
281 a CMU. 2 The evidence in front of you, Mr. 3 Commissioner, is far from being the case that John Carson 4 had something to do with this decision, is that between 5 8:01 and 8:21, the man who would ultimately head up the 6 Crowd Management Unit, Wade Lacroix, was summonsed by 7 Korosec to lead that unit. That's the evidence. 8 If you believe Wade Lacroix, the head of 9 CMU, he said he was summonsed at 8:00. if you accept the 10 scribe note, it's 8:21. Either way, it's before John 11 Carson arrives at Incident Command. All of this is to 12 make the point that it wasn't John Carson in charge, that 13 reasonable man, deploying of the force, it was people 14 behind him and around him. 15 People far more hawkish than him, but 16 people who weren't prepared to be accountable; people 17 with prejudices. 18 At 8:10, Hebblethwaite, Sergeant George 19 Hebblethwaite, who was the second in command of CMU, is 20 racing to Grand Bend to retrieve his CMU uniform. That's 21 his testimony. You'll recall he testifies about the 22 thirteen (13) minute trip? 23 Now, I've had to race from Grand Bend at 24 the Oakwood, I've never done it in thirteen (13) minutes. 25 I asked him about that. I said, could your lights have
291 been on? He said they might have been. 2 George Hebblethwaite was racing, as the 3 second in command of the Riot Squad, at 8:10 to get his 4 hard TAC. The only thing you do with that hard TAC is 5 march as a riot officer, you don't do anything all. All 6 before John Carson gets to the command post. 7 Why? Why would Mark Wright and Stan 8 Korosec be so anxious? what was in their minds? What 9 was it they were trying to accomplish? 10 And this is the story, the story I say, 11 Mr. Commissioner, with respect, you ought to tell in your 12 report. You see, one of the puzzles about the usage of 13 the police force in this case, one of the puzzles was 14 always, well, they just went down to contain them. 15 If the occupiers went back into the Park, 16 then they would just be containing them. So, Mr. 17 Falconer, you know, your notion or others who argue this, 18 your notion that Mark Wright or Stan Korosec was behind 19 trying to engage in a use of force and take the Park 20 isn't consistent with how CMU was being used. 21 So there's a dissonance there. On the one 22 hand you have the theory that they were there for 23 containment, on the other hand you have those of us who 24 say they were being employed improperly. 25 There is an explanation. When Mark Wright
301 went down to the sandy parking lot in between 7:40 and 2 8:00 p.m. that night, and he saw people with bats, he 3 didn't see them doing anything with the bats. He claimed 4 they were holding them menacingly. 5 Ultimately, that story morphed into a 6 story of how eight (8) to ten (10) Natives beat a private 7 citizen's vehicle with their baseball bats, trashed an 8 innocent private citizen driving by. That never 9 happened. 10 But when he went down there and saw eight 11 (8) to ten (10) occupiers, as he put it, with bats or 12 clubs, he says he saw them outside the Park. 13 Now, he went to another checkpoint and he 14 immediately got back to Incident Command at eight 15 o'clock. And at eight o'clock, interestingly enough, he 16 has a conversation with Korosec that results in a calling 17 out of both Lacroix and Hebblethwaite going for his hard 18 TAC but every more interestingly he has a conversation 19 with Carson where he complains -- he complains -- Mark 20 Wright complains about Linton waffling, between 8:02 and 21 8:13. 22 Mark Wright complains about Linton, the 23 Incident Commander at the time, complains about him 24 waffling. He says to Carson -- he calls the alternate 25 Incident Commander that's out to dinner, he calls him in
311 front of the Incident Commander in place and says: 2 "Linton's waffling. Don't you say we 3 go get these fucking guys?" 4 Now, this reference to profanity, I use it 5 for a quote, not for effect right now, but to get the 6 quote right. We don't need all the regrettable language 7 Mark Wright used. We need the ideas he was conveying. 8 That's what you need. 9 This isn't about controversial or 10 inflammatory language, Mr. Commissioner, this is about 11 understanding what was in Mark Wright's head. He kept 12 espousing, you'll see it in the scribe notes and you'll 13 see it in his conversation with Carson, he kept espousing 14 these guys are committing offences. 15 "We got them for mischief, possession 16 of weapons dangerous. 17 Don't you say we go get these fucking 18 guys?" 19 Now, Linton's answer is, I need something 20 in writing. Now, Linton is the Incident Commander at the 21 post. Wright gets frustrated hearing that from the 22 Incident Commander so he calls the other Incident 23 Commander who is off duty in front of Linton and says, 24 This one's waffling, don't you say we go get them. 25 Now, why, why would that matter to Mark
321 Wright? And here's the story I say you ought to tell, 2 Mr. Commissioner. 3 Mark Wright knew something and so did Stan 4 Korosec. They knew that they could not enter the Park 5 without an injunction. They knew they would never be 6 permitted to, so-call, take the Park without an 7 injunction. They needed what Mark Wright called a piece 8 of paper to go in and take the Park. 9 But here's what they didn't need. Here's 10 what they could do without an injunction. What they 11 could do without an injunction is go to the sandy parking 12 lot and pick up whatever occupiers were out there with 13 those bats that he says were committing offences, the 14 offences of course being simply having the bats. 15 He saw an opportunity to go get those 16 fucking guys and thereby remove significant numbers of 17 the occupiers without a piece of paper. He didn't need 18 it. He kept talking about how they were committing 19 numerous offences and he complained to Carson right in 20 front of Linton; Daylight's a-wasting, this guy's 21 waffling, don't you say we go get them, we got them, we 22 got them for offences. 23 Now, if you look at how we define CMU's 24 mission, Mr. Commissioner, if you look at how we define 25 CMU's mission, Wright is quoted at 10:12, Mark Wright
331 advises Sarnia jail he has one (1) -- Mark Wright advises 2 Sarnia Jail he has one (1) full wing for natives. One 3 prisoner van available for twelve (12) people at a time. 4 What Mark Wright had in mind -- what Mark 5 Wright had in mind was they go down there, they get 6 whoever is out in that sandy parking lot and they give 7 some business to Sarnia Jail. That's what Mark Wright 8 had in mind. 9 And that was his way to work without the 10 piece of paper and that's why he was so impatient. He 11 had them. They had left the zone of protection, the 12 Park, and they had walked out to the sandy parking lot. 13 He had them. He had them and he was impatient and he 14 wanted to move. 15 In my respectful submission, Mr. 16 Commissioner, that's the story. That's the inexplicable 17 dissonance. It wasn't about containing. For Mark 18 Wright, he had them. 19 Now, that also informs us as to why Mark 20 Wright was concerned about moving quickly because, of 21 course, the one (1) danger that could happen, that 22 happened with the picnic tables earlier that day, is that 23 the occupiers might just go back into the Park. He 24 wouldn't have them any more. 25 In my submission, Mr. Commissioner, the
341 story of this ill advised march is a story of seconds in 2 commands who had too much authority that was unchecked. 3 We -- we talk in the business, and -- and in particularly 4 in the academic world of policing, about a notion called 5 pretext policing. 6 Now, pretext policing we address in our -- 7 in our submissions and I -- I won't go into too much 8 detail, but suffice it say this. All of the 9 justifications you've heard, the post-facto 10 justifications; well, we made this decision at 8:46, but 11 look here, look what happened at 9:15; look what happened 12 at 9:45 before we actually marched; see, we had another 13 reason to go. 14 Mr. Horton's submission yesterday was -- I 15 could never articulate it as well he did, John Carson 16 couldn't find one (1) good reason so he created eight (8) 17 bad ones. That is what pretext policing is about. 18 Pretext policing is about there actually 19 being a broken tail light. A police officer pulls 20 someone over and they have a broken tail light so on the 21 face of it there's a good reason for the actions of the 22 police officer; that is they're entitled by law to 23 intervene. 24 But pretext policing is about the fact 25 that if an officer does that not for the good faith
351 effort to notify the motorist about the broken tail light 2 or to address it but for another reason. If the broken 3 tail light is used as a pretext then it's improper. It's 4 an improper exercise of force. 5 To the extent you find that the litany of 6 events that Mr. Sandler developed in his inventory of all 7 the different things Mark Wright may have heard when he 8 was in Incident Command that may have informed, though 9 none of them are referred to on any record, right? 10 To the extent you accept any of those I 11 say they represent the post-facto justifications inherent 12 in pretext policing which is, we can find a broken tail 13 light, but that isn't the answer. Our system of law says 14 if you're motivated by an improper purpose as Mark Wright 15 was in this case, then this will not bail you out. 16 And I want to emphasize that the issue of 17 pretext policing in this case plays itself out on two (2) 18 levels. Firstly, I agree with the submissions of Mr. 19 Rosenthal and others, and Mr. Klippenstein, that all of 20 the facts that they've put forward still do not amount to 21 grounds for that march. That is, the sum total of all of 22 these facts do not rise to the level of the deployment of 23 this kind of force. 24 Having said that, that I agree, my 25 alternative submission -- and I want to emphasize this,
361 is even if you find that some of the things after the 2 decision to deploy, allegedly at 8:46, even if you find 3 that some of the things could create some possibility of 4 something for the police to address, if you find what I'm 5 going to submit to you that there was an improper purpose 6 operating, that it was something different, it wasn't 7 about actually addressing a public safety issue, it was 8 for something else, then pretext policing is all about a 9 flat rejection of the police conduct and an insistence 10 that they do things for valid purposes and that they 11 don't spend their time reconstructing justifications 12 after the fact. 13 What I want to emphasize at this stage of 14 -- of my submissions is that the conduct of the police, 15 the improper purpose that we refer to, Mr. Commissioner, 16 so we're clear, is actually addressed at length in our 17 main factum under the title, Losing the Park, at page 72, 18 paragraph 121. 19 The dynamic operating in this case -- page 20 72 paragraph 121. The dynamic operating in this case 21 isn't that surprising, but it does bear out some flushing 22 out. That is, what was the improper purpose motivating 23 these officers? Do I just say that they're all evil and 24 they're bad? No, something happened, there is context 25 to this.
371 Here's the context, pure and simple. In 2 the days and months leading up to September 4th, 1995, 3 before the occupiers took Ipperwash Provincial Park, the 4 OPP had ample notice that it was their intention, that is 5 the intention of the occupiers once the campers left, 6 once the Park closed, to occupy the Provincial Park. 7 They had ample notice, we have examples of it. 8 Now we're into arguing about well, did we 9 think it was likely, definite? We thought it was a 10 possibility. The point is, they had ample notice, 1. 11 2. The occupiers who had occupied the 12 Army Base weren't a particularly sophisticated bunch from 13 the point of view of the police. That is, from their 14 point of view they weren't dealing with the most 15 sophisticated individuals such that they should pose a 16 problem. 17 3. The OPP was receiving a great deal of 18 pressure from local politicians who claim that they 19 weren't policing enough, they weren't enforcing enough. 20 And you'll recall the evidence of Superintendent Parkin 21 that yes, on August 11th when we met with Marcel Beaubien 22 he made clear on behalf of himself personally, right? 23 Remember the reference to "personally," in 24 contrast to Mr. Beaubien's claim that it wasn't personal? 25 Personally, he was frustrated that they were under
381 policing the occupiers and on behalf of his constituents. 2 There was local pressure from the community Mayor Thomas, 3 there was pressure from Beaubien and his constituents. 4 There was pressure from the cottagers, under-policing. 5 That's the context leading up to September 4th. 6 The response of the OPP, quite properly, 7 in keeping with their policy is, we're trying to maintain 8 a level of peaceful coexistence here and we're not going 9 to enforce against one to fill a political agenda of 10 another. It -- to some extent, they were trying to play 11 it out and let the Army Base situation play itself out 12 with the Federal Government. 13 September 4th, 1995. Stan Korosec, head 14 of ERT, the one who ultimately says, "Their day will 15 fucking come", right? Stan Korosec is at the Ipperwash 16 Provincial Park. The day they expect them to take over, 17 the occupiers do exactly that, they come in. There is a 18 brief skirmish in which a window on a cruiser is broken. 19 Stan Korosec, and particularly John 20 Carson, decide that there is about to be violence on a 21 serious level and they make a good decision. 22 They say to themselves, Let's -- well, 23 there's only a few campers left, let's get the campers 24 out, it's a hundred and nine (109) acres of pine trees, 25 not maples, a hundred and nine (109) acres of pine trees,
391 what's worth getting hurt about? 2 They make a good decision. John Carson 3 makes a good decision. He decides to withdraw from the 4 Park and thus the term, they lost the Park, the OPP lost 5 the Park, the occupiers began their occupation. That 6 dynamic of losing the Park informs everything that 7 happens in the next two (2) to three (3) days. 8 You recall the evidence of Wade Lacroix, 9 the head of CMU, that in the time period immediately 10 following the occupation of the Park, Stan Korosec came 11 to him, as he put it in the trial, and he rejected until 12 I showed it to him then he accepted it, Stan Korosec came 13 to him and reached up to him and said, Now, I wonder if I 14 did the right thing, leaving the Park? 15 He agreed that it was like a junior 16 officer seeking some reassurance he'd done the right 17 thing. And Wade Lacroix said to him, of course you did, 18 no, it's not worth getting hurt over, it's a hundred and 19 nine (109) acres of pine trees, nothing else there. 20 John Carson is asked, he's asked by his 21 boss, he's asked by Superintendent Parkin, the quotes are 22 all in front of you, Mr. Commissioner, pages 71 through 23 74. He's asked by his boss, he says, The chief's going 24 to want to know how we lost containment. And the more 25 importantly, right, he -- there is a very poignant quote
401 between Parkin and -- and Carson. You'll see it at 73, 2 paragraph 122 of our submission. 3 4 (BRIEF PAUSE) 5 6 MR. JULIAN FALCONER: Page 73, paragraph 7 122 of our main submission. If you go to the second 8 quoted page, line 1. 9 "PARKIN: They're going to say we got 10 caught by surprise." 11 And then I ask: 12 "Is that accurate?" 13 And Parkin says: 14 "Yes, sir." 15 "Q: Well, not." 16 That's Carson. Then Parkin again: 17 "They're going to say that we knew this 18 was going to happen." 19 And I ask him: 20 "You're canvassing all the different 21 criticisms that are going to be 22 levelled at Carson and at you?" 23 And he says: 24 "It would be criticism against the OPP, 25 but I wasn't criticising Carson.
411 They're going to say we got caught by 2 surprise. They're going to say that we 3 knew this was going to happen." 4 You see, the OPP was in a tricky position. 5 They were getting it from all angles. They'd lost the 6 Park. Right in the moment that they were accused of 7 under-policing, they blew it with respect to a bunch, 8 from their perspective, roughshod occupiers. 9 John Carson used the words, We just didn't 10 have the horses to keep the Park. 11 "We just didn't have the horses to do 12 it." That's a quote. 13 John Carson's decision was a good 14 decision. It was a good decision, but what happens in 15 the next two (2) days is a good decision is put under 16 what has to be the single most intense magnifying glass 17 of John Carson's career, because a good decision on 18 September 4th became a bad decision at 2:00 p.m. on 19 September 6th, according to the Premier, personally. 20 Premier Harris is critical of the OPP. 21 You shouldn't have let this happen. You should have done 22 something right away. 23 What John Carson knew, which was 24 discretion was the better part of valour, Mike Harris 25 personally rejected as a sign of weakness. What happens
421 to a first time Incident Commander when he hears that his 2 judgment is being directly called into question by the 3 most powerful political leader of the Province? What 4 happens inside that incident commander's head? 5 John Carson would have us believe nothing. 6 I'm not affected by the cottagers. I'm not affected by 7 the local politicians and I'm not affected by Mike 8 Harris. My name is John Carson and I'm a robot. 9 That's what the position advanced by the 10 OPP totals to. That's the sum total of their position. 11 None of it affected us, we're a robot. Well, I have 12 proof that they're not a robot; the march. Poorly 13 organized, poorly planned, poorly deployed, poorly 14 briefed, misguided. It was a sign of action. 15 Mike Harris was pushing against an open 16 door when he came to the police in the form of Mark 17 Wright. Not so with John Carson, but John Carson had 18 exercised restraint on September 4th, 1995 and where did 19 it get him? Where did it get him? 20 It got him being reamed out at the highest 21 levels of government; that's where it got him. 22 COMMISSIONER SIDNEY LINDEN: That may be 23 exaggeration. "Reamed out" is a word that I think you'd 24 better be careful. 25 MR. JULIAN FALCONER: Fair enough. But I
431 say that -- I say, in effect, that's what happened 2 because this is where I intend to show the interplay 3 between the dining room and the march. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 Just stay with the evidence. 6 MR. JULIAN FALCONER: Fair enough. 7 COMMISSIONER SIDNEY LINDEN: I'm 8 following the story. Stay with the evidence. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 MR. JULIAN FALCONER: Thank you. This 12 case when we say, what happened to John Carson? What 13 happened to a man who, by all accounts, does appear to be 14 somewhat of a dove and we use the word 'dove' because we 15 have Deb Hutton using the word 'hawkish', what happens 16 when a man by all accounts who seems to be somewhat of a 17 dove ends up leading this bizarre show of force? How 18 does it happen? 19 Well, I refer back to a good decision on 20 September 4th and I say to you, Mr. Commissioner, that 21 good decision wasn't just second guessed. Second 22 guessing is mild. That good decision was challenged. 23 John Carson's judgment was challenged and there is no way 24 -- there is no way to take any other inference from the 25 quotes from Ron Fox. He, that is the Premier, is critical
441 of the police action; they should have gone in right 2 away. 3 He -- the clear -- and then this same 4 criticism is repeated to Coles. That is at 2:00 p.m. on 5 September 6th, Ron Fox repeats Premier Harris' challenge 6 to Incident Command to both Carson and then to Coles. 7 You can see this in the table we set up under what we 8 colloquially refer to as the Voices of the Premier Chart. 9 You can find the Voices of the Premier Chart at page 26, 10 paragraph 53 of our submissions. 11 The express wording -- it's the next page 12 actually, starting at page 27, and we created this chart 13 and we call it the voices of the Premier because it 14 represents from pages 27 to 30 of our submission; it 15 represents the various different ways messaging was heard 16 by Incident Command. 17 At page 29, the message I'm talking about 18 that's conveyed at 2:00 p.m., the key message that's 19 conveyed to John Carson is at page 29. According to Ron 20 Fox, Harris said: 21 "The OPP in my opinion made mistakes. 22 They should have done something right 23 at the time. And I'm sure it will all 24 come out in an inquiry sometime after 25 the fact."
451 That same challenge, that same second 2 guessing of John Carson is then conveyed to John Carson's 3 boss in the presence of Carson, Coles. Fox repeats it. 4 "Okay, the Premier is quite adamant, 5 this is not an issue of Native rights 6 and in his words, I mean, we've tried 7 to pacify and pander to these people 8 for too long, it's now time for swift 9 affirmative action. I walked in the 10 tail end, Chris,..." 11 And that's Chris Coles. 12 "I walked in the tail end, Chris, with 13 him saying things like, 'well, I think 14 the OPP have made mistakes in this one. 15 They should have just gone in.'" 16 Now, I respectfully submit to you that 17 what the Premier has done, what the Premier has done is 18 the unthinkable. He's expressed an opinion to someone 19 who is from the OPP as the Liaison Officer and quite 20 predictably, in fact I say quite deliberately on the part 21 of Premier Harris, that opinion was then conveyed to 22 Incident Command. 23 We want to know why a swift, affirmative 24 action happened between 8:00 and 11:00 that night in an 25 unplanned, poorly-briefed, horribly disorganized fashion.
461 The answer lies in Mike Harris' challenge to anything 2 other than swift action. 3 Mike Harris challenged John Carson, You 4 shouldn't have backed off, you shouldn't have followed 5 through with the kind of approach you people have 6 historically taken, pacifying, pandering too long. 7 With great respect, when we want to 8 understand how political interference played a role in 9 this case we don't blame Ron Fox for being from the OPP, 10 a Liaison Officer, because that's what he was. 11 Where do I get the words from the OPP, a 12 Liaison Officer? I get them from Mike Harris. On May 13 29th, 1996, that's how he described Ron Fox's role. How 14 do I know that at least Deb Hutton, Mike Harris' 15 assistant, knew that that's who he was? Well, she used 16 him in that fashion for hours on end at IMC meetings. 17 Ron Fox would check with Incident Command. 18 Ron Fox would advance the police perspective. Ron Fox 19 briefed the Premier on the police perspective. It wasn't 20 predictable, it was expected that Ron Fox would convey 21 the Premier's disapproval to Incident Command. It was 22 expected. 23 Now, I say challenging John Carson's 24 judgment, second-guessing John Carson, made John Carson 25 gun shy, gun shy to stop a train that had left, the CMU
471 train. John Cason could have stopped that train when he 2 arrived at 8:29 and how did -- how did he put it? How 3 did he put it? How did he put it? The way Stan Korosec 4 put it? When John Carson arrived he could have called 5 off the team that was dressed and ready in the rear 6 office. Right? 7 That's -- that's how Stan Korosec 8 described his team as dressed and ready. He could have 9 stopped that train, but Mike Harris had let him know what 10 he thought of restraint. Mike Harris had let him know 11 what he thought of the old way of peaceful resolution. 12 I want to deal with in a little more 13 detail this dining room meeting. 14 15 (BRIEF PAUSE) 16 17 MR. JULIAN FALCONER: And this takes me 18 to the second event. This dining room has a story to 19 tell and I say the story's not that complicated. 20 The dining room meeting happened 21 completely predictably on the heels of an IMC meeting. 22 The dining room meeting was the product of another second 23 in command, Deb Hutton. 24 Deb Hutton left the IMC meeting on 25 September 6 frustrated and upset. She might have even
481 have said the words -- she didn't, that's not the 2 evidence. This is argument. This is advocacy. 3 She might have said, Daylight's a wasting. 4 I can't take this waffling anymore. She might have said 5 that, but she didn't say that. 6 COMMISSIONER SIDNEY LINDEN: She -- 7 MR. JULIAN FALCONER: You know what she 8 did say? 9 COMMISSIONER SIDNEY LINDEN: -- didn't 10 say that. 11 MR. JULIAN FALCONER: She didn't say that 12 but what did she say? What she said was: 13 "This was a complete waste of my time. 14 This will never happen again." 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 17 CONTINUED BY MR. JULIAN FALCONER" 18 MR. JULIAN FALCONER: She was frustrated 19 and upset at the lack of action; another second in 20 command who was upset and frustrated. 21 Now, what does a second in command do when 22 they're upset and frustrated? Well, in the case of Mark 23 Wright they call John Carson. In the case of Deb Hutton 24 she turns up the volume, she calls Mike Harris. That's 25 what she did.
491 And this is my argument to you. What she 2 did was she went to Cabinet which she has access to and 3 she said, They're not hearing us. Mike, we have to turn 4 up the volume. 5 The dining room meeting could only have 6 been convened at the behest of the Premier's Office. It 7 is inconceivable that it was anyone else. It is 8 ridiculous to suggest, given the nature and control that 9 Mike Harris and Deb Hutton exercised over this particular 10 issue that it was convened by anyone else. It is 11 ridiculous. 12 Interestingly enough and -- and to be fair 13 to the evidence, Mr. Runciman said he had actually no 14 direct knowledge of who convened the meeting, but 15 interestingly enough, there is a reference by Mr. 16 Runciman that I found quite telling. 17 And that reference can be found at page 18 43, paragraph 70 of our main submission. It's a quote 19 from Mr. Runciman. 20 Now, to be fair to the evidence, Mr. 21 Runciman says, I don't know who actually convened it, but 22 it sounds reasonable it would have been the Premier's 23 office. That was the gist of his evidence, basically. 24 He says, It sounds reasonable, but I don't know that for 25 a fact.
501 But then he says something at -- and I've 2 got it set out at page 43 of my submission. He's asked: 3 "Q: When you say that you reflected 4 on the attendance of Premier Harris..." 5 Do you see that? 6 "...is it fair to say what you were 7 trying to convey to the Commissioner 8 was that on reflection you might have 9 reconsidered having Harris attend that 10 meeting? 11 A: Well, that wasn't my -- my role to 12 play, having the ability to advise the 13 Premier when or when not to attend the 14 meeting. The meeting was called by his 15 staff and I attended as requested." 16 The meeting was called by his staff and I 17 attended as requested. 18 Runciman believed that meeting was called 19 by his staff. He didn't believe as Solicitor General 20 he's in a position to argue. 21 Now, if the meeting was called by Mike 22 Harris' staff, is it conceivable that Deb Hutton was 23 bypassed? It's ridiculous, she wasn't bypassed. She was 24 in charge of this brief. 25 If the meeting was called by his staff, it
511 was called either on the direct order of Deb Hutton or 2 with her approval. Anything else is inconceivable on the 3 facts that we know on her personal control of this case. 4 In my respectful submission, the finding 5 that ought to be made is that Bob Runciman got it right 6 and that Deb Hutton, in a fit of frustration, brought all 7 the players together, all of the players together to turn 8 up the volume. 9 And what Mike Harris did, when he uttered 10 the magic words, "I want the fucking Indians out of the 11 Park", at the start of the meeting, was to turn up the 12 volume. 13 And why did he need to turn up the volume? 14 From the point of view of Deb Hutton, his second in 15 command, daylight was a-wasting, they were waffling. 16 Tim McCabe said the best I can do is get 17 an injunction by Friday. That's not what Deb Hutton 18 wanted. The Premier wants them out in a day or two (2). 19 He doesn't want a piece of paper, to have another piece 20 of paper, to have another appeal. 21 No, we're a new government. We don't work 22 with Aboriginal rights. This is a law and order issue. 23 A political agenda was playing itself out. 24 In a free and democratic society, it is 25 inimical to our principles of democracy for a government
521 to use armed force as a means of completing its political 2 agenda, but that is precisely what unfolded on September 3 6, 1995 when Ron Fox, Tom Patrick (sic) and another 4 female police officer were summonsed to that room as 5 liaisons. 6 In my respectful submission, this was not 7 a fluke. Deb Hutton and her staff knew exactly who Ron 8 Fox was. They wanted him to hear the message. And it 9 worked. He heard the message. He was offended. 10 Mark Sandler has said, more than one (1) 11 occasion, and he's right, when you look at the Fox/Carson 12 conversation on September 6th, 1995, at 2:00 p.m. the one 13 thing that is clear is that they both wholesale reject 14 Mike Harris' approach. 15 They're apparently offended. If you look 16 at Fox's statements and Carson's responses. These are 17 two (2) reasonable police officers that find what they're 18 hearing a bad thing. 19 Mark Sandler is right, but the more 20 interesting question is, when you have your judgment 21 challenged by the most powerful political figure in the 22 Province when you exercised restraint, how quick are you 23 going to be to apply the brakes at 8:29 p.m. on September 24 6th, 1995 when all of the people under you have got that 25 train underway?
531 Now, before -- before -- and you'll see 2 this at page 62, paragraph 100 of my submission. 3 Before, before they understood the level 4 of heat and the level of intensity, of scrutiny that was 5 going to come down on their government, before Mr. Harris 6 and Ms. Hutton understood the extent of it, they spoke in 7 a matter of fact terms about Ron Fox. You'll see it at 8 page 52, paragraph 100 of my submission. 9 In a matter of fact fashion, Mike Harris 10 advises the House, quote: 11 "Invited from the OPP was the liaison 12 officer who was assigned to that 13 committee in these circumstances." 14 You recall how Deb Hutton proudly 15 testified to how she controlled answers by Ministers in 16 briefings? That she was the goto person on preparing 17 briefing books on the issue. She didn't just prepare 18 Harris, she prepared others to coordinate with Harris; 19 that was Deb Hutton's role. 20 It isn't surprising that Deb Hutton would 21 have gotten it right that Ron Fox was invited from the 22 OPP as a liaison officer. They didn't know what rode on 23 that at the time. They simply declared what they knew in 24 relation to the IMC meetings. No one knew. That is no 25 one outside of Mike Harris, Deb Hutton and those who were
541 at that meeting, no one knew about the dining room 2 Meeting. 3 But what I want to emphasize is in a 4 moment of pure clarity about who Ron Fox was it is very 5 telling how Mike Harris describes Ron Fox before -- 6 before the defensive postures start being adopted about 7 their knowledge of Ron Fox; matter of fact, invited from 8 the OPP was a liaison officer. 9 When you ask Bob Runciman to acknowledge 10 that he knew that he says, Of course, yes. I called him 11 that. I showed him in Hansard where he called him that. 12 It wasn't an issue about who Ron Fox was. Debt Hutton; I 13 don't recall. 14 We don't have any tapes of Deb Hutton so 15 she doesn't apologize. She says, I don't recall. She 16 can't help us. She can't help us with the most minimal 17 basic questions. Now, either a) because she suffers from 18 a terrible memory lapse, or b) because she's being self- 19 serving. In my respectful submission b) is the 20 regrettable obvious conclusion on her credibility. 21 In terms of the process -- in terms of the 22 process that took place, it's propriety, that is the 23 propriety of the dining room Meeting, we don't have to 24 look very far to understand -- we don't have to look very 25 far to understand its impropriety.
551 A principle in the courtrooms that you are 2 more than familiar with, Mr. Commissioner, is the concept 3 of consciousness of guilt. When we weigh credibility of 4 individuals we often look at how individuals behave after 5 they've done something to determine what was in their 6 minds at the time of the act. 7 Why do we do that? Well, we don't have -- 8 we don't have a way of reading their minds at the time 9 but we can look at conduct. Hence, if somebody takes the 10 standard flatware or the cutlery in their draw and starts 11 tossing it in the Don River it's probably a good sign 12 that they used it for something bad. 13 If somebody's asked a basic question, Did 14 you go out that night, and a person is absolutely 15 insistent, I stayed home, but they were seen out that 16 night, it's probably a fair indication they're hiding 17 something bad. 18 If somebody's asked, did you have an 19 informal meeting and they don't tell you about the dining 20 room, it's because they knew they did something bad. 21 With the greatest of respect to the former 22 Premier when he, on the countless occasions, failed to 23 disclose the existence of the dining room meeting along 24 with his Ministers -- not one (1) person breathed a word 25 about that dining room meeting in the house right up
561 until October 2001. 2 A passage of time between May '96, when it 3 first came up in the house, that is Ipperwash, and 4 October 2001 the dining room meeting didn't exist. The 5 only meeting that Mike Harris personally attended where 6 decisions were made, the only meeting that Mike Harris 7 attended in which police officers were present from the 8 OPP was the liaison officer, wasn't mentioned. 9 Lawyers call is consciousness of guilt. 10 so my submissions refer to that. And it is in that 11 category that I now address what I would say is probably 12 the most regrettable aspect of this inquiry, that Mike 13 Harris lied. 14 It's regrettable because even those of us 15 who may not agree with his politics, we all look for 16 inspiration from our leaders. Even the leaders we didn't 17 elect. And we all expect a standard of conduct and we 18 hope for it in our democracy because if our -- if we 19 can't trust our leaders to tell the truth then we're 20 lost. 21 Power is about responsibility. Is Mike 22 Harris prepared to have his credibility determined by 23 you, Mr. Commissioner? At first blush one would have 24 thought, yes. But when you look at the submission that 25 Mr. Downard put in front of you, at the end of his
571 submissions he says, he says: 2 As a formality, you, Mr. Commissioner, 3 don't have the jurisdiction to 4 determine if Mike Harris lied to the 5 people of Ontario in the Legislature." 6 That's the position Mr. Downard took in 7 his submissions. You don't have the jurisdiction to say 8 whether he lied or not. Now, I find that an 9 extraordinary submission 10 I find that an extraordinary submission 11 for two (2) reasons. Hundreds of pages are spent by his 12 counsel telling us how he told the truth and then at the 13 end he says, By the way, you don't have the jurisdiction 14 to give the finding that ALST wants. Not, you shouldn't. 15 Not, they're wrong, we're right. You don't have the 16 jurisdiction. I'm not prepared to let you judge my 17 credibility. 18 That's an extraordinary submission. It 19 speaks to consciousness of guilt frankly. I want to back 20 up. I want to address the issue of the dining room 21 meeting and the failure to disclose it. 22 Now, the slide in front of you has what 23 Mr. Harris told us on February 20th, 2006. February 24 20th, 2006, I asked Mr. Harris about the failure to 25 disclose. He says:
581 "I didn't disclose the existence of any 2 meetings, nor was that the question." 3 And you'll understand that I was asking 4 him about the six (6) months that had passed by between 5 May and November of '96 when he's in the House and he 6 never discloses the meeting and his answer to us is, I 7 was never asked. 8 Now, parenthetically I point out that 9 there's an extraordinary parallel with what Charles 10 Harnick said about why he didn't ever say in the past why 11 the Premier -- why he never said in the past that the 12 Premier had said: 13 "I want the fucking Indians out of the 14 Park." 15 He said: 16 "I was never asked." 17 Well, he told you, Mr. Commissioner, that 18 he was never asked, but on May 29th, 1996, the member for 19 Scarborough/Agincourt Gerry Phillips asked the following. 20 The first day that this matter -- the first day that this 21 matter was dealt with in a substantive way in the House: 22 "Q: Were you involved in any informal 23 meetings where any informal opinions or 24 directions were expressed about how 25 this matter might be dealt with in
591 order to ensure that the Ipperwash 2 Provincial Park occupation did not 3 continue?" 4 Were you involved in any informal 5 meetings? Gerry Phillips asked the question. Premier 6 Harris in the House May 29th, 1996, that same day, in 7 answer to this question right after this question is 8 asked: 9 "Was I involved in informal meetings? 10 I don't know what an informal meeting 11 is. When I got to bed at night is that 12 an informal meeting? When I sit and 13 talk with people is this an informal 14 meeting?" 15 That's not candour, Mr. Commissioner, 16 that's gamesmanship. Before you, Mr. Commissioner, Mr. 17 Harris testified that against his lawyer's advice he had 18 made a determination from the outset to be completely 19 candid and tell all in the House in order to dispel any 20 notion of political interference. This isn't telling 21 all. This is the opposite of telling all. 22 Now, that's May 29th, 1996. Over a year 23 later on August 26th, 1997, as the intensity picked up in 24 terms of demands for explanations as to the decision- 25 making process that the Government engaged in on August
601 26th, 1997, Mr. Harris said the following about the 2 decision-making process: 3 "The recollection of Ms. Hutton is that 4 she had relayed information to me by 5 phone and I think everything else is a 6 matter of public record. Any results 7 from any of the meetings that took 8 place were in Cabinet on Wednesday 9 where as you know the Attorney General 10 suggested and Cabinet accepted the 11 advice and the recommendation that we 12 seek an injunction." 13 On August 26th, 1997, Michael Harris told 14 the people of Ontario that the decision by the Government 15 was a Cabinet decision made in Cabinet. That is not 16 true. That error, which he told you was an unintentional 17 error was never corrected. Why? 18 The reason the error could not be 19 corrected by Mike Harris and Deb Hutton, because she 20 prepared the answers -- the reason it couldn't be 21 corrected is it would have necessitated disclosing the 22 existence of the dining room meeting, consciousness of 23 guilt. 24 Mike Harris and Deb Hutton knew that they 25 had crossed the line in turning up the volume. Not only
611 did they knew (sic) that they had crossed the line in 2 turning up the volume, they knew that the statements they 3 made, the statement that Mike Harris made, the 4 indiscreet, repugnant, offensive, racist statement, "I 5 want the fucking Indians out of the Park", was something 6 that could never be made public or he'd be ruined. They 7 knew it. 8 9 (BRIEF PAUSE) 10 11 MR. JULIAN FALCONER: In our submissions, 12 beginning at page 63, Mr. Commissioner, we set out how 13 the various opportunities presented themselves for Mike 14 Harris to come clean. 15 And it is so important to understand that 16 this was not a fluke. I, as an officer of the Court, 17 have the responsibility in making the submission I'm 18 making to you today, to honestly canvass the record and 19 not simply pick a twig here or there to create an 20 impression of a lie. 21 I have to look before I use that word. 22 But when you look at the number of chances that Mike 23 Harris had to come clean and didn't avail himself of 24 them, when you look at the impropriety of the meeting, 25 the unique nature of the meeting, it is beyond argument,
621 beyond contention that this was a classic example of a 2 cover up. 3 With respect, Mr. Commissioner, I want to 4 direct your attention first of all to page 63 of my 5 submission, paragraph 105. 6 I do so for a reason. I want to explain 7 the story for you, Mr. Commissioner. I want to make sure 8 you get the whole story. 9 At page 63, paragraph 105, there is a 10 reason that this term "informal meeting" was bandied 11 about so quickly. There is a reason. 12 And the reason is to be found at paragraph 13 105 in the words of Gerry Phillips. At line 9, I'm 14 trying to get right to the quote, because of time. At 15 line 9, page 63, paragraph 105, we quote from Hansard on 16 May 29th, 1996. Quote: 17 "The Premier was never directly 18 involved in formal meetings on 19 Ipperwash." 20 Were the words attributed to Mr. Harris' 21 press secretary that morning on May 29th, 1996. Now, I 22 said I would tell a story and here's the story. 23 Mr. Harris came to this Court and he told 24 you, Mr. Commissioner, that on the morning of May 29th, 25 1996, a number of events happened that put this matter in
631 the House, that propelled the matter far more into public 2 scrutiny. 3 There was a newspaper article in the 4 Toronto Star on the morning of May 29th, 1996, 5 identifying Superintendent Ron Fox as a police officer 6 from the OPP who was involved in IMC meetings. 7 Mr. Harris testified before you, Mr. 8 Commissioner, he testified that he remembered that 9 morning. He remembered him and Hutton and his other 10 staff being shocked, the term he used was "shocked", at 11 the fact that Ron Fox was an officer and that he had been 12 at the IMC meeting and that he had been at the dining 13 room meeting. 14 That was the gist of the evidence. You'll 15 recall, though, the cat and mouse that I had to engage in 16 to get him to repeat that. 17 With respect, Mr. Commissioner, you're 18 entitled to weigh that cat and mouse in credibility 19 considerations, and I ask you to do that. 20 I simply asked him to repeat what he told 21 you in the morning. He didn't want to do it. 22 Mr. Commissioner, in acknowledging that he 23 directed his mind to both the issue of who Ron Fox was 24 and the convening of the dining room meeting on the 25 morning of May 29th, 1996, it became impossible for Mr.
641 Harris to explain how, by the afternoon of May 29th, 2 1996, he gave the answer he did about informal meetings 3 and being in bed. 4 But I want to give you context, Mr. 5 Commissioner, and the context is to be found at paragraph 6 105. What happened was, that as a means of damage 7 control, the press secretary commented that morning, 8 quote: 9 "The Premier was never directly 10 involved in formal meetings on 11 Ipperwash." 12 You see that at line 8 through 10, right? 13 Now, Gerry Phillips, never known for being a lightweight, 14 picked up on the fact that the press secretary referred 15 to formal meetings. 16 So he did the obvious. He asked Mr. 17 Harris, what about informal meetings? And that triggered 18 the bedtime response. That's the story; that's what 19 happened. 20 Now, at page 63 we identify two (2) 21 opportunities Mr. Harris had on May 29th, 1996, to tell 22 the truth about the dining room meeting. 23 The first one actually came when Mr. 24 Harris explained, when he explained to the House that all 25 of the briefings he obtained were in the context of the
651 IMC meeting. 2 He came to Court here and he told you, Mr. 3 Commissioner, that the dining room meeting was a method 4 for him to get a status update. 5 And so on May 29th, 1996, he mislead the 6 House when he told the House that all the briefings he 7 got were through the IMC meeting. 8 On May 29th, 1996 he had an opportunity to 9 say and I was also briefed in the dining room but he 10 chose not to. The very meeting he was shocked about that 11 morning had apparently slipped his mind. That was the 12 first chance. 13 The second chance was when Gerry Phillips 14 asked the direct question. The second chance was when 15 Gerry Phillips asked the direct question, were you 16 involved in informal meetings? His answer he simply 17 disclosed nothing. 18 Now, Mike Harris didn't only have two (2) 19 chances. He had a third chance. You see it at page 65 20 of our submissions, paragraph 109. At page 65, paragraph 21 109 we see that Mike Harris on November 6th, 1996 is 22 asked a series of questions again by Mr. Gerry Phillips, 23 Member of Scarborough-Agincourt. 24 Mr. Phillips doesn't accept Mr. Harris' 25 explanations and at page 66, line 17 of the transcript;
661 that is page 66 of my factum. If you go to the second 2 part you see line 16, it's two-thirds of the way down the 3 page you see a line 16. 4 Mr. Harris says, on November 6th, 1996: 5 "I have given all of the information 6 that I've been aware of every day at 7 every instance and continue to do so 8 going back to the events over a year 9 ago." 10 Mr. Harris declares to the people of 11 Ontario he's told all. He's told all but he hasn't 12 revealed the meeting in which he made the final call 13 about the injunction. He hasn't revealed the meeting he 14 was shocked about the morning of May 29th, 1996. He 15 hasn't revealed the only meeting in which he was in the 16 same room as police officers over Ipperwash and he hasn't 17 revealed the meeting in which he said "I want the fucking 18 Indians out of the Park". 19 It is absurd for Premier Harris to appear 20 before you, Mr. Commissioner, and say he was never asked. 21 It is absurd for him to make that in a submission but it 22 speaks to the credibility of his position. 23 Now, that's three (3) chances. Mr. Harris 24 had a fourth chance to come clean, page 68, paragraph 25 113; that is August 26th, 1997. This was the fourth
671 occasion where he is asked what happened and Mr. Harris 2 describes a cabinet meeting that never took place. 3 The Attorney General suggested and cabinet 4 accepted a process that never happened. Ipperwash never 5 went to cabinet in that time period, September 4th to 6 September 6th, 1995. In fact, the meeting that Mike 7 Harris and his staff convened was in an informal setting 8 in the dining room. Cabinet never considered it. 9 What Mike Harris did on August 26th, 1997, 10 is create a veneer of legitimacy that he never corrected. 11 How many times did Mike Harris address Ipperwash without 12 ever revealing the existence of the dining room meeting? 13 How many times was he present in the House when questions 14 were asked about Ipperwash prior to October 9th, 2001? 15 Seventeen (17) times. Seventeen (17) times Mike Harris 16 could have told the truth and chose not to. 17 At page 29, paragraph 57 of our reply 18 submission, I don't know if you have it there, it's the 19 thin -- if you could turn to page 29, paragraph 57. Page 20 29, paragraph 57 of our reply submission we actually set 21 out all of the appearances Mike Harris made before the 22 Legislature on the issue of Ipperwash. 23 There are three (3) dates missing from 24 that list of appearances which I have incorporated in my 25 submission and, of course, have misplaced. The three
681 dates plus these dates add up to twenty (20) occasions 2 between May 29th, 1996 and October 9th, 2001. 3 Suffice to say, Mr. Commissioner, in all 4 these times, and you see the table in our reply 5 submissions at page 29, paragraph 57, you see all the 6 dates? 7 May 29th, November 6th, December 4th, 8 April 22nd, April 30th, on and on, through three (3) 9 tables. Three (3) tables, three (3) charts, on and on, 10 all these appearances. 11 Each time, the dining room meeting is 12 never referred to, even though each time opposition keeps 13 pressing him on what was the process you used to make 14 your decisions. 15 And the only process that Mike Harris ever 16 used to make a decision on Ipperwash of substance was the 17 dining room meeting, but it was never disclosed. 18 Consciousness of guilt. 19 On October 9th, 2001, when notes from one 20 (1) of the bureaucrats actually came out, her notes were 21 revealed in the litigation and she referred to a meeting 22 and Mike Harris, the one who said informal meeting, when 23 I'm in my bed, is that an informal meeting? That man who 24 says he was never asked, on October 9th, 2001 he said the 25 following:
691 "There was a meeting, as you know, that 2 I indicated I attended. Mr. Scott, 3 whatever his name is, at the time, I 4 wasn't aware he was at the meeting. It 5 was an informal meeting." 6 Mike Harris admits that which had been 7 sought from him for years and years and years. That he 8 had been at an informal meeting with police officers 9 because Mr. Scott, of course, is the Patrick Scott, the 10 OPP officer who was assisting Ron Fox at that meeting. 11 I apologize. Scott Patrick. I've got it 12 wrong, just like Mr. Harris did. Scott Patrick, a police 13 officer is who he is referring to. 14 And in my submission, what you -- what you 15 can direct your mind to, with respect, and your findings, 16 is that on October 9th, 2001, Mr. Harris had no 17 difficulty classifying that dining room meeting as an 18 informal meeting. 19 Bookends, Mr. Commissioner, bookends. We 20 go to May 29th, 1996. Were you at an informal meeting? 21 No answer, obfuscation, concealment and then October 22 2001, I was at an informal meeting. 23 Why fail to conceal -- why fail to 24 disclose the meeting? Why hide the meeting? What would 25 have prompted a Premier to engage in this level of
701 deception? 2 If we're going to responsibly tell this 3 story, it's essential that we provide the motives, the 4 problem in what Mike Harris knew he did. 5 In the legislature on May 29th, 1996, Mike 6 Harris announced to the House: 7 "When it came to whatever might have 8 been the response to that, clearly my 9 understanding would have been that 10 there is a matter for the OPP to deal 11 with." 12 Now, I have triple dots, but you can check 13 the Hansard extract, because it was put -- it was put to 14 him. 15 "Therefore we would not have offered 16 any opinion." 17 Mike Harris told the people of Ontario, 18 not only did he not give an express direction, but he 19 never offered an opinion to the OPP. That's what he told 20 the people of Ontario on May 29th, 1996. 21 Is that viable based on the evidence 22 before you, Mr. Commissioner? Is that viable? 23 The staffer for the Attorney General 24 Harnick described the opinion that Mr. Harris expressed 25 in the following terms.
711 "The opinion that Mr. Harris expressed 2 was he was disappointed that the OPP 3 had allowed the situation to get this 4 far." 5 This is Mr. Moran. Far more a loyalist to 6 Mr. Harris than otherwise. Mr. Taman, the Deputy 7 Attorney General, described the opinion that Mr. Harris 8 expressed at the dining room meeting as following: 9 "He would have thought that the police 10 would have the Aboriginal citizens out 11 of the Park by this time. He expressed 12 that opinion at the meeting." 13 There were more opinions expressed. You 14 know -- you -- I reviewed a portion of the transcript 15 with you already but it is essential to appreciate, I say 16 to you, Mr. Commissioner, that Ron Fox's description to 17 both John Carson and then to Chris Coles of the same 18 words and then Mike Harris' actual adoption when Mark 19 Sandler cross-examines him that in essence he was -- did 20 have those concerns and may have shared those concerns, 21 tells us unequivocally that he did express the opinion. 22 As Ron Fox put it: 23 "The OPP in my opinion..." 24 These are Harris' words at the dining room 25 meeting.
721 "The OPP in my opinion made mistakes. 2 They should have done something right 3 at the time. He said that I'm sure it 4 will all come out in an inquiry 5 sometime after the fact." 6 He expressed an opinion to the police. It 7 wasn't just Ron Fox. Charles Harnick was asked as well 8 whether the Premier expressed some dissatisfaction over 9 the OPP's performance and Mr. Harnick said, quote: 10 "Well, I think I tend to agree with 11 that. Given what I recollect is him 12 coming to the conclusion that once in 13 the Park there was no way to get them 14 out." 15 And the premise that he agreed with was 16 that the Premier had expressed dissatisfaction; opinion, 17 opinion, opinion. 18 Mike Harris knew that he crossed the line. 19 Deb Hutton, who prepares him in the House, knew that he 20 crossed the line. 21 In my respectful submission there was only 22 two (2) directions Mike Harris could go. He could tell 23 the truth on May 29th, 1996, just flat out say what 24 happened and take his lumps or he could engage in a 25 cover-up.
731 Now, with respect, the Webster's 2 Dictionary tells us a cover-up is a device or stratagem 3 for masking or concealing. Quote: 4 "A usually concerted effort to keep an 5 illegal or unethical act or situation 6 from being made public." 7 Seventeen (17) times in the House. In my 8 respectful submission this fits every definition of 9 cover-up. This has no hallmarks of being candid with the 10 people of Ontario. The reason Aboriginal Legal Services 11 of Toronto seeks what we seek from you, Mr. Commissioner, 12 is that at the heart of this Inquiry, at the heart of 13 this case is the role that Mike Harris and his government 14 played in Ipperwash. 15 Now, if he was not candid with the people 16 of Ontario through the only method he accounts for his 17 behaviour, in the House, then that finding needs to be 18 made. The direction the medicine wheel sends us in, 19 reflection is about telling the truth even if that truth 20 is hard to say. 21 What do we hear from Mr. Harris at page 27 22 of his submissions? Quote: 23 "As a formality, it is also 24 respectfully submitted that the finding 25 requested by ALST is plainly beyond the
741 scope of this Inquiry's terms of 2 reference." 3 The finding we seek, Mr. Commissioner, is 4 quote: 5 "The existence and circumstances of the 6 dining room meeting were deliberately 7 concealed from the people of Ontario by 8 both Attorney General Harnick and 9 Premier Harris despite direct questions 10 on the floor of the Legislature that 11 should have prompted references to the 12 meeting." 13 You'll find that finding at page 145 of 14 our main submission, paragraph 6. 15 Does Mr. Harris say page 145 paragraph 6 16 of our findings -- it's paragraph 238 of the -- the 17 submission, but it's number 6 of our findings, page 145 18 of our main submission. 19 COMMISSIONER SIDNEY LINDEN: Yes, I hear 20 you. I hear you. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 MR. JULIAN FALCONER: Does Mr. Harris 24 say, Well, their request that that finding happened is 25 ridiculous? They're wrong. I didn't deliberately
751 conceal anything? Well, he does say that, but then he 2 says something else. He says, By the way, you don't have 3 jurisdiction to decide if I was telling the truth anyway. 4 That, with great respect, Mr. 5 Commissioner, is completely duplicitous. He doesn't want 6 to put his veracity to the test. He doesn't trust the 7 process. His veracity is being tested. Declining that 8 jurisdiction to say whether the Harris Government told 9 the truth about their role Ipperwash, to decline that 10 jurisdiction is to do a disservice to the memory of 11 Dudley George, to Sam George and his family, and to all 12 of the participants, to be honest, including myself. 13 And I strongly urge you right or wrong -- 14 if ALST is wrong, tell us we're wrong but the notion that 15 we should engage in a legal technical battle about your 16 jurisdiction on whether Mike Harris told the truth is 17 probably the best sign of whether he told the truth. 18 I have half an hour left in my 19 submissions, actually about thirty-three (33) minutes, 20 but what I would ask is -- 21 COMMISSIONER SIDNEY LINDEN: No, you've 22 got less than that but you've got just under a half hour 23 left but carry on. 24 MR. JULIAN FALCONER: This could be one 25 (1) of our last discussions about my time.
761 I -- it's all becoming very -- I'm going 2 to miss you, Mr. Commissioner. I was wondering could 3 this be an appropriate time for a break because I'm 4 moving onto another area? 5 COMMISSIONER SIDNEY LINDEN: We've 6 decided to just let the submissions go -- 7 MR. JULIAN FALCONER: Motor on? 8 COMMISSIONER SIDNEY LINDEN: -- until 9 they're finished. 10 MR. JULIAN FALCONER: That's fine. 11 COMMISSIONER SIDNEY LINDEN: We don't 12 want to throw our whole schedule off. So I would 13 appreciate if you could just -- 14 MR. JULIAN FALCONER: Certainly. 15 COMMISSIONER SIDNEY LINDEN: -- continue 16 and finish. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 MR. JULIAN FALCONER: All right. 20 Mr. Commissioner, I've spent a great deal of time 21 describing the CMU decision and the dining room meeting. 22 I've described them as the two (2) key events. I've 23 described in detail why I think the decision making -- 24 what the decision making process was that resulted in the 25 two (2) key events.
771 But I want to emphasize at the start of 2 this area that while I've described in detail what I 3 think the decision making process was, the fact that the 4 decision making process with respect to CMU and the fact 5 that the decision making process with respect to the 6 dining room are shrouded in mystery probably speaks 7 volumes as to (a) the willingness of those in positions 8 of authority to take accountability for what they did and 9 (b) their discomfort with what they did. 10 Now, there are parallels that I say are 11 crucial to understanding the process that unfolded on 12 September 6th, 1995. Both the dining room meeting and 13 the decision to march represent the final call to action 14 by the Government and the police. 15 Both the dining room meeting and the 16 decision to march represent ad hoc decision making for 17 which there is absolutely no record. Both the dining 18 room meeting and the decision to march were the products 19 of seconds in commands whose role in both the dining room 20 meeting and the decision to march were instrumental. 21 Frustrated seconds in command. Both the dining room 22 meeting and the decision to march were born of an 23 exaggerated sense of urgency. 24 And most importantly from the point of 25 view of understanding how racism operated in this case,
781 both the dining room meeting and the decision to march 2 were the product of a desire to appease the non- 3 Aboriginal community. 4 I referred to frustrated seconds in 5 command. It bears note that whether you look at Deb 6 Hutton or you look at Mark Wright, the comments they make 7 are very telling on September 6th, 1995. Deb Hutton 8 leave IMC and minutes later the dining room meeting is 9 convened. Minutes. Deb Hutton leaves IMC and this is 10 what she says, the second in command to Harris, quote: 11 "This is the most useless meeting I 12 have ever attended. It was a complete 13 waste of my time." 14 Frustrated with inaction. Mark Wright, 15 second in command to John Carson, on the evening of 16 September 6th, 1995, right before -- immediately before, 17 by all accounts, the decision to march is made, Mark 18 Wright says the following about Incident Commander Linton 19 and his failure to act, failure to take swift affirmative 20 action, he says: 21 "Oh fuck, I don't know. Waffle. We'll 22 be here 'til fucking daylight figuring 23 it out." 24 And you'll recall he said, "daylight's a- 25 wasting".
791 Now, I spoke of appeasing the non- 2 Aboriginal community. Well, Deb Hutton kept sending the 3 same message over and over again at every IMC meeting, in 4 every place possible, the Government through Beaubien, 5 the message that was received repeatedly, there is to be 6 no different treatment of the people in this situation. 7 In other words, Native as opposed to non-native. 8 That is a message of assimilation. That 9 is a message meant to appease the non-Aboriginal 10 community. We must be seen to be acting. This isn't a 11 Native rights issue. This is a law and order issue. 12 Mark Wright. Mark Wright just left -- he 13 just left the company of what he called the irate 14 citizens in his telephone call with Tim McCabe. Mark 15 Wright backed away from that characterization when he was 16 before you in this court, but I ask you to have careful 17 regard to what he said to Tim McCabe in and around 8:00 18 p.m. on the night of September 6th, 1995. He described 19 the people as irate. And he said to John Carson, "well, 20 don't you want to be briefed about the citizens?". 21 We also have a number of irate citizens, 22 non-Aboriginal community demanding action. I say an 23 exaggerated sense of urgency. I say an exaggerated sense 24 of urgency that is communicated in no uncertain terms to 25 those in a position to make decisions who aren't moving
801 fast enough. 2 Deb Hutton, quote: 3 "This may be the time and place to act 4 decisively. He wants them out in a day 5 or two." 6 The second in command is conveying a sense 7 of urgency to all who were listening. You recall Julie 8 Jai's evidence? 9 "With this sense of urgency, 10 negotiation, facilitation, that's not 11 an option we could put up. It was 12 obvious to us we weren't expected to." 13 Mark Wright: 14 "Daylight's a-wasting. Don't you say 15 we go get those fucking guys?" 16 Exaggerated sense of urgency for the 17 dining room and for the march. 18 In both cases, whether we're talking about 19 the dining room meeting or that decision to march, in 20 both cases, the Premier's personal views are 21 communicated. Mike Harris' personal views are 22 communicated to bureaucrats. Mike Harris' personal views 23 are communicated to Incident Command. 24 You'll recall the extraordinary reference 25 on September 5th, 1995 by Wade Lacroix in talking to John
811 Carson. You -- I pause here to reflect for a moment on 2 Wade Lacroix. One of the classic blunders in this case 3 had to be having the guy that headed up the march on the 4 occupiers be the same one in charge of political 5 communications with the local MP. 6 That was ane extraordinary show of poor 7 judgment and simply makes the point that the John Carson 8 that made a good decision on September 4th, had been 9 neutered by September 6th. Bad decisions were being made 10 left, right and center. 11 What does Lacroix, on the day before the 12 march, say to John Carson about the Premier's views? 13 "Harris has involved himself and are 14 quite uptight about it. 15 CARSON: Okay." 16 Not, Carson, Don't tell me that, Wade. 17 What's that got to do with our work. Look, I want you to 18 focus on this not that. 19 No, Carson receives all information. 20 LACROIX: So I would say the signal is 21 that we're going to end up evicting. 22 CARSON: I would suspect. 23 LACROIX: So anyhow, it sounds like 24 the Government is onside. 25 CARSON: Oh, good."
821 The robot who doesn't care. Nonsense. 2 Absolute artifice. Of course they care. Of course they 3 care that their political masters are onside, of course 4 they do. 5 Mr. Commissioner, it is like suggesting 6 that children don't care what their parents think. It's 7 like suggesting those we oversee don't care what our 8 oversight bodies think, police officers don't care what 9 the Solicitor General thinks. It's ridiculous. The 10 Incident Commander is getting direct knowledge of what 11 Mike Harris thinks about his work. 12 Now, we say that that entire process, that 13 entire process led to the parallel, the parallels between 14 the dining room and the CMU ultimately linking them up. 15 The dining room led to the march. The dining room led to 16 CMU. 17 We say, Mr. Commissioner, Mike Harris' 18 wishes when he turned up the volume on September 6th, 19 1995, turned into action. Ill-advised, ill-considered, 20 silly, nonsensical action. It wasn't riot officers 21 discharging their duty. It was officers engaged in a 22 riot. It was a mess, a pure, simple mess. 23 John Carson wasn't operating with the 24 decisive, substantive, critical decision-making powers 25 he'd been given, because somebody above him took them
831 away. 2 We say, Mr. Commissioner, that the 3 suggestion by Mr. Harris, the suggestion by Mr. Harris 4 that he gave no direction is no different, is no 5 different than what I've put to Ron Fox, what I put to 6 Ron Fox on July 18th, 2005. 7 The Archbishop of Canterbury, Thomas 8 Beckett, that famous quote, when it was said: 9 "Will no one rid me of this meddlesome 10 priest?" 11 And to his great shock, the knights went 12 out and did just that, and then he looked up and said, I 13 don't understand, don't -- don't know where that happen - 14 - how did that happen? 15 "Will no one rid me of this meddlesome 16 priest?" 17 Well, those meddlesome occupiers 18 experienced in 1995 what is attributed to the play of 19 Henry II in 1170, quote, "I want the fucking Indians out 20 of the Park", is no different. 21 "I want the fucking Indians out of the 22 Park" is no different than, "Will no one rid me of this 23 meddlesome priest?" 24 Now, will there always be a defence; I 25 didn't say kill them? Will there always be a defence
841 that Charles Harnick can mount in a facile, simple 2 offensive reply for a former Minister of Native Affairs 3 when he says, I didn't cause his death? 4 Will there always be an answer? Yes, but 5 we go well beyond that. We go well beyond that. We 6 asked the question, What was your role? What was your 7 role? 8 We asked for findings with respect to 9 political interference. Mr. Commissioner, you can find 10 those findings -- you can find those findings at page 145 11 paragraph 237 that the newly-formed Conservative 12 Government under the leadership of Premier Michael Harris 13 had neither the experience nor the judgment to 14 competently and effectively discharge the Government's 15 responsibility in relation to the occupation of the 16 Ipperwash Provincial Park. 17 We ask your finding, number 2, that: 18 "High-ranking members of the 19 Conservative Government including 20 Premier Harris personally 21 inappropriately permitted their 22 personal views on Aboriginal rights 23 generally and the Ipperwash Park 24 occupation specifically to be 25 communicated to Civil Service and
851 police personnel." 2 And then you'll see, Mr. Commissioner, in 3 findings 3 and 4 at page 145, paragraph 237, that we ask 4 you to make specific findings about the crossing of the 5 lines of demarcation. 6 I move now to the last area, Mr. 7 Commissioner, how racism ultimately played itself out in 8 the hours leading up and after the death of Dudley 9 George. 10 You've heard my submissions up 'til now. 11 I didn't leave racism out. I didn't -- I don't say that 12 this submission is hermetically sealed from my previous 13 submissions, in fact I respectfully submit to you that 14 Canada's history when it comes to treatment of Aboriginal 15 peoples is disgusting. We should all be ashamed. I 16 learned more in this Inquiry about the country I didn't 17 know I had than at any time in my life. We should all be 18 ashamed. 19 What fuelled this march, what permitted 20 this to happen was where Aboriginal people stand in the 21 minds of Canadians. It's all bad. It's all bad. 22 The World Conference Against Racism said 23 the following: 24 "Racism is the basis of unequal 25 treaties and broken treaties. Racism
861 is the basis of the failure to 2 apologize and the failure to 3 compensate. Racism is the reason that 4 the rights of Indigenous Peoples are 5 not protected by domestic legal systems 6 to the same degree that the rights of 7 other peoples are protected." 8 We have seen in our Part 2 proceedings 9 focusses on conditions, on communities, Band communities 10 that are appalling. We have seen teenagers that have 11 died and fires that should never have happened. We've 12 seen disgusting conditions and disgusting treatment of 13 our First Nations people. 14 Now, it is not that we have done nothing, 15 it is just we have done nearly nothing. You have 16 commissioned important work on the land claims process. 17 We initiated first contact with First Nations Aboriginal 18 peoples in this world, in this part of the world. We 19 initiated first contact and they were displaced from 20 their lands. 21 Today, in the year 2006, if a Band makes a 22 claim, a land claim, it takes between fifteen (15) and 23 twenty (20) years for the Government to simply decide 24 whether they're going to consider the claim, that is 25 whether it even reaches a level of merit. That is
871 appalling. 2 That sign that Mr. Ross so articulately 3 put out there, the sign that he had up there during his 4 submissions, when the Government gets their shit 5 together, the failure to get their shit together is born 6 of racism. It's born in the fact that Aboriginal peoples 7 from our perspective hold the lowest rung in our society. 8 In September 1995 the Harris Government 9 had its first opportunity to play out its political 10 agenda. It is so important to appreciate the story that 11 I say, Mr. Commissioner, you ought to tell. 12 You see, the Harris government was elected 13 in the summer of 1995 and everybody knows nothing happens 14 in the summer. You get elected. There is majorly 15 different forms of ceremonies, but nothing happens. 16 The bureaucrats are working like crazy to 17 get briefings together. People go on summer holiday. 18 People come back ready for work after Labour Day; that's 19 the way life is in most places of our North American and 20 Canadian society. 21 They came back to work on September 5th, 22 1995 and Julie Jai had this to say about their attitude, 23 quote -- keeping in mind the Julie Jai was the Chair -- 24 the Chair of the Inter-Ministerial Committee meant to 25 deal with issues of Aboriginal affairs.
881 With the authority from government to deal 2 with these issues, the Chair had this to say: 3 "With the Premier's office staff the 4 message that I got back after saying 5 that there are -- that Aboriginal 6 people do have special rights that are 7 protected by Section 35 of the 8 Constitution Act, I was told, well, we 9 don't care." 10 Ron Fox put it differently, granted. 11 Quote: 12 "They couldn't give a shit less about 13 Indians." 14 Close quotes. Racism by government. This 15 is racism by government. The political agenda was a 16 clear one. 17 Dr. Todres had many, many things to say. 18 But one of the things she said, I don't know if you 19 recall, Mr. Commissioner, is she was quite poignant about 20 her view of what they did with the statement of 21 principles by a previous government. What the Harris 22 government did and she basically described as it being 23 thrown out. 24 Mr. Commissioner, there is little or no 25 doubt that the story behind the story is the story of not
891 just insensitivity, not just the lack of cultural 2 training, but the story of an anti-Aboriginal government. 3 Sad as it is, a government not prepared to recognize the 4 special place that Aboriginal peoples hold in our 5 society. 6 Declared so by the courts. Declared so by 7 all of our forefathers, including the creators of our 8 Constitution. The irony of invoking the rule of law on 9 the night of September 6th, 1995, to march on the 10 occupiers is that if Julie Jai is telling the truth Mike 11 Harris had decided to disregard the rule of law. 12 The rule of law said that Aboriginal 13 peoples do enjoy a special place in our Canadian lexicon; 14 that Aboriginal peoples do enjoy special constitutional 15 rights. They said, we don't care. That's not the rule 16 of law. That's contempt for the rule of law. 17 Racism by police. There are so many 18 examples that I have chosen several snippets of some of 19 the more poignant statements on the experiences -- on the 20 experiences and what you heard, Mr. Commissioner. And 21 these are by no means exhaustive. The litany of racist 22 comments embarrass us all. 23 It's not every police officer. There are 24 many police officers that are good people. This whole 25 theory that one shouldn't critically analyse an
901 institution because it means we're calling them all 2 names, you know the good ones they know that's poppycock. 3 They know that it is our job to critically 4 analyse our institutions to make them better and the good 5 officers are waiting for the bad officers to leave so 6 they can prosper. 7 Marlin Simon testified what was heard. 8 Welcome to Canada from across the fence. Right. Welcome 9 to Canada. 10 COMMISSIONER SIDNEY LINDEN: Yes. Carry 11 on. I'm just -- Mr. Millar's supposed to remind you 12 about something but he's forgotten. 13 MR. DERRY MILLAR: We have one minute to 14 go. 15 MR. JULIAN FALCONER: You see my watch 16 and Mr. Millar's is the same. I think -- 17 COMMISSIONER SIDNEY LINDEN: You have 18 more than one minute. You have just under ten (10) 19 minutes. Just under ten (10) minutes. 20 MR. JULIAN FALCONER: Okay. All right. 21 I'll just give the ten (10) minutes. 22 COMMISSIONER SIDNEY LINDEN: Just under 23 ten (10) minutes. 24 MR. JULIAN FALCONER: I can't help but -- 25 my children are educating me on the World Cup --
911 COMMISSIONER SIDNEY LINDEN: I didn't 2 mean to interrupt you in the middle of a sentence. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 MR. JULIAN FALCONER: That's all right. 6 I'm not a huge football fan but my kids love -- love 7 soccer and getting red carded and yellow carded has some 8 special meaning to them. So I want my kids if they're 9 listening to this, to know that when I get red carded in 10 this thing it's not because I did something wrong. 11 Welcome to Canada. That's what police 12 officers uttered in the presence and to Marlin Simon. 13 Detective Sergeant Terry McIntosh, "Yeah, don't give a 14 shit about the stupid fucking Indians". Constable Daryl 15 Whitehead quote: 16 "Just a big, fat, fucking Indian." 17 Detective Constable James Dyke: 18 "Yeah, we had this plan, you know. We 19 thought that we would -- could five (5) 20 or six (6) cases of Labatt's 50 we 21 could bait them." 22 It is the ultimate irony that those who 23 comment on this Inquiry as a huge burden on the taxpayer 24 that couldn't possibly be justified, happen to be the 25 same kind of people that might have produced that
921 memorabilia that took us months to sort our way through. 2 Money wasn't wasted; it had to be spent to 3 root out this nonsense. 4 When you are criticised, and I don't say 5 if, I say when, Mr. Commissioner -- 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 MR. JULIAN FALCONER: -- when -- when you 10 are criticised, when you are criticised for the length of 11 this Inquiry or the time it took to root this stuff out, 12 I hope the people that line up to criticise aren't the 13 same people engaged in this conduct, because it cost us. 14 It cost us time in finding out that it 15 happened, it cost us time in figuring out how the OPP 16 dealt with it, it cost us time because there can't be any 17 healing as your Counsel so eloquently put it, without a 18 full excavation of the facts, Mr. Millar, his quote. 19 In my respectful submission, Mr. 20 Commissioner, what permeates the process, what permeated 21 this process, what permeated the march, what permeated 22 the dining room meeting is an anti-Aboriginal racism, not 23 shared by all, but an anti-Aboriginal racism enjoyed by 24 the decision-makers. 25 The real decision-makers, Deb Hutton; Mark
931 Wright, Stan Korosec. 2 When Stan Korosec described "doing these 3 fuckers big time", he could do that in an element of 4 protection, because it was about First Nations people. 5 Interestingly enough, and a true irony 6 lies in those scribe notes, when John Carson said maybe 7 we should evacuate the cottages, they never did, because, 8 of course, I would submit to you there was never any real 9 threat. 10 But they were most concerned about 11 disturbing the cottagers. You see in the scribe notes, 12 well, they're already mad enough. Let's not bother them. 13 You see, the cottagers, the non-Aboriginal 14 community, we're worried about bothering them to evacuate 15 them for their safety. The occupiers, we can march on 16 them. 17 In my respectful submission, at the end of 18 the day, what -- what you are faced with, is the wisdom 19 of the words of Chief Ovide Mercredi when he discussed 20 the OPP Ipperwash memorabilia. 21 "Well, it does nothing to restore, you 22 know, it does nothing to restore normal 23 relations between the Aboriginal 24 community and the police. It does the 25 opposite. It creates a greater
941 divide." 2 If you look at the way the OPP dealt with 3 the racism memorabilia, it was always on the basis of an 4 ultimate failure to apologize to the community that the 5 racism was directed at. 6 The Whitehead/Dyke scenario is the best 7 example. There was an apology to the OPP for 8 embarrassing them. No apology to the Aboriginal 9 community. 10 In my respectful submission, this -- these 11 words, quote, "informal discipline", close quotes, 12 they're bad words. They're code to communities who 13 suffer from this form of racism. They're code from -- 14 for you're not important enough to formally deal with 15 what's been done to you. 16 Former Commissioner Boniface enjoys a 17 tremendous legacy when it comes to the sophisticated, 18 open approach she has taken to fostering race relations, 19 in particular First Nations relations. 20 She enjoys that reputation fairly. While 21 I don't know her very well personally, I can be nothing 22 but impressed by her every day that I speak to her. 23 But that doesn't remove the obligation of 24 us, as officers of the Court, to closely scrutinize her 25 conduct as well.
951 When she signed off on the Whitehead/Dyke 2 discipline, when discipline was meted out inside of seven 3 (7) days with basically no investigation as to other 4 misconduct by the officer, when informal discipline was 5 done behind closed doors instead of a public process, 6 even if a lesser penalty would happen, Gwen Boniface 7 showed she didn't appreciate what was at stake. 8 We don't sweep it under the carpet and 9 that's what was done with Whitehead and Dyke, a straight 10 sweep under the carpet, seven (7) days. That was the 11 window of informal discipline. Appalling. 12 Mr. Commissioner, in our reply factum we 13 have prepared a chart relating to various examples that 14 we put together and organized by way of informational 15 assistance at page 33 paragraph 59 of the various 16 institutional responses to racism. There's included a 17 table on the -- in the pages that follow. 18 Now, my submission is that -- and you'll 19 see it at page 36 the table that I'm talking about and 20 the reply submissions. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 MR. JULIAN FALCONER: We are also doing 25 additional submissions in the Part 2 parts of this
961 process on the issue of systemic racism. 2 No -- no speech, no advocacy can 3 communicate the harm done to people by these forms of 4 racism. I can't fix it. I can't even begin to come up 5 with a solution. I only know what doesn't work. 6 What doesn't work is how we as a people 7 have treated racism to-date. We use different words. 8 This is cultural sensitivity. We create hurdles such as 9 informal discipline. We don't apologize directly for 10 what's been done and we rely on the passage of time to 11 claim that we couldn't do better. 12 It hasn't worked. The police can't 13 investigate themselves when it comes to acts of racism 14 because they (a) lack the sophistication, and (b) the 15 charged nature of the allegations make them completely, 16 completely impotent to deal with their own. 17 We have asked for two (2) things. We have 18 asked for you to consider a recommendation that there be 19 a Police Services Board for the OPP and we've asked for 20 that for two reasons: 21 1. There needs to be a buffer between 22 politicians on the one (1) hand and the police directly 23 on the other hand. 24 But number 2, a Police Services Board 25 would make a Commissioner accountable to someone.
971 You heard from Gwen Boniface. She -- 2 she's invited to a meeting of a Standing Committee or 3 she's not in a given year. There is no accountability. 4 We ask for a recommendation to create accountability. 5 We also ask that when investigating issues 6 of racism that it be removed from the Police Service and 7 be provided for by way of independent review. No option. 8 No discretion. That is the least we can do. 9 Mr. Commissioner, I am wrapping up. I am 10 alive to the fact that you've been through a hundred and 11 thirty-nine (139) witness, two hundred and twenty-nine 12 (229) days of hearings, and eighteen hundred and seventy- 13 six (1,876) exhibits not to mention all the Part 2 14 functions and proceedings that continue to this day. 15 Neither I nor any of the other lawyers 16 have to walk in your shoes. You and your Counsel and -- 17 and I want say no matter how I may have disagreed or 18 agreed with Mr. Millar, Ms. Vella, or others, I would 19 never, ever resile from the view that their work ethic 20 was beyond anything I have ever seen by a lawyer. They 21 are truly a team to be impressed with. 22 You have a journey to go on and the 23 journey has to be inspired from the teachings from the 24 West, reflections and then truth. Thank you, Mr. 25 Commissioner.
981 COMMISSIONER SIDNEY LINDEN: Thank you 2 very much, Mr. Falconer. We will now take a morning 3 break. 4 THE REGISTRAR: This Inquiry will recess 5 for fifteen (10) minutes. 6 7 --- Upon recessing at 11:03 a.m. 8 --- Upon resuming at 11:13 a.m. 9 10 THE REGISTRAR: This Inquiry is now 11 resumed, please be seated. 12 COMMISSIONER SIDNEY LINDEN: Mr. Downard, 13 sir. 14 MR. PETER DOWNARD: Good morning, sir. 15 COMMISSIONER SIDNEY LINDEN: Good 16 morning. 17 18 FINAL SUBMISSIONS FOR THE HONOURABLE MICHAEL HARRIS: 19 MR. PETER DOWNARD: Sir, direct action 20 such as the taking of the Park in this case or the -- the 21 current takeover of land in Caledonia strikes at the 22 foundations in my submission of civil order in society 23 and many people view the primary role of government as 24 being the protection of those foundations. 25 Concern on the part of the public and
991 their representatives is inevitable where there is an 2 attack or disruption of civil order. 3 And the public in that situation has every 4 right, in my submission, to express their concerns to 5 other members of the public, their political 6 representatives and to the police. And, in particular, 7 the political representatives, we say, have the right and 8 duty to take a position about that upset of civil order. 9 In a democracy it is trite, but it is 10 still fundamental, that there is a diversity of opinions 11 on such fundamental issues. And when faced with a direct 12 action scenario, politicians viewing the situation from a 13 left perspective, for example, might take a more 14 permissive view or adopt a policy that has a more 15 permissive effect. 16 And politicians viewing the situation from 17 a more conservative viewpoint with more concern about 18 traditions of civil order and traditions of legitimate 19 process, may be more concerned that civil order be 20 restored as soon as possible. 21 Now, politicians from that perspective 22 they may place a great value, as I say, on civil order 23 and legal processes for the assertion of grievances and 24 they may be concerned, as in this case, with preventing 25 the expansion of the event.
1001 They may be concerned about the future 2 consequences, as in this case, the future consequences of 3 permitting a disruption of civil order. And they'll be 4 very concerned that such direct action tactics certainly 5 not be encouraged or rewarded. 6 But in any event, the positions that 7 politicians in a democratic society may legitimately take 8 include the position that the direct action should be 9 opposed. And if they come to that view those political 10 representatives, in our submission, have the right and 11 duty to take steps that are within the legitimate 12 authority of government to oppose a takeover or 13 occupation. 14 Now, in our submission political 15 authorities would be abandoning their responsibilities if 16 they refused to take a position on a matter of public 17 concern. 18 In particular, we say they would be 19 abandoning their duty if they refused to take government 20 action within the bounds of legitimate government action 21 for fear that this might result in what has been referred 22 to as quote "political pressure on the police". 23 In that respect the authorities must rely 24 on the professional conduct of police command. On 25 commanding officers who know full well that their first
1011 allegiance is always to law enforcement; that public and 2 political views are inevitable where a community is 3 disrupted by civil disorder and that as far as police 4 operations are concerned those views are outside the 5 sphere of police operational decisions. 6 Now, to -- to respond to a comment by 7 Mr. Rosenthal yesterday, we say that that must be so 8 whether the political views are in opposition to the 9 incident in question or political views that are 10 permissive of the -- the incident. 11 Whatever the position of the Government of 12 the day, the public is also going to look to the 13 professional conduct of police command to maintain their 14 first allegiance to law enforcement and to keep the peace 15 in a manner consistent with professional integrity. 16 Now, we say all of that is fundamental and 17 we also say that Mike Harris was not a king. He was not 18 a dictator. He didn't have mystical powers of mind 19 control or the ability to cause all those around him to 20 cease rational thinking. 21 He was the Premier of Ontario. He was a 22 politician in a democratic society and we say his 23 government had the right to take steps that were within 24 the legitimate bounds of government to oppose the 25 occupation.
1021 And we say that that is what they did when 2 they submitted the matter to the Courts for an 3 injunction. 4 Now, what the Government could not do was 5 direct the operations of the Ontario Provincial Police on 6 the ground. The government knew that and we say that 7 neither Premier Harris nor anyone else in the Government 8 did that. 9 There is no evidence, we say, that this 10 was done. And with that, I want to come to the dining 11 room. 12 Now, we say that the brief discussion in 13 the Premier's dining room on September 6th was 14 appropriate and it followed two (2) lengthy meetings of 15 the InterMinisterial Committee that had taken place that 16 day and the previous day, and in the dining room what we 17 have is an informal, ad hoc discussion at the conclusion 18 of a regular full Cabinet meeting, to respond to the IMC 19 recommendation to seek an injunction as soon as possible. 20 And -- so that we have the Premier and the 21 three (3) ministers most directly involved meeting 22 together briefly with their political staff and a small 23 number of relevant civil servants. 24 And they did so as to make a final 25 decision as to what the government's response should be
1031 to the take over of the Park. 2 And we say that was plainly an appropriate 3 thing to do. Plainly. And what's more important, the 4 content of the discussion in the dining room was also 5 appropriate. 6 Now, Mr. Falconer says there was a cover 7 up. And I say that's nonsense because there is nothing 8 to cover up. 9 The theory of conscious of guilt, I say, 10 is simply sophistry because there is nothing to be guilty 11 about. 12 Now, we know -- we know from the evidence 13 that a central part of that discussion was precisely that 14 the action taken by government had to be action that was 15 within the legitimate bounds of government. 16 And more specifically it was expressly 17 discussed in the dining room that government could seek 18 an immediate Court injunction but could not direct 19 operations of the police. 20 There was no dissent on that point. Not a 21 single participant of the many who testified said there 22 was any direction of police operations or any attempt to 23 direct police operations in that meeting. 24 Now, Ron Fox, who was the OPP officer 25 seconded to the civil service, who, some parties allege
1041 was a messenger of government direction to the police, 2 well he testified that he was never instructed to convey 3 any such direction. 4 He also testified that he was never 5 instructed to communicate any views of the Premier to the 6 police and more importantly, his evidence as to the 7 outcome of the meeting was that police matters were to 8 remain firmly in the hands of the police. 9 And we've detailed all that in our written 10 submission and I know you'll read that very carefully. 11 Now, the allegation that Mike Harris gave 12 directions to the police being clearly unfounded on the 13 evidence, some parties have made an attempt to interpret 14 an implied direction. 15 Lawyers love to find implied things. They 16 can find them virtually anywhere. But there has been an 17 attempt to interpret an implied direction, a direction by 18 raised eyebrow, as it were, into evidence that the 19 Premier was concerned about the takeover of the Park and 20 wanted to know why the police had not been able to stop 21 it. 22 Now, it will be recalled that former 23 Deputy Attorney General Larry Taman testified that it is 24 perfectly appropriate for government officials to ask 25 such questions and the point comes back to fundamentals
1051 of democracy. 2 He reminded us that the public is entitled 3 to ask their political representatives how such events 4 have occurred and the public's entitled to an answer from 5 their political representatives. So the political 6 representatives have to get the information, they have 7 to. 8 Now, in our submission it is not 9 reasonable to attempt to stretch the asking of this 10 question by Mike Harris into a direction to the police. 11 No participant in the meeting thought that it was a 12 direction to the police. 13 More than that, more than that, very 14 senior, very seasoned civil servants in the -- in the 15 dining room testified they did not even think there was 16 even criticism of the police. So set -- set aside -- set 17 aside that -- that's what political people say, but 18 senior independent civil servants say there was no 19 criticism. 20 And even more than that Ron Fox's own 21 assistant Scott Patrick testified here and he made 22 reference to the Premier expressing some concerns, but he 23 said he did not know that he would describe the Premier's 24 comments as criticism. 25 So we say what's going on is a lawyerly
1061 strained attempt to find what is desired to be found in 2 facts that really don't support it in a reasonable way. 3 Now, Mr. Falconer said this morning that 4 it was silently expected -- in the context of government 5 it was silently expected that things said by Mike Harris 6 in the dining room would be conveyed to Mr. Fox directly 7 to Incident Commander Carson. 8 Well, we know in fact that the opposite is 9 true. The reasonable expectation of participants in the 10 dining room discussion was in fact that the discussions 11 in that room would not go outside of government. 12 Now, formerly Deputy Solicitor General 13 Elaine Todres testified that Ron Fox's subsequent 14 communications to John Carson of Fox's opinions about the 15 dining room discussion were contrary to protocol. She 16 said such discussions are expected to be -- to be kept 17 confidential within government. 18 Now, we say that that was what people were 19 going to reasonably expect in that actual culture and I 20 submit to you that Mr. Falconer's submission on that 21 point is based on assertion. Our submission on that 22 point is based on evidence. 23 Now, some parties will still allege, 24 though, that the dining room discussion was held for the 25 very purpose of enlisting Ron Fox as a messenger of
1071 political direction and we say that's also contradicted 2 not only by the -- the content of the -- of the 3 discussion time and time again but by the very 4 circumstances of the situation. 5 Now, Ron Fox testified on September 6th 6 that he was in the same room as the Premier for three (3) 7 to five (5) minutes and his assistant Mr. Patrick said he 8 had no recollection of the Premier speaking directly to 9 either himself or Fox. 10 More than that, he said -- Patrick said -- 11 Patrick said that he and Fox were seated in the far 12 corner of the room 20 to 30 feet away from the Premier. 13 More than that, Patrick said the Premier 14 had his back to Fox and Patrick when he was speaking 15 which made it hard for them to hear. 16 And more than that he said that the 17 Premier spoke in a calm and low conversational tone which 18 caused further auditory difficulties. 19 Now, I say to you, sir, that it is simply 20 unreasonable, it is a virtually irrational torturing of 21 the circumstances to suggest that they were consistent 22 with Ron Fox having been summoned to the dining room to 23 get direction to be conveyed to police officers. 24 Now, I also want to say that the decision 25 the Government actually made to seek an immediate
1081 injunction was consistent with the position the 2 Government had clearly communicated to the public, to 3 everyone the previous day. There was no secret about it. 4 At midday on September 5th the Government 5 had made public through Minister Hodgson's media 6 conference its opposition to the takeover. It was made 7 clear in that conference that the Government was 8 reviewing its legal options including the seeking of an 9 injunction and that the Government intended to proceed 10 quickly. 11 Now, Mr. Klippenstein said yesterday that 12 the communication of the Premier's views to John Carson 13 on the afternoon of September 5th was extraordinary. 14 Well, he's entitled to his opinion. But it's also the 15 case that the Government's clear opposition to the 16 takeover and its intent to take prompt legal action was 17 already in the public domain and it had already been put 18 in the public domain by the Government itself. 19 Now, I also want to speak briefly to 20 Mr. Falconer's personal attack on Mr. Harris this 21 morning. And I'd like to start with Mr. Falconer's 22 submission to you that Mike Harris is not prepared to 23 have his credibility determined by you on the basis of 24 Mike Harris' statements in the House. 25 Now, that is black and white false. It is
1091 completely false and the reason why it is false is that 2 as you will recall, sir, we dealt with this issue in the 3 course of the hearings. 4 The issue of parliamentary privilege. 5 There was -- parliamentary privilege may preclude a 6 member of the House being cross-examined as to 7 credibility on statements in the House. And that issue 8 came up and on Mr. Harris' expressed instructions we 9 waived that privilege precisely so there could be full 10 latitude of cross-examination of Mr. Harris as to 11 credibility or whatever, and you can look at the 12 statements in the House all you want. And our approach 13 to this Inquiry throughout, throughout is to attempt to 14 be cooperative and constructive because we know -- we 15 know Mr. Harris did nothing wrong. 16 Now, I do also want to make a few comments 17 on the -- the attack on the basis of Hansard. And what 18 Mr. Falconer does is he reads Hansard which is the record 19 of democracy in action; the rough and tumble of debate 20 and accusation and counter-accusation and all that goes 21 on. 22 But he reads that in a lawyerly way like a 23 last will and testament to try and build his case. Now, 24 we say if you -- if you're going to read the record of 25 democracy in action as a last will and testament it may
1101 well become one. 2 But, in any event, the gravity of 3 Mr. Falconer's case is really not what he says Mr. Harris 4 said, it's -- you know, it's the seventeen (17) times or 5 whatever, the number, right. It's a big number. Put a 6 big number on the screen, it's very impressive. And he 7 says, Oh no, but it's what Mr. Harris didn't say. 8 Okay. And he says that what Mr. Harris 9 didn't say is crucial because Mr. Harris was involved in 10 an inappropriate meeting. His involvement in an 11 inappropriate meeting is the key that unlocks all this, 12 that explains everything. Well, we've made it clear to 13 you, sir, in our submission, that it was a perfectly 14 appropriate meeting in form and in content. 15 And what we say is that Mr. Falconer's 16 argument is without merit, that it privileges lawyerly 17 techniques and tactics over truth. And we also say that 18 the approach of character assassination that 19 Mr. Falconer, more than any other witness, has adopted 20 against Mr. Harris -- and you'll notice in his 21 submissions, he only wants you to make an adverse finding 22 of credibility against one (1) witness. 23 Now, we say that the approach of character 24 assassination is not only unfounded but completely 25 inconsistent with the spirit of your process and it is
1111 damaging and distracting from the serious work that we 2 say your Commission has sought to do. 3 And with that, I wish to talk about Mr. 4 Horton's submissions yesterday, briefly, and some similar 5 assertions by others. 6 I do not agree with Mr. Horton's 7 submission that the Harris government's First Nations 8 policy was anti-Native and that it was motivated by an 9 anti-Native animus. In our written submissions, we have 10 referred to specific documents and facts which show why, 11 in our submission, that would not be a reasonable finding 12 for you to make. 13 And I must tell you, I wonder about the 14 role the ideological bias has played in the positions of 15 -- of counsel, an ideological hostility has played in the 16 positions of counsel in this matter. 17 But notions, for example, to take an 18 impressionistic, uncorroborated statement that I heard 19 somebody say that this Government was going to disregard 20 the constitution and to then therefore assert that the 21 Harris Government was going to disregard the 22 constitution, it beggars belief in a modern world. It 23 completely beggars belief. 24 And I am very concerned that there is an 25 anti-Conservative animus at play in this -- in this
1121 matter and that it is skewing us away from constructive 2 work. 3 But -- but happily, I also note -- well, 4 I'll come to my other point in a minute, which I want to 5 balance that last statement with, because I think it's 6 important that it be balanced, very important. 7 Now, the Harris Government's view that the 8 approach to First Nations issues should be through 9 economic empowerment is not, in our submission, one that 10 was intended to be contrary to the strength and cultural 11 integrity of Native communities. 12 When one reads the policy documents which 13 include the express recognition of constitutional 14 protection which assert that Native rights must be 15 respected and then go on to emphasise economic 16 empowerment, one can readily see how persons could hold 17 that a view and believe that that would be more likely to 18 enhance the capacity of Native communities to maintain 19 their strength and cultural integrity and that it may 20 well be economic disadvantage that in fact provides a 21 strong incentive to assimilation. 22 Now, the Chiefs of Ontario may well take a 23 different view and -- and there clearly were some issues 24 in the field of First Nations policy upon which the 25 Harris Government and the Chiefs of Ontario took
1131 different views, but the way forward on any such 2 difference, in my submission, is not by one side of that 3 debate or discussion attacking the character of the 4 other. 5 In particular, in the context of this 6 case, it is my submission, that one can't deal with a 7 conservative view point by seeking similarly to 8 characterize it as anti-Native. 9 Now, it is wrong and unproductive to 10 simply refuse to deal with a conservative view point on 11 the basis that it is racially prejudiced and a view point 12 that should be -- should not be allowed audience. We are 13 not going to move forward if we continue to deal with 14 these fundamental conflicts between -- or in -- these 15 fundamental conflicts regarding appropriate conduct in 16 society, if we respond with inflammatory and unfounded 17 techniques of character assassination. 18 Now, it's also not the way forward to seek 19 to attribute a person's holding any political perspective 20 in good faith causal consequences of that perspective, of 21 just -- of simply holding the perspective itself, as Mr. 22 Horton would have it. That sort of argument can readily 23 be seen, upon calm reflection, as being unreasonable and 24 is involving remote matters and speculation. And the 25 concern here is that that can only contribute to a
1141 condition of sustained polarization and isolation. And 2 where one (1) party in the debate has experienced 3 historical injustice or historically disadvantaging 4 conditions it can contribute to continued marginalisation 5 to some extent. 6 Now, I want to close by saying there 7 should be no doubt about one (1) thing. Mike Harris 8 believes that the death of Dudley George was a 9 regrettable tragedy that occurred when he was Premier of 10 Ontario. But we say -- we say -- and we -- we have to 11 live with that tragedy. We -- we can't -- we can't just 12 close the door on it. We have to live -- we all have to 13 live with it. It is far -- it is far more central to 14 some people's lives than to others, but we all have to 15 live with it. 16 And we say that if we all listen to each 17 other in good faith and we learn from each other, and in 18 -- in the several references I heard yesterday to the 19 last paragraph of our submissions I heard bridges being 20 built, and I say that if we pursue that path we can 21 prevent a similar tragedy from ever occurring again in 22 the future. And make no mistake about it, that is what 23 Mike Harris wants. 24 Now, sir, I want to thank you very much 25 for your impeccable...
1151 (BRIEF PAUSE) 2 3 MR. PETER DOWNARD: Sir, I want -- I want 4 to thank you very much for the -- the impeccable fairness 5 with which you've conducted this Inquiry. It's been a 6 privilege and an honour. And likewise in dealing with 7 your -- your Counsel who are not only superb 8 professionals but pretty decent folks too. 9 And I've just been asked did I mean the 10 Commissioner as an anti-conservative animus in the course 11 of my submissions. No. Thank you very much. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. Downard. 14 I believe Mr. Harvey Strosberg is here on 15 behalf of Mr. Charles Harnick. Welcome, Mr. Strosberg. 16 MR. HARVEY STROSBERG: It's a pleasure, 17 Mr. Commissioner. 18 19 FINAL SUBMISSIONS FOR MR. CHARLES HARNICK: 20 MR. HARVEY STROSBERG: I want to start 21 where Mr. Downard finished and that was to commend you 22 for having the patience of Job and something that I'm 23 sure your mother taught you that you had to have which 24 was "zitsfleisch", the ability to sit and listen. 25 I also want to thank Jacqueline Horvat who
1161 was kind enough to do all the things that I didn't have 2 to do. 3 The -- the start of my submissions is 4 really at the start of your Inquiry and contrary to the 5 suggestion of Counsel who made a fundamental slip, not 6 Mr. Downard but the Counsel before him, this is not a 7 court. He repeated that this was a court time and again. 8 He talked about his responsibility to the Court. 9 This is not a court. This is not a body 10 that has inherent jurisdiction. It's fundamental to 11 start with that rule and principle of law. This is a 12 commission that is created by ordering counsel and it has 13 limits on its authority to act. It is limited by one 14 (1) sentence and the sentence requires you to inquire 15 into and report on the events surrounding the death of 16 Dudley George and to make certain recommendations. 17 That's a fundamental point and that means that this is 18 not a commission into general racism. 19 This is not a commission into determining 20 many of the things that I've read in the material and 21 that Counsel have said to you. 22 You have an obligation to interpret what 23 it means, what -- what the phrase, "the events 24 surrounding the death of Dudley George," means, but in my 25 submission it does not require you, nor does it permit
1171 you to go far afield as you have been asked to talk about 2 systemic discrimination as just one of the items that has 3 been talked about. 4 And the -- I am at -- at root, a tort 5 lawyer and so in preparation for today I ask the question 6 about how, in law, do we -- do we deal with causation? 7 What does it mean that one (1) thing caused something 8 else? 9 And your -- your -- you know or you might 10 know if you read your brother's book that the, 'but for' 11 test in causation doesn't apply. Causation is determined 12 by whether -- by determining whether or not an act 13 materially caused, whether or not it caused an event. 14 And this is important because, in my 15 submission, what we -- what we've heard today is, and 16 what we've read in the submissions, is really a 17 misunderstanding of what causation is. You're asked, in 18 effect, to say that a dining room meeting materially 19 caused the actions of the OPP on the ground later that 20 day. That was what you were asked to -- to conclude. 21 And in my submission you can't reach that 22 conclusion, that didn't happen, and when you -- when you 23 look at this the way you should look at it, which is the 24 quest --asking the question of what caused what, that is 25 one of the things that it is important for you to do.
1181 And I'm sure that you'll be able to look at those 2 important cases such as Athey in the Supreme Court of 3 Canada that will talk to you about the question of 4 causation. 5 COMMISSIONER SIDNEY LINDEN: Well, my 6 brother will be very happy that you've cited his book 7 here. 8 9 CONTINUED BY MR. HARVEY STROSBERG: 10 MR. HARVEY STROSBERG: He is happier that 11 I bought one in preparation for today. 12 The point I wish to illustrate is the fact 13 that Charles Harnick awoke on that fateful September 14 morning and got out of bed was not a cause and didn't 15 contribute to the death of Dudley George. 16 And I'd like to talk about the injunction 17 that was -- which was sought. The fact that there was an 18 injunction or decision to seek an injunction did not 19 cause and did not contribute at all to the death of 20 Dudley George. It was not a factor which materially 21 contributed to his -- to his death. 22 The fact that Charles Harnick came to this 23 dining room meeting held by government officials to 24 discus a response to the occupation was not a cause and 25 didn't contribute to Mr. George's death. It was not a
1191 factor which materially contributed to his death. 2 Mr. Harnick was the Attorney General and 3 the responsibility of the Attorney General is to decide 4 whether or not to make -- to make an application to the 5 court. In fact, traditionally when applications for an 6 injunction are made in these contexts it's made, first 7 and foremost, in the name of the Attorney General of 8 Ontario. 9 And in my submission it was a -- prudent 10 and appropriate, for Mr. Harnick, as Attorney General, to 11 consult with the Premier and others before the decision 12 was made -- and I'm not waving at you. I'm waving at the 13 flies. 14 COMMISSIONER SIDNEY LINDEN: Yes, we've 15 had some experience with flying objects. 16 17 CONTINUED BY MR. HARVEY STROSBERG: 18 MR. HARVEY STROSBERG: I just didn't want 19 you to think -- I didn't think that -- want you to think 20 that I was -- that this was histrionic yet. 21 The -- the Premier agreed with the 22 recommendations of the Deputy Attorney General and Mr. 23 Harnick to seek an injunction. In my submission there 24 was nothing improper in the decision to seek an 25 injunction.
1201 And no one can logically criticize the 2 decision to seek an injunction and, in fact, in the 3 absence of special damages it is only the Attorney 4 General who may sue because of a breach of the law. 5 This is -- that is as a matter of law an 6 ordinary member of the public has no standing to claim an 7 injunction for breach of the -- of the law unless he or 8 she or it has suffered damages. And that's a -- that's a 9 well known proposition that's been articulated in the 10 case law, including in the case of Findlay and Canada in 11 the Supreme Court of Canada. 12 And that -- that principle of law stands 13 uncontradicted. 14 It's perfectly appropriate for the 15 Attorney General to consider the decision about whether 16 or not to seek an injunction and make a decision. 17 And no one can logically criticise the 18 instructions to Mr. McCabe to seek the injunction and to 19 do it on notice or without notice, as he considers 20 appropriate, in my submission, a perfectly appropriate 21 decision made. 22 And -- and so we see that nothing that was 23 done by Mr. Harnick at that meeting, could directly or 24 indirectly been interpreted as an attempt to anyway 25 influence the Ontario Provincial Police.
1211 The step that the Attorney General took 2 was to say, get an injunction, recognizing always that 3 the issue of enforcement of the injunction was a matter 4 for the police and not a matter for the Attorney General 5 and that is undisputed. 6 And -- and so in my submission, you have 7 to conclude that the seeking of an injunction was a fair 8 and reasonable decision in all the circumstances and was 9 utterly irrelevant as a causative factor in the shooting 10 of Mr. George. 11 And -- that's issue number 1. And the 12 second is the dine -- the second issue that you have to 13 talk about is the dining room meeting. 14 There was a meeting in the Premier's 15 dining room on September 6th which preceded the decision 16 or was contemporaneous with the decision to -- to seek 17 the injunction. 18 Now, there was nothing inappropriate about 19 Mr. Harnick attending this meeting. There was nothing 20 inappropriate about having this meeting. This meeting, 21 as of today, is not shrouded in secrecy. 22 My goodness, I can't think of any place 23 where -- where more days were spent looking at a meeting 24 that only took a very short period of time. I mean, when 25 you think about how many days you spent hearing evidence
1221 about that meeting, I think you probably had a day a 2 minute, at least. 3 And you have dissected that meeting minute 4 by meeting (sic). 5 Any failure to disclose the fact of this 6 meeting at any particular time does not make the meeting 7 causative of Dudley George's death. 8 And let me just repeat that so that 9 there's no misunderstanding. 10 Whether or not anyone disclosed that 11 meeting, I'll leave it to you to look at the evidence, it 12 is utterly illogical, it is facile, it is inappropriate. 13 You can't link the failure to disclose to say that 14 therefore the meeting caused the death, or that the 15 meeting caused the OPP to do anything. 16 You have to look at the fact of the 17 meeting and the fact that somebody did or did not 18 disclose the existence of the meeting in the legislature 19 -- there was a very important politician that came from 20 Windsor, his name was Herb Gray. He said it was called 21 Question Period. It wasn't called Answer Period. 22 And that's how many politicians look at -- 23 look at the Question Period in the legislature. And -- 24 and whether that's right or wrong, is not the question 25 for you to decide.
1231 The question you have to decide is whether 2 or not what happened at the meeting was causative of the 3 death or contributed to the death. 4 And you can't, by putting up on a screen, 5 a whole bunch of dates and saying, ah ha, somebody should 6 have, could have, would have, disclosed it at that time 7 but didn't and ergo that means that somehow it's 8 causative. 9 That is -- that is good theatre. It's 10 good press, but it's not good law nor is it good fact. 11 Now, let's go to that meeting. The 12 suggestion was that you should make a finding that the 13 Harris government was racist, that's how I took the note 14 down. 15 I don't know what that means. I act for 16 Charles Harnick. He was a member of the Harris 17 government. I know that Mr. Harris has got Counsel and 18 Mr. Runciman's got counsel and Deb Hutton has counsel. 19 Nothing that Charles Harnick said, nothing that Charles 20 Harnick did, nothing that Charles Harnick believed in his 21 heart could lead anyone to suggest that he was a racist. 22 There isn't a tittle of evidence of that; 23 that is -- that is made up of a whole cloth and any 24 suggestion to the contrary would just be simply 25 outrageous. Nothing that that man said, nothing that Mr.
1241 Harnick did would give you any justification whatsoever 2 to come to that conclusion. 3 What Mr. Harnick did was make a decision 4 ultimately to seek an injunction. My goodness, I don't 5 know how -- I don't know how you can twist that into any 6 criticism. 7 Now, there was -- there was discussion 8 about the statement, I want the fucking Indians out of 9 the Park. You can't take that statement in isolation; 10 you have to also take the rest of Mr. Harnick's evidence 11 where he talked about how the Premier paused and said he 12 became quiet and he then said, I know -- I know you can't 13 get them out of the Park or words to that effect, you'll 14 have it in the transcript. 15 But what it led me to do was ask myself -- 16 the question is what -- what does the word "fucking" mean 17 in these circumstances and I looked it up in the 18 dictionary. I looked it up in the dictionary, in the 19 Miriam Webster Dictionary and it's an adjective. It's 20 used -- it said in the -- the same dictionary that was 21 quoted up here, as an intensifier. 22 Interesting word. Common parlance used as 23 an intensifier and I dare say, Mr. Commissioner, that 24 I've used that word as an intensifier and I dare say that 25 many people in this room have used that word as an
1251 intensifier sometimes about things that have gone on in 2 this -- in this very room. 3 And -- 4 COMMISSIONER SIDNEY LINDEN: I'm shocked 5 and appalled. 6 MR. HARVEY STROSBERG: And you're showing 7 -- you're showing your age when you do. 8 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 9 10 CONTINUED BY MR. HARVEY STROSBERG: 11 MR. HARVEY STROSBERG: The -- the point I 12 make is that that word has added flavour and colour and 13 headlines to this Inquiry, but I respectfully say that 14 it's neither sound nor fury and in the context of this 15 Inquiry it signifies nothing. 16 It does not -- it does not in the context 17 of this -- of this Inquiry indicate any type of racism. 18 It tells you that governing this province is not a tea 19 party; that's what it tells you. It tells you that 20 people who are governing this province are real people 21 and sometimes what they do is they talk the way people do 22 when -- when they find themselves in situations where 23 they're looking for a descriptor or an emphasizer. 24 And in my submission no person can 25 reasonably torture the discussion at that dining room
1261 meeting or the use of that adjective into a suggestion or 2 a wink or a nod or an urging to the OPP to go out and use 3 inappropriate force or shoot someone or do something 4 that's inappropriate. 5 There is -- there isn't any evidence that 6 suggests that. You can't reach that conclusion on that 7 evidence. It is -- it is simply not there. 8 I understand how some people have a 9 perspective on life that sometimes -- that sometimes 10 government can't be trusted. In this case what happened 11 at that meeting was not causative. Nothing that happened 12 at that meeting was causative of the police. 13 The fact that there was a botched police 14 operation means simply there was a botched police 15 operation. That's what happened here. And you can't tie 16 the fact of a meeting that took place at Queen's Park to 17 a botched police operation at -- at Ipperwash. 18 Now, in my submission, where Mr. Harnick 19 is concerned your conclusion should be that in the time 20 leading up to the shooting of Mr. George his actions were 21 reasonable and appropriate and the simple reply 22 submission that -- that was made was totally and 23 completely supported by the evidence. Nothing that 24 Charles Harnick did caused Dudley George's death. 25 Nothing did.
1271 Now, let me come to the issues of 2 credibility. Mr. Downard was right. There was -- there 3 was, on the part of the people that participated in this 4 Inquiry, the right to, for the purposes of this Inquiry 5 only, to waive privilege on what was -- happened in the 6 legislature. 7 What that meant is that without Mr. 8 Harnick's consent and Mr. Harris' consent, without Mr. 9 Runciman's consent you could never have cross-examined 10 them about what was said in the legislature. You never 11 could have cross-examined them about what was said in the 12 transcripts of the examinations for discovery. 13 They did it because they wanted to 14 cooperate and because they believed it was important for 15 your work to have that ability. And if it's necessary to 16 judge credibility in terms of whether you believe what 17 one person said, you can use that evidence. But it's not 18 within the terms of your reference to go ahead and say 19 oh, by the way, a year later or two (2) years later or 20 three (3) years later someone said something in the 21 legislature which wasn't as candid as it could have been; 22 that's not within your terms of reference. 23 And in that respect, and I took what 24 Mr. Downard was saying when I read his submissions, to be 25 something like that and in my submissions that is a
1281 limitation on your -- on your work because if someone was 2 going to say that what was going to happen in the terms 3 of reference that they were going to -- that no - no -- 4 no government could have passed an order in council that 5 would have, at the time of the order in council that was 6 passed, that could have even suggested that you could 7 inquire into something such as that because -- because of 8 the privilege. 9 And so you can't interpret your order in 10 council as having -- as giving you that authority. And 11 so in my submission what is important here is that -- is 12 that so far as my client is concerned that you -- that 13 you conclude that he -- his actions leading up to -- 14 leading up to and being involved with and at the time 15 surrounding Dudley George's tragic death were appropriate 16 and that you -- you reach that conclusion as quickly as 17 you can, given the work that you have to do which I know 18 is enormous and immense. 19 And I thank you very much and I thank your 20 counsel for all the cooperation and kindness that they've 21 shown to us. 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much, Mr. Strosberg. 24 I believe Mr. Runciman's counsel is next. 25
1291 (BRIEF PAUSE) 2 3 MR. IAN SMITH: Thank you very much, 4 Commissioner. I expect to be relatively brief in my 5 comments to you today and this is, of course, in keeping 6 with the approach that I have brought to every facet of 7 my brief for Mr. Runciman in this Inquiry. 8 9 FINAL SUBMISSIONS FOR MR. ROBERT RUNCIMAN: 10 MR. IAN SMITH: Now, my cross- 11 examinations and my submissions to you haven't been short 12 because I'm shy or I can't think of things to say or have 13 no questions. They've been brief precisely because Mr. 14 Runciman's involvement in the matters which give rise to 15 this Inquiry was so narrow. 16 In fact, so narrow as to be, in my 17 respectful submission, completely mundane. He was 18 briefed from time to time. His executive assistant 19 governed herself at all times professionally at meetings. 20 He attended two (2) relevant meetings himself and he was 21 content to let others more directly responsible with the 22 various parts of this file to do their jobs without his 23 interference. 24 Up to the time of the tragic death of Mr. 25 George, Mr. Runciman was never the point man on this
1301 file, never the spokesman, never influenced or directed 2 any policy and never, not once, did anything to interfere 3 with the operational decisions of the OPP. 4 And the record of this Inquiry and all the 5 other parties, or many of the other parties, in my 6 respectful submission, all seem to recognize exactly what 7 I've just been talking about. 8 Yesterday, you commented on the number of 9 witnesses you've heard and the tens of thousands of pages 10 of transcript and exhibits that have been amassed. 11 What's remarkable about that record, that 12 enormous record, is how little of it relates directly to 13 Mr. Runciman and his conduct. 14 Moreover in the hundreds and hundreds of 15 pages of written submissions that were filed in-chief in 16 this matter, there is precious little said about him, 17 save for the written submissions I filed on his behalf. 18 Indeed to the extent that he is mentioned, 19 the parties tend to cite his evidence and to rely on it 20 and they do so with good reason. 21 Mr. Runciman was, in my respectful view, a 22 very good witness and provided frank evidence to you in a 23 very thoughtful manner. 24 And in any event, there being so little 25 said about Mr. Runciman, I filed no written reply on his
1311 behalf. 2 And most of the written replies that were 3 filed say nothing about Mr. Runciman and not until one of 4 the last of the late filed replies trickled in, did 5 anyone direct any aim at Mr. Runciman whatsoever. 6 But it is here that Mr. Klippenstein makes 7 for the first time some serious allegations about Mr. 8 Runciman's conduct in the guise of reply. 9 Now, I'm going to set aside what I think 10 about the inherent unfairness of having approached the 11 matter in this way and I'm simply going to respond to the 12 allegations that have been made and the supposed evidence 13 on which they purport to be based. 14 As we shall see, in my respectful 15 submission, that evidence turns out to be pretty thin 16 gruel. 17 Mr. Klippenstein makes two (2) main 18 allegations about Mr. Runciman. The first is that he 19 failed to speak up at the dining room because Mr. Fox was 20 present and because operational information was 21 discussed. Mr. Klippenstein refers to this as a 22 transgression. 23 Now, you'll thank me for having decided 24 not to go into any detailed analysis of the dining room 25 meeting. I rely on my own written submissions in that
1321 respect and I adopt the written submissions filed by Mr. 2 Downard and his colleagues on behalf of Mr. Harris and 3 Ms. Perschy and her colleagues on behalf of Ms. Hutton. 4 In respect of that meeting, what happened 5 there and the lack of any connection to the OPP's 6 decisions on the ground. 7 But let me make just a repeat following 8 three (3) points. 9 First, Mr. Runciman heard no information 10 at the dining room meeting he believed to be operational 11 or that was operational. That's supported by the 12 evidence of others; Ms. Todres and Ms. Hunt were the 13 people most likely to be in a position to identify it. 14 There was nothing about tactics or plans 15 or matters confidential what the police were going to do. 16 Instead, the people present were briefed 17 about what was happening on the ground and, make no 18 mistake, in my respectful submission, they were entitled 19 to know what the situation was. 20 In any event, the briefing came not from 21 the OPP. It came from the Ministry of Natural Resources. 22 Second, Mr. Runciman heard no order or 23 direction given to the OPP. The witnesses are unanimous 24 on this point, those who attended the meeting. 25 The only direction was that given to the
1331 Attorney General, go and get an injunction. And this is 2 something essentially requested by the OPP in Project 3 Maple. 4 In other words, police policy was 5 directing the Government, not the other way around on 6 this point. And it's my submission, in light of these 7 facts, to describe Mr. Runciman's silence at the dining 8 room meeting as a transgression simply does not withstand 9 scrutiny. It has no foundation. 10 The second allegation and more serious in 11 my view and more scandalous, Mr. Klippenstein accuses Mr. 12 Runciman of having engaged in a cover-up. He uses that 13 term and all the dishonesty and underhandedness it 14 implies a number of times in relation to Mr. Runciman in 15 his reply submissions. 16 Mr. Falconer this morning put a definition 17 on the screen before you attesting to how a cover-up 18 relates to illegal or unethical acts. 19 Indeed Mr. Runciman's participation in the 20 cover-up, the so-called cover-up is said to demonstrate 21 his own consciousness of guilt. That phrase is used at 22 least twice in Mr. Klippenstein's reply submissions in 23 respect of Mr. Runciman. 24 In my respectful view these are outrageous 25 and irresponsible allegations. As lawyers -- some of us
1341 here are criminal lawyers including me -- we know that 2 the phrase, "consciousness of guilt" is a term of art 3 applied in criminal law. 4 Mr. Falconer said so this morning and he 5 referred to your experience in the criminal courts when 6 describing what the phrase means. In other words, let 7 there be no doubt as to the seriousness of the allegation 8 Mr. Klippenstein has made. 9 Accordingly the maker of that allegation 10 should set the allegation on a solid foundation. 11 Regrettably, however, what we have instead is an argument 12 set on no foundation whatever. 13 The best Mr. Klippenstein can do is point 14 out that Mr. Runciman did not order an investigation into 15 his own conduct in relation to the allegation of 16 political interference with the operations of the police. 17 His reply submissions say that Mr. 18 Runciman denied such an investigation. There's no 19 indication to whom he denied it but in any event for his 20 part Mr. Runciman acknowledged in his evidence that he 21 could have ordered an investigation into his own conduct 22 but that he couldn't imagine why he would have done so 23 given that the underlying allegations had no merit. And 24 it's my respectful submission that that's exactly what 25 this Inquiry has shown.
1351 But the fact of the matter is Mr. Runciman 2 has never had anything to hide. He told Mr. Rosenthal in 3 cross-examination on January 11th that he was never 4 personally opposed to an inquiry or an inquest. He had 5 no strenuous objections to it. He had nothing to hide 6 and this is apparent. He cooperated with this Inquiry. 7 He waived his parliamentary privilege. He gave his 8 testimony in a very frank and fair manner. He simply 9 never saw any merit or the need for an inquiry into the 10 issue of political interference in the operational 11 affairs of the OPP. 12 And as it turns out, in my respectful 13 view, he was right. There was no interference. And 14 that's no disrespect to you or to this Inquiry. In fact 15 it's been good for Mr. Runciman since all of the evidence 16 has pointed out that he did absolutely nothing wrong. 17 Even for those who disagree with his 18 assessment as to whether or not there was a need for an 19 inquiry into that particular question to call his 20 conduct, his judgment, his opinion on this matter a 21 cover-up, to cast it in the terms of criminal law is 22 still beyond the pale. 23 Reasonable people can disagree about the 24 need for an inquiry. Disagreeing that there is an 25 inquiry does not mean you've engaged in a cover-up; that
1361 you're doing something dishonest or underhanded or that 2 he's conscious of some guilt on his part. 3 Guilty of what I ask? Guilty of what? 4 What did Robert Runciman do wrong? There's not one (1) 5 single thing in my respectful submission, Commissioner. 6 There's simply no evidence anywhere in the record, the 7 massive record before you, that Robert Runciman did one 8 (1) thing wrong. 9 On the contrary, he governed himself at 10 all times properly. He did not interfere in the 11 operations of the police. He made sure others knew of 12 the policy against doing so and he never saw anyone 13 violate it and he engaged in no cover-up. 14 And I pause to note here that Mr. 15 Falconer, who has made extensive submissions about a 16 cover-up, not even Mr. Falconer would include Mr. 17 Runciman in that allegation. There's simply no evidence 18 whatever. 19 Let's assume for the moment that 20 Mr. Harnick's evidence about the words attributed to 21 Mr. Harris are accepted, on the evidence of everyone 22 present at the meeting at the end of the meeting there 23 was no direction of any kind given to the OPP. The 24 witnesses are unanimous on this point. 25 There was no order to get the occupiers
1371 out of the Park. There was no direction given as to how 2 the injunction was to be enforced. No direction given as 3 to when the injunction was to be enforced. No direction 4 was given as to whether force should be used to enforce 5 it. The only direction was to the Attorney General; go 6 and get an injunction. 7 I pause here to note two (2) things. 8 There's nothing wrong, as Mr. Strosberg just said, in 9 getting an injunction. In fact, My Friend, Mr. 10 Henderson, and his thoughtful submissions on this point 11 yesterday, acknowledged that getting injunctions is still 12 a piece of the puzzle in responding to these kinds of 13 problems. 14 And the second point I wish to note is 15 that Dudley George died before the injunction could even 16 be applied for. In other words, and I follow along on 17 Mr. Strosberg's point on this point, there's simply no 18 causal connection between the decision to get an 19 injunction and what unfolded on the evening of September 20 6th. 21 And in the face of all of this to describe 22 Mr. Runciman's conduct as guilty, as a transgression, as 23 an underhanded cover up is simply completely unfounded 24 and irresponsible. 25 Mr. Runciman governed himself, as I've
1381 said in my written submissions, at all times 2 professionally, cautiously, dispationately and in 3 complete good faith. This is not simply self-serving 4 advocacy on my part. This is what the evidence shows. 5 There's no evidence to the contrary and I ask you to 6 reject completely Mr. Klippenstein's submissions to the 7 contrary. 8 I'm going to end with three (3) small 9 points that are raised in some of the submissions of My 10 Friends. Yesterday Mr. Klippenstein referred to the 11 handwritten note that reads "lots of political pressure. 12 Strong in house comments by Premier/ Solicitor General". 13 My point here is simply that there is -- I 14 don't deny the existence of the note, of course, but 15 there's simply no evidence that Mr. Runciman ever made 16 any such statement anywhere. And certainly not in the 17 House which was not sitting. He made no strong comments 18 about the Ipperwash issue to anyone; that is the 19 uncontroverted evidence of everyone who gave evidence on 20 that point. 21 Secondly, Mr. Klippenstein's written 22 Submissions in Reply suggest that Mr. Runciman wants to 23 blame the previous governments for the tragedy at 24 Ipperwash. In my respectful view this is a complete 25 misreading of my submissions on Mr. Runciman's behalf.
1391 Mr. Runciman doesn't blame anyone for the 2 death of Dudley George. All he did was point out that 3 many of the policies in play were developed under 4 previous governments. It's a fact. It's not to blame 5 anyone. That's simply a fact. 6 And in combination with the fact that the 7 Government of Mr. Harris was weeks old at the time, it 8 displays how absurd the suggestion is that the 9 government's policies had anything to do with the 10 occupation or the manner in which the police responded. 11 The last point that is raised in the 12 submissions in-chief of the municipality, I didn't want 13 you to leave you with the impression that no one had any 14 criticisms of Mr. Runciman prior to the delivery of 15 Mr. Klippenstein's reply, in those submissions there is a 16 suggestion that the Solicitor General's Office could have 17 done a better job of communicating with the community 18 after the shooting of Mr. George. 19 Although I think it may be the case that 20 the criticism levelled is more of an institutional one 21 (1) than a personal one (1) to Mr. Runciman, and I'm not 22 sure that it's a failure that can be visited personally 23 on Mr. Runciman. 24 In any event the municipality has made a 25 number of suggestions about improving communication
1401 between the provincial government and the community and 2 they seem reasonable to us and to Mr. -- to Mr. Runciman. 3 I'll close by saying what others have 4 said, I thank you for your attention and courtesy and 5 patience with us and with me and I wish you the best of 6 luck and wisdom as you write your report. Thank you. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much, Mr. Smith. Thank you very kindly. 9 And I'll hear from Mr. Fredrick on behalf 10 of Mr. Hodgson. 11 12 (BRIEF PAUSE) 13 14 FINAL SUBMISSIONS FOR MR. CHRISTOPHER HODGSON: 15 MR. MARK FREDRICK: Thank you, 16 Commissioner. Before I begin submissions on behalf of 17 Mr. Hodgson, I'd like to take this opportunity as well to 18 thank you and Commission Counsel for the courtesy which 19 was extended to Counsel for Mr. Hodgson, myself and my 20 colleagues and, of course, to Mr. Hodgson himself. 21 I'd also like to thank my fellow learned 22 counsel here and in particular, Mr. Millar, Ms. Vella and 23 Mr. Worme for their professionalism and mutual assistance 24 over the past two (2) years. 25 I commend all involved in this Inquiry on
1411 their keen sense of professionalism that they exhibited. 2 It's also a tribute to you in the manner in which this 3 Inquiry was conducted in pursuit of your mandate. 4 I finally have to thank my colleagues, in 5 particular Peter Lauwers and a number of people from my 6 office who jumped in on this matter. 7 I took this brief on on the understanding 8 that it was going to be a three (3) month exercise and 9 that was an optimistic estimate at the time, but I can 10 say I am glad to be here today to make these final 11 submissions. 12 Mr. Hodgson began his evidence with his 13 condolences to the George family on their loss and 14 echoing Sam George's comments made yesterday, Mr. Hodgson 15 is hopeful that this Inquiry will provide some insight to 16 the George family as well as to other parties on how such 17 incidents may be avoided in the future. 18 There is not a great deal to make reply to 19 the submissions made to date vis-a-vis Mr. Hodgson. I 20 commend to you our written submissions and brief to the 21 point. 22 I propose briefly to emphasise the keys 23 points of Mr. Hodgson's evidence, and evidence and 24 positions of other parties who refer to his actions in 25 this matter.
1421 By way of overview, you will recall that 2 Mr. Hodgson was Minister of Natural Resources immediately 3 prior to and at the time of the Ipperwash Park 4 occupation. 5 When concerns were raised about a possible 6 protest at the Park, it is important to note that 7 management of the situation was left to the Ontario 8 Native Affairs Secretariat, part of the AG's department 9 and not to the MNR. 10 The unrest was certain of the Aboriginal 11 community then being expressed was, from the view point 12 of Mr. Hodgson and his staff, not an MNR issue. 13 The MNR had long peacefully co-existed 14 with the Native community in the area and the evidence 15 established the MNR had accommodated Aboriginal usage of 16 the Park. 17 Furthermore, those expressing unrest were 18 not representative of the local government and their 19 chief. 20 Mr. Hodgson was not a participant in any 21 discussions with the Stoney Pointers in the summer of 22 1995. He did not know their motivation for occupying the 23 Park but it was widely held -- a widely held view which 24 he shared as well that they were trying to draw attention 25 to the failure of the Federal Government to return the
1431 adjoining military base to the First Nations in a clean 2 state. 3 After the occupation of the Park, 4 management of the Ipperwash situation remained with ONAS 5 and the Provincial Police. It was not an MNR issue. 6 The only items relevant to the MNR at this 7 time were addressing matters of public safety and 8 infrastructural protection and certainly we heard 9 evidence to that effect. 10 This was accomplished through closure of 11 the Park and evacuation of the Park personnel. 12 As Minister for the entity that had title 13 to and operated the Park on behalf of the Crown, Mr. 14 Hodgson was requested by an Interministerial Committee to 15 speak to a press scrum on the 5th of September 1995. 16 He did so, but he didn't have any 17 subsequent press contact. His evidence was that he did 18 as he was asked in addressing the press, even though he 19 and his staff had expressed some reluctance to him doing 20 so on the grounds that the MNR didn't have responsibility 21 for responding to this issue. 22 Mr. Hodgson was disappointed that efforts 23 had not been made earlier in the summer to diffuse the 24 situation, but that disappointed he laid at the rest -- 25 at the feet, I should say, of ONAS and not necessarily
1441 the OPP. 2 Mr. Hodgson had a positive record and view 3 of the First Nations people and participated in resolving 4 conflicts both before and after Ipperwash that were 5 within the purview of his Ministry. 6 He tried personally to assist and met with 7 Chief Bressette in an attempt to de-escalate the 8 situation. He suggested neutral mediators be brought in. 9 He even wrote letters to the Federal Crown to assist in 10 resolving the conflict and in pursuit of that goal of 11 returning the Military Base to the First Nations in a 12 clean state and in good condition. 13 At no time did Mr. Hodgson attempt to 14 direct the police, nor did he witness anyone attempt to 15 direct the police. He was well aware of the strict 16 separation between the policing function which is the 17 exclusive responsibility of the police and the function 18 of government. 19 In terms of the Commission's mandate it's 20 respectfully submitted that the finding should be made 21 that Mr. Hodgson did not and made no effort to direct the 22 police. 23 Some other key points, and these mirror 24 the points made in our submissions. The first is the 25 comment allegedly made by Premier Harris. Mr. Hodgson
1451 was clear in his evidence that he did not hear the 2 Premier make the comment alleged to have been made by him 3 and the notation for that is the January 12th, 2006, 4 transcript, Volume I, at pages 199 to 201. 5 Secondly, some question raised about 6 whether Mr. Hodgson made an untoward remark. Mr. 7 Hodgson's evidence was that he said nothing during the 8 meeting in the Cabinet dining room. With the sole 9 exception of Dr. Todres, no one else at the dining room 10 meeting and at least the other -- at least nine (9) 11 others who were there on my count who gave evidence 12 testified that they heard Mr. Hodgson say such a thing. 13 A number corroborated Mr. Hodgson's own position that he 14 didn't say a thing at the meeting. 15 It is submitted that Dr. Todres, who 16 admittedly could not recall some other significant 17 details of this meeting and admittedly in a room 18 recalling something ten (10) years later, was simply 19 mistaken in attributing the alleged statement to Mr. 20 Hodgson. That no party supports her on this point is 21 telling. 22 It is respectfully requested the 23 Commissioner make an express finding that Mr. Hodgson did 24 not make the alleged comment. 25 Now, we have read in the reply submission
1461 of the OPP which attempts at great lengths to reinforce 2 Mr. Fox's credibility in an attempt to discredit Mr. 3 Hodgson, to a large extent we join issue and leave it to 4 you, Mr. Commissioner, to sort out that evidence. We do 5 not retreat from anything in our submission. 6 It's disappointing to find that Counsel 7 for the OPP has relied upon the evidence of Dr. Todres 8 which ascribes the offensive remark to Mr. Hodgson, one 9 that no other witness apparently heard including their 10 own OPP witnesses. 11 What is most disappointing, however, is 12 Counsel for the OPP attempts to buttress Dr. Todres' 13 evidence in that respect by using the evidence of Scott 14 Patrick and this is how it's done, and I take you to page 15 205 paragraph 23 of the OPP submission where the 16 following is made and quote's: 17 "Elaine Todres had a vivid recollection 18 of Mr. Hodgson saying, Get the 19 [expletive] Indians out of my Park." 20 I hope you don't mind me using the term, 21 'expletive'. I'm so tired of hearing in every aspect of 22 society in life that word that has been -- 23 COMMISSIONER SIDNEY LINDEN: It's been 24 used in this hearing room. It's on the record. 25
1471 CONTINUED BY MR. MARK FREDRICK: 2 MR. MARK FREDRICK: Well, in the presence 3 of -- I'll avoid it. She was -- I'll continue with the 4 quote. 5 "She was struck by the possessive, 6 quote 'my' used in connection with the 7 Park. The use of that descriptor only 8 makes sense emanating from the Ministry 9 of Natural Resources Mr. Hodgson." 10 And then they write: 11 "Scott Patrick corroborated that 12 account." 13 And I -- that's the word I take issue 14 with. 15 "He testified that Minister Hodgson was 16 quite angry because his officials had 17 been assured by the OPP that the Park's 18 occupation could be prevented; that he 19 was a property owner; that it was his 20 Park and he wanted it back. 21 It's important to recognize Mr. Patrick 22 did not corroborate the assertion made 23 by Dr. Todres Mr. Hodgson had made that 24 comment." 25 The OPP reply at page 241, summarizes the
1481 evidence of Dr. Todres as follows: 2 "1. That the Premier was communicating 3 a level frustration at the fact that 4 the occupiers were still in the Park. 5 2. That Dr. Todres agreed with 6 Inspector Scott Patrick's recollection 7 that Mr. Hodgson indicated during a 8 meeting that he was the property owner, 9 it was his Park and he wanted it back, 10 and he was angry when he spoke out 11 about that issue, and 12 3. Dr. Todres was deeply concerned 13 about his comment." 14 There is an effort to reinforce this 15 summary of the evidence by referring to Patrick's 16 testimony at page 242 of the OPP reply where the 17 following appears. It's attributed to Mr. Patrick. 18 "1. After the Premier left the meeting 19 and before Inspector Patrick and 20 Superintendent Fox left, Mr. Hodgson 21 began speaking to Fox and gave the 22 appearance that he was angry. He 23 indicated that his officials had been 24 assured by the OPP that the Park's 25 occupation could be prevented.
1491 2. Hodgson said that he was the 2 property owner, it was his Park and he 3 wanted it back." 4 By putting the evidence this way the OPP 5 reply is trying to use Fox's evidence about the dining 6 room meeting to reinforce the Todres testimony about Mr. 7 Hodgson making an allegedly offensive remark. 8 This is like trying to cross a canyon in 9 two (2) steps. Mr. Commissioner, nothing Mr. Patrick 10 says actually corroborates Dr. Todres' evidence in that 11 Mr. Hodgson made the offensive remark but that is 12 precisely what I suggest the OPP reply tried to make the 13 evidence say. 14 The basic problem for the OPP reply is 15 that Mr. Patrick didn't -- didn't corroborate Dr. Todres 16 on that point at all. The following exchange is most 17 telling and you may recall Dr. Todres saying in her 18 evidence that "silence fell momentarily after the remark 19 was made. It occurred in the context of the full 20 meeting." 21 The evidence of Mr. Patrick was and the 22 quote comes from October 17th at page 143: 23 "During the Premier's meeting while the 24 Premier was actually in attendance 25 you've testified that Mr. Hodgson did
1501 not say anything at the meeting for 2 that portion? 3 A: That's correct." 4 So it just didn't happen. The effort to 5 spin the evidence of Dr. Todres and Mr. Patrick together 6 is basically unfair and we urge you to decline making the 7 finding suggested by the OPP. 8 Now, some moment is made of Mr. Hodgson's 9 lack of recollection during the discovery which was held 10 some years ago. Mr. Hodgson frankly acknowledges that 11 his memory has been refreshed in part by Mr. Fox's 12 evidence which Mr. Hodgson acknowledge he corroborates in 13 large measure. The points of disagreement are, however, 14 very firm. 15 Finally, much is made of the fact that 16 there is no record of Mr. Hodgson attending an IMC 17 meeting. The meeting with Mr. Fox occurred, as Mr. 18 Hodgson testified, after the IMC meeting and, therefore, 19 before the dining room meeting and the two (2) -- there's 20 an issue about that. So it's not surprising that there's 21 no record of Mr. Hodgson's attendance. 22 All in all, to the extent that it is 23 necessary for you to resolve these issues of credibility, 24 we urge you to find in favour of Mr. Hodgson. There may 25 be no need for you to make credibility findings on the
1511 details given your mandate. We do urge you particularly 2 to find Mr. Hodgson did not make the offensive remark 3 used by Dr. Todres. 4 Now, did Mr. Hodgson know that Mr. Fox was 5 a police officer? His evidence in that respect is 6 categorical. He did not know at any of the relevant 7 times that Mr. Fox was a police officer. 8 Throughout the submissions and the 9 submissions we made, Mr. Fox was not given his police 10 title. This is not to disrespect his office, but to 11 recognize the undeniable fact that he was not acting in 12 the capacity of a police officer at any time during the 13 Ipperwash situation. 14 He had no operational responsibility 15 whatsoever. Mr. Hodgson states unequivocally that he did 16 not know that Mr. Fox was a police officer nor did he 17 have any idea that he would report any discussions with 18 government officials to Inspector Carson or to any other 19 OPP active duty officer and there's no evidence to 20 challenge that. 21 Now, the next point I want to address is 22 the timing of the exchange between Mr. Hodgson and Mr. 23 Fox. There's no doubt they had a full exchange of views. 24 There's a measure of commonality around the substance of 25 those views but there are also major discrepancies. It
1521 is respectfully submitted that the evidence of Mr. 2 Hodgson should be preferred where the evidence conflicts. 3 Now, the content of those exchanges was 4 another matter that came up before you. The record of 5 the exchange between Mr. Hodgson and Mr. Fox that is most 6 contemporaneous with the event is, of course, the 7 transcript between Mr. Fox and the Incident Commander, 8 John Carson, which occurred on September 6th, 1995. The 9 famous Exhibit P-44A (sic) at Tab 37. 10 It is fair to say that Mr. Fox was 11 embarrassed and somewhat defensive about this telephone 12 call which My Friend mis-characterized as being quote 13 unquote "intemperate" and with good reason. 14 The excerpts from Mr. Fox's evidence 15 contain testimony that is correct and corresponds to Mr. 16 Hodgson's evidence. There is difficulty, however, with 17 Mr. Fox's invocations of the Serpent Mounds co-management 18 example as something that he testifies that he refers to 19 having raised in that conversation and that his reference 20 to his testimony on July 12th, 2005, at page 72, and 21 again repeated at page 22 of our submission. 22 We submit this adversely affects his 23 credibility on those points. Mr. Fox was in no position 24 to bring forward Serpent Mounds co-management precedent 25 in his conversation with Mr. Hodgson because it was not
1531 then even a possibility. 2 The Serpent Mounds occupation occurred 3 over the Labour Day weekend and the co-management 4 solution did not come until later in the fall. The 5 evidence of both Mr. Hodgson and Mr. Bangs, and the quote 6 is from November 3rd, 2005, Volume I, page 42 is 7 categorical in this respect: 8 "The prospect of co-management at 9 Serpent Mounds did not arise until well 10 after the incident at Ipperwash." 11 The co-management agreement was therefore 12 reached some time after. Mr. Fox is, with respect, 13 confused or has made some part of that conversation up in 14 an effort, one assumes, to cast himself in a more 15 favourable light. 16 Now, the OPP reply suggests that it is 17 absurd that Mr. Fox would be trying to portray himself in 18 a good light, having admitted that the language he used 19 with Inspector Carson was, quote, unquote, "intemperate" 20 but that's exactly what they've gone on to do and that's 21 exactly what happened. 22 There were clearly misunderstandings 23 between Mr. Fox and Mr. Hodgson that are rooted in the 24 undefined status of Mr. Fox. 25 Mr. Hodgson was perplexed about the nature
1541 of Mr. Fox's responses because he didn't know or didn't 2 understand that Mr. Fox was a police officer. 3 Mr. Fox, for his part, was defensive about 4 the situation at Ipperwash because he was a police 5 officer and thought that Mr. Hodgson was criticising the 6 police operation, which wasn't the case. 7 This may, in part, explain the significant 8 emotion in Mr. Fox's subsequent conversation with 9 Inspector Carson and then with Inspector Cole -- with 10 Superintendent Coles, I should say, which led in turn to 11 three (3) warnings or points, I suppose, as Inspector 12 Coles or Superintendent Coles made to caution Mr. Fox to 13 cool down, be careful, and stay away from operational 14 concerns. 15 And those can be attributed to Inspector 16 Coles, August 16th, 2005 at pages 208 to 214. 17 Mr. Fox no longer had any direct 18 communication with the command post after his 19 conversation with Commissioner Coles which he admitted 20 being told to keep a lid on it and that's his admission 21 on July 13th, 2005, at page 202. 22 Regrettably, Mr. Fox confused his civil 23 service role with his police identity and completely 24 misconstrued Mr. Hodgson's comments, his attacks on the 25 police, for whom he became quite defensive.
1551 His evidence in this Inquiry, buttressed 2 only by his loyal assistant, fellow OPP officer Patrick, 3 was an effort to respectively justify what he said and 4 did. 5 His evidence in that regard wasn't candid 6 and the effort must be seen to have failed. 7 Now, the next point is and you'll be 8 relieved to hear I've only got two (2) points left to go. 9 Did Mr. Hodgson direct the police? 10 Well, Mr. Hodgson denies ever directing 11 the police and there's no evidence that he did so. Any 12 remarks he made to Mr. Fox were not directions to the 13 police, since he did not know that Mr. Fox was a member 14 of the OPP. 15 In any event, Mr. Fox had no operational 16 responsibility with respect to the incident. 17 Mr. Fox agreed that neither Mr. Hodgson 18 nor his staff instructed him to direct the OPP and that 19 comes from July 13th, 2005, pages 168 to 169. 20 It was Mr. Hodgson's understanding that 21 there is a bright line between police functioning and the 22 ordinary business of government and that was his 23 testimony throughout and the reference is from January 24 12th 2006, at page 38. 25 Finally, on the burial site issue, Mr.
1561 Hodgson's evidence was that throughout the period of time 2 leading to the fatal shooting of Mr. George, he was not 3 aware the Stoney Pointers were making a land claim in 4 respect of Ipperwash Park. 5 He had been told that the Crown had clear 6 title to the Park. Even today, there is no land claim on 7 the Park. 8 Mr. Hodgson's evidence was that the 9 existence of a burial site in the Park could not justify 10 an occupation of the Park in any event. 11 The practice of the MNR was to give First 12 Nations access to burial sites on park property in 13 accordance with the Cemeteries Act to erect a fence 14 around the site in order to preserve it. 15 And that was Mr. Vrancart's evidence, 16 October 27th at page 182. 17 There can be no doubt that had a burial 18 site been identified or even suggested that the MNR would 19 have taken steps to see that site respected. 20 My closing observations were that Mr. 21 Hodgson gave his evidence without hesitation, his 22 evidence was not shaken despite extensive cross- 23 examination nor was his evidence contradicted in material 24 part by the credible evidence of other witnesses. 25 His testimony established conclusively
1571 that he had a positive relationship with First Nations 2 peoples and had participated before in achieving 3 solutions to conflicts that had arisen concerning areas 4 for which his Ministry was involved; that he saw the 5 protest as caused by the inaction of the Federal 6 Government in failing to return the military base to the 7 proper First Nations in a clean state as obligated. 8 He thought the Park occupation was 9 actually about the military base and not about the Park 10 itself, either in terms of a land claim or the possible 11 presence of a burial site. 12 He saw the occupation above all as a 13 police matter. His sole participation in the media scrum 14 was not his idea but was a responsibility he undertook. 15 Mr. Hodgson understood the strict 16 separation between the policing function, which is the 17 sole responsibility of the police and the functions of 18 general government. He knew that it was inappropriate 19 for politicians to direct the police. He did not do so, 20 nor did he attempt to do so. 21 And finally, his conversation with Mr. Fox 22 could not be interpreted as a direction to the OPP in 23 relation to the Ipperwash situation. He did not know Mr. 24 Fox to be a police officer or he did not have -- he did 25 not know he had any responsibility, and goodness knows
1581 Inspector Fox had no operational responsibility for the 2 Ipperwash situation. He had no contact with the police 3 whatsoever. 4 Later Mr. Hodgson tried to assist Chief 5 Bressette in finding a solution but as a result of the 6 Federal Government's refusal to engage in the effort it 7 was doomed to failure. 8 Finally, in closing I would say Mr. 9 Hodgson did not again make the statement alleged to him 10 by Dr. Todres. 11 Mr. Commissioner, I'd like to thank you 12 very much. I commend to you submissions. I commend you 13 the arguments of my fellow counsel who voice the same 14 view and I thank you again. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Fredrick. 17 MR. DERRY MILLAR: Commissioner, the next 18 submission would be from Mr. Sulman on behalf of Mr. 19 Beaubien and it might be appropriate, subject to what Mr. 20 Sulman -- Sulman wants but -- suggests -- but it might be 21 appropriate to break for lunch and come back in an hour. 22 COMMISSIONER SIDNEY LINDEN: I think 23 that's a good suggestion. That's what we'll do. We'll 24 break now for lunch. 25 THE REGISTRAR: This Inquiry stands
1591 adjourned until 1:45. 2 3 --- Upon recessing at 12:41 p.m. 4 --- Upon resuming at 1:47 p.m. 5 6 THE REGISTRAR: This Inquiry is now 7 resumed. Please be seated. 8 COMMISSIONER SIDNEY LINDEN: Good 9 afternoon, Mr. Sulman. 10 MR. DOUGLAS SULMAN: Good afternoon, Mr. 11 Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Good 13 afternoon. 14 MR. DOUGLAS SULMAN: I had a few 15 preliminary comments that I'd like to make. My voice is 16 a little weak today and I hope it holds up but if not, 17 I'll just bark a little louder I guess. 18 19 FINAL SUBMISSIONS FOR MR. MARCEL BEAUBIEN: 20 MR. DOUGLAS SULMAN: As you're aware I've 21 been from the very outset, I've been present on most days 22 throughout the Inquiry and with very minor exceptions. 23 And I've also attended the Part 2 presentations, most of 24 which were very valuable, but frankly, had little to do 25 with my client.
1601 But my attendance at the Hearing days on 2 those events is in large part, but out of respect for the 3 process undertaken in this Inquiry. 4 And -- and I suggest that it is important 5 in civil society that judicial processes be accordingly 6 respected. Before I go further, I want to complement 7 you, Mr. Commissioner, not just on the even-handed 8 approach, I sound like I'm joining a chorus. 9 But I want to compliment you not only on 10 the even handed approach you've taken in this long and 11 often difficult and sometimes testy process. But I want 12 to comment on something that others haven't. 13 And that is the dignity which you brought 14 to the process. And the entire process has been framed 15 by that. And I think some of our behaviour has been 16 brought in as a result of that dignity and I thank you 17 for that. 18 I view our role in this process is 19 threefold. That is my client's role. First and obvious 20 is to assist you in a search for the truth. And when I 21 say truth, it's -- it's not myth, it's not speculation, 22 it's not allegation but -- but the unvarnished truth. 23 Secondly, of course, my role is to defend 24 my client's reputation and I've tried to do that 25 throughout.
1611 But thirdly and -- and I think very 2 importantly, our role has been somewhat to add a balance 3 so that the Commission is aware that the local community 4 is also a victim arising out of the incidents of 5 September 1995, and I think that's an important role. 6 And perhaps also to act as a reminder that 7 the healing that you've addressed so eloquently and the 8 healing that we agree needs to be taking place is not 9 just healing limited to the Native community. 10 But there's also a healing that is a much 11 wider sense needed for this entire community. Throughout 12 our participation in the Inquiry, we've tried to follow 13 that direction that you gave us, to be efficient and 14 hopefully we've combined that efficiency with some 15 effectiveness from time to time both in our oral and 16 written advocacy. 17 To that end I didn't file a written reply 18 because we're trying to be effective and efficient. And 19 it's not because we agreed with all the other submissions 20 but rather my understanding of reply is that I ought use 21 it to address new matters that are raised and frankly in 22 our view, there was nothing new that merited reply in the 23 arguments before you. 24 Now I intend today to try to continue that 25 efficiency and effectiveness. So I'm going to briefly
1621 address the background of the occupation of the Ipperwash 2 Provincial Park and then our client's role in this 3 matter. 4 And then I'm going to try to touch on a 5 few other final points. I'm not going to review in 6 detail our -- our submissions and we made several 7 recommendations. I'm only planning on touching on one of 8 them. 9 The first thing I want to address though 10 is the eight hundred (800) pound gorilla that's not in 11 the room. The -- the Federal Government, we can't forget 12 about them. And so I'm going to start off by addressing 13 that issue. 14 The Federal Government's occupation of the 15 Stoney Point lands and the -- the creation of the 16 Canadian Forces Base Ipperwash was a legitimate action 17 within the Rule of Law under the War Measures Act in the 18 initial years of the Second World War. We do not take 19 the position -- we do not say it was an appropriate 20 action as stated by Ms. Esmonde in -- in her reply, but 21 rather that it was legitimate, that being that it was in 22 accordance with provisions of the Statute in place at the 23 time. 24 We make no comment whatsoever on the 25 appropriateness of taking the Stoney Point lands versus
1631 other lands that may have been available, only that it 2 was taken within the Rule of Law and the Law of Canada at 3 the time. 4 Now, up until September 4th, 1995, with 5 the entry of the Aazhoodena people and others into the 6 Provincial Park, the issue was the occupation of Canadian 7 Forces Base Ipperwash, and that was a Federal issue. And 8 there had been no longstanding festering dispute between 9 the Province and the Kettle and Stony Point people over 10 the Provincial Park. There had been no land claim for 11 the Park. There had been no frustration over the length 12 of the lands claim process with regard to the Park. 13 Even on the now prominent issue of burial 14 grounds as a reason for dispute with the Province, there 15 was no evidence of years of ongoing requests by the 16 Kettle and Stony Point people to the Province to protect 17 it as a burial ground. 18 Chief Tom Bressette, you'll recall his 19 evidence, he said he didn't think there was a burial 20 ground at Ipperwash Provincial Park prior to September 21 6th, when he saw mystery documents from Ron Irwin. He 22 specifically asked his own father-in-law, Charlie 23 Shawkence about it. And the former chief, Mr. Shawkence, 24 said he didn't think there was a burial ground. 25 Now, the evidence before you shows that in
1641 a short time period, in August 1937, there was a Band 2 resolution regarding the allegation of what was described 3 -- and I quote -- "as an old Indian burial ground." Then 4 there was a letter from the Indian agent to the Federal 5 Secretary of Indian Affairs, and then a letter from the 6 Federal Secretary to the Provincial Deputy Minister under 7 who's aegis the Park fell, and then a letter back to the 8 Federal Secretary saying that the Province would respect 9 the Indian wishes. 10 And with that the ball was in the Federal 11 court, if you will, and that's where matters on that 12 request ended. I'm going to suggest that pointing 13 fingers at this point or in 1995, that is should the 14 Federal Government have acted, should the Band have 15 written the Feds or the Province or pursue this with 16 great vigour, should the Province have done something, 17 none of that pointing of fingers is going to advance your 18 inquiry into what went on at Ipperwash Park in September 19 1995. 20 What is clear is that the issue was not 21 pursued with vigour and I suggest that it can be safely 22 said that that issue was dormant for some fifty-eight 23 (58) years. 24 Then let's -- let's just for a moment -- 25 let's address a highly relevant question, in my
1651 submission highly relevant. What if you were to adopt 2 the positions of Mr. Klippenstein and Mr. Rosenthal that 3 the longstanding concern over the burial grounds is a 4 prime reason for the occupation of the Park on September 5 4th, 1995. 6 I put to you that the question is -- you 7 have to ask is, if the protection of a burial ground, 8 which My Friends suggest was known as early as 1937, what 9 was the reason then, what was the event on September 4th, 10 1995, what was that triggering event that occurred which 11 necessitated a takeover and occupation of the Ipperwash 12 Provincial Park to protect burial grounds at a time when 13 the Park was closed to campers? 14 What triggering event occurred on 15 September 4th, if that is the basis for entering the 16 Park? What was so urgent from the perspective of 17 protecting an ancient burial ground on that particular 18 day as opposed to any other time earlier or taking some 19 other steps? 20 And I suggest to you there's nothing. 21 Nothing has been put forward to answer that most logical 22 question. Nothing appears in the evidence to say why on 23 that particular day. I think the answer is, as Mr. 24 Scullion correctly put it to you yesterday, the takeover 25 of the Army Base and the takeover of the Park were all,
1661 in effect, part of the same process. 2 As Glen Bressette, Roderick George, and 3 others and even Dudley George himself agreed, they needed 4 to take over the Park to get media attention; that was a 5 direct quote from Glen Bressette, quoting Dudley, because 6 they weren't getting enough at the Army Base. 7 And, as a strategy, that was certainly 8 effective. What it did was place the province with a 9 newly elected government, a Province who did not have a 10 historic poor relationship with the local Aboriginal 11 community, it placed that Province right in the center of 12 a longstanding dispute with the Federal Government and 13 the local Aboriginal community. 14 And it is our submission that in your 15 report, you should find that the Federal Government 16 inaction with regard to CFB Ipperwash, even as late as 17 1995, led directly to the takeover of the Ipperwash 18 Provincial Park. 19 I recognize that they haven't been a 20 strong attender at the Inquiry over the last period of 21 time, but it's important I think, for the public to 22 understand what occurred between September 4th and 23 September 6th, 1995, and to recognize the responsibility 24 of the Federal Government in what occurred. 25 And it is, I submit, fair to ask, would
1671 the violence that occurred in the days of September 4th 2 and 6th, have occurred had frustration over the inaction 3 of the Federal Government not bubbled up and overflowed 4 the Army Base resulting in the take over of the 5 Provincial Park? 6 It is on September 4th that an issue which 7 since appropriation in 1942 for some fifty-three (53) 8 years has been a Federal matter suddenly with the cutting 9 of the fences at Ipperwash Park became a Provincial 10 matter for three (3) very crucial days in September 1995. 11 And it is our position while there can be 12 no doubt about the ultimate right of the Kettle and Stony 13 Point Band to the Army appropriated lands, there is no 14 such obvious right to the Provincial Park lands and in 15 either case, it is our submission that self-help is not 16 the remedy to be used to assert such rights. 17 The Courts, which I suggest have not shown 18 a reluctance to support Aboriginal rights in a fair and 19 impartial manner in recent decades, are the proper route 20 to be followed. 21 And the Courts and the judicial process 22 are to be respected. 23 Now, let me turn from that more general 24 issue of the Park occupation to the specifics of my 25 clients, what I suggest is a tangential role once this
1681 matter becomes a Provincial issue. 2 There are several theories, allegations or 3 myths relating to Mr. Beaubien's limited involvement in 4 the Ipperwash incident. 5 Initially, the allegations were that he 6 was speaking to Mr. Harris, that he was passing his views 7 on to the OPP -- Mrs. Harris' views onto the OPP on the 8 ground. 9 Well, the evidence from Mr. Beaubien, Mr. 10 Harris, and in particular, Bill King, debunked this myth. 11 Mr. Beaubien's calls to Mr. King resulted 12 in Mr. King placating Mr. Beaubien. His correspondence, 13 that is Mr. Beaubien's correspondence both in the form of 14 a draft media release that was never released and his 15 sending of a letter that a constituent had already sent 16 to Mr. Harris, Mr. Harnick, and Mr. Hodgson and just 17 sending it along to Mr. King, well, we know -- I guess it 18 would be charitable to say that it was filed away. 19 I think that it was filed away in what is 20 so often called the round filing cabinet. But in any 21 event, it was filed away and lost and didn't proceed to 22 Mr. Harris. 23 The evidence is quite the opposite to that 24 allegation that Mr. Beaubien was, in effect, Mr. Harris' 25 man on the ground.
1691 Mr. Beaubien was receiving precious little 2 information from Queen's Park and his frustration was at 3 a lack of communication from his own government and the 4 paucity of direction or information at all from his 5 government. 6 The next theory, sir, is that Mr. Beaubien 7 had some personal animus towards the Natives occupying 8 the Park and that he advocated an aggressive approach to 9 be taken by the police. 10 Again, the evidence is quite contrary. 11 Each and every police officer who had contact with Mr. 12 Beaubien testified that he advocated no action for the 13 OPP to take. He didn't advocate force be used, he didn't 14 attempt to tell the police what to do and specifically no 15 officers said he was trying to -- that they perceived 16 that he was trying to pressure the police to take any 17 action. And this is the evidence from Carson, Coles, 18 Linton, Parkin and Lacroix. 19 Oh, there was pressure on the police, 20 there's no doubt about that. But the pressure was from 21 the facts of the incident itself and the media attention. 22 It was an incident of grave local community concern. It 23 was a takeover of a popular Provincial Park with an even 24 larger Provincial Park nearby and rumoured to be next. 25 There was lots of pressure. The takeover
1701 rapidly became a media event and that I suggest achieved 2 the strategy that Glenn Bressette and Dudley George had 3 spoken of. 4 Commissioner O'Grady, you'll recall his 5 testimony and he testified that the pressure on an 6 Incident Commander was part and parcel of the role. It's 7 expected. But it is the incident as a whole that creates 8 that pressure, particularly in an incident at a 9 Provincial Park, a popular Provincial Park, that's taken 10 over in the full glare of the media. 11 Now there is also a theory or an 12 allegation posited that Mr. Beaubien was trying to 13 pressure or influence then Inspector Carson through 14 Lacroix to take action against the occupiers. 15 This action is -- this allegation likewise 16 is not supported by the evidence. And when asked 17 directly, what does Lacroix say? He denies of course; 18 says, none whatsoever. He says that that is not what 19 occurred. 20 21 (BRIEF PAUSE) 22 23 MR. DOUGLAS SULMAN: If you'll give me 24 just a moment. I have some exact quotes for you that may 25 be of assistance. But you will find those in our -- in
1711 our argument that has been filed, our submission that has 2 been filed. 3 But Lacroix specifically said that on May 4 9th testifying before you, the question was put to him: 5 "And in the two (2) conversations you 6 had with Mr. Beaubien on September 5th, 7 did you form the impression that Mr. 8 Beaubien was trying to intimidate you 9 into taking any specific action by 10 advising you that he called the 11 Premier's office? 12 A: No, I got more of a bit -- I got 13 it that he was more -- he was more 14 exasperated, you know, by the phone 15 calls he's receiving. Not, you know, 16 demanding us to do anything. I think 17 he was looking for a little bit of 18 information. 19 Q: And did you form the impression he 20 was trying to use his position as an MP 21 to somehow influence you to do 22 something as an OPP officer that you 23 might not otherwise have done? 24 A: Not at all. 25 Q: Just to be specific, I take it Mr.
1721 Beaubien didn't ask you to do -- he 2 didn't demand any information from you 3 at any point in time? 4 A: No, sir, no." 5 Is the answer from Wade Lacroix. And 6 question to Mr. Lacroix: 7 And he wasn't being belligerent or 8 bullying or intimidating you? 9 A: No. He was being friendly. Like, 10 he was just more -- he knew about the 11 occupation and it was like, you know, 12 what can you give me. 13 Q: And did he give you any impression 14 through his conversation with you that 15 he wanted you to do anything in 16 particular? It was just that he was 17 getting calls and wanted to be able to 18 respond, correct? 19 A: Yes. He was simply looking for 20 information about what the police 21 response would be." 22 What does Chris Coles say about it? On 23 August 17th before you he was asked; 24 "Well, that's what I want to know, in 25 particular with regard to Marcel
1731 Beaubien. So can you just confirm that 2 he didn't attempt to instruct you with 3 regard to the OPP operations whatsoever 4 at Ipperwash Park operation." 5 And Chris Coles' answer is: 6 "To the best of my recollection, sir, 7 he did not." 8 And Coles went on -- there was further 9 questions to Coles. 10 "And my question to you had been that 11 Mr. Beaubien, or the suggestion I put 12 to you that Mr. Beaubien didn't express 13 any personal concerns about OPP 14 policing in the area, rather he was 15 expressing the concerns and the 16 frustrations of the cottagers." 17 And the answer from Chris Coles is: 18 "Yes, sir." 19 We had -- we've had heard discussions 20 about nuances and messaging and impressions. And so 21 Chris Coles was asked on August 17th, 2005 directly: 22 "And you didn't get the impression and 23 he didn't tell you directly, he didn't 24 give you the impression that he was 25 attempting to influence you, Carson,
1741 Lacroix or Linton on how to do your 2 sworn duties at that meeting either, 3 did he?" 4 And the answer to that is: 5 "No, sir." 6 Are they telling the truth? Is Parkin, 7 Lacroix, Carson, Coles, are the telling the truth when 8 they say that there was no attempted influence, they 9 weren't being told what to do, Mr. Beaubien wasn't 10 advocating a position, he wasn't interfering, he wasn't 11 telling the OPP how to do their job? Were they telling 12 the truth? 13 Well, there's no nuances here. They were 14 asked these questions directly and they've answered them 15 directly. 16 But what possible reason could they have 17 for not telling the truth about Mr. Beaubien's role? I 18 mean, they were quite straightforward in their evidence. 19 And I suggest, sir, that there is no reason that they 20 would want to be untruthful to protect Mr. Beaubien. 21 There's no advantage to them to protect a 22 local backbench MPP who, by the time they gave their 23 evidence, is long since out of office. 24 So when they gave their direct responses 25 to direct questions, and I've tried to shorten it by not
1751 going through each and every one, there is ample 2 evidence, because I took the time to carefully ask each 3 officer as he came forward, they have no reason not to 4 tell you exactly what they did. 5 They have no reason to protect him. there 6 is no reason not to believe their evidence. But if there 7 was ever any doubt, and I don't know how there could be, 8 but if there was any remaining thought that Beaubien in 9 any way attempted to influence the MP -- or the OPP 10 through incident commander Carson, one only needs to read 11 Carson's responses when he gave evidence on June 2nd, 12 2005. 13 And I will spare you going through each 14 one of those, but: 15 Q: The scribe notes go on to say, 16 'John Carson states, that we want it 17 resolved; that we don't want anyone to 18 get hurt.' Do you see that? 19 A: Yes, I certainly emphasised that. 20 Q: And Mr. Beaubien concurred in this 21 desire, correct? 22 A: Oh, yes. 23 Q: Now, at this meeting, did Mr. 24 Beaubien advocate that you use force to 25 remove the Natives from the Park later
1761 that evening?" 2 "Absolutely not." 3 Is the answer. 4 You'll recall that this is the key meeting 5 that hours have been spent on discussing the meeting at 6 the incident -- at the command centre at the Provincial 7 Detachment at Forest. 8 And Carson was further asked: 9 "And did he tell you he was passing on 10 instructions from the Premier of 11 Ontario, Mr. Harris, on how to conduct 12 police operations at Ipperwash 13 Provincial Park? 14 A: Absolutely not. 15 Is it true that Mr. Beaubien... 16 Q: Is it true that Mr. Beaubien did 17 not advocate any position for the OPP 18 to take in relation to police 19 operations at the Park? 20 A: Correct. 21 And did you take any actions or 22 instruct anyone on the evening of 23 September the 6th as a result of 24 meeting with Mr. Beaubien? 25 No, sir."
1771 Is the answer. 2 "Was there anything that Mr. Beaubien 3 did at that meeting that caused the OPP 4 to call out the TRU team? 5 A: None whatsoever." 6 Nothing could be clearer. Absolutely 7 nothing could be clearer. 8 And there is no reason that anyone can -- 9 has come forward with that would indicate why Inspector 10 Carson would possibly be protecting Marcel Beaubien in 11 2005. 12 So, I might move forward simply to 13 summarize part of our position and that is, you'll recall 14 in the summer of 1995 Beaubien was simply a newly elected 15 backbench MPP with the little power that goes with being 16 a backbench MPP. 17 He performed his role as the MPP in 18 representing the views of his constituents both Native 19 and non-Native who communicated their views to him in a 20 plain -- and he communicated to them in a plain-speaking 21 and straightforward manner. 22 Now, the evidence that you have before 23 you, there's been suggestion that he only represented, to 24 put it plainly, the white constituents. 25 And that isn't true. That isn't what the
1781 evidence is before you. The evidence is that he met with 2 the cottagers, because they had concerns, but when he 3 wanted to understand certain issues, he met with Tom 4 Bressette, he met with Charlie Shawkence, he met with 5 Robert Nobby George, and that was his evidence before 6 you, unrefuted. 7 In communicating with the OPP during the 8 summer of 1995 he breached no statute, no regulation, no 9 policy, no guideline. There was absolutely no 10 prohibition, nor is there today, by statute, guideline, 11 policy or otherwise, against communicating with the 12 police in a local area. In fact, it was encouraged. And 13 you've heard that evidence from the OPP. 14 He acted quite appropriately in performing 15 his role as MPP, being the representative of his 16 constituents. He didn't hide from controversy, nor did 17 he play possum when a problem presented itself to him. 18 There is no question that he's -- he's 19 colourful in his speech sometimes. There's no question 20 that he's straightforward and plain-talking. But that 21 certainly is not something that he ought to be criticised 22 for but maybe rather praised. 23 He had no personal interest in the outcome 24 of the takeover. He didn't live in this area. When the 25 occupation of the Ipperwash Park occurred he advocated no
1791 position for the OPP to take except that requested by his 2 constituents and that is simply keep the peace and uphold 3 the law. And there can be no criticism for asking for 4 that. 5 Mr. Strosberg went into an area that I had 6 intended to cover and that is causation. I'll simply say 7 that while he was MPP for the area, Mr. Beaubien played 8 no part in the death of Dudley George nor the actions of 9 the OPP on the evening of September 6th, 1995. There's 10 absolutely nothing that one can point at that he did that 11 can be said to be of a material cause in the death of 12 Dudley George. 13 The fact that he attended at the Forest 14 Detachment of the OPP and met with Carson in the Command 15 Centre as opposed to meeting in a different office in the 16 Detachment building proper had no impact on the events of 17 the evening of September 6th. It was not Mr. Beaubien 18 who had control over what office they met in, where -- 19 and, in fact, he was invited in. 20 His meeting with Carson was at the same 21 location as Carson had earlier met with Mayor Thomas. 22 And Carson's evidence is that the -- the content of the 23 meeting was the same, that he told Mr. Beaubien the same 24 things as he told Mayor Thomas. 25 Carson, by the way, was so unmoved by his
1801 conversation with Beaubien on the evening of September 2 6th that he went to dinner with his friends and believing 3 everything was under control and the status quo was in 4 place. So there wasn't anything too shocking that upset 5 then Inspector Carson after meeting with Mr. Beaubien. 6 By the time Beaubien -- I think we've got 7 to bear in mind that by the time Beaubien spoke to Carson 8 on September 6th, Carson had already heard from Fox, who 9 knew far more than Beaubien about the meetings and the 10 discussions occurring at Queen's Park regarding the 11 Government's decision to proceed pursuant to the laws of 12 the Province to seek an injunction through the court 13 system. 14 On September 6th it was Carson who briefed 15 Beaubien, not the reverse. And while Carson attempted to 16 see if Beaubien had more information, it was pretty clear 17 that that backbench MPP had no information to provide 18 Carson that Carson did not already possess. Beaubien 19 didn't even know of the Interministerial Meeting and he 20 certainly had no input into that meeting. 21 He had no contact with Premier Harris 22 other than contact will Bill King. And Bill King's 23 evidence is that, in effect, he poo-poo'd it and didn't 24 pass it on. 25 He had no contact with Attorney General
1811 Harnick, no contact with Minister Hodgson, Solicitor 2 General Runciman or Deb Hutton, during the period 3 September 4th to September 6th, 1995. 4 On September 6th Beaubien didn't even know 5 that a meeting had occurred in the Premier's board room 6 following the Cabinet meeting. He had no knowledge of 7 what language might have been used in that meeting or not 8 used in that meeting. He didn't know anything about the 9 adjectives and -- or the nouns that may have arisen in 10 that meeting. 11 While he was informed that the Government 12 had decided to seek an injunction, he didn't even know 13 the decision was made in that meeting. So his only 14 contact with Queen's Park was Bill King. And although 15 King assuaged Beaubien by telling him the Premier was 16 aware and concerned with the situation in his riding, 17 King didn't take Beaubien's concerns or Beaubien's faxes 18 to the Premier or to anyone else for that matter. 19 I suggest that what King told Beaubien 20 seems to me to be self-evident anyway. There's been 21 great interest in the fact that the Premier's concerned, 22 but would any reasonable person not expect that the 23 Premier of the Province would be concerned about the 24 occupation of a Provincial Park or that he was following 25 the situation closely?
1821 Isn't that what is reasonable for the 2 public to expect? Isn't that his job? Can't -- isn't 3 that what the current Premier's doing in Caledonia? 4 It's -- it's a reasonable expectation that 5 the Premier will be aware of the news media and will be 6 aware of Provincial property under occupation. But we've 7 spent a lot of time on that. 8 The evidence is clear that in the 9 September 4th to 6th time period, Beaubien was frustrated 10 that he was receiving very little information from 11 Queen's Park and likewise believed that he wasn't being 12 listened to at Queen's Park, and wasn't being appreciated 13 with his warnings of the magnitude of the problem. 14 I suggest to you that in the summer of 15 1995, Mr. Beaubien had no influence in the decisions made 16 at Queen's Park regarding the Ipperwash incident. 17 He was merely a constituency man, properly 18 performing his role as a constituency MPP. He wasn't a 19 conduit to and from the Premier. Never spoke to the 20 Premier. While the Premier was quite rightfully and 21 aware and closely monitoring the situation, Beaubien had 22 no contact, no influence on the Premier's views and no 23 input into Government decision making that resulted in 24 seeking an injunction. 25 He was simply performing his duty to
1831 represent his constituents and make their views known. 2 He may have added to political pressure felt by Carson, 3 but no more so than the actions of Mayor Thomas. 4 And those political pressures from the 5 local elected representatives only reflected the views of 6 their community, only reflected the views of their 7 constituents. And Carson already knew about all these 8 concerns from other sources including the media by the 9 time he met with Mayor Thomas and Beaubien and, by the 10 way, Chief Tom Bressette on September 6th. 11 So he wasn't just getting one side of the 12 view, he had the -- the elected leaders from the Native 13 community and from -- and Beaubien and Thomas. 14 I submit to you, sir, that it's 15 disingenuous not to recognize that any incident that has 16 widespread impact on a community, would cause there to be 17 small political pressure on an Incident Commander. 18 The difference here is that a grave 19 tragedy occurred, a death occurred and thereafter all the 20 activities had been magnified in a retrospective 21 examination. 22 In concluding this area, we ask that you 23 find that Mr. Beaubien did absolutely nothing improper, 24 that he properly represented his constituents, he did 25 everything without malice, he did it in an open way, and
1841 he had no material role in causing the tragic death of -- 2 of Dudley George. 3 There is one (1) issue I think that bears 4 some examination and that is so-called political pressure 5 from the elected politicians allegedly causing Incident 6 Commander Carson to act in a certain manner on the late 7 evening of September 6th, such that the violent 8 confrontation that resulted -- and then ultimately 9 resulted in -- in the death of Dudley George. 10 I suggest to you that to place any 11 credence in that theory, one must ask what Carson or 12 Wright or Korosec or Linton, personally had to gain from 13 elected politicians that they would gain from sending 14 officers down the road to what, with the glare of the 15 media, would certainly make headlines the next day. 16 Did -- did Marcel Beaubien, a backbench 17 MPP, or -- or even Mike Harris, the Premier, control 18 their individual salaries? No. Did Marcel Beaubien or 19 Mike Harris control their advancement in the ranks? No. 20 Could either of them fire the OPP officers? No. 21 They had no -- they had no reason to be 22 influenced directly by elected politicians. The 23 politicians -- who had a permanent position, the 24 politicians or the police? 25 Clearly, the politicians, at best, in 1995
1851 had a four (4) to five (5) year mandate and the police 2 officers who were subject to dismissal, only under the 3 Police Services Act. They were, I'm going to suggest, 4 independent. I suggest to you that too often in this 5 lengthy process, an allegation has been repeated so 6 often, that it takes on a life of its own. 7 Simply by repeating that allegation does 8 not make it a fact. It must be supported by the evidence 9 and so the so-called political influence, I suggest to 10 you, is not supported on close examination of the 11 evidence, nor is it borne out when -- when someone does 12 ask those logical questions about how -- why a police 13 officer would be influenced; how it advances their 14 career, how it helps them. 15 It's not an analogy to a parent. A parent 16 controls the purse strings and controls many other things 17 and directly impacts the progress and existence of a 18 child. That being is not the proper analogy here. 19 The system that we have in place currently 20 protects the police from such political influence because 21 their livelihood is not dependent on keeping one (1) or 22 more politicians happy, or one (1) or more political 23 parties happy. They are independent from that. 24 The Premier of one day is the opposition 25 leader the next day and vice versa. And we clearly see
1861 that in -- today. 2 It's of no advantage for a police officer 3 to curry favour of one politician to the detriment of the 4 other, because someday that person may be in charge. It 5 just seems illogical. 6 I'd like to turn finally to one of our 7 areas of recommendation. And although I have given a 8 series of recommendations before you, it's our respectful 9 submission that it is important that your report be 10 clear, as a first principle that, while the frustration 11 of many of the Kettle and Stony Point people with the 12 inaction of the Federal Government, was and is real and 13 was and is understandable. While that frustration can be 14 acknowledged, as a first principle, I respectfully 15 submit, that there can be no condemnation of self-help as 16 a remedy for such frustration and it is important that 17 your report reflect that. 18 It is important, perhaps vital in our 19 view, to reflect that in order to prevent violence in the 20 future, to discourage occupations of lands whose title is 21 in the name of others. 22 It is important, in our view, to uphold 23 the Anglo-Canadian legal principles that disputes are to 24 be resolved by the Courts and tribunals rather than 25 taking matters into one's own hands.
1871 Our legal system has long evolved from the 2 days when disputes were settled by persons striking each 3 other with sticks and clubs. We've evolved past the time 4 of hiring champions or knights to physically fight one's 5 battles. 6 It is essential in our society that 7 disputes be resolved by the proper tribunals and Courts, 8 less the fabric of our society and the rule of law break 9 down when people disregard proper processes and they do 10 what they deem necessary to resolve disputes. 11 It is our position that self-help as a 12 remedy tears at the social contract that we have in the 13 nation to live peacefully with one another. 14 Now, as one counsel said yesterday, and I 15 agree, that if Native people feel that they're not being 16 dealt with fairly and justly, there will be more 17 occupations like this. And that's important. 18 While it's disturbing to think that in 19 modern Canada that all persons would not be treated 20 equally, fairly and justly under the laws of Canada, it's 21 equally concerning that self-help, if not discouraged, 22 can be an effective strategy for circumventing the Courts 23 and tribunals. 24 So, I'd respectfully request that you make 25 it clear that while emotions, frustrations and feeling
1881 can readily be understood, that the history of the 2 treatment of the Native people in Canada can be respected 3 and understood, that it still must be made clear that -- 4 that self-help is not an action that can be condoned. 5 I -- I -- it's our respectful submission 6 also that self-help most often leads to confrontation. 7 Confrontation often escalates. Escalation leads to 8 violence and that's one of the lessons that should be 9 learned from the time spent at this Inquiry. 10 And I should also state that while I'm 11 encouraging you to, in the strongest terms, condemn self- 12 help, a strong statement is also needed calling for an 13 overhaul to the land claims process to speed up the 14 process and to reform the process. 15 Perhaps with that, I don't think you can - 16 - you can look to one without the other, I think it's 17 important to maintain a balance. And that would be our 18 submission, that perhaps if that is remedied, frustration 19 will be reduced and self-help won't be seen as an 20 appropriate remedy. 21 Finally, sir, those are our submissions. 22 I didn't get to even pass the green card. I want to 23 thank you for your conduct of the Inquiry. I want to 24 complement the Commission Counsel and their staff for the 25 professionalism throughout. I'm sure they'll go back to
1891 their practice, if there still is one, like the rest of 2 us, as we go back and blow on the embers of our practice 3 and hope that we can again light a fire. 4 I want to wish you well in what I know 5 will be difficult deliberations in balancing the -- and 6 fairly balancing the concerns of all the people who have 7 -- have participated, on considering the reputations of 8 individuals that have been assailed from time to time in 9 this room, and taking into account all the victims of 10 this terrible tragedy that occurred in September. 11 And I wish you well in the most 12 complicated and difficult decision that you've probably 13 faced in your career. Thank you, sir. 14 COMMISSIONER SIDNEY LINDEN: Thank you 15 very much, Mr. Sulman. 16 Ms. Perschy, are you ready to start? 17 Okay. 18 19 (BRIEF PAUSE) 20 21 COMMISSIONER SIDNEY LINDEN: How are you? 22 Good afternoon to you. 23 24 FINAL SUBMISSION FOR MS. DEBBIE HUTTON: 25 MS. ANNA PERSCHY: Good afternoon,
1901 Commissioner. And it is me as well the last time that I 2 will have an opportunity to say that to you. It's quite 3 the moment. 4 I wanted to start by reiterating something 5 that I referred to in the introduction to our reply, but 6 I think it's significant enough that it bears repeating. 7 And it is in the introduction. It's 8 paragraphs 3 and 4. And I wrote it frankly in response 9 to the forward that Mr. Sam George had prepared, the 10 forward to Mr. Klippenstein's submissions on behalf of 11 the estate. 12 And what I said was this: 13 "We appreciate that the subject matter 14 of this Inquiry is very emotional. No 15 one could not be moved by Maynard Sam 16 George's words which speak to his pain 17 and loss and to that of his family. 18 His words speak to the common humanity 19 of all of us and transcend all 20 differences in gender, age, race, 21 ethnic background and religion. We all 22 have families and the death of a loved 23 one is always a great loss. A needless 24 death is particularly tragic. It is 25 precisely because human life has a
1911 value beyond price that the need to 2 avoid death or injury is so important. 3 That is precisely why it is so 4 important to thoroughly review all of 5 the evidence and carefully analyse it 6 so as to learn what we can from what 7 occurred. That is precisely why reason 8 cannot give way to emotion." 9 We, Commissioner, have always regarded it 10 as important that this Inquiry carefully investigate and 11 consider the evidence and that you make findings. A 12 public inquiry serves to dispel myths and rumours with 13 accurate information for the benefit of the public at 14 large, and you've spoken a number of times about the 15 public education aspect or role for a public inquiry, and 16 also for the benefit of policymakers who want to consider 17 what can be learned from the past and improved upon. 18 And we've participated in this process for 19 the last two (2) years in order to assist you. We -- 20 we've found documents, we've asked questions and we've 21 listened. And this hasn't been my effort alone. 22 I'd like to take this opportunity to thank 23 and acknowledge the assistance of my colleague, Melissa 24 Panjer, who's here today, and also the assistance of Adam 25 Goodman, who is on his honeymoon -- actually, he's just
1921 back from his honeymoon, so he couldn't be with us. 2 Having heard the evidence that's been so 3 painstakingly obtained during this process, we wanted to 4 provide you, Commissioner, with a perspective for 5 understanding that evidence. And we understand that 6 that's only one (1) perspective, but we believe that by 7 putting together all of the different perspectives you 8 may be able to have a better and fuller understanding. 9 And, as you know, we have provided you 10 with very lengthy submissions and a reply and it's 11 certainly not my intent to review all of those 12 submissions. But I would like to focus on five (5) 13 topics which highlights some of the things that we tried 14 to say and to use those five (5) topics in part as a 15 response to some of the submissions of the parties. 16 And those five (5) topics are the 17 following. 18 1. Means used to raise issues, and I'll 19 explain that. 20 2. The different roles, responsibilities 21 and processes of government and police. 22 3. Common concerns of government. 23 4. Problems with taking things out of 24 context. 25 5. The issue of impressions.
1931 And at the outset, I would like to 2 emphasise that we have never regarded this process as an 3 exercise in placing blame but rather, as I said, as an 4 opportunity to look at a situation and learn from it. 5 So, with that in mind, I'd like to turn to 6 the first topic. Means used to raise issues. 7 The evidence is clear, Commissioner, that 8 over the years concerned and committed members of the 9 Kettle and Stony Point First Nation and particularly 10 those with a connection to the former Stoney Point 11 reserve, used a variety of legitimate means to raise 12 their concerns. 13 They wrote letters to politicians and 14 others, they held protests, they handed out pamphlets, 15 they had marches. They even spoke to a Federal standing 16 committee. 17 They knew what to do and how to do it and 18 they did it and they engaged in those sorts of protests 19 to obtain the return of the camp lands. 20 They didn't do it -- they didn't engage in 21 such activities with respect to issues surrounding the 22 Park. And from the historical review of Ms. Holmes, I 23 note that the Kettle and Stony Point First Nation voted 24 against the surrender of the camp and they protested the 25 expropriation when the Federal Government expropriated
1941 the camp or the lands that became the camp. 2 And they continued to raise that issue and 3 as a result, they had protracted negotiations with the 4 Federal Government and they achieved at least some 5 settlement in the early 1980's and they received, I 6 believe, about $2 million in compensation and a promise 7 to return the land. 8 We all acknowledge that the Federal 9 Government was incredibly slow in dealing with this issue 10 and when the return of the land was slow in coming, when 11 -- when the Federal Government's promise was slow in 12 being fulfilled, the Kettle and Stony Point First Nation 13 protested again. 14 And they persuaded the Federal Standing 15 Committee in the early 1990's to recommend the return of 16 the camp, and in 1994 finally the Federal Government 17 indicated that it would close the base. 18 So, in my submission, it's not accurate to 19 say that the protests didn't work, and I'm not suggesting 20 for a second that the response was anything other than 21 incredibly slow. 22 The Federal Government moved with glacial 23 speed; there's no doubt about that. But it isn't 24 entirely accurate to say that these legitimate means that 25 were used didn't achieve anything.
1951 And I've skipped a step, of course, by 2 jumping to 1994 because, of course, in 1993, there was 3 the occupation of the ranges. 4 However, it's not clear on the evidence 5 that it was the occupation of the ranges that led the 6 Federal Government to announce the closure of the base. 7 I would submit on the evidence that the 8 recommendation of the Standing Committee, the settlement 9 that was achieved in the 1980's and the recognition at 10 that point that there was a promise to return the land, 11 the other protests, they may also have had something to 12 do with it. 13 In any event, in my submission, the 1993 14 occupation of the ranges still bears the indicia of a 15 protest. 16 What do I mean by that? Well, let's look 17 at it. There were leaders or spokespeople who identified 18 themselves in advance to the Federal Government and to 19 the OPP. 20 They told them what they were going to do 21 and why and they made clear that they were going to be 22 peaceful. 23 And I'm going to suggest that the Stoney 24 Point group who was involved in the 1993 occupation 25 recognized that their actions in occupying the ranges
1961 would raise concerns with the Federal Government and the 2 OPP and they sought to address those concerns. 3 While the Kettle and Stony Point First 4 Nation chief and council didn't agree with the methods, 5 the occupation of the ranges, even though they were 6 peaceful, they did agree with the goal of bringing about 7 the return of the camp lands. 8 Maynard T. George and Carl George took the 9 same approach with respect to the threatened occupation 10 of the Park. And I refer to it that way because really, 11 there is no occupation of the Park in -- in 1993. 12 They move an information booth onto -- 13 onto Park lands for a brief period of time. But that -- 14 that's really the extent of it. 15 But in any event, in 1993, Maynard T. and 16 Carl George contact the Provincial Government and the 17 OPP, they identify themselves, they indicate what they're 18 going to do, what they want, but they intend to be 19 peaceful, et cetera. 20 Many of these aspects of what was done in 21 1993 are not aspect -- are not present, excuse me, in 22 1995 with respect to the takeover of the barracks. 23 There was some discussion with the 24 military at the time of the takeover but the evidence of 25 Captain Smith was that agreements were broken pretty much
1971 as soon as they were made on the day of the takeover. 2 And the clear evidence is that there was 3 some violence. There was the sense that no one was in 4 control and the military withdrew to avoid a 5 confrontation. 6 And I appreciate that some witnesses have 7 said that these actions were just those of kids. That -- 8 I should point out two (2) things. One, these were young 9 men in their teens and twenties, so they weren't children 10 and two, there isn't any evidence that the adult 11 occupiers in any way criticized the actions taken by some 12 of their young people, in fact the evidence is the 13 contrary. 14 And none of the things that allowed the 15 1993 occupation of the ranges to be peaceful are present 16 with the takeover of the Park just a few weeks after the 17 takeover of the barracks. 18 There wasn't a spokesperson in 1995. Bert 19 Manning certainly couldn't speak on behalf of the 20 occupiers and frankly it appears from the evidence of 21 Stan Korosec that his views were -- were getting 22 overruled -- I mean, Bert Manning's views. 23 And even before you, no one would 24 acknowledge that they were in a leadership role There is 25 no clear articulation of what they're doing, the
1981 occupiers with respect to the Park, and the basis for it 2 other than simply asserting that it's their land and as 3 Carson put it in his conversation on September 5th with 4 Fox, for us to stay the hell off. 5 And unfortunately there is violence right 6 from the outset on September 4th. I don't need to 7 overstate it, there was a window that was smashed, some 8 flares that were thrown. But the fact remains the OPP 9 and the MNR were concerned enough that they withdrew. 10 So what happened at the Park in my 11 submission, is not an occupation or a protest. It is a 12 taking of land. Mr. -- someone referred to it as a self- 13 help remedy. The occupiers don't just go on the land, 14 they insist on -- on -- using some force and they insist 15 that everybody else leave and stay away. 16 And counsel for the occupiers themselves 17 in their submissions refer to this as a reclaiming of 18 land. And if I understood Mr. Klippenstein correctly 19 yesterday, all the 20 Aboriginal parties agree that the Park should be formally 21 returned to them. 22 No one is suggesting that if one could 23 just identify the location of some burial grounds and 24 fenced them off, that they would be prepared to have the 25 Park returned to the Provincial Government. This is
1991 about land. 2 And what justifies this taking of the 3 land? What efforts did the occupiers exhaust in trying 4 to raise this issue for other means? There isn't any 5 evidence of any such exhausted efforts. 6 In fact the evidence is that after 7 receiving the letter from the NDP Government in 1993 8 indicating that the Park belongs to the Province, the 9 Stoney Point Group took no steps with respect to the 10 Park. 11 My submission is that one can certainly 12 understand the frustration with respect to the camp. And 13 I'm not the only counsel to have made that point to you. 14 It doesn't justify the actions but at least one can 15 understand it. It's much more difficult to understand 16 what happened with respect to the Park. 17 Other than the threatened occupation in 18 1993 with respect to the Park, there is nothing done to 19 file a claim or raise an issue with respect to the Park. 20 Nothing, other than the taking it over that occurs in 21 September of 1995. 22 My Friend, Mr. Scullion, raised the issue 23 of Serpent Mounds and was asking why that was resolved 24 peacefully. And my response in the reply is that, that 25 was somewhat similar to the 1993 occupation of the
2001 ranges. 2 People involved identified themselves in 3 advance, they said what they wanted, they articulated 4 their reasons, they indicated what they were going to do 5 and that they were going to be peaceful. They also had 6 the support of the official band. 7 And Mr. Ross argued that First Nations 8 people shouldn't have to have the support of the official 9 band and that's true, however, the fact that the 10 democratically elected chief and council doesn't support 11 occupiers raises the question of what is their 12 legitimacy. 13 And the evidence of Carl George was that 14 three-quarters of the Kettle and Stony Point First Nation 15 have a connection to the former Stoney Point Reserve. 16 And Carl George acknowledged that he 17 didn't have a mandate from the majority of those with a 18 connection to the former reserve for the actions that he 19 and others took in 1993. 20 And the members of the Kettle and Stony 21 Point First Nation did not agree that they wanted a 22 referendum on splitting the official band. There is 23 evidence in fact that many members of the band were 24 opposed to that. So it's not clear who this group 25 actually represents other than themselves.
2011 And in 1993 and in 1995 the Chief of the 2 Kettle and Stony Point First Nation spoke with the OPP, 3 spoke with MNR, and both in 1993 and in 1995, unlike what 4 happens with the Camp he doesn't just take issue with the 5 methods being used with respect to the issue surrounding 6 the Park, he takes issue with the very notion that the 7 Kettle and Stony Point First Nation have a claim. 8 And I refer you in that regard to the e- 9 mails of Mr. Humberstone of MNR in 1993 which are 10 referred to in our submissions, the e-mail from Dan 11 Elliott in 1995, and of course the taped phone call with 12 Mr. Carson between Chief Tom Bressette and Mr. Carson on 13 the morning of September 5th. 14 So in summary the members of the Kettle 15 and Stony Point First Nation had legitimate means of 16 raising issues at their disposal. They knew how to raise 17 those issues in legitimate ways and knew what concerns 18 the Government or the OPP would have with an occupation. 19 In 1993 we addressed those concerns. In 20 1995 unfortunately they did not. Further I do submit 21 that the nature of the action taken in 1995 is quite 22 different from the much more limited action taken in 23 1993. 24 Let me turn to a different subject, the 25 different roles, responsibilities, and processes of the
2021 Government and the OPP. 2 The OPP is concerned with policing on the 3 ground. Their obligations arise by statute and from case 4 law there's a centralized command structure. Heard 5 evidence from -- from then Inspector Carson on the 6 subject and others. The Incident Commander may listen to 7 what other officers have to say and get input, but 8 ultimately he makes the decisions; it's his assessment. 9 He makes the decision. 10 Even his superiors respect that he's the 11 one on the ground and he's in charge and I'll refer you 12 to the evidence not just of Inspector Carson on that 13 point but the evidence also of his superiors Chief 14 Superintendent Coles and also Commissioner -- then 15 Commissioner O'Grady. 16 Government is a different kettle of fish. 17 Occupations and blockades affect a number of ministries 18 in different ways. That's precisely why under previous 19 governments you had an Interministerial Committee. 20 The mere name tells you something about 21 the fact that it involves a number of different 22 ministries. It allows representatives of different 23 ministries to share their information, share their 24 concerns and views. 25 And these may well be different reflecting
2031 the fact that it involves different ministries and as 2 I've mentioned in my submissions both in the original 3 submissions and in reply it's clear that in August 1995, 4 when My Client wasn't present, there were different views 5 being expressed among the Civil Servants of MNR for 6 example and Fox on behalf of the -- of the Solicitor 7 General regarding a possibility of an occupation of the 8 Park. 9 It stands to be repeated that under a 10 democratic system of government elected ministers are the 11 ultimate decision makers. They are responsible 12 individually and as a collective. The Premier of course 13 is the one who's ultimately responsible. He's the one 14 who appoints ministers to Cabinet. 15 And I recall Deputy Minister Vrancart 16 testified about how the general public, the media, often 17 looked directly to the Premier on issues rather than the 18 Minister responsible on a particular issue. 19 And I think, as Mr. Sulman mentioned, 20 anyone who's followed Caledonia in the last few weeks 21 would have seen that there's no doubt that the public and 22 the media have looked to see what was our current 23 Premier's position. And that's in a situation where we 24 weren't up until recently the landowner. 25 Under our system of government ministers
2041 have advisors in the form of a political staff and civil 2 servants. We expect the political side of Government to 3 have opinions and views. It's the sorts of things the 4 politicians talk about when they campaign and the basis 5 upon which they are elected; their views, their policy 6 positions, their plans. Which isn't to say they have a 7 position on everything because, of course, you don't know 8 what's going to come up in the course of a government's 9 mandate, but the fact remains we expect politicians to 10 have views and opinions. 11 Civil servants on the other hand are said 12 to be independent, and that's in the sense of being 13 politically neutral. They're supposed to serve whoever 14 gets elected regardless of their own personal political 15 views and opinions. And when providing advice I would 16 submit that civil servants provide the political arm 17 with, on the one hand, accurate, factual information and 18 expertise; legal expertise, financial expertise, medical 19 expertise, et cetera. That is their role. 20 And as I indicated in the reply it's very 21 important not to confuse the notion of police 22 independence on the one hand with -- from political 23 interference, with the notion of a so-called independence 24 of civil servants. They do refer to different things. 25 The notion of police independence stems
2051 from the view that the police are not the Government's 2 private force. Police should enforce the law with the 3 guidance that they can get from statute and from case 4 law. And the notion of -- sorry -- the notion of police 5 independence is that they be free from political 6 direction. And that's articulated in -- in the case of 7 Blackburn, and we referred to that in our -- in our 8 submissions. 9 Deliberately telling the police what to do 10 with respect to police operations; that's what we're 11 talking about. This notion is not about possible 12 unintentional influence from overhearing something, or 13 reading, or watching media reports of Government 14 communications to the public. A police force is not a 15 sequestered jury. They are more like judges. They have 16 the right to read the paper and have political views. 17 However, when they have a role to do -- 18 excuse me -- they are supposed to not let their personal 19 views affect the performance of their obligations. In 20 the case of police that has to do with the enforcement of 21 the law. 22 So, in summary, police independence from 23 political interference has a very specific meaning. It's 24 about the political arm of Government engaging in 25 specific intentional acts to interfere in police
2061 operations. And of course the concept of police 2 independence isn't entirely pure because, with respect to 3 the OPP of course, the Solicitor General is ultimately 4 responsible. 5 Nevertheless, the understanding has 6 developed that the Solicitor General has general 7 oversight, and while the Ministry is kept informed, the 8 Minister does not give direction, orders or instructions 9 on particular police operations. And witness after 10 witness testified to their understanding of that, 11 including, I might add, Ms. Hutton. 12 Civil servants on the other hand can and 13 do take direction from Ministers all the time. Now, put 14 aside the issue of prosecutions within the Ministry of 15 the Attorney General because that's rather specific and - 16 - and somewhat different. But Deputy Ministers are 17 themselves civil servants and they're in frequent contact 18 with their Ministers and other Ministers and political 19 staff. 20 Now, the civil service is a large 21 bureaucracy with a very hierarchical reporting structure, 22 so most of the contact between the political arm of 23 Government and the civil service goes trough the Deputy 24 Minister. However, it doesn't have to. 25 In the Interministerial Committee that
2071 we've been looking at, and it's not the only 2 Interministerial Committee, but it is the one that we -- 3 we've discussed in this -- in this Public Inquiry and so 4 we always refer to it as the Interministerial Committee 5 but it -- it's certainly not the only one in Government. 6 This Interministerial Committee is an 7 example of just such a structure which is designed to 8 allow the direct contact between political staff and 9 civil servants. 10 Why? Well the name tells you. The 11 Interministerial Committee on Aboriginal Emergencies. 12 It's designed as a bit of a shortcut so that people can 13 have access to information more directly and more quickly 14 and come to decisions through a process of making 15 recommendations more quickly. 16 And on that last point, Mr. Henderson 17 yesterday referred to the changes to the Interministerial 18 Committee following the death of Dudley George. And 19 without going into it in any great detail because I do 20 refer to it in my reply, it's clear from the evidence 21 that on September 7th and in the days that followed, what 22 had been a serious situation, became of course even more 23 serious. 24 And the Deputy Ministers became directly 25 involved and had regular meetings with political staff
2081 while the other civil servants took on more of the 2 support role. 3 Several months later, the civil service 4 reviewed the guidelines for the Aboriginal -- for the 5 Interministerial Committee on Aboriginal Emergencies. 6 And the civil service reaffirmed that political staff 7 including the Premier's office would be part of the 8 Interministerial Committee along with civil servants. 9 And as I said, I deal with that in a bit more detail and 10 I urge you to look at my reply in that. 11 Mr. Falconer this morning attempted to 12 characterize Ms. Hutton, an Executive Assistant, as the 13 second in command to Premier Harris and to somehow 14 compare her to Officer Wright and his relationship with 15 Inspector Carson. And quite frankly that blatantly mis- 16 characterizes the role of Government, how Government 17 works and who makes Government decisions and how they 18 were made on September 6th. 19 The police and Government are different. 20 They have different roles, they have different 21 responsibilities, they have different processes. That's 22 been clear from the evidence heard at this Inquiry. 23 Mr. Falconer in my submission, knows that 24 or should know that at this point. And in my submission, 25 these are just lawyers' attempts to draw non-existent
2091 parallels and they're worse than useless. They're -- 2 frankly, they're misleading. They're not the same thing. 3 Police and Government are different. 4 Which brings me to my third topic, common concerns of 5 Government. There has been a number of submissions which 6 seek to portray what occurred as the result of partisan 7 politics. 8 If a different Government had been in 9 power so the theory goes, everything would have been 10 different and perhaps Mr. George would not have died. 11 And this fails to recognize that when we're considering 12 the Government's position in all of this, which has 13 nothing to do with events on the ground, but I'll come to 14 that later, for the Government's position is in fact 15 reflective of common concerns from Government to 16 Government. The evidence is that the mandate and the 17 guidelines of the Interministerial Committee were in 18 place from one Government to another. 19 The goal was the same. Prevent 20 occupations from occurring and if you can't do that, 21 bring them to an end as quickly and as safely as 22 possible. 23 The key guidelines were also the same. 24 Don't get into substantive negotiations because otherwise 25 it may encourage illegal action and allow people to que
2101 jump to get their issues addressed ahead of others who 2 use legitimate means. 3 And Mr. Sulman referred to some of these 4 issues and stressed how these sorts of actions can be 5 dangerous and should not be encouraged. 6 The common concerns reveal themselves in 7 similar comments. And what I'd like to do is to read you 8 a comment which is at paragraph 170 of my submissions. 9 And I'm just going to turn it up. And I won't tell you 10 yet who said it or when, but I'll mention it at the end. 11 "MNR and OPP have contingency plans for 12 evacuation of the public from the Park. 13 There is some concern that if the 14 occupation continues, shooting could 15 occur in the Camp and if the matter 16 escalates other Aboriginal 17 quote/unquote 'Warriors' might join the 18 occupiers's cause and that the Park and 19 also the nearby Pinery Provincial Park 20 could be occupied." 21 That's a comment from a briefing note from 22 a Civil Servant in 1993. 23 And we don't have the handwritten notes of 24 the Interministerial Committee Meetings in 1993 and no 25 one has tried to parse every word that was uttered at
2111 those meetings in the way they've parsed at least My 2 Client's comments with respect to the meetings in 3 September of 1995, however, just when one reviews the 4 minutes in 1993 from one (1) of the meetings and I'll 5 turn you to paragraph 125, at one (1) of the meetings 6 here are the sorts of concerns that were raised. 7 One (1) of the Civil Servants noted that 8 the group was peaceful and seemingly cooperative. The 9 concerns were raised and they're summarised in the 10 minutes. 11 "There is a possibility that a 12 structure may be erected contrary to 13 the Provincial Parks Act. There have 14 also been reports that warriors from 15 other areas may join the First Nation 16 presence. 17 A Bailiff's Order served by the First 18 Nation on Thursday asserts First Nation 19 ownership of the Park lands. There is 20 concern that if Ontario does nothing 21 the First Nation's position will be 22 reinforced. The order is based upon an 23 1850 statute which has been repealed." 24 Putting aside the terminology, the use of 25 the word, "Warriors" which I don't think is particularly
2121 helpful, the -- the point is this. People were concerned 2 that matters may escalate. People were concerned about 3 public safety. These are common concerns. They're 4 concerns raised by Civil Servants. They were raised in 5 1993. 6 And in 1993 what's happened? There's the 7 prospect of an information booth being moved there and 8 there's service of the letter which articulated four (4) 9 fairly narrow demands. There wasn't any violence at that 10 point. There wasn't any attempt to prevent the 11 Government or the public from using the Park. 12 Nevertheless, just on -- based on what had occurred, 13 there were concerns being raised by the Civil Servants in 14 1993. 15 And in 1993 the clear advice from the 16 Civil Service was that the Government has valid title. 17 The NDP Government at the time notified the occupiers. 18 They don't offer to negotiate the ownership of the land; 19 why would they? It would illogical given the nature of 20 the legal advice that the Province has clear title and 21 owns the Park and the occupiers are mistaken in thinking 22 that they own it. 23 At least in 1993 the occupiers articulated 24 their reasoning. When we examined the documents that 25 they provided at that time they refer to the 1942
2131 appropriation -- the expropriation by the Government with 2 respect to the Camp. And the Government informs them by 3 letter that the expropriation is with respect to the Camp 4 lands and the history of the Park is quite different. 5 However, in 1995, following the death of 6 Dudley George there's a fact sheet and unfortunately I 7 don't have the exhibit number but there's a fact sheet 8 distributed by the Aazhoodena who were then occupying the 9 Camp and they referred to the Park lands as having been 10 moved and having been on the expropriated Camp lands. 11 And all the carefully articulated reasons 12 that have raised before you by Counsel with respect to 13 the surrender are not referred to in 1993 and they're not 14 referred to in the fact sheet produced by the Army Camp 15 residents in 1995. 16 The Civil Servants' advice in 1993 and in 17 1995 is that the Province has valid title. In 1993 and 18 in 1995 MNR created contingency plans. They focussed on 19 clearing the Park of any visitors, closing it, and 20 preventing anyone from trespassing, and that's their 21 language. 22 The MNR also created communication 23 materials in advance of the occupation which reflect that 24 policy position. The MNR civil service takes the 25 position in 1995 that an occupation would be regarded as
2141 a trespass and that it would be illegal. 2 And that's in the summer of 1995. It's a 3 position that's rooted in the legal advice and the 4 position taken in 1993 and it's a position that's taken 5 without any involvement from the political arm of 6 government at that stage let alone any involvement of the 7 Premier's Office or of Ms. Hutton. 8 And the MNR contingency plans in the 9 summer of 1995, which were considering the possibility of 10 an occupation of the Park, called for the involvement of 11 the OPP. And the OPP plans in 1993 and in 1995 involved 12 containing the situation and getting MNR to seek and 13 obtain an injunction. 14 And when one looks at the 1993 plan that 15 the OPP had -- and they had various scenarios, and it was 16 primarily focussed on dealing with -- with the situation 17 at the Camp, but they also considered the scenario 18 whereby the Park would be occupied -- it's clear that the 19 OPP planned to first use an injunction as a tool to 20 persuade the occupiers to leave. 21 But it's also clear that if that didn't 22 work the OPP were prepared to make arrests and remove 23 people based on the injunction order. It's a plan, it's 24 not carved in stone. How and when the OPP was going to 25 do that, all of that was going to be left to the Incident
2151 Commander, of course. 2 Now, the Project Maple in 1995 is not as 3 explicit as the 1993 plans, but Carson clearly had them 4 in mind. That's what he says to Lacroix on the morning 5 of September 5th. If I could turn you to paragraph 492 6 of my submissions. 7 He was having a conversation with Lacroix 8 on the morning of September 5th and Lacroix, you've heard 9 in the evidence, had missed out on the planning that took 10 place on September 1st. And Carson says in his taped 11 phone call to Lacroix: 12 "But you have intimate knowledge of 13 all, you know our '93 plans." 14 And Lacroix says: 15 "Okay." 16 And Carson says: 17 "And they are very appropriate. And 18 you know as this thing rolls out you're 19 probably going to be relieving somebody 20 somewhere." 21 Clearly, Carson thought that the '93 plans 22 were relevant. And when you look at the 1993 plans and 23 you look at what actually is done in 1995 in terms of 24 containing the situation, both in terms of the numbers of 25 officers and -- and the use of the ERT teams, it's clear
2161 that the 1993 plans and what's being implemented in 1995 2 is virtually the same thing. It's the same approach. 3 And the plans, when one looks at the 4 September 1st planning meeting, the plan was to have MNR 5 get an injunction. And as it's recorded in those 6 planning meeting notes, the injunction, the best case 7 scenario was that it was going to be within twenty-four 8 (24) hours. 9 And again in 1995 this consideration given 10 to the -- the possibility of arrests and arrest packages 11 were prepared, et cetera, this is all at the planning 12 stage. But clearly that is the thinking. And I believe 13 Korosec -- Stan Korosec testified that the 1993 plans 14 were similar to what was being discussed in 1995. 15 And in 1995 it's the OPP that raises the 16 issue of an injunction with MNR on the ground, not the 17 other way around. And it's the OPP that asks MNR to 18 obtain the injunction, and that's first done at the 19 beginning of August. And the contingency plans that are 20 prepared are around that expectation and that plan. 21 And, Commissioner, there's a wealth of 22 evidence on this. There's the evidence -- there's the 23 testimony of Peter Sturdy and Les Kobayashi and Inspector 24 -- then Inspector Carson himself, as well as a whole host 25 of contemporary documents. And it's covered in our
2171 submissions, in Part IV. 2 I raise it, no one else has, in my 3 submission it is quite important in understanding the 4 approach taken on the ground both by the MNR and by the 5 OPP. Neither of them was reacting to the political arm 6 of Government in preparing their plans. The ministers, 7 including the Premier, and their political staff had no 8 involvement in all of that. 9 And MRN and the OPP started implementing 10 their plans as soon as the occupation began on September 11 the 4th. That's why MNR and the OPP go back during the 12 night on September 4th, despite everything that's 13 happened and the decision to withdraw, they go back that 14 night to the Park and try to serve the occupiers with a 15 notice of trespass. 16 And their evidence, as supported by the 17 scribe notes, is that they wanted to advise the occupiers 18 that they were trespassing, they assumed that 19 unfortunately they still wouldn't leave and they were 20 going to proceed to then have MNR seek an injunction. 21 It's quite true that under our system of 22 Government, I said earlier, Ministers are the ones who 23 make the decisions. The Ministers could have come in and 24 taken a completely different approach from that begun by 25 the civil servants at MNR and by the OPP. They didn't,
2181 but it surely is not accurate to suggest that the 2 political arm was ignoring the advice of their civil 3 servants which brings me to the fourth topic. 4 Taking comments out of context is the 5 specific heading in our reply. Frankly, it's a 6 reoccurring theme in our reply. One of the main 7 deficiencies of the -- some of the submissions of -- of 8 other parties particularly as they relate to our client, 9 is that they take things out of context and ignore much 10 of the evidence. 11 I think I likened it to ignoring the 12 forest for the trees. And I've given a number of very 13 specific examples in the reply to illustrate in a very 14 concrete way how this can twist one's understanding of 15 what occurred. 16 And I don't intend to do that today. It 17 involves very carefully reviewing the evidence in a 18 detailed manner and frankly that would be very difficult 19 to follow in oral submissions. We've done it in writing. 20 It's there for anyone who wants to review it. However, I 21 will refer in general to two (2) points under this 22 heading. 23 1) is the complete focus on Deb Hutton at 24 the Interministerial Committee meetings with an 25 occasional reference to Ron Fox. The MNR representatives
2191 at the meetings are completely ignored. 2 It sort of reminds me of a tactic which I 3 believe was used in Stalinist Russia. One of the ways 4 that people would re-write history would be to remove 5 people from photographs so they didn't exist. You might 6 have a picture which five (5) people in the photograph 7 and then a few of them, say three (3) of them were later 8 regarding as dissidents they'd sort of be -- be -- the 9 fact -- the sort of, the photographs would be doctored 10 and the people would just disappear. And then all of a 11 sudden you have a photograph of maybe of a couple of 12 people left. Then it became a completely different 13 photograph. It changes the picture, it distorts the 14 reality. 15 And in my submission, that's the effect of 16 ignoring the presence of comments of, not just the MNR 17 representatives, but of others at these meetings, but in 18 particular the MNR representatives. It creates a real 19 distortion that doesn't reflect what actually occurred. 20 And it doesn't frankly reflect the evidence because 21 fortunately we do have contemporaneous evidence. 22 All you have to do is look at Ron Fox's 23 call to Carson on September 5th. He goes on for pages 24 and pages and pages of transcript about what MNR said at 25 the IMC meetings and which he didn't agree with.
2201 There were different views at these 2 meetings. And in my submission there were different views 3 as I suggested earlier at the August meeting. But there 4 was no divide between political servants on the one -- 5 sorry, political staff on the one hand and civil servants 6 on the other. 7 There were differences and that included 8 differences amongst civil servants. And in my 9 submission, it's something of a self fulfilling prophecy 10 to ignore the evidence about whatever else said, focus 11 only on Hutton and then argue that Hutton was dominant at 12 the meeting. 13 When one reviews the evidence, all of the 14 evidence, it's apparent that she made a handful of 15 comments, first at the first meeting then at the second 16 meeting. Lots of other people spoke. 17 And I indicated that I'd refer to two (2) 18 problems under this heading of taking things out of 19 context. The other major problem with a lot of the 20 submissions, is that they ignore the progression of 21 events. 22 The evidence is clear. Ron Fox gave the 23 evidence that the situation worsened on September the 24 6th. That's ignored. Some parties pick up on what is 25 referred to towards the end of the second meeting and
2211 treat it as if it was said at the outset on September the 2 5th. 3 And then they argue, Oh well, the former 4 Premier knew what he wanted to do from the outset and 5 that this is communicated by Hutton. It's not reflected 6 by the evidence. 7 The evidence is she didn't say a word. 8 She sat and listened for about half of the meeting on 9 September 5th. She already knew what she wanted to do, 10 what's she doing? 11 By ignoring the progression of events, it 12 gives the false appearance that the political arm had a 13 closed mind when the exact opposite is true. Ms. Hutton 14 didn't walk into the September 5th meeting with an 15 entirely blank or empty mind waiting to be filled by 16 others. Intelligent people don't have a blank or empty 17 mind but she did have an open mind and that was her 18 evidence. 19 And time and again when you look at the 20 notes which capture the gist of the conversation, 21 demonstrates that Ms. Hutton was indeed actively 22 listening at the meetings and picking up on what others 23 were saying. 24 She picked up on the advice of the lawyers 25 where they reaffirmed that the Province has valid
2221 ownership as they had done in August. She picked up on 2 Fox's comment that there was access from the Camp and 3 that people and weapons could come across from the Camp 4 to the Park. She picked up on Fox's comment that over 5 time it might become more difficult to remove them. He 6 was referring specifically to people becoming more 7 comfortable and becoming entrenched. Nevertheless she 8 picked up on that concern or comment. 9 She picked up on Fox's suggestion that 10 they use OPP as a fact finder. He does that on September 11 the 5th. She then refers to it September 6 when the 12 meeting is going to come up and raises her concerns about 13 what can be communicated on behalf of Government at these 14 discussions and the concerns about getting into 15 substantive negotiations. 16 She was listening to what was being said. 17 And ignoring the progression of events ignores the fact 18 that the Civil Servants also took into account the 19 information that was coming from the ground with respect 20 to what was going on. 21 At the meeting on September 6 Peter Sturdy 22 confirms a report of the gunfire and then raises the 23 concern about the safety of MNR staff and they're being 24 asked to wear bullet-proof vests. 25 And if you look at Julie Jai's notes of
2231 that meeting, right beneath the comment attributed to 2 Peter Sturdy, she notes: 3 "Agreed. We will seek an injunction as 4 soon as possible. ASAP." 5 And the evidence of the civil servants who 6 testified before you was that there was a consensus and 7 that each of them who testified indicated that they 8 agreed with that recommendation. 9 So this allegation that the political arm 10 somehow manufactured a quote/unquote "crisis," talk about 11 a strawman. It's the submissions -- it's in the 12 submissions of other Counsel that they have described 13 this incident as a crisis. Hutton doesn't refer to it as 14 a crisis. It was a serious situation, yes, absolutely, 15 and by September the 6th it appeared to have been 16 worsened, or appeared to have worsened. 17 So those are just two (2) general problems 18 with respect to taking things out of context. And I 19 referred you in our reply to several examples, very 20 specific examples. However, I do have to emphasize that 21 this problem of ignoring evidence, taking things out of 22 context, it's -- it's cumulative. It's not a discreet 23 problem. It's pervasive and it completely undermines the 24 arguments of some of the other parties. 25 Which brings me to impressions. And the
2241 problem with impressions is of course that they sound a 2 whole lot more meaningful than they are. I believe it 3 was Mr. Strosberg who was making reference to the sound 4 and fury, signifying nothing. Frankly, you could make 5 that point about impressions. 6 Impressions are simply an individual's own 7 summary, not necessarily of what was said, but what they 8 understood. Now, during this Inquiry My Colleagues and I 9 have asked many questions of those who were at the 10 Interministerial Committee meetings to find out what 11 specifically they recalled in order to find out the basis 12 for some of the impressions. 13 And as you know in many instances I gave 14 witnesses an opportunity to review the notes of people 15 who had taken detailed notes to see if that would refresh 16 their recollection. And frankly, witnesses often didn't 17 recall things or got things wrong and had to have their 18 memory refreshed from notes. 19 And I'd like to remind you, sir, that Ron 20 Fox did not recall that it was Deb Hutton who asked, Can 21 we confirm that, when Peter Sturdy first gave the report 22 about the automatic gunfire. 23 And that was information that Fox 24 indicated was very important for the Interministerial 25 Committee to have as they considered the issue of the
2251 Government's position and what they should do with 2 respect to the injunction. 3 Fox's impression, interestingly enough, 4 was that this information -- that this was information 5 that MNR had obtained and that in fact was the basis for 6 his scepticism. As I recall his evidence, his point, 7 Well it's only the police who have the training and the 8 expertise who would be able to recognize whether or not 9 it's in fact automatic gunfire or several people firing 10 semiautomatics. 11 I'm not sure what the distinction -- I'm 12 sure the distinction has some value, strategic value for 13 police officers. At the Government level, in terms of 14 the issues they had to consider, I'm not if the 15 distinction was -- was as germane. But be that as it 16 may, the evidence at the Inquiry is that MNR obtained 17 this information from the OPP and it was one of their 18 officers who heard it. So Fox's impression, his 19 assumption was wrong. 20 Now, Fox testified that it would be 21 prudent to ask for confirmation of such information, but 22 he didn't recall that it was Hutton who had asked for the 23 confirmation. And Fox testified initially that it was 24 Hutton who asked about criminal charges on September the 25 6th. And he was misled by Scott Patrick's notes which
2261 failed to record that there was a change in speaker and 2 in fact that the suggestion came from Mr. McCabe. 3 And when I took Mr. Fox, Ron Fox, to 4 Eileen Hipfner's notes, he realized that it was in fact 5 Tim McCabe who raised the issue. So my question is, How 6 reliable are Fox's impressions when his recollection of 7 who said what isn't accurate? 8 And in that regard I'd like to reply or 9 comment on the reply of the OPP. I'm not suggesting that 10 Fox was not truthful. I am questioning and challenging 11 the reliability of some of his impressions. He wasn't 12 taking detailed notes at the time. He's participating in 13 a discussion with something like twenty-five (25) 14 different people in a large boardroom. His recollection 15 now is what it is but even at the time, even a few 16 minutes after the meeting, his overall impression may not 17 have been accurate. 18 And when I raised the issue of Ron Fox's 19 comment about Hutton at the outset of this conversation 20 with Carson on September the 5th, I wasn't seeking some 21 finding that Ron Fox is sexist or ageist or anything like 22 that. It's just a comment. 23 But it is significant for two (2) reasons. 24 First, it's very clear that Fox is not being 25 complementary. He was being derogatory, he was being
2271 dismissive about a person he never met before that day. 2 He didn't know anything about her responsibilities, he 3 didn't know anything about her experience. He was being 4 dismissive about her, frankly, in the same way he was 5 rather dismissive with respect to some of the MNR 6 representatives on the ground. 7 And in my submission Ron Fox went into the 8 Interministerial Committee meetings thinking like a 9 police officer, but that wasn't his role. He was there 10 as an advisor to the Ministry of Solicitor General. He'd 11 been seconded there. He was a civil servant. 12 As Doctor -- as Deputy Minister Todres put 13 it, I thought rather aptly, he was Mr. Fox to her. He 14 may have had experience as a police officer but policing 15 was not the issue for the Interministerial Committee's 16 recommendation. Their issue was the position and 17 communications of the Government. And Ron Fox had almost 18 no experience in Government and none in media and 19 communications, let alone with respect to Government 20 communications to the media. 21 Second -- the second reason that Fox's 22 comment is significant is that his initial comment about 23 her speaks to the nature of -- of the conversation that 24 he's having. This is an informal chat between two (2) 25 former colleagues. It wasn't a message being relayed.
2281 It wasn't a message being relayed by a so-called liaison 2 officer. 3 Ron Fox was not a liaison person. There 4 was another person at the Ministry of the Solicitor 5 General who played that role. Fox was an advisor, not a 6 liaison. Yes, he provided reports from the ground. 7 That's what officials at the Ministry of the Solicitor 8 General do. You don't have to be a police officer to do 9 that. 10 And the evidence from a number of 11 witnesses is clear that at the Interministerial Committee 12 meetings, representatives of MNR and from the Ministry of 13 the Solicitor General provided information. And several 14 of the witnesses testified about how their information 15 was similar. Well, we all know why now because MNR was 16 actually at the OPP Command Post and they shared a lot of 17 information with the OPP and the OPP shared information 18 with them. 19 In fact the evidence was this is nothing 20 unusual and that MNR on the ground shared information all 21 the time. And you'll recall when I was cross-examining 22 Peter Sturdy, he testified that in many instances, 23 briefings would go up through the civil service and it 24 wouldn't be clear from the briefings and the reports who 25 was the original source of the information.
2291 So in my submission, what Fox said at the 2 Interministerial Committee meeting would only have 3 identified him as a representative of the Ministry. And 4 his evidence is that how you -- that's how he would have 5 introduced himself at that meeting. 6 I'm just going to make one (1) more point 7 and then I've been asked to suggest a break and I'm more 8 than happy to do that, Commissioner. 9 On Ron Fox's own evidence, he wasn't asked 10 to have any conversation with -- with Carson. On his own 11 evidence, he made a choice and his boss -- the only 12 person to whom he reported to at the time, Deputy 13 Minister Todres testified that it was a lapse in 14 judgment. And I address that simply in response to the 15 allegation, this allegation of sending a message. 16 And I have addressed that much more fully 17 in my submissions and in my reply. And frankly, I refer 18 you to all of that and in particular at all of the 19 evidence cited in support of that. I don't need to beat 20 it to death. It -- it's quite obvious. 21 If it's a convenient time for a break, 22 Commissioner, I'll have -- 23 COMMISSIONER SIDNEY LINDEN: Yes. I hope 24 Mr. Falconer will forgive us, Mr. Roy. He had asked for 25 a break this morning and I didn't want to break in the
2301 middle of his submission, but I do think we need a break 2 now. So I think this is an appropriate time to take a 3 break. 4 THE REGISTRAR: This Inquiry will recess 5 for ten (10) minutes. 6 7 --- Upon recessing at 3:24 p.m. 8 --- Upon resuming at 3:36 p.m. 9 10 THE REGISTRAR: This Inquiry is now 11 resumed. Please be seated. 12 13 CONTINUED BY MS. ANNA PERSCHY: 14 Commissioner, just before we broke, I was 15 making submissions with respect to impressions and I 16 wanted to go back to that for a minute. 17 Ms. Jai, one of the civil servants, 18 testified about her impressions. However, looking back 19 on the evidence it's clear that she didn't take in or 20 somehow didn't process some of the information that she 21 received at the Interministerial Committee meetings. 22 For example, when she was asked, and I 23 believe it was under cross-examination from My Friend, 24 Mr. Downard, she was asked about the automatic gunfire 25 reports, she recalls that this was somehow can been
2311 confused with reports of a flare. And that's not 2 accurate. 3 The evidence overall is quite clear there 4 were flares thrown on the evening of September the 4th, 5 1995 at the time of the initial takeover. The report 6 regarding the officer who heard -- what he heard, what he 7 understood was automatic gunfire, that report was the 8 next night. 9 And both Ms. Jai and Ms. Hipfner testified 10 that frankly they were sceptical about the information 11 from the MNR representatives on the ground who were 12 calling in at the Interministerial Committee meetings, 13 both on September 5th and the 6th. And in fact Ms. Jai 14 was sceptical about their concerns back in August, 1995. 15 And in September, it appears from the 16 contemporaneous notes that Ms. Jai and Ms. Hipfner didn't 17 ask for confirmation or ask any questions of the MNR 18 representatives on the ground. 19 And Ms. Hipfner's insight, some ten (10) 20 years later, was that the MNR representatives who were on 21 the ground and calling in and her perception that they 22 sounded excited -- sounded excited and that they were 23 yelling into the phone, her insight, so many years later, 24 was that those representatives on the ground didn't have 25 the benefit of seeing the reaction of the civil servants
2321 sitting in a boardroom in Toronto. 2 People's musings as to what other people 3 think or what they feel, how they feel, these sorts of 4 musings are often inaccurate. People misread other 5 people's body language all the time. People 6 misunderstand what other people say all the time. We've 7 seen it during this Inquiry time and again. That's the 8 stuff of life. 9 In my submission, Commissioner, 10 impressions are not a reliable basis upon which to make 11 findings as to what occurred. It maybe a good basis for 12 writing a novel in the style of Virginia Wolfe of what 13 people thought at a particular point in time, their state 14 of mind, but it's not a good basis for making findings in 15 an inquiry as to what occurred. 16 In my submission, Commissioner, there's 17 been more than enough commentary about this. What is 18 needed is to assess what happened. And very 19 respectfully, I'm asking you to look at the evidence of 20 what was said, recognizing people's recollections are 21 certainly not perfect, recognizing that handwritten notes 22 are just the gist of what was said, they're not a 23 verbatim transcript. 24 Recognizing all of that, I'm asking that 25 you look at -- at that evidence and that you look at how
2331 Government considered these issues two (2) years earlier, 2 that you look at what was done on the ground in 1995, 3 what was occurring at the Park, and most -- perhaps most 4 important of all, Commissioner, it's not what people 5 said, it's what did people do. What did the Government 6 do? 7 Well, Minister Hodgson issued a press 8 release. Actually, he didn't issue a press release. I 9 take that back. He responded to a media scrum after the 10 local Mayor issued a press release there was a media 11 scrum and Minister Hodgson, the Minister for MNR at the 12 time, responded to questions from the media and said that 13 the Government was looking at its legal options. 14 And the recommendation of the 15 Interministerial Committee on consensus was to seek an 16 injunction as soon as possible. The government later did 17 decide to seek an injunction. 18 And people may agree or disagree about 19 whether or not in their view those steps were advisable. 20 They're clearly within the Government's authority and 21 also equally clearly they are not causally connected to 22 the death of Dudley George. And I agree with the 23 submissions of Mr. Strosberg on that and some of the 24 other counsel. There's simply no evidence of a causal 25 connection.
2341 And I note that in Mr. Klippenstein's 2 reply, and he's not here but he told me not to take it 3 personally and I won't, this isn't about my ego, he -- 4 Mr. Klippenstein attempted to resurrect the allegation 5 about the comment, the "get the f'ing Indians out of the 6 Park even if you have to draw guns". And he suggested, 7 well, maybe that was said after the Interministerial 8 Committee meetings. 9 And frankly, in my submission, it's just 10 outrageous to raise such an allegation at the end of this 11 process without having put it to witnesses. 12 There's no evidence to support that 13 suggestion. We're two (2) years into this process and 14 we're now to go back to unfounded rumours and 15 allegations. It makes no sense, Commissioner. We've 16 reviewed it. We've looked in every nook and cranny. 17 We've got the evidence. 18 And in light of the repeated allegations 19 that have been bandied about we request that you make the 20 following findings with respect to Ms. Hutton. 21 1. That she didn't direct or instruct the 22 OPP. 23 2. That she never advocated the use of 24 force. 25 3. In fact, she never advocated for any
2351 particular course of action. 2 And 4. She certainly never intended to 3 influence the OPP. And the evidence on all of those 4 points is very, very strong. 5 And with respect to the allegations of 6 influence of the OPP, unintended or otherwise, they 7 simply don't stand up to scrutiny. Such allegations 8 contradict the testimony of the police officers 9 themselves. Mr. Sulman referred to that, I'm not going 10 to repeat it again. You heard their evidence. 11 Such allegations also ignore the 12 contemporary evidence. Counsel have focussed on a few 13 isolated passages in the scribe notes and they've 14 repeated them endlessly, but they ignore the pages and 15 pages of scribe notes which show what the police were 16 doing and thinking. That gets ignored. 17 The allegations ignore the phone calls, 18 the radio transmissions on the night of September 6th. 19 What are all those phone calls and radio transmissions 20 about? It's what's going on at the scene. That's what 21 the police are thinking about. That's what they're 22 dealing with. 23 In my submission, the allegations of 24 influence are simply unfounded. 25 And I'd like briefly to respond to a
2361 couple of points made by Mr. Falconer. I'm not going to 2 undress -- address the unfounded and unfair submissions 3 about racism. I'm not going to deal with the allegations 4 about malice. I've addressed them in my reply. Frankly, 5 I'm not going to dignify them by responding to them any 6 further. 7 I'm also not going to address the 8 ridiculous conjecture surrounding the limited evidence 9 about the calling of the dining room meeting. That's 10 covered in the reply. 11 I will address two (2) points. One (1) is 12 with respect to the Hansards, and I agree with some of 13 the previous submissions on this point, including those 14 of Mr. Downard. And I would also like to add that Mr. 15 Falconer asked Ms. Hutton about her role in preparing 16 ministers for the Legislature, for question period. And 17 I'll refer you to her evidence in that regard. 18 The House is not a place where people 19 deliver formal prepared speeches that have been written 20 in advance. It's a question period. Politicians respond 21 to whatever questions get raised and their staff try to 22 anticipate what general issues may be asked and give them 23 some basic information and the essence of the 24 Government's position, which ministers may then use when 25 -- when they're making their response.
2371 The evidence is that the focus has always 2 been the issue of the buildup of police and the question 3 of direction of police, neither of which occurred. And 4 Mr. Falconer's attempts to portray this as somehow Ms. 5 Hutton controlling what came out of Premier Harris's 6 mouth or what have you, it's simply unfair and a twist of 7 reality, both of what occurs at the House, the role of 8 assistants and what happened here. 9 It is, in my submission, yet another 10 example of an unfair, unwarranted attack on Ms. Hutton's 11 credibility and her integrity. This is a Party who has 12 sought to assist you in this process. She attended 13 voluntarily. She patiently tried to answer many 14 repetitive and frankly sometimes offensive questions, 15 candidly, honestly and with considerable grace under the 16 circumstances. 17 And then second -- I said I was going to 18 have two (2) points in response to Mr. Falconer -- the 19 second is with respect to Mr. Falconer's analogy about 20 Beckett and Henry II. It's partly because I'm interested 21 in history but it also demonstrates a critical lack of 22 understanding about the dining room and the meeting 23 there. 24 Mr. Falconer may be a student of drama but 25 he appears not to be as much of a student of history.
2381 The whole issue at the time of Henry II was that the 2 English Crown had no legal authority over the Catholic 3 Church and its officials, including Beckett. There was 4 no legal authority for dealing or, quote/unquote, 5 "ridding oneself of the meddlesome priest". That's not 6 the situation here. 7 The clear evidence was that the Government 8 had legal options to address the Ipperwash, in particular 9 the injunction. The evidence is that at the dining room, 10 from all the witnesses who were there, is that it's the 11 injunction, the legal option that was available to the 12 Government that was being discussed. 13 The analogy doesn't work and ignores the 14 most basic evidence of all the witnesses as to what the 15 Government was considering and what they did. They 16 decided to go to Court and they were in the process of 17 doing that. 18 It's not the use of force, it's a response 19 to means which involved going outside, legitimate and 20 legal processes. Self-help remedy Mr. Sulman referred 21 to. It brings them back into a legal process. 22 And I have to agree with Mr. Downard that 23 there have been attempts at character assassination. But 24 his client isn't the only one (1) who's been affected. 25 My client has also been attacked. She's
2391 the former Premier's Executive Assistant. These attacks 2 were unfounded, unfair and unhelpful. The treatment of 3 my client who is an advisor, not a decision maker, has 4 frankly been nothing short of outrageous. 5 And in my submission unfortunately these 6 attacks have also impeded this Inquiry process and 7 undermined it's aims. This Inquiry raises important 8 issues. We need calm, careful, rational consideration. 9 Not name calling and smearing and character 10 assassination. 11 We haven't made any formal 12 recommendations. My client is a private individual and 13 accordingly we didn't seek standing for Part 2. However 14 having sat through this process and participated in this 15 process, I did include some concluding thoughts for you 16 at the end of our submissions. 17 And I'd like to simply conclude by 18 thanking you for allowing us to participate and for your 19 patience, Commissioner. Like Mr. Fredricks, I never 20 anticipated how long this Inquiry would take. It has 21 taken a long time and required a great effort. 22 And I would like to thank Commission 23 Counsel. I would like to take this opportunity to thank 24 them for all their efforts. And unless you've got any 25 questions, that's all I have to say. Thank you very
2401 much, Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much, Ms. Perschy. 4 MR. DERRY MILLAR: Commissioner, if we 5 might before Ms. Clermont starts on behalf of the 6 Municipality, if I could just talk to you about a couple 7 of scheduling matters. 8 The first is that Mr. Sandler has 9 requested -- Mr. Sandler is still in Court in Toronto 10 with respect to another matter today and that you heard 11 about yesterday, and he's made a request that he be -- he 12 start his submissions Wednesday at 2:00 p.m. 13 And -- which is -- and in the 14 circumstances, it seems to me a reasonable request which 15 I discussed with you and I've advised Mr. Sandler that he 16 could start tomorrow at 2:00. 17 COMMISSIONER SIDNEY LINDEN: I think it 18 just works out with how we are proceeding. I don't think 19 that it's that much of a concession or -- 20 MR. DERRY MILLAR: Well what it'll mean 21 is -- is we may have -- depending on how long everyone is 22 tomorrow morning, there may be a short period of down 23 time. But I don't anticipate too much. 24 What I pro -- what I suggest we do is that 25 we finish the Municipality of Lambton Shores today and
2411 then begin tomorrow morning and then adjourn til tomorrow 2 morning and start with the Chief Coroner at nine o'clock. 3 We would then have the Province, the OPPA 4 and then the OPP starting at 2:00. And then on Thursday 5 morning we will have the parties with the Part 2 6 standing. 7 There are seven (7) of them. They have a 8 half an hour each -- 9 COMMISSIONER SIDNEY LINDEN: Maximum. Up 10 to a half hour. 11 MR. DERRY MILLAR: -- maximum -- maximum. 12 So that will be -- they'll be done by at the latest 12:45 13 and I've sent an e-mail around to My Friends but for the 14 benefit of everyone else, the -- subject to confirmation 15 from one (1) of the drums which we hope to have tomorrow 16 morning, the closing will be on Thursday at 2:00 p.m., 17 not on Friday. 18 And we expect to receive the confirmation 19 -- I'll be able to make -- confirm this tomorrow morning 20 as I understand it -- with respect to the drums. So I 21 suggest subject to your direction, that we -- Ms. 22 Clermont make her presentation and then perhaps adjourn 23 for the day. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 Ms. Clermont. Good afternoon.
2421 MS. JANET CLERMONT: Good afternoon, 2 Commissioner. 3 4 (BRIEF PAUSE) 5 6 MS. JANET CLERMONT: And I can advise 7 that I'll be approximately ten (10) minutes. 8 9 FINAL SUBMISSIONS FOR THE MUNICIPALITY OF LAMBTON SHORES: 10 MS. JANET CLERMONT: It's the 11 Municipality's intention to approach submissions with a 12 view to looking forward. I'd like to address three (3) 13 issues in -- in my submissions; firstly, the citizens 14 group that gathered at the MNR parking lot on the 6th; 15 communications with the Province and communications with 16 the OPP. 17 Firstly, the Municipality recognizes that 18 what happened was a tragedy and the only good thing to 19 come out of tragedies are recommendations that ensure it 20 will not happen again. There are lessons to be learned 21 from Ipperwash and the Municipality submits that one (1) 22 of the core lessons is the need for early communications. 23 Ipperwash is an example of how lack of 24 communications escalated a volatile situation. Written 25 submissions were made to this effect so I don't plan to
2431 go over them here but I would like to look at an example 2 of where communications did work at Ipperwash and that's 3 the example of the Parking lot incident on the evening of 4 the 6th. 5 Now, the Commission has heard evidence 6 that shortly after 6:00 p.m. on the 6th Sergeant Wright 7 met with a group of twenty (20) to forty (40) men, women 8 and children that gathered at the MNR parking lot. The 9 group informs Sergeant Wright that they were preparing to 10 march to the Park to express their frustration. 11 Wright described the group as frustrated. 12 And to his credit he communicated to the group that the 13 OPP was handling the situation and weren't going to go 14 away until the problem was solved. He testified that the 15 group immediately felt better and they went home. 16 He convinced the group not to march to the 17 Park and I use this example as an encounter -- I use this 18 encounter as an example to illustrate that communications 19 works and in this case it turned a frustrated group 20 around. 21 The group that gathered in the MNR parking 22 lot has been referred to in some parties' submissions as 23 "an angry mob" and "angry white cottagers" and it's my 24 submission that these descriptions are unfortunate and 25 not helpful and serve to drive a wedge between
2441 communities. 2 Sergeant Wright specifically testified on 3 this point indicating that the group was not an angry 4 mob. They were frustrated and upset but they were not a 5 mob. This was a group of people that had legitimate 6 concerns about their safety and their property and they 7 had a right to be informed of what was happening in their 8 community. They just wanted information. They got it 9 and went home. 10 Secondly, I just want to touch on 11 communication between the Province and the Municipality. 12 In a time of crisis constituents often turn to their 13 local officials for answers. Municipal officials are 14 closer to people than other levels of government in the 15 sense that they interact with people on a daily basis in 16 the streets and in coffee shops. 17 They're approached, asked questions and 18 they're expected to have answers to basic questions such 19 as what's happening? What's the Government doing? 20 When the Ipperwash occupation occurred 21 the Municipality didn't have any answers to give because 22 they weren't provided any information. 23 The Inquiry has not heard any evidence 24 that anyone from the Provincial offices in Toronto 25 contacted the Municipality in the summer of 1995 and
2451 during the occupation. 2 Our written submissions again address 3 the lack of communication between the provincial 4 government and the municipality so I won't go into it 5 here. But to say that policies and protocols need to be 6 in place that anticipate a communications plan that 7 includes the Municipality and discusses what the 8 Government is doing. 9 Communications must involve a two-way 10 dialogue in which a Municipality is consulted on its 11 views, concerns and ideas. This should be done at the 12 outset and the earlier the better. 13 Communication plans should be well in 14 place before a crisis erupts. The Municipality is an 15 ideal point of contact for distributing this information 16 and updating the public. If the public doesn't know 17 what's going on they become anxious and frustrated. 18 Who provides the information, I submit, is 19 as important as the information provided. The 20 Municipality submits that the communication plan should 21 anticipate direct communication between the Municipality 22 and the Minister in charge. 23 And, finally, with respect to 24 communication between the Municipality and the OPP, we 25 agree that there should be no inflexible rule that
2461 Incident Commanders cannot communicate with community 2 leaders. And that the best approach is to allow the 3 Incident Commander discretion as to who he or she will 4 meet with and when. Communications during a crisis 5 situation necessitates immediate action and direct 6 communication. 7 Again, the Municipality is one (1) of the 8 most effective and valuable conduits through which 9 information is transmitted from the police to the public. 10 The public needs to be aware of the nature of the 11 occupation and how it may affect their lives. 12 In conclusion, the Municipality had and 13 continues to have good relations with the Kettle and 14 Stony Point Chief and Council and its First Nation 15 neighbours. These communities must live together as 16 neighbours and poor communications from Government, both 17 Federal and Provincial, drive a wedge between communities 18 and threaten these good relations. 19 The Municipality asks the Commissioner to 20 encourage all levels of Government to put their problems 21 on the table and work towards a resolution through 22 meaningful, respectful and inclusive communications. 23 Thank you. Those are my submissions. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much.
2471 We're ending a little earlier than we 2 expected but do you think this is an appropriate time to 3 adjourn -- 4 MR. DERRY MILLAR: Well, it gives us a 5 good balance -- 6 COMMISSIONER SYDNEY LINDEN: -- tomorrow 7 morning? 8 MR. DERRY MILLAR: ---it gives us a good 9 balance for tomorrow morning. 10 COMMISSIONER SYDNEY LINDEN: That's fine. 11 So we'll adjourn now until tomorrow morning at nine 12 o'clock. 13 MR. DERRY MILLAR: Thank you very much, 14 sir. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much. 17 THE REGISTRAR: This Public Inquiry is 18 adjourned until tomorrow, Wednesday, August 23rd, at 9:00 19 a.m. 20 21 --- Upon adjourning at 4:00 p.m. 22 23 24 25
2481 2 3 Certified Correct, 4 5 6 7 8 9 _________________ 10 Carol Geehan, Ms. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25